Last revised on: 1st of September 2012
THIS AGREEMENT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
99designs provides an online platform that helps connect customers who wish to purchase designs (“Customers”) and designers who wish to provide such designs (“Designers”), including, for example, through Design Contests, the Ready-made Design Store, and the Invoice Service(each as defined below and collectively, the “Services”). “User” means any user of the Site or Service, and may be a Designer or a Customer. To the extent you are a Customer, the provisions in this Agreement regarding Customers apply to you. To the extent you are a Designer, the provisions in this Agreement regarding Designers apply to you. To the extent you are a User, the provisions in this Agreement regarding Users apply to you. “Selling Designer” means a winning Designer whose Design Concept is selected by Customer in a Design Contest, or the Designer from whom a Customer purchases a Design Template in the Ready-made Design Store. “Buying Customer” means the applicable Customer.“Sold Design” means the applicable winning Design Concept or purchased Design Template (and customized version thereof). “Sale” means the applicable sale. “IPR” means all trade secrets, copyrights, trademarks, mask work rights, patents and other intellectual property rights recognized by the laws of any country.
1.2. Design Contest.
Customer may create a design contest (“Design Contest”) by creating a design brief (“Design Brief”), paying the Customer Payment, and following the other instructions on the Site. There are currently two types of Design Contests: (1) the default Pre-Paid Contest and (2) the Guaranteed Contest. Designers invited by 99designs (in 99designs’ sole discretion) to enter a Design Contest may submit design concepts (“Design Concepts”) in the format specified by 99designs by following the instructions on the Site. Design Concepts must comply with the Design Brief. For Guaranteed Contests, Customer must select one or more winning Design Concepts by a certain time specified by 99designs. If no winner is selected in the qualifying round of a Guaranteed Contest, 99designs will retain the Customer Payment, 99designs will distribute the Designer Fee equally among the Designers who participated in the Guaranteed Contest and who have won a Design Contest in the past, and Customer will have no right to a refund or to use the Design Concepts. If no winner is selected in the final round of a Guaranteed Contest, 99designs will retain the Customer Payment, 99designs will distribute the Designer Fee equally among the finalists in the final round of the Guaranteed Contest, and Customer will have no right to a refund or to use the Design Concepts. For Pre-Paid Contests, Customer must select one or more winning Design Concepts by the time that the Prepaid Contest closes. Customer may withdraw Prepaid Contest (but not a Guaranteed Contest) for a refund of the Customer Payment before entering the final round and before the close of the Prepaid Contest. Customer may additionally seek a refund of the Customer Payment for a Prepaid Contest (but not a Guaranteed Contest) at any time up to 60 or 90 days after the date of payment for the Prepaid Contest, but only if finalists were not chosen by Customer. For the avoidance of doubt, Buying Customer has no right or license to use any Design Concepts other than the Sold Design. Customer may not: (a) Run a Design Contest if Customer is tendering the creation of the same design through a service other than the Site; (b) allow or request Designers to submit Design Concepts to Customer via any means other than via the Site; and (c) colluded in relation to the awarding of a winner in a Design Contest or awarding a separate account held by Customer as the successful Designer in a Design Contest. Customers and Designers must deal on an arm’s length basis. Customer may not cancel any Design Contest for the purpose of contracting separately with a Designer Customer meets through the Site which results in Customer avoiding paying 99designs any Customer Payment or any fees and charges of 99designs.
1.3. Ready-made Design Store.
Designers may list design templates (“Design Templates”) for sale in 99design’s Ready-made Design Store (“Ready-made Design Store”), by creating a listing, uploading the Design Template (in the file format specified by 99designs), and following the instructions on the Site. 99designs reserves the right to modify and/or remove any Design Templates in its sole discretion (including any Design Template similar to other Design Templates on 99designs or other websites, or does not meet 99designs quality standards). 99designs will set and may modify the selling price of any Design Template. If Designer does not agree with any modifications or pricing, then Designer may remove the Design Template from the Ready-made Design Store. During the time a Design Template is listed for sale in the Ready-made Design Store and for 30 days after removal from the store, Designer hereby grant 99designs the exclusive right to market and sell the Design Template (and designs based on the Design Template) and will not market or sell the Design Template (or designs based on the Design Template) other than through 99designs.com. Once a Customer purchases a Design Template, Customer may request (in which case the Designer must provide)up to two rounds of customizations to the Design Template for the purposes of inserting Customer’s brand name or making minor customizations to the Design Template itself. Designer may refuse to make customizations which are in addition to the forgoing. Designer must deliver each round of customizations to the Customer within 24 hours after receiving the Customer’s requests, otherwise 99designs may (at its discretion) cancel the sale of the Design Template to the Customer or perform the customizations itself or through its subcontractors, in which case, Designer will forfeit 30% of the Designer Fee for such sale. Customer will be deemed to have accepted the resulting design unless the design does not include the requested customizations and Customer provides notice of rejection to 99designs and Designer within 48 hours of delivery of the design. If the defect is not cured within 30 days, Customer will be refunded the Customer Payment and Customer will have no right to use the Design Template or resulting design in any way. If 99designs determines, in its sole and absolute discretion that a rejection was unwarranted, then 99designs may determine that the Design Template and resulting design is instead accepted by Customer and such determination is final and conclusive.
1.4. Invoice Service.
For Designers that desire to sell design services outside of the Site, Designer may use the invoice service, including the One-to-One service (“Invoice Service”) to send invoices for the services to Customers by following the directions on the Site. Customers may request invoices from Designers by following the directions on the Site. 99designs reserves the right in its sole discretion to restrict Designers from creating or Customers from requesting invoices using Invoice Services and to remove invoices. 99designs will set and may modify the fee for the Invoice Service. If Designer or Customer does not agree with any pricing, then Designer or Customer (as applicable) may cease using the Invoice Services. 99designs has no involvement in managing or providing the invoiced design services to the Customer and is simply providing the ability for Designer to invoice and receive payments from Customers, and for Customers to request invoices, using Invoice Services.
This clause will apply if a Buying Customer has purchased a Sold Design pursuant to a Design Contest or from the Ready-made Design Store on an exclusive basis. Upon receipt of payment for the Sold Design in the form of 99designs Currency Credits, Selling Designer hereby assigns to the Buying Customer all right, title and interest in and to the Sold Design and all IPR therein. Selling Designer cannot use the Sold Design for Selling Designer’s own purposes or sell or license the Sold Design to any other person.
This clause will apply if Buying Customer has purchased a Sold Design from the Ready-made Design Store on a non-exclusive basis. Upon receipt of payment for the Sold Design in the form of 99designsCurrency Credits, Selling Designer hereby grants to Buying Customer a non-exclusive, royalty free, worldwide, irrevocable, perpetual license, without the right to sublicense, to: (i) use, reproduce and distribute the Sold Design; and (ii) sell, assign and/or transfer the foregoing rights to any person. Apart from the foregoing license, Selling Designer reserves all right, title and interest in and to the Sold Design and all IPR therein. Buying Customer may not register the Sold Design as a trademark or service mark with any government authority, nor prevent 99designs, the Selling Designer, or any third party from selling, licensing, or using the Sold Design.
2.3. Representations and Warranties.
Selling Designer represents and warrants that (a) it has all rights necessary (including any third party licenses required) to grant the foregoing assignment or license (as applicable) and (b) unless disclosed by Selling Designer when initially submitting the Sold Design to the Design Contest or Ready-made Design Store, Selling Designer represents and warrants that the Sold Design does not contain any IPR licensed from a third party. Selling Designer will indemnify and hold Buying Customer harmless, including costs and attorneys’ fees, from any third party claim arising out of a breach by the Selling Design of the foregoing warranty or any third party claim that the Sold Design infringes/misappropriates such party’s IPR.
3. Payment Terms.
3.1. Payment and Delivery.
Upon a Sale, Buying Customer will pay the Customer Payment and 99designs will pay Selling Designer the Designer Fee (subject to first receiving payment from the Buying Customer), and (b) Selling Designer will upload the Sold Design and 99designs will deliver the Sold Design to the Buying Customer, in a format specified by 99designs. The “Customer Payment” means (i) the price selected by Customer when Customer created a Design Contest as set forth at http://99designs.com/pricing; (ii) the listed price for the Sold Design in the Ready-made Design Store; or (iii) the invoiced price for design services issued through the Invoice Services. The “Designer Fee” means the Customer Payment, minus the fees and charges imposed by 99designs and minus any applicable Taxes. Buying Customer will not pay Selling Designer any amount in excess of the Customer Payment for the Sold Design or to pay Selling Designer separately outside the Site in relation to the supply of a Design, or of design services that are the subject of an invoice issued through the Invoice Services.
Refunds will be paid to Buying Customer using the same payment methods Buying Customer used to remit the Customer Payment to 99designs or via any other method specified by 99designs from time to time. If a refund is paid to Buying Customer or a credit card charge back occurs, then: (a) Selling Designer must reimburse 99designs for the applicable Designer Fee (the reimbursement will first be paid out of any 99designs Credits held by Selling Designer and any remaining debt will be payable by Selling Designer to 99designs on demand); and (b) Buying Customer will initially receive the amount of the Customer Payment, less the Designer Fee and will receive the Designer Fee only once the Designer Fee is reimbursed by Selling Designer to 99designs.99designs may refund Buying Customers for the following reasons: (i) the Sold Design is Defective; (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 will avoid any dispute or increased costs to 99designs; (iv) 99designs issues the refund to the Customer in accordance with any refund policy specified 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’ sole opinion, 99designs considers that it is likely that the refund is necessary to avoid a credit card charge back. 99designs’ determination as to whether a refund is required is final and conclusive and may not be challenged by you. A Sold Design will be deemed to be “Defective” if: (i) Buying Customer and Selling Designer agree it is defective and notify 99designs of this fact; (ii) the Sold Design is subject to a third party claim that the Sold Design infringes/misappropriates such party’s IPR, that 99designs deems (in its sole discretion) is not frivolous; or (iv) 99designs deems (in its sole discretion) that the Sold Design is defective.
3.3. 99designs Credits.
a. The Designer Fee will be paid to Selling Designer in 99designs Credits. There are two types of 99designs Credits: (i) Currency Credits, which are equivalent to one unit of the local currency based on the location of the Site (e.g., if you are using the U.S. site, the Currency Credit would be equivalent to U.S.$1; if you are using the German site, the Currency Credit would be equivalent to 1Euro; etc.); and (ii) Bonus Credits, which are not equivalent to any currency. 99designs Credits are not legal tender and cannot be traded or sold to third parties. 99designs Credits are only exchangeable for Sold Designs and services invoiced through the Invoice Service. The balance of any 99designs Credits held by you may be reduced at any time by 99designsfor charge-backs or refunds, or for any amount owing by you to 99designs, to compensate 99designs for any loss that it determines (in its sole discretion) it has suffered as a result of any breach of this Agreement by you. Provided that you are not in breach of this Agreement and your Account is not suspended, you may at any time (and 99designs may require you to at any time) convert Currency Credits which you hold in your Account to U.S. dollars or any other currency specified by 99designs from time to time. Any such payments will be subject to any minimum or maximum withdrawal amounts set by99designs, may be subject to reasonable withholdings to address charge-backs and refunds, and be made via the payment method specified by 99designs from time to time. 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 Section 3.3.Upon termination of this Agreement, all Bonus Credits will be cancelled immediately and you may convert Currency Credits described above.
3.4. General Payment Terms.
All payment will be in US dollars. 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 Sold Designs via the Site or your provision of design services that are the subject of an invoice issued through the Invoice Services. 99designs is not responsible for collecting, reporting, paying, or remitting to you any such Taxes. “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. Any amount that is not paid when due will accrue interest at eighteen percent (18%) per annum or the maximum rate permitted by applicable law, whichever is less, from the due date until paid.
4. IMPORTANT DISCLAIMERS AND RELEASE.
WE MAKE NO WARRANTIES REGARDING THE DESIGN CONTEST, DESIGN CONCEPTS, DESIGN TEMPLATES, ANY OTHER PRODUCTS OR SERVICES PROVIDED BY DESIGNERS, CUSTOMERS, OR OTHER USERS AND EACH OF THE FOREGOING ARE PROVIDED BY US “AS IS”. SELLING DESIGNERS SELL AND BUYING CUSTOMERS BUY SOLD DESIGNS AT THEIR OWN RISK. YOU SHOULD MAKE WHATEVER INVESTIGATION YOU FEEL NECESSARY OR APPROPRIATE BEFORE PROCEEDING WITH ANY TRANSACTION WITH ANY OTHER USER. YOUR INTERACTIONS WITH OTHER USERS ARE SOLELY BETWEEN YOU AND SUCH USER AND 99DESIGNS WILL NOT BE RESPONSIBLE FOR ANY LOSS OR DAMAGE INCURRED AS THE RESULT OF ANY SUCH INTERACTIONS. IF THERE IS A DISPUTE BETWEEN YOU AND ANY USER, WE ARE UNDER NO OBLIGATION TO BECOME INVOLVED. NOTWITHSTANDING THE FOREGOING, 99DESIGNS WILL USE COMMERCIALLY REASONABLE EFFORTS TO PROVIDE THE SERVICES DESCRIBED IN THIS AGREEMENT. THE FOREGOING DISCLAIMER SHALL NOT LIMIT THE MORE GENERAL DISCLAIMERS IN SECTIONS 12 AND 13.
You hereby release and forever discharge us (and our officers, employees, agents, successors, and assigns) from, and hereby waive and release, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or relates directly or indirectly to, any interactions or transactions with, or act or omission of, other Users, including Customers and Designers and Third Party Sites & Ads. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
In order to use the Service, you must register for an account with 99designs (“Account”) and provide certain information about yourself as prompted by the Site registration form. You represent and warrant that: (a) all required registration information you submit is truthful and accurate; and (b) you will maintain the accuracy of such information. You may delete your Account at any time, for any reason, by calling customer support at the contact number below. You are responsible for maintaining the confidentiality of your Account login information and are fully responsible for all activities that occur under your Account. You agree to immediately notify 99designs of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security. 99designs cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements. Designers may not have more than one Account.
6. User Content.
6.1. Your User Content.
“User Content” means any and all information and content that a User submits to, or uses with, the Site or Services. User Content includes Design Contests, Design Concepts, Design Templates, and reviews and/or testimonials (“Reviews”). You are solely responsible for your User Content. You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your User Content that makes you or any third party personally identifiable. You hereby represent and warrant that your User Content does not violate the Acceptable Use Policy (defined below). You may not state or imply that your User Content is in any way provided, sponsored or endorsed by 99designs. Because you alone are responsible for your User Content (and not 99designs), you may expose yourself to liability if, for example, your User Content violates the Acceptable Use Policy. 99designs is not obligated to remove any Design Contests, Design Concepts, Design Templates, or Reviews from the Site unless required by applicable Law. 99designs is not obligated to backup any User Content and User Content may be deleted at anytime. You are solely responsible for creating backup copies of your User Content if you desire.
6.2. License to User Content.
You hereby grant, and you represent and warrant that you have the right to grant, to 99designs an irrevocable, nonexclusive, royalty-free and fully paid, worldwide license to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use your User Content, and to grant sublicenses of the foregoing, solely for the purposes of including your User Content in the Site and Services; provided that 99designs will only use your Design Brief and Design Concepts to run the applicable Design Contest in accordance with the private or public settings of the Design Contest. You agree to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Content. For the avoidance of doubt, Selling Designers license or assignment of the Sold Design to the Buying Customer is set forth in Section 2 above and is not governed by the foregoing license.
7. Acceptable Use Policy.
The following sets forth 99designs’ “Acceptable Use Policy”:
You agree that you will only use the personal information of other Customers or Designers made available to you only for the purposes of interacting with them in relation to the Services. You must not use their personal information for any other purpose, including for marketing purposes. You represent and warrant 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.
7.2. User Content.
You agree not to use the Site or Services with any User Content or to provide any products or services that (a) violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (b) is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive (e.g., material that promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual) or otherwise objectionable material of any kind or nature or which is harmful to minors in any way; or (c) is in violation of any Laws, or obligations or restrictions imposed by any third party.
7.3. Use Restrictions.
You agree not to use the Site or Services to: (a) upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter a computer system or data; (b) send unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (c) harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent; (d) interfere with, disrupt, or create an undue burden on servers or networks connected to the Site or Services or violate the regulations, policies or procedures of such networks; (e) attempt to gain unauthorized access to the Site or Services, other computer systems or networks connected to or used together with the Site or Services, through password mining or other means; (f) harass or interfere with another user’s use and enjoyment of the Site or Services; (g) introduce software or automated agents or scripts to the Site or Services so as to produce multiple accounts, generate automated searches, requests and queries, or to strip, scrape, or mine data from the Site or Services; (h) impersonate any person or entity or falsify or misrepresent yourself or your affiliation with any person or entity; or (i) display, mirror, or frame the Site.
7.4. Other Guidelines/Policies.
Please see the following:
We reserve the right (but have no obligation) to review any User Content, investigate, and/or take appropriate action against you in our sole discretion (including removing or modifying your User Content, terminating your Account, and/or reporting you to law enforcement authorities) if you violate the Acceptable Use Policy or any other provision of this Agreement or otherwise create liability for us or any other person.
Subject to the terms of this Agreement, 99designs grants you a non-transferable, non-exclusive, license to use the Site and Services (excluding the Design Concepts and Design Templates) for your internal business purposes. For the avoidance of doubt, Selling Designers license or assignment of the Sold Design to the Buying Customer is set forth in Section 2 above and is not governed by the foregoing license.
8.2. Certain Restrictions.
The rights granted to you in this Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, Customer, or otherwise commercially exploit the Site or Services; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Site or Services; (c) you shall not access the Site or Services in order to build or promote a similar or competitive service; and (d) except as expressly stated herein, no part of the Site or Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Any future release, update, or other addition to functionality of the Site or Services shall be subject to the terms of this Agreement. All copyright and other proprietary notices on any Site or Services content must be retained on all copies thereof.99designs reserves the right, at any time, to modify, suspend, or discontinue the Site or Services or any part thereof with or without notice. You agree that 99designs will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Site or Services or any part thereof. You acknowledge and agree that 99designs will have no obligation to provide you with any support or maintenance in connection with the Site or Services.
If you provide 99designs any feedback or suggestions regarding the Site or Services (“Feedback”), you hereby assign to 99designs all rights in the Feedback and agree that 99designs shall have the right to use such Feedback and related information in any manner it deems appropriate. 99designs will treat any Feedback you provide to 99designs as non-confidential and non-proprietary. You agree that you will not submit to 99designs any information or ideas that you consider to be confidential or proprietary
Each User owns its own User Content. Excluding your User Content, you acknowledge that all the IPR in the Site and Services are owned by 99designs or 99designs’ licensors. The provision of the Site and Services does not transfer to you or any third party any rights, title or interest in or to such IPR. 99designs and its suppliers reserve all rights not granted in this Agreement.
You agree to indemnify and hold 99designs (and its officers, employees, and agents) harmless, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of (i) your use of the Site or Services, (ii) your User Content (including your Design Contest, Design Concept, Design Template, and Reviews), (iii) your interaction with any other User, or (iv) your violation of this Agreement or any applicable laws. 99designs reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of 99designs. 99designs will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
10. Third Party Sites & Ads.
The Site might contain links to third party websites, services, and advertisements for third parties (collectively, “Third Party Sites & Ads”). Such Third Party Sites & Ads are not under the control of 99designs and 99designs is not responsible for any Third Party Sites & Ads. 99designs provides these Third Party Sites & Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third Party Sites & Ads. You use all Third Party Sites & Ads at your own risk. When you link to a Third Party Site & Ad, the applicable third party’s terms and policies apply, including the third party’s privacy and data gathering practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third Party Sites & Ads.
11. Term and Termination.
Subject to this Section, this Agreement will remain in full force and effect while you use the Site or Services. We may (a) suspend your rights to use the Site and/or Services (including your Account) or (b) terminate this Agreement, at any time for any reason at our sole discretion, including for any use of the Site or Services in violation of this Agreement. Upon termination of this Agreement, your Account and right to access and use the Site and Services will terminate immediately. You understand that any termination of your Account may involve deletion of your User Content associated therewith from our live databases; however we reserve the right to continue to use your User Content. 99designs will not have any liability whatsoever to you for any termination of this Agreement, including for termination of your Account or deletion of your User Content. Even after this Agreement is terminated, the following provisions of this Agreement will remain in effect: Sections 2, 4, 6, 7, 8 (excluding Section 8.1), 9, 10, 12, 13, and 14.
THE SITE AND SERVICES ARE PROVIDED “AS-IS” AND “AS AVAILABLE” AND WE (AND OUR SUPPLIERS) EXPRESSLY DISCLAIM ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. WE (AND OUR SUPPLIERS) MAKE NO WARRANTY THAT THE SITE OR SERVICES: (A) WILL MEET YOUR REQUIREMENTS; (B) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (C) WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
13. Limitation on Liability.
IN NO EVENT SHALL WE (AND OUR SUPPLIERS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFIT OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT OR YOUR USE OF, OR INABILITY TO USE, THE SITE OR SERVICES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SITE AND SERVICES ARE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA RESULTING THEREFROM. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR (AND OUR SUPPLIERS’) LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (A) FIFTY US DOLLARS ($50) OR (B) AMOUNTS YOU HAVE PAID 99DESIGNS IN THE PRIOR 12 MONTHS (IF ANY). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OF CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
If the AUSTRALIAN 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: (a) in the case of goods, any one or more of the following: (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.
This Agreement is subject to occasional revision, and if we make any substantial changes, we may notify you by sending you an e-mail to the last e-mail address you provided to us (if any) and/or by prominently posting notice of the changes on our Site. Any changes to this agreement will be effective upon the earlier of thirty (30) calendar days following our dispatch of an e-mail notice to you (if applicable) or thirty (30) calendar days following our posting of notice of the changes on our Site. These changes will be effective immediately for new users of our Site or Services. You are responsible for providing us with your most current e-mail address. In the event that the last e-mail address that you have provided us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Continued use of our Site or Services following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.
14.2. Governing Law.
a. Dispute Resolution.
If you located are in the United States, the following applies to you. PLEASE READ THIS CAREFULLY. IT AFFECTS YOUR RIGHTS.
- Except for either party’s claims of infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret, any and all disputes between you and 99designs arising under or related in any way to this Agreement, must be resolved through binding arbitration as described in this section. This agreement to arbitrate is intended to be interpreted broadly. It includes, but is not limited to, all claims and disputes relating to your use of any of the 99designs Site and Service.
- YOU AGREE THAT BY ENTERING INTO THIS AGREEMENT, YOU AND 99DESIGNS ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. YOU AND 99DESIGNS AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. ANY ARBITRATION WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED.
- The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes of the American Arbitration Association (“AAA”), as modified by this section. For any claim where the total amount of the award sought is $10,000 or less, the AAA, you and 99designs must abide by the following rules: (a) the arbitration shall be conducted solely based on written submissions; and (b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties. If the claim exceeds $10,000, the right to a hearing will be determined by the AAA rules, and the hearing (if any) must take place in your choice of the following locations: San Francisco, CA, Denver, CO, or New York, NY. The arbitrator’s ruling is binding and may be entered as a judgment in any court of competent jurisdiction. In the event this agreement to arbitrate is held unenforceable by a court, then the disputes that would otherwise have been arbitrated shall be exclusively brought in the state or federal courts located in San Francisco County, California. Claims of infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall be exclusively brought in the state and federal courts located in San Francisco County, California. This Agreement shall be governed by and construed solely and exclusively in accordance with the laws of the State of California, USA without giving effect to any law that would result in the application of the law of another jurisdiction.
If you are located in Australia or elsewhere in the world, 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.
14.3. Entire Agreement.
This Agreement constitutes the entire agreement between you and us regarding the use of the Site and Services. Our failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. The word including means including without limitation. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Your relationship to 99designs is that of an independent contractor, and neither party is an agent or partner of the other. This Agreement, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without 99designs’ prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. The terms of this Agreement shall be binding upon assignees.
14.4. Copyright/Trademark Information.
Copyright © 2012, 99designs. All rights reserved. All trademarks, logos and service marks (“Marks”) displayed on the Site are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks.
14.5. Contact Information.