BrandCrowd Maker - Client Contract

BrandCrowd Maker - Client Contract

BrandCrowd Maker - Client Contract


This contract relates to the transfer of non-exclusive rights to work(s) purchased from BrandCrowd using the BrandCrowd Maker Service (brandcrowd.com/maker), being either a standard license or buyout license.


If you purchase a Work using the BrandCrowd Maker Service, then you enter into a legally binding agreement in respect of such Work on the terms of this Agreement, in your capacity as a "Client" (that is, purchaser of the Work).


Any subsequent reference to the BrandCrowd Service includes the BrandCrowd Maker Service.


1 Agreement and Background
1.1 This Agreement is between BrandCrowd and Client.
1.2 Client acknowledges that Client and BrandCrowd are parties to a User Agreement.
1.3 Client acknowledge that upon the selection of a Work owned by BrandCrowd, BrandCrowd and Client enter into this Agreement in respect of such Work.


2 Grant of Rights


Buyout license
2.1 In consideration of the payment to BrandCrowd of the Fees for a buyout license, that client is purchasing a non-exclusive, royalty free, worldwide irrevocable, perpetual license to use the design from BrandCrowd. BrandCrowd acknowledges that the design will not be available for sale to other new clients.
2.2 BrandCrowd acknowledges that Client is under no obligation to use the Work (or any part thereof) at any time.
2.3 The client acknowledges that BrandCrowd and the original Designer may use the Work (or part thereof) 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.
2.4 Client acknowledges that a right to use the Work(s) may have been sold prior to the purchasing of the Buyout license and BrandCrowd and such third-party purchasers will retain an ongoing legitimate right to use of the Work(s), including as part of ongoing services provided by BrandCrowd to those third-party purchasers, free from any claim from the Client.


Standard License
2.5 In consideration of the payment to BrandCrowd of the Fees for a standard license, that client is purchasing a non-exclusive, royalty free, worldwide irrevocable, perpetual license to use the design from BrandCrowd. The Client acknowledges that the design will remain the property of BrandCrowd and will be available for sale to other clients.
2.6 BrandCrowd acknowledges that Client is under no obligation to use the Work (or any part thereof) at any time.
2.7 The client acknowledges that BrandCrowd and the original Designer may use the Work (or part thereof) 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.


General
2.8 Client acknowledges that under the terms of a User Agreement entered into 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


Exclusive License
2.9 Purchases of exclusive licenses through the BrandCrowd Maker Service are governed by the terms of the BrandCrowd Designer Client Contract


3 Intellectual Property
3.1 Client acknowledges and agrees that all Intellectual Property Rights owned or controlled by BrandCrowd (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.
3.2 Client agrees not to use the Work in a manner that infringes the intellectual property rights of any other party
3.3 In acknowledging the nature of both the Buyout License and Standard License, the Client agrees not to pursue any action against BrandCrowd or BrandCrowd’s Clients in relation to intellectual property rights in or use of the Work.
3.4 In acknowledging the nature of both the Buyout License and Standard License, the Client acknowledges that, while not prohibited, trademarking the Work or any part thereof should not be done to the extent that it may restrict the rights of BrandCrowd or BrandCrowd’s clients to use the Work, at least to the extent that such an action would conflict with clauses 3.2 or 3.3 above.
3.5 Client acknowledges that BrandCrowd cannot grant a right to trademark a Work or succeed with a trademark application including all or part of the Work. Client’s must do their own enquiries with regard to trademarks in their specific geographic region and industry of operation and consider the restrictions contained within this agreement.


4 Moral rights
4.1 BrandCrowd 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 Warranties
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 BrandCrowd or 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 BrandCrowd 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.
6.3 Where the Client has purchased a standard or buyout license, they will not commence action against other legitimate license holders.


7 Confidentiality
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.


8 Liability
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 Acknowledgement
9.1 Client acknowledges that:
(a) 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 Client of any terms of this Agreement; and
(b) to the extent permitted by law, BrandCrowd has no control over and does not accept responsibility for the acts or omissions of the Client or other third parties in connection with the BrandCrowd Service or the BrandCrowd Site.


10 General
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 Maker Service” means the services provided by the BrandCrowd maker site www.BrandCrowd.com/maker to the extent that this document applies to those services;
"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, including the BrandCrowd Maker Service;
"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 BrandCrowd 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 sold by BrandCrowd.


11.2 Interpretation
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.