Designer / Client Contract

Refund Policy

DesignCrowd - Designer / Client Contract

1 Agreement and Background

1.1 Designer and DesignCrowd are parties to an agreement in relation to the DesignCrowd Service (Designer Agreement).

1.2 Client and DesignCrowd are parties to an agreement in relation to the DesignCrowd Service (Client Agreement).

1.3 Under the terms of the Designer Agreement and Client Agreement, the Designer and the Client agreed that upon the selection or approval by Client of a Work created and submitted using the DesignCrowd Service in accordance with the Designer Agreement and Client Agreement, and in the other situations described in those Agreements, Designer and Client enter an agreement to transfer rights to the Works from the Designer to the Client.

1.4 The Designer and the Client agree to enter into this Agreement in respect of such Work on the following terms.

2 Grant of Rights

2.1 In consideration of the payment to Designer of the Project Payment from DesignCrowd, Designer hereby assigns to Client and its successors in title all rights, title and interest (including all Intellectual Property Rights) in and to the Work (and every part thereof).

2.2 The rights granted to Client in clause 2.1, shall include a sole and exclusive right for the Client to (and authorise others to):

(a) adapt and/or alter the Work (and any part thereof); and/or

(b) use, distribute, reproduce, communicate to the public, promote and/or exploit the Work (and any part thereof),

anywhere in the world.

2.3 Designer acknowledges and agrees that from the date of this Agreement:

(a) Client is under no obligation to use the Work (or any part thereof) at any time;

(b) Designer must not use and/or exploit (or authorise any third party to use and/or exploit) any part of the Work without Client’s prior written consent which may be withheld in Client’s sole discretion save that Designer may use the Work (or part thereof) solely for promotional purposes:

(i) as part of Designer’s portfolio on the DesignCrowd Service and/or using the DesignCrowd "widget" on the DesignCrowd Service to display designs submitted by Designer; and

(ii) unless the Work is submitted in respect of a Paid Project that Client has selected as a "private" Project, outside the DesignCrowd Service in Designer’s portfolio of designs to promote the Designer’s design work. For the avoidance of doubt, if the Work is submitted in respect of a Project that Client has selected as a "private" Project, Designer’s only permitted use of the Work shall be as specified in this clause; and

(c) Designer is not entitled to any sums or payment from Client or any other party in respect of the Work, other than the Project Payment from DesignCrowd.

2.4 Designer and Client acknowledge that under the terms of their Designer Agreement or Client Agreement (as applicable), DesignCrowd is granted a, worldwide, non-exclusive, royalty-free, transferable licence to use, reproduce, and display the Work (and all parts thereof) for purposes of, and reasonably incidental to, promotion of the DesignCrowd Services, (including on Our Website and in any marketing materials, press or promotional materials related to the DesignCrowd Service) ("Promotional Licence"). Nothing in this Agreement is intended to limit or restrict such Promotional Licence.

3 Moral rights

3.1 Designer warrants that written consents have been obtained from all persons and/or entities engaged by Designer in the production of the Work in respect of the exercise of all rights as afforded under this Agreement without infringement of any Moral Rights in the product of their services.

3.2 Designer must procure all consents to Client exercising all rights as afforded under this Agreement and reproducing or otherwise exploiting the Work (and any part thereof) without infringement of any person’s Moral Rights, and to doing any other acts that might otherwise infringe any person’s Moral Rights.

4 Warranties

4.1 Each party warrants and represents that:

(a) it has the right, power and authority to enter into this Agreement; and

(b) it shall comply with all applicable laws in its performance of its rights and obligations under this Agreement.

4.2 In addition to the warranties in clause 4.1, Designer warrants and represents that:

(a) the Work (and any part thereof) does not infringe the Intellectual Property Rights or any other rights of any person;

(b) the Work (and any part thereof) is not the subject of any claim, demand, action or legal proceeding or, to Designer’s best knowledge, any potential or pending claim, demand, action or proceeding;

(d) Designer owns the copyright in the Work or, to the extent the copyright in any part of the Work is owned by a third party, Designer has obtained all licences, consents and/or permissions required to permit Designer to use, reproduce and amend such part (as applicable) as required to enable Client to exploit the Work in accordance with this Agreement;

(e) Designer will act in good faith at all times towards Client and provide such assistance and co-operation as is reasonable and practicable on request by Client;

(f) the Work is delivered to Client free from third party encumbrances and Designer has obtained a full buy-out of all rights of any third party engaged by Designer or in respect of the production of the Work;

(g) Designer has not done, nor permitted to be done, and will not do or permit, any act or thing by which any of the rights granted herein have been or may be in any way impaired;

(h) Designer is solely responsible for any third party payments or royalties payable in respect of the Work;

(i) Designer will sign whatever documents and take any action reasonably necessary that Client requires to give effect to the terms of this Agreement and Designer will do nothing which would or is likely to prejudice Client’s rights hereunder; and

(j) Designer has not entered into any other agreement, arrangements or understandings which may conflict with the terms of this Agreement.

4.3 Designer must immediately advise Client of any infringement or threatened infringement, unauthorised use, or attack or threatened attack on the validity of any Intellectual Property Rights in connection with the Work which may come to Designer’s attention.

5 Intellectual Property Infringement by a Third Party

5.1 Designer will indemnify the Client against any loss, damage, liability, costs or expenses (including legal costs) suffered or incurred by Client as a result of a claim by a third party against the Client that the Work infringes the Intellectual Property Rights of any third party.

5.2 Client may in its absolute discretion determine whether or not it shall take or defend legal or other action against any third party for any actual or threatened or suspected infringement of any rights in and to the Work, and if Client elects to take legal or other action, Client:

(a) shall have sole control over the form and conduct of such action;

(b) may settle, compromise or discontinue the action as it thinks fit; and

5.3 Designer will give Client all authority, information and assistance reasonably requested by Client to assist Client to initiate, litigate, settle or compromise any proceedings in respect of any such infringement or misuse pursuant to this clause 5 at no additional cost to Client.

6 Confidentiality

6.1 A party (the Receiving Party) must keep the Confidential Information of the other party (the Disclosing Party) confidential and may only use the Confidential Information of the Disclosing Party for the purposes of performing its obligations and exercising its rights under this Agreement.

6.2 The Disclosing Party must take reasonable steps to protect the Confidential Information of the Disclosing Party against unauthorised use or disclosure and take steps at least as stringent as those used by the Receiving Party to protect its own confidential information.

6.3 The Receiving Party may disclose the Disclosing Party’s Confidential Information:

(a) in accordance with any rights granted under this Agreement and to its employees, contractors, agents, related companies, solicitors, auditors, insurers and accountants who need to know such Confidential Information provided that the Receiving Party ensures that those recipients keep such Confidential Information confidential in accordance with this clause;

(i) to the extent required by law or the rules of any Stock Exchange; or

(ii) with the prior written consent of the Disclosing Party.

6.4 On request by the Disclosing Party, the Receiving Party must immediately return to the Disclosing Party or destroy all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control, except for any Confidential Information which:

(a) needs to be retained for the purpose of actual or potential litigation or other record-keeping purposes; or

(b) is on back-up or archival storage media, or shared storage systems such as email, and it is not practical to do so.

7 Acknowledgement

7.1 Designer and Client each acknowledge that:

(a) DesignCrowd is not a party to this Agreement;

(b) to the extent permitted by law, DesignCrowd is not responsible for, and will not be liable in respect of, any breach or failure to perform by Designer or Client of any terms of this Agreement; and

(c) to the extent permitted by law, DesignCrowd has no control over and does not accept responsibility for the acts or omissions of Designer, Client or other third parties in connection with the DesignCrowd Service or the DesignCrowd Site.

8 General

8.1 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.

8.2 All notices must be in writing and addressed to the relevant party at the address as provided pursuant to this Agreement.

8.3 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.

8.4 Entire agreement.

(a) Nothing in this Agreement limits any liability either party may have in connection with any representations or other communications (either oral or written) made prior to or during the term of this Agreement, where such liability cannot be lawfully excluded (which may include liability under section 18 of the Australian Consumer Law).

(b) Subject to paragraph (a), this Agreement contains the entire agreement between the parties with respect to its subject matter.

8.5 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.

8.6 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.

8.7 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.

9 Definitions and Interpretation

9.1 Definitions In this Agreement, unless the context otherwise requires:

"Confidential Information" means the information of a party which relates to the subject matter of this Agreement which is not already in the public domain through no breach of the recipient of its obligations of confidentiality owed to the discloser;

"DesignCrowd" means DesignCrowd Pty Ltd (a private company registered in Australia Australian Business Number (ABN): 26 127 272 315) of 44a Foveaux Street, Surry Hills 2010 Australia;

"DesignCrowd Site" means https://www.designcrowd.com/ or any other replacement website in connection with the DesignCrowd Service;

"DesignCrowd Service" means the service provided by DesignCrowd pursuant to the Terms of Use and described in the Service Terms and Conditions;

"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;

"Moral Rights" means moral rights pursuant to the Copyright Act 1968 (Cth) including without limitation a right of attribution of authorship, the right not to have authorship falsely attributed, and the right of integrity or authorship;

"Project" means a design project in connection with the DesignCrowd Service;

"Project Payment" means the fees payable to Designer in respect of the Project, as set out in the Service Terms and Conditions and Terms of Use;

“Service Terms and Conditions” means the service terms for the DesignCrowd Service.

"Terms of Use" means the agreement between DesignCrowd and Client or DesignCrowd and Designer (as applicable) governing Client’s and Designer’s use of the DesignCrowd Service (as applicable) as described in the DesignCrowd Terms of Use; and

"Work(s)" means designs, artwork, photographs, text, copy and other works submitted by a Designer to the DesignCrowd Service in connection with a Project and selected as the "winning work" or approved by the Client in relation to that Project in accordance with the Service Terms and Conditions.

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