TERMS & CONDITIONS of CREATYVE LTD
Last review date: 5th November 2018
Michael Wharton, Who Needs Law
Welcome to creatyve
Why you should read these Terms
Please read these terms and conditions (Terms) carefully before you use the creatyve Platform. These Terms tell you who we are, how we will provide products to you, how you and we may change or end our agreement, what to do if there is a problem and other important information. They also set out the terms between Artists and Funders in relation to Artwork on the Platform. If you think that there is a mistake in these Terms or require any changes, please contact us to discuss at [email protected]
Summary of Key Terms
· We provide a Platform to facilitate contact between Artists and Funders in connection with Artwork projects.
· The Platform also provides the Artists with an opportunity to build a community around each Artwork by promoting it on the Platform and on certain social media channels.
· To use the Platform you must complete our registration process.
· We charge Artists for using certain features of the Platform. Charges will be notified on the Platform prior to payment.
· We do not charge Funders for using the Platform.
· We are not party to the agreement between Artists and Funders in relation to Artwork Projects, which is entirely at your own risk and responsibility.
· It is your responsibility to provide complete and accurate information to the Platform and other Community Members at all times. If the information provided by you is not complete and accurate a potential Project may not proceed and you may incur or be responsible for damage or loss.
· We do not make any guarantee or assurance about the nature or conduct of any Artist, Funder or Project on the Platform. We are not regulated by the Financial Conduct Authority or any other regulatory body and Campaigns on the Platform are not intended to be financial promotions of any kind.
· The Platform is provided as is and you may stop using the Platform at any time.
· You can only use the Platform for yourself.
· If you are an Artist, we consider you are a business for the purposes of our relationship with you under these Terms.
· If you are a Funder, we consider you are a consumer for the purposes of our relationship with you under these Terms.
This Platform is operated by creatyve Limited (“creatyve.uk”, “we”, “us”, “our” or “ourselves”). Creatyve Limited is a company registered in England and Wales with number 1149 3169. Creatyve’s registered office is located at: 11 Chambord Street , London - E2 7LL, United Kingdom. Our VAT registration number is 11493169.
These terms and conditions (Terms) (together with the documents referred to in it) set out the terms on which you may make use of the creatyve website, and any website, micro site or sub-site owned, developed or maintained by creatyve Limited and all the associated services (Platform). The terms apply to all users (Users) of, and visitors on the Platform.
Please read these Terms carefully. By accessing any page of the Platform, you agree to be bound and abide by these Terms. If you do not agree to these Terms, you must not use the Platform. We reserve the right to modify these Terms at any time, although we will always endeavour to notify you of any material change. You agree to the Terms each time you visit or log onto your account on the Platform. Some of the provisions contained in these Terms may also be updated or superseded by provisions or notices published elsewhere on the Platform.
The Platform is directed exclusively at customers in the UK. We make no offer or promotion of products or services to any persons outside the United Kingdom or for any use for commercial purpose.
By accessing, using and/or registering to use the Platform you represent and warrant that you: (i) are over the age of 18 and are lawfully able to enter into the Terms; (ii) agree to be bound by the Agreement, including any updates from time to time; (iii) are in the United Kingdom.
If you are using creatyve.uk in connection with your organisation, the terms 'you', 'your' or 'your organisation' in these Terms are also a reference to the business, charity institution or other organisation or entity (Business) on whose behalf you act when using, registering, backing or creating a Project on creatyve.uk.
These Terms and our correspondence with you will be communicated in the English language.
For further information about us and our contact details, please visit the About Us. If you have any questions or concerns about these terms, please contact us to discuss at [email protected]
If you access or use the Platform outside the UNITED KINGDOM, you do so at your own risk and it is your responsibility to ensure that you are compliant with any applicable local laws.
PLEASE READ THESE TERMS CAREFULLY AND IN FULL BEFORE REGISTERING AND USING THE PLATFORM.
2. OUR RELATIONSHIP WITH YOU
Are you a business customer or a consumer?
2.1 We consider Funders as consumers and Artists as business customers for the purposes of our relationship with you.
2.2 In some areas you will have different rights under these Terms depending on whether you are a business customer or a consumer, as indicated in the relevant section. Except as expressly stated, these Terms apply in full to all Community Members, both business customers and consumers.
2.3 If you are a consumer (i.e. a Funder) you have additional statutory rights and protections in comparison to a business customer (i.e. an Artist), including under Consumer Rights Act 2015. For further information on your rights you can also visit the Citizens Advice website www.adviceguide.org.uk or call 03454 04 05 06.
If you are a business customer this is our entire agreement with you.
2.4 If you are a business customer (i.e. an Artist) these Terms constitute the entire agreement between us in relation to your purchase. You acknowledge that you have not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of us which is not set out in these terms and that you shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
3. MEANING OF WORDS USED IN THESE TERMS
In these Terms, we use the following definitions:
“Amount Raised” means the sum of the proceeds contributed by the Funders as a result of the Campaign for the Artwork; "Artist Funder Terms" means the agreement between the Funder and the Artist in connection with Artwork which available on the Platform, and any amendments from time to time; "Application Form" means web form published by the Platform enabling individuals to become Artists for a Project; "Artist" means the individual identified as such on the Application Form and subsequently on the Platform; "Artwork" means the art work, painting, sculpture or other physical and tangible visual art to be developed through the Project; “Artwork Rights” means a right to share in the relevant proportion of the proceeds of a Full Sale (if any) of Artwork on the Platform (for the avoidance of doubt Artwork Rights shall not entitle Funders to any ownership or security right in the Artwork). “Campaign” means the funding campaign for an Artwork Project that the Artist is undertaking on the Platform; “Campaign Period” means the period during which Funders can contribute to a Project ending on the Campaign Completion Date, as shown on the Platform; “Community Members” means all Users who register on the Platform, i.e. both Artists and Funders; “Completion” means the moment in which the Artwork is finally completed and ready to be offered for sale by the Artist; “Platform" means the Artwork-as-Artwork platform known as creatyve.uk that is owned and operated by creatyve Limited; "Contribution" means the amount(s) offered by a Funder to an Artist in return for Artwork Rights; "Defect" means a defect, error or bug having a material adverse effect on the appearance, operation or functionality of the Artwork, but excluding any defect, error or bug caused by or arising as a result of an incompatibility between the Artwork and any other system, application, program or Artwork not specified as compatible in the Specification; "Events Outside Our Control" means an event, or a series of related events, that is outside the reasonable control of the relevant party (including failures of or problems with the internet or a part of the internet, hacker attacks, virus or other malicious Artwork attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars); “Full Sale” means the first sale of the whole (100%) of the Artwork after Completion; “Funder” means the buyers of Artwork Rights in return for a Contribution on the Platform; "Funding Target" means the desired target of contributions shown on the Platform in pounds sterling, as decided by the Artist; "Intellectual Property Rights" means all intellectual property rights of any kind and wherever in the world, whether registered or unregistered, including any application or right of application for such rights (and the "intellectual property rights" referred to above include but are not limited to copyright and related rights (including rights in computer software), database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, moral rights, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models and rights in designs);"Platform" means the platform and services operated by Creatyve Limited; "Project" means the project for the Artist to develop Artwork; "Campaign Completion Date" means the cut-off date by which individuals can contribute to the Project on the Platform and after which the funding Campaign ends; “Return” means any amount returned to Funders on a Full Sale of the Artwork; “Specification" means the specification for the Artwork set out in the Campaign and any variation notified to Funders prior to Contribution or any variation agreed between the Artist and Funders following the end of the Campaign; "Target Completion Date" means the target date for Completion of the Artwork, as set out on the Platform; and “User” means a registered Community Member or any other visitor to the Platform.
4. CREATYVE PRODUCTS AND SERVICES
4.1 Creatyve operates an online platform for Community Members to interact, to promote and contribute to Artwork Projects. Creatyve is a peer-to-peer platform intended to create a community based environment for Artwork.
4.2 Full details of our products and services and the published rates, are available in these Terms and within the Platform.
4.3 You take full responsibility for your arrangements with other Community Members whom you contact and the nature, terms and extent of your arrangements with them and obligations to them are personal between you.
4.4 Except as provided in these Terms or by law, we do not:
· have any involvement as a party to any agreement between Community Members on the Platform, for example in relation to an Artwork Project;
· accept any responsibility for the nature or quality of a Project or returns, or the actions or omissions of Community Members;
· verify the identity of Community Members or the accuracy or completeness of information about Projects on the Platform.
CREATVYE is not party to any Transaction between ARTISTS AND FUNDERS and does ITS BEST tO verify the identity or background of community members of the Platform VIA ITS KYC POLICY. we are not ACTING AS A FINANCIAL INTERMEDIARY OR ADVISOR OR OPERATOR REGULATED BY any REGULATORY BODY and information on the platform is not intended to be a financial promotion. your use of the Platform and any Transactions are at your own risk and responsibility.
4. REGISTERING ON THE PLATFORM
4.1 Before you can launch a Campaign (for Artists) or make a Contribution (for Funders) you will need to register as a Community Member by signing up and creating an account on the Platform.
4.2 You are not eligible to use the Platform if we have temporarily suspended or previously terminated your access to the website and we have not expressly authorised you in writing to resume using the Platform.
4.3 We try to make the Platform available at all times, but, of course, we cannot guarantee this.
4.4 You can sign up and create your account on the Sign Up page, as an Artist or a Funder. You can also use the link on that page to create an account with creatyve.uk by linking your Facebook account using the ‘Facebook Connect’ facility. Whether using the standard registration process or registering using Facebook Connect, you will be asked to confirm your acceptance to these Terms.For further details in relation to creating an account via your social media, please see section 4.11 “Permission to Access Your Social Media”.
4.5 Information From You. We will request certain basic information to create your profile on the Platform, including:
Your name (first & last)
Date of Birth
Your Biography (shown as “About Me” free field, applicable for Artists only)
This information may be gathered from your linked social media accounts (see section 4.11 “Permission to Access Your Social Media”). Additional information may be requested from time to time, as shown on the Platform. We shall reserve the right to contact you for additional data (for instance ID verification) according to our KYC policy ( www.creatyve.uk/kyc ) and in accordance with the current KYC regulation in the UK.
4.6 Your Responsibility for Information. You must make sure that all the information you provide when you register on the Platform is accurate and complete. If you change any of your registration details (e.g. email address, postal address), you must update your account.
4.7 Your Responsibility for Password Security. Your account is for your personal use only. To help us maintain the security of the Platform, you must keep your login details confidential. Please do not share your login details with any other person or leave your device unattended whilst logged into the Platform as you will be held responsible for all activities that occur under your password or account (with or without your knowledge) as a result of doing so. If you become aware of any misuse or unauthorised use of your login details, then you must inform us immediately by email at [email protected].
4.8 Termination for Breach. In the event that you have, or we have reason to believe that you have breached, or will breach these Terms, we may terminate or suspend your registration and/or access to the Platform and/or to any content made available on the Platform. We also reserve the right to suspend or terminate your account and your access to the Platform if you create more than one (1) user profile, or if any information provided during the registration process or thereafter proves to be inaccurate, fraudulent, not up-to-date, incomplete, or otherwise in violation of these Terms.
4.9 Deletion of Your Account. You can request deletion of your account at any time as long as you do not have any active Projects or any outstanding obligations relating to unexpired Projects you have funded. Please email [email protected] to request deletion of your account. We reserve the right to remove your account in accordance with these Terms.
4.11 Permission to Access Your Social Media. At present, we do not have this functionality enabled.
By creating an Account and using the Platform, you confirm that you are 18 or over and resident in the United Kingdom.
You are solely responsible for the use of your Account and the information provided to the Platform.
Creating Your Campaign
5.1 Once you have registered as an Artist, you can create a Campaign and post details of your Project and the Artwork publicly on the Platform (“Project Profile Page”).
5.2 Each Campaign is an offer of Artwork Rights which entitles Funders to a percentage of the proceeds on a Full Sale of the Artwork (after deducting fees and charges and subject to any other terms and conditions between the Artist and Funder). The Artist decides on the Artwork Rights and the associated percentage of sale proceeds of the Artwork which Funders are entitled to as shown on the Platform.
5.3 Your Project may take up to 3 working days before it goes live and your Project Profile Page is made available on the Platform.
5.4 Currently we only accept physical visual art as the type of Artwork.
5.5 You may not raise funds via another online crowdfunding or similar platform (whether website or App) during the Campaign Period of your Project and all Contributions from Community Members must be made through the Platform. Except during the Campaign Period or unless we specifically agree otherwise in writing, you are not obliged to raise funds for your Artwork exclusively via the Platform which means you are free to raise funds using other means and channels and source of finance.
5.6 Although we recommend you have no more than one active Project at any one time, we permit you to post as many active Projects as you like.
5.7 When submitting the Application Form, the Artist decides what percentage of the Artwork to offer on the Platform in the form of Artwork Rights together with the starting date of the Campaign, the Campaign Completion Date and the Funding Target.
Managing Your Campaign
5.8 At any time before the Campaign Completion Date, the Artist may edit the Campaign Completion Date and provide an altered Campaign Completion Date and/or Target Completion Date on the Platform. Funders will be automatically notified of any such change.
5.9 You may post content and other material (e.g. promotional material such as a video containing your Project) and updates on the performance of your Project. Any content must comply with section 7 (User Content and Acceptable Use).
Cancelling Your Campaign
5.10 You may terminate a Campaign at any point before the end of the Campaign Completion Date. If you do so, you will be liable to immediately repay all Contributions you may have received together with an amount to reimburse all fees and charges deducted by third party payment service providers, so that the Funders receive back their original Contribution in full. This process will be automatically managed by us via our internal systems. As soon as you tell us you want to terminate a Campaign, your online wallet will be charged what you owe in terms of the contributions you may have received up to that moment + payment provider fees. Once terminated a Campaign or Project cannot be resumed on the Platform at a later date.
5.12 We reserve the right, but are not obliged, to verify information you provide to us and to reject, cancel, interrupt, remove, or suspend an active Campaign at any time and for any reason. If, in our sole discretion, we determine your Campaign to be a higher risk we may also ask you for more information and you agree to respond to such requests and provide such information promptly and we may also suspend or delay the payment to you of the Amount Raised until we have completed all enquiries to our satisfaction. We will not be liable to you for any losses that you suffer or incur as a result of us taking any of the actions in this section. We reserve the right to pass on the cost of any action we take under this section to you.
5.13 Immediately following the Campaign Completion Date, the Artist must create the Artwork to the Specification. The Artist will use all reasonable endeavours to complete the Artwork on or before the Target Completion Date. If the Artist fails to complete the development of the Artwork before the Target Completion Date, then the Artist must do so as soon as practicable following the Target Completion Date and will notify Funders of the progress on an ongoing basis, and at least once per week.
5.14 The Artist must give immediate notice to Funders via the Platform on the Completion of the Artwork.
Payment, Fees and Charges
5.15 There is no fee for creating a Campaign and publishing details of the associated Project on the Platform nor if your Campaign does not raise any money.
5.16 We charge Artists a fee of 5% plus VAT of the Amount Raised, as operator of the Platform, which will be deducted before the Amount Raised is distributed to you.
5.17 We charge a fee of 10% plus VAT of the proceeds on a Full Sale of the Artwork to another Community Member, which will be deducted before any Return is distributed to your Funders.
5.18 Payment Service Providers also charge fees to process Contributions and Returns from and to your Funders. These amounts are payable by the Artist and deducted directly by the Payment Service Provider from the Amount Raised. You will be required to accept the terms and conditions of the relevant Payment Service Provider.
5.19 All fees payable by Artists are subject to Value Added Tax (“VAT”) at the rate in force from time to time. Please note that VAT is assessed on the above fees and not the Amounts Raised. You are solely responsible for ensuring that you are registered for VAT or similar sales tax as required by the applicable laws of the jurisdiction in which you are established.
5.20 Contributions to your Project will be paid to you immediately after they are received from the Funder via the Payment Service Provider, after deducting the applicable fees and charges.
5.21 We may request that Contributions are delayed, withheld, cancelled or refunded any Contributions if we have not received all information in relation to our enquiries or if we have evidence of or suspect any wrongdoing. We may do this without giving any notice to you and without incurring any liability to you. The Payment Service Provider is also subject to legal and regulatory obligations which may delay or prevent the receipt of Contributions in accordance with their terms and conditions.
5.22 Artists may contact us to cancel any Contribution for any reason at any time before the Campaign Completion Date. You will be required to refund the Contribution in full together with an amount to compensate Funders for any fees and charges of the Payment Service Provider. We may also charge you a fee to cover our reasonable administration costs. We shall have no obligation to Artists for any losses and costs as a result of such cancellation. All these transactions will be carried out automatically via our systems.
5.23 We have no liability to you if Funders fail to fulfil their payment obligations in relation to funding a Project and we do not guarantee any Contributions.
Artists’ Representations and Undertakings
5.24 By registering and launching a Campaign on the Platform each Artist confirms that they are acting wholly or mainly for their trade, business, craft or profession.
5.25 Each Artist agrees to:
(a) apply any Contributions for the purposes of the Project as described in your Campaign;
(b) meet the Specification and all commitments made in your Campaign Profile Page or otherwise agreed with the Funders;
(c) use all reasonable efforts to arrange a Full Sale of the Artwork on Completion;
(d) promptly and accurately respond in full to all queries, clarifications or requests made by us and/or any Funder;
(f) comply with the Artist Funder Terms and all applicable laws and regulations in relation to your Project and your obligations to Funders.
Making a Contribution
6.1 Funders registered on the Platform can contribute to a Project by making a Contribution and receiving Artwork Rights in return, as shown on the Platform. You will receive an email confirming details of your Contribution and the Artwork Rights.
6.2 Artwork Rights entitle Funders to a share of the proceeds of any Full Sale of the relevant Artwork, as shown on the Platform. The terms of your Artwork Rights are governed by the Artist Funder Terms.
6.3 Funders must ensure they have sufficient amounts available for payment of any Contribution and comply with the terms and conditions of any Payment Service Provider.
6.4 Artwork Rights constitute a personal right against the Artist according to the Artist Funder Terms. The Funder has no ownership, security or other rights in connection with the Artwork or any other Funders. The Funder has no right to possession of the Artwork on completion or at any other time.
6.6 Contributions are non-refundable and cannot be cancelled by the Funder. Your Contribution will only be cancelled if the Campaign does not reach a successful Completion, for example if the Artist withdraws the Project. You may also be able to offer your Artwork Rights to potential buyers following Completion, subject to this functionality being available on the Platform.
6.7 Payment via Third Party Service Providers. Once you have confirmed the amount of your Contribution, you will be prompted to use our payment methods. We use third party Payment Service Providers to process your payment. Your payment is subject to the terms and conditions of relevant Payment Service Provider which you will need to view and agree to prior to payment.
6.8 Immediate Payment. Your Contribution to a Campaign will be transferred to the Artist via the Payment Service Provider immediately after you pay. Please note that creatyve does not receive or hold any Contributions or payments on behalf of you or the Artist.
6.9 Returns. On a Full Sale of the Artwork, the Artist is required to distribute the proceeds according to your Artist Rights and the Artist Funder Terms, after deducting all fees and charges due from the Artist to the Platform and the Payment Service Provider.
6.10 Payment, Fees and Charges. All payments (Contributions and any Returns) will be made through your wallet with the Payment Service Provider. You will not be charged any fees for registering and making Contributions in GBP on the Platform. All fees of the Platform and the Payment Service Provider are the responsibility of the Artist and shall deducted from your Contribution before payment to the Artist. Such deduction of fees will not reduce your Artist Rights as shown on the Platform.
6.11 Currency Exchange Fees. You will be charged a fee if you pay with a card in a currency other than GBP. Please ensure you read and understand the terms of the Payment Service Provider prior to making payment as you will be responsible for all amounts due under that contract.
6.12 Funders agree at all times to act in good faith and comply with these Terms and the relevant Artist Funder Terms and all applicable law and regulations.
Communications on the Platform
6.13 The Platform allows Funders to communicate directly with Artists and ask questions prior to making Contributions.
6.14 Funders have sole responsibility for enquiring with the relevant Artist to satisfy themselves of the nature and suitability of the Project for them, before deciding whether to make a Contribution.
6.15 All electronic communications between Artists and Funders on the Platform are recorded by the Platform.
if you make a contribution THIS INDICATES YOUR INTENT TO PROCEED WITH A TRANSACTION to purchase the relevant number of artwork rights. contributions are at your sole risk and responsibility.
creatyve makes no guarantee or undertaking that a campaign will be successful or that an artwork will ultimately be sold for an amount which entitles funders to a return of their contribution or any amount in excess. The artist may choose to withdraw the campaign at any time in which case the funder’s contribution will be returned.
7. USER CONTENT AND ACCEPTABLE USE
This section sets out the general terms applicable to all Community Members using the Platform. It explains how to upload content, and provides the ground rules for contributing content. This section also describes what action we may take if any use of the Platform does not comply with our Terms.
Acceptable Use Rules
7.1 The following rules apply to your use of the community features contained on the Platform:
(a) Any content which you and other users post or contribute to the Platform using its community features (including content you upload to your Project Profile Page, comments you make on Projects Profile Pages, internal messages and Project updates) is generally known as “user generated content” or “UGC” for short. Paragraphs 8.1.2 to 8.2.1 below in this Section set out the rules for contributing content, how we and other users may use your UGC and how you can use their UGC.
(b) Obviously we positively encourage Community Members to make full use of the Platform and in particular to participate in the creatyve.uk community. However, to ensure that everyone has an enjoyable and satisfying experience, we require that you abide by these rules:
7.2 You agree to ensure that:
(a) you only contribute UGC to creatyve.uk if you know that you have the necessary rights to do so. By contributing UGC to creatyve.uk, whether text, images, video, sound recordings or other material, you are promising to us and to other users that: (i) you either own any copyright in that content or that you have obtained the necessary right(s) to make the content available through creatyve.uk in accordance with these Terms and permit its use via creatyve.uk and in our newsletters and that such permissions are freely available on demand by us should we require; and (ii) you will not be infringing anyone’s intellectual property or other rights or breaching any law or regulation (including data protection and privacy laws), by contributing that content and by allowing it to be used in the ways described in these Terms. If you are in doubt about whether you have permission to post your UGC, please do not upload or post it to creatyve.uk.
(b) all information provided by you via the Platform or which you provide to other Community Members or in connection with any Project is accurate, true and up to date in all respects and at all times and is not misleading in any way;
(c) all content posted by you is lawful and not defamatory, abusive, threatening, harassing, obscene, discriminatory, or otherwise objectionable or embarrassing to any other person as determined by us in our sole discretion;
(d) you will use the Platform and any information and content obtained from it lawfully and only for the purposes for which it has been provided and in accordance with these Terms;
(e) you will not harass or mislead or act unlawfully towards any person that you have contacted via the Platform or disclose or use any contact information that they may provide to you without their consent;
(f) you will cease to contact anyone that you have contacted via the Platform immediately if they request you to do so; and
(g) any content you upload is not in breach of any copyright or other intellectual property rights owned by a third party and, in the case of any photos or videos that identify individuals, that you have their full permission to make their image available through the Platform and to permit use of such content and image by any third parties we may authorise under these Terms.
7.3 You may not:
(a) distribute or post spam, in particular by sending unsolicited marketing messages to other Community Members, or distribute or post chain letters, unsolicited loans (creatyve.uk strongly recommends that you do not make contact with members offering you unsolicited loans. creatyve.uk cannot be liable for any losses incurred if you choose to ignore this advice) or pyramid schemes;
(b) distribute viruses or any other technologies that may harm the Platform or the interests of other Community Members or otherwise interfere with or disrupt our servers;
(c) systematically retrieve data or other content from our Platform;
(d) access, tamper with, or use non-public areas of the Platform, creatyve’s computer systems, or the technical delivery systems of creatyve’s providers;
(e) attempt to probe, scan, or test the vulnerability of any creatyve system or network or breach any security or authentication measures;
(f) attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Platform or content;
(g) post or transmit any advertisements for or solicitations of business;
(h) after receiving a warning, continue to disrupt the normal flow of dialogue, or post or transmit comments that are not related to the topic being discussed;
(i) except as permitted under these Terms, copy, modify, or distribute our content or trade marks from creatyve.uk or Community Members’ copyright material and trademarks or any content or trade marks owned by a third party unless you have their explicit permission;
(j) harvest or otherwise collect or use information about Community Members without their explicit consent;
(k) impersonate another Community Member or falsely state or otherwise misrepresent your affiliation with a person or entity;
(l) allow any other person or entity to use your log in details or account for posting or viewing comments or for communicating with other Community Members;
(m) continue to use the Platform if your access to the Platform has been suspended or your account terminated;
(n) engage in any other conduct that restricts or inhibits any other persons from using or enjoying the Platform, or which, in our judgment, exposes us to any liability or detriment of any type;
(o) upload, post or publish to the Platform or otherwise provide to us any personal information about children (i.e. individuals under 18) or personal data that is ‘sensitive data’ from a legal perspective or that relates to criminal convictions or offences; or
(p) advocate, encourage, or assist any third party in doing any of the foregoing.
7.4 Please note that any posting of information or sending of internal messages on or via the Platform is the opinion of the person posting or sending only and does not necessarily reflect our opinions or attitudes.
7.5 Creatyve has the right to investigate and prosecute violations of any of the above to the fullest extent of the law. Creatyve may take a range of actions against you, including but not limited to removing or disabling access to any or all of your UGC or deactivating or canceling your Campaign(s) or account, for a violation of this section or these Terms.
7.6 Creatyve may access, preserve and disclose any of your information if we are required to do so by law, or if we believe in good faith that it is reasonably necessary, including but not only to (i) respond to claims asserted against creatyve or to comply with legal process, (ii) enforce or administer our agreements with Community Members, such as these Terms, (iii) for fraud prevention, risk assessment, investigation, customer support, product development and de-bugging purposes, or (iv) protect the rights, property or safety of creatyve, its Users, or members of the public. You acknowledge that creatyve has no obligation to monitor your access to or use of the Platform or content, but has the right to do so for the purpose of operating and improving the Platform (including without limitation for fraud prevention, risk assessment, investigation and customer support purposes), to ensure your compliance with these Terms, to comply with applicable law or the order or requirement of a court or other governmental body, to respond to content that it determines is otherwise objectionable or as set forth in these Terms. Creatyve reserves the right, at any time and without prior notice and in its sole discretion, to remove or disable access to any content or your account.
Who can use your UGC and how they can use it
7.7 When you contribute UGC to the Platform:
(a) you are granting us and our agents and representatives an unlimited, non-terminable, sub-licenseable and free permission to use, re-use, copy, adapt, abridge, amend, distribute, modify, translate, publish, perform, display, develop, reproduce, communicate to the public and to make your UGC otherwise available in any form and/or by any media (whether now known or hereafter devised), including through any on-demand or broadcast service, whether on a commercial or non-commercial basis anywhere in the world. By way of example only, this will include permission to;
· make all or any part of your UGC available through creatyve.uk to other users of creatyve.uk;
· include certain UGC in our newsletters;
· allow any third parties authorised by us to reproduce, display, publish, communicate, perform and/or embed activity and content on their platforms, including their websites and applications; and
· allow third parties to link to pages on creatyve.uk which contain your UGC.
Monitoring your UGC>
7.8 We are not involved in any arrangements made between Community Members. Any postings on the Platform and the uploading of any photos, pictures, videos, animations or other audio-visual material by Community Members does not constitute any form of recommendation, representation, endorsement or arrangement by us. In particular we have no control over and are not responsible for the truth or accuracy of any content, its compliance with any legal or regulatory requirement or its quality or safety. Please contact us if you have any concerns about the content of any information seen on the Platform.
7.9 Please note that any information posted via the functionality available on the Platform is the opinion of the person posting only. If you rely on the information posted, you do so at your own risk. Although we have rules for the posting of content, it is possible that our interactive features could be susceptible to misuse. We ask all users to contact us in respect of any suspicion of misuse.
Exchange Personal Information between Community Members
7.11 Please be careful when using the Platform and any community facilities that you do not reveal any information from which you can be personally identified by other users such as your home or work contact details, your last name or where you live except in accordance with these Terms and where you feel comfortable revealing such personal information to such persons. You should in any event only reveal such personal information via secure communications that cannot be viewed by other people.
7.12If you wish to make a complaint about any issue regarding personal information please send us an email to [email protected]
Disputes between Community Members
7.13 We are under no obligation to become involved in disputes between any Community Members, or between Community Members and any third party arising in connection with the use of the Platform. This includes, but is not limited to, the payment of sale proceeds or other commitments and services, and any other terms, conditions, warranties, or representations associated with Projects on the Platform. We do not monitor and are not liable to you for the performance or punctuality of Projects nor do we endorse them.
7.14 We will co-operate with any law enforcement authorities in any investigations arising out of your dispute with another Community Member or third parties such as Payment Service Providers.
8. WEBSITE LINKS
Linking to the Website
8.1 You may link to and from the Platform, provided; (a) you do so in a way that is fair and legal and does not cause us to breach any of our legal or regulatory obligations or damage our reputation or take advantage of it; (b) you do not establish a link in such a way as to suggest any form of association, approval or endorsement on our part where none exists; (c) you do not causes the Platform to be framed on any other website. We reserve the right to withdraw linking permission without notice.
Third party links
8.2 The Platform may contain internet addresses, links and/or hyperlinks to other websites, which are not operated or monitored by us. The links to other websites are for your convenience and we do not accept any responsibility or liability for enabling you to link to any other website, for the contents of any other website, for the security of any other website, or for any consequence of your acting upon the contents of such website. No endorsement or approval of any third parties or their advice, opinions, information, products or services is expressed or implied by any information on the Website. It is your responsibility to check the terms and conditions and privacy policies which are applicable to such other third party websites.
9. OUR RESPONSIBILITY
Our responsibility for loss or damage suffered by you if you are a consumer (i.e. Funder)
9.1 We are responsible to you for foreseeable loss and damage caused by us. If we fail to comply with these Terms, we are responsible for loss or damage you suffer that is a foreseeable result of our breaking this contract or our failing to use reasonable care and skill, but we are not responsible for any loss or damage that is not foreseeable. Loss or damage is foreseeable if either it is obvious that it will happen or if, at the time the contract was made, both we and you knew it might happen, for example, if you discussed it with us during the sales process.
9.2 We do not exclude or limit in any way our liability to you where it would be unlawful to do so. This includes liability for death or personal injury caused by our negligence or the negligence of our employees, agents or subcontractors; for fraud or fraudulent misrepresentation; for breach of your legal rights in relation to the products; of satisfactory quality; fit for any particular purpose made known to us; supplied with reasonable skill and care.
9.3 When we are liable for damage caused by defective digital content. If defective digital content which we have supplied damages a device or digital content belonging to you and this is caused by our failure to use reasonable care and skill we will either repair the damage or pay you compensation. However, we will not be liable for damage which you could have avoided by following our advice to apply an update offered to you free of charge or for damage which was caused by you failing to correctly follow installation instructions or to have in place the minimum system requirements advised by us.
9.4 We are not liable for business losses. If you are a consumer (i.e. Funder) we only supply the products for to you for private use. If you use the products for any commercial, business or re-sale purpose our liability to you will be limited as set out below.
Our responsibility for loss or damage suffered by you if you are a business customer (i.e. Artist)
9.5 Nothing in these terms shall limit or exclude our liability for:
(a) death or personal injury caused by our negligence, or the negligence of our employees, agents or subcontractors (as applicable);
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or
(d) any matter in respect of which it would be unlawful for us to exclude or restrict liability.
9.6 Except to the extent expressly stated above all terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and sections 3 to 5 of the Supply of Goods and Services Act 1982 are excluded.
9.7 Subject to clause 9.5, we shall not be liable to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with any contract between us; and our total liability to you for all other losses arising under or in connection with any contract between us, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall be limited to fifty (50) percent of the fees and charges you have paid to us during the three months prior to any breach you are seeking to rely on.
10. NO ENDORSEMENT
10.1 Creatyve does not endorse any Community Member, Campaign or Project.
10.2 Creatyve is not acting as agent or otherwise on behalf of any Funder or Artist. Creatyve is not responsible for the acts and omissions of any Community Member, including but not only failure by an Artist to commence, continue or complete an Artwork Project.
10.2 Although we may from time to time agree to promote or help to raise awareness of certain Projects we will not be involved in the use of Contributions in relation to a Project, which are subject to the Artist and Funder Terms.
10.3 Any images on the Platform are intended to present a photographic representation but are not endorsed by Creatyve.
10.4 Although creatyve may, for transparency or fraud prevention or detection purposes, directly or through third parties, ask for verification of identity, we do not make any representations about, confirm, or endorse any User or their purported identity or background. We do not endorse or guarantee the credit rating of any Community Member.
10.5 Any references in the Platform to a Community Member being “registered” or “verified” or “connected” (or similar language) only indicate that the User has completed a relevant verification or identification process, and does not represent anything else. Any such description is not an endorsement, certification or guarantee by creatyve about any User, including of the User’s identity and whether they are trustworthy, safe or suitable. creatyve is not responsible for any damage or harm resulting from your interactions with other Users.
11. AVAILABILITY OF THE PLATFORM
11.1 Whilst we will make all reasonable efforts to ensure that the Platform is available at all times, creatyve does not guarantee, represent or warrant that your access to the Platform will be uninterrupted or error-free.
11.2 We are not responsible to Community Members if the Platform or our services are unavailable due to Events Outside of Our Control. Nothing in this section shall exclude any liability which may not be excluded by law.
11.3 We will always make all reasonable efforts to ensure that all user generated content (UGC) submitted by you to us will be secure. We cannot guarantee that the Platform and/or products and services will be free from loss, corruption, attack, viruses, ‘worms’, ‘trojan horses’ or other harmful components, or from interference, hacking or other security intrusions. You should be sure to back up your own system periodically to ensure that all content available to you and located within your Account, is available to you in the event of any loss or damage as creatyve reserves the right to remove or suspend all or any part of the content, at any time in accordance with these Terms.
Creatyve takes the security of your personal information seriously. We adhere to all applicable legal and regulatory obligations. You can find further details on how we treat your personal information here: [www.creatyve.uk/privacy].
13. INTELLECTUAL PROPERTY RELATING TO THE PLATFORM
13.1 We are the owner or the licensee of all intellectual property rights in the Platform, and in the material published on it. Those works are protected by copyright laws and treaties. All such rights are reserved.
13.2 Subject to your compliance with these Terms, creatyve grants you a limited, non-exclusive, non-transferable license, to (i) access and view any creatyve content on the Platform and (ii) access and view any user generated content to which you are permitted access, in each case solely in connection with your use of the Platform. You have no right to sublicense the license rights granted in this section.
13.3 Subject to your compliance with these Terms, creatyve grants you a limited non-exclusive, non-transferable license to download and install a copy of any mobile application on each mobile device or computer that you own or control and run such copy of the application solely for your own personal use.
13.4 Where we publish third party intellectual property that is publicly available, we will attribute it to its owner. Our status (and that of any identified contributors) as the authors of content on our Platform must always be acknowledged. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Platform or its content.
13.5 You may print off copies, and may download extracts, of any page(s) from the Platform. You must not modify the paper or digital copies of any materials you have printed off or downloaded in any way, and you must not use any illustrations, including (without limitation) our logo, photographs, video or audio sequences or any graphics separately from any accompanying text. You must not use any part of the content on the Platform for commercial purposes without obtaining a licence to do so from us or our licensors.
13.6 If you print off, copy or download any part of the Platform in breach of these Terms, your right to use the Platform will cease immediately and you must, at our option, return and/or destroy any copies of the materials you have made, and certify and/or evidence to us that you have done so to our reasonable satisfaction.
13.7 You must not:
a) Republish material from http://www.creatyve.uk
b) Sell, rent or sub-license material from http://www.creatyve.uk
c) Reproduce, duplicate or copy material from http://www.creatyve.uk
d) Redistribute content from creatyve (unless content is specifically made for redistribution).
13.8 You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit the Platform, or content, except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise except for the licenses and rights expressly granted in these Terms.
14. YOUR RIGHTS TO END THE CONTRACT
Ending the Contract with Us If You are a Funder
14.1 You can always end the contract with us and cease using the Platform at any time, if you change your mind or for any other reason. Where the law requires, you may be entitled to compensation, for example if you are ending the contract and we are at fault.
14.2 You should note that if you have Contributed to a Project you may have continuing rights and obligations in connection with your agreement with the relevant Artist.
Ending the Contract with Us If You are an Artist
14.3 You can end the contract by giving us notice in writing (including by email) in the circumstances set out below:
(a) you consider the Platform or our services are faulty or mis-described;
(b) we have told you about an upcoming change to the product or these terms which you do not agree to;
(c) we have told you about an error in the price or description of the product you have ordered and you do not wish to proceed;
(d) there is a risk that supply of the products may be significantly delayed because of events outside our control
(e) we have suspended supply of the products for technical reasons, or notify you we are going to suspend them for technical reasons, in each case for a period of more than
(f) you have a legal right to end the contract, for example because of something we have done wrong.
(g) you want to end the contract before it is completed where we are not at fault
14.4 Your rights when you end the contract will depend on what you have purchased from us, whether there is anything wrong with it, how we are performing and when you decide to end the contract. If you have already engaged our services by using the Platform for a Campaign you will not be entitled to any refunds of amounts already paid to creatyve and third party service providers on the platform and you will be required to pay any fees and charges and compensation to creatyve and any third party service providers for the services which are already engaged or completed or otherwise due under these Terms.
14.5 You should note that notwithstanding termination of these Terms with us, you may have continuing rights and obligations in connection with your agreement with the relevant Funders.
14.6 If you require confirmation from us that your contract has been terminated, please let us know by sending any email to [[email protected]]
14.7 If you cancel:
(a) you will no longer be provided with access to the Platform; and
(b) we may be entitled to receive any fees and charges for services provided up until the time you tell us that you have changed your mind or otherwise wish to end the contract with us.
14.8 Nothing in this section 14 shall affect your legal rights to end the contract with us and pursue any remedies that you may have under statute if we are at fault, except to the extent that such rights and remedies are validly excluded under these Terms.
15. OUR RIGHTS TO END THE CONTRACT
15.1 Circumstances in which we can Terminate. We may end the contract for services under these Terms and/or end your access to the Platform at any time if:
(a) you do not comply with these Terms;
(b) you do not make any payment to us when it is due and you still do not make payment within 5 days of us reminding you that payment is due; or
15.2 You must compensate us if you break the contract. If we end the contract in the situations set out in section 15.1 we will refund any money you have paid in advance for services on the Platform we have not provided but we may deduct or charge you for the net costs incurred as a result of your breaking the contract, including but not limited to an amount to compensate Funders for any amounts deducted from their Contribution by third party payment service providers.
15.3 We may withdraw the Platform. We may email you to let you know that we are going to stop providing the Platform. We will use reasonable efforts to let you know in advance of our stopping to provide the Platform.
16. CHANGES TO THESE TERMS OF SERVICE
Creatyve reserves the right, at its sole discretion, to modify the Platform or to modify these Terms, including the fees and charges, at any time, to reflect changes to our business or the services that we provide to you. We will post the modification on the Platform and/or provide you notice of the modification by email. We will also update the “Last Updated” date at the top of these Terms. Changes to the Terms will be effective at the time of posting. Your continued access or use of the Platform will constitute acceptance of the modified Terms. If the modified Terms are not acceptable to you, you should cease using the Platform and the products and services.
17. MAKING A COMPLAINT
If you have any questions or complaints about the product, please contact us. You can telephone our customer service team at +44 (0) 7982816879 or write to us at [email protected] We will endeavor to deal with your complaint promptly and resolve it using our best efforts. Our complaints handling process does not restrict and replace your legal rights under this contract or under statutory or common law.
18. OTHER IMPORTANT TERMS
18.1 We may transfer this agreement to someone else. We may transfer our rights and obligations under these Terms to another organisation. We will always endeavor to advise you if we plan to do this. If you are unhappy with the transfer you may contact us and we will refund you any payments you have made in advance for products or services not provided.
18.2 You need our consent to transfer your rights to someone else. You may only transfer your rights or your obligations under these Terms to another person if we agree to this in writing.
18.3 Nobody else has any rights under this contract. These Terms are between you and us. No other person shall have any rights to enforce any of its Terms. Neither of us will need to get the agreement of any other person in order to end the contract or make any changes to these Terms.
18.4 If a court finds part of these Terms illegal, the rest will continue in force. Each of the paragraphs of these Terms operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining paragraphs will remain in full force and effect.
18.5 Even if we delay in enforcing these Terms, we can still enforce it later. If we do not insist immediately that you do anything you are required to do under these Terms, or if we delay in taking steps against you in respect of any breach, that will not mean that you do not have to do those things and it will not prevent us taking steps against you at a later date. For example, if you miss a payment and we do not chase you but we continue to provide the services, we can still require you to make the payment at a later date.
19. APPLICABLE LAW & JURISDICTION
19.1 Which laws apply to this contract and where you may bring legal proceedings if you are a consumer. These terms are governed by English law and you can bring legal proceedings in respect of the Platform services in the English courts. If you live in Scotland you can bring legal proceedings in respect of the Platform services in either the Scottish or the English courts. If you live in Northern Ireland you can bring legal proceedings in respect of the Platform services in either the Northern Irish or the English courts.
19.2 Which laws apply to this contract and where you may bring legal proceedings if you are a business. If you are a business, any dispute or claim arising out of or in connection with a contract between us or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales and the courts of England and Wales shall have exclusive jurisdiction to settle any such dispute or claim.
20. CONTACT US
For media enquiries, please contact: [email protected]
For all other enquiries, please email: [email protected]
Copyright © 2018. Creatyve Limited. All Rights Reserved.
1. Summary of Terms. These terms set out the agreement (the “agreement”) between an Artist and each Funder in connection with the sale and purchase of Artwork Rights on the creatyve platform (“Platform”).
2. Artwork Rights. The Artist grants irrevocable rights (“Artwork Rights”) for a Funder to share in the proceeds of the first full sale of the Artwork (“Funder Share”), on and subject to this agreement.
3. Offer by Funders. Each contribution (“Contribution”) constitutes an offer (“Offer”) by the Funder to purchase the Artwork Rights in relation to an Artwork Project, as indicated on the Platform.
4. Acceptance by Artists. The Offer will be automatically accepted by the Artist on receipt of the Contribution, at which point the Artist and the Funder are deemed to enter into this agreement for the relevant Artwork Rights.
5. Sale of the Artwork. The Artist agrees to use all reasonable efforts to arrange a full sale of the Artwork. The Artist shall use all reasonable endeavours to achieve the maximum sale price for the Artwork, however there shall be no minimum guaranteed sale price.
6. Payment to Funders. Following a full sale of the Artwork, the Artist shall pay the Funder Share to the Funders via the payment service provider. The Platform charges a fee of 10% (plus VAT) if the Artwork is sold to another community member via the Platform. The payment service provider will also charge a fee for processing the payment. All such fees and charges will be deducted from the sale proceeds prior to payment to the Funders.
7. No Further Obligations. Following payment of the Funder Share in accordance with clause 6 above, the Artist shall have no further obligations to the Funder. All payments to Funders shall be made in GBP and any currency conversion (for example if the Artwork is sold in a currency other than GBP) is at the risk of the Funders.
8. Personal Contract. This agreement constitutes a personal obligation of the Artist to the Funder and shall not entitle the Funder to any ownership, security or any other rights to or in connection with the Artwork.
9. Risks. Contributing to an Artwork Project involves risks and Funders may not receive back their Contribution in full or at all. There is no guarantee of any returns by the Artist or the Platform. You should ensure you read the Risk Warnings on the artwork contribution page before making a Contribution to an Artwork Project.
10. Representations and Warranties. The Artist represents and warrants to the Funder on Completion Date and on each day until a full sale of the Artwork: a. Project. they will use all reasonable endeavors to complete the Project and create the Artwork by the Target Completion Date and will immediately notify the Funder, with reasons, if there is any anticipated delay or change to the Project. b. Sale. they will use all reasonable endeavors to arrange a Full Sale of the Artwork on Completion of the Project for the highest achievable price and will distribute the proceeds in accordance with this Artist Funder Contract. c. Title. they have good and marketable title to the Artwork and all the tangible and intangible rights (including all Intellectual Property Rights) therein, and the Artwork is legally and beneficially owned by them. Save for the Artwork Rights offered and accepted as part of the Campaign, there are no encumbrances over the Artwork or any part of it, and he/she has not agreed to create any encumbrances over the Artwork or any part of it, nor has he/she entered into and will not enter into any contract to sell all or part of the Artwork. d. Insolvency. they have not been declared bankrupt or made any arrangement with or for the benefit of his creditors or been the subject of an administration order. e. Convictions. they have not been convicted of any criminal offence (other than an offence under any road traffic legislation in the United Kingdom or elsewhere for which a fine or non-custodial penalty is imposed). f. Intellectual Property. they will own all intellectual property rights in the Artwork and none of the activities involved in the conduct of the Project have infringed or are likely to infringe any Intellectual Property Rights of any third party or constitute, have constituted or are likely to constitute any breach of confidence, passing off or actionable unfair competition in any jurisdiction. No such activities give or have given rise to any obligation to pay any royalty, fee, compensation or any other sum. g. Personal Data. they will not disclose any personal data relating to the Funders to any third party, except to the Platform or as required by law or regulation. h. Equal Terms. they will not vary the terms of this agreement with any Funder in a manner which is materially detrimental to the other Funders.
11. Termination. The Funder may terminate this agreement if the Artist breaches any of the terms and such breach, if capable of remedy, is not remedied within 10 days of the Funder first giving notice of the breach to the Artist. The Artist may terminate this agreement at any time prior to the end of the Campaign. On termination by either party in accordance with this clause 10, the Artist shall immediately: (a) repay the Contributions to the Funder (including an additional amount to cover any fees and charges such that the Funder receives their original Contribution in full) and (b) return or destroy any of the Funder’s personal information it holds.
12. No Assignment. This agreement is personal to the parties and neither party shall assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under this agreement without consent of the other party. No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorized representatives).
13. Third Party Rights. These Artist Funder Terms are between you and us. No other person shall have any rights to enforce any of the terms herein. Neither of us will need to get the agreement of any other person in order to end the contract or make any changes to this agreement.
14. Severability. Each of the paragraphs of this agreement operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining paragraphs will remain in full force and effect.
15. No Joint Liability. This agreement constitutes separate bilateral contract between the relevant Artist and each Funder. Neither the Artist nor the Funder shall have any joint liability under any other contract between the Artist and any other Funder in connection with the relevant Artwork.
16. Governing Law & Jurisdiction. The agreement between the Artist and each Funder (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales. Each of the Artist and Funder irrevocably agrees that the courts of England and Wales shall have non-exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the agreement between the Artist and each Funder.