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This contract relates to the transfer and/or assignment of rights to Work(s) and New Work(s) and other Services purchased or otherwise sourced from BrandCrowd and/or Design.com using the BrandCrowd Maker Service or Design.com Service (collectively “The Maker Services”) from the BrandCrowd Maker Site and/or the Design.com Site (collectively “The Maker Sites”), being either a Standard License, Free License, Exclusive License, Buyout License or Subscription License.
If you purchase, create or otherwise attain a Work or New Work or other The Sites Services using The Maker Services, 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 and/or downloader of the Work).
1.1 This Agreement is between BrandCrowd/Design.com and Client.
1.2 Client acknowledges that Client and BrandCrowd/Design.com are parties to a User Agreement.
1.3 Client acknowledges that upon the obtainment of a license for a Work owned by BrandCrowd/Design.com, BrandCrowd/Design.com and Client enter into this Agreement in respect of such Work.
2.1 In consideration of the payment to BrandCrowd/Design.com of the Fees for a Buyout License, that client is purchasing a non-exclusive, royalty free, worldwide irrevocable, perpetual license to use the Work from BrandCrowd/Design.com. BrandCrowd/Design.com acknowledge that the Work will not be available for sale to other new clients.
2.2 At the expiry of the buyout license, when purchased as a subscription, the Work will become the property of BrandCrowd/Design.com and will be available for sale to other clients 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 The Makers to those third-party purchasers, free from any claim from the Client. The client will retain a Standard License to use the Work.
2.3 BrandCrowd/Design.com acknowledge that Client is under no obligation to use the Work (or any part thereof) at any time.
2.4 The Client acknowledges that BrandCrowd/Design.com and the original Designer may use the Work (or part thereof) for promotional purposes:
(a) as part of Designer’s portfolio on The Sites; and
(b) outside The Sites in Designer’s portfolio of designs to promote Designer’s design work.
2.5 Client acknowledges that a right to use the Work(s) may have been sold prior to the purchasing of the Buyout license and BrandCrowd/Design.com 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 The Maker Sites to those third-party purchasers, free from any claim from the Client.
2.6 In consideration of the payment to BrandCrowd/Design.com of the Fees for an Exclusive License, BrandCrowd/Design.com hereby assign to Client and its successors in title all rights, title and interest in and to the Work including copyright for any aspect of the Work that are unique to that Work, 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 or authorise others to use the Work in its absolute discretion free from any claims, subject to the term of the license.
2.7 At the expiry of the exclusive license, when purchased as a subscription, the Work will become the property of BrandCrowd/Design.com and will be available for sale to other clients 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/Design.com to those third-party purchasers, free from any claim from the Client. The client will retain a Standard License to use the Work.
2.8 BrandCrowd/Design.com acknowledge that Client is under no obligation to use the Work (or any part thereof) at any time.
2.9 The Client acknowledges that BrandCrowd/Design.com and the original Designer may use the Work (or part thereof) for promotional purposes:
(a) as part of Designer’s portfolio on The Sites; and
(b) outside The Sites in Designer’s portfolio of designs to promote Designer’s design work.
2.10 In consideration of the payment to BrandCrowd/Design.com of the Fees for a Standard License, that Client is purchasing a non-exclusive, royalty free, worldwide irrevocable, perpetual license to use the Work from BrandCrowd/Design.com . The Client acknowledges that the Work will remain the property of BrandCrowd/Design.com and will be available for sale to other clients 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/Design.com to those third-party purchasers, free from any claim from the Client.
2.11 BrandCrowd/Design.com acknowledge that Client is under no obligation to use the Work (or any part thereof) at any time.
2.12 The Client acknowledges that BrandCrowd/Design.com and the original Designer may use the Work (or part thereof) for promotional purposes:
(a) as part of Designer’s portfolio on The Maker Sites; and
(b) outside The Sites in Designer’s portfolio of designs to promote Designer’s design work.
2.13 In consideration of the download of a free design for no payment, the Client is obtaining for free a non-exclusive, royalty free, worldwide irrevocable, perpetual license to use the Work from BrandCrowd/Design.com . The Client acknowledges that the design will remain the property of BrandCrowd/Design.com and will be available for download to other clients 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 The Maker Sites to those third-party purchasers, free from any claim from the Client.
2.14 BrandCrowd/Design.com acknowledge that Client is under no obligation to use the Work (or any part thereof) at any time.
2.15 The Client acknowledges that BrandCrowd/Design.com and the original Designer may use the Work (or part thereof) for promotional purposes:
(a) as part of Designer’s portfolio on The Sites; and
(b) outside The Sites in Designer’s portfolio of designs to promote Designer’s design work.
2.16 In all license types listed above, a license is not granted over the font(s), text, color(s), photograph(s) or any generic shape(s), although these elements may form part of the Work. For the avoidance of doubt, any font(s), text(s), color(s), photograph(s) or generic shape(s) used in a Work that is purchased under any license listed above – including an Exclusive License or a Buyout License – will continue to be offered on The Maker Sites after the purchase of that license.
2.17 While perpetual licenses may be granted to Work(s) and New Work(s), some Site Services are available while an active subscription is held. These include but are not limited to exclusive and buyout licenses purchased on a subscription basis, domain names, websites and other such Site Services as provided by BrandCrowd/Design.com.
2.18 For Site Services not covered by one of the perpetual licenses outlined above, purchased on a Subscription basis, all rights to use that Service, including any license, are revoked at the expiry of the paid subscription period.
2.19 Client acknowledges that under the terms of a User Agreement entered into between Client and BrandCrowd/Design.com, BrandCrowd/Design.com are 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 Maker Sites, BrandCrowd Maker Site or Design.com, its Associated Sites and in connection with the BrandCrowd Service, BrandCrowd Maker Service and Design.com Service (including without limitation in marketing materials, the press and on other websites owned or operated by BrandCrowd or Design.com) ("Promotional Licence"). Nothing in this Agreement is intended to limit or restrict such Promotional Licence.
3.1 Client acknowledges and agrees that all Intellectual Property Rights owned or controlled by BrandCrowd/Design.com (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 the Exclusive License, Buyout License, Free License and Standard License, the Client agrees not to pursue any action against BrandCrowd/Design.com or BrandCrowd/Design.com's Clients in relation to intellectual property rights in or use of the Work.
3.4 In acknowledging the nature of the Exclusive License, Buyout License, Free 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/Design.com or other BrandCrowd/Design.com 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/Design.com 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.
3.6 Client acknowledges that trademark may not be able to be registered for a logo icon acquired on a non-exclusive license (Free License, Standard License or Buyout License).
4.1 BrandCrowd/Design.com consent 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 BrandCrowd/Design.com 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.
6.1 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/Design.com 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 Free License, Standard License or Buyout License, they will not commence action against other legitimate license holders.
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.
8.1 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).
8.2 The Client indemnifies BrandCrowd/Design.com against any action brought with regard to Work(s) created by the Client using The Sites.
9.1 Client acknowledges that:
(a) to the extent permitted by law, BrandCrowd/Design.com are 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/Design.com have no control over and does not accept responsibility for the acts
or omissions of the Client or other third parties in connection with The Services or The Sites.
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.
11.1 Definitions In this Agreement, unless the context otherwise requires:
”Associated Sites” means the other websites operated by BrandCrowd or “powered by BrandCrowd” or operated as Design.com or “powered by Design.com”;
“BrandCrowd” when used as a party to the agreement means DesignCrowd Pty Ltd (a private company registered in Australia, Australian Business Number (ABN): 26 127 272 315) of Level 4, 2 Hill St, Surry Hills, NSW 2010 Australia;
“BrandCrowd/Design.com” when used as a party to the agreement means DesignCrowd Pty Ltd (a private company registered in Australia, Australian Business Number (ABN): 26 127 272 315) of Level 4, 2 Hill St, Surry Hills, NSW 2010 Australia;
“BrandCrowd Maker Service” means all services provided on the BrandCrowd Maker Site;
“BrandCrowd Maker Site” means all BrandCrowd sites utilising BrandCrowd Design Tools, including logo design maker
and editing tools, business card design maker and editing tools, social media makers design maker and editing
tools and any other design maker or editing tools;
"BrandCrowd Service" means the service provided on the BrandCrowd Site other than the BrandCrowd maker services;
"BrandCrowd Site" means www.brandcrowd.com and its subdirectories, other than the BrandCrowd Maker Site;
"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 Services or which is obtained from or through The Sites and which is not already in the public domain through no breach of the
recipient of its obligations of confidentiality owed to the discloser;
“Design.com” when used as a party to the agreement means DesignCrowd Pty Ltd (a private company registered in Australia, Australian Business Number (ABN): 26 127 272 315) of Level 4, 2 Hill St, Surry Hills, NSW 2010 Australia;
“Design.com Site” means www.design.com and its subdirectories;
"Fees" means the fees payable to BrandCrowd or Design.com in respect of The Maker Service;
"Intellectual Property Rights" means all industrial and intellectual property rights including, but not limited
to, copyright, trademarks 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;
“Our Websites” means www.designcrowd.com, www.brandcrowd.com, www.design.com and subdomains and associated websites;
"Project" means a design project in connection with the BrandCrowd Service;
“The Maker Service(s)” means all services provided on BrandCrowd Makers Site and Design.com Site.
“The Maker Sites” means BrandCrowd Makers Site and Design.com Site. When used as an entity, or as a party to this agreement, then The Sites means DesignCrowd Pty Ltd (a private company registered in Australia Australian Business Number (ABN): 26 127 272 315) of Level 4, 2 Hill St, Surry Hills, NSW 2010 Australia
"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);
“The Sites” means DesignCrowd.com, BrandCrowd.com, Design.com and associated sites as a collective. When used as an entity, or as a party to this agreement, then The Sites means DesignCrowd Pty Ltd (a private company registered in Australia Australian Business Number (ABN): 26 127 272 315) of Level 4, 2 Hill St, Surry Hills, NSW 2010 Australia;
“The Service(s)” means all services provided on DesignCrowd.com, BrandCrowd.com, Design.com and associated sites;
"Work(s)" means design files made available for download to the Client after the attainment of a license that may include vector artwork, vector shapes, artwork, photographs, text, copy and other elements accessed or created on the BrandCrowd Maker Site.
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.