using any of Our Websites.
(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”).
1.2 Special Terms and Conditions: Each of Our Websites is also governed by
their own set of “Special Terms and Conditions”, in addition to these Common Terms
of Use. Before using any of Our Websites, You should also carefully read the
Special Terms and Conditions that apply to that website.
1.3 Inconsistency: If there is any inconsistency between these Common Terms
of Use and the Special Terms and Conditions, then the provisions of the Special
Terms and Conditions will prevail to the extent of the inconsistency.
of Our Website together constitute the Agreement.
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 ("We", "Us", "Our"). References in
this Agreement to “You” or “Your” are references to You in the capacity of either
a Designer 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” or a “Client”.
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 the 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 the Agreement on
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 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 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 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 Service 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 without limitation that
which we deem 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 and Clients, including without limitation
any of Your Content.
6 Use of Our Services
6.1 Designer 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 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 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 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 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 without limitation
in respect of briefs, work(s), submissions and requirements.
6.6 Designers 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 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.
7.1 Designers 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.
7.2 Designers and Clients must notify Us as soon as possible in respect of
any changes to Your billing and account information.
7.3 Designers and Clients acknowledge that Fees are processed via a third party
payment processing service and will be subject to the applicable terms and conditions
offered by such third party.
7.4 The Fees are exclusive of GST, VAT and other similar taxes (where applicable).
Without limiting the foregoing, Designers 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.
7.5 All payments must be made in Australian dollars, US dollars, British pound
7.6 Where we are required to make a payment to You, either as a Designer 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).
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
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
9.1 All of the personal information We collect from You is subject to Our privacy
policy, a copy of which is accessible via Our Websites.
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 the 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
11.4 To the maximum extent permitted by law, in relation to the 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, invest, 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
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
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,
(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
15.4 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
"Designer" means a person or entity that registers 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,
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
(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
(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
(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;
(k) a reference to conduct includes, without limitation, any omissions, statement
or undertaking, whether or not in writing.