Brandstack – Designer/Client Contract
This contract relates to the transfer of rights to work(s) purchased through the Brandstack Service.
If you purchase or sell a Work using the brandcrowd Service, then you enter into a legally binding agreement in respect of such Work on the terms of this Agreement, in your capacity as either a "Client" (that is, purchaser of the Work) or "Designer" (that is, seller of the Work).
1 Agreement and Background
1.1 This Agreement is between Designer and Client.
1.2 Designer acknowledges that Designer and brandcrowd are parties to a User Agreement.
1.3 Client acknowledges that Client and brandcrowd are parties to a User Agreement.
1.4 Designer and Client acknowledge that upon the selection or approval by Client of a Work by Designer, Designer and Client enter into this Agreement in respect of such Work.
2 Grant of Rights
2.1 In consideration of the payment to Designer of the Fees, Designer hereby assigns to Client and its successors in title all rights, title and interest in and to the Work (and every part thereof), including copyright, for the full period of copyright and other applicable rights, and all extensions and renewals thereof, and Client shall be free to use the Work (and any part thereof) or authorise others to use the Work (and any part thereof) in its absolute discretion free from any claims and in perpetuity throughout the world.
2.2 Designer acknowledges and agrees that Client will own the entire rights (including copyright) in and to the Work. Designer acknowledges and agrees that pursuant to the rights granted to Client in clause 2.1, Client shall have the sole and exclusive right to (and authorise others to):
(a) adapt and/or alter the Work (and any part thereof); and/or
(b) use, distribute, reproduce, communicate to the public, promote and/or exploit the Work (and any part thereof).
2.3 Designer acknowledges that Client is under no obligation to use the Work (or any part thereof) at any time.
2.4 Designer must not use and/or exploit (or authorise any third party to use and/or exploit) any part of the Work without Client’s prior written consent which may be withheld in Client’s sole discretion save that Designer may use the Work (or part thereof) solely for promotional purposes:
(a) as part of Designer’s portfolio on the brandcrowd Site and/or using the brandcrowd "widget" on the brandcrowd Site to display designs submitted by Designer; and
(b) outside the brandcrowd Site in Designer’s portfolio of designs to promote Designer’s design work.
2.5 Designer agrees that Designer shall not be entitled to any sums or payment from Client or any other party in respect of the Work other than the Fees.
2.6 Designer and Client acknowledge that under the terms of a User Agreement entered into between Designer and brandcrowd, and between Client and brandcrowd, brandcrowd is granted a perpetual, worldwide, irrevocable, non-exclusive, royalty-free, transferrable licence to use, reproduce, alter, amend and display the Work (and all parts thereof) for promotional purposes on the brandcrowd Site, its Associated Sites and in connection with the brandcrowd Service (including without limitation in marketing materials, the press and on other websites owned or operated by brandcrowd) ("Promotional Licence"). Nothing in this Agreement is intended to limit or restrict such Promotional Licence.
3 Intellectual Property
3.1 Designer acknowledges and agrees that that all Intellectual Property Rights owned or controlled by Client remain the property of the applicable owner, and that Designer has not and will not acquire any proprietary rights thereto by reason of this Agreement.
3.2 Client acknowledges and agrees that all Intellectual Property Rights owned or controlled by Designer (other than in respect of the Work) remain the property of the applicable owner, and that Client has not and will not acquire any proprietary rights thereto (other than in respect of the Work) by reason of this Agreement.
4 Moral rights
4.1 Designer warrants that written consents have been obtained from all persons and/or entities engaged by Designer in the production of the Work in respect of the exercise of all rights as afforded under this Agreement without infringement of any Moral Rights in the product of their services.
4.2 Designer consents to Client exercising all rights as afforded under this Agreement and reproducing or otherwise exploiting the Work (and any part thereof) without infringement of Designer’s Moral Rights, and to doing any other acts that might otherwise infringe Designer’s Moral Rights.
5.1 Client warrants and represents that:
(a) Client has the right, power and authority to enter into this Agreement; and
(b) Client shall comply with all applicable laws in its performance of its rights and obligations under this Agreement.
5.2 Designer warrants and represents that:
(a) Designer has the right, power and authority to enter into this Agreement and grant the rights granted in this Agreement;
(b) Designer shall comply with all applicable laws in its performance of its rights and obligations under this Agreement;
(c) the Work (and any part thereof) does not infringe the Intellectual Property Rights or any other rights of any person;
(d) the Work (and any part thereof) is not the subject of any claim, demand, action or legal proceeding or to Designer’s knowledge any potential or pending claim, demand, action or proceeding;
(e) the Work is an original copyright work;
(f) Designer owns the copyright in the Work or, to the extent the copyright in any part of the Work is owned by a third party, Designer has obtained all licences, consents and/or permissions required to permit Designer to use, reproduce and amend such part (as applicable) as required to enable Client to exploit the Work in accordance with this Agreement;
(g) Designer will act in good faith at all times towards Client and provide such assistance and co-operation as is reasonable and practicable on request by Client;
(h) the Work is delivered to Client free from third party encumbrances and Designer has obtained a full buy-out of all rights of any third party engaged by Designer or in respect of the production of the Work;
(i) the Work does not contain material that is obscene, illegal, offensive, upsetting, defamatory or in any way unsuitable for people under the age of eighteen (18) years old;
(j) Designer has not done, nor permitted to be done, and will not do or permit, any act or thing by which any of the rights granted herein have been or may be in any way impaired;
(k) Designer is solely responsible for any third party payments or royalties payable in respect of the Work;
(l) Designer will sign whatever documents and take any action reasonably necessary that Client requires to give effect to the terms of this Agreement and Designer will do nothing which would or might prejudice Client’s rights hereunder; and
(m) Designer has not entered into any agreement or arrangements or understandings which may conflict with the terms of this Deed.
5.3 Designer must immediately advise Client of any infringement or threatened infringement, unauthorised use, or attack or threatened attack on the validity of any Intellectual Property Rights in connection with the Work which may come to Designer’s attention and provide to Client at Designer’s cost such assistance as Client may reasonably require in relation thereto.
6 Intellectual Property Infringement by a Third Party
6.1 Client may in its absolute discretion determine whether or not it shall take or defend legal or other action against any third party for any actual or threatened or suspected infringement of any rights in and to the Work and if Client elects to take legal or other action Client:
(a) shall have sole control over the form and conduct of such action;
(b) may settle, compromise or discontinue the action as it thinks fit; and
(c) shall be entitled to any award of costs and/or damages made in relation to such action.
6.2 Designer will give Client all authority, information and assistance reasonably requested by Client to assist Client to initiate, litigate, settle or compromise any proceedings in respect of any such infringement or misuse pursuant to this clause 6 at no cost to Client.
7.1 A party shall not, without the prior written approval of the other party, disclose the other party’s Confidential Information. A party shall not be in breach of this Agreement in circumstances where it is legally compelled to disclose the other party’s Confidential Information.
7.2 Each party shall take all reasonable steps to ensure that its employees and agents do not disclose the other party’s Confidential Information.
7.3 The parties may disclose the other party’s Confidential Information:
(a) to its related companies, solicitors, auditors, insurers and accountants who require information for the purpose of this Agreement; or
(b) if required to disclose the information by law or the rules of any Stock Exchange.
To the maximum extent permitted by law, in relation to the subject matter of this Agreement in no event shall either party to this Agreement or its employees, officers, representatives and directors be liable to the other party to this Agreement or its employees, officers, representatives and directors for any loss of profits, management time, savings, contracts, revenue, invest, goodwill, data, or for any penalties, fines, or for any consequential, special, indirect, or exemplary damages, costs, expenses, or losses (including, without limitation, for negligence).
9.1 Designer and Client each acknowledge that:
(a) brandcrowd is not a party to this Agreement;
(b) to the extent permitted by law, brandcrowd is not responsible for, and will not be liable in respect of, any breach or failure to perform by Designer or Client of any terms of this Agreement; and
(c) to the extent permitted by law, brandcrowd has no control over and does not accept responsibility for the acts or omissions of Designer, Client or other third parties in connection with the brandcrowd Service or the brandcrowd Site.
10.1 This Agreement is governed by the laws of New South Wales Australia and the parties submit to the non-exclusive jurisdiction of the courts exercising jurisdiction there.
10.2 All notices must be in writing and addressed to the relevant party at the address as provided pursuant to this Agreement.
10.3 Each party must take all steps as may be reasonably required by the other party to give effect to the terms of this Agreement and transactions contemplated by this Agreement.
10.4 This Agreement contains the entire agreement between the parties with respect to its subject matter.
10.5 Each party acknowledges that in entering into this Agreement it has not relied on any representation or warranties about its subject matter except as provided in this Agreement.
10.6 No delay, neglect or forbearance on the part of any party in enforcing against any other party any obligation under this Agreement will operate as a waiver or in any way prejudice any right under this Agreement.
10.7 If any provision of this Agreement is held to be invalid, illegal or unenforceable, this Agreement will continue otherwise in full force and effect apart from such provision which will be taken to be deleted.
11 Definitions and Interpretation
11.1 Definitions In this Agreement, unless the context otherwise requires:
“Associated Sites” means the other websites operated by brandcrowd.
“brandcrowd” means DesignCrowd Pty Ltd (a private company registered in Australia Australian Business Number (ABN): 26 127 272 315) of Level 3, Suite 36, 6 Meridian Place, Bella Vista NSW 2153 Australia.
"brandcrowd Site" means www.brandcrowd.com or any other replacement website in connection with the brandcrowd Service;
"brandcrowd Service" means the service provided by brandcrowd pursuant to the User Agreement;
"Confidential Information" means the information of a party which relates to the subject matter of this Agreement or arising from Client and Designer’s use of the brandcrowd Service or which is obtained from or through the brandcrowd Site and which is not already in the public domain through no breach of the recipient of its obligations of confidentiality owed to the discloser;
"Fees" means the fees payable to Designer in respect of a Work, namely the amount of the applicable project budget after deduction of the applicable commission payable to brandcrowd in accordance with the User Agreement;
"Intellectual Property Rights" means all industrial and intellectual property rights including, but not limited to, copyright, trade marks and designs;
"Moral Rights" means moral rights pursuant to the Copyright Act 1968 (Cth) including without limitation a right of attribution of authorship, the right not to have authorship falsely attributed, and the right of integrity or authorship;
"Project" means a design project in connection with the brandcrowd Service;
"User Agreement" means the agreement between brandcrowd and Client or brandcrowd and Designer (as applicable) governing Client’s and Designer’s use of the brandcrowd Service (as applicable);
"Work(s)" means designs, artwork, photographs, text, copy and other works submitted by a Designer to the brandcrowd Site.
The following rules of interpretation apply unless the context requires otherwise:
(a) headings are for convenience only and do not affect interpretation;
(b) the singular includes the plural and conversely;
(c) a gender includes all genders;
(d) where a word or phrase is defined its other grammatical forms have a corresponding meaning;
(e) a reference to a person includes a body corporate, an unincorporated body or other entity and conversely;
(f) a reference to a clause or schedule is to a clause or schedule to this Agreement;
(g) a reference to any party to this Agreement or any other agreement or document includes the party's successors and assigns;
(h) a reference to any agreement or document is to that agreement or document as amended, novated, supplemented, varied or replaced from time to time, where applicable, in accordance with this Agreement or that other agreement or document;
(i) a reference to any legislation or to any provision of any legislation includes any modification or re-enactment of it, any legislative provision substituted for it and all regulations and statutory instruments issued under it;
(j) a reference to conduct includes, without limitation, any omissions, statement or undertaking, whether or not in writing.