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Terms & conditions for the supply of the Silverlake Archive

By creating an account on the Silverlake Archive you are agreeing to these terms and conditions. If you do not wish to be bound by these terms and conditions please reject the terms and do not create an account.

 

Any image licence granted to the customer following use of the Silverlake Archive is subject to these terms and conditions. If you do not wish to be bound by these terms and conditions please do not accept a quote.

 

The customer's attention is particularly drawn to the limitation of liability provisions of clause 7 and to the grant of intellectual property rights in clause 6.

 

 

1. Interpretation

 

1.1. Definitions:

“Africa”: all countries, regions, states and political territories whose borders or political status may change from time to time but which are currently referred to as Burundi, Comoros, Djibouti, Eritrea, Ethiopia, Kenya, Madagascar, Malawi, Mauritius, Mozambique, Réunion, Rwanda, Seychelles, Somalia, Tanzania, Uganda, Zambia, Zimbabwe, Angola, Cameroon, Central African Republic, Chad, Republic of Congo, Democratic Republic of Congo, Equatorial Guinea, Gabon, São Tomé and Príncipe, Algeria, Libya, Morocco, South Sudan, Sudan, Tunisia, Western Sahara, Botswana, Lesotho, Namibia, South Africa, Swaziland, Benin, Burkina Faso, Cape Verde, Ivory Coast, Gambia, Ghana, Guinea, Guinea-Bissau, Liberia, Mali, Mauritania, Niger, Nigeria, Saint Helena, Senegal and Sierra Leone including all their territories and possessions but excluding Egypt.

 

“Asia”: all countries, states, islands and political territories commonly known as forming part of the Asian continent including People’s Republic of China (including Hong Kong, Macao and Tibet), Japan, North Korea, South Korea, Mongolia, Taiwan, Afghanistan, Bangladesh, Bhutan, India, Kazakhstan, Kyrgyzstan, Maldives, Nepal, Pakistan, Sri Lanka, Tajikistan, Turkmenistan, Uzbekistan, Brunei Darussalam, Cambodia, Indonesia, Lao PDR, Malaysia, Myanmar, Philippines, Singapore, Thailand, Timor-Leste, Vietnam, Armenia, Azerbaijan and Georgia but excluding Russia and the Middle East.

 

“Benelux Countries”: Belgium, Netherlands and Luxembourg.

 

“BRICS”: Brazil, Russia, India, People’s Republic of China (including Hong Kong, Macao and Tibet) and South Africa.

 

“Fees”: the charges payable by the Customer for an Image Licence as set out in a Quote.

 

“Commencement Date”: has the meaning set out in clause 2.5.

 

“Terms & Conditions”: these terms and conditions as amended from time to time in accordance with clause 10.4.

 

“Contract”: the contract between Silverlake and the Customer for the supply of Services and for the supply of the Image Licence on the terms set out in each Quote and in accordance with these Terms & Conditions.

 

“Control”: shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression “change of Control” shall be construed accordingly.

 

“Customer Default”: has the meaning set out in clause 4.2.

 

“Customer”: the person, company or firm who uses the Services and who subsequently sends a Request to acquire an Image Licence from Silverlake.

 

“Digital”: media on which data is produced and supplied in digital form, including but not limited to websites (editorial or otherwise), mobile services, applications, web-based platforms, storage on computer memory, tablets and other handheld devices.

 

“Duration”: in respect of each Contract, unless specified otherwise in a Quote, the duration shall mean 12 months beginning from (and including) the Commencement Date.

 

“EMEA”: Europe, Middle East and Africa.

 

“Europe”: all countries, states, islands and political territories commonly known as forming part of the European continent including Russia, Ukraine, Malta, Greece, Cyprus, Faroe Islands, Vatican City State and Gibraltar and all their territories and possessions, as amended or modified or changed from time to time but excluding Turkey.

 

“Image Licence”: shall have the meaning set out in clause 6.2.

 

“Images”: all images which are made available for licensing on the Silverlake Archive including but not limited to all photographs, colour transparencies, black and white or colour photographs, drawings, illustrations, paintings, captions, footage and frames from films or film footage, digital images, computer generated images whether generated using software for the generation of 3D images or otherwise.

 

“Intellectual Property Rights”: copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

 

“Media”: the forms of media on which or within which an Image or Images may be exploited by the Customer, as set out in a Quote.

 

“Middle East”: all countries, states, islands and political territories commonly known as forming part of the middle-eastern territory of the Asian continent including Bahrain, Egypt, Iran, Iraq, Israel, the Palestinian Territories, Jordan, Kuwait, Lebanon, Oman, Palestine, Saudi Arabia, Kurdistan, Syria, Turkey, United Arab Emirates and Yemen including all their territories and possessions but excluding Armenia.

 

“North America”: all countries, states, islands and political territories commonly known as forming part of the north American continent including Canada, the United States of America, Mexico, Anguilla, Antigua and Barbuda, Aruba, Bahamas, Barbados, Bermuda, Cayman Islands, Cuba, Dominica, Dominican Republic, Grenada, Guadalupe, Haiti, Jamaica, Martinique, Montserrat, Netherlands Antilles, Puerto Rico, British Virgin Islands, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Trinidad and Tobago, US Virgin Islands, Belize, Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, Panama including all their territories and possessions.

 

“Oceania”: all countries, states, islands and political territories commonly known as forming part of the continent known as Oceania including Australia, New Zealand, Fiji, New Caledonia, Papua New Guinea, Solomon Islands, Vanuatu, Guam, Hawaii, Kiribati, Marshall Islands, Micronesia, Nauru, Northern Mariana Islands, Palau, American Samoa, Cook Islands, French Polynesia (Tahiti), Niue, Pitcairn, Samoa, Tonga, Tuvalu including all their territories and possessions.

 

“Order”: a Customer’s order for Services as set out the Customer’s written acceptance of each of Silverlake’s Quotes.

 

“Print”: all media affixed in or communicated via a printed format, including but not limited to magazines, books, pamphlets and newspapers.

 

“Prohibited Usage”: any restrictions to the Image Licence specified by Silverlake in a Quote.

 

“Purpose”: the sole purposes for which an Image or Images may be exploited by the Customer, as set out in a Quote.

 

“Quote”: shall have the meaning set out in clause 2.3.

 

“Request”: shall have the meaning set out in clause 2.2(a).

 

“Services”: the photography syndication services, including the Images, supplied by Silverlake on the Silverlake Archive to the Customer.

 

“Silverlake Archive”: Silverlake’s photography syndication and archival service platform available on any of Silverlake’s websites including www.silverlakephotography.com, www.silverlakearchive.com and www.silverlakevoice.com which enables the Customer, amongst other things, to browse, preview the Images and subsequently request a quote for a licence to use the Images for a fee.

 

“Silverlake”: Silverlake Photography Ltd, a company registered in England and Wales (Company no.08165488) with registered office at Unit 023 Westbourne Studios, 242 Acklam Road, London, W10 5JJ.

 

“South America”: all countries, states, islands and political territories commonly known as forming part of the south American continent including Argentina, Bolivia, Brazil, Chile, Colombia, Ecuador, French Guiana, Guyana, Paraguay, Peru, Suriname, Uruguay, Venezuela including all their territories and possessions.

 

“Special Conditions”: any conditions set out in the Quote to which the Image Licence is subject to.

 

“Territory”: the countries, areas or regions specified in a Quote within which the Image Licence may be exploited.

 

“UK”: the United Kingdom of Great Britain and Northern Ireland.

 

1.2. Interpretation:

A reference to a statute or statutory provision is a reference to it as amended or re-enacted and includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.

Any phrase introduced by the terms “including, include, in particular” or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms.

Except in respect of clause 2.5 (where writing includes email) any reference to “writing” or “written” includes fax but not email.

Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.

 

 

2. Basis of contract

2.1. These Terms & Conditions govern every Order made by the Customer.

 

2.2. Whenever the Customer wishes to acquire a licence to use an Image the Customer shall:

use the functions provided by the Silverlake Archive to specify to Silverlake the intended publication type, use, duration and territories for which the Customer seeks to acquire an Image Licence (a “Request”); and

use the functions provided by the Silverlake Archive to send the Request to Silverlake.

 

2.3. Upon receiving a Request, Silverlake may at its own discretion provide the Customer with a quote which sets out the proposed Duration, Media, Purpose and Territory of the Image Licence, substantially in the form attached to Schedule 1 of these Terms & Conditions (“Quote”).

 

2.4. Each Quote constitutes an offer by Silverlake to provide a licence in the Images in accordance with these Terms & Conditions and the relevant Quote and is only valid for 20 days from its date of issue.

 

2.5. A Quote shall only be deemed to be accepted when the Customer issues acceptance of the Quote in the form of a written letter to Silverlake or an email to info@silverlakearchive.com on which date the Contract shall come into existence (“Commencement Date”).

 

2.6. Each Contract:

is entered into between the Customer and Silverlake; and

forms a separate contract between its signatories.

 

2.7. Any amendments to these Terms & Conditions shall be deemed to apply only to all future Contracts entered into after the date of such amendment.

 

2.8. Any pages on the Silverlake Archive including any parts thereof which require input from the Customer or any descriptions, illustrations or sample images contained on the Silverlake Archive are issued or published for the sole purpose of giving an approximate idea of the Services and the Images described in them. They shall not form part of the Contract or have any contractual force.

 

2.9. These Terms & Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

 

3. Supply of services

3.1. Silverlake shall use all reasonable endeavours to ensure that the Images are made available for download by the Customer on the Silverlake Archive within a reasonable period of time following Silverlake’s receipt of the Customer’s acceptance of a Quote, but time shall not be of the essence for performance of the Silverlake’s obligations in this clause 3.1.

 

3.2. Silverlake shall provide the Image Licence in accordance with each accepted Quote.

 

3.3. Silverlake shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services or Images, and Silverlake shall notify the Customer within a reasonable period of time in any such event.

 

3.4. Silverlake warrants to the Customer that the Services will be provided using reasonable care and skill.

 

3.5. Silverlake only provides the Services and Image Licenses to traders and/or business and not to individual consumers.

 

4. Customer's obligations

4.1. The Customer shall:

ensure that the terms of the Order are complete and accurate;

ensure that all correspondence and registered office details (where applicable) are complete and accurate;

co-operate with Silverlake in all matters relating to the Services;

provide Silverlake with such information and materials as Silverlake may reasonably require in order to supply the Services and provide the Image Licence, and ensure that such information is accurate in all material respects;

fully comply with the terms of each Image Licence; and

pay the fee for each Image Licence as set out in a Quote.

 

4.2. Silverlake shall not be liable for a delay or prevention to perform any of its obligations under the Contract as a result of any failure by the Customer to perform any relevant obligation (“Customer Default”).

 

5. Fees and payment

5.1. The Fees for each Image shall be set out in each relevant Quote.

 

5.2. The Customer shall pay each invoice submitted by Silverlake:

 

5.3. Silverlake shall invoice the Customer after making the relevant Images available for download on the Silverlake Archive.

 

within 30 days of the date of the invoice; and

in full and in cleared funds to a bank account nominated in writing by Silverlake, and

time for payment shall be of the essence of the Contract.

 

5.4. All amounts payable by the Customer under the Contract are exclusive of value added tax chargeable for the time being (“VAT”). Where any taxable supply for VAT purposes is made under the Contract by Silverlake to the Customer, the Customer shall, on receipt of a valid VAT invoice from Silverlake, pay to Silverlake such additional amounts in respect of VAT as are chargeable on the supply of an Image Licence at the same time as payment is due for the supply of an Image Licence.

 

5.5. If the Customer fails to make any payment due to Silverlake under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 4% per cent per annum above Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.

 

5.6. The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law).

 

6. Intellectual propery rights

6.1. All Intellectual Property Rights in or arising out of or in connection with the Services, the Silverlake Archive or the Images are owned by Silverlake and/or its respective licensors and all rights are hereby reserved.

 

6.2. Subject always to:

the Customer’s acceptance of a Quote; and

Silverlake making available the Image(s) to which each relevant Quote relates to the Customer (by way of upload of said Image onto the Silverlake Archive),

the Customer is granted a non-exclusive, royalty free licence to use, reproduce, distribute, publish, transmit, communicate to the public, broadcast, display, exhibit, adapt, crop, modify, recast or enhance the Images, alone or in combination with any other material or publication solely:

for the Duration;

in the Territory;

in the Media; and

for the Purposes

specified in each relevant Quote relating to such Image(s) (“Image Licence”).

 

6.3. Each Image Licence is subject to any applicable Prohibited Usage.

 

7. Limitation of liability

THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE

7.1. Nothing in the Contract shall limit or exclude Silverlake’s liability for:

death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;

fraud or fraudulent misrepresentation; or

breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) or any other liability which cannot be limited or excluded by applicable law.

 

7.2. Subject to clause 7.1, Silverlake shall not be liable to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for:

loss of profits;

loss of sales or business;

loss of agreements or contracts;

loss of anticipated savings;

loss of use or corruption of software, data or information;

loss of damage to goodwill; and

any indirect or consequential loss.

 

7.3. Subject to clause 7.1 Silverlake’s total liability to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract shall be limited to £100% of the Fees.

 

7.4. The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.

 

7.5. This clause 7 shall survive termination of the Contract.

 

8. Termination and expiry

8.1. The Contract commences on the Commencement Date and shall continue, unless terminated earlier in accordance with clause 8.2 until the expiry of the Duration.

 

8.2. Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:

 

the other party commits a material breach of any term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;

the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;

a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days;

any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 8.2(b) to 8.2(d) (inclusive); or

the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.

 

8.3. Breach of the terms of an Image Licence will cause significant damage to Silverlake and is not a remediable breach.

 

8.4. Without limiting its other rights or remedies, Silverlake may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment.

 

8.5. Without limiting its other rights or remedies, Silverlake may suspend provision of the Services under the Contract or any other contract between the Customer and Silverlake if the Customer becomes subject to any of the events listed in clause 8.2(b) to clause 8.2(d) or Silverlake reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.

 

9. Consequences of termination

On termination of the Contract for any reason:

the Customer shall immediately pay to Silverlake all of Silverlake’s outstanding unpaid invoices and interest and, in respect of each Image Licence supplied but for which no invoice has been submitted, Silverlake shall submit an invoice, which shall be payable by the Customer immediately on receipt;

the Customer shall remove and delete all digital files representing the Images from their possession, whether held electronically, digitally or in paper form;

the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall be unaffected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and

clauses which expressly or by implication survive termination shall continue in full force and effect.

 

10. General

10.1. Force majeure. Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.

 

10.2. Assignment and other dealings.

Silverlake may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.

Unless provided for in the Special Conditions, the Customer shall not, without the prior written consent of Silverlake, assign, transfer, mortgage, charge, subcontract, sub-licence, declare a trust over or deal in any other manner with any or all of its rights (including the Image Licence) or obligations under the Contract.

 

10.3. Entire agreement.

The Contract (and the attached Schedule 1) constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.

 

10.4. Variation. No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

 

10.5. Waiver. A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not:

waive that or any other right or remedy; or

prevent or restrict the further exercise of that or any other right or remedy.

 

10.6. Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.

 

10.7. Notices.

Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service, commercial courier, fax but not email.

A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 10.7(a); if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second business day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by fax, one business day after transmission.

The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.

Subject always to compliance with clause 10.7(a) a copy of any notice sent to Silverlake by the Customer under this clause 10.7 shall be sent by email to info@silverlakephotography.com.

 

10.8. Third parties. No one other than a party to the Contract shall have any right to enforce any of its terms.

 

10.9. Governing law. The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.

 

10.10. Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.

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