Commercial use agreement

1.    In this Agreement the following definitions apply:

1.1 “BMC” means BioMed Central Limited, company number 3680030 with registered office at Floor 6, 236 Gray's Inn Road, London, WC1X 8HL, UK

1.2 “Content” means each image or visual representation which is licensed to Licensee by BMC under the terms of this Agreement and/or all of them

1.3 “Client” means the person or entity purchasing the license hereunder

1.4 “Medium” means the medium on which the Content is to be reproduced hereunder

1.5 “Restrictions” means the use limitations to which the Content is subject hereunder which may include without limitation the media on or in which the Content may be used, the territory within which the Content may be used, the number of copies on which the Content may be used if in tangible form and the time period for which the Content may be used.

2.   In consideration of the payment of the License Fee by the Client, and subject to the Client observing its obligations under this Agreement BMC grants to the Client a non-exclusive worldwide license to reproduce the Content in the Medium subject to the Restrictions.

3.   Subject to clause 4 this Agreement shall commence on the Commencement Date and shall continue for the time period for which the Content may be used.

4.   Without prejudice to any other right of termination, either party may terminate this Agreement, in the event that the other party:

4.1 commits any material breaches of its obligations under this Agreement and fails to remedy the same within 28 days of written notice to do so;

4.2 becomes insolvent or bankrupt, or enters into liquidation, whether voluntary or compulsory (save for the purpose of solvent reconstruction), or has a receiver or equivalent officer appointed in respect of any of its assets, or is the subject of an administration order, or enters into any arrangement with its creditors, or makes a general assignment for their benefit.

5.   The Client acknowledges that copyright and all other intellectual property rights in the Content are vested in BMC and/or its licensors and wherever such material is used the appropriate copyright notice shall appear. The Client shall not, and shall not knowingly permit others, to reproduce, distribute, license the use of the Content or any part thereof nor shall the Client reproduce the Content as part of or in juxtaposition with any other material which is or which causes the Content to be part of anything which is defamatory, offensive, obscene or otherwise in contravention of any law or third party right. Except as expressly set out herein the Client shall have no right title or interest in the Content.

6.   The Client shall pay to BMC the License Fees in accordance with the Schedule.

7.   BMC warrants to the Client that it is either the owner of the Content or has all necessary rights, licenses and consents to enable it to grant the rights granted hereunder. BMC shall indemnify the Client from and against any loss, cost, claims, damages and expenses arising as a result of any breach of this warranty.

8.   Except in the case of death or personal injury arising from the negligence of BMC or its employees (in which event this limitation will not apply), the remedies of the Client, whether in contract, tort or otherwise, for loss or damage of any nature whatsoever, whether or not caused by the negligence of BMC, its employees, agents or subcontractors, against BMC for any breach of BMC's obligations hereunder or otherwise, for any act or omission of BMC, its employees, agents or subcontractors shall be limited in respect of all causes of loss or damage to an amount not exceeding the aggregate amount of the License Fees paid by the Client pursuant to this Agreement.

9.   Neither party shall be under any liability whatsoever for non-performance, part performance, defective performance, or delay in performance of any obligation hereunder that is directly or indirectly caused by, or as a result of, any act of God; outbreak of hostilities (whether or not war is declared); insurrection; riot; civil disturbance; act of terrorism; action or regulations of any government or regulatory authority; fire; fog or bad weather; flood; accident; power failure; theft, strike, lock out; or trade dispute, whether affecting such party, its suppliers or subcontractors; or caused by any other event or circumstance whatsoever, beyond the reasonable control of the party affected. A party subject to a force majeure event shall exercise its best efforts to minimize and mitigate the length of the delay or interruption in service.

10. Save as expressly set forth in this Agreement, all conditions and warranties whether express or implied, including without limitation any warranties of merchantability and fitness for a particular purpose, are to the fullest extent permitted by law, excluded.

11. In the event of termination of this Agreement the Client shall immediately cease to use the Content and all rights granted herein shall immediately revert to BMC.

12. This Agreement and the rights and obligations of the parties hereunder shall be governed by and construed under the laws of England. Both parties submit to the non-exclusive jurisdiction of the English courts.

13. BMC agrees and acknowledges that BMC is acting as an independent contractor in providing the Content and for all other purposes under this Agreement and that the relationship between BMC and the Client shall not constitute a partnership, joint venture, or agency. BMC and its employees and agents are not employees, agents, or legal representatives of the Client and have no authority, express or implied, to represent the Client or to enter into any contracts or assume any liabilities on behalf of the Client. BMC retains all the rights and privileges of sole employer of its employees and agents, including, without limitation, the right to control, hire, discipline, compensate, and terminate such employees.

14. Neither party shall assign this Agreement or any of its rights or obligations hereunder without the prior written consent of the other party save that BMC shall be entitled to assign its rights and obligations hereunder to its ultimate holding company or a subsidiary of its ultimate holding company or an acquirer of all or substantially all of its business.

15. This Agreement, together with any and all exhibits, schedules and appendices attached hereto, constitutes the entire agreement between the parties and supersedes all prior oral or written representations, agreements, promises, or other communications, which pertain to the covered subject matter. This Agreement may not be amended or modified except by written agreement signed by authorized representatives of each party.

16. If any provision of this Agreement shall be held unenforceable or invalid, the remaining parts shall remain in full force and effect.

17. Any waiver (express or implied) by either party of any default or breach of the Agreement by the other shall not constitute a waiver of any other or subsequent default or breach.

18. Any notice required under this Agreement shall be given in writing and delivered personally or by fax, prepaid registered or certified mail (return receipt requested), or overnight delivery service to the parties at their addresses as set out in the Schedule or such other address as shall have been designated to each other in writing in accordance with this clause 18. Any notice so given shall be deemed served on delivery if delivered personally, at the time of transmission if sent by fax, five days after posting if sent by prepaid registered or certified mail and two days after dispatch if sent by overnight delivery service.

19. The Client shall indemnify BMC for any loss, cost, claim or expense incurred by BMC as a result of the use by Client otherwise than in accordance with the terms of this Agreement, including without limitation outside the Restrictions.