Terms & Conditions - Commissioner
These are the terms and conditions (the “Agreement”) on which you agree to use the online service which connects you to Creatives (as defined below) provided via www.creative-commission.com (the “Website”) (the “Service”), so that you may engage them offline to provide you with creative services. The Service is provided by Three Lanes Limited, a company registered in England and Wales with company number 087765797 whose registered office is at 141 Wardour Street, London W1F 0UT (the “Company”).
If you wish to use the Service, please click the “I Accept” button below to acknowledge acceptance of the terms set out in this Agreement. This Agreement will then govern the relationship between you and the Company and any use you make of the Service.
If you do not accept the terms set out in this Agreement, you may not register to use the Service.
The definitions and rules of interpretation in this clause apply in this Agreement.
Brief: a description of the services required by you as listed via the Service.
Brief Materials: the data, photos, videos and all other materials uploaded by you to the Website via the Service to form part of a Brief.
Business Day: any day which is not a Saturday, Sunday or public holiday in the UK.
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or is Confidential Information pursuant to clause 7.
Creative: a party that could potentially provide you with creative services with whom you can be connected via the Service.
Effective Date: the date you indicate acceptance of this Agreement by clicking the “I Accept” button.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Portfolio: a profile of the services which a Creative is able to provide to you as listed via the Service.
Term: the effective term of this Agreement.
Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
Subject to you registering to use the Service in accordance with the instructions set out on the Website and abiding by the restrictions set out in this clause 2 and the other terms and conditions of this Agreement, the Company hereby grants to you a non-exclusive, non-transferable right to use the Service (including accessing Portfolios and liaising with Creatives) during the Term solely for your personal use.
You undertake that you shall keep secure and confidential your password in relation to your use of the Service.
You shall not access, store, distribute or transmit any Virus, or any material during the course of your use of the Service that:
is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
facilitates illegal activity;
depicts sexually explicit images;
promotes unlawful violence;
is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
is otherwise illegal or causes damage or injury to any person or property;
and the Company reserves the right, without liability or prejudice to its other rights to terminate your access to the Service on without prior notice should you breach any provision of this clause.
You shall not, during the Term:
access all or any part of the Service in order to build a product or service which competes with the Service; or
use any automated screen scraping system or software to extract data from the Service or the Website for commercial purposes; or
license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Service; or
attempt to obtain, or assist third parties in obtaining, access to the Service, other than as provided under this clause 2.
You shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Service and, in the event of any such unauthorised access or use, promptly notify the Company.
You warrant that you own all right, title and interest in and to all of the Brief Materials and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Brief Materials.
By uploading the Brief Materials to the Website, you acknowledge that you are granting to the Company a limited, non-exclusive, royalty free, worldwide licence to use and modify such Brief Materials and all proprietary marks, designs and other rights contained within them which includes, without limitation, the right to present such Brief Materials to Creatives.
In the event of any loss or damage to Brief Materials, your sole and exclusive remedy shall be for the Company to use reasonable commercial endeavours to restore the lost or damaged Brief Materials from its latest back-up of the same. The Company shall not be responsible for any loss, destruction, alteration or disclosure of Brief Materials caused by the Company or any third party. You shall be responsible for making appropriate back-ups of all Brief Materials.
4 COMPANY OBLIGATIONS
The Company undertakes that the Service will be provided with reasonable skill and care. However, the Company:
does not warrant that your use of the Service will be uninterrupted or error-free; or that the Service or any information obtained by you through the Service (including, without limitation, the content of Portfolios) will meet your requirements; and
is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and you acknowledge that the Service may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
The undertaking at clause 4.1 shall not apply to any use of the Service contrary to the terms hereunder or to the extent of any non-conformity which is caused by use of the Service contrary to the Company's instructions, or any modification or alteration of the Service by any party other than the Company or the Company's duly authorised contractors or agents.
5 YOUR OBLIGATIONS
You hereby warrant and undertake that you shall:
provide the Company with:
a true and accurate description of the services required by you in each Brief;
all necessary co-operation in relation to this Agreement; and
all necessary access to such information as may be required by the Company;
in order to provide the Service;
comply with all applicable laws and regulations with respect to your activities under this Agreement; and
be solely responsible for procuring and maintaining your network connections and telecommunications links from your systems to the Website, and all problems, delays, delivery failures and all other loss or damage arising from or relating to your network connections or telecommunications links or caused by the internet.
6 PROPRIETARY RIGHTS
You acknowledge and agree that the Company and/or its licensors own all Intellectual Property Rights in the Service. Except as expressly stated herein, this Agreement does not grant you any rights to, or in, the Intellectual Property Rights in the Service or any other rights or licences in respect of the Service.
The Company confirms that it has all the rights in relation to the Service that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.
Each party may be given access to Confidential Information by the other party in order to perform its obligations under this Agreement. A party's Confidential Information shall not be deemed to include information that:
forms part of your Brief Materials;
is or becomes publicly known other than through any act or omission of the receiving party;
was in the other party's lawful possession before the disclosure;
is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
is independently developed by the receiving party, which independent development can be shown by written evidence; or
is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
Each party shall hold the other's Confidential Information in confidence and, unless required by law, not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the implementation of this Agreement.
Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.
Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
This clause 7 shall survive termination of this Agreement, howsoever arising.
You shall defend, indemnify and hold harmless the Company and Creatives against claims, liabilities, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with:
any breach of this Agreement by you;
any claim made against the Company for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of or in connection with your provision of Brief Materials; and
any claim made against the Company in relation to any breach of applicable data protection and privacy laws by you arising out of or in connection with your use of the Service.
9 LIMITATION OF LIABILITY
This clause 9 sets out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to you:
arising under or in connection with this Agreement;
in respect of any use made by you of the Service or Website or any part thereof; and
in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.
You acknowledge that the Company in neither responsible nor liable for the terms of your engagement of any Creative and the Company makes no warranty or representation that a Creative will be able to provide the services as described in its Portfolio or match your specific requirements and your entry into a contract for services with a Creative shall not give rise to any right or claim against the Company.
Except as expressly and specifically provided in this Agreement:
you assume sole responsibility for results obtained from your use of the Service. the Company shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Company by you in connection with the Service (including, for the avoidance of doubt, your Brief Materials) or any actions taken by the Company at your direction;
all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement; and
the Service is provided to you on an "as is" basis.
Nothing in this Agreement excludes the liability of the Company:
for death or personal injury caused by the Company's negligence; or
for fraud or fraudulent misrepresentation.
Subject to clause 9.4:
the Company shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement;
the Company shall not be liable for any claim arising in relation to the terms of your engagement of a Creative for the provision of services; and
the Company's total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the total aggregate sum of fees for the Service received by the Company from Creatives during the 12 months immediately preceding the date on which the claim arose.
10 TERM AND TERMINATION
This Agreement shall, unless otherwise terminated as provided in this clause 10, commence on the Effective Date and shall continue, unless:
either party terminates it on giving not less than 30 days’ written notice to the other party; or
otherwise terminated in accordance with the provisions of this Agreement.
Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate this Agreement without liability to the other if the other party:
commits a material breach of any of the terms of this Agreement and (if such a breach is remediable) fails to remedy that breach within 15 days of that party being notified in writing of the breach; or
becomes insolvent or if an order is made or resolution is passed for the winding up of the other party (other than voluntarily for purposes of solvent amalgamation or re-construction), or if an administrator, administrative receiver or receiver is appointed in respect of the whole or part of the other party’s assets or business, or if the other party makes any composition with its creditors or takes or suffers any analogous action in consequence of debt.
On termination of this Agreement for any reason:
all licences granted under this Agreement shall immediately terminate;
subject to clause 10.3.3, each party shall return and make no further use of any equipment, property and other items (and all copies thereof) belonging to the other party;
you are required to ensure that you download all Brief Materials uploaded to the Service within 5 Business Days of the effective date of termination of this Agreement, otherwise the Company may destroy or otherwise dispose of any of the Brief Materials in its possession; and
the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.
11 FORCE MAJEURE
The Company shall have no liability to you under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Company or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that you are notified of such an event and its expected duration after the Company becomes aware thereof.
A waiver of any right under this Agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.
Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by law.
If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
14 ENTIRE AGREEMENT
Each of the parties acknowledges and agrees that in entering into this Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this Agreement or not) relating to the subject matter of this Agreement, other than as expressly set out in this Agreement.
You shall not, without the prior written consent of the Company, assign, transfer, charge, sub-contract or deal in any other manner with all or any of your rights or obligations under this Agreement.
The Company may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
16 NO PARTNERSHIP OR AGENCY
Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
17 THIRD PARTY RIGHTS
This Agreement does not confer any rights on any person or party (other than the parties to this Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
Any notice required to be given under this Agreement shall be in writing. All notices shall be deemed to be properly served if they have been sent by e-mail to the address provided by you (which you undertake to update from time to time as necessary) on the Effective Date (in the case of notice given to you by the Company) or to email@example.com (in the case of notice given to the Company by you).
Any notice shall be deemed to be properly served on confirmation of transmission of the e-mail to the e-mail addresses referred to in clause 18.1 above.
19 GOVERNING LAW AND JURISDICTION
This Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with, the law of England.
The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).