PHOTOBOX: Greetings by Photobox Website Artist terms and conditions

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

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

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

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

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

Discount: the discount on a customer’s order placed on the Greetings by PhotoBox Service.

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 service which enables you to make available Artwork for sale on the Greetings by Photobox website.

Greetings by PhotoBox Service: any greetings card or other related service provided by Photobox.

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.

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.

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 Service, 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 service; and
5. consumer research

4. ASSESSMENT OF ARTWORK

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

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

On approval by Photobox of the Artwork and in consideration of Photobox making the Artwork available to Photobox members, you grant Photobox a 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 Service.

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 customer 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 Service; 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 Service.

6.4 In relation to the scope of use for the purposes of clauses and 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 registration 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.

In relation to termination:

1. your registration to the Greetings by PhotoBox Website may be terminated by Photobox at any time by 1 monthґs written notice;
2. termination by Photobox in accordance with the rights contained in clause shall be without prejudice to any other rights or remedies Photobox accrued prior to termination.
3. you may terminate your registration to the Greetings by PhotoBox Website at any time by using the online account closing process.  Any outstanding Royalty Fees payable to you shall be paid to you in accordance with clause 7 below.

7. ROYALTY FEES

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

At 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 the Artwork 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. subject to clause  any Royalty Fee due.

The Royalty Fee for each card sold on the Greetings by Photobox Service shall be calculated as x% of the sale price, which is exclusive of any applicable taxes, Discount and postage and packing costs, where x is determined by the following formula:

1. for the first 500 Card Sales to date x = 10;
2. for the 501st Card Sale to the 1000th Card Sale to date x = 15; and
3. for the 1001th Card Sale and subsequent Card Sales to date x = 20.

Photobox shall provide you with a quarterly statement which will be made available to you 60 days after the last day of the 3 month statement period.

Photobox shall pay the Royalty Fee to you when the accrued Royalty Fee for that quarter the Royalty Fee is due is equal or exceeds £50. In the event that during a quarter the Royalty Fee is less than £50 then that Royalty Fee shall be rolled over to the following quarterly Royalty Fee 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 Fees shall be paid into the bank account whose details you provided when you subscribed to the Greetings by PhotoBox Website Service. It is therefore your responsibility to ensure that Photobox is notified of any changes to your bank account details.

8. YOUR WARRANTIES AND LIMITS OF LIABILITY

You warrant that:

1. you have the right to grant to Photobox a licence to use the Artwork as contemplated by these terms and conditions; and
2. the Artwork is 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. (d) the Artwork 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 , 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  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.

9. INTELLECTUAL PROPERTY RIGHTS INDEMNITY

All Intellectual Property Rights in the Artwork shall remain with you.

You undertake to defend Photobox from and against any claim or action that the possession, use, development, modification or maintenance of the Artwork (or any part thereof) infringes the Intellectual Property Rights of a third party (Infringement Claim) and shall fully indemnify and hold harmless Photobox from and against any losses, damages, costs (including all legal fees) and expenses incurred by or awarded against Photobox as a result of or in connection with any such Infringement Claim.

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 , 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 9.2, 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 any part thereof) in accordance with the terms of these terms and conditions; or
2. replace the Artwork with non-infringing Artwork.

provided that if you modify or replace the Artwork, the modified or replacement Artwork must comply with the warranties contained in clause 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.

10. 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.

11. 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 shall remain in full force and effect notwithstanding any termination of these terms and conditions for any reason.

12. 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.

13. 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.

14. 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.

15. 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.

16. NOTICES

Any notice required to be given pursuant to this agreement shall be in writing, and shall be sent to the other party marked for the attention of the person at the following addresses:

1. Notices for you will be sent to the contact details provided by you during your registration to the Greetings by PhotoBox Website Service; and
2. Notices for Photobox
       Photobox Limited
       Unit 2-3 Park Royal Metro Centre
       Britannia Way
       London
       NW10 7PA
       FAX: 020 8453 6162
       EMAIL: designers@photobox.com

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.

17. 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.