TERMS AND CONDITIONS FOR ARTIST MEMBERSHIP
This page together with the documents referred to in it sets out the terms and conditions on which we provide membership to our website (www.mobtal.com) (our site) to artists and the services that we make available as a benefit of such membership (Artist Membership) to you. You should read these terms and conditions carefully and in full before ordering an Artist Membership from us via our website. By ordering an Artist Membership, you agree to be bound by these terms and conditions. Please print a copy of these terms and conditions and keep them safe for future reference.
Please click on the button marked "I Accept" at the end of these terms and conditions if you accept them. If you do not accept these terms and conditions, you will not be able to order an Artist Membership from our site.
1. INFORMATION ABOUT US
1.1 www.mobtal.com (including the version optimized for mobile phones at wap.mobtal.com) is a website operated by Mobtal Limited, referred to throughout these terms and conditions as “we” or “us”. Please note the following information about us:
(a) We are a limited company registered in England and Wales under company number 06130968 and have our registered office at 3 High Street, Chislehurst, Kent BR7 5AB.
(b) Our main trading address is 3 High Street, Chislehurst, Kent BR7 5AB.
(c) Our VAT number is GB 910 4690 44.
2. SERVICE AVAILABILITY
Our site is only intended for use by people resident in the Serviced Countries. We do not accept orders from individuals outside those countries. Some restrictions are placed on the types of membership and/or membership services available to residents of specific countries. These restrictions can be found on our Serviced Countries page. Please review our Serviced Countries page before ordering an Artist Membership from us.
3. YOUR STATUS AND GENERAL OBLIGATIONS
3.1 By placing an order through our site, you warrant that:
(a) You are legally capable of entering into binding contracts;
(b) You are at least 18 years old;
(c) You are resident in one of the Serviced Countries; and
(d) You are accessing our site from that country.
3.2 Your email address and password are personal to you and may not be used by anyone else to access our site or your Artist Membership. You will not do anything that would assist anyone who is not a registered user to gain access to any registration area of our site or your Artist Membership, nor will you assist anyone who is not a subscriber to gain access to your Artist Membership. If you believe that someone may be using your email address and password fraudulently you should notify us by emailing info@mobtal.com.
3.3 Any information that you enter into our site, whether publicly accessible or not, must be in the English language. Where the information is publicly accessible, it must be to our reasonable satisfaction in terms of its content, structure, grammar and presentation, and must comply with our website terms of use. We may remove (or require you to remove) any information that in our sole discretion we do not consider to be to our reasonable satisfaction.
3.4 When making your artwork available as mobile greeting cards (M-Cards), you must complete the relevant copyright information. Your name and a copyright notice will then appear on every M-Card that incorporates your artwork. By making your artwork available as an M-Card you are warranting to us that copyright in the artwork is vested in you.
3.5 To sell your artwork online or to offer your artwork as M-Cards, you must maintain a PayPal Premier or PayPal Business account. PayPal does not offer these types of account to all countries.
4. HOW THE CONTRACT IS FORMED BETWEEN YOU AND US
4.1 Once you have placed your order for an Artist Membership, we will send you an e-mail acknowledging receipt. Please note that this does not mean that we have accepted your order for Artist Membership. Your order constitutes your offer to us to buy an Artist Membership from us. All orders are subject to acceptance by us, and we will confirm our acceptance by sending you an e-mail stating that the Artist Membership has started (Membership Confirmation). There will be no contract between us until we send you the Membership Confirmation.
4.2 Subject only to paragraph 6, the contract for an Artist Membership will continue for the period specified in the Membership Confirmation. You may cancel the Contract (and therefore the Membership) at any time but, unless it is cancelled in accordance with paragraph 6 or paragraph 23, we will not refund the amount you have paid for the Membership (in whole or in part).
5. OUR STATUS
5.1 Please note that, where we introduce potential buyers to you via our site, any resulting legal contract is between you and that buyer, and is subject to the minimum terms and conditions that we specify and any additional terms and conditions you agree with that buyer. Further terms and conditions regarding this are set out in paragraph 11.
5.2 We may also provide links on our site to the websites of other companies, whether affiliated with us or not. We cannot give any undertaking, that products or services you purchase from third party sellers through our site, or from companies to whose website we have provided a link on our site, will be of satisfactory quality, and any such warranties are disclaimed by us absolutely. This disclaimer does not affect your statutory rights against the third party seller. We will notify you when a third party is involved in a transaction, and we may disclose your customer information related to that transaction to the third party seller.
6. CONSUMER RIGHTS AND TRIAL PERIOD
Consumer Rights
6.1 If you are contracting as a consumer, you may cancel a contract for an Artist Membership at any time within 14 days, beginning on the day after you receive the Membership Confirmation. In this case, you will receive a full refund of the price paid for the Artist Membership in accordance with our refunds policy (set out in paragraph 13 below).
6.2 To cancel a contract for an Artist Membership, you must inform us in writing.
6.3 Details of this statutory right, and an explanation of how to exercise it, are provided in the Membership Confirmation. This provision does not affect your statutory rights.
Trial Period
6.4 In addition to the above, all Artist Memberships are subject to an initial 60-day trial period (Trial Period), during which either you or we may cancel the membership without providing a reason for doing so to the other. In this case, you will receive a full or partial refund of the price paid for the Artist Membership in accordance with our refunds policy (set out in paragraph 13 below).
7. AVAILABILITY AND COMMENCEMENT OF MEMBERSHIP
Your Artist Membership will commence on the date set out in the Membership Confirmation.
8. DATA PROTECTION
8.1 All information received by us in relation to your Artist Membership and/or your use of our site will be used in accordance with our Privacy Policy.
9. INTELLECTUAL PROPERTY RIGHTS AND LICENCE
9.1 In this paragraph 9, the following words have the meaning given to them:
(a) Competitor: third parties offering electronic downloads of original works of art, other than charities registered in the UK.
(b) Content: all artwork, text, information, data, software, executable code, images, audio or video material in whatever medium or form provided to us by you for incorporation in our site.
(c) Downloads: a version of the Content optimised for use by Visitors as wallpaper and/or screensavers for computers, mobile phones and other portable devices, electronic greetings cards and other similar uses (we may choose which of these types of Content (if any) we make available).
(d) Intellectual Property Rights: all intellectual property rights wherever in the world arising, whether registered or unregistered (and including any application), including copyright, know-how, confidential information, trade secrets, business names and domain names, Marks, patents, petty patents, utility models, design rights, semi-conductor topography rights, database rights and all rights in the nature of unfair competition rights or rights to sue for passing off.
(e) Marks: any and all trade marks, trade names, service marks, trade dress, logos, URLs or identifying slogans, whether or not registered.
(f) Territory: the world.
(g) Visitor: a visitor to our site.
(h) Derivative Works: original content contained on our site that is based on the Content, such as a motion picture version, art reproduction, excerpt or any other form in which a work may be recast, transformed or adapted.
9.2 Subject to paragraph 9.3, during the term of this contract for Artist Membership, you grant to us an exclusive licence (including the right to sub-licence) to distribute the Content in the Territory on our site in return for the payment by us of the Fees as set out in paragraph 10, except that you may distribute the Content as downloads directly to end-users yourself through your own website and may licence it UK registered charities for them to distribute as downloads to end-users as a fund-raising activity. For the purposes of this licence, we shall only be taken to have used the Content in a particular jurisdiction where the Content or our Site is directed at that country. Access by a Visitor outside the Territory shall not constitute a breach of the licence. For the purpose of this paragraph only, “download” shall have the same meaning as Downloads, except for the reference to Visitors which shall be taken to mean visitors to the website in question).
9.3 The licence granted under paragraph 9.1 permits us to:
(a) modify, electronically reproduce and distribute, and publicly display the Content on our site;
(b) make the Content available through our Site as Downloads;
(c) reproduce and distribute through any media now known, or hereafter developed, excerpts of the Content in advertisements for, and in marketing and promotional materials related to, our site; and
9.4 make Derivative Works, reproduce, publicly display and distribute such Derivative Works in conjunction with the Content through our site, including in any media now known or hereafter developed.
9.5 During the term of the licence, you agree that you shall not:
(a) grant distribution or publication rights to any of the Content to any Competitor of ours including through a direct data feed, co-branding or premium placement arrangement; or
(b) advertise or promote the Content on or in connection with any Competitor of ours.
9.6 You are responsible for:
(a) delivery of the Content to us and for ensuring that you have full back-up copies of all such Content, as we are in no way responsible or liable to you for loss of, or damage to, the Content you provide to us;
(b) the accuracy, quality and completeness of the Content and any descriptions of it; and
(c) assigning the Content to appropriate categories of art on our site.
9.7 You warrant to us that the Content and your Marks:
(a) do not infringe any third party's Intellectual Property Rights, other proprietary rights or rights of publicity or privacy;
(b) do not violate any law, statute, ordinance or regulation (including the laws and regulations governing export control);
(c) are not defamatory, trade libellous, unlawfully threatening or unlawfully harassing;
(d) are not obscene or pornographic and do not contain child pornography;
(e) do not violate any laws regarding unfair competition, anti-discrimination or false advertising; and
(f) do not contain any viruses, Trojan horses, worms, time bombs, cancel bots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information.
9.8 We have no obligation to you, and undertake no responsibility, to review the Content to determine whether any such Content may result in any liability to any third party.
9.9 Notwithstanding anything to the contrary contained in this contract, if we reasonably believe that any Content may create liability for us, we may remove such Content as we believe, in our sole discretion, is prudent or necessary to minimise or eliminate our potential liability.
9.10 You and we each acknowledge and agree for all purposes that all Marks associated with the other party’s services, products, literature, promotional materials or otherwise, including (in our case) our site, whether or not registered, constitute the other party’s exclusive property. Except as stated in this contract, you and we each agree not to use, register or attempt to register in any jurisdiction, or otherwise appropriate or adopt, any name, mark or logo that is confusingly similar to the Marks of the other party and at no time during the term of the contract or thereafter shall you or we attack, challenge or file any application with respect to any Mark of the other party.
9.11 You grant to us a non-exclusive, non-transferable, non-assignable, royalty-free licence to use those Marks of yours referred to in paragraph 9.10 in connection with our site and any advertising, marketing and promotional activities undertaken and materials developed in relation to it.
9.12 We retain all Intellectual Property Rights in our site, the Derivative Works and our Marks, and nothing in this contract shall be taken to grant any rights to you in respect of such Intellectual Property Rights.
9.13 Title to and ownership of all Intellectual Property Rights embodied by or otherwise incorporated into the Content shall remain with you. Except as expressly provided in this licence, nothing shall be construed to grant to us any right, title or interest in or to the Content.
9.14 Any and all Visitor data (such as name, address and e-mail address) collected through any user registration process or otherwise shall be owned by us.
9.15 You shall indemnify us against all costs, claims, damages, losses and expenses arising as a result of any claim or action that the Content and/or your Marks infringe Intellectual Property Rights belonging to a third party. We shall:
(a) promptly notify you in writing of any such claim or action;
(b) make no admissions or settlements without your prior written consent;
(c) give you all the information and assistance that the Licensor may reasonably require (provided you reimburse our costs of doing so); and
(d) allow you complete control over any negotiations, litigation and settlement of any such claim or action.
10. CONTENT REMUNERATION
10.1 In this paragraph 10, the following words have the meaning given to them:
(a) Associate Member: a registered charity or other good cause participating in our associate member scheme, under which you can elect to donate a proportion of your income and our income from M-Card sales to one or more such associate members.
(b) Billing Period: each of the following periods:
(i) 1 April to 30 June (inclusive);
(ii) 1 July to 30 September (inclusive);
(iii) 1 October to 31 December (inclusive);
(iv) 1 January to 31 March (inclusive).
(c) M-Card: has the meaning set out in paragraph 3.4.
(d) Payment Threshold: £50.00 or such other sum as we may from time to time specify.
(e) Self-Billing Report: the report that we send you once your accumulated earnings have reached the Payment Threshold and which details £50 (Fifty pounds sterling).
10.2 Subject to paragraphs 10.3 to 10.5, you shall be entitled to receive from us a revenue share payment of £0.50 (or such other amount as we may from time to time specify) for each sale that we make of an M-Card that incorporates your artwork. Once your accumulated earnings have reached the Payment Threshold, we will send you a Self Billing Report at the end of that Billing Period and will pay your accumulated earnings to your PayPal Premier account or PayPal Business account. We will make this payment to you for each Billing Period by the date shown below:
Billing Period Payment date
1 April to 30 June 30 September
1 July to 30 September 31 December
1 October to 31 December 31 March
1 January to 31 March 30 June
10.3 If you elect to donate a proportion of your income and our income from M-Card sales to an Associate Member, you shall not be entitled to receive from us a revenue share payment. Instead, the Associate Member shall receive £0.50 (or such other amount as we may from time to time specify) for each such sale that we make of an M-Card that incorporates your relevant artwork.
10.4 We shall not be required to make any payment to you until your accumulated earnings have reached the Payment Threshold, as to do so would result in PayPal charging you for receiving our payment.
10.5 The sale price of M-Cards, the revenue share that you receive under paragraphs 10.2 and/or 10.3, and the minimum revenue share that Associate Members receive under paragraph 10.3 will each be such amount as we shall from time to time determine, as published on our site.
11. SALE OF YOUR ART TO VISITORS TO OUR SITE
11.1 Your Membership allows you to market your original works of art to visitors to our site (Private Sales).
11.2 Any Private Sales are legal contracts between you and the buyer, and are subject to whatever terms and conditions you agree with that buyer which, subject to paragraph 11.3, you are free to determine. It is your responsibility to agree such terms and conditions directly with the relevant buyer, whether you do so through the medium of our site or otherwise.
11.3 You agree to conduct all Private Sales honestly and fairly and to:
(a) comply with all relevant laws and regulations including, without limitation, the Consumer Protection (Distance Selling) Regulations 2000 and, where applicable, all other laws and regulations giving additional rights to consumers; and
(b) comply with the SafeBuy Code of Practice, including (without limitation) the right of the buyer to have at least fourteen working days after delivery in which to cancel their order and return the goods for a refund; and
(c) offer buyers terms and conditions that are no less favourable than those we may specify from time to time.
11.4 You shall indemnify us against all costs, claims, damages, losses and expenses arising as a result of any claim or action in relation to a Private Sale.
12. MEMBERSHIP PRICE AND PAYMENT
12.1 The price of any Artist Membership will be as quoted on our site from time to time, except in cases of obvious error.
12.2 These prices are stated in pounds sterling, both including and excluding UK VAT, which:
(a) is payable if you are located in the UK or if you are located in another EU member state and are not registered for VAT in that member state;
(b) is not payable if you are a business registered for VAT in another EU member state (not the UK) and you provide us with your VAT number, or if you are located outside of the UK and the EU. If you are registered for VAT in another EU member state you agree to inform us immediately of any change to the status of your VAT registration.
12.3 Prices are liable to change at any time, but changes will not affect orders for Artist Membership in respect of which we have already sent you a Membership Confirmation.
12.4 Our site details a number of membership types and services and it is always possible that, despite our best efforts, some of the membership types and/or services listed on our site may be incorrectly priced. We will normally verify prices as part of our fulfilment procedures so that, where an Artist Membership's correct price is less than our stated price, we will charge the lower amount when fulfilling your order for Artist Membership. If an Artist Membership’s correct price is higher than the price stated on our site, we will normally, at our discretion, either contact you for instructions before fulfilling your order, or reject your order and notify you of such rejection.
12.5 We are under no obligation to provide the Artist Membership to you at the incorrect (lower) price, even after we have sent you a Membership Confirmation, if the pricing error is obvious and unmistakeable and could have reasonably been recognised by you as a mis-pricing.
12.6 Payment for all Artist Memberships must be in pounds sterling and made through PayPal, which accepts most popular credit and debit cards. We will charge your credit or debit card with the sum owed to us as soon as we accept your order for an Artist Membership.
13. OUR REFUNDS POLICY
13.1 When you cancel an Artist Membership in accordance with paragraph 6 or paragraph 23, we will notify you of your refund via e-mail within a reasonable period of time. We will usually refund any money received from you using the same method originally used by you to pay for your purchase. We will usually process the refund due to you as soon as possible and, in any case, within 30 days of the day we received your cancellation.
13.2 Memberships cancelled by you within the 14-day cooling-off period (see paragraph 6.1 above) will be refunded in full.
13.3 Memberships cancelled by us or you within the Trial Period (see paragraph 6.4 above) will be refunded as follows:
(a) Cancellation by us: full refund; or
(b) Cancellation by you: pro-rata refund in respect of the unexpired portion of your Membership only.
14. OUR LIABILITY
14.1 We will use reasonable skill and care in making your Artist Membership available to you. Otherwise, to the extent permitted by law, Artist Memberships are provided without any warranties or guarantees. In particular, we do not warrant that our site or any of its contents 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. Although we will do our best to provide constant, uninterrupted access to your Artist Membership on the site, we do not guarantee this. We accept no responsibility or liability for any interruption or delay.
14.2 Our liability in connection with any Artist Membership purchased through our site is strictly limited to the purchase price of that Artist Membership.
14.3 This does not include or limit in any way our liability:
(a) For death or personal injury caused by our negligence;
(b) Under section 2(3) of the Consumer Protection Act 1987;
(c) For fraud or fraudulent misrepresentation; or
(d) For any matter for which it would be illegal for us to exclude, or attempt to exclude, our liability.
14.4 We accept no liability for any loss of income or revenue, loss of business, loss of profits or contracts, loss of anticipated savings, loss of data, waste of management or office time or for any indirect or consequential loss or damage of any kind however arising and whether caused by tort (including negligence), breach of contract or otherwise, even if foreseeable.
15. DUTIES AND TAXES
15.1 If you order an Artist Membership to our site from outside the UK, either the membership or any income you derive from it (or both) may be subject to duties and taxes that are levied locally. You will be responsible for payment of any such duties and taxes. Please note that we have no control over these charges and cannot predict their amount. Please contact your local customs and/or tax office for further information before placing your order.
15.2 Please also note that you must comply with all applicable laws and regulations of the country from which you are ordering an Artist Membership. We will not be liable for any breach by you of any such laws.
16. WRITTEN AND OTHER COMMUNICATIONS
Applicable laws require that some of the information or communications we send to you should be in writing. When using our site, you accept that communication with us will be mainly electronic. We will contact you by e-mail or provide you with information by posting notices on our website. For contractual purposes, you agree to this electronic means of communication and you acknowledge that all contracts, notices, information and other communications that we provide to you electronically comply with any legal requirement that such communications be in writing. This condition does not affect your statutory rights.
All communications between you and us must be in English.
17. NOTICES
All notices given by you to us must be given to Mobtal Limited at info@mobtal.com. We may give notice to you at either the e-mail or postal address you provide to us when placing an order, or in any of the ways specified in paragraph 16. Notice will be deemed received and properly served immediately when posted on our website, 24 hours after an e-mail is sent, or three days after the date of posting of any letter. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an e-mail, that such e-mail was sent to the specified e-mail address of the addressee.
18. TRANSFER OF RIGHTS AND OBLIGATIONS
18.1 The contract between you and us is binding on you and us and on our respective successors and assigns.
18.2 You may not transfer, assign, charge or otherwise dispose of a contract with us, or any of your rights or obligations arising under it, without our prior written consent.
18.3 We may transfer, assign, charge, sub-contract or otherwise dispose of a contract with you, or any of our rights or obligations arising under it, at any time during the term of the contract.
19. EVENTS OUTSIDE OUR CONTROL
19.1 We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under a contract that is caused by events outside our reasonable control (Force Majeure Event).
19.2 A Force Majeure Event includes any act, event, non-happening, omission or accident beyond our reasonable control and includes in particular (without limitation) the following:
(a) Strikes, lock-outs or other industrial action.
(b) Civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war.
(c) Fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster.
(d) Impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport.
(e) Impossibility of the use of public or private telecommunications networks.
(f) The acts, decrees, legislation, regulations or restrictions of any government.
19.3 Our performance under any contract is deemed to be suspended for the period that the Force Majeure Event continues, and we will have an extension of time for performance for the duration of that period. We will use our reasonable endeavours to bring the Force Majeure Event to a close or to find a solution by which our obligations under the contract may be performed despite the Force Majeure Event.
20. WAIVER
20.1 If we fail, at any time during the term of a contract, to insist upon strict performance of any of your obligations under the contract or any of these terms and conditions, or if we fail to exercise any of the rights or remedies to which we are entitled under the contract, this shall not constitute a waiver of such rights or remedies and shall not relieve you from compliance with such obligations.
20.2 A waiver by us of any default shall not constitute a waiver of any subsequent default.
20.3 No waiver by us of any of these terms and conditions shall be effective unless it is expressly stated to be a waiver and is communicated to you in writing in accordance with paragraph 17 above.
21. SEVERABILITY
If any of these terms and conditions or any provisions of a contract are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.
22. ENTIRE AGREEMENT
22.1 These terms and conditions and any document expressly referred to in them represent the entire agreement between us in relation to the subject matter of any contract and supersede any prior agreement, understanding or arrangement between us, whether oral or in writing.
22.2 We each acknowledge that, in entering into a contract, neither of us has relied on any representation, undertaking or promise given by the other or be implied from anything said or written in negotiations between us prior to such contract except as expressly stated in these terms and conditions.
22.3 Neither of us shall have any remedy in respect of any untrue statement made by the other, whether orally or in writing, prior to the date of any contract (unless such untrue statement was made fraudulently) and the other party´s only remedy shall be for breach of contract as provided in these terms and conditions.
23. OUR RIGHT TO VARY THESE TERMS AND CONDITIONS
23.1 We have the right to revise and amend these terms and conditions from time to time.
23.2 You will be subject to the policies and terms and conditions in force at the time that you order an Artist Membership from us, unless any change to those policies or these terms and conditions is required to be made by law or governmental authority (in which case it will apply to orders previously placed by you), or if we notify you of the change to those policies or these terms and conditions before we send you the Membership Confirmation (in which case we have the right to assume that you have accepted the change to the terms and conditions, unless you notify us to the contrary within seven working days of receipt by you of the Membership Confirmation).
24. LAW AND JURISDICTION
Contracts for the purchase of Artist Memberships through our site will be governed by English law. Any dispute arising from, or related to, such contracts shall be subject to the non-exclusive jurisdiction of the courts of England and Wales.
