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The Sellers Member Agreement detailed below forms part of the Terms and Conditions.
The following terms and conditions (the "Agreement") set out the rights and obligations of you (the "Member") and us 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 The Zambezi Project registers you as a Member;
1.1.2 "The Zambezi Project Image Library" means the database of Images administered by The Zambezi Project which may be viewed by visiting the Web Site;
1.1.3 "Image" means any photograph, image, drawing or other pictorial representation submitted to The Zambezi Project by the Member for entry into the The Zambezi Project Image Library;
1.1.4 "Intellectual Property Rights" means all patents, unpatented inventions, design rights, copyrights, moral rights, rights in databases, topography rights, trade marks, service marks, trade names, rights in trade secrets, know-how and all other intellectual property rights of any nature whatsoever, and all rights of a similar nature or having similar effect throughout the world whether registered or unregistered and including all applications and rights to apply for any of the same;
1.1.5 "Service" means the inclusion of the Image or Images by The Zambezi Project in the The Zambezi Project Image Library with a view to arranging a sale of that Art or Artworks represented by that Image or those Images on behalf of the Member for a fee;
1.1.6 "Membership Fee" means any such sum as may be determined by The Zambezi Project in accordance with this Agreement payable by the Member to The Zambezi Project.
1.1.7 "Web Site" means the The Zambezi Project web site located at URL www.thezambeziproject.com and thezambeziproject.com.
1.2 In this Agreement:-
1.2.1 headings are included for convenience only and shall not affect the construction of this Agreement;
1.2.2 the expressions " The Zambezi Project " and "Member" shall include (where appropriate) their successors in title and permitted assigns; and
1.2.3 references to "Clauses" are, unless otherwise expressly stated, references to the clauses of this Agreement and references to the "parties" or a "party" are references to a party or the parties to this Agreement.
The Member hereby grants to The Zambezi Project and The Zambezi Project hereby accepts a non-exclusive right to display the Image or Images on the Web Site anywhere in the world and to use the Image or Images in promoting the Web Site and the right to agree the terms of and conclude with third parties on behalf of the Member the sale of such items as represented by the Member's Image or Images.
3. Member's Undertakings
The Member hereby undertakes and agrees as follows:-
3.1 not, without the express prior written consent of The Zambezi Project, to disclose the Member username or password(s), nor make them available in any way to any third party and to take all reasonable precautions to prevent any unauthorised disclosure of them;
3.2 that the Member is responsible for all Data and Images submitted to The Zambezi Project made using the Member username and password(s) whether or not use is made by the Member or someone else using such usernames and passwords;
3.3 that it will not:-
3.3.1 use the The Zambezi Project Image Library for any immoral or unlawful purpose; or
3.3.2 in any way interfere with or interrupt the normal operation of the The Zambezi Project Image Library or the Web Site.
3.3.3 refer or link by means of captions, keywords or credits to other websites or URLs (with the exception of The Zambezi Project websites) and contact information such as email address telephone number or postal address without the prior written consent of The Zambezi Project.
3.4 that all information which may be input into the title, description and tags associated with an Image shall be true, be a description of and accurately describe the item portrayed by that Image with which the title, description and tags are associated and contain nothing which is defamatory, obscene, threatening, racist, pornographic, immoral, unlawful or misleading.
4.1 The Zambezi Project warrants that it has all requisite power and authority to execute, deliver and perform its obligations under this Agreement.
4.2 Notwithstanding anything contained in this Clause 4 The Zambezi Project does not warrant that the Service will meet the Member's requirements nor that the operation of the The Zambezi Project Image Library or the Web Site will be error free or uninterrupted or that all defects will be corrected.
4.3 The Member warrants that:-
4.3.1 it has all requisite power and authority to execute, deliver and perform its obligations under this Agreement;
4.3.2 it owns the Intellectual Property Rights in the Images and any sale or licencing of such rights shall not infringe any third party's right to privacy;
4.3.3 the Images do not contain anything which is defamatory, obscene, threatening, racist, pornographic, immoral, unlawful, false or misleading and do not contain any data which contains viruses or is corrupted and do not infringe the Intellectual Property Rights of any person or render The Zambezi Project liable for any proceedings whatsoever; and
4.3.4 each Image complies with the requirements of all relevant legislation (including subordinate legislation, the rules of statutorily recognised regulatory authorities and the law of the European Union) for the time being in force or applicable in the United Kingdom or in any other territory where the Image is to be shown and directed to the residents of that territory.
4.4 The Zambezi Project shall in no way be liable for any breach by the Member of the warranties set out in Clause 4.3 and the Member hereby indemnifies The Zambezi Project from and against any and all claims, liabilities, damages, actions, proceedings (including reasonable legal fees and expenses) that may be suffered or incurred by The Zambezi Project which arise out of or in connection with such a breach.
The Zambezi Project's right to reject Data and/or Images
5.1 The Zambezi Project may, without prejudice to the Member warranties contained in Clause 4, refuse to include any Image in the The Zambezi Project Image Library so as:
5.1.1 to comply with any legal or moral obligations placed on The Zambezi Project or the Member; and/or
5.1.2 to avoid infringing any third party's rights (including without limitation Intellectual Property Rights).
5.2 The Zambezi Project has the right at its absolute discretion to decline to publish, to omit, suspend or cancel any data and/or image or to remove any image from the The Zambezi Project Image Library.
5.3 The Member acknowledges that The Zambezi Project has not made any guarantees with respect to usage statistics for the Image.
6. Payment by the Member
6.1 Where a Membership Fee has been requested the Member will pay to The Zambezi Project any Membership Fee required for the provision of the Service quarterly in advance from the Effective Date.
6.2 In the case that a Membership Fee has been waived this waiver will continue in perpetuity. If the Member becomes a Member by paying a Fee then The Zambezi Project reserves the right to change the level of said Membership Fee whenever this Agreement is renewed, in accordance with Clause 11.1, any such change shall be notified to you via i) a note on the Member's Page on the site or ii) email
6.3 Where Membersip is Fee dependant and unless otherwise agreed in writing by the parties this Agreement will automatically terminate in the event that The Zambezi Project has not received the first Membership Fee in cleared funds within 30 days of the Effective Date. The Member shall make payments to The Zambezi Project via the Web Site by credit card or by a specially agreed Standing Order arranged with the Member's bank.
6.4 In the event that any due payment is not made by the due date the Images may be removed from the The Zambezi Project Image Library by The Zambezi Project.
7. Sale Fees
7.1 If The Zambezi Project arranges the sale of any item (which is not guaranteed) and The Zambezi Project receives, in cleared funds, the fee in respect of the Sale the Member will be paid by The Zambezi Project the agreed percentage set out in their Agreement. The Zambezi Project will retain the balance of the fee as its own fee for arranging the sale.
7.2 Unless otherwise agreed in writing by the parties this Agreement will automatically terminate in the event that the Member does not receive the proportion of the sale fee referred to Clause 7.1 above within the specified period the fee falling due to be paid to the Member.
7.3 The Zambezi Project shall pay the Member by bank transfer or cheque as agreed between the parties. Any such cheque shall be sent, at the Member's risk, to the last postal address notified by the Member to The Zambezi Project.
8. Provision of Image
The Member will provide all Images (and required data) in accordance with any instructions, technical requirements and other specifications of The Zambezi Project from time to time, including (without limitation) the manner of transmission to The Zambezi Project. The Zambezi Project will not be required to publish any Image that has not been received in accordance with any such instructions, requirements and specifications and The Zambezi Project will not be liable for the loss or corruption of any materials provided by the Member, which the Member warrants that it has retained in sufficient quality and quantity for whatever purpose.
The Member agrees promptly and fully to indemnify The Zambezi Project and its employees, officers, agents, and directors and hold them harmless from and against any and all expenses, damages, liabilities, claims, costs and losses of any kind (including reasonable legal fees and costs) suffered or incurred by The Zambezi Project or any of its employees, officers, agents and directors in connection with any claims, proceedings, demands or actions (actual or threatened), of any kind (including, without limitation, any claim of trade mark or copyright infringement, libel, defamation, breach of confidentiality, breach of any statutory or regulatory duty, arising from any Image and/or any material of the Member or arising as a result of any breach or non-performance of any of its representations, warranties, obligations or other terms contained in this Agreement or implied by law.
10. Limitation of Liability
10.1 Save in respect of liability for death or personal injury arising as a result of The Zambezi Project's negligence, The Zambezi Project's total aggregate liability howsoever arising under or in connection with this Agreement whether in respect of a single occurrence or a series of occurrences, shall not exceed the total of the amounts paid and payable by the Member under this Agreement.
10.2 In no event will The Zambezi Project be liable for any costs, claims, demands, expenses and/or damages arising out of or in connection with the content of the Images and/or data.
10.3 In no event will The Zambezi Project 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 or as a result of The Zambezi Project's negligence or otherwise, even if such loss was reasonably foreseeable or The Zambezi Project had been advised to the possibility of the Member incurring the same, and such liability is hereby excluded to the fullest extent permitted by law.
10.4 The Member acknowledges that the Web Site and the The Zambezi Project Image Library operates in an Internet based and continually developing environment. Owing to the nature of the Internet and its interconnected systems, problems such as, but not limited to, outages, link failures, power difficulties, telephone outages, network overload etc, may have an adverse effect on the operation of the Web Site. While The Zambezi Project will generally strive to mitigate, if possible, the negative effect of such problems, The Zambezi Project will in no way be held liable in any manner for loss(es) suffered as a result of any such problems.
10.5 The Member agrees that all the limitations and exclusions of liability in favour of The Zambezi Project in this Agreement are reasonable in the circumstances under which the Service is provided.
10.6 The Member confirms that neither The Zambezi Project nor any of its representatives has made any claims or representations of guaranteed or anticipated profits that may result from the use of the service and The Zambezi Project expressly disclaims liability for any profit projections which may have been provided to the Member.
11.1 The term of this Agreement is three months from the Effective Date and thereafter this Agreement shall automatically renew for successive three month terms. Either party may terminate this Agreement at any time on giving to the other not less than 30 days written notice before the next renewal date. No refund will be made.
11.2 Either party may, by written notice to the other, terminate this Agreement with immediate effect if the other party commits a material breach of this Agreement and, in the case of a remediable breach, fails to remedy the same within five days of receipt of a notice from the non-breaching party requiring remedy of such breach.
11.3 On termination of this Agreement by The Zambezi Project the images uploaded by the Member will be removed from view and will be held by The Zambezi Project for 120 days before final deletion in order to fulfil any enquiries that may be outstanding.
11.4 On termination of this Agreement by the Member it is the Member's responsibility to remove the images from the Collection on The Zambezi Project unless otherwise agreed in writing. If the images are not removed and an item is subsequently sold the Member will be liable for any costs arrising.
12. No Assignment
The Member may not resell, assign, transfer, encumber or otherwise dispose of or subcontract or otherwise deal with any of its rights or obligations hereunder without the express prior written consent of The Zambezi Project and any attempt to do so will entitle The Zambezi Project to terminate this Agreement without prejudice to The Zambezi Project other rights and remedies.
13. No Partnership
Nothing in this Agreement shall or shall be deemed to create any partnership or joint venture between the parties hereto. The Zambezi Project is authorised to act as the agent for the Member in accordance with the terms and conditions of this Agreement. Nothing in this Agreement shall be deemed or construed to constitute the Member or any of its officers or employees the agent or legal representative of The Zambezi Project for any reason whatsoever and the Member is in no way 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 Zambezi Project or to bind The Zambezi Project in any manner whatsoever.
All notices shall be made in writing and sent by prepaid first class post, by facsimile, e-mail or delivered by hand to the address of the recipient party set out in this Agreement (or to such other address as each party may from time to time notify in writing to the other party). Any notice served by facsimile or e-mail shall be deemed served at the time of transmission provided that a confirmatory receipt of transmission has been made and provided that if any such notice would otherwise be deemed to be served outside working hours on the next business day. Any notice served by post shall be deemed to be served two business days after the date of posting and any notice delivered by hand, upon delivery.
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 provisions 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.
17. Further Assurance
The Member agrees to execute and deliver to The Zambezi Project as appropriate all such other documents, assurances and acts as may be reasonably necessary to fulfil the provisions of this Agreement or to carry into effect the intentions of the parties as expressed herein.
18. Force Majeure
Neither party shall be liable to the other party for any breach or non-performance of its 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.
19. Entire Agreement
This Agreement 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 accepting the terms and conditions of 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).
20. Third Party Rights
No person who is not a party to this Agreement shall have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
21. Proper law and jurisdiction
This Agreement is governed by and shall be construed in accordance with English law and the parties hereby irrevocably submit to the non-exclusive jurisdiction of the English Courts.