PHOTOBOX: Greetings by Photobox and Pro-Gallery terms and conditions

Introduction

Photobox Limited, incorporated and registered in England and Wales with company number 03906401 whose registered office is at The Great Barn, Oxford Road, Old Chalford, Oxfordshire, OX7 5QR (Photobox)

Photobox provides artists and photographers with a unique opportunity to display and sell their artworks and photography through Photobox and its associated websites. You may register on either or both the Greetings by Photobox Website and the Pro Gallery Website; subject to you meeting the associated requirements, these terms and conditions cover both registrations.

The following terms and conditions shall, in addition to the standard Photobox terms and conditions which you have already agreed to be bound by, govern the relationship between you and Photobox in respect of the submission of artwork and imagery to be made available through the Greetings by Photobox and Pro Gallery services as described below. To the extent that the following terms and conditions conflict with any of the provisions contained in the standard terms of Photobox, these terms and conditions shall prevail.

It is brought to your attention that clauses 2 to 7 inclusive apply exclusively to the Greetings by Photobox Website, clauses 8 to 13 inclusive apply exclusively to the Pro Gallery Website and clauses 1 and 14 to 27 apply to both the Greetings by Photobox Website and Pro Gallery Website.

1. INTERPRETATION

The definitions and rules of interpretation in this clause apply to these terms and conditions.

Affiliate: includes each and any subsidiary or holding company of Photobox and each and any subsidiary of a holding company of Photobox.

Approved Artwork Licence: the licence granted by you to Photobox under clause 6 of these terms and conditions.

Approved Artwork: the Artwork which has been approved by Photobox for the Greetings by PhotoBox Website.

Artwork Licence: the licence granted by you to Photobox under clause 3 of these terms and conditions.

Artwork: any original material or image created by you prepared for graphic reproduction and capable of being stored digitally.

Card Sales: greetings cards sold on the Greetings by Photobox Website which include Artwork.

Cost: the price which would have been paid by a Photobox Member in relation to the Photobox Member Order had it been placed through the standard Photobox Website excluding VAT postage and packing.

Discount: the discount on a Photobox Member Order placed on the Greetings by PhotoBox Website.

Format: the required electronic format for the Artwork submitted to Photobox which is specified at http://greetings.photobox.co.uk/page/send-us-card-design.

Greetings by PhotoBox Website: the online Photobox website which enables you to make available Artwork for sale.

Greetings Card: a card made available to Photobox Members.

Intellectual Property Rights: all copyrights, design rights, trade marks, service marks, database rights and other rights in the nature of intellectual property rights (whether registered or unregistered) and all applications for the same, anywhere in the world.

Net Sales Revenue: the total amount received by Photobox in relation to Photobox Member Orders through your Pro Gallery less postage and packing costs, the Cost and the Retained Revenue.

P&P: the standard postage and packing charges made to Photobox Member Orders.

Photobox Account: the online account that Photobox created on your behalf in relation to your registration on either the Greetings by Photobox Website or the Pro Gallery.

Photobox Member Order: an order made by a Photobox Member.

Photobox Member: registered user of the Photobox Website.

Photobox Website: the website at www.photobox.co.uk or any other website as we may notify you of from time to time.

Product: product that is made available for general sale on the Greetings by Photobox Website and the Pro-Gallery Website.

Pro Gallery Index: the directory of Pro Galleries available to Photobox Members.

Pro Gallery Website: the directory of Pro Galleries available to Photobox Members.

Retained Revenue: 10% (ten percent) of the amount received by Photobox in relation to a Photobox Member Order excluding the Cost, VAT, postage and packing.

Royalty Retained Revenue: the royalty payable to you by Photobox as set out in clause 7.

Holding company: shall be construed in accordance with sections 736 and 736A of the Companies Act 1985, as amended.

Subsidiary: shall be construed in accordance with sections 736 and 736A of the Companies Act 1985, as amended.

The headings in these terms and conditions do not affect its interpretation. Save where the context otherwise requires, references to clauses and schedules are to clauses and schedules of these terms and conditions.

Unless the context otherwise requires:

1. references to you and Photobox include permitted successors and assigns;
2. references to statutory provisions include those statutory provisions as amended or re-enacted; and
3. references to any gender include all genders.

Words in the singular include the plural and in the plural include the singular.

GREETINGS BY PHOTOBOX WEBSITE

The following clauses 2 to 7 apply to your subscription to the Greetings by Photobox Website.

2. DELIVERY OF ARTWORK

You may submit an unlimited number of Artwork, each one being in the Format, to Photobox by logging into the Greetings by Photobox Website and uploading the Artwork.

3. ARTWORK LICENCE

In consideration of Photobox agreeing to assess the Artwork for inclusion in the Greetings by Photobox Website, you shall grant Photobox a 60 day, non-exclusive, royalty-free, worldwide licence on all Artwork for the purposes of assessment including, but not limited to the following rights:

1. the right to electronically store, reproduce and manipulate the Artwork on the Photobox computer network;
2. the right to print the Artwork in order to assess its printing attributes;
3. the right to permit employees, consultants and agents of  Photobox to access, browse, reproduce and manipulate the Artwork as part of  the assessment process;
4. Non-commercial testing of the Greetings by Photobox Website; and
5. consumer research

4. ASSESSMENT OF ARTWORK

Photobox shall assess the Artwork which you have submitted to Photobox in accordance with clause 3 above, for the purposes of selecting Artwork that will be used in the Greetings by Photobox Website.

Photobox in its sole discretion may select or reject Artwork submitted by you.

5. APPROVED ARTWORK

Prior to the expiry of the Artwork Licence, Photobox shall notify you if the Artwork has been approved by Photobox for use on the Greetings by PhotoBox Service.

6. APPROVED ARTWORK LICENCE

6.1 On approval by Photobox of the Artwork and in consideration of Photobox making the Artwork available to Photobox Members, you grant Photobox an non-exclusive, worldwide licence for use of the Artwork for the Greetings by Photobox website and, subject to clause 6.2, for the duration of this agreement commencing on and including the date on which Photobox first makes the Artwork available for sale on the Greetings by PhotoBox Website.

In the event that there are outstanding Customer Orders immediately prior to termination of your registration to the Greetings by PhotoBox Website which include the Artwork then the licence granted in 6.1 will survive termination and continue until Photobox has met its obligations to fulfil that Photobox Member Order.

The Approved Licence granted by you to Photobox under clause 6.1 above shall include but not be limited to:

1. The right to resize, superimpose text, text based designs and images on, adjust the colouring (for optimisation of printing) of, crop and alter the resolution of the Approved Artwork for inclusion in the Greetings by Photobox Website; and
2. The right to use, reproduce, print, market, offer for sale, sell, display and distribute the Approved Artwork as part of the Greetings by Photobox Website.

In relation to the scope of use for the purposes of clauses 6.1 and 6.3 above, "use" of the Approved Artwork shall be restricted to use for the normal business purposes of Photobox or any Affiliate but shall include any act which is reasonably incidental to such use, including (without limitation) the creation of as many copies of the Approved Artwork as may be necessary to enable use of the Approved Artwork in accordance with this clause.

Photobox shall give accreditation to you as the creator of the Artwork by placing the following text on the reverse of the greeting card which uses the Artwork:

1. “Copyright [your name]; where “your name” will be as per your gallery setup as an artist on the Greetings by PhotoBox Website.

In relation to assignment and sub-licensing:

1. Photobox has no right to grant sub-licences.
2. Photobox shall be permitted to assign the benefit and burden of these terms and conditions as a whole to any company which at the time in question is an Affiliate of Photobox, subject to that company´s first undertaking in writing to you that it will henceforth perform all the obligations of Photobox under these terms and conditions. All references in these terms and conditions to Photobox shall be construed as including any company to which such burden and benefit is assigned.

7.ROYALTY RETAINED REVENUES

Photobox undertakes to pay to you the Royalty Retained Revenues which become payable in relation to the Artwork in accordance with the provisions of this clause.

As a minimum, and within 60 days of the end of each 3 month period from the date of this Agreement Photobox shall deliver to you:

1. a written statement of the quantity of Card Sales during that 3 month period and not included in a previous statement;
2. the sale price exclusive of postage, packing, Discount and any applicable Value Added Tax; and
3. any Royalty Retained Revenue due.

Subject to clause 7.4 and 7.5 the Royalty Retained Revenue for each Greetings Card sold on the Greetings by Photobox Website shall be calculated as 10% of the sale price, which is exclusive of any applicable taxes, Discount and postage and packing costs.

Subject to clause 7.5 and in the event that 501 or more Card Sales are achieved then the Royalty Retained Revenue for those Card Sales which are made in the 3 month statement period following the 3 month statement period in which the 501st Card Sale was made shall be increased to 15% of the sale price, which is exclusive of any applicable taxes, Discount and postage and packing costs.

In the event that 1001 or more Card Sales are achieved then the Royalty Retained Revenue for those Card Sales which are made in the 3 month statement period following the 3 month statement period in which the 1001st Card Sale was made shall be increased to 20% of the sale price, which is exclusive of any applicable taxes, Discount and postage and packing costs.

7.6 Photobox shall pay the Royalty Retained Revenue to you when the accrued Royalty Retained Revenue for that 3 month statement period the Royalty Retained Revenue is due is equal or exceeds £50. In the event that during any 3 month statement period the Royalty Retained Revenue is less than £50 then that Royalty Retained Revenue shall be rolled over to the following quarterly Royalty Retained Revenue statement. At the end of each calendar year ending on 31st December any unpaid Royalties shall be paid to you within 60 days of the end of that calendar year.

Royalty Retained Revenues shall be paid into the bank account whose details you provide when requested by PhotoBox. It is therefore your responsibility to ensure that Photobox is notified of any changes to your bank account details.

PRO GALLERY WEBSITE

The following clauses 8 to 13 inclusive apply to your registration to the Pro Gallery Website specifically.

8.THE PRO GALLERY WEBSITE

In consideration of the obligations assumed by you under these and the standard PhotoBox terms and conditions, and the relevant payments described in clause 13 below, Photobox will provide:

1. the ability for you to set up an on-line photo gallery to which Images may be uploaded;
2. hosting of your Pro Gallery on the Pro Gallery Website;
3. third party access to your Pro Gallery; and
4. payment facilities to enable third parties to purchase your Images and Products created from Images featured in your Pro Gallery.

9.SETTING UP A PRO GALLERY

You can set up a Pro Gallery via the PhotoBox Website. You must supply the following information:

1. name of your Pro Gallery;
2. your contact details (if you wish them to be displayed);
3. your logo (if you require one to be displayed); and
4. a description, categorisation and tagging of the Images, Products and Pro Gallery content (as required);
5. which Images and Products you wish to be available for sale through the Pro gallery;
6. what prices you would like to charge per Image and Product ordered – you may do this by either:
   1. setting a percentage figure by which you would like our Costs to be multiplied, to give the total price exclusive of postage & packaging charged to Photobox Members; or
   2. setting the amount in figures of the total price exclusive of postage & packing to be charged to Photobox Members. ; and
7. any other information as requested during the Pro Gallery set up process.

Photobox will display any information provided pursuant to clause 9.1above on your Pro Gallery area to all visitors.

Photobox reserves the right to refuse any application to set up a Pro Gallery at its sole discretion.

10.UPLOADING IMAGES ONTO THE PRO GALLERY

10.1 Subject to the limits set out in clause 10.2 below, you may upload Images onto your Pro Gallery directly from your PC via your account page on the PhotoBox Website.

Your allocated storage space for Images may be subject to limitations, as set out on the PhotoBox Website.

The uploading of any Images or other materials onto the Pro Gallery will be subject to these and the standard terms and conditions.

11.REMOVAL OF MATERIALS FROM PRO GALLERY

Photobox reserves the right to immediately remove any materials (including but not limited to the Images and descriptions supplied pursuant to clause 9.1(d) above) from the PhotoBox Website which have been the subject of a complaint from a website user or are otherwise found by us to be unsuitable for the PhotoBox Website or in breach of the standard terms and conditions:

1. without giving you prior notice of our intention to remove the materials;
2. without investigating the complaint further,

12.SALES PROCEDURE

Photobox will deal with requests to purchase Images or Products from your Pro Gallery as follows:

1. (a) a Photobox Member wishing to purchase an Image or Product from your Pro Gallery will contract directly with us and submit payment details to us via the PhotoBox Website;
2. the price charged to Photobox Members will be the price set by you in accordance with clause 9.1(f) above;
3. Photobox will be the 'data controller' of the personal data submitted by Photobox Members, for the purposes of the Data Protection Act 1998;
4. Photobox will arrange for payment to be taken from the purchaser;
5. Photobox will calculate the charges payable to us on the basis of daily sales and apply those charges on a daily basis in accordance with the terms of clause 13 below.

13.CHARGES AND PAYMENT TERMS FOR THE PRO GALLERY WEBSITE

Photobox will not make a charge for the initial setting up of your Pro Gallery.

Photobox may increase the percentage rate of Retained Revenue from time to time and will provide you with not less than one month's written notice of any substantial increase.

The Costs and standard postage and packing rates are available on the PhotoBox Website and may be amended from time to time when Photobox publish new rates to the PhotoBox Website. The P&P charge is paid directly by the Photobox Member and does not affect your sales margin. In the event that Photobox amends the Costs, of which you shall receive at least 5 working days notice, and you have set the price of Images and Products in accordance with clause 9.1(f)(i), Photobox will automatically amend the prices displayed on your Pro Gallery, in accordance with the percentage that you have set for the Costs to be multiplied by, from the date the revised Costs come into force.

In the event that you have set fixed prices for the Images and Products and Photobox increases the Costs so that they exceed the fixed price that you have set for the Images and Products (in accordance with clause 11.1 (f)(ii) Photobox will charge the final customer the Cost price. It is therefore your responsibility to review and alter as necessary the prices of the images and Products on receipt of the notice given to you of the increase in Costs.

As a minimum Photobox shall provide you with a quarterly statement which will be made available to your no later than 60 days after the last day of the 3 month statement period. The statement will include how Photobox calculated the Net Sales Revenue (if any) in respect of your Pro Gallery.

In the event that your Photobox Account for 3 month statement period exceeds £50 Photobox shall, upon receipt of your written request to do so, transfer the balance of your PhotoBox Account by BACS payment within 60 days of the end of 3 month statement period in which your Photobox Account exceeded £50:

1. your, or your company's, bank account, subject to the conditions in clause 13.8 below; or
2. a nominated charity's bank account.

At the end of each calendar year ending on 31st December any credit in your Photobox Account shall be paid to you within 60 days of the end of that calendar year.

Payments to your, or your company's bank account will only be made pursuant to clause 13.6(a) where:

1. the account holder (i.e. you or your company) is resident in the UK, Isle of Man or Channel Islands or was incorporated as a company within the same jurisdictions;
2. the bank account in question is held at a bank located in the UK, Isle of Man or the Channel Islands; and
3. persons without a UK bank account should contact gallery@photobox.com or designers@photobox.com as appropriate to discuss the payment options
4. in the case of a VAT registered individual or company, a valid VAT invoice has been raised in respect of the relevant number of sales and provided to us in advance of the transfer taking place.

GENERAL TERMS

14.YOUR OBLIGATIONS

You agree that all materials supplied by you (including but not limited to the Artwork, Images and descriptions supplied pursuant to clause 9.1(d) above) will comply with the standard PhotoBox terms and conditions as regards content, and the section entitled "What you are not allowed to do" in particular.

As regards printing of the Images and Artwork, you will ensure that your computer display monitors are correctly calibrated to our output and that prints produced from your Images are of a quality that might reasonably be expected from a professional photographer and artist.

You agree to keep your password to the Pro Gallery Website and the Greetings by Photobox Website confidential, and not to grant access to the administrative functions of the Pro Gallery Website or the Greetings by Photobox Website to any third party, and will fully indemnify us in respect of all costs, losses and expenses which arise in relation to the misuse of your password by a third party.

15.INTELLECTUAL PROPERTY RIGHTS

In subscribing to either the Greetings by Photobox Website or Pro Gallery Website, you confirm that:

1. all Artwork and Images supplied by you have either:
   1. been created solely by you outside the scope of any employment or contractual duties; or
   2. licensed to you by the owner or owners of the copyright and other intellectual property rights in the Images;
2. you know of no other person who may have a claim to any of the intellectual property rights in the Images;
3. any other materials provided by you (including but not limited to a description of the Images and Artwork) are original and owned by you, or else properly licensed to you by the relevant intellectual property rights owner;
4. any Images or Artwork of celebrities or events in the public eye were taken either with the consent of the celebrity or event organiser as appropriate, or else were taken at an event open to the public which did not prohibit or limit the taking of photographs.

You (or your licensors, as appropriate) will retain full ownership of the intellectual property rights in the Images, Artwork and other materials supplied, and Photobox shall not acquire any rights therein.

Except with your prior permission (such permission not to be unreasonably withheld, delayed or conditioned), Photobox will not use the Artwork, Images or other materials protected by intellectual property rights supplied by you except for the purposes of marketing and providing the Greetings by Photobox Website and Pro Gallery Website to you.

16.YOUR WARRANTIES AND LIMITS OF LIABILITY

You warrant that:

1. you have the right to grant to Photobox a licence to use the Artwork and Images as contemplated by these terms and conditions; and
2. the Artwork and Images are original and does not infringe the Intellectual Property Rights of any third party; and
3. the exercise by Photobox of the rights granted to it under these terms and conditions will not infringe the Intellectual Property Rights of any third party; and
4. the Artwork and Images shall not breach the general terms of use which are published on Photobox’s main website whose URL is www.photobox.co.uk.

Subject to clause 1.1, neither party shall have any liability for any losses or damages which may be suffered by the other or any Affiliate of the other (or any person claiming under or through the same), whether the same are suffered directly or indirectly or are immediate or consequential, which fall within the following categories:

1. special damage even though that party was aware of the circumstances in which such special damage could arise; and
2. loss of profits, anticipated savings, business opportunity or goodwill.

The exclusions in clause 1.1 above shall apply to the fullest extent permissible at law but neither party excludes any liability for death or personal injury caused by its negligence, or the negligence of its employees or agents, or for fraud.

17. INDEMNITY

You undertake to defend Photobox from and against any claim or action that the possession, use, development, modification or maintenance of Artwork or Image (or any part thereof) infringes the Intellectual Property Rights of a third party.

You will indemnify us (i.e. be liable to pay on our behalf) in respect of the following costs and expenses in the event that a third party alleges that Artwork, Images or other materials being displayed on the Greetings by Photobox Website or the Pro Gallery Website breach that third party's intellectual property rights:

1. all reasonable costs that Photobox incur in responding to and defending the claim made or alleged by the third party;
2. any settlement figure arrived at with the third party, provided that Photobox will not agree a settlement package without your prior consent (such consent not to be unreasonably withheld or delayed).

Photobox agrees that:

1. Photobox shall as soon as reasonably practicable notify you in writing of any Infringement Claim of which it has notice;
2. Photobox shall not make any admission as to liability or compromise or agree to any settlement of any Infringement Claim without the prior written consent of you, which consent shall not be unreasonably withheld or delayed; and
3. you shall, on its written request and at its own expense, and on providing adequate security to Photobox for any liability under the indemnity contained in clause 17.2, be entitled to have the conduct of or settle all negotiations and litigation arising from any Infringement Claim and Photobox shall, at your request and expense, give you all reasonable assistance in connection with those negotiations and such litigation.

Without prejudice to clause 17.3, if any Infringement Claim is made, or in your reasonable opinion is likely to be made, against Photobox, you may at your sole option and expense:

1. procure for Photobox the right to continue using, developing, or modifying the Artwork or Image (or any part thereof) in accordance with the terms of these terms and conditions; or
2. replace the Artwork or Image with non-infringing Artwork or Image.

provided that if you modify or replace the Artwork or Image, the modified or replacement Artwork or Image must comply with the warranties contained in clause 16 and Photobox shall have the same rights in respect thereof as it would have had under those clauses had the references to the date of these terms and conditions been references to the date on which such modification or replacement was made.

In the event that Photobox receive notice from a third party that Artwork, Images or other materials being displayed on the Greetings by Photobox Website or the Pro Gallery Website breach that third party's intellectual property rights, Photobox may in our absolute discretion remove the offending materials from the relevant website until further notice.

18.LIMITATION OF LIABILITY

Photobox does not provide any warranty or guarantee that:

1. using the Pro Gallery Website or the Greetings by Photobox Website will lead to any sales of Images or Artwork;
2. the PhotoBox Website will be available to internet users.

Nothing contained in these terms and conditions will restrict our liability for death or personal injury resulting from any act, omission or negligence of Photobox or our officers, agents, employees or sub-contractors.

Photobox will not be liable to you in respect of any loss of profits, loss of business opportunity or any other category of loss arising out of a decision by us to remove any materials or Images or Artwork from the Pro Gallery or the Greetings by Photobox Website in accordance with the procedures set out in these terms.

Without prejudice to, but not withstanding, clause 18.3 above, our aggregate liability in respect of all causes of action arising out of or in connection with the provision to you of the Greetings by Photobox Website or Pro Gallery Website (whether for breach of contract, in negligence or any other tort, under statute or otherwise at all) will be limited to £100.

19.TERMINATION

Your registration to the Greetings by PhotoBox Website and Pro Gallery Website may be terminated by Photobox at any time by 1 month´s written notice.

Termination by Photobox in accordance with the rights contained in clause 19.1 shall be without prejudice to any other rights or remedies Photobox accrued prior to termination.

You may terminate your registration to the Greetings by PhotoBox Website or the Pro Gallery Website at any time by using the online account closing process. Any outstanding Royalty Retained Revenues or monies held in your Photobox Account payable to you shall be paid to you in accordance with clause 7 and 13 above.

20.FORCE MAJEURE

No party shall be liable to the other for any delay or non-performance of its obligations under these terms and conditions arising from any cause beyond its reasonable control including, without limitation, any of the following: act of God, governmental act, war, fire, flood, explosion or civil commotion.

21.CONFIDENTIALITY AND PUBLICITY

Each party agrees shall, during the term of these terms and conditions and thereafter, keep confidential all, and shall not use for its own purposes nor without the prior written consent of the other disclose to any third party any, information of a confidential nature (including, without limitation, trade secrets and information of commercial value) which may become known to such party from the other party and which relates to the other party or any of its Affiliates, unless such information is public knowledge or already known to such party at the time of disclosure, or subsequently becomes public knowledge other than by breach of these terms and conditions, or subsequently comes lawfully into the possession of such party from a third party.

The provisions of clause 21.1 shall remain in full force and effect notwithstanding any termination of these terms and conditions for any reason

22. Waiver

No forbearance or delay by either party in enforcing its rights shall prejudice or restrict the rights of that party, and no waiver of any such rights or of any breach of any contractual terms shall be deemed to be a waiver of any other right or of any later breach.

23.SEVERABILITY

If any provision of these terms and conditions is judged to be illegal or unenforceable, the continuation in full force and effect of the remainder of the provisions shall not be prejudiced.

24.AMENDMENTS

Any amendment, waiver or variation of these terms and conditions shall not be binding on the parties unless set out in writing, expressed to amend these terms and conditions and signed by or on behalf of each of the parties.

25.THIRD PARTY RIGHTS

No term of these terms and conditions is intended to confer a benefit on, or to be enforceable by, any person who is not a party to these terms and conditions.

26.NOTICES

Notices will be in writing and sent by e-mail, first class post or fax, provided that any fax or e-mail sent is confirmed within 24 hours by first-class mailed confirmation of a copy. Notices sent by us will be sent according to the personal details you have submitted in your registration form. If you need to send a notice to us, you should send it to the relevant address / number set out below. Correctly addressed notices sent by first-class mail will be deemed to have been delivered 72 hours after posting and correctly directed fax transmissions and e-mails will be deemed to have been received instantaneously on transmission provided that they are confirmed as set out above and, in the case of e-mails, that no error message indicating failure to deliver has been received by the sender.

Notices may be sent by first-class mail, email or fax. Correctly addressed notices sent by first-class mail shall be deemed to have been delivered 72 hours after posting and correctly directed faxes shall be deemed to have been received instantaneously on transmission.

27. GOVERNING LAW AND JURISDICTION

These terms and conditions shall be governed by and construed in accordance with English law and each party hereby submits to the exclusive jurisdiction of the English courts.