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)
(1)
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.
(2)
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.
1.1
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.
1.2
Holding company: shall be construed in accordance with sections 736 and 736A of the Companies Act 1985, as amended.
1.3
Subsidiary: shall be construed in accordance with sections 736 and 736A of the Companies Act 1985, as amended.
1.4
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.
1.5
Unless the context otherwise requires:
1.6
Words in the singular include the plural and in the plural include the singular.
The following clauses 2 to 7 apply to your subscription to the Greetings by Photobox Website.
2.1
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.
3.1
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:
4.1
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.
4.2
Photobox in its sole discretion may select or reject Artwork submitted by you.
5.1
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.
6.1
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.
6.2
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.
6.3
The Approved Licence granted by you to Photobox under clause 6.1 above shall include but not be limited to:
6.4
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.
6.5
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:
6.6
In relation to assignment and sub-licensing:
7.1
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.
7.2
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:
7.3
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.
7.4
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.
7.5
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
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.
7.7
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.
The following clauses 8 to 13 inclusive apply to your registration to the Pro Gallery Website specifically.
8.1
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:
9.1
You can set up a Pro Gallery via the PhotoBox Website. You must supply the following information:
9.2
Photobox will display any information provided pursuant to clause 9.1above on your Pro Gallery area to all visitors.
9.3
Photobox reserves the right to refuse any application to set up a Pro Gallery at its sole discretion.
10.1
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.
10.2
Your allocated storage space for Images may be subject to limitations, as set out on the PhotoBox Website.
10.3
The uploading of any Images or other materials onto the Pro Gallery will be subject to these and the standard terms and conditions.
11.1
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:
12.1
Photobox will deal with requests to purchase Images or Products from your Pro Gallery as follows:
13.1
Photobox will not make a charge for the initial setting up of your Pro Gallery.
13.2
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.
13.3
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.
13.4
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.
13.5
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.
13.6
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:
13.7
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.
13.8
Payments to your, or your company's bank account will only be made pursuant to clause 13.6(a) where:
14.1
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.
14.2
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.
14.3
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.
15.1
In subscribing to either the Greetings by Photobox Website or Pro Gallery Website, you confirm that:
15.2
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.
15.3
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.
16.1
You warrant that:
16.2
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:
16.3
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.
17.1
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.
17.2
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:
17.3
Photobox agrees that:
17.4
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:
17.5
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.
17.6
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.
18.1
Photobox does not provide any warranty or guarantee that:
18.2
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.
18.3
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.
18.4
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.
19.1
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.
19.2
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.
19.3
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.
20.1
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.
21.1
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.
21.2
The provisions of clause 21.1 shall remain in full force and effect notwithstanding any termination of these terms and conditions for any reason
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.
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.
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.
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.
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.
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.