Mshmosh is about celebrating creativity. We encourage you to be involved in every aspect of Mshmosh – display art, give feedback, write reviews, participate in forums, team up with other members to collaborate on projects, and talk to each other.
To make this online destination for creativity available, it is essential all Mshmosh users respect the intellectual property rights of others, including copyright and trademarks. You must only upload content you have created yourself and have permission to use and authorize others to use. If you are a customer or browser, please respect the copyright and trademarks of all the works you see or buy on Mshmosh. Respecting other people’s intellectual property is an essential principle of Mshmosh’s community.
Displaying your work on Mshmosh puts it out there for the world to see. You need to be aware that publishing your work in this way attracts legal responsibilities. It is up to you to make sure you are not breaking any laws by publishing your work through Mshmosh.
Respect each other and respect the art you find here and you’ll help make Mshmosh an inspiring and enjoyable community.
It is important you read the agreement below. Using this website means you accept this agreement. If you do not agree with its terms, do not use this website.
• Legal Agreement
• Amendment to this agreement
• Our service
• Putting content on Mshmosh
• Offering art for sale
• Purchasing a Product on Mshmosh
• Paying you after your art is sold
• Mshmosh may cancel orders
• Damaged Goods
• Excess Inventory
• Reporting inappropriate content to Mshmosh
• Specific warnings
• Intellectual property rights and license
• Linked websites
• Security of information
• Termination of access
• Dispute Resolution
• Services Agreement
All visitors (“user”, “you”, “your”) to the Mshmosh website at www.Mshmosh.com (“the website”) are entering a binding legal agreement on the following terms (the “agreement”) when using the website. The agreement is between the user and either or both of Mshmosh Ltd (ACN 119 200 592) OR Mshmosh Inc. ( “Mshmosh”, “we”, “us”, “our” refer to either Mshmosh Ltd or Mshmosh Inc. or both as the context requires) and use of this website indicates continued acceptance of this agreement.
Our services are available only to, and may only be used by, individuals who can form legally binding contracts under applicable law. Our services are not available to persons under 16 years of age.
Amendment to this agreement
We may amend the terms of this agreement from time to time, and we will let you know about these changes either by sending you an email to the email address you have registered with Mshmosh or by displaying information about the changes on our home page, or both. Either way, your continuing use of the website will be taken to be acceptance of the new terms.
Mshmosh provides a range of services (the “Mshmosh service”) which, amongst other things, enable you to publish, sell, discuss and purchase art; interact with other members; and receive the benefits of Mshmosh Inc.’s facilitation of product fulfilment, including payment processing, customer services, third party product manufacturing, and shipping.
The digital content on the website (“content”) may be information, text, data, graphics,images, photographs, sound, video, music or any other material posted online by users. Any content that you upload into the portfolio section of your account is described as your “art”.Your art may be viewed by all users of the website once you elect to publish it. You may order a physical product based on your own art or you may offer your art for sale. If you or a customer decide to place an order, then Mshmosh will forward your instructions to third parties who will manufacture and ship the physical product in the form specified by you or the customer (“the product”).
You can become a registered member (“member”) of the website by setting up a password protected account. You will be required to select a username and password when registering to become a member. You must become a member before placing any content on the website, including writing any comments in forums or reviews. In its sole discretion, Mshmosh may refuse any user name that it decides is inappropriate and / or refuse any person from becoming a member.
You are responsible for actions made on the website using your password, including any products purchased or sold and any content displayed or messages sent, even if these actions were not approved or contemplated by you. You are solely responsible for any loss caused by any use of your password by you, or any other person.
You agree that you will not disclose your password to any other person and you will not keep your password where it can be copied or used by anyone other than you. If you suspect someone else knows your password, you must change it immediately.
Putting content on the Mshmosh site
You keep the copyright in any content you submit or upload to the website. In order to receive the Mshmosh services you grant Mshmosh 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.
Mshmosh 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 Mshmosh 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
Any member may offer their art for sale on the website by appointing Mshmosh 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 and your continued use of the website will constitute ongoing agreement to the terms therein as updated from time to time.
Purchasing a Product on Mshmosh
Users can purchase products on the Mshmosh website using a valid credit card or the PayPal system.
You do not have to be a member to purchase a product.
The price you pay is fixed at the time of ordering.
You may not cancel an order once it has been submitted.
It is the customer’s responsibility to ensure the product delivery address is correct. Mshmosh takes no responsibility for any product a customer does not receive because of errors in the delivery address given to us.
We do not warrant, endorse, make representations about or recommend any content or art offered or provided by any member.
Paying you after your art is sold
Payment terms are explained in the Services Agreement.
You Instruct Mshmosh to cancel incorrect orders
You acknowledge that despite our reasonable precautions, products may be listed at an incorrect price or with incorrect information or may be unavailable. This may be due to an error or similar oversight. You acknowledge that we cannot facilitate an order where such an error exists and hereby instruct us to cancel such an order and take other action as required.
We may also to cancel an order if we believe that it is being made in contravention of this agreement, or in contravention of the rights of any person or any law. We may cancel an order even if it has been confirmed and the customer’s credit card or PayPal account has been charged. We reserve this right up until the time of delivery of the product to that customer. If a cancellation of this nature occurs after the customer has been charged for the product, we will credit the customer’s credit card or PayPal account for the amount in question.
Delivery will be facilitated pursuant to your instructions by postal or courier service and will be paid for by the customer at the price indicated at the time of purchase. Mshmosh Inc. will charge shipping charges which will vary depending upon the size and price of the product.
If a product is delivered to a customer, whether in electronic or printed format, that is electronically or physically damaged in some way (for example, a file does not download, a framed print has cracked, or there are loose or torn pages in a book) Mshmosh will happily contact the manufacturer or seller to issue a replacement copy of the product after receiving reasonable proof of that damage.
If you receive a damaged product, then you must email Mshmosh customer service within 14 days of receipt to tell us about the nature of the damage and to arrange for a new product to be sent to you at no cost to you.
Please be aware that publishing to the website is creator-controlled and we do not screen all of the content on our website. It is the customer’s responsibility to verify the quality of the content (including but not limited to misspelled words, grammatical errors, formatting, design or overall appearance) before ordering a product. This damaged goods policy does not apply to content, only to the physical product.
You grant Mshmosh permission to dispose of any inventory that becomes excess as a result of refund, reprint, fraud, product sampling or promotional activities, in any manner we see fit.
Reporting inappropriate content to Mshmosh
Mshmosh does not manually screen content before it is displayed on the website so occasionally members may inadvertently or deliberately submit and display content that breaches this agreement.
Inappropriate content includes, but is not limited to, content that infringes the copyright or other intellectual property rights of any person or company, or that defames or vilifies any person, people, races, religion or religious group, is obscene, pornographic, indecent, harassing, threatening, harmful, invasive of privacy or publicity rights, abusive, inflammatory or otherwise objectionable. Mshmosh reserves the right (but not the obligation) to remove or edit such content, but does not regularly review posted content.
Please help us by letting us know straight away about any inappropriate, or potentially inappropriate, content you see on the website. You can do this by clicking the “report this work as inappropriate” link that will be displayed beside each piece of art.If you believe your copyright or other intellectual property rights are being infringed, you are able to make a formal complaint by using the processes described in our policy
You must ensure that your access to this website and the Mshmosh service is not illegal or prohibited by laws that apply to you.
You must take your own precautions to ensure that the process that you employ for accessing this website and the Mshmosh service does not expose you to the risk of viruses, malicious computer code or other forms of interference which may damage own computer system. We do not accept responsibility for any interference or damage to any computer system that arises in connection with your use of this website or any linked website.
We do not accept liability for any losses arising directly or indirectly from a failure to provide the Mshmosh service, corruption to or loss of data, errors or interruptions, any suspension or discontinuance of the Mshmosh service, or any transmissions by others in contravention of the registered members’ obligations as set out in this agreement.
You acknowledge that we may not be able to confirm the identity of other registered members or prevent them acting under false pretences or in a manner that infringes the rights of any person.
Intellectual Property Rights and license
By submitting listings to Mshmosh, you grant Mshmosh a non-exclusive, worldwide, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of and display the content of such listings in connection with Mshmosh’s (and its successors’ and affiliates’) services and business, including without limitation for promoting and redistributing part or all of the Mshmosh site (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each user of the Mshmosh 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 User Agreement. The above licenses terminate within a commercially reasonable time after you remove or delete your listings from the Mshmosh 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 Mshmosh service (including the software and systems underlying the Mshmosh 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 Trade Mark 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).
This website incorporates a user review tool that enables you to review the services provided by Mshmosh, or revierw your art or your products offered for sale. This review tool is the intellectual property of a company called ‘Yotpo’ (not Mshmosh). If you use the Yotpo Review Tool then you agree to be bound by the Yotpo terms of service applying to ‘End Users’ located at www.yotpo.com/terms-of-service
Without limiting the Yotpo terms of service, you agree the followiong in relation to use of the Yotpo Review Tool:
• you may only use the Review Tool for your own personal use (i.e. non-commercial use);
• you acknowledge that the Review Tool is Yotpo’s intellectual property – not yours;
• in respect of any reviews or other content you contribute through your use of the Review Tool, you grant Yotpo and Mshmosh the perpetuals right to use that content;
• if the concept of ‘moral rights’ (or analogous rights) in relation to content applies in your country, then you agree to waive those rights, to the extent permitted by local laws;
• you provide your explicit consent to receive post-sale emails sent by Mshmosh (via Yotpo), containing reminders to submit service reviews to the Review Tool and containing recommendations and links to third party goods and/or services, as required by applicable law; and
This website may contain links to other websites (“linked websites”). Those links are provided for convenience only and may not remain current or be maintained.
We are not responsible for the content or privacy practices associated with linked websites.
Our links with linked websites should not be construed as an endorsement, approval or recommendation by us of the owners or operators of those linked websites, or of any information, graphics, materials, products or services referred to or contained on those linked websites, unless and to the extent stipulated to the contrary.
We do not represent or guarantee that the Mshmosh service or this website, or any other website that is accessible using a hyperlink from this website will be free from errors or viruses. We do not represent or guarantee that access to the Mshmosh service or these websites will be uninterrupted.
You acknowledge that the Mshmosh service or this website may be affected by outages, faults or delays. Such outages, faults or delays may be caused by factors, including technical difficulties with the performance or operation of our or another person’s software, equipment or systems, traffic or technical difficulties with the Internet or infrastructure failures.
We do not warrant that any members’ uploads to this website will be protected against loss, or misuse or alteration by third parties. We do not warrant that all uploaded content will be available on our website. If we elect in our sole discretion to make available content on our website, we do not warrant that it will be available within a certain time frame.
We do not accept responsibility for any loss or damage, however caused (including through negligence), that you may directly or indirectly suffer in connection with your use of this website or any linked website, nor do we accept any responsibility for any such loss arising out of your use of or reliance on information contained on or accessed through this website.
To the extent permitted by law, any condition or warranty that would otherwise be implied into these terms and conditions is hereby excluded. Where legislation implies any condition or warranty, and that legislation prohibits us from excluding or modifying the application of, or our liability under, any such condition or warranty, that condition or warranty will be deemed included but our liability will be limited for a breach of that condition or warranty to one or more of the following:
1 if the breach relates to goods:
• the replacement of the goods or the supply of equivalent goods;
• the repair of such goods;
• the payment of the cost of replacing the goods or of acquiring equivalent goods; or
• the payment of the cost of having the goods repaired; and
2 if the breach relates to services:
• the supplying of the services again; or
• the payment of the cost of having the services supplied again
This disclaimer set out in these terms and conditions does not attempt or purport to exclude liability arising under statute if, and to the extent, such liability cannot be lawfully excluded.
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.
Security of information
No data transmission over the Internet can be guaranteed as totally secure. We strive to protect such information, however we do not warrant and cannot ensure the security of any information that you transmit to us. Accordingly, any information that you transmit to us is transmitted at your own risk.
Termination of access
Access to this website may be terminated at any time by us without notice. Our disclaimer will nevertheless survive any such termination.
This User Agreement and all disputes relating to this User Agreement, or relating to your use of any part of the Mshmosh service, will be exclusively resolved under confidential binding arbitration held in San Francisco, California. All disputes will be resolved in accordance with the Rules of JAMS, applying California law, without regard to conflicts of law principles.
You and Mshmosh agree to submit to the personal and exclusive jurisdiction of the Federal and California State courts in San Francisco County for purposes of enforcing any arbitration award. Notwithstanding the foregoing, Mshmosh may seek injunctive or other equitable relief, from a court of competent jurisdiction. You and Mshmosh agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. You and Mshmosh agree that any cause of action arising out of or related to the Mshmosh site (including but not limited to any services provided or made available therein) or this Agreement must commence within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred.
If you have a dispute with one or more users or sellers, you release Mshmosh (and Mshmosh’s officers, directors, agents, subsidiaries, joint ventures and employees) from claims demands and damages (actual and consequential) of every kind of nature, known and unknown, arising out of or in any way connected with such disputes. If you are a California resident, you waive California Civil Code Section 1542 which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor”.
We accept no liability for any failure to comply with this agreement where such failure is due to circumstances beyond our reasonable control.
If we waive any rights available to us under this agreement on one occasion, this does not mean that those rights will automatically be waived on any other occasion.
If any of the terms of this agreement are held to be invalid, unenforceable or illegal for any reason, the remaining terms and conditions shall nevertheless continue in full force.
You may close your account at any time by logging into your account, clicking on the hyperlink titled ‘Cancel Account’, and by clicking on the button titled ‘Yes, I’m serious – really, really cancel my account’ that appears on the subsequent web page.
This service may contain translations powered by Google. Google disclaims all warranties related to the translations, express or implied, including any warranties of accuracy, reliability, and any implied warranties of merchantability, fitness for a particular purpose and noninfringement.
APPENDIX A – Services Agreement
You wish to use Mshmosh’s services to facilitate marketing and sale of your art and to arrange for manufacture and delivery of a physical product (“your product”) once an order has been made through www.Mshmosh.com (“the website”). Mshmosh will provide these services on the terms set out in this Services Agreement.
(The terms “Mshmosh”, “we”, “us”, “our” refer to either Mshmosh Ltd or Mshmosh Inc. or both as the context requires.)
1.1 Mshmosh, acting as independent contractor under your instructions will market to and obtain orders from customers for the purchase of your products over the website and on instruction from you, Mshmosh Inc. will arrange for third parties to fulfil those orders by facilitating payment for and manufacture of your products (“Services”). Mshmosh will then arrange for the delivery of your products as per the customer’s instructions.
1.2 Mshmosh will provide the Services pursuant to this agreement until termination in accordance with its terms.
1.3 You agree that Mshmosh 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 Mshmosh 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 Mshmosh Inc. to facilitate payment, manufacture and shipping in respect of the orders for your product(s) via the website and Mshmosh Inc. will facilitate such payment, manufacturing and shipping 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, Mshmosh’s fee for hosting the marketplace and facilitating the transaction (the manufacturing fee and Mshmosh’s fee are referred to collectively, and inclusive of tax, as the “base amount”), your creator margin (“your margin”), and any relevant tax (such as Sales Tax, GST, VAT, etc). Shipping charges will also be added. When making each individual work available for sale you are able to select any percentage markup you wish, greater than or equal to 0, above the base amount but below the automated upper limit set by Mshmosh (subject to change from time to time). The percentage markup 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 You may change the percentage markup on top of the base amount at any time by changing your selection on the website. 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 Mshmosh 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 Mshmosh 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 and delivered 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 purchaser without passing through us.
4. Payment terms
4.1 You authorize Mshmosh Inc. to collect, hold and distribute the retail price and shipping charges (“sale proceeds”) from customers on the terms set out in this clause 4.
4.2 You authorize Mshmosh Inc. to deduct the base amount and the shipping charges from the sales proceeds for your products before distributing your margin, and tax where relevant to you.
4.3 We will either initiate a PayPal deposit or direct bank deposit before the 7th day of the month for sales made in the previous month, or post you a check before the 10th day of the month for sales made in the previous month, in accordance with the payment method you selected on the website.
4.4 If your elected payment method is by direct bank transfer or PayPal transfer and your earnings for the month in the applicable currency are less than 20 United States of America Dollars (hereafter ‘US$’), 15 Euros, 13 British Pounds, 20 Canadian Dollars or 20 Australian Dollars, then Mshmosh Inc. reserves the right to roll that amount over to the following month and continue to roll it over until you have earned at least the above mentioned amount.
4.5 If your elected payment method is by check and you have earned less than US$100 AU$100 or GBP 65 as applicable, then Mshmosh Inc. reserves the right to roll that amount over to the following month and continue to roll it over until you have earned at least that applicable amount.
4.6 Despite clauses 4.4 and 4.5, you may request payment at any time for the full amount in your account and a US$5 administration fee will apply. Mshmosh Inc. will pay this amount to you within 7 days of your request.
4.7 It is your responsibility to ensure Mshmosh has current details of your postal address and bank account details. Mshmosh 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 Mshmosh of any amendment to the payment method details in that time, you authorize us to donate your margin proceeds to a charity of our choice.
5. Taxation responsibility
5.1 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.
5.2 You will indicate to us on the website whether you are registered for Goods and Services Tax (GST) or similar taxes. If you are required to add GST to your products, that amount will be added to the price charged to the customer. We will collect that amount on your behalf and distribute it to you with your margin using the payment method you have selected on the website.
5.3 If you have an Australian Business Number (ABN) you may submit your ABN to the website where requested. If you do not have an ABN, or if you elect not to submit your ABN 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) exemptions apply to you.
5.4 If you are a resident of the UK or EU, Mshmosh will collect and remit to HMRC VAT on your behalf on the artist margin portion of your sales at a rate of 20% for all sales of goods manufactured in the UK or EU and sold into the UK or EU. Any and all VAT reporting and remittance responsibilities by you to relevant tax authorities, in excess of this withholding are entirely your responsibility.
5.5 For the avoidance of doubt, all tax-related reporting responsibilities by you to relevant tax authorities are entirely your responsibility.
6.1 You hereby indemnify and will keep Mshmosh 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 wilful 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 Mshmosh 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 Mshmosh 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.
8.4 Upon termination of this Services Agreement by either party, Mshmosh will pay you any accrued member margin proceeds from your account, less a US$5 administration fee.