1.1 Definitions

In this Agreement, the following terms will have the following meanings, unless the context otherwise requires:

1-to-1 Invoice Services Addendum

means the addendum to this Agreement by that name which 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 Credits

means either or both Dollar Credits and Bonus Credits;

99designs

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

99designs.com

means the 99designs website and underlying software and infrastructure which permits the provision of the Services;

Addendum

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

Amendment Date

has the meaning given in clause 15.1;

Bonus Credits

means credits or vouchers with 99designs which may be exchanged for certain goods and services offered by 99designs but which cannot be redeemed for cash;

Customer

means a person who hosts a Design Contest fo one or more Designers to create a Design to fulfil the requirements of the person's Design Brief or who purchases a Design from the Ready-made Design Store;

Customer Payment

has the meaning given in clause 5.3(a);

Design

means a graphic design or image which a Customer engages a Designer to create as part of a Design Contest or which the Customer otherwise purchases from a Designer via the Ready-made Design Store;

Design Brief

means a Customer's requirements for a Design;

Design Contest

means the procedure pursuant to which 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 winner(s) of which will be those Designers who tender Designs selected by a Customer (for the avoidance of doubt, more than one Designer may win a Design Contest);

Design Contest Services Addendum

means the document by that name which governs the participation of Designers and Customers in Design Contests;

Design Transfer Agreement

means the document by that name (or a similar name) which sets out a default set of terms and conditions governing the separate agreement between the Customer and Designer described in clause 4;

Designer

means a person who creates a Design in response to a Customer's Design Brief as part of a Design Contest or otherwise offers for sale a Design in the Ready-made Design Store;

Designer Fee

has the meaning given in clause 5.3(a)(i);

Dollar Credits

means credits or vouchers for the purchase of goods or services from 99designs, which may be redeemed for United States dollars ("US Dollars") or other currencies;

Indemnified

has the meaning given in clause 13;

Intellectual Property Rights

means all intellectual property rights of any type whatsoever throughout the world including all rights arising under copyright, patent right, trademark, trade secret and other, similar doctrines, whether or not such rights are registered or able to be registered;

Personal Information

has the meaning given in clause 8.1;

Ready-made Design Store

means the marketplace on 99designs.com on which Designers may offer Designs for sale to Customers (but not a sale via a Design Contest);

Ready-made Design Services Addendum

means the addendum to this Agreement by that name which sets out the terms and conditions applying to Designers and Customers in relation to their use of the Ready-made Design Store;

Services

means the services provided by 99designs which are described in clause 2;

Stock Images

means images, logos or other artistic works which may be purchased from a third party website or directly from a third party;

Taxes

means any applicable duties, sales taxes, GST, VAT or other taxes which may be levied in respect of a transaction contemplated by this Agreement;

Third Party Work

means any image, logo, artistic work, literary work or other item or thing (including a Stock Image) in which the Intellectual Property Rights are owned by a third party; and

User Account

means an online account with 99designs which enables you to use 99designs.com.

1.2 Rules for Interpretation

In the interpretation of this Agreement, unless the contrary intention appears:

1. (a) a reference to this Agreement means a reference to an agreement between 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;
2. (b) the words "includes" or "including" mean "includes without limitation" or "including without limitation";
3. (c) a reference to a person includes a reference to a corporation, firm, association or other entity, and vice versa;
4. (d) the singular includes the plural and vice versa;
5. (e) a reference to any gender includes a reference to all other genders;
6. (f) a reference to any legislation or to any provision of any legislation includes a reference to any modification or re-enactment of or any provisions substituted for such legislation or provisions;
7. (g) an agreement, representation or warranty made by two or more persons is made by them jointly and by each of them severally;
8. (h) where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning; and
9. (i) headings are inserted for convenience only and do not affect the interpretation of this Agreement.

1.3 What documents comprise this Agreement?

1. (a) This Agreement is made up of the following documents:
   1. (i) the terms and conditions contained in this document;
   2. (ii) the Design Contest Services Addendum;
   3. (iii) the Ready-made Design Services Addendum; and
   4. (iv) the 1-to-1 Invoice Services Addendum.
2. (b) In interpreting this Agreement, the terms and conditions contained in this document will override and take precedence over any inconsistent term contained in the Addendums.

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

1. (a) Customers and Designers may participate in Design Contests in accordance with this Agreement, including the terms of the Design Contest Services Addendum, a copy of which may be found here;
2. (b) Customers and Designers may sell and purchase Designs from the Ready-made Design Store in accordance with this Agreement, including the Ready-made Design Services Addendum, a copy of which may be found here;
3. (c) Customers and Designers may provide to Customers, and Customers may purchase from Designers additional design services in accordance with this Agreement, including the 1-to-1 Invoice Services Addendum, a copy of which may be found here; and
4. (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 or both a Customer and a Designer. The terms and conditions of this Agreement will apply to your use of the Services in either or both of those capacities.

3.1 Creating a User Account

1. (a) You agree to create a User Account with 99designs in order to use the Services.
2. (b) Your User Account will be created using 99designs's online sign up process, or any other method specified by 99designs from time to time.
3. (c) Your User Account will 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 with 99designs.
4. (d) You agree to keep confidential and secure any username or password used to access your User Account.
5. (e) You warrant that all information provided to 99designs in the setup of your User Account is true and correct in every detail.
6. (f) You agree to maintain only one User Account in relation to your use of the Services and 99designs.com.
7. (g) You agree to provide 99designs with all identification documents (including copies of passports and drivers licences) which 99designs requests from you from time to time for the purposes of verifying your identity.
8. (h) All users of the Services must be 18 years of age or older. By creating a User Account, you represent and warrant to 99designs that you are 18 years of age or older and you can form legally binding agreements under applicable law. You may however 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 with 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.
9. (i) If you are using the Services on behalf of your employer, then both you and your employer will be bound jointly and severally in relation to this Agreement and your employer will be responsible for your actions. Further you warrant that you have full authority to enter into this Agreement on behalf of your employer.

3.2 Use of your User Account and 99designs.com

You agree that you will 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 will not:

1. (a) subject to clause 3.1(h), resell or sublicense the use of 99designs.com or your User Account to any other person;
2. (b) use your User Account to promote the services of a competitor of 99designs without first obtaining the prior written consent of 99designs;
3. (c) use your User Account in a fraudulent or illegal manner, or email or send any materials from your User Account which are offensive, unlawful, harassing, libellous, defamatory, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable or in violation of applicable law;
4. (d) use your User Account to stalk or harass another person;
5. (e) use your User Account to impersonate any person in any way whatsoever;
6. (f) use your User Account to infringe the copyright, trademark, patent or other Intellectual Property Rights of any person;
7. (g) use your User Account for sending advertising, chain letters, junk mail, "spamming" or any other type of unsolicited email;
8. (h) forge or alter the header or address information contained in any email or communication which you send from your User Account or in relation to the Services;
9. (i) use your User Account to send or deliver viruses, spyware, malware or other harmful, disruptive, or destructive files;
10. (j) use your User Account in such a way which damages 99designs.com or denies access to 99designs.com to other users of 99designs.com;
11. (k) intentionally or recklessly use your User Account in a way that degrades the performance of 99designs.com for other users; and
12. (l) cancel any Design Contest or other sale or purchase of a Design for the purpose of contracting separately with a Designer or Customer you meet through 99designs.com which results in you avoiding paying 99designs any Customer Payment or any fees and charges of 99designs. In these circumstances, without 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.

4.1 The supply of a Design from a Designer to a Customer will be made in accordance with the Readymade 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 the Ready-made Design Store, the Customer and the Designer will be deemed to have entered into a separate binding agreement in relation to the provision of the Design and the Customer's rights in relation to the Design. 99designs and its third party providers will not be a party to this separate agreement and will have no liability whatsoever in relation to the performance or failure to perform of a Customer or Designer under the terms of the separate agreement. The terms of the separate agreement will be:

1. (a) in the case of Designs sold from the Ready-made Design Store, on the terms of the Design Transfer Agreement, a copy of which may be found here; and
2. (b) in the case of a Design sold pursuant to a Design Contest, unless separately agreed in writing between 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 the Design Transfer Agreement in your capacity as a Customer who purchases a Design or a Designer who provides a Design.

5.1 99designs Credits

1. (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.
2. (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 specified from time to time by 99designs.
3. (c) There are two types of 99designs Credits:
   1. (i) Dollar Credits; and
   2. (ii) Bonus Credits.
4. (d) Each Dollar Credit is equivalent to one US dollar.
5. (e) Bonus Credits are not equivalent to any currency. They may however be used to purchase or obtain discounts on certain specified goods and services from 99designs.
6. (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 with pricing and rules specified by 99designs from time to time.
7. (g) Any Dollar Credit which includes a fraction of a cent may be reduced by 99designs to the nearest whole number.
8. (h) The balance of any 99designs Credits held by you may be reduced at any time by 99designs for any amount owing by you to 99designs on any account whatsoever 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

1. (a) You may at any time, convert Dollar Credits which 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 will be made via the payment method specified 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 owing by you to 99designs on any account whatsoever and may also be reduced by any related administration fees and charges imposed by 99designs from time to time.
2. (b) Any payment to you in a currency other than US dollars will be made at an exchange rate determined by 99designs in its sole discretion. You will bear all risk in relation to any loss you may make as a result of the exchange of US dollars to another currency.
3. (c) Any withdrawal of Dollar Credits in accordance with this clause may be subject to minimum or maximum withdrawal amounts specified by 99designs from time to time.
4. (d) 99designs may refuse to permit you to withdraw Dollar Credits where it considers that as at the date of withdrawal you are in breach of this Agreement or 99designs considers that you or another Customer or Designer who 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

1. (a) When you, as a Customer, purchase a Design, you will pay 99designs a total amount ("Customer Payment") which is comprised of:
   1. (i) the price or portion of the Customer Payment which will be paid to the Designer for their Design, including any design services invoiced through the 1-to-1 Invoice Services, which 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");
   2. (ii) any fees and charges imposed by 99designs (as they exist from time to time);
   3. (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;
   4. (iv) any Taxes which may be levied on the provision of the Design, including any design services invoiced through the 1-to-1 Invoice Services, to you;
   5. (v) any Taxes which may be levied on the provision of any other goods or services by 99designs to you; and
   6. (vi) any other portion of the Customer Payment retained by 99designs after deduction or payment of the above amounts.
2. (b) The total amount of the Customer Payment will be either:
   1. (i) specified by you as required under the Design Contest Services Addendum when you create a Design Contest;
   2. (ii) specified by 99designs in relation to the purchase of the Design on the Ready-made Design Store; or
   3. (iii) specified in an invoice for design services issued through the 1-to-1 Invoice Services.
3. (c) If you, as a Customer, select more than one Design, as a winning Design in a Design Contest then the Customer Payment payable by you will be increased by:
   1. (i) the amount of the Designer Fee in respect of each Design chosen by you (which will be the same for each Designer); and
   2. (ii) any fees and charges imposed by 99designs (as they exist from time to time).
4. (d) You agree that you will not enter into any arrangement or agreement with 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 which is specified by 99designs from time to time which 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 (which may be zero) which may be used towards payment.

5.5 What amounts are paid to Designers?

1. (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 will pay you the amount of the Designer Fee (subject to having first received payment from the Customer).
2. (b) The Designer Fee will 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 which 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.
3. (c) You may redeem 99designs Credits into cash as described in clause 5.2.

5.6 Expiry of 99design Credits

1. (a) The balance of Dollar Credits held by you will 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 which are not spent within this 12 month period are lost.
2. (b) The balance of Bonus Credits held by you will 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 which are not spent within this 48 month period are lost.

5.7 99designs is not an escrow service

99designs 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 fit. 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 Taxes

You agree that you are responsible for the collection and/or payment of all Taxes which 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.

6.1 How refunds are paid

If 99designs issues you a refund, that refund will 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 specified by 99designs from time to time.

6.2 Refunds for "defective" Designs

If a refund is paid to a Customer as a result of a defective Design (as determined under clause 6.3), then:

1. (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 will first be paid out of any 99designs Credits you hold and any remaining debt will be payable by you to 99designs on demand; or
2. (b) if the refund is paid to you as a Customer, then you will initially receive the amount of the Customer Payment paid by you, less the Designer Fee. You will 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"?

1. (a) A Design (including design services invoiced through the 1-to-1 Invoice Services) will be deemed to be "defective" if:
   1. (i) both a Customer and the Designer agree it is (or they are) defective and notify 99designs of this fact;
   2. (ii) it is (or they are) determined to be defective under the terms of an Addendum;
   3. (iii) 99designs receives a demand or claim from a third party who claims ownership 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
   4. (iv) 99designs deems (in its sole and absolute discretion) that it is (or they are) defective.
2. (b) You agree that any determination by 99designs that a Design is (or design services are) defective is final and conclusive, is not subject to challenge by you, and is binding upon you.
3. (c) If 99designs determines that a Design is not defective (or that design services are not defective), this will 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

1. (a) 99designs may refund an amount paid by a Customer in respect of a Design (or design services) supplied by a Designer if:
   1. (i) the refund is issued in accordance with any terms awarding a refund as set out in an Addendum;
   2. (ii) 99designs is required by law or considers that it is required by law to do so;
   3. (iii) 99designs determines that issuing a refund to the Customer will avoid any dispute or increased costs to 99designs;
   4. (iv) 99designs issues the refund to the Customer in accordance with any refund policy specified by 99designs from time to time;
   5. (v) the order placed (or request made) by the Customer is found to be fraudulent;
   6. (vi) the Customer placed a duplicate order (or request) in error; or
   7. (vii) in 99designs’s sole opinion, 99designs considers that it is likely that the refund is necessary to avoid a credit card charge back.
2. (b) 99designs's determination as to whether a refund is required by this clause 6.4 is final and conclusive and may not be challenged by you.

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

1. (a) 99designs considers that you have breached any of your obligations to 99designs under this Agreement (including an obligation arising under an Addendum);
2. (b) you submit a Design for sale via 99designs.com which is a Third Party Work without the written consent of the owner of the Third Party Work;
3. (c) 99designs considers that you are using your User Account in bad faith;
4. (d) a provision contained in an Addendum permits 99designs to suspend your User Account or use of the Services;
5. (e) you are using your User Account or the Services for illegal or fraudulent purposes or in a manner which 99designs in its sole discretion considers unlawful, offensive, harassing, libellous, defamatory, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable; or
6. (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:

1. (a) 99designs may suspend the Services where permitted under clause 7.1 at any time;
2. (b) 99designs’s suspension of the Services may, in 99designs’s sole discretion, apply to only some of the Services and/or for a fixed or indefinite period of time; and
3. (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 Credits during any period of suspension of your User Account. Further 99designs may in its sole discretion retain the balance of all 99design Credits in your account to offset any loss and/or damage 99designs may have suffered as a result of your breach of this Agreement which lead to the suspension of your User Account.

8.1 99designs will collect your personal information including your name, contact details and payment details (including, without limitation, credit card details) ("Personal Information"). All Personal Information will be handled, used, maintained and disclosed by 99designs in accordance with applicable privacy laws and data protection laws as well as its privacy policy which applies from time to 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 made available to you only for the purposes contemplated by, and permitted under this Agreement and for the purposes of interacting with them in relation to the Services. Unless separately agreed between you and another Customer or Designer, you must not use their Personal Information for any other purpose.

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

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 Invoice Services (either as Customer or Designer) that 99designs, in providing the Services and your access to 99designs.com, is providing a platform or venue for you to enter into a separate agreement with other Customers or Designers (as the case may be). 99designs is not a party to that separate agreement and is not responsible for any act or omission of the other parties to that separate agreement.

10.1 you will not use the Services for any illegal or fraudulent purpose or for any purpose other than using 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 the supply 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 Designs or other Intellectual Property Rights to locations inside or outside Australia or the territory in which you are located;

10.4 you warrant that you will not, by engaging 99designs to provide the Services, place 99designs in breach 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 or other 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 under clause 7.1;

10.7 you will provide 99designs with all information requested by 99designs which 99designs requires to 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 in your capacity as a Customer;

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

10.10 you will not:

1. (a) take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on 99designs.com;
2. (b) copy, reproduce, modify, create derivative works from, distribute, or publicly display any content (other than content or Designs you have submitted to 99designs.com) from 99designs.com without our prior express written permission and the appropriate third party, as applicable;
3. (c) interfere or attempt to interfere with the proper working of 99designs.com or any activities conducted on 99designs.com; or
4. (d) bypass any measures we may use to prevent or restrict access to 99designs.com or to your User Account.

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

1. (a) the User Account is terminated or closed; or
2. (b) you otherwise cease using the Services.

11.2 If after termination or closure of your User Account, your User Account is reactivated or a new User 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 any reason 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:

1. (a) the other party is in default or breach of this Agreement; and
2. (b) the party has provided the defaulting party with written notice of the default or breach and the defaulting party fails to rectify the breach or default within 7 days of the notice.

11.5 Upon the termination of this Agreement:

1. (a) 99designs will, within a time period determined by 99designs, disable your access to, and use of the Services;
2. (b) any Bonus Credits you hold will be cancelled immediately;
3. (c) you may redeem any Dollar Credits held by you to US dollars pursuant to clause 5. 99designs may however withhold a reasonable portion of any amount payable to you (with 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 which may be incurred by 99designs after termination (including as a result of a breach by you); and
4. (d) within 12 months after termination of this Agreement, 99designs will pay to you the amount withheld 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, 14 and 15 will survive the termination of this Agreement.

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 any failure in, or delay to, the provision of the Services or in 99designs complying with its obligations under this Agreement where such failure or delay has a arisen as a direct or indirect result of:

1. (a) fire, earthquake, storm, flood, hurricane, inclement weather or other act of God, war, terrorism, explosion, sabotage, industrial accident or an industrial strike;
2. (b) denial of service attacks, telecommunications failure, hardware failure or the failure of software provided by a third party to function in accordance with its specifications;
3. (c) a significant demand is placed on 99designs's services which is above the usual level of demand and which results in a failure of 99designs's software and hardware to function correctly;
4. (d) the failure of any third party (including without limitation, any bank or other financial organisation) to fulfil any obligations to 99designs; or
5. (e) any other circumstances or events similar to the above which are beyond the reasonable control of 99designs.

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

1. (a) any of the events described in clause 12.2; or
2. (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 will not make any express or implied warranties in relation to the Services or any other goods or services provided by 99designs under this Agreement, other than those warranties expressly contained in this Agreement. 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 not be liable in respect of any claim by you (whether arising in contract, or tort, under statute or otherwise) for any direct, special, incidental, indirect or consequential damages or injury including, but not limited to, any loss of profits, contracts, revenue or data arising out of or in connection with the provision of the Services or the provision of any other goods or services under this Agreement and whether as a result of any breach or default by, or any negligence of, 99designs or its third party providers.

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

1. (a) the amount of the Customer Payments paid for the Services by you; or
2. (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 and permits the limitation of liability for breach of warranty implied by legislation, the liability of 99designs is limited, at the option of 99designs, to:

1. (a) in the case of goods, any one or more of the following:
   1. (i) the replacement of the goods or the supply of equivalent goods;
   2. (ii) the repair of the goods;
   3. (iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
   4. (iv) the payment of the cost of having the goods repaired; and
2. (b) in the case of services:
   1. (i) the supplying of the services again; or
   2. (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 or warranty, express or implied, or the liability of 99designs will apply to the extent permitted by law and will not be construed as excluding, qualifying or limiting your statutory rights or remedies arising by virtue of the breach of any implied term of this Agreement where such exclusion, qualification or limitation would be prohibited by legislation.

14.1 You acknowledge that 99designs is the owner of all Intellectual Property Rights which subsist in your User Account and 99designs.com (but not your Designs). You acknowledge that you have no Intellectual 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 set out 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 for 99designs.com to:

1. (a) use any Designs you submit to display on 99designs.com and for 99designs's promotional purposes; and
2. (b) reproduce, distribute, prepare derivative works of, and display your Designs or any other works, item or thing you supply to 99designs (whether via 99designs.com or by other means).

14.4 You acknowledge and agree that:

1. (a) subject to clause 6.3, 99designs will 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 owned by you or a third party;
2. (b) 99designs does not warrant or represent that it has undertaken or will in future undertake any particular investigation or review as to whether any Design supplied by a Designer infringes any Intellectual Property Rights held by a third party. Each Customer is responsible for undertaking their own due diligence or investigations in relation to the same;
3. (c) 99designs will 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
4. (d) notwithstanding the above, 99designs may at any time remove any content, Third Party Work or Designs from 99designs.com which 99designs determines, in its sole and absolute discretion, may infringe the Intellectual Property Rights of a third party.

15.1 99designs may amend the terms and conditions of this Agreement at any time. Such amendments will take effect from the date on which they are posted on 99designs.com ("Amendment Date"). 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 User Account or 99designs.com after the Amendment Date.

15.2 Unless otherwise requested in writing by you, 99designs may use your corporate identity (if applicable) 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 its agent giving the notice. A notice is taken to be received:

1. (a) in the case of a notice delivered by hand, when so delivered;
2. (b) in the case of a notice sent by pre paid post, on the third day after the date of posting;
3. (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 which confirms that the facsimile has been successfully sent; or
4. (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 and agreements between the parties relating to the subject matter of this Agreement and sets forth the entire and exclusive agreement and understanding between the parties relating to the subject matter of this Agreement.

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

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

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

15.8 The parties acknowledge and agree that no rule of construction applies to the disadvantage of a party 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 State of Victoria, Australia and the parties irrevocably submit to the exclusive jurisdiction of the courts of the State of Victoria, Australia and their Courts of Appeal.