Wisque (the “Provider”, also referred to as ‘we’, ‘us’ and ‘our’) is a company registered in England and Wales under registration number 09257232 under the name Wisque Ltd, of trading address 2 Sovereign Way, Tonbridge TN9 1RH, registered address The Old Stables, Eridge Park, Tunbridge Wells, Kent TN3 9JT. Our VAT registration number is GB 287907252.
When we refer to "Wisque" in this Contract, we mean us, the Wisque Website (available at https://wisque.com), the App and/or the Services, according to the context.
Wisque may modify these Terms from time to time and such modifications shall be effective upon posting to the Website. The changes to these Terms may be made without advance notice to you, and you agree to be bound by any changes if you continue to use the Website after such changes are posted.
Wisque reserves the right to accept or reject any application for provision of the Wisque Services. Our decision will be based on suitability of the products for which an artist/photographer applies for the Wisque Services, and their potential for integration into our portfolio of products.
Your use of the Website and or the Services shall be deemed to be your agreement to abide by the Terms.
1. Your Wisque account
1.1 This Contract shall commence on the date of your acceptance of these Terms and shall continue for an initial period of 12 months (“Initial Term”) at which point it will be renewed automatically for successive periods of 12 months (each 12 month period being a “Renewal Period”).
1.2 In order to have your Products featured for sale on the Wisque Website, you will need to open a Client Account.
1.3 You represent and warrant that:
1.3.1 all registration information you submit is truthful and accurate;
1.3.2 you will maintain the accuracy of such information (including your email address);
1.3.3 you are 18 years of age or older; and
1.3.4 your use of the Services does not violate any applicable law or regulation.
1.4 You agree to keep the log-in credentials of your Client Account confidential as you will be solely and fully responsible for all activities that occur under your Client Account (including for any representations, warranties and undertakings made therein), whether or not specifically authorised by you.
1.5 You authorise us to use, store or otherwise process any personal information which relates to and/or identifies you, including, but not limited to, your name and address, to the extent reasonably necessary to provide the Services which are available through the Wisque Website by us, our partners, successors (including the purchaser of the whole or part of our business), associates, sub-contractors or other third parties.
1.6 You agree to the disclosure of your name on the public profile page of the Wisque Website, together with any other information and content that you choose to publicly disclose.
1.7 You must setup and enable a link to Wisque’s payment processing services provider as set out by us for the operation of the Services available at the Wisque Website.
1.8 You may request to close your Account during the Initial Period by giving Wisque not less than three months’ notice in writing, but you agree that we may continue to fulfil any orders already placed by Customers ordering your items. Following closure, all information relating to your account shall be removed from the Wisque Website.
2 Submission of content
2.1 By submitting your content you agree to grant to us a fully paid-up, worldwide, non-exclusive, royalty-free licence during the term of this Contract of the copyright and other Intellectual Property rights subsisting in the Products for the sole purpose of us providing the Services, to produce prints and other items of your Products as ordered by Customers on the Wisque Website https://wisque.com; and to display and reproduce your Products for such use by us as may be required for the promotion of your Products and of the Wisque Services.
2.2 You represent and warrant to us that:
2.2.1 you will not submit any material to the Services for the purposes of selling the Products on the Services, or creating a template on the Services, or for any other purpose, unless you are the owner of all proprietary rights in that material (or have been given a valid licence from the owner of the proprietary rights in such material) and you have obtained releases for all related copyright, privacy and publicity rights;
2.2.2 you have full authority to licence us to print (and reprint) the Products;
2.2.3 the Products do not contain any material that infringes the copyright or other rights of any third party;
2.2.4 you are not aware, having made full and reasonable enquiry, of any claim
by any third party that the items or any pre-existing material incorporated in the items, or the exploitation of the items by you, us or any Customer, has infringed or will infringe any rights of any third party and you agree that you shall immediately inform us if you become aware of any such claim.
2.3 You are solely responsible for the content that you submit to be featured on the Wisque Website. The Provider does not endorse and has no control over content you supply. Content is not necessarily reviewed by the Provider and does not necessarily reflect the opinions or policies of the Provider. The Provider makes no warranties, express or implied, as to the content or to the accuracy and reliability of the content or any material or information that you transmit or which is transmitted on your behalf using the Services.
2.4 You must ensure that all information you submit to be featured on the Wisque Website:
2.4.1 is true, accurate, up to date and not misleading or defamatory;
2.4.2 complies with all applicable laws and regulations, and is in no way unlawful for you to upload to the Site or for it to be displayed in the country in which you or Customers will access the Site;
2.4.3 is not considered by Wisque (in its sole discretion) as defamatory, libellous, slanderous, obscene, pornographic, harassing, threatening, incendiary, abusive, discriminatory, racist, offensive, deceptive or fraudulent, or seen to be encouraging or inciting criminal or harmful conduct;
2.1.4 does not violate Wisque’s rights or the rights of any third party (including Intellectual Property Rights of Wisque or a third party);
2.1.5 where it relates to a person, entity or brand (including references which show that person, entity or brand in a disparaging manner), is uploaded only if that person, entity or brand has provided their prior explicit consent for you to do so.
2.5 The Provider accepts no responsibility or liability for the storage or backup of any Client data or for any loss or damage incurred as a result of any data lost.
2.6 The Provider may refrain from posting any submitted content that in the opinion of the Provider violates these Terms and Conditions or which may be offensive, illegal or violate the rights of any person or which may harm or threaten the safety of any person.
3 Intellectual property
3.1 Copyright of the Provider
3.1.1 All copyright, trademarks, design rights, patents and other intellectual property rights (registered and unregistered) (“Intellectual Property”) relating to the Services and all content (including all applications) located on the Website shall remain vested in the Provider and/or third parties including, without limitation, any licensors from whom the Provider has licensed such rights (as the case may be).
3.1.2 You may not sub-licence, copy, reproduce, republish, disassemble, decompile, reverse engineer, download, post, broadcast, transmit, make available to the public, or otherwise use the content in any way except as otherwise expressly permitted by law. You also agree not to adapt, alter or create a derivative work from any of the Services except as otherwise expressly permitted by law. Any other use of the Services requires the prior written permission of the Provider.
3.1.3 The names, images and logos identifying the Provider or third parties and their products and services are subject to copyright, design rights and trademarks of the Provider and/or third parties. Nothing contained in these Terms and Conditions shall be construed as conferring any licence or right to use any trademark, design right or copyright of the Provider or any other third party.
3.2 Copyright of the Client
3.2.1 Wisque acknowledges that it has no rights in or to your Intellectual Property, except in regard to the licence provided in clause 2.1. Wisque will not do or omit to do anything by which the goodwill and reputation associated with your Intellectual Property might be diminished or jeopardised.
3.2.2 You must immediately inform Wisque in writing of any infringement or apparent or threatened infringement of your Intellectual Property and of any passing off of goods as the Products of which you may become aware. You must make no admission or settlements without Wisque’s prior written consent; and you must provide all necessary assistance and information that Wisque may require.
4.1 You agree to defend, indemnify and hold harmless Wisque, its officers, directors, shareholders, employees, affiliates and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs, debt and expenses including but not limited to reasonable lawyers’ fees, expert witness fees, and costs of litigation arising out of or based on: (a) your violation of any term of these Terms; (b) your violation of any third party right, including any copyright, property, or privacy right, resulting from your use of the Services; (c) your User Content; (d) any claim brought by a third party in relation to your non-compliance with these Terms.
5. Limitation of liability
5.1 Nothing in these Terms limits or excludes our liability for:
5.2.1 death or personal injury caused by negligence;
5.2.2 fraud or fraudulent misrepresentation; or
5.2.3 any other liability which cannot be excluded by law.
5.2 Except as set out in sub-clause 5.1, we exclude all express or implied terms, conditions, warranties, representations or endorsements whatsoever with regard to the Services, our Website, or any information or service provided through our Website. The Services and all content and information contained in the Services are provided on an 'as is', 'as available' and 'with all faults' basis and you assume total responsibility and risk for your use of the Services content and information contained in the Services.
5.3 The Provider has no liability to you for any loss of profit, loss of business, business interruption, or loss of business opportunity.
5.4 The Provider assumes no responsibility for any error, omission, interruption, deletion, corruption, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorised access to, or alteration of, any Client communication or any content. The Provider is not responsible for any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment, software, failure of any email or transaction due to technical problems or traffic congestion on the internet or on any of the Services or combination thereof, including any injury or damage to Client’s or to any person's computer related to or resulting from participation or downloading materials in connection with the Services.
5.5 The Provider expressly disclaims any warranty of fitness for a particular purpose or non-infringement. The Provider cannot guarantee and does not promise any specific results from use of the Services.
5.6 Subject to clause 5.1, Wisque shall not under any circumstances whatever be liable to you or to any other person, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract for:
5.6.1 any loss of profits, sales, business, or revenue;
5.6.2 loss or corruption of data, information or software;
5.6.3 loss of business opportunity;
5.6.4 loss of anticipated savings;
5.6.5 loss of goodwill; or
5.6.6 any indirect or consequential loss.
5.7 Subject to clause 5.1 and clause 5.6, each party’s total liability to the other in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall be limited to the Commission paid to you in the 12 month period prior to the date the liability arose.
5.8 Except as expressly stated in these Terms, we do not give any representation, warranties or undertakings in relation to the Services. Any representation, condition or warranty which might be implied or incorporated into these Terms by statute, common law or otherwise is excluded to the fullest extent permitted by law. In particular, we will not be responsible for ensuring that the Services are suitable for your purposes.
6. Commission and charges
6.1 For each completed sale from the Website of a Product to a Customer, Wisque shall apply charges for processing and handling. Charges will vary according to type, specification and size of Product.
6.2 The Client may determine the selling price of each Product to be listed on the Wisque website, having taken into account the proposed charges for processing and handling.
6.3 For each completed sale from the Website of a Product to a Customer, Wisque shall pay the Client a Commission on the net sales figure after charges have been deducted.
6.4 The definition of ‘net’ in this context is as follows:
6.3.1 the net figure does not include VAT;
6.3.2 the net figure does not include the postage fee.
6.5 Wisque will apply an additional charge for postage to each order, payable by the Customer.
6.6 The charges and rate of Commission will be agreed between the parties in advance of the items being listed as available for sale, and confirmed in writing. Any subsequent changes to the charges and rate of Commission will be subject to further agreement and confirmation as appropriate.
6.7 The charges and Commission shall become due and payable as soon as the Customer executes the transaction.
6.8 The charges and Commission shall not be payable if an order is cancelled, or a Customer requests a return or a refund. If the Commission has already been paid out,
but is not payable to you, it shall be set off against later-earned Commissions.
7.1 Either party may terminate this Contract summarily by notice in writing to the other if either goes into liquidation.
7.2 Without prejudice to any remedy which you may have against us for any antecedent breach or non-performance of this Contract and without prejudice to the right of either party to terminate this Contract under the general law, you may summarily terminate this Contract on giving written notice to us if:
7.2.1 we commit a breach of any of the terms or conditions of this Contract and the breach (if capable of remedy) is not remedied within 14 days of being notified to us in writing by you; or
7.2.2 we commit an act of bankruptcy.
7.3 You may terminate the Contract prior to the expiry of the Initial Period or of any Renewal Period by giving us not less than 3 months’ notice.
8. Customer contracts
8.1 For purposes of all Wisque and Product sales transactions, Customers purchasing Products in the Wisque e-commerce shop are direct and exclusive Customers of Wisque.
8.2 Customer contracts are subject to Wisque's Terms and Conditions for Access to the Wisque shop. Wisque reserves the right to cancel any order for any Product for any reason whatsoever, including orders that may violate the Intellectual Property Rights of a third party, and notify the Customer that their order has been cancelled.
8.3 Wisque is solely responsible to the Customer for all Customer orders, Customer service, and related matters.
9. Data protection
9.1 Wisque will comply with all applicable requirements of the UK Data Protection Legislation and (for as long as and to the extent that the law of the European Union has legal effect in the UK) the General Data Protection Regulation ((EU) 2016/679) (GDPR) and any other directly applicable European Union regulation relating to privacy (Data Protection Legislation) in performing its duties or exercising its rights under this agreement.
9.2 To the extent that Wisque receives from, or processes any Personal Data on behalf of, the Client, Wisque shall process such Personal Data for the sole Purpose of providing the Wisque Services to you.
9.4 You acknowledge that for the purposes of Data Protection legislation Wisque is the data controller of all personal data processed in relation to a Customer.
10. Force Majeure
10.1 Wisque will not be liable or responsible for any failure to perform, or delay in performance of, any of the obligations under this Contract that is caused by an Event Outside Our Control (“Force Majeure”). An Event Outside Our Control is defined below in clause 10.2.
10.2 An Event Outside Our Control means any act or event beyond our reasonable control, including without limitation strikes, lock-outs or other industrial action by third parties, civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war, fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster, or failure of public or private telecommunications networks or impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport.
10.3 If an Event Outside Our Control takes place that affects the performance of our obligations under the Contract:
10.3.1 we will contact the other party as soon as reasonably possible to notify you;
10.3.2 our obligations under the Contract will be suspended and the time for performance of our obligations will be extended for the duration of the Event Outside Our Control.
10.3.3 where the Event Outside Our Control affects our delivery of Products to a Customer, Wisque will arrange a new delivery date with the Customer after the Event Outside Our Control is over.
10. Other important terms
11.1 We may transfer our rights and obligations under the Contract to another organisation, but this will not affect your rights or our obligations under these Terms. We will always notify you in writing if this happens.
11.2 You may transfer your rights or your obligations under these Terms to another person only if we agree in writing.
11.3 This Contract is between you and us. No other person shall have any rights to enforce any of its terms, whether under the Contracts (Rights of Third Parties Act) 1999 or otherwise.
11.4 Each of the paragraphs of these Terms operates separately. If any court or relevant authority decides that any of them are unlawful or unenforceable, the remaining paragraphs will remain in full force and effect.
11.5 If we fail to insist that you perform any of your obligations under these Terms, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived our rights against you and will not mean that you do not have to comply with those obligations. If we do waive a default by you, we will only do so in writing, and that will not mean that we will automatically waive any later default by you.
11.6 Any indulgence granted by you to us in respect of the performance by us of our obligations under this Contract or any neglect or failure by you to enforce any of the terms of it shall not be construed as a waiver or variation of this Contract or otherwise prejudice any of your rights under it.
11.7 No variation of this Contract shall be of any effect unless made in writing and signed by you and by us.
11.8 This Contract is personal to you and us and may not be subcontracted or assigned by either party.
11.9 Any notice required or permitted under this Contract must be in writing and must be personally delivered or sent by pre-paid first-class post or other next-working-day delivery service to its registered office or its principal place of business, or by email to the address specified in the Client Account; or sent by mail to the Provider address specified in this Contract or by email to Wisque at firstname.lastname@example.org. Any notice shall be deemed to have been given at the time of personal delivery, or in the case of expedited delivery service or registered or certified mail 3 business days after the date and time of mailing.
11.10 This Contract constitutes the entire agreement between the parties in relation to its subject matter and supersedes all previous agreements between you and us in relation to this subject matter.
11.11 In this Contract, unless the context clearly indicates another intention:
11.11.1 reference to one gender includes all other genders;
11.11.2 reference to the singular includes the plural and vice versa;
11.11.3 reference to a clause, schedule or party is a reference to a clause of or a schedule or party to this Contract;
11.11.4 obligations undertaken by more than a single person or company are joint and several obligations;
11.11.5 reference to a statutory provision is a reference to that provision as modified or re-enacted or both from time to time and to any subordinate legislation made under the statutory provision;
11.11.6 reference to a document is a reference to that document as from time to time supplemented or varied;
11.11.7 reference to writing includes fax, e-mail and similar means of communication
11.11.8 a number of days shall be reckoned exclusively of the first day and inclusively of the last day unless the last day falls on a day that is not a normal business day in England in which case the last day shall be the next succeeding day that is a normal business day in England; and
11.11.9 any reference to a person includes natural persons and partnerships, firms and other such incorporated bodies, corporate bodies and all other legal persons of whatever kind and however constituted.
12. Governing law and jurisdiction
This Contract shall be governed by and interpreted in accordance with English law and you irrevocably agree that the courts of England and Wales shall (subject to the following sentence) have exclusive jurisdiction to settle any dispute which may arise out of, under, or in connection with this Contract. Nothing in this clause limits the right of the Provider to bring proceedings against you arising out of or in connection with this Contract (a) in any other court of competent jurisdiction or (b) concurrently in more than one court of competent jurisdiction.