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The Buyers Agreement detailed below forms part of the Terms and Conditions.
The following terms and conditions together with the relevant Specification set out the terms on which the Art(s) is sold to you (the "Buyer") by The Zambezi Project acting as agent for the Member.
1. Definitions and Interpretation
1.1 In this Agreement, unless the context otherwise requires, the following words and expressions shall have the following meanings:
1.1.1 "Effective Date" means the date on which this Agreement comes into effect pursuant to Clause 5;
1.1.2 "Fees" means the fees payable by the Buyer to The Zambezi Project in accordance with Clause 6 and as more particularly described in the Specification;
1.1.3 "The Zambezi Project" means thezambeziproject.com and www.thezambeziproject.com, trading as The Zambezi Project.
1.1.4 "The Zambezi Project Image Library" means the database of images compiled by thezambeziproject.com which may be viewed by visiting the web site thezambeziproject.com;
1.1.5 "Image" means any photograph, image, drawing or other pictorial representation which forms part of the The Zambezi Project Image Library;
1.1.6 "Member" means the owner of the Art represented by the Image or Images which are the subject of this Agreement;
1.1.7 "Specification" means the Agreement specification in relation to an Image or Images which may be submitted to The Zambezi Project from time to time by the Seller for acceptance by The Zambezi Project which specifies the use of that Image, the term of the sale, the fee payable to The Zambezi Project by the Buyer in respect of the Art, any territorial restrictions on the sale and any special conditions which may be agreed between the parties and which together with these terms and conditions shall constitute the Sale;
1.1.8 "Term" means the term of this Sale set out in the relevant Specification.
1.2 In this offer for sale:
1.2.1 headings are included for convenience only and shall not affect the construction of the sale;
1.2.2 references to "Clauses" are, unless otherwise expressly stated, references to the clauses of this sale and references to the "parties" or a "party" are reference to a party or the parties to this sale.
2.1 In consideration of and subject to the payment by the Buyer of the Fees and the performance by the Buyer of all the other obligations of the Seller set out in this Agreement, the Member hereby grants to the Buyer exclusive ownership or the Art in accordance with the Specification and subject to and upon the terms of this Agreement.
2.2 This Agreement is personal to the Buyer and the Buyer agrees to any condition(s) that the Member may have attached to the Sale although without prejudice to the Member's other rights and remedies.
From time to time the Member may submit a Specification to The Zambezi Project. An authorised representative of the Member must submit each Specification to The Zambezi Project. The Specification becomes binding on both parties once it has been accepted by confirmatory e-mail sent by The Zambezi Project on behalf of the Member.
4. Buyer's Undertakings
The Buyer shall:
4.1 not consider that the purchase confers any right to use the Image representing the Art provided by the Member;
4.2 not make any alterations or modifications to the Image representing the Art provided by the Member;
4.3 not permit any third party to use that Image for any purpose whatsoever; and
4.4 promptly notify The Zambezi Project, in writing, of any actual, threatened or suspected action by any third party or parties which may constitute or is likely to constitute an infringement of any of the Member's rights in the Image.
5. Term and Termination
This Agreement shall commence from the date on which The Zambezi Project accepts the relevant Specification on behalf of the Member in accordance with Clause 3 and shall continue in full force and effect, subject to earlier termination in accordance with the provisions of this Agreement, for the Term.
6.1 The Buyer will pay to The Zambezi Project the Fee for the purchase including VAT (where applicable) on any amounts due in full or at the frequency set out in the Specification.
6.2 Ownership is not transferred until payment has been received by The Zambezi Project in cleared funds.
6.3 In the event that any payment is not made by the due date, the Member reserves the right to charge interest on the amount outstanding at the rate of 4% above the then current base rate of Barclays Bank plc, accruing from day to day (including the day on which payment was due) from the due date up to the date of actual payment, after as well as before judgment, and any such interest shall be payable on demand.
6.4 In the event of any failure by the Buyer to make payment, the Buyer will be responsible for all expenses (including legal fees) incurred by The Zambezi Project in recovering such payment.
7. Limitation of Liability
7.1 Save in respect of liability for death or personal injury arising as a result of the Member's negligence, the Member's total aggregate liability howsoever arising under or in connection with this Agreement.
7.2 In no event will the Member be responsible for any indirect, incidental, consequential, special or economic loss of any kind including without limitation loss of profits, business, contracts, revenues, goodwill, production or anticipated savings arising out of or in connection with this Agreement.
8. Entire Agreement
This Agreement together with the Specification sets out the entire agreement and understanding between the parties and supersedes all previous agreements, arrangements, understandings and commitments and the Member confirms that it is not placing the Specification or accepting this Agreement or any of the arrangements contemplated hereby in reliance upon any representation or warranty not expressly set out in this Agreement (save that no liability for fraudulent misrepresentation is excluded by this provision).
9. No Partnership
Nothing in this Agreement shall or shall be deemed to create any partnership or joint venture between the parties hereto. Nothing in this Agreement shall be deemed or construed to constitute either party or any of its officers or employees the agent or legal representative of the other party for any reason whatsoever except only as and to the extent specifically stated in this Agreement and, except as so stated, neither party is hereby granted any right or authority to act for, or to incur, assume or create any obligation, responsibility or liability, express or implied, in the name of or on behalf of the other party or to bind the other party in any manner whatsoever.
No waiver (whether express or implied) by either of the parties hereto of any of the provisions of this Agreement or of any breach of or default by the other party in performing any of those provision shall constitute a continuing waiver and no such waiver shall prevent the waiving party from enforcing any of the provisions of this Agreement or from acting upon any subsequent breach of or default by the other party under any of the provisions of this Agreement.
If any one or more of the provisions contained in this Agreement shall be deemed by any Court or other competent authority to be invalid, illegal or unenforceable in any respect the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby.
12. Force Majeure
Neither party shall be liable to the other party for any breach or non-performance of it obligations under this Agreement arising from any event beyond its reasonable control (an "Event of Force Majeure") including, but not limited to, Act of God, governmental act, war, fire, drought, failure of power supply, lock out, strike, explosion, accident, civil commotion, refusal of any licence by any telecommunications body, impossibility or delay in obtaining materials or telephone lines. Each party agrees to notify the other party immediately upon becoming aware of an Event of Force Majeure and to use all reasonable endeavours to overcome the circumstances affecting its performance and fulfil all outstanding obligations as soon as practicable.
13. Proper Law and Jurisdiction
This Agreement and the Specification are governed and shall be construed in accordance with English law and the parties hereby irrevocably submit to the non-exclusive jurisdiction of the English Courts.