99designs general service agreement _ 99designs

12/27/11 99designs General Service Agreement | 99designs

1/1299designs.com/legal/general-services-agreement

99designs general services agreementThe use of the online services provided by 99designs Pty Ltd, Australian Company Number 121 195 248 ("99designs"), is governed

by both the terms and conditions set out below as w ell as each Addendum ("this Agreement"). Without limiting the w ays in w hich

you may be bound by this Agreement, by signing a document agreeing to be bound by this Agreement, by clicking a button or

checkbox on your computer screen including your acceptance of this Agreement, or by proceeding to use the Services (as defined

below ) you w ill be deemed to have accepted and w ill be bound by the terms and conditions of this Agreement.

1. Definitions and interpretation

1.1 DefinitionsIn this Agreement, the follow ing terms w ill have the follow ing meanings, unless the context otherw ise requires:

1-to-1 Invoice Services Addendummeans the addendum to this Agreement by that name w hich sets out the terms and conditions applying to Designers

and Customers in relation to their use of the 1-to-1 Invoice Services portion of the 99designs platform;

99design Creditsmeans either or both Dollar Credits and Bonus Credits;

99designsmeans 99designs Pty Ltd, Australian Company Number 121 195 248;

99designs.commeans the 99designs w ebsite and underlying softw are and infrastructure w hich permits the provision of the

Services;

Addendummeans the Design Contest Services Addendum and the Ready-made Design Services Addendum;

Amendment Datehas the meaning given in clause 15.1;

Bonus Creditsmeans credits or vouchers w ith 99designs w hich may be exchanged for certain goods and services offered by

99designs but w hich cannot be redeemed for cash;

Customermeans a person w ho hosts a Design Contest fo one or more Designers to create a Design to fulf il the requirements

of the person's Design Brief or w ho purchases a Design from the Ready-made Design Store;

Customer Paymenthas the meaning given in clause 5.3(a);

Designmeans a graphic design or image w hich a Customer engages a Designer to create as part of a Design Contest or

w hich the Customer otherw ise purchases from a Designer via the Ready-made Design Store;

Design Briefmeans a Customer's requirements for a Design;

Design Contestmeans the procedure pursuant to w hich a Customer invites one or more Designers to submit Design concepts for

the provision of a Design to the Customer pursuant to the terms of this Agreement, the w inner(s) of w hich w ill be

those Designers w ho tender Designs selected by a Customer (for the avoidance of doubt, more than one Designer

may w in a Design Contest);

Design Contest Services Addendummeans the document by that name w hich governs the participation of Designers and Customers in Design Contests;

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Design Transfer Agreementmeans the document by that name (or a similar name) w hich sets out a default set of terms and conditions

governing the separate agreement betw een the Customer and Designer described in clause 4;

Designermeans a person w ho creates a Design in response to a Customer's Design Brief as part of a Design Contest or

otherw ise offers for sale a Design in the Ready-made Design Store;

Designer Feehas the meaning given in clause 5.3(a)(i);

Dollar Creditsmeans credits or vouchers for the purchase of goods or services from 99designs, w hich may be redeemed for

United States dollars ("US Dollars") or other currencies;

Indemnifiedhas the meaning given in clause 13;

Intellectual Property Rightsmeans all intellectual property rights of any type w hatsoever throughout the w orld including all rights arising under

copyright, patent right, trademark, trade secret and other, similar doctrines, w hether or not such rights are

registered or able to be registered;

Personal Informationhas the meaning given in clause 8.1;

Ready-made Design Storemeans the marketplace on 99designs.com on w hich Designers may offer Designs for sale to Customers (but not a

sale via a Design Contest);

Ready-made Design Services Addendummeans the addendum to this Agreement by that name w hich sets out the terms and conditions applying to Designers

and Customers in relation to their use of the Ready-made Design Store;

Servicesmeans the services provided by 99designs w hich are described in clause 2;

Stock Imagesmeans images, logos or other artistic w orks w hich may be purchased from a third party w ebsite or directly from a

third party;

Taxesmeans any applicable duties, sales taxes, GST, VAT or other taxes w hich may be levied in respect of a transaction

contemplated by this Agreement;

Third Party Workmeans any image, logo, artistic w ork, literary w ork or other item or thing (including a Stock Image) in w hich the

Intellectual Property Rights are ow ned by a third party; and

User Accountmeans an online account w ith 99designs w hich enables you to use 99designs.com.

1.2 Rules for InterpretationIn the interpretation of this Agreement, unless the contrary intention appears:

(a) a reference to this Agreement means a reference to an agreement betw een you and 99designs on the terms

and conditions of the documents described in clause 1.3, and includes an amendment or supplement to, or

replacement or novation of this Agreement;

(b) the w ords "includes" or "including" mean "includes w ithout limitation" or "including w ithout limitation";

(c) a reference to a person includes a reference to a corporation, f irm, association or other entity, and vice versa;

(d) the singular includes the plural and vice versa;

(e) a reference to any gender includes a reference to all other genders;

(f) a reference to any legislation or to any provision of any legislation includes a reference to any modif ication or re-

enactment of or any provisions substituted for such legislation or provisions;

(g) an agreement, representation or w arranty made by tw o or more persons is made by them jointly and by each of

them severally;

(h) w here an expression is defined, another part of speech or grammatical form of that expression has a

corresponding meaning; and

(i) headings are inserted for convenience only and do not affect the interpretation of this Agreement.



1.3 What documents comprise this Agreement?(a) This Agreement is made up of the follow ing documents:

(i) the terms and conditions contained in this document;

(ii) the Design Contest Services Addendum;

(iii) the Ready-made Design Services Addendum; and

(iv) the 1-to-1 Invoice Services Addendum.

(b) In interpreting this Agreement, the terms and conditions contained in this document w ill override and take

precedence over any inconsistent term contained in the Addendums.

2. Services offered by 99designs

2.1 99designs provides online services relating to the sale, purchase and supply of Designs, inaccordance with and subject to, the terms and conditions of this Agreement ("Services"), whereby:

(a) Customers and Designers may participate in Design Contests in accordance w ith this Agreement, including the

terms of the Design Contest Services Addendum, a copy of w hich may be found here;

(b) Customers and Designers may sell and purchase Designs from the Ready-made Design Store in accordance

w ith this Agreement, including the Ready-made Design Services Addendum, a copy of w hich may be found here;

(c) Customers and Designers may provide to Customers, and Customers may purchase from Designers additional

design services in accordance w ith this Agreement, including the 1-to-1 Invoice Services Addendum, a copy of

w hich may be found here; and

(d) Customers and Designers may receive other goods and services from 99designs as set out in this Agreement.

2.2 You, as a user of the Services, may use the Services in the capacity as a Customer, Designer orboth a Customer and a Designer. The terms and conditions of this Agreement will apply to your use ofthe Services in either or both of those capacities.

3. Creating a user account to use the services

3.1 Creating a User Account(a) You agree to create a User Account w ith 99designs in order to use the Services.

(b) Your User Account w ill be created using 99designs's online sign up process, or any other method specif ied by

99designs from time to time.

(c) Your User Account w ill permit you to login to 99designs.com to manage your User Account, make use of

99designs.com and to manage other details involving your relationship w ith 99designs.

(d) You agree to keep confidential and secure any username or passw ord used to access your User Account.

(e) You w arrant that all information provided to 99designs in the setup of your User Account is true and correct in

every detail.

(f) You agree to maintain only one User Account in relation to your use of the Services and 99designs.com.

(g) You agree to provide 99designs w ith all identif ication documents (including copies of passports and drivers

licences) w hich 99designs requests from you from time to time for the purposes of verifying your identity.

(h) All users of the Services must be 18 years of age or older. By creating a User Account, you represent and

w arrant to 99designs that you are 18 years of age or older and you can form legally binding agreements under

applicable law . You may how ever permit minors under 18 years of age to use your User Account on your behalf

provided that you are their parent or legal guardian, and provided that their use of your User Account occurs under

your supervision at all times. If you do permit a minor to use your User Account in accordance w ith the forgoing then

you agree that you are responsible for their actions, omissions or negligence and you indemnify 99designs against

any loss, cost, expense or damage it may suffer as a result of the same.

(i) If you are using the Services on behalf of your employer, then both you and your employer w ill be bound jointly

and severally in relation to this Agreement and your employer w ill be responsible for your actions. Further you

w arrant that you have full authority to enter into this Agreement on behalf of your employer.

3.2 Use of your User Account and 99designs.comYou agree that you w ill only use your User Account and 99designs.com for the purposes of using the Services and for

no other purpose. In particular, in using your User Account and accessing 99designs.com, you w ill not:

(a) subject to clause 3.1(h), resell or sublicense the use of 99designs.com or your User Account to any other



person;

(b) use your User Account to promote the services of a competitor of 99designs w ithout f irst obtaining the prior

w ritten consent of 99designs;

(c) use your User Account in a fraudulent or illegal manner, or email or send any materials from your User Account

w hich are offensive, unlaw ful, harassing, libellous, defamatory, abusive, threatening, harmful, vulgar, obscene or

otherw ise objectionable or in violation of applicable law ;

(d) use your User Account to stalk or harass another person;

(e) use your User Account to impersonate any person in any w ay w hatsoever;

(f) use your User Account to infringe the copyright, trademark, patent or other Intellectual Property Rights of any

person;

(g) use your User Account for sending advertising, chain letters, junk mail, "spamming" or any other type of

unsolicited email;

(h) forge or alter the header or address information contained in any email or communication w hich you send from

your User Account or in relation to the Services;

(i) use your User Account to send or deliver viruses, spyw are, malw are or other harmful, disruptive, or destructive

files;

(j) use your User Account in such a w ay w hich damages 99designs.com or denies access to 99designs.com to

other users of 99designs.com;

(k) intentionally or recklessly use your User Account in a w ay that degrades the performance of 99designs.com for

other users; and

(l) cancel any Design Contest or other sale or purchase of a Design for the purpose of contracting separately w ith a

Designer or Customer you meet through 99designs.com w hich results in you avoiding paying 99designs any

Customer Payment or any fees and charges of 99designs. In these circumstances, w ithout limiting 99designs

remedies against you, 99designs may recover its lost fees and charges and the Customer Payment from you by

suspending your User Account and/or deducting its loss from any 99design Credits in your User Account.

4. Supply of designs from designers to customers

4.1 The supply of a Design from a Designer to a Customer will be made in accordance with theReadymade Design Services Addendum or Design Contest Services Addendum (whichever applies).

4.2 Once a Customer selects a winning Design in a Design Contest or purchases a Design on theReady-made Design Store, the Customer and the Designer will be deemed to have entered into aseparate binding agreement in relation to the provision of the Design and the Customer's rights inrelation to the Design. 99designs and its third party providers will not be a party to this separateagreement and will have no liability whatsoever in relation to the performance or failure to perform of aCustomer or Designer under the terms of the separate agreement. The terms of the separateagreement will be:

(a) in the case of Designs sold from the Ready-made Design Store, on the terms of the Design Transfer Agreement,

a copy of w hich may be found here; and

(b) in the case of a Design sold pursuant to a Design Contest, unless separately agreed in w riting betw een a

Customer and Designer, on the terms of the Design Transfer Agreement.

4.3 By entering into this Agreement but subject to clause 4.2, you agree that you will be bound by theDesign Transfer Agreement in your capacity as a Customer who purchases a Design or a Designerwho provides a Design.

5. Payments

5.1 99designs Credits(a) You may pay for goods and services provided by 99designs, including design services invoiced through the 1-

to-1 Invoice Services, by exchanging 99designs Credits in return for those goods and services.

(b) You may purchase 99designs Credits at any time via 99designs.com. 99designs Credits may be purchased via

your credit card, PayPal or any other method of payment specif ied from time to time by 99designs.

(c) There are tw o types of 99designs Credits:

(i) Dollar Credits; and

(ii) Bonus Credits.



(d) Each Dollar Credit is equivalent to one US dollar.

(e) Bonus Credits are not equivalent to any currency. They may how ever be used to purchase or obtain discounts

on certain specif ied goods and services from 99designs.

(f) 99designs Credits are not legal tender and cannot be traded or sold to third parties. 99designs Credits are only

exchangeable for goods and services provided by 99designs in accordance w ith pricing and rules specif ied by

99designs from time to time.

(g) Any Dollar Credit w hich includes a fraction of a cent may be reduced by 99designs to the nearest w hole

number.

(h) The balance of any 99designs Credits held by you may be reduced at any time by 99designs for any amount

ow ing by you to 99designs on any account w hatsoever including in relation to compensating 99designs for any loss

that it determines (in its sole and absolute discretion) it has suffered as a result of any breach of this Agreement by

you.

5.2 Converting Dollar Credits to amounts payable to you(a) You may at any time, convert Dollar Credits w hich you hold in your User Account to US dollars or any other

currency permitted by 99designs.com and request payment of those amounts to you. Any such payments w ill be

made via the payment method specif ied by 99designs from time to time and selected by you in your User Account.

Any such payment by 99designs to you may be reduced by any amount ow ing by you to 99designs on any account

w hatsoever and may also be reduced by any related administration fees and charges imposed by 99designs from

time to time.

(b) Any payment to you in a currency other than US dollars w ill be made at an exchange rate determined by

99designs in its sole discretion. You w ill bear all risk in relation to any loss you may make as a result of the

exchange of US dollars to another currency.

(c) Any w ithdraw al of Dollar Credits in accordance w ith this clause may be subject to minimum or maximum

w ithdraw al amounts specif ied by 99designs from time to time.

(d) 99designs may refuse to permit you to w ithdraw Dollar Credits w here it considers that as at the date of

w ithdraw al you are in breach of this Agreement or 99designs considers that you or another Customer or Designer

w ho is a party to the separate agreement described in clause 4 is in breach of the terms of that agreement.

5.3 The amount payable by a Customer(a) When you, as a Customer, purchase a Design, you w ill pay 99designs a total amount ("Customer Payment")

w hich is comprised of:

(i) the price or portion of the Customer Payment w hich w ill be paid to the Designer for their Design, including

any design services invoiced through the 1-to-1 Invoice Services, w hich is the total amount of the Customer

Payment minus the amounts set out in clauses 5.3(a)(ii) to 5.3(a)(vi) below , as applicable ("Designer Fee");

(ii) any fees and charges imposed by 99designs (as they exist from time to time);

(iii) any fees and charges imposed by any third party on 99designs in respect of a Design Contest or the sale

or purchase of a Design on the Ready-made Design Store;

(iv) any Taxes w hich may be levied on the provision of the Design, including any design services invoiced

through the 1-to-1 Invoice Services, to you;

(v) any Taxes w hich may be levied on the provision of any other goods or services by 99designs to you; and

(vi) any other portion of the Customer Payment retained by 99designs after deduction or payment of the above

amounts.

(b) The total amount of the Customer Payment w ill be either:

(i) specif ied by you as required under the Design Contest Services Addendum w hen you create a Design

Contest;

(ii) specif ied by 99designs in relation to the purchase of the Design on the Ready-made Design Store; or

(iii) specif ied in an invoice for design services issued through the 1-to-1 Invoice Services.

(c) If you, as a Customer, select more than one Design, as a w inning Design in a Design Contest then the Customer

Payment payable by you w ill be increased by:

(i) the amount of the Designer Fee in respect of each Design chosen by you (w hich w ill be the same for each

Designer); and

(ii) any fees and charges imposed by 99designs (as they exist from time to time).

(d) You agree that you w ill not enter into any arrangement or agreement w ith a Designer to pay any amount in

excess of the Customer Payment for the Design or to pay them separately outside 99designs.com in relation to the

supply of a Design, or of design services that are the subject of an invoice issued through the 1-to-1 Invoice

Services, to you.

5.4 How is the Customer Payment paid?The Customer Payment is paid using either 99designs Credits and/or any other method of payment w hich is specif ied by



99designs from time to time w hich may include credit card, PayPal, direct debit, or telegraphic transfer. If 99designs

Credits are used for payment, then 99designs may specify a maximum number of 99designs Credits (w hich may be zero)

w hich may be used tow ards payment.

5.5 What amounts are paid to Designers?(a) If a Customer elects to purchase your Design (either via a Design Contest or via the 99designs Ready-made

Design Store) or to pay for your design services that are the subject of an invoice issued through the 1-to-1 Invoice

Services, then 99designs w ill pay you the amount of the Designer Fee (subject to having f irst received payment

from the Customer).

(b) The Designer Fee w ill be paid to you in 99designs Credits (irrespective of the method of payment used by the

Customer) but may be reclaimed by 99designs if any refund is payable to the Customer under clause 6 or any

Addendum, or any chargeback or payment reversal occurs in relation to any payment by the Customer w hich

relates to the sale of your Design or your design services that are the subject of an invoice issued through the 1-to-

1 Invoice Services, as applicable.

(c) You may redeem 99designs Credits into cash as described in clause 5.2.

5.6 Expiry of 99design Credits(a) The balance of Dollar Credits held by you w ill expire 12 months from the date that you last spent any Dollar

Credits to purchase any goods or services from 99designs. Balances of your Dollar Credits w hich are not spent

w ithin this 12 month period are lost.

(b) The balance of Bonus Credits held by you w ill expire 48 months from the date that you last spent any Bonus

Credits to purchase any goods or services from 99designs. Balances of your Bonus Credits w hich are not spent

w ithin this 48 month period are lost.

5.7 99designs is not an escrow service99designs is not an escrow service and does not hold property on behalf of any person. All amounts deposited or paid to

99designs are property of 99designs and 99designs may use those funds as it sees f it. The only rights that you have to

receive payment of any amounts held by 99designs are as set out in this clause 5 or under clause 6.

5.8 TaxesYou agree that you are responsible for the collection and/or payment of all Taxes w hich you may be liable for in any

jurisdiction arising from your sale or purchase of any Designs via 99designs.com or your provision of design services

that are the subject of an invoice issued through the 1-to-1 Invoice Services. 99designs is not responsible for collecting,

reporting, paying, or remitting to you any such Taxes.

6. Processing of refunds

6.1 How refunds are paidIf 99designs issues you a refund, that refund w ill be paid to you using the same payment methods you used to remit the

Customer Payment to 99designs as described in clause 5.4 or via any other method specif ied by 99designs from time to

time.

6.2 Refunds for "defective" DesignsIf a refund is paid to a Customer as a result of a defective Design (as determined under clause 6.3), then:

(a) if the Design is provided by you, in your capacity as a Designer, then you must reimburse 99designs for the

amount of the Designer Fee you received in respect of that Design. The reimbursement w ill f irst be paid out of any

99designs Credits you hold and any remaining debt w ill be payable by you to 99designs on demand; or

(b) if the refund is paid to you as a Customer, then you w ill initially receive the amount of the Customer Payment paid

by you, less the Designer Fee. You w ill receive the Designer Fee only once the Designer Fee is reimbursed by the

Designer to 99designs as contemplated in clause 6.2(a) above.

6.3 When is a Design deemed to be "defective"?(a) A Design (including design services invoiced through the 1-to-1 Invoice Services) w ill be deemed to be

"defective" if :

(i) both a Customer and the Designer agree it is (or they are) defective and notify 99designs of this fact;

(ii) it is (or they are) determined to be defective under the terms of an Addendum;

(iii) 99designs receives a demand or claim from a third party w ho claims ow nership of the Design (or the



Intellectual Property Rights in the design services) and 99designs accepts (to be determined by 99designs in

its sole and absolute discretion) that there may be grounds for the third party's claim; or

(iv) 99designs deems (in its sole and absolute discretion) that it is (or they are) defective.

(b) You agree that any determination by 99designs that a Design is (or design services are) defective is f inal and

conclusive, is not subject to challenge by you, and is binding upon you.

(c) If 99designs determines that a Design is not defective (or that design services are not defective), this w ill not

restrict a Customer from pursuing a Designer separately for amounts paid by 99designs to the Designer.

6.4 Other circumstances in which a refund may be paid(a) 99designs may refund an amount paid by a Customer in respect of a Design (or design services) supplied by a

Designer if :

(i) the refund is issued in accordance w ith any terms aw arding a refund as set out in an Addendum;

(ii) 99designs is required by law or considers that it is required by law to do so;

(iii) 99designs determines that issuing a refund to the Customer w ill avoid any dispute or increased costs to

99designs;

(iv) 99designs issues the refund to the Customer in accordance w ith any refund policy specif ied by 99designs

from time to time;

(v) the order placed (or request made) by the Customer is found to be fraudulent;

(vi) the Customer placed a duplicate order (or request) in error; or

(vii) in 99designs’s sole opinion, 99designs considers that it is likely that the refund is necessary to avoid a

credit card charge back.

(b) 99designs's determination as to w hether a refund is required by this clause 6.4 is f inal and conclusive and may

not be challenged by you.

7. Suspension of the services

7.1 Without limiting 99designs’s other rights arising under this Agreement, 99designs may suspendyour User Account and your use of the Services at any time, with or without notice to you, and for anyreason in its sole and absolute discretion, including if:

(a) 99designs considers that you have breached any of your obligations to 99designs under this Agreement

(including an obligation arising under an Addendum);

(b) you submit a Design for sale via 99designs.com w hich is a Third Party Work w ithout the w ritten consent of the

ow ner of the Third Party Work;

(c) 99designs considers that you are using your User Account in bad faith;

(d) a provision contained in an Addendum permits 99designs to suspend your User Account or use of the Services;

(e) you are using your User Account or the Services for illegal or fraudulent purposes or in a manner w hich

99designs in its sole discretion considers unlaw ful, offensive, harassing, libellous, defamatory, abusive,

threatening, harmful, vulgar, obscene or otherw ise objectionable; or

(f) in 99designs’s sole and absolute opinion, the provision of the Services to you is resulting in an unreasonable load

on 99designs’s servers or 99designs’s other services.

7.2 You agree that:(a) 99designs may suspend the Services w here permitted under clause 7.1 at any time;

(b) 99designs’s suspension of the Services may, in 99designs’s sole discretion, apply to only some of the Services

and/or for a f ixed or indefinite period of time; and

(c) 99designs may in its sole discretion reactivate the Services and your User Account for you at any time after

their suspension.

7.3 For the avoidance of doubt, you may not make withdrawals of, or spend any 99design Creditsduring any period of suspension of your User Account. Further 99designs may in its sole discretionretain the balance of all 99design Credits in your account to offset any loss and/or damage 99designsmay have suffered as a result of your breach of this Agreement which lead to the suspension of yourUser Account.

8. Privacy



8.1 99designs will collect your personal information including your name, contact details and paymentdetails (including, without limitation, credit card details) ("Personal Information"). All PersonalInformation will be handled, used, maintained and disclosed by 99designs in accordance withapplicable privacy laws and data protection laws as well as its privacy policy which applies from timeto time, a copy of which may be found here.

8.2 You agree that you will only use the Personal Information of other Customers or Designers madeavailable to you only for the purposes contemplated by, and permitted under this Agreement and forthe purposes of interacting with them in relation to the Services. Unless separately agreed betweenyou and another Customer or Designer, you must not use their Personal Information for any otherpurpose.

8.3 You warrant to 99designs and its third party providers that you will comply with applicable privacylaws and data protection laws (including, without limitation, the Australian Privacy Act 1988 (Cth)) inrelation to the storage, use and transfer of Personal Information.

9. Relationship of the parties

9.1 99designs is an independent service provider to you and is not your partner, employee or agent.You do not have the power to bind 99designs in relation to any obligation owing to a third party.

9.2 You agree that by entering a Design Contest, by purchasing or selling a Design from the Ready-made Design Store, or by purchasing or selling design services pursuant to the 1-to-1 InvoiceServices (either as Customer or Designer) that 99designs, in providing the Services and your accessto 99designs.com, is providing a platform or venue for you to enter into a separate agreement withother Customers or Designers (as the case may be). 99designs is not a party to that separateagreement and is not responsible for any act or omission of the other parties to that separateagreement.

10. Your general obligationsYou agree that:

10.1 you will not use the Services for any illegal or fraudulent purpose or for any purpose other thanusing the Services as a Customer or Designer;

10.2 you will comply with all laws which must be complied with in relation to the Services or thesupply or purchase of a Design or of other design services contemplated herein;

10.3 you will comply with any export restrictions which may apply to the export or import of Designsor other Intellectual Property Rights to locations inside or outside Australia or the territory in whichyou are located;

10.4 you warrant that you will not, by engaging 99designs to provide the Services, place 99designs inbreach of any law or obligation owing to a third party;

10.5 you will not undertake any act or cause any omission which will bring 99designs, its brand orother Customers and Designers into disrepute;

10.6 you will not use the Services in a manner that may lead to the suspension of the Services underclause 7.1;

10.7 you will provide 99designs with all information requested by 99designs which 99designs requiresto provide the Services;



10.8 you will not conduct any online or public voting (whether via 99designs.com or any other website)in relation to any Design not created by you in your capacity as a Designer or purchased by you inyour capacity as a Customer;

10.9 you will not use any robot, spider, scraper or other automated means to access 99designs.comfor any purpose without our express written permission; and

10.10 you will not:(a) take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large

load on 99designs.com;

(b) copy, reproduce, modify, create derivative w orks from, distribute, or publicly display any content (other than

content or Designs you have submitted to 99designs.com) from 99designs.com w ithout our prior express w ritten

permission and the appropriate third party, as applicable;

(c) interfere or attempt to interfere w ith the proper w orking of 99designs.com or any activities conducted on

99designs.com; or

(d) bypass any measures w e may use to prevent or restrict access to 99designs.com or to your User Account.

11. Term and termination

11.1 This Agreement will commence on the date that you first create a User Account with 99designsand will terminate at the later of the date that:

(a) the User Account is terminated or closed; or

(b) you otherw ise cease using the Services.

11.2 If after termination or closure of your User Account, your User Account is reactivated or a newUser Account is opened, you will again become bound by this Agreement at that time.

11.3 This Agreement and your User Account may be terminated by 99designs at any time for anyreason whatsoever with or without notice to you.

11.4 This Agreement may be terminated by a party immediately on written notice to the other party if:(a) the other party is in default or breach of this Agreement; and

(b) the party has provided the defaulting party w ith w ritten notice of the default or breach and the defaulting party

fails to rectify the breach or default w ithin 7 days of the notice.

11.5 Upon the termination of this Agreement:(a) 99designs w ill, w ithin a time period determined by 99designs, disable your access to, and use of the Services;

(b) any Bonus Credits you hold w ill be cancelled immediately;

(c) you may redeem any Dollar Credits held by you to US dollars pursuant to clause 5. 99designs may how ever

w ithhold a reasonable portion of any amount payable to you (w ith such amount to be determined by 99designs in its

sole discretion) on account of credit card charge backs, refunds, payments due to third parties on your behalf or

other costs and expenses w hich may be incurred by 99designs after termination (including as a result of a breach

by you); and

(d) w ithin 12 months after termination of this Agreement, 99designs w ill pay to you the amount w ithheld under

clause 11.5(c) less any portion of that amount used by 99designs to satisfy credit card charge backs, refunds,

payments due to third parties or other costs and expenses incurred by 99designs either before or after termination.

11.6 Your obligations and 99designs rights arising under clauses 3, 4, 5, 6, 8, 9, 10, 11.5, 12, 13, 14and 15 will survive the termination of this Agreement.

12. Limitation of liability and implied terms

12.1 You acknowledge that 99designs and its third party providers have made no warranties that the



Services will be uninterrupted or error free.

12.2 You agree that 99designs and its third party providers will not be liable or responsible for anyfailure in, or delay to, the provision of the Services or in 99designs complying with its obligationsunder this Agreement where such failure or delay has a arisen as a direct or indirect result of:

(a) f ire, earthquake, storm, f lood, hurricane, inclement w eather or other act of God, w ar, terrorism, explosion,

sabotage, industrial accident or an industrial strike;

(b) denial of service attacks, telecommunications failure, hardw are failure or the failure of softw are provided by a

third party to function in accordance w ith its specif ications;

(c) a signif icant demand is placed on 99designs's services w hich is above the usual level of demand and w hich

results in a failure of 99designs's softw are and hardw are to function correctly;

(d) the failure of any third party (including w ithout limitation, any bank or other f inancial organisation) to fulf il any

obligations to 99designs; or

(e) any other circumstances or events similar to the above w hich are beyond the reasonable control of 99designs.

12.3 You acknowledge and agree that 99designs and its third party providers shall have no liability orresponsibility to you whatsoever for any unauthorised withdrawals or unauthorised use of your99design Credits where such withdrawal or use arises from:

(a) any of the events described in clause 12.2; or

(b) any unauthorised use or access of your User Account or 99designs.com.

12.4 You acknowledge and agree that 99designs and its third party providers have not made and willnot make any express or implied warranties in relation to the Services or any other goods or servicesprovided by 99designs under this Agreement, other than those warranties expressly contained in thisAgreement. Subject to clauses 12.7 and 12.8, any term that would be implied into this Agreement,including without limitation any condition or warranty, is hereby excluded.

12.5 Subject to clauses 12.7 and 12.8, you agree that 99designs and its third party providers will notbe liable in respect of any claim by you (whether arising in contract, or tort, under statute orotherwise) for any direct, special, incidental, indirect or consequential damages or injury including, butnot limited to, any loss of profits, contracts, revenue or data arising out of or in connection with theprovision of the Services or the provision of any other goods or services under this Agreement andwhether as a result of any breach or default by, or any negligence of, 99designs or its third partyproviders.

12.6 The maximum liability of 99designs under this Agreement for any and all breaches of thisAgreement and for any negligence in relation to this Agreement, will not exceed the lesser of:

(a) the amount of the Customer Payments paid for the Services by you; or

(b) the total amount of the Designer Fee received by you.

12.7 If the Trade Practices Act 1974 (Cth) (or analogous legislation) applies to this Agreement andpermits the limitation of liability for breach of warranty implied by legislation, the liability of 99designsis limited, at the option of 99designs, to:

(a) in the case of goods, any one or more of the follow ing:

(i) the replacement of the goods or the supply of equivalent goods;

(ii) the repair of the goods;

(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; and

(b) in the case of services:

(i) the supplying of the services again; or

(ii) the payment of the cost of having the services supplied again.

12.8 Any of the terms and conditions of this Agreement which limit or exclude any term, condition orwarranty, express or implied, or the liability of 99designs will apply to the extent permitted by law andwill not be construed as excluding, qualifying or limiting your statutory rights or remedies arising byvirtue of the breach of any implied term of this Agreement where such exclusion, qualification orlimitation would be prohibited by legislation.



13. IndemnityYou indemnify 99designs, its agents, off icers, employees, and third party providers ("Indemnif ied") against any loss, cost,

expense or damage (including legal costs on a full indemnity basis) w hich any of the Indemnif ied suffer or incur as a direct or

indirect result of:

(a) any breach by you of any representation, w arranty or term of this Agreement;

(b) any acts or omissions by you w hich are described in clause 7.1;

(c) any breach by you of your obligations to a third party, including another Customer or Designer;

(d) any infringement by you of the Intellectual Property Rights of a third party including in respect of any Third Party Work;

and

(e) any legal proceedings threatened or initiated against 99designs by a third party as a result of the events described in

clause 13(a) to (d), inclusive, above.

14. Intellectual property

14.1 You acknowledge that 99designs is the owner of all Intellectual Property Rights which subsist inyour User Account and 99designs.com (but not your Designs). You acknowledge that you have noIntellectual Property Rights in your User Account or in 99designs.com.

14.2 You acknowledge that the ownership of the Intellectual Property Rights in any Design will be setout in the separate agreement described in clause 4 between the Customer and the Designer.

14.3 You grant a worldwide, royalty free, irrevocable, perpetual licence to 99designs.com for99designs.com to:

(a) use any Designs you submit to display on 99designs.com and for 99designs's promotional purposes; and

(b) reproduce, distribute, prepare derivative w orks of, and display your Designs or any other w orks, item or thing

you supply to 99designs (w hether via 99designs.com or by other means).

14.4 You acknowledge and agree that:(a) subject to clause 6.3, 99designs w ill not act as a moderator or adjudicator in relation to any claim by you or any

third party that a Design or other content submitted to 99designs.com infringes any Intellectual Property Rights

ow ned by you or a third party;

(b) 99designs does not w arrant or represent that it has undertaken or w ill in future undertake any particular

investigation or review as to w hether any Design supplied by a Designer infringes any Intellectual Property Rights

held by a third party. Each Customer is responsible for undertaking their ow n due diligence or investigations in

relation to the same;

(c) 99designs w ill not be liable or responsible for any breach by a Designer or Customer of any Intellectual Property

Rights held by a third party in relation to any Design, Service or other use of 99designs.com; and

(d) notw ithstanding the above, 99designs may at any time remove any content, Third Party Work or Designs from

99designs.com w hich 99designs determines, in its sole and absolute discretion, may infringe the Intellectual Property

Rights of a third party.

15. Miscellaneous

15.1 99designs may amend the terms and conditions of this Agreement at any time. Suchamendments will take effect from the date on which they are posted on 99designs.com ("AmendmentDate"). You agree that without limiting the ways in which you may be bound by such amendments,you will be deemed to have agreed to such amendments by making use of or accessing your UserAccount or 99designs.com after the Amendment Date.

15.2 Unless otherwise requested in writing by you, 99designs may use your corporate identity (ifapplicable) as part of promoting the Services and 99designs in the market place.

15.3 Any notice given under this Agreement must be in writing and must be signed by the party or itsagent giving the notice. A notice is taken to be received:



(a) in the case of a notice delivered by hand, w hen so delivered;

(b) in the case of a notice sent by pre paid post, on the third day after the date of posting;

(c) in the case of a notice sent by facsimile, upon the receipt by the sender of a transmission report from the

dispatching facsimile machine w hich confirms that the facsimile has been successfully sent; or

(d) in the case of a notice sent by email, upon the receipt by the sender of a confirmation from the recipient or the

recipient's email server that the email has been received by the recipient.

15.4 This Agreement supersedes all prior representations, arrangements, understandings andagreements between the parties relating to the subject matter of this Agreement and sets forth theentire and exclusive agreement and understanding between the parties relating to the subject matterof this Agreement.

15.5 A provision of or a right created under this Agreement may not be waived except in writing signedby the party or parties to be bound by the waiver. No single or partial exercise by any party of anyright, power or remedy under this Agreement will preclude any other or further exercise of that or anyother right, power or remedy. The rights, powers or remedies provided in this Agreement arecumulative with and not exclusive of any rights, powers or remedies provided independently of thisAgreement.

15.6 If any provision of this Agreement is judged invalid or unenforceable for any reason whatsoever bya court of competent jurisdiction, such invalidity or unenforceability (unless deletion of such provisionwould materially adversely affect one of the parties) will not affect the operation or interpretation of anyother provision of this Agreement to the intent that the invalid or unenforceable provision will be treatedas severed from this Agreement.

15.7 99designs may assign its rights and novate or transfer obligations which arise under thisAgreement. You may not assign, novate or otherwise transfer your rights or obligations under thisAgreement without the prior written consent of 99designs (which may be withheld by 99designs in itssole discretion).

15.8 The parties acknowledge and agree that no rule of construction applies to the disadvantage of aparty because that party was responsible for the preparation of this Agreement or part of it.

15.9 This Agreement is governed by, and must be construed in accordance with, the laws of the Stateof Victoria, Australia and the parties irrevocably submit to the exclusive jurisdiction of the courts of theState of Victoria, Australia and their Courts of Appeal.

99designs general service agreement _ 99designs

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