This agreement is with regards to copyright in any content you (VENDOR) submit or upload to the website. In order to receive the Couch Potato services you grant Couch Potato a non-exclusive royalty free license to use and archive the content in accordance with or as reasonably contemplated by this agreement.
When you submit or upload content on the website you represent and warrant that:
- you own all copyright in the content, or if you are not the owner, that you have permission to use the content, and that you have all of the rights required to display, reproduce and sell the content;
- the content you upload will not infringe the intellectual property rights or other rights of any person or entity, including copyright, moral rights, trade mark, patent or rights of privacy or publicity;
- your use of the website will comply with all applicable law, rules and regulations;
- the content does not contain material that defames or vilifies any person, people, races, religion or religious group and is not obscene, pornographic, indecent, harassing, threatening, harmful, invasive of privacy or publicity rights, abusive, inflammatory or otherwise objectionable;
- the content does not include malicious code, including but not limited to viruses, trojan horses, worms, time bombs, cancelbots, or any other computer programming routines that may damage, interfere with, surreptitiously intercept, or expropriate any system, program, data, or personal information; and
- the content is not misleading and deceptive and does not offer or disseminate fraudulent goods, services, schemes, or promotions.
Couch Potato reserves the right to review and if in its sole discretion deemed necessary, remove any content from the website and / or cancel your account, because that content breaches your agreement with us and / or any applicable laws, or otherwise. You agree to indemnify Couch Potato in respect of any direct or indirect damage caused due to your breach of one or more of these warranties.
Offering your art for sale on a physical product
Any member may offer their art for sale on a physical product on the website by appointing Couch Potato to facilitate the transaction on the terms set out in the Services Agreement in Appendix A. By agreeing to the terms of this user agreement you expressly agree to the terms of the Services Agreement in Appendix A, which will apply from the date on which you offer your first art for sale on a physical product and your continued use of the website will constitute ongoing agreement to the terms therein as updated from time to time.
Intellectual Property Rights and license
By submitting listings to Couch Potato , you grant Couch Potato a non-exclusive, worldwide, royalty-free, sublicense able and transferable license to use, reproduce, distribute, prepare derivative works of and display the content of such listings in connection with Couch Potato ‘s (and its successors’ and affiliates’) services and business in facilitating the sale of your product, including without limitation for promoting and redistributing part or all of the Couch Potato site (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each user of the Couch Potato site a non-exclusive license to access your content through the site, and to use, reproduce, distribute, and display such content as permitted through the functionality of the site and under this Vendor Agreement. The above licenses terminate within a commercially reasonable time after you remove or delete your listings from the Couch Potato site. The above licenses granted by you in user comments you submit, are perpetual and irrevocable.
All intellectual property rights in this website and the Couch Potato service (including the software and systems underlying the Couch Potato service, and text, graphics, logos, icons, sound recordings and software) are owned by or licensed to us. Other than for the purposes of, and subject to the conditions prescribed under relevant Copyright and TradeMark legislation throughout the world, and except as expressly authorized by this agreement, you may not in any form or by any means:
- use, adapt, reproduce, store, distribute, print, display, perform, publish or create derivative works from any part of this website; or
- commercialize any information, products or services obtained from any part of this website,
without our written permission.
If you use any of our trade marks in reference to our activities, products or services, you must include a statement attributing that trade mark to us. You must not use any of our trade marks in or as the whole or part of your own trade marks; in connection with activities, products or services which are not ours; in a manner which may be confusing, misleading or deceptive; or in a manner that disparages us or our information, products or services (including this website).
You agree to indemnify, defend and hold us, our officers, directors, employees, agents and representatives harmless, as well as, all third parties printing, manufacturing and/or otherwise fulfilling the products you are selling via the website, their officers, directors, employees, agents and representatives harmless, from and against any and all claims, damages, losses, liabilities, costs (including reasonable legal fees) or other expenses that arise directly or indirectly out of or from:
- your breach of any clause of this agreement;
- any allegation that any materials that you submit to us or transmit to the website infringe or otherwise violate the copyright, trademark, trade secret or other intellectual property or other rights of any third party; and/or
- your activities in connection with the website.
This indemnity will be applicable without regard to the negligence of any party, including any indemnified person.
APPENDIX A – Services Agreement
You wish to use Couch Potato ’s services to facilitate marketing and sale of your art on a physical product and to arrange for manufacture of the physical product (“your product”) once an order has been made through http://www.Couch Potato.asia (“the website”). Couch Potato will provide these services on the terms set out in this Services Agreement. Additionally, Couch Potato will provide for delivery of such products to the customer.
1.1 Couch Potato, acting as independent contractor under your instructions in relation to the performance of marketplace services, will market to and obtain orders from customers for the purchase of your products over the website and on instruction from you. Couch Potato will arrange for third parties to fulfil those orders by facilitating payment for and manufacture of your products (“Services”). Couch Potato will then arrange for the delivery of your products as per the customer’s instructions. Whilst Couch Potato ’s capacity is one of independent contractor in relation to the Services, it acts your agent specifically in relation to the sales transaction between you and the customer who buys your product – see further clause 5.2 below.
1.2 Couch Potato will provide the Services pursuant to this agreement until termination in accordance with its terms.
1.3 You agree that Couch Potato is free to act in any capacity for any other person interested in promoting, marketing and obtaining orders from members of the public for the purchase of their arts over the website, including any art that is the same as, or similar to, your products.
2. License and standing instructions
2.1 You grant Couch Potato a non-exclusive royalty free license to use your intellectual property relating to your products for the purpose of enabling us to carry out the Services.
2.2 You hereby instruct Couch Potato to facilitate the sale of your product which includes payment, processing and arranging for manufacturing your product (s) in respect of the orders placed by the customers via the website and Couch Potato will facilitate such payment, and manufacturing in accordance with reasonable business practices unless you otherwise instruct prior to the placement of that order by a customer.
3. Sale of your products
3.1 The retail price charged to customers who purchase your product is made up of the manufacturing fee charged by the third party manufacturer, Couch Potato ’s fee for hosting the marketplace and facilitating the transaction (the manufacturing fee and Couch Potato ’s fee are referred to collectively, and inclusive of tax, as the “base amount”), your creator margin (“your margin”), and any relevant sales tax (such as Sales Tax, GST, VAT, etc) that Couch Potato and / or you (as the case may be) are liable to account for to the appropriate tax authorities. Shipping charges will also be added to the retail price. When making each individual work available for sale you are able to select any percentage mark-up you wish, greater than or equal to zero, above the base amount but below the automated upper limit (subject to change from time to time). The percentage mark-up selected by you on the website for each of your products is used to calculate the dollar value of your margin for each sale.
3.2 We may change the base amount at any time without specific notice to you and this will affect the dollar value of your margin, which is calculated as a percentage of the base amount (e.g. if we increase our base amount, your margin will also increase). The retail price will not change on an individual sale after a customer has submitted an order to the website.
3.3 Couch Potato will send you an email to the email address you registered in your account to notify you when an order has been placed for your products.
3.4 You agree that Couch Potato makes no representation that it will be able to procure an order for your products, whether at the retail price or at all, nor that you will obtain any benefit by entering into this Services Agreement.
3.5 All items purchased from the website are manufactured pursuant to arrangements with third party suppliers under your instructions. This means that title and risk for loss for such items pass from you to the customer/purchaser without passing through us prior to the goods being delivered to the customer under the customer’s instructions.
4. Payment terms
4.1 You authorize Couch Potato to collect, hold and distribute the retail price (“sale proceeds”) from customers on the terms set out in this clause 4. Couch Potato will also charge the customer for the shipping which will be retained by us and not affect the amount to be distributed to you.
4.2 You authorize Couch Potato to deduct the base amount (which includes Couch Potato ’s margin for facilitation services, including tax where applicable) from the sales proceeds for your products before distributing your margin (which will include tax where applicable).
4.3 We will pay your margin in accordance with the payment method you select on the website. This will usually take place between the 15th and 20th days of the month.
4.4 We may set payment amount threshold amounts in relation to a month or other time period – and where the payment amount does not exceed any applicable threshold for the relevant period, Couch Potato may elect to postpone your payment until the threshold is exceeded.
4.5 It is your responsibility to ensure Couch Potato has current details of your postal address and bank account details. Couch Potato will not be liable for any loss suffered by you if you provide us with incorrect details in relation to the payment method. If we are unable to pay you because you have given us incorrect details or your details are out of date, we will hold your margin for up to 12 months from the payment date. If you have not notified Couch Potato of any amendment to the payment method details in that time your margin proceeds will be forfeited to Couch Potato or donated to a charity of our choice.
5. Taxation responsibility
5.1 Except as required otherwise by applicable Indian Taz Regulations
- (a) Each party is responsible for their own taxes associated with each transaction and will account for any taxes imposed by governments or governing authorities, and related accounting or audit requirements arising out of, as a result of, incidental to, or in connection with obligations under this Services Agreement. We recommend that you consult with your tax advisor as to the application of taxes for you, as the seller of the merchandise. This may include Sales Tax, VAT, GST and other transactional taxes;
- (b) Couch Potato will not collect or pay taxes on your behalf as Couch Potato is merely acting as an agent in facilitating the sale of your product to the customers. As stated in clause 4.2 of this Agreement, the amounts distributed to you will be deemed to be inclusive of any taxes, if applicable. You will at all times be solely responsible for reporting and remitting any tax liabilities arising out of the sale of your products together with any potential interest or penalties that any tax authority may levy as a result of non-compliance. If you are registered for VAT in the EU, Couch Potato may, upon your request, provide you with a VAT invoice for any charges levied by us; and
- (c) all tax-related reporting responsibilities by you to relevant tax authorities are entirely your responsibility.
5.2 If you have an Australian Business Number (ABN) or Value Added Tax (VAT) you may submit your ABN or VAT to the website where requested. If you do not have an ABN or VAT, or if you elect not to submit your ABN or VAT to the website, you will be required to provide more information about the circumstances under which you are offering your products for sale on the website, including whether any of the Australian Taxation Office (ATO) or appropriate tax authority exemptions apply to you.
6.1 You hereby indemnify and will keep Couch Potato indemnified from and against all claims, debts, accounts, expenses, costs, liens, actions and proceedings of any nature whatsoever, whether known or unknown by any person, arising from, incidental to, or by virtue of, the appointment, or any breach or non-performance of your obligations under this Services Agreement or arising out of your willful act, neglect or default in the performance of such obligations.
6.2 This clause 6 will survive the termination of this Services Agreement.
7. Limitation of liability
7.1 In no case will Couch Potato be liable for any consequential loss or damage suffered by you arising from this Services Agreement. To the extent permitted by law, all warranties and conditions implied by law are hereby expressly excluded.
8. Terminating this agreement
8.1 You can give notice of termination of this Services Agreement by closing your account in the method described in the User Agreement.
8.2 Couch Potato may give notice of termination of this Services Agreement to you in writing at any time.
8.3 After notice of termination in the manner described in either clause 8.1 or 8.2, you authorize us to complete any transactions in progress in relation to your products, which we will do on the terms of this Services Agreement. Termination of this Services Agreement will take effect once these transactions have been completed.