(b) www.brandcrowd.com; and
(c) any other website which We advise You we own and/or operate from time to time which allows users to buy and/or sell designs, and the subdomains and any replacement website of the websites listed above, which We notify to You (together, “Our Websites”).
2.2 This Agreement is between you, the person or company using Our Services ("You", "Your"), and DesignCrowd Pty Ltd ACN 127 272 315 of 2 Hill Street, Surry Hills 2010 Australia (“DesignCrowd”, "We", "Us", or "Our"). References in this Agreement to “You” or “Your” are references to You in the capacity of either a Designer / Creative or Client, or both (as relevant).
2.3 Your use of Our Services is subject to Your agreement to and compliance with the terms of this Agreement.
2.4 By registering on any of Our Websites and using any of Our Services You:
(a) indicate Your acceptance of the terms of this Agreement; and
(b) represent that You are at least eighteen (18) years old.
2.5 When registering to use Our Websites and Our Services, You must register yourself as either a “Designer / Creative” (which includes persons who have previously registered themselves as a “Designer”) or a “Client” (customer).
2.6 By registering on any one of Our Websites, You are also registering yourself on all of Our Websites.
3 Amendments to this Agreement
3.1 We may amend this Agreement (including Our Services) at any time, and will update the applicable part of this Agreement on Our Websites or may provide written notification to You in respect of such amendments. All such amendments will be effective as of the date of publication of the updated applicable part of this Agreement on Our Websites.
3.2 Your continued use of Our Services, after such amendments are made in accordance with clause 2.1, shall be deemed to be acceptance of the amended terms.
4.1 The “Term” of this Agreement commences on the date on which You register with Us on any of Our Websites, and continues until it is terminated by You or Us in accordance with this Agreement.
5 Our Services and Our Websites
5.1 A description of Our Services which we provide on Our Websites is available in the Special Terms and Conditions for each of Our Websites.
5.2 Designer / Creative acknowledges that We may make available for sale on any of Our Websites any of Your Content which You make available for sale on any one of Our Websites, unless You tell us You do not want Your Content to be made available for sale in this manner.
5.3 We reserve the right, at Our sole discretion, to do any of the following in respect of both Designers / Creatives and Clients:
(a) to use or display any of Your Content on any of Our Websites;
(b) to include (including after the termination of this Agreement) references to and/or use any of the Your Content, Your name(s) and/or profile pictures on any of Our Websites;
(c) to refuse to provide any of Our Services to You, including if We believe (at Our discretion) Your Content is capable of breaching Your obligations under this Agreement;
(d) to limit, suspend or terminate any of Our Services to You or remove any of Your Content;
(e) to remove, block, not display and/or not store any of Your Content or any other information or materials at Our discretion, including that which We consider to be offensive or inappropriate, regardless of whether this material is unlawful; and
(f) to cease providing any of Our Services to You in the event payment of Fees is not made in full and on time.
5.4 We may, but are under no obligation to, moderate or monitor the use of Our Services and/or Our Website by Designers / Creatives and Clients, including any of Your Content.
6 Use of Our Services
6.1 Designer / Creative acknowledges that if You make available for sale any of Your Content on any of Our Websites, then:
(a) You warrant that the same Your Content is not then available for sale on any other websites; and
(b) You promise that You will not make the same Your Content available for sale on any other website for so long as it is available for sale on Our Websites.
6.2 Designers / Creatives and Clients must not (and must not permit others to) use Our Websites or any of Our Services to:
(a) publish or provide any material that is defamatory, offensive, harassing, indecent, menacing, obscene or illegal;
(b) engage in, or fail to engage in, any activity in a manner which will expose Us to any liability;
(c) engage in misleading or deceptive conduct or fraud of any kind; and/or
(d) publish or provide access to any content that is unsuitable for people under the age of eighteen (18) years old.
6.3 Designers / Creatives and Clients are responsible for ensuring that We have accurate and up-to-date contact information for You (as applicable), including your full name, postal address, telephone number and email address. We can be contacted at DesignCrowd Pty Ltd ACN 127 272 315 of 2 Hill Street, Surry Hills 2010 Australia.
6.4 If We issue You, as either a Designer / Creative or a Client, with a password You must not reveal it to anyone else. You must not use anyone else’s password.
6.5 Designers / Creatives and Clients must conduct virus scanning and other tests as may be necessary to ensure that any data that is uploaded from, or downloaded to, any of Our Websites does not contain any computer virus. You are solely responsible for the backup of any files in connection with Our Services, including in respect of briefs, work(s), submissions and requirements.
6.6 Designers / Creatives and Clients undertake to ensure that any and all of Your Content:
(a) does not infringe the Intellectual Property Rights or any other rights of any person and that all applicable royalties or licence fees have been paid to secure the use of that material;
(b) is not obscene, illegal, offensive, upsetting, defamatory or in any way unsuitable for people under the age of eighteen (18) years old; and
(c) does not comprise and cannot be used for any purpose or activity of an illegal, fraudulent or defamatory nature.
7 Fees (see our fees page)
7.1 Designers / Creatives and Clients must pay to Us the Fees and any other charges as contemplated by this Agreement or on Our Websites at the rates and/or in the manner specified and referred to in this Agreement or on Our Websites. Clients and Designers / Creatives acknowledge that DesignCrowd sets the prices to be charged to Clients. Clients and Designers / Creatives acknowledge that DesignCrowd separately decides on Designer / Creative budgets and fees. There is not a direct connection between the fees charged to Clients and any disbursements made to Designers / Creatives at DesignCrowd’s discretion.
7.2 Designers / Creatives and Clients must notify Us as soon as possible in respect of any changes to Your billing and account information.
7.3 Under this Agreement, the payment processing services for goods and/or services purchased on one of Our Websites are provided by a third party engaged by DesignCrowd Pty. Ltd on behalf of itself or DesignCrowd LLC, or by DesignCrowd LLC directly, depending on the type of payment method used for the purchase of the goods and/or services. In the event You choose to pay for the goods and/or services with credit card in USD, the payment will be processed via an American Acquirer (that is, a US-based financial institution), and these terms will constitute an agreement between You and DesignCrowd LLC. For any other purchases, these terms constitute an agreement between You and DesignCrowd Pty. Ltd. All goods and/or services will be delivered by DesignCrowd Pty. Ltd.
7.4 The Fees are exclusive of GST, VAT and other similar taxes (where applicable). Without limiting the foregoing, Designers / Creatives and Clients shall be liable for any taxes, duties or charges imposed in respect of Our Services (other than taxes imposed on Our income). For the avoidance of doubt, if the effect of any tax, duty or charge applied to the Fees is to reduce the Our revenue under this Agreement, the Fees will be grossed up such that Our revenue under this Agreement is not reduced. Where required, Clients and Designers / Creatives commit to provide sufficient and accurate information for DesignCrowd to be able to determine appropriate taxes.
7.5 All payments must be made in Australian dollars, US dollars, Canadian Dollars, New Zealand Dollars, Singaporean Dollars, British Pounds or Euros.
7.6 Where we have agreed to make a payment to You, either as a Designer / Creative or a Client, following the receipt by Us of Fees received from another user of Our Services, You acknowledge that:
(a) We may first seek to verify the legitimacy of any payments We received from the other user;
(b) if, in Our reasonable opinion, We believe such payments are not legitimate (including, for example, payments made by the unauthorised use of a credit card), then We can retain and deal with such payments in our Own discretion; and
(c) the relevant transaction under which the illegitimate payment was received by Us will be deemed to be void, and We will not be required to make any payment to You as a result (but may, in Our discretion, make a payment to You equal to the whole or part of the amount which would have otherwise been due to You, depending on how we deal with the illegitimate payment).
(d) no payment made to Us by a Client will directly create an obligation to hold or distribute any funds on behalf of any Designers / Creatives or Clients.
7.7 DesignCrowd does not provide escrow services. DesignCrowd does not, in the regular course of business, hold funds on behalf of any other party. All fees paid to DesignCrowd are the property of DesignCrowd and are paid out to other parties at the discretion of DesignCrowd.
8 Intellectual Property Rights
8.1 Save in respect of Your Content, You acknowledge and agree that all right, title and interest in and to Our Websites and Our Services (including in respect of the software and technology underlying the Our Websites, any documentation or content provided with Our Services, and any know-how, trade marks or service marks of Ours) ("Our Intellectual Property Rights") are vested in Us or in Our licensors or suppliers.
8.2 For the avoidance of doubt, nothing in this Agreement shall be construed as granting You any right, title and interest in and to any of Our Intellectual Property Rights or any other Intellectual Property Rights owned or controlled by Us.
10 Acknowledgements and Warranties
10.1 You warrant and represent that:
(a) You are solely liable and responsible for Your Content;
(b) You are at least eighteen (18) years old;
(c) You have the right, power and authority to enter into this Agreement and grant the rights granted in this Agreement (as applicable);
(d) You shall comply with all applicable laws in Your performance of Your rights and obligations under this Agreement;
(e) None of Your Content infringes the Intellectual Property Rights or any other rights of any person;
(f) Your Content is not the subject of any claim, demand, action or legal proceeding or to Your knowledge any potential or pending claim, demand, action or proceeding;
(g) You will use your full and correct name in creating Your profile and when using Our Websites (for example, when submitting brief(s), quotes and work(s));
(h) Your Content does not contain material that is obscene, illegal, offensive, upsetting, defamatory or in any way unsuitable for people under the age of eighteen (18) years old; and
(i) You are solely responsible for any third party payments or royalties payable in respect of Your Content.
10.2 We warrant and represent that:
(a) We have the right, power and authority to enter into this Agreement; and
(b) We shall comply with all applicable laws in Our performance of Our rights and obligations under this Agreement.
11.1 Our Services and Our Websites are provided “as is” and all guarantees, conditions and warranties expressed, implied or imposed by any legislation, the common law, or otherwise in relation to the supply of Our Services, Our Websites or otherwise in connection with Our obligations under this Agreement are expressly excluded and disclaimed to the fullest extent permitted by law, except where such exclusion is prohibited by law.
11.2 Without limiting clause 11.1, We make no warranty or representation that:
(a) Our Services, Our Websites or any content made available on such will meet Your requirements or expectations;
(b) the use of Our Services, Our Websites or any content made available on such will be uninterrupted, timely, secure, error free or virus free, or unable to be accessed by hackers, viruses or other harmful components;
(c) that results that may be obtained from the use of Our Services, Our Websites or any content made available on such will be accurate or reliable; and
(d) any errors in Our Services, Our Websites or any content made available on such will be corrected.
11.3 Except as otherwise expressly specified in this Agreement, Our liability for any breach of any statutory guarantee or any condition, warranty or other obligation which is implied or imposed by law which cannot be excluded by agreement, shall not exceed, if permitted by law, at Our option:
(a) in the case of the supply of goods: (i) the replacement of the goods or the supply of equivalent goods; or (ii) the repair of the goods; or (iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or (iv) the payment of the cost of having the goods repaired; or
(b) in the case of the supply of services: (i) the supply of the services again; or (ii) the payment of the cost of having the services supplied again.
For the avoidance of doubt, nothing in this Agreement shall operate to exclude or restrict a party’s liability where such exclusion or restriction is prohibited by law.
11.4 To the maximum extent permitted by law, in relation to Our Services and the subject matter of this Agreement in no event shall We or Our employees, officers, representatives and directors be liable for any loss of profits, management time, savings, contracts, revenue, interest, goodwill, data, or for any penalties, fines, or for any consequential, special, indirect, or exemplary damages, costs, expenses, or losses (including negligence).
11.5 To the maximum extent permitted by law, You agree that We, Our employees, officers, representatives and directors shall not be liable to You for any actions, damages, claims, liabilities, costs, expenses, or losses in any way arising out of or relating to this Agreement (whether that liability arises in contract, tort (including negligence) or statute) which are not otherwise excluded or limited for an aggregate amount in excess of the sum of the applicable Fees in respect of the transaction or project that gave rise to the relevant loss.
12.1 You indemnify and hold Us (and Our directors and employees), harmless against all loss, damage, liability, costs and expenses (including legal costs) suffered or incurred by Us:
(a) in respect of any claim or demand made by any person in connection with any of Your Content (as applicable) (including from a person’s use of Your Content);
(b) in respect of any claim or demand made by any person in connection with Your use of any content obtained through Our Services;
(c) in respect of any claim that any of Your Content (as applicable) infringes the Intellectual Property Rights of any person; and/or
(d) in respect of Your (or any person claiming through You) use of the Our Services or Our Website or resulting from a breach of this Agreement by You and/or the violation by You of any law.
13 Suspension or termination
13.1 Without limiting any other rights of termination under this Agreement and subject to clauses 13.5 and 13.6, You may close Your account with Us and terminate this Agreement at any time and for any reason on written notice to Us.
13.2 Without limiting any other rights of termination under this Agreement and subject to clauses 13.5 and 13.6, We may close Your account with Us and terminate this Agreement at any time and for any reason on written notice to You.
13.3 In addition to any other rights of suspension or termination under this Agreement, from time to time during the Term We may, without notice to You, suspend, disconnect or deny You access to any of Our Services if You fail to comply with any of Your obligations under this Agreement until the breach (if capable of remedy) is cured to Our satisfaction. If You breach the terms of this Agreement, We reserve the right not to make any payment to You, which You may otherwise be entitled to under this Agreement.
13.4 Any amounts paid to Us up to and including the date of termination will not be refundable.
13.5 If this Agreement is terminated You must immediately pay to Us all outstanding amounts owing to Us under this Agreement as at the date of termination.
13.6 Termination of this Agreement will not extinguish or otherwise affect any accrued rights or remedies of either party. The following clauses continue to apply after termination: Clauses 5.3, 6, 8 to 17 (inclusive).
13.7 If Your account on one of Our Websites is closed then we may close Your account on the other of Our Websites.
14.1 A party shall not, without the prior written approval of the other party, disclose the other party’s Confidential Information. A party shall not be in breach of this Agreement in circumstances where it is legally compelled to disclose the other party’s Confidential Information.
14.2 Each party shall take all reasonable steps to ensure that its employees and agents do not disclose the other party’s Confidential Information.
14.3 The parties may disclose the other party’s Confidential Information:
(a) to its related companies, solicitors, auditors, insurers and accountants who require information for the purpose of this Agreement; or
(b) if required to disclose the information by law or the rules of any Stock Exchange.
15 Governing law and dispute resolution
15.1 This Agreement is governed by the laws of New South Wales Australia and the parties submit to the non-exclusive jurisdiction of the courts exercising jurisdiction there.
15.2 A party must not commence any arbitration or court proceedings relating to a dispute unless it has complied with the provisions of this clause, except where a party seeks urgent injunctive relief.
15.3 If there is a dispute arising out of or in connection with this Agreement, then:
(a) the party raising the dispute must first notify the other party in writing of the dispute, and provide sufficient detail to enable the dispute to be considered;
(b) the parties must discuss or enter into correspondence about the dispute and attempt to resolve it; and
(c) if the dispute is not resolved within 14 days of when the dispute was first notified, then the dispute is to be resolved in accordance with clauses 15.4 and 15.5.
15.4 If You are an Australian resident or a company incorporated in Australia, then any dispute or difference arising out of or in connection with this Agreement shall be submitted to arbitration in accordance with, and subject to, the Institute of Arbitrators and Mediators Australia Fast Track Arbitration Rules.
15.5 If You are not an Australian resident or a company incorporated outside of Australia, then:
(a) the dispute will be finally settled under the Rules of Arbitration of the International Chamber of Commerce (the “Rules”) by one arbitrator appointed in accordance with the Rules;
(b) the arbitration will be conducted under the law governing this Agreement as set out in clause 15.1;
(c) the place of arbitration will be Sydney, Australia;
(d) the language of the arbitration will be English; and
(e) any judgment or award rendered by the arbitrator may be entered in any court having jurisdiction to do so including the enforcement of any arbitration award in accordance with the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958.
16.1 You must not assign this Agreement without Our prior written consent.
16.2 We may assign, novate or otherwise deal with this Agreement, or any rights or obligations under this Agreement, at any time without Your consent by transfer to a third party. To the extent that You are required to give your consent to such an assignment, novation or other dealing, You hereby give your consent.
16.3 All notices must be in writing and addressed to the relevant party at the address as provided pursuant to this Agreement.
16.4 Each party must take all steps as may be reasonably required by the other party to give effect to the terms of this Agreement and transactions contemplated by this Agreement.
16.5 This Agreement contains the entire agreement between the parties with respect to its subject matter.
16.6 Each party acknowledges that in entering into this Agreement it has not relied on any representation or warranties about its subject matter except as provided in this Agreement.
16.7 No delay, neglect or forbearance on the part of any party in enforcing against any other party any obligation under this Agreement will operate as a waiver or in any way prejudice any right under this Agreement.
16.8 If any provision of this Agreement is held to be invalid, illegal or unenforceable, this Agreement will continue otherwise in full force and effect apart from such provision which will be taken to be deleted.
17 Definitions and interpretation
17.1 Definitions In this Agreement, unless the context otherwise requires:
“Agreement” has the meaning given in clause 2.1;
"Client" means a person or entity that registers with Us as a "Client" in accordance with Our registration procedure;
"Confidential Information" means the confidential information of a party which relates to the subject matter of this Agreement which is not already in the public domain through no breach by the recipient of its obligations of confidentiality owed to the discloser;
“Designer / Creative” means a person or entity that registers with Us as a "Designer / Creative", or who has previously registered with Us as a “Designer”, in accordance with Our registration procedure;
"Fees" means the fees payable for using Our Services, as set out on Our Websites, as amended from time to time;
"GST" means applicable goods and services tax or any similar tax;
"Intellectual Property Rights" means all industrial and intellectual property rights including, but not limited to, copyright, trade marks, patents, circuit layouts, artwork, designs and confidential information and know how;
“Our Intellectual Property Rights” has the meaning given in clause 8.1;
”Our Services” means the service provided by Us pursuant to this Agreement, and through Our Websites, as described in clause 5.1;
”Our Websites” has the meaning given in clause 1.1;
"Term" means the duration of this Agreement, as specified in clause 4; and
"Your Content" means all content and materials uploaded, provided or submitted by You or on Your behalf to Our Website or otherwise in connection with Our Services, including any logos, designs, images, documentation, written and/or audio-visual content, music, recordings, photographs, illustrations, information or specifications.
The following rules of interpretation apply to this Agreement unless the context requires otherwise:
(a) headings are for convenience only and do not affect interpretation;
(b) the singular includes the plural and conversely;
(c) a gender includes all genders;
(d) where a word or phrase is defined its other grammatical forms have a corresponding meaning;
(e) the words "such as", "including", "particularly" and similar expressions are not used as nor are intended to be interpreted as words of limitation;
(f) a reference to a person includes a body corporate, an unincorporated body or other entity and conversely;
(g) a reference to a clause or schedule is to a clause or schedule to this Agreement;
(h) a reference to any party to this Agreement or any other agreement or document includes the party's successors and assigns;
(i) a reference to any agreement or document is to that agreement or document as amended, novated, supplemented, varied or replaced from time to time, where applicable, in accordance with this Agreement or that other agreement or document;
(j) a reference to any legislation or to any provision of any legislation includes any modification or re-enactment of it, any legislative provision substituted for it and all regulations and statutory instruments issued under it; and
(k) a reference to conduct includes any omissions, statement or undertaking, whether or not in writing.