STANDARD TERMS & CONDITIONS (CLICK-WRAP)
Effective Date: 4TH January 2016
PARTNERSHIP AGREEMENT: STANDARD TERMS AND CONDITIONS FOR SUPPLIER (The National Portrait Gallery)
1. Definitions and interpretation
1.1. In this Agreement the following words and expressions have the following meanings:
“the Agreement” means the Agreement between CultureLabel and the Supplier for the provision of the Services;
“Chargeback” means the charge made by CultureLabel when a payment due from a Customer is not made
or is reclaimed by the Customer;
“CultureLabel” means CultureLabel UK Limited registered in England and Wales under company registration
number 09258940 with its registered office at 17-19 Garway Road, London, W2 4PH;
“Customer” means a Prospective Customer who has applied for the purchase of Product
or ordered Product;
“Commission” means the commission payable by the Supplier to CultureLabel for the Services specified
in this Agreement and made up of the CPA Fee plus VAT.
“CPA” means cost per acquisition;
“CPA Fee” means the fee payable by the Supplier for Services provided on a CPA basis, inclusive of sales taxes
(if payable by customer) but exclusive of delivery costs. The initial CPA Fee is agreed in writing by email, and
CultureLabel may change the CPA Fee from time to time. In the event that the CPA Fee changes during the
term of this Agreement CultureLabel shall notify the Supplier and the Supplier shall have the option to
terminate the Agreement on 30 days written notice;
“CultureLabel Network” means, from time to time, the website or the network of websites, or other distribution
methods or channels, owned by, or partnered with, CultureLabel, through which the Product will be advertised,
including for the avoidance of doubt Third Party Publishers which have been approved by the Supplier;
“Intellectual Property Rights” means 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, trademarks, service marks, trade names, 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
“National Portrait Gallery” means the Board of Trustees of the National Portrait Gallery or National Portrait Gallery
Company Limited (whose registration number is 06015724);
“Order” means an order placed by a Customer or Prospective to purchase Product;
“Payment Processing Fees” means fees levied by a third party for facilitating a Payment Transaction
being 2.5% of the Price or otherwise as may be payable from time to time;
“Payment Transaction” means in respect of Product payment received by CultureLabel through its online
“Price” means the sale price to the Customer including delivery, packaging and VAT if chargeable by the Supplier
as published on the CultureLabel Network;
“Product” means the Supplier’s product appearing on the CultureLabel Network made available for purchase
by a Prospective Customer or Customer through CultureLabel;
“Prospective Customer” a person who has placed an order for Product with CultureLabel.
“Prospective Order” an order placed by a Prospective Customer;
“Services” means the services provided by CultureLabel to the Supplier under the Agreement, as set out at Clause 3.1 below;
“Start Date” means the date on which the first Product is advertised on the CultureLabel Network;
“Supplier” means the person, company or organisation who makes Product available through CultureLabel
or who has applied for registration as a supplier.
“Technology” means the technology employed by CultureLabel to provide the Services;
“Term” means the term of this Agreement;
“Terms and Conditions” means these terms and conditions of CultureLabel as set out in this Agreement;
“Third Party Publisher” means any third party which is selected by CultureLabel and approved by the Supplier to be licensed to promote the goods and/or services of the Supplier on its website.
1.2. The headings in this Agreement shall not affect its interpretation.
1.3. References in the Agreement to any statute or statutory provision include a reference to that statute or statutory provision as from time to time amended, extended or re-enacted.
1.4. Throughout the Agreement, words importing the singular number shall include the plural and vice versa, and words importing the masculine shall include the feminine and neuter and vice versa.
2.1. To use the Services, you, the person providing the Supplier’s details, must complete the registration process. As part of the application, you must provide us with your and the Supplier’s legal name, address, phone number and e-mail address.
2.2. By providing your details and accepting this Agreement when you complete the registration process on the CultureLabel form you, the person providing those details, warrants to CultureLabel that you have the right, authority and capacity to contract on behalf of the Supplier and commit the Supplier to the terms of this Agreement.
3.1. The Supplier appoints CultureLabel to provide the following services during the Term:
3.1.1. to advertise Product on the CultureLabel Network;
3.1.2. to provide the Technology to facilitate Customers’ purchase of Product; and
3.1.3. to act for the Supplier on the sale of Product.
3.2. CultureLabel agrees to provide the Services in consideration for the payment by the Supplier to CultureLabel of the Commission and otherwise subject to the terms and conditions set out in this Agreement.
3.3. Product shall be advertised on the CultureLabel Network subject to a positive assessment from CultureLabel. CultureLabel reserves the right to refuse to advertise Product or remove Product from the CultureLabel Network at any time.
3.4. The parties agree that CultureLabel is acting as a contractor to the Supplier and not as an agent or employee of the Supplier.
3.5. For the avoidance of doubt, the parties agree that when a Customer enters into a contract for the purchase of Product that contract is entered into between the Customer and the Supplier.
The Supplier grants to CultureLabel a worldwide, non-exclusive, royalty-free, right and license to extract, use, publish and advertise on the CultureLabel Network (and to license members of the CultureLabel Network (including Third Party Publishers which have been approved by the Supplier) to use publish and advertise) Product, text and images concerning Product, the Supplier’s name, logo and any other brand features and Intellectual Property of the Supplier (as agreed by the Supplier from time to time) for the purpose of providing, advertising and promoting the Services. CultureLabel acknowledge that from time to time the National Portrait Gallery will retail books on the CultureLabel Network and in this case CultureLabel will be restricted to only displaying the book covers and potentially a look inside feature but will not have extensive use of images from within the book.
5. Obligations of the parties
5.1. For the duration of the Term, CultureLabel will:
5.1.1. arrange for the advertising of Product through the CultureLabel Network;
5.1.2. include the Supplier’s name, logo and other features on the CultureLabel Network;
5.1.3. include a reference on the CultureLabel Network making it clear to Customers that their
purchase of a Product is subject to the CultureLabel’s terms and conditions for sale.
5.2. In consideration for the provision of the Services, Commission will be payable by deduction by CultureLabel
when a Payment Transaction takes place. CultureLabel will pay the Supplier the Price (less the CPA fee, Transaction
Fees and any other monies due to CultureLabel pursuant to the terms of this Agreement) to the Supplier’s bank
account in the third week of the month following the month of receipt of payment or if later the third week of the
following month, following dispatch of Product.
5.3. For the duration of the Term the Supplier will:
5.3.1. ensure that the information concerning Product, the Price and its availability is, at all times, complete, accurate and up-to-date;
5.3.2. submit Product details to CultureLabel in accordance with the technical specifications provided by CultureLabel, either in the form of manual upload, word document, XML feeds over HTML or Comma Separated Values (CSV) files or such other medium as CultureLabel notifies the Supplier from time to time, to enable proper delivery and display of the Product details (including its price, its availability and delivery charges);
5.3.3. only use and/or access the CultureLabel Network in a way that it has been permitted under the Agreement;
5.3.4. refrain in its own right from, using, altering, accessing or otherwise dealing with the CultureLabel Network in any unauthorised, improper, incomplete and/or inadequate way and refrain from permitting or enabling any other third party to do likewise;
5.3.5. ensure that Product complies in full with all relevant local and national laws, regulations or codes of conduct, including, without limit, the Consumer Rights Act 2015.
5.3.6. comply with its obligations under the Agreement;
5.3.7. maintain product liability, and other third party liability and (where appropriate) negligence insurance cover in respect of its liabilities arising out of or connected with this Agreement, such cover to be with an insurance company of repute;
5.3.8. comply with its obligations under the Data Protection Act 1998 in respect of personal data processed by it under or by virtue of this Agreement.
5.3.9. take all steps necessary to ensure that the Suppliers dealings do not cause CultureLabel to breach its obligations under the Contracts (Information, Cancellation and Additional Charges) Regulations 2013 and the Consumer Rights Act 2015.
6. Orders and Sale of Goods
6.1. On receiving a Prospective Order for Product CultureLabel will:
6.1.1. acknowledge receipt of the Prospective Order and act otherwise in accordance with the CultureLabel
General Terms and Conditions;
6.1.2. notify the Supplier through the provided technology;
6.1.3. on receipt of the tracking code form the supplier the customer and CultureLabel will be notified that the order has been received and is being dealt with
6.1.4 ensure that the technology is working to notify a Customer when the Supplier has confirmed this has been has been dispatched;
6.1.5. make payment of the Price to the Supplier in accordance with Clause 5.2 above;
6.2 The Supplier will:-
6.2.1. on receiving notification from CultureLabel that a Prospective Order for Product has been received the Supplier will confirm the availability of the Product and if the product is available;
6.2.2. notify CultureLabel through the technology provided that the Prospective Order has been accepted by amending the Order status to ‘accepted’ by inputting the tracking number using the Technology;
6.2.3. on dispatch of the Product deliver to the Customer an invoice including any VAT where appropriate.
6.3. CultureLabel will not accept any Order without the Supplier having confirmed that the Product is available.
7. Supplier’s Obligations
7.1. By listing an item for sale, the Supplier represents a warrants to CulturLabel that the Supplier is the true owner of the Product or is properly authorised to sell the Product by the true owner and is able to transfer good title to the Product free from any third party claims, liens or encumbrances; and that the listing is accurate, current and complete and is not misleading or otherwise deceptive.
7.2. The Supplier agrees to open, keep open during the Term and use an online payment account in order for sums to be transferred between CultureLabel and the Supplier. In the event that the online payment service provider changes during the term of this Agreement CultureLabel shall notify the Supplier and the Supplier shall have the option to terminate the Agreement on 30 days written notice.
7.3. The Supplier warrants that the sale or distribution of the Product is not in breach of applicable law . This responsibility includes, but is not limited to, ensuring that:
7.3.1. any Products sold are safe, and where required by applicable law, bear a “CE” mark;
7.3.2. any Products sold are appropriately packaged and labelled as required by law;
7.3.3. any Products sold otherwise comply with all applicable law regarding their sale. The Supplier will audit the Products that they sell on a regular basis (at least monthly) to ensure ongoing compliance with this obligation. The Supplier must also advise CultureLabel of any age or other restrictions that apply to the sale of any Products.
7.4. The Supplier covenants that any Products submitted to the CultureLabel Network shall not violate any of the following:
7.4.1. be false, inaccurate or misleading;
7.4.2. be fraudulent or involve the sale of counterfeit, stolen or infringing items;
7.4.3. infringe or misappropriate any third party’s copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy;
7.4.4. violate any law, statute, ordinance or regulation (including those governing privacy, publicity, export control, consumer protection, intellectual property, gambling, unfair competition, antidiscrimination, criminal activities or false advertising);
7.4.5. be defamatory, libellous, offensive, unlawfully threatening or harassing, or advocating, promoting or providing assistance involving violence, significant risk of death or injury, or other unlawful activities;
7.4.6. be obscene or contain child pornography;
7.4.7. contain any viruses, Trojan horses, worms, time bombs, cancelbots, easter eggs or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information;
7.4.8. be harmful or potentially harmful to the CultureLabel Server structure as determined in CultureLabel’s discretion, including without limitation overloading the CultureLabel technical infrastructure.
7.5. The Supplier agrees not to publish, offer for sale, sell or otherwise distribute any of the following items on, through or connected with the CultureLabel Network:
7.5.1. Blood, bodily fluids or body parts;
7.5.2. Burglary tools;
7.5.3. Counterfeit items;
7.5.4. Illegal drugs and drug paraphernalia;
7.5.5. Fireworks, destructive devices and explosives;
7.5.6. Identity documents, personal financial records or personal information (in any form, including mailing lists);
7.5.7. Lottery tickets, sweepstakes entries or slot machines;
7.5.8. Obscene material or child pornography;
7.5.9. Offensive material or hate speech;
7.5.10. Police badges or uniforms;
7.5.11. Prescription drugs or devices;
7.5.12. Stocks or other securities;
7.5.13. Stolen property;
7.5.14. Tobacco products; or
7.5.15. Alcoholic products.
7.6. The Supplier further agrees not to publish, offer for sale, sell or otherwise distribute any of the following items on through or connected with the CultureLabel Network, except as permitted by, and in full compliance with, all applicable local and national laws, regulations or codes of conduct:
7.6.1. Digital files that you do not own or have all necessary rights or license to store, display, perform, copy and distribute;
7.6.2. Event tickets;
7.6.3. Food items;
7.6.4. Hazardous, restricted or perishable items;
7.6.6. Used clothing or bedding;
7.6.7. Adult items or pornography;
7.6.8. Content or material that is infringing or otherwise violates the law, including: music;
movies; e-books; games; videos; photographs and software; or
7.6.9. Weapons and other related items, including, without limitation, explosives, firearms, firearm parts and magazines, ammunition, BB and pellet guns, tear gas, stun guns, switchblade knives and martial arts weapons.
8.1. The Technology facilitates the placing of orders for Products listed on the CultureLabel Network. A Payment Transaction is deposited to a dedicated CultureLabel payment account, and funds are transferred to the Supplier’s designated online payment account (“Supplier’s Payment Account”) less the Commission, the Payment Processing Fees, applicable VAT, any refunds or Chargebacks due from the Supplier (calculated by reference to Clause 9 below) and any other monies due to CultureLabel pursuant to the terms of this Agreement.
8.2. All transactions and balances for a given 30-day period will be reflected in CultureLabel’s monthly
invoice to the Supplier.
8.3. The records of Payment Transactions recorded by CultureLabel using the Technology will be the basis for calculation of Commissions due and shall be conclusive and binding on the parties in the absence of manifest error.
8.4. All sums payable under this Agreement (whether payable to CultureLabel or to the Supplier) will (unless otherwise agreed as per clause 8.1) be made in pounds sterling and are exclusive of VAT or any other applicable sales tax which will be payable in addition. All payments made by Customers will include VAT.
8.5. If either party fails to pay when due any amount payable by it under the Agreement, its liability will be increased to incur interest on the overdue amount from the due date for payment to the date of actual payment at the rate of two percent per annum above the base rate from time to time of Barclays Bank plc. Such interest will accrue on a daily basis until full payment of the overdue amount is received by the other party in cleared funds.
8.6. CultureLabel will attempt to resolve any dispute directly with the Customer. CultureLabel may seek but is not obliged to consult with the Supplier when attempting to resolve a dispute. The Supplier waives any rights with respect to the Services when dispatching to an address other than that provided by CultureLabel.
8.7. As a security measure, CultureLabel may, but is not required to, impose transaction limits on some or all Customers and Suppliers relating to the value of any transaction or disbursement, the cumulative value of all transactions or disbursements during a period of time, or the number of transactions per day or other period of time. CultureLabel will not be liable to any Supplier: (i) if it does not proceed with a transaction or disbursement that would exceed any limit established by CultureLabel for a security reason; or (ii) if CultureLabel permits a Customer to withdraw from a transaction because a Payment Transaction is unavailable following the commencement of a transaction.
8.8. CultureLabel may earn interest or other compensation from the balances in its bank accounts that result from the timing difference between CultureLabel being paid by a Customer and its payment of the Payment Transaction to the Supplier. CultureLabel reserves the right to seek reimbursement from the Supplier if it provides a refund to the Customer, the Supplier cannot promptly deliver the goods, it discovers erroneous or duplicate transactions or it is entitled to a Chargeback. CultureLabel may obtain such reimbursement by deducting from future payments owed to the Supplier, reversing any transfer to the Supplier's bank account, or seeking such reimbursement from the Supplier by any other lawful means.
9. Refunds and Chargebacks
9.1. If the supplier cannot dispatch a Product within the 14 days from the confirmed sale date or the Product is faulty or damaged the Supplier must, if they have received payment from CultureLabel, provide a full refund directly to CultureLabel of the monies received.
9.2 In the event that CultureLabel is entitled to a refund in accordance with Clause 9.1 or for any other reason but the Supplier does not refund CultureLabel, CultureLabel will refund the Customer itself and the amount of the refund given to the Customer will be deducted from any monies due from CultureLabel to the Supplier.
9.3 If no such monies are due within a reasonable period the refund will be reimbursed to CultureLabel from the Supplier within 14 days of invoice.
9.4. In the event that a Customer’s payment to CultureLabel is the subject of a Chargeback at any time or for any reason the full amount of the sum remitted to the Supplier’s Payment Account in respect of any Product to which the Chargeback relates will be recoverable from the Supplier and will be deducted from the balance of monies due from CultureLabel to the Supplier and if no monies are due or otherwise outstanding to the Supplier CultureLabel will issue a Chargeback invoice to the Supplier for the monies owed and the Supplier will reimburse CultureLabel within 14 days of the date of the invoice.
9.5. The obligations to reimburse contained in this clause 9 will survive the termination of this Agreement.
10. Data Protection
10.1. As part of the process of supplying Product the Supplier will obtain personal information, including email address and shipping information, from a Customer or Prospective Customer. Without obtaining prior permission from the Customer or Prospective Customer, this personal information shall only be used by the Supplier for that transaction. CultureLabel has not granted the Supplier a licence to use the information for unsolicited commercial messages. Without limiting the foregoing, without express consent from the Customer, the Supplier is not licensed to add any Customer or Prospective Customer to their email or physical mail list.
10.2. CultureLabel will provide opportunities in both the CultureLabel Network for Customers and Prospective Customers to opt-in to receiving commercial messages from CultureLabel.
11. Access to Records
Both parties will be given access to view the records relating to the Agreement of the other party so as to audit the accuracy of the records reported to the other party. Reasonable notice must be given to the other party.
12. Term and Termination
12.1. This Agreement will come into force on the Start Date and will continue until terminated in accordance with its terms.
12.2. This Agreement will be terminable by either party giving the other written notice at any time.
13. Warranties and indemnities
13.1. The contract for the supply of Product will be between the Customer and the Supplier.
13.2. The Supplier agrees to indemnify and hold harmless CultureLabel, its officers, employees and directors from and against any and all claims, demands, obligations, causes of action and lawsuits and all damages, liabilities, fines, judgments, costs and expenses associated therewith (including the payment of legal fees and disbursements) (“Damages”) to the extent that Damages arise out of:
13.2.1. any claim made by any Customer, Prospective Customer, supplier, contractor, regulatory body or any other third party relating to the supply (or non-supply or delayed supply) of Product, (including but not limited to where a Customer or other third party has suffered personal injury or damage or where there has been a misdescription of the Product) or the Product is of unsatisfactory quality or not fit for purpose); or
13.2.2. any action or claim relating to an infringement of Intellectual Property Rights of any third party resulting from the supply by the Supplier to CultureLabel (or extraction from the Supplier’s website by CultureLabel) of any data images or other information ; or
13.2.3. the acts or omissions of the Supplier, its employees, officers or directors; or
13.2.4. any other breach of this Agreement by the Supplier.
The obligations to indemnify contained in this clause 13 will survive the termination of this
14.1. The Technology is provided by CultureLabel on an ‘as is’ basis, with no warranties being given from CultureLabel as to service ‘up time’, use, data security, accuracy and reliability. However CultureLabel will endeavour to ensure that the Service is operated professionally and that the Service is available at all times (save where prevented by circumstances beyond its reasonable control). CultureLabel or its licensor(s) is the owner of the Technology and of all intellectual property rights therein. The Supplier shall only use the Technology for the purpose stated in the Agreement and shall acquire no intellectual property rights to the Technology and agrees that it will not (and will not permit any third party to) copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the Technology (except with the prior written consent of CultureLabel).
14.2. Nothing in this Agreement will exclude or limit a party’s liability:
14.2.1. for death or personal injury resulting from the negligence of that party; or
14.2.2. in respect of any fraud or any statements made fraudulently by or on behalf of that party;
14.2.3. to the extent which it is otherwise prohibited from being excluded or limited by law.
14.3. Subject to clause 14.1, neither party will be liable to the other under the express terms of the Agreement or by reason of any representation or any implied warranty, condition or other term or in tort (including negligence) or any duty at law, for any indirect or consequential loss or damage, or for any monetary or economic loss or for any loss of profit, loss of use, loss of contracts, loss of business, depletion of goodwill, costs, expenses or claims for consequential compensation whatsoever which arise out of or in connection with this Agreement.
14.4. In respect of any liability not falling within clause 13, and subject to clauses 14.1 and 14.2.3, and excluding liability to pay any Commission, each party’s maximum aggregate liability to the other howsoever arising out of or in connection with this Agreement in any calendar month, whether in contract, tort or otherwise (including negligence), and whether or not it was reasonably foreseeable or was actually in the contemplation of the parties at the time of execution of this Agreement, will be limited to an amount equal to the Commissions paid or owed to CultureLabel hereunder by the Supplier in the previous twelve months, excluding VAT.
15. Restricted information
15.1. CultureLabel acknowledge that the National Portrait Gallery are obliged to comply to the Freedom of Information Act 2000.
Under the terms of the Act, anyone can request information from The National Portrait Gallery ,although the request must made be in writing (letter or e-mail). They have the right to be told whether the information exists and to receive the information, if it is not exempt from disclosure, where possible in the manner requested. CultureLabel will support the National Portrait Gallery in releasing information that the National Portrait Gallery have access to defined in the terms of this agreement. To clarify all customer data and information is not available for disclosure.
16. Dispute Resolution
16.1. In the event the parties are unable amicably to resolve any dispute arising, the parties may on the written request of either party ("the ADR Request") agree in writing to enter into an alternative dispute resolution procedure with the assistance of a mediator agreed by the parties or, in default of such agreement within 10 working days of receipt of the ADR Request, appointed by the Centre for Effective Dispute Resolution, 70 Fleet Street, London EC4Y 1EU (the “Alternative Dispute Resolution Procedure”).
16.2. Recourse to this Alternative Dispute Resolution Procedure shall be binding on the parties as to submission to the mediation but not as to its outcome.
16.3. The parties shall bear their own legal costs of this Alternative Dispute Resolution Procedure, but the costs and expenses of mediation shall be borne by the parties equally.
16.4. While the Alternative Dispute Resolution Procedure is in progress and any party has an obligation to make a payment to another party or to allow a credit in respect of such payment, the sum relating to the matter in dispute shall be paid into an interest bearing deposit account to be held in the names of the relevant parties at a clearing bank and such payment shall be a good discharge of the parties' payment obligations under this Agreement.
16.5. Following resolution of the dispute, whether by mediation or legal proceedings, the sum held in such account shall be payable as determined in accordance with the mediation or legal proceedings, and
the interest accrued shall be allocated between the parties pro rata according to the split of the principal sum as between the parties.
17.1. The respective addresses for service of notices under this Agreement shall be as set out at the beginning of this Agreement provided that either party may by written notice to the other substitute another address in England which shall then become the notice address.
17.2. Notices and other communications under this Agreement shall be made by first class prepaid mail, either recorded delivery or registered (and by air mail where the address of the recipient is outside the United Kingdom), addressed to the recipient at its notice address and will be deemed to have been communicated only upon the date of actual delivery.
CultureLabel may modify any of the terms and conditions contained in this Agreement at any time and in our sole discretion by, at least 7 days prior to the effective date of the modification, sending a notification to the Supplier’s email address as provided during registration. The Supplier may during that 7-day period, as sole recourse, notify us of any objections to the modifications and, in the event of failing to resolve this, your account will automatically terminate on the effective date of the modification to which you objected. The continued participation of the Supplier following the expiry of the period of 7 days following notification will constitute their binding acceptance of the change.
Each party shall be responsible for all of its own costs incurred in the performance of its obligations under this
Each party warrants to the other that it has and will continue to have full power and authority to execute, deliver and perform its obligations under this Agreement.
The Agreement shall not be assigned or transferred (nor the performance of any obligations hereunder sub- contracted) by either party except with the written consent of the other.
22. Choice of law & jurisdiction
The Agreement shall be governed by and construed in accordance with English law and each party agrees to submit to the non-exclusive jurisdiction of the English courts as regards any claim or matter arising under this Agreement.