Terms for Sellers
TERMS FOR ARTIST SELLERS
This page (together with the documents expressly referred to in it) tells you information about us and the legal terms and conditions (Terms) on which we supply the service (Service) referred to on our website (our site) to you, the designer (whether a person, firm, company or other body corporate) who registers to use the Service (you).
These Terms will apply to any contract between us for the supply of the Service to you (Contract). Please read these Terms carefully and make sure that you understand them, before registering on our site. Please note that by registering on our site, you agree to be bound by these Terms and the other documents expressly referred to in them. Your attention is particularly drawn to the provisions of clause 11.
If you refuse to accept these Terms, you will not be able to register on our site.
You should print a copy of these Terms or save them to your computer for future reference.
We may amend these Terms from time to time as set out in clause 9.
Please note that these Terms, and any Contract between us, are only in the English language.
1. INFORMATION ABOUT US
1.1 We are Keep Hush LTD, a limited company registered in England and Wales under company number 10162670 and with our registered office and main trading address at International House, 12 Constance Street, London, United Kingdom, E16 2DQ. Our VAT number is 343 7114 19.
1.2 To contact us, please see our website (keephush.net) where you will find our contact details.
2.1 Definitions. In these Terms, the following definitions apply:
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Commencement Date: has the meaning set out in clause 3.3.
Contract: the contract between you and us for the provision of the Service in accordance with these Terms.
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Licensed Products: the Products on which the Work has been, or is to be, reproduced and that you wish us to promote and sell through our site.
PCI DSS: the payment card industry data security standard, which is a worldwide standard for ensuring the secure processing of card payments and the reduction of card fraud. The standard requires, among other things, that cardholder data and other sensitive information is encrypted when transmitted across public networks.
Products: T-shirts, hooded sweatshirts, sweatshirts, vests, prints, and carrying bags.
Revenue Share: the amount payable by us to you in relation to each sale of a Licensed Product via our site, having the meaning set out in clause 8.
Registration: your registration to use the Service as set out in your Registration Form.
Registration Form: the online form available on our site, which you complete and submit to us when you register to use the Service.
Service: our website at www.keephush.net (our site) which enables designers to upload the Work to our site and licence us to reproduce it on the Products, thereby creating the Licensed Products. We offer the Licensed Products for sale to customers via our site, and we will manufacture and supply the Licensed Products to those customers who have ordered the Licensed Products from us via our site.
Terms: these terms and conditions as amended from time to time in accordance with clause 9.
Work: the drawing, design, logo, artwork, photograph, illustration or other image owned by you, which you download via our site and licence to us for reproduction on the Products.
2.2 Construction. In these Terms, the following rules apply:
- a) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
- b) references to the Service includes the content of the site (Content).
- c) a reference to a party includes its personal representatives, successors or permitted assigns;
- d) a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
- e) any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
- f) a reference to writing or written includes faxes and emails.
3. BASIS OF CONTRACT
3.1 The Registration Form constitutes your offer to subscribe to the Service in accordance with these Terms.
3.2 By registering on our site, you confirm that:
(a) you are legally capable of entering into binding contracts and, if you are entering into this Contract on behalf of a business entity of any kind, that you are duly authorised by the legal entity on whose behalf you are registering to bind it to this Contract; and
(b) if you are an individual, you are at least 18 years old;
3.3 Your registration for the Service shall only be deemed to be accepted when we send you an email confirming our acceptance (where you have registered on our site).
3.4 The Contract constitutes the entire agreement between you and us, and you acknowledge that you have not relied on any statement, promise or representation (whether made or given by us or on our behalf) which is not set out in the Contract.
3.5 Any descriptive matter or advertising issued by us or displayed on our site is for the sole purpose of giving an approximate idea of the Service described in them. They shall not form part of the Contract or have any contractual force.
3.6 These Terms apply to the Contract to the exclusion of any other terms that you may seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
4. YOUR OBLIGATIONS
4.1 You acknowledge and agree that:
(a) we have sole and complete discretion as to the look, feel and content of our site, and of any offers for Licensed Products posted on our site, as well as in respect of the inclusion, omission, positioning, location and all other aspects of presentation of the offers and the Licensed Products they relate to, and that we have the right in our sole discretion to remove any offer or Licensed Product or any information about you from our site, at any time;
(b) we do not offer you exclusivity of presence on our site, and that third parties may offer for sale via our site Products that are the same as, are similar to, or compete with, the Licensed Products;
(c) we do not warrant or guarantee that any offers posted on our site in relation to the Licensed Products will be error-free, nor that the posting of an offer on our site will result in the sale of any Licensed Products to customers, or will result in any Profit Share becoming payable to you.
4.2 You warrant that:
(a) you are the sole legal and beneficial owner of, and own all the rights and interests in, the Intellectual Property Rights in the Work;
(b) you have not licensed or assigned the Intellectual Property Rights in the Work to any third party; and
(c) the Work is your original work and has not been copied wholly or substantially from any other source; and
(d) where sales of the Licensed Products are purported to support any third party good cause (whether or not a registered charity) (Good Cause), you will pay the stated proceeds to such Good Cause immediately on receipt of the Profit Share, and you will only describe the Good Cause as a charity if it qualifies as such under the Charities Act 2011.
4.3 You agree to provide true, accurate, current and complete information about yourself and / or your business as prompted by the Service registration process (Registration Details). You further agree that, in providing such Registration Details, you will not knowingly omit or misrepresent any material facts or information, and that you will promptly enter corrected or updated Registration Details via the Service, or otherwise advise us promptly in writing of any such changes or updates. You also agree to update your Registration Details (including, but not limited to, your current email address) as soon as they change.
4.4 You will:
(a) co-operate with us in all matters relating to the Service, and to the promotion and offering for sale of the Licensed Products on our site;
(b) provide us with such information and materials as we may reasonably require in order to post and offer for sale the Licensed Products on our site and to supply the Service to you, and ensure that such information is complete and accurate in all material respects;
(c) permit and cooperate with all activities undertaken by us (or on our behalf) to promote, sell or market the Licensed Products, whether directly via our site or through print publications or other media, whether or not owned or operated by us.
4.5 When you register to use the Service, you will need to enter a unique user name and password. You agree that you will not allow another person to use your User ID to access or use the Service under any circumstances. You agree that you are solely and entirely responsible for your User ID and for any charges, damages, liabilities or losses incurred or suffered as a result of your failure to keep it secure. We are not liable for any charges, damages, liabilities or losses caused by or related to the theft of your User ID, your disclosure of your User ID, or you allowing another person to access and use the Service using your User ID.
4.6 If you integrate your sales campaign into your own website via a Buy Now button or iframe, you agree that you:
(a) will ensure that any such integration is PCI DSS compliant and served via https, so that any payments made by a customer through the iframe in question are encrypted and are secure at all times; and
(b) are solely responsible for ensuring PCI DSS compliance in relation to any such payments.
In all other respects, the relevant payments will be subject to these Terms.
4.7 You are solely and entirely responsible for any and all use of your account, including any charges incurred relating to the Service. You agree to immediately notify us of any unauthorised use of your account or any other breach of security known to you.
4.8 You acknowledge that the complete privacy of your data and messages transmitted over the internet while using the Service cannot be guaranteed.
4.9 You shall indemnify us against any liability incurred by us in respect of:
(a) any breach by you of any of the provisions of this clause 4; and
(b) any liabilities, costs (including legal costs), claims, demands, fines, damages, losses (whether direct, indirect or consequential) and expenses arising out of or in connection with that liability or failure, or paid or agreed to be paid by us in relation to the defence or settlement thereof, except to the extent the liability or failure arises as a result of our own action or omission.
5. YOUR LICENCE TO US
5.1 You hereby grant to us a non-exclusive licence on a worldwide basis to do the following for the term of this agreement, subject to, and in accordance with, the terms of this agreement:
(a) reproduce the Work on the Products; and
(b) sell the Licensed Products to independent arm's length customers via our site; and
(c) reproduce the Work and / or any Licensed Product in any advertising or promotional material relating to the Licensed Product, including (but not limited to) our site.
5.2 You, being the sole author of the Work, waive all moral rights in respect of the use to be made of the Work under this agreement to which you may now or at any future time be entitled under the Copyright, Designs and Patents Act 1988 or under any similar legislation from time to time in force anywhere in the world.
6. HOW THE SERVICE WORKS
6.1 Once we have accepted your registration as described in clause 3.3 above, you will be able to upload the Work to our site. In order to do this, the Work must:
(a) comply in all respects with the standards set out in our acceptable use policy;
(b) comply in all respects with the terms of this agreement; and
(c) be in either PNG, SVG or JPG format, and in each case be less than 8mb in size.
6.2 Once you have successfully uploaded the Work to our site in compliance with clause 6.1 above, and we have received all of the relevant information regarding the offer and the Licensed Products it relates to from you, we will post an offer for sale of the Licensed Products on our site. Any customers who wish to do so will be able to purchase the Licensed Products from our site by placing an order through our site, and we will take payment from them online of the purchase price for the Licensed Products stated on our site, including VAT (the Purchase Price). We will pay you a Revenue Share in relation to all Products we sell via our site in accordance with clause 8 below.
- SUPPLY OF THE SERVICE
7.1 Although we aim to offer you the best service possible, we make no promise that the Service will meet your requirements, and we make no warranties or representations that any Licensed Products offered for sale on our site will be purchased by any of the third parties who use our site.
7.2 We cannot guarantee that the Service will be fault free. If a fault occurs in the Service you should report it to us immediately by contacting us at firstname.lastname@example.org and we will attempt to correct the fault as soon as we reasonably can.
7.3 Your access to the Service may occasionally be restricted to allow for repairs, maintenance or the introduction of new facilities or services. We will attempt to restore the service as soon as we reasonably can.
7.4 We reserve the right at any time to make any changes to the Service which are necessary to comply with any applicable laws or regulations, or which do not materially affect the nature or quality of the Service.
7.5 The Service does not include the provision of computer or other necessary equipment to access the Service. To use the Service you will require internet connectivity and appropriate telecommunication links. We will not be liable for any telephone or other costs that you may incur.
7.6 Registration for the Service is conducted in the English language only.
8. PROFIT SHARE AND PAYMENT
8.1 Subject to any amendment brought into effect in accordance with clause 9, the Revenue Share payable to you in relation to each sale of a Licensed Product via our site. Revenue Share shall be paid at a per item sold rate as pre-agreed via email.
8.2 Payment shall be made within two weeks of the end of your campaign, to the bank details provided during the onboard process.
8.3 You must ensure that at all times your correct bank or PayPal details are notified to us, and you must inform us in writing of any changes immediately. Please note that we only accept PayPal for making payment to you if you are located outside the UK. You shall reimburse any charges or administrative costs levied by your bank or PayPal (as the case may be) in relation to any payments we make to you, and any charges or costs we incur as a consequence of any error in the bank or PayPal details you provide to us, or your failure to notify us of any changes.
8.4 If you are VAT-registered, we will pay you the Revenue Share calculated as set out in clause 8.1 above plus VAT.
9. OUR RIGHT TO VARY THESE TERMS
9.1 We may revise these Terms from time to time in the following circumstances:
(a) changes to the Revenue Share or to how we pay you;
(b) changes in relevant laws and regulatory requirements.
9.2 If we have to revise these Terms under clause 9.1, we will give you written notice of any changes to these Terms before they take effect. You can choose to cancel the Contract in accordance with clause 12.2.
10. INTELLECTUAL PROPERTY RIGHTS
10.1 You retain ownership of all Intellectual Property Rights in or arising out of or in connection with the Service, the Content and our site.
10.2 You hereby grant to us a non-exclusive, temporary worldwide licence to include the information you provide to us (the Information) on our site, and to use such information in our own editorial content or promotional materials in any medium, including on our site, for the duration of the sale period. This information may be retained for future resale, unless otherwise requested. If chosen for resale at a future date we will confirm your written permission.
10.3 You acknowledge that, in respect of any third party Intellectual Property Rights in any Information provided for use by us on our site or otherwise in connection with the Services (including text, data, photographs and other materials), our use of any such Intellectual Property Rights requires you to have first obtained a written licence from the relevant licensor on such terms as will either entitle you to license such rights to us, or grant such rights direct to us. You warrant that you have obtained any and all such licences and shall provide copies of them to us on demand.
10.4 You shall indemnify us against all costs, claims, damages, losses and expenses arising as a result of any claim or action that the Work(s) and/or the Information infringes Intellectual Property Rights belonging to a third party (IP Claim).
10.5 In the event of an IP Claim, we will:
(a) promptly notify you in writing of the claim or action;
(b) make no admission or settlement without your prior written consent;
(c) (subject to your reimbursement of our costs (including legal costs) and expenses) give you all the information and assistance that you may reasonably require; and
(d) allow you complete control over any negotiations, litigation and settlement of any such claim or action.
11. LIMITATION OF LIABILITY
11.1 The Service is provided by us without any warranties or guarantees. You must bear the risks associated with the use of the internet. In particular, we do not warrant that our site, the Service or the Content is virus free. You must take your own precautions in this respect as we accept no responsibility for any infection by virus or other contamination or by anything that has destructive properties.
11.2 In particular, we disclaim all liabilities in connection with the following:
(a) incompatibility of the Content with any of your equipment, software or telecommunications links;
(b) technical problems including errors in or interruptions to the Service; and
(c) unreliability or inaccuracy of the Content.
11.3 Except as expressly and specifically provided in these Terms:
(a) we shall have no liability for any damage caused by errors or omissions in any information or instructions provided by you in connection with the Service, or any actions taken by us at your direction; and
(b) all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from these Terms.
11.4 Subject to paragraph 11.6, we are not responsible for indirect losses which happen as a side effect of the main loss or damage, including but not limited to:
(a) loss of income or revenue;
(b) loss of business;
(c) loss of profits or contracts
(d) loss of anticipated savings;
(e) loss of data, or
(f) waste of management or office time however arising and whether caused by tort (including negligence), breach of contract or otherwise;
provided that this paragraph 11.4 shall not prevent claims for loss of or damage to your tangible property that fall within the terms of paragraph 11.5 or any other claims for direct financial loss that are not excluded by any of categories (a) to (f) inclusive of this paragraph 11.4.
11.5 Subject to paragraph 11.6, our liability for losses you suffer as a result of us breaking these Terms is strictly limited to the total amount of any Revenue Share paid by us to you over the preceding 12 months, or if none, to a total amount of £100.
11.6 The exclusions and limitations set out in paragraphs 11.4 and 11.5 do not exclude or limit in any way our liability for
(a) death or personal injury caused by our negligence;
(b) fraud or fraudulent misrepresentation; or
(c) any matter for which it would be illegal for us to exclude, or attempt to exclude, our liability.
11.7 This clause 11 will survive termination of the Contract for any reason.
12. SUSPENSION AND CANCELLATION OF YOUR REGISTRATION
12.1 We may suspend or cancel your registration immediately at our reasonable discretion if you breach any of your obligations under the Contract. If this happens, you are prohibited from using our Service again by re-registering with a different User ID, or by using Facebook to register again.
12.2 You can cancel your registration at any time by informing us in writing. If you do so, you must stop using the Service immediately.
12.3 In the event that either you or we cancel your registration and/or the Contract for any reason, and the Licensed Products have not yet been produced as at the date of such cancellation, we will:
(a) terminate the relevant campaign and remove it from our site (including, at our discretion, any user-created pages); and
(b) arrange for refunds to be made in respect of any orders already placed for the Licensed Products.
12.4 The suspension or cancellation of your registration and/or the Contract and/or your right to use the Service shall not affect either your or our rights or liabilities.
13. DISCONTINUATION OF SERVICE
We reserve the right to discontinue the Service (or any part of it) without notice to you and shall not be liable to you if we exercise these rights. Where reasonably practicable, we will try to give you reasonable notice of any discontinuation of the Service.
14. HOW WE MAY USE YOUR PERSONAL INFORMATION
15.1 Event Outside Our Control:
(a) For the purposes of this Contract, Event Outside Our Control means an event beyond our reasonable control including but not limited to strikes, lock-outs or other industrial disputes (whether involving our workforce or that of any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
(b) We will not be liable to you as a result of any delay or failure to perform our obligations under the Contract as a result of an Event Outside Our Control.
(c) If the Event Outside Our Control prevents us from providing all or part of the Service for more than six weeks, we will, without limiting our other rights or remedies, have the right to terminate the Contract immediately by giving written notice to you.
15.2 Assignment and subcontracting:
(a) We may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of our rights under the Contract and may subcontract or delegate in any manner any or all of our obligations under the Contract to any third party or agent.
(b) You shall not, without our prior written consent, assign, transfer, charge, subcontract or deal in any other manner with all or any of your rights or obligations under the Contract.
(a) Any notice or other communication required to be given to a party under or in connection with this Contract shall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business, or sent by fax to the other party's main fax number.
(b) Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at the address referred to above or, if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed, or if sent by fax, on the next Business Day after transmission.
(c) This clause 15.3 shall not apply to the service of any proceedings or other documents in any legal action. For the purposes of this clause, "writing" shall not include emails, and for the avoidance of doubt notice given under this Contract shall not be validly served if sent by email.
(a) A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
(b) Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
(a) If a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
(b) If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
15.6 Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
15.7 A person who is not a party to the Contract shall not have any rights under or in connection with it.
15.8 Except as set out in these Terms, any variation, including the introduction of any additional terms and Terms, to the Contract, shall only be binding when agreed in writing and signed by us.
15.9 This Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.