TERMS & CONDITION and TERMS OF SALE
TERMS AND CONDITIONS FOR USE OF THE PATTERN CLOUD
Last updated on 10/08/2017
By clicking to accept these Terms and Conditions you agree to be bound by these Terms and Conditions, and you confirm that you have authority to bind any business on whose behalf you use The Pattern Cloud.
1. THE PATTERN CLOUD
1.1 The Pattern Cloud is owned and operated by The pattern cloud Group Ltd (registered number 9428068) and with registered address at 20-22 Wenlock Road, London, N1 7GU, UK (“TPCG”).
1.2 You may only access and use The Pattern Cloud in accordance with these Terms and Conditions.
1.3 The Pattern Cloud acts as a venue to allow you to browse, locate and buy prints, patterns graphics and any other form of design (“Designs”) of any person or entity that is authorised by TPCG to publish Designs on The Pattern Cloud (“Design Studios”).
1.4 TPCG may change, suspend or discontinue The Pattern Cloud (or any part thereof) at any time, including the availability of any feature, database, or content. TPCG may also impose limits on certain features and services or restrict your access to parts or all of The Pattern Cloud without notice or liability.
1.5 You are responsible for obtaining and maintaining any equipment or ancillary services needed to connect to, access or otherwise use The Pattern Cloud, including modems, hardware, software, and long distance or local telephone service.
1.6 TPCG may perform maintenance on The Pattern Cloud from time to time that may result in service interruptions, delays or errors. TPCG will not be liable for any such interruptions, delays or errors. You agree that TPCG may contact you in order to assist you with The Pattern Cloud and to obtain information needed to identify and fix any errors.
2. YOUR ACCOUNT
2.1 You will need to open an account with TPCG before you can place an order. This involves providing TPCG with some compulsory personal information which must be validated by TPCG.
2.3 TPCG reserves the right at its sole discretion to decline a new account registration or to suspend or terminate your account at any time.
2.4 TPCG will contact you by email to notify you whether or not your account has been activated.
2.5 By registering to open an account you confirm that the details provided by you on registration, or at any time, are correct and complete. You must inform TPCG immediately of any changes to the information that you provided when registering by updating your personal details in your account.
2.6 You (a) must keep your passwords secure and confidential; (b) are solely responsible for all activity in your account; and (c) must use commercially reasonable efforts to prevent unauthorised access to your account, and notify PTC promptly of any unauthorised access. TPCG reserves the right at its discretion to modify or withdraw a password at any time.
3. PLACING AN ORDER
3.1 After you place an order TPCG will send you an email acknowledging receipt of your
order. Please note that this email does not constitute acceptance of your order.
3.2 Following receipt of your order, you will be charged for your order using your selected method of payment, and for each of the Designs specified in your order TPCG will obtain authorisation from the relevant Design Studio to grant you access rights to the high resolution file for that Design (“Access Rights”).
3.3 The contract of sale for each Design will be created when the applicable Design Studio for the Design grants you Access Rights for that Design. The contract of sale is created between you and the applicable Design Studio, and it incorporates the Listing for the Design and the Terms of Sale (as available on The Pattern Cloud) as at the date on which you place your order.
3.4 Before you are granted Access Rights for any Design, TPCG may decline your order for that Design for any reason, including legal and regulatory reasons and if TPCG does not obtain authorisation from the relevant Design Studio to grant you access rights to the high resolution file for that Design. If TPCG declines your order for any Design for which you have already been charged, TPCG will refund you in full for such Design as soon as reasonably possible.
3.5 TPCG will send you an email on behalf of each Design Studio setting out the Designs in your order and whether you have been granted Access Rights for each Design.
3.6 You agree that TPCG is not responsible, and does not have any liability, for any Designs on The Pattern Cloud other than those which TPCG has purchased and in respect of which TPCG owns the copyright. Accordingly:
(a) TPCG is not a party to the contract of sale for the Design or any other dealings between you and the Design Studio;
(b) TPCG does not own the Design or grant you any rights to use the Design; and
(c) TPCG merely acts as an agent on behalf of the Design Studio and displays the Designs on The Pattern Cloud and provides administration services for the Design Studio which include the conformation of orders, processing of payment and administration.
4. AMENDING OR CANCELLING AN ORDER
4.1 The processing of your order is automatic. If you wish to amend or cancel your order you must contact TPCG immediately. TPCG will do its best to stop your order from being processed, but this may not be possible given the speed at which it is processed and the involvement of the Design Studios in the process.
5. DESCRIPTIONS AND AVAILABILITY OF DESIGNS
5.1 You acknowledge that, unless TPCG has purchased a Design and owns the copyright in
it, TPCG has no control over the details, descriptions and prices of any Design (the “Listing”) and does not purport to monitor the Listing. The Listing is entered by the relevant Design Studio at the time at which it uploads the Design to The Pattern Cloud. Accordingly, when ordering Designs through The Pattern Cloud, please note the following:
(a) Orders will only be accepted if there are no material errors in the description of the Designs or their prices as advertised on The Pattern Cloud. If TPCG discovers an error in the price of any Design you have ordered TPCG will contact you by email to inform you of this error and TPCG will give you the option of continuing to purchase the Design at the correct price or cancelling your order for that Design. TPCG will not process your order until TPCG has received your instructions. If TPCG does not receive your instructions, TPCG will treat your order for that Design as cancelled and notify you by email.
(b) Whilst TPCG tries to display the colours of the Designs accurately on The Pattern Cloud, the actual colours you see will depend on your monitor and TPCG cannot guarantee that your monitor's display of any colour will accurately reflect the colour of the Designs made available for download or delivery.
(c) All Exclusive Designs are subject to availability. If for any reason an Exclusive Design you have ordered is not available, TPCG will inform you as soon as possible and TPCG will not be liable to you except to ensure that you are not charged for that Design.
5.2 All information on The Pattern Cloud regarding the Designs is provided in good faith, solely for your convenience and does not constitute an introduction, endorsement or recommendation by TPCG. Accordingly, TPCG does not make any representations, does not endorse or guarantee, and does not accept any responsibility or liability of any kind whatsoever for the Designs (unless it is the Design Studio) or the qualifications, background, or identities of the Design Studios.
6. PRICES OF THE DESIGNS
6.1 The prices of the Designs are exclusive of VAT, sales tax and other similar taxes, and you are responsible for payment of such taxes at the rate and in the manner for the time being prescribed by law.
6.2 If any withholding type tax is levied on a payment to TPCG, then you must increase the amount paid to TPCG so that the amount received after the withholding tax is deducted is the full amount TPCG would have received if no withholding deduction had been made.
6.3 You acknowledge that in respect of each Design, TPCG acts as the Design Studio's agent in collecting the prices, delivery charges and taxes from you. Payment by you to TPCG of such amounts in respect of any Design constitutes full and final settlement of such amounts by you to the relevant Design Studio.
6.4 You must pay in the currency stated on The Pattern Cloud.
6.5 You must make all payments in full without set-off, deduction, counter-claim or withholding.
6.6 Prices for Designs may change from time to time, but changes will not affect any order you have already placed.
7. OWNERSHIP OF RIGHTS
7.1 The software, workflow processes, user interface, designs and other technologies provided by TPCG as part of The Pattern Cloud are the proprietary property of TPCG and its licensors. All right, title and interest in and to such items, including all associated intellectual property rights, remain with TPCG. You must not remove or modify any proprietary marking or restrictive legends as part of The Pattern Cloud. TPCG reserves all rights unless expressly granted under these Terms and Conditions.
7.2 You must not:
(a) sell, resell, rent or lease The Pattern Cloud or use it in a service provider capacity;
(b) interfere with or disrupt the integrity, performance or security of The Pattern Cloud, prevent access to or use of The Pattern Cloud by other users, or in TPCG's reasonable judgment impose an unreasonable or disproportionately large load on the infrastructure, network capability or bandwidth;
(c) attempt to gain unauthorised access to The Pattern Cloud or related systems or networks;
(d) reverse engineer or otherwise decompile any aspect of The Pattern Cloud except to the extent permitted by law; or
(e) access The Pattern Cloud to build a competitive service or product, or copy any feature, function or graphic for competitive purposes.
7.3 You are not granted any rights or licence in respect of the trademarks, service marks or logos of TPCG, which are and will remain the sole and exclusive property of TPCG.
7.4 By submitting ideas, suggestions or feedback to TPCG regarding The Pattern Cloud, you agree that such items submitted do not contain confidential or proprietary information; and you hereby grant TPCG an irrevocable, unlimited, royalty-free and fully-paid perpetual license to use such items for any business purpose.
8. YOUR RESPONSIBILITIES
8.1 You must not access or use The Pattern Cloud in any manner or for any purpose other
than as expressly permitted by these Terms and Conditions.
8.2 You may only use The Pattern Cloud for commercial purposes and in accordance with the applicable laws.
8.3 You must not use any Design in any way until you are granted Access Rights for that Design. For the avoidance of doubt, your Access Rights are for the use of the high resolution file for a Design only. You are not granted any rights to use any of the representations of a Design on The Pattern Cloud (including the images of the Design on garments). These are provided for illustration purposes only.
8.4 You must not:
(a) use The Pattern Cloud to store or transmit indecent, obscene, pornographic, blasphemous, infringing, defamatory, libellous or otherwise objectionable, unlawful or tortious material, or material which violates third party rights;
(b) send or store viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs, or send spam or otherwise duplicative or unsolicited messages in violation of any applicable laws and regulations.
8.5 You must not use The Pattern Cloud as a tool for selecting Designs across multiple Design Studios and then contact the Design Studios directly to complete the purchase. The purchase must be completed on The Pattern Cloud.
9.1 You will indemnify and hold harmless TPCG from and against any losses, damages, expenses and other charges (including reasonable fees and expenses of legal and other advisers, court costs and other dispute resolution costs) incurred by TPCG for any third party claims arising from or in connection with:
(a) your use of The Pattern Cloud in breach of these Terms and Conditions; and
(b) your use of any Design.
10. NO LIABILITY
10.1 You acknowledge that The Pattern Cloud is made available free of charge, and that use of The Pattern Cloud is entirely at your own risk. Accordingly, The Pattern Cloud is provided on an 'as is' and ‘as available’ basis.
10.2 To the maximum extent permitted by law TPCG hereby excludes all warranties and representations of any kind, express or implied, regarding The Pattern Cloud, including warranties and representations:
(a) as to the accuracy, quality, reliability, suitability, completeness, truthfulness, usefulness, or effectiveness of The Pattern Cloud;
(b) that The Pattern Cloud will meet your requirements;
(c) that The Pattern Cloud will function uninterrupted or error-free; and
(d) that The Pattern Cloud is secure, free from attack, interference, hacking or other security intrusion, or free of malicious programs or other harmful components.
10.3 Nothing in these Terms and Conditions will operate to exclude or limited TPCG's liability for (a) death or personal injury caused by TPCG's negligence, (b) fraud or (c) any other liability which cannot be excluded or limited under applicable law.
10.4 Subject to clause 10.3, TPCG will have no liability to you or any other person for any damage or loss of any kind, whether such damage or loss is direct, indirect, special or consequential and whether it arises in contract, tort (including negligence) or otherwise, even if such loss was reasonably foreseeable or TPCG has been advised of the possibility of such loss. In particular, and without limitation to the foregoing, TPCG will have no liability, obligation or responsibility whatsoever in relation to (a) loss of profits; (b) loss of sales, income, business or opportunity; (c) loss of anticipated savings; (d) loss of, or damage to, reputation or goodwill; or (e) loss of use of, or corruption to, software, data or information.
11. SECURITY AND DATA PROTECTION
11.1 TPCG will have in place appropriate technical and organisational measures to protect your data against accidental or unlawful destruction or accidental loss or alteration or unauthorised disclosure or access and against all other unlawful forms of processing.
11.2 Please read the TPCG Privacy Notice which also governs your use of The Pattern Cloud.
11.3 TPCG may use non-personally identifiable data within The Pattern Cloud for purposes of enhancing The Pattern Cloud, aggregated statistical analysis, technical support and other business purposes.
12. THIRD PARTY WEBSITES
12.1 The Pattern Cloud may include a web browser via which you may access other websites provided by third parties. TPCG has no control over the contents of those websites. TPCG does not warrant, endorse, guarantee, or assume responsibility for any such websites, their contents or their privacy practices. TPCG will not be responsible for, and expressly disclaims any and all liability related to, any loss or damages caused by use or reliance on any content, features, goods or services made available through such websites. TPCG will not be a party to or in any way monitor any transaction entered into by you in connection with other websites provided by third parties.
13.1 If a dispute arises between you and TPCG, please contact TPCG by email. TPCG will consider reasonable requests to resolve the dispute through alternative dispute resolutions procedures, such as mediation, as an alternative to litigation.
13.2 If you have a dispute with a Design Studio, TPCG encourages you to contact the Design Studio directly to resolve the dispute amicably. TPCG is not a party to any contracts of sale for the Designs (unless TPCG is the Design Studio for the particular Design). Accordingly, in respect of any dispute with a Design Studio or arising from or in connection with a contract of sale for a Design:
(a) you agree to pursue such dispute independently of and without recourse to TPCG; and
(b) you hereby release TPCG from all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with any such dispute. However, if you are unable to resolve the dispute amicably with the Design Studio, TPCG can offer guidance.
14. CHANGES TO THESE TERMS AND CONDITIONS
14.1 TPCG reserves the right to make changes to these Terms and Conditions at any time by publishing a revised version of these Terms and Conditions on The Pattern Cloud, but no changes will apply to any orders you submitted before the change. Your continued use of The Pattern Cloud indicates your acceptance of such changes. You are advised to check these Terms and Conditions from time to time for any changes that may affect you. TPCG last modified these Terms and Conditions on the date stated at the beginning of these Terms and Conditions.
15. ELECTRONIC COMMUNICATIONS
15.1 When you use The Pattern Cloud or send emails to TPCG, you are communicating with TPCG electronically. TPCG will communicate with you by email or by posting notices on The Pattern Cloud.
15.2 For contractual purposes you agree to receive communications from TPCG electronically and you agree that all notices and communications which TPCG provides you electronically satisfy any legal requirement that such communications are in writing, unless mandatory applicable laws specifically require a different form of communication.
15.3 All notices that you are required or desire to give to TPCG must be in writing and sent:
(a) by registered post or courier to The Pattern Cloud Group Ltd at 20-22 Wenlock Road, London, N1 7GU, UK and marked for the attention of the Director; and such notices will be deemed to be received by TPCG three (3) Business Days after the date on which they are sent by registered post or courier; or
(b) by email provided that the email is sent from the email address as detailed in your account on The Pattern Cloud; and such notices will be deemed to be received by TPCG immediately. If for any reason you send an email from a different email address TPCG will not take any responsibility if it does not receive the email for any reason, including if it is categorised as spam.
16.1 If you breach these Terms and Conditions and TPCG takes no action, TPCG will still be entitled to use its rights and remedies in any other situation where you breach these Terms and Conditions.
16.2 If any of these Terms and Conditions is found to be invalid, unenforceable or illegal, then such provision will be severed and will not affect the validity and enforceability of any remaining Terms and Conditions.
16.3 In interpreting these Terms and Conditions (unless the context otherwise requires) any phrase introduced by the terms "including" and "includes" or any similar expression will be construed as illustrative and will not limit the sense of the words preceding those terms.
16.4 The Terms and Conditions and your use of The Pattern Cloud are governed by and construed in accordance with English law. Any dispute or claim arising in connection with these Terms and Conditions, your use of The Pattern Cloud or any non-contractual dispute will be subject to the exclusive jurisdiction of the English courts.
THE PATTERN CLOUD TERMS OF SALE
Last updated on 14/05/2018
1. APPLICATION OF THESE TERMS OF SALE
1.1 All capitalised terms used in these Terms of Sale have the meanings set out in clause 13.
1.2 A Sale Contract for each Design will be created when TPCG grants the Buyer access rights to the high resolution file for that Design. The Sale Contract is created between the Buyer and the applicable Design Studio for the Design, and the Sale Contract incorporates the Listing for the Design as at the date on which the Buyer places its order and these Terms of Sale.
1.3 TPCG is not a party to any Sale Contract unless TPCG is the owner of the Copyright in the Design.
2. GRANT OF LICENCE
2.1 On The Pattern Cloud the Buyer may have the option to buy Designs:
(a) on an exclusive and royalty-free basis, with no restrictions on the quantity of reproductions of the Design on the Products;
(b) on a non-exclusive and extended royalty-free basis, with no restrictions on the quantity of reproductions of the Design on the Products; or
(c) on a non-exclusive and royalty-free basis, subject to the reproduction of the Design on the Products up to a maximum of 500 [Products/units] or metres of production.
2.2 In consideration of payment by the Buyer of the Design Fees, the Design Studio hereby grants to the Buyer a perpetual, worldwide licence under the Copyright which shall be on an exclusive or non-exclusive basis as applicable, to do the following acts subject to, and in accordance with, these Terms of Sale:
(a) to use, copy and modify the Design in any format including digital and hard copy;
(b) to reproduce the Design on the Products in the quantities as specified in clause 2.1;
(c) to sell the Licensed Products to independent arm's length customers; and
(d) to reproduce the Design in any advertising or promotional material relating to the Licensed Products.
2.3 The licence does not include the right for the Buyer:
(a) to exploit either directly or indirectly the Copyright subsisting in the Design; or
(b) to transfer the licence without providing prior written notice thereof to the Design Studio.
2.4 If the Buyer has purchased a Design on an exclusive basis in accordance with clause 2.1(a), the Design Studio undertakes not to grant any licence permitting any third party to exercise the rights granted to the Buyer under this clause 2.
2.5 Subject to the licence granted under this clause 2, all of the rights, title and interest in the Copyright remains vested in the Design Studio.
3. SUPPLY OF SWATCHES
3.1 Upon the creation of a Sale Contract for a Design, the Design Studio will despatch any
Swatches requested by the Buyer in the order to the address specified in the order.
3.2 The Design Studio is not responsible for any delay in delivery caused by the unavailability of someone to take delivery of the Swatches. The Buyer is responsible for contacting the post office or delivery company as applicable to arrange the collection or delivery of Swatches that could not be delivered because the Buyer was unavailable.
4.1 Subject to clause 4.3, the Design Studio hereby warrants to the Buyer that:
(a) the Design Studio owns or has obtained valid licences of all Copyright that are necessary for the grant of the licences under clause 2; and
(b) the Design is its original work and has not been copied wholly or substantially from any other source.
4.2 If the Buyer has purchased a Design on an exclusive basis in accordance with clause 2.1(a), the Design Studio hereby provides, subject to clause 4.3, the following additional warranties to the Buyer:
(a) the Design Studio is the sole legal and beneficial owner of, and owns all the rights and interests in, the Copyright; and
(b) the Design Studio has not licensed or assigned the Copyright.
4.3 The warranties set out in clauses 4.1 and 4.2 shall not apply to the limited extent that:
(a) any element of the Design is in the public domain; or
(b) for any element of the Design the Design Studio has purchased a licence to use the Copyright of an image on a royalty-free basis.
4.4 The Buyer acknowledges that the Design Studio has not checked throughout the world to ensure that the Design does not contain anything that is deemed to be indecent, obscene, pornographic, blasphemous, infringing, defamatory, libellous or otherwise objectionable, unlawful or tortious in accordance with the applicable laws. Accordingly, the Buyer must ensure that in the relevant jurisdiction(s) the Design does not contain anything that is deemed to be indecent, obscene, pornographic, blasphemous, infringing, defamatory, libellous or otherwise objectionable, unlawful or tortious in accordance with the applicable laws.
4.5 The Buyer acknowledges that the Design Studio has not conducted searches of national registers of Trade Marks throughout the world in relation to specific words, symbols or numbers forming part of the Design. Accordingly:
(a) the Design Studio does not provide any warranties or representations that the Design will not infringe or otherwise violate any Trade Marks of any third party; and
(b) the Buyer must secure every third party clearance and permission needed in the relevant jurisdiction(s) to enable the Buyer to use the specific words, symbols or numbers forming part of the Design.
5.1 The Buyer will indemnify and hold harmless the Design Studio from and against any losses, damages, expenses and other charges (including reasonable fees and expenses of legal and other advisers, court costs and other dispute resolution costs)incurred by the Design Studio for any third party claims arising from or in connection with the breach by the Buyer of these Terms of Sale.
6. LIMITATION OF LIABILITY
6.1 Nothing in these Terms of Sale will operate to exclude or limited the Design Studio's liability for (a) death or personal injury caused by the Design Studio's negligence, (b) fraud or (c) any other liability which cannot be excluded or limited under applicable law.
6.2 Subject to clause 6.1, the maximum aggregate liability of each party arising under or in connection with the Sale Contract, whether in contract, tort (including negligence) or otherwise, must in no event exceed the amount of the Design Fees paid by the Buyer to the Design Studio, with the exception that such limit will not apply to breach of clause 5 (Indemnity) for which the liability will be unlimited.
6.3 Subject to clause 6.1, the Design Studio will have no liability, obligation or responsibility whatsoever in contract, tort (including negligence) or otherwise for (a) loss of profits; (b) loss of sales, income, business or opportunity; (c) loss of anticipated savings; (d) loss of, or damage to, reputation or goodwill; (e) loss of use of, or corruption to, software, data or information; or (f) indirect, special or consequential loss, even if such loss was reasonably foreseeable or such party has been advised of the possibility of such loss.
7. PROTECTION OF THE COPYRIGHT
7.1 The Buyer will immediately notify the Design Studio in writing giving full particulars if
any of the following matters come to its attention:
(a) any actual, suspected or threatened infringement of the Copyright;
(b) any claim made or threatened that the Design infringes the copyright and rights in the nature of copyright of any third party; or
(c) any other form of attack, charge or claim to which the Copyright may be subject.
7.2 In respect of any of the matters listed in clause 7.1:
(a) the Design Studio will, at its absolute discretion, decide what action to take, if any;
(b) the Design Studio will have exclusive control over, and conduct of, all claims and proceedings;
(c) the Buyer must not make any admissions other than to the Design Studio and will provide the Design Studio with all assistance that it may reasonably require in the conduct of any claims or proceedings; and
(d) the Design Studio will bear the cost of any proceedings and will be entitled to retain all sums recovered in any action for its own account.
7.3 The provisions of sections 101 and 101A of the Copyright, Designs and Patents Act 1988 (or equivalent legislation in any jurisdiction) are expressly excluded.
8. MORAL RIGHTS
8.1 To the extent that the Design Studio is the sole author of the Design, it hereby waives all moral rights in respect of the use to be made of the Design to which the Design Studio may now or at any future time be entitled under the Copyright, Designs and Patents Act 1988 or under any similar legislation from time to time in force anywhere in the world.
9. ADDITIONAL OBLIGATIONS OF THE BUYER
9.1 The Buyer acknowledges and agrees that the exercise of the licence granted to the Buyer is subject to all applicable laws, and the Buyer understands and agrees that it will at all times be solely liable and responsible for such due observance and performance.
9.2 Without prejudice to clause 9.1, the Buyer must:
(a) only use the Design for commercial purposes;
(b) not use the Design in a way that is or renders the Design indecent, obscene, pornographic, blasphemous, infringing, defamatory, libellous or otherwise objectionable, unlawful or tortious, or in a way which violates third party rights;
(c) only make use of the Copyright for the purposes authorised in these Terms of Sale;
(d) comply with all regulations and practices in force or use to safeguard the Design Studio's rights in the Copyright; and
(e) ensure that the Licensed Products are safe for the use for which they are intended.
9.3 The Buyer must not do or omit to do anything to diminish the rights of the Design Studio in the Copyright or the Design, nor assist any other person to do so, either directly or indirectly.
10. TERM AND TERMINATION OF THE LICENCE
10.1 The Design Studio may terminate a Sale Contract at any time with immediate effect by written notice to the Buyer if the Buyer commits a material breach of any of these Terms of Sale and such breach is not remediable or, if remediable, is not remedied within twenty eight (28) days from the date of such notice.
10.2 If a Sale Contract for a Design is terminated for any reason:
(a) all rights and licences granted pursuant to the Sale Contract will end, and the Buyer must stop all use of the Copyright; and
(b) the Buyer will for a period of ninety (90) days after the date of termination have the right to sell all stocks of the Licensed Product in its possession and any Licensed Product in the course of manufacture at the date of termination.
10.3 Upon the termination of a Sale Contract neither the Buyer nor the Design Studio will have any further right or obligation with respect to the other party except as set out in this clause 10.3 and in those clauses which expressly or by implication are intended to come into or continue in force on or after termination of the Sale Contract.
10.4 The termination of a Sale Contract for any reason will not prejudice or affect the accrued rights, remedies obligation or liabilities of the parties existing at termination.
11.1 Notices or other communications given in connection with these Terms of Sale must be in writing and sent by registered post to the address set out in the order for the party to which the notice is being given or to such other address as such party has communicated in accordance with this clause.
11.2 A notice sent by registered post in accordance with this clause will be deemed to have been received five (5) calendar days after the date of posting.
12.1 No variation or amendment will be made to a Sale Contract unless it is made by a written instrument which expressly purports to amend the Sale Contract and is executed by or on behalf of each party.
12.2 A failure or delay by a party at any time or for any period to enforce any of its rights under a Sale Contract will not constitute a waiver of such rights or the right at any time subsequently to enforce any provisions of the Sale Contract.
12.3 Without prejudice to any other rights or remedies that the Design Studio may have, the Buyer acknowledges and agrees that damages alone would not be an adequate remedy for any breach of these Terms of Sale by the Buyer. Accordingly, the Design Studio may be entitled to the remedies of injunction, specific performance or other equitable relief for any threatened or actual breach of these Terms of Sale.
12.4 If any of these Terms of Sale is found to be invalid, unenforceable or illegal, then such provision will be severed and will not affect the validity and enforceability of any remaining Terms and Conditions.
12.5 No third party will have any rights under, or be able to enforce, these Terms of Sale.
12.6 A Sale Contract constitutes the entire agreement between the parties and supersedes all previous arrangements between the parties relating to its subject matter. Each party acknowledges that that it has not relied on any oral or written representation (whether made negligently or innocently) other than as expressly set out in these Terms of Sale. Nothing in this clause 12.6 will limit or exclude any liability for fraud.
12.7 These Terms of Sale are governed by and construed in accordance with English law. Any dispute or claim arising in connection with these Terms of Sale or any non- contractual dispute will be subject to the exclusive jurisdiction of the English courts.
13.1 In these Terms of Sale the following terms will have the following meanings:
“Buyer” means the buyer as specified in the order;
“Copyright” means all copyright and rights in the nature of copyright subsisting in the
Design in any part of the world to which the Design Studio is entitled;
“Design” means the design as specified in the order and as represented in the high resolution file to which TPCG grants access rights to the Buyer;
“Design Fees” means the fees payable by the Buyer for the Design as specified in the order;
“Design Studio” means the design studio as specified in the order;
“Licensed Product” means the Product on which the Design has been reproduced
pursuant to clause 2.2(b);
“Listing” means the details, descriptions and prices of any Design as set out on the Pattern Cloud from time to time;
“Products” means any type of product, including fabric, clothing, t-shirts, hats & accessories, gift cards (e.g. greetings cards and Christmas cards), wrappings, promotional and online material, labels, posters, newspaper articles, brochures, business cards, stationary, print ads, calendars, advertising displays, booklets, marketing, folders, labels, flyers, prints;
“Sale Contract” means the contract created between a Buyer and a Design Studio for each Design in respect of which TPCG grants the Buyer access rights to the high resolution file for that Design; and the Sale Contract incorporates the Listing for the Design and the Terms of Sale as at the date on which the Buyer places the order;
“Swatch” means any expression of a Design in a physical format, such as on paper, fabric, weave, knit or any other material;
“TPCG” means The Pattern Cloud Group Ltd with registered number 10886265 and with registered address at 20-22 Wenlock Road, London, N1 7GU, UK
“Trade Marks” means trade marks, trade names, service marks, logos, domain names, and other distinctive brand features.
13.2 In interpreting these Terms and Conditions (unless the context otherwise requires):
(a) any phrase introduced by the terms "including", "includes", “in particular”, “for example” or any similar expression will be construed as illustrative and will not limit the sense of the words preceding those terms; and
(b) any reference to any statute or statutory provision including any subordinate legislation includes a reference to that statute or statutory provision as from time to time amended, extended or re-enacted.