Termes et conditions généraux

99designs by Vista

General Terms and Conditions

Last revised: Sept 18, 2023

Please read these General Terms and Conditions carefully. These General Terms and Conditions set forth a legally binding and enforceable agreement (the “Terms”) between you and 99Designs Pty Ltd, an Australian proprietary limited company (“99designs”, “us”, and “we”), governing your access and/or use, whether as a Client, Designer, visitor or otherwise, of the 99designs website (https://99designs.com and the correlate local domains (such as, and including, https://99designs.co.uk) (collectively, the “Site”) and/or the services, features and/or functionality available or provided on or through the Site and/or Partner Integrations (the “Services”).

By accessing and/or using the Site or the Services, you are accepting and agreeing, on behalf of yourself or on behalf of your employer (or the entity to which you are providing services), if applicable, to be bound by and comply with these Terms, and you represent and warrant that you are at least 18 years old and have the right, authority, and capacity to enter into these Terms. If you do not agree with all of the provisions of this Agreement, you cannot use the Site and Services.

Certain features of the Services or Site may be subject to additional policies, codes or guidelines (collectively, the “Additional Terms”), which are or will be posted on the Service or Site in connection with such features and may be amended or updated from time to time. These Additional Terms include, without limitation:

Such Additional Terms are incorporated by reference into these Terms and are deemed part of these Terms. In the event of any conflict between the Additional Terms and these Terms, these Terms shall prevail.

99designs by Vista is part of Vista, a global e-commerce business with a primary objective of being the expert design and marketing partner for small businesses. Vista strives to meet this objective through a wide variety of products and services offered and delivered by a growing collection of Vista signature services, which include 99designs by Vista, VistaPrint and VistaCreate, among others (collectively, the “Vista Signature Services”). The Vista global e-commerce business is operated through the collective efforts of 99designs and a number of its global corporate affiliates (collectively, the “Vista Affiliates”).

1. Service

1.1 General

99designs provides an online platform that helps connect and support customers who wish to purchase designs (“Clients”) and designers who wish to provide such designs (“Designers”) through the Services, whether Design Contests, Design Projects, Partner Integrations or otherwise. “User” means any user of the Site or Service, and may be a Designer or a Client. “Sold Design” means the applicable winning Design Concept (as defined below) for a Design Contest or sold under a Design Project, following the creation of a design brief (“Design Brief”). "Adobe Stock" means any images available from Adobe as part of its “Stock” collection and licensed to 99designs, as well as any derivatives, modifications, improvements, enhancements, or extensions of the above, whenever developed. 99designs reserves the right in its sole discretion to restrict Clients or Designers from conducting Design Contests or creating Design Projects using the Services and to remove Design Contests and Design Projects. 99designs has no involvement in managing or providing the designs to Client and is simply providing the ability for Designer to store files for, work with Clients, and for Clients to request services from, view designs, provide feedback on Design Contests and Design Projects and pay 99designs, using the Services. Designers invited by 99designs (in 99designs’ sole discretion) to enter a Design Contest or participate in a Design Project may submit design concepts to the Client via the Site (“Design Concepts”). Designers should ensure that all Design Concepts comply with the Design Brief and are submitted in the format specified by 99designs by following the instructions on the Site.

1.2 Design Contest

1.2.1 Design Contest Generally. Client may conduct a design contest on the Site (“Design Contest”) by creating a Design Brief, paying the Client Payment (as defined in Section 3.1 below) to 99designs and following the other instructions on the Site. The Design Brief must clearly specify the requirements for the Design Contest, such that Designers clearly know the rules and criteria on which their Design Concepts will be judged. There are currently two types of Design Contests: (1) the Standard Contest and (2) the Guaranteed Contest.

1.2.2 Standard Contests. For Standard Contests, Client must select one or more winning Design Concepts within 60 days of Client Payment for a Standard Contest, which will be transferred from Designer to Client pursuant to the execution of the Design Transfer Agreement as further set out under Section 2. Client may withdraw from a Standard Contest (but not a Guaranteed Contest) and seek a refund of the Client Payment, provided it is within 60 days of Client Payment for the Standard Contest and Client has not chosen any finalists. If no winner is selected by Client and/or 60 days have passed after the date of the Client Payment for the Standard Contest, Client will no longer be entitled to a refund or to use the Design Concepts, and 99designs will retain Client Payment and determine the disposition of the Standard Contest in its sole discretion.

1.2.3 Guaranteed Contests. For Guaranteed Contests, Client must select one or more winning Design Concepts, which upon selection will be transferred from the Designer to the Client pursuant to the execution of the Design Transfer Agreement as further set out under Section 2. Client cannot withdraw from a Guaranteed Contest. If no winner is selected within 60 days of a Client Payment for the Guaranteed Contest, 99designs will retain the Client Payment and determine the disposition of the Guaranteed Contest in its sole discretion. If 99design’s disposition of the Guaranteed Contest does not result in Client selecting a winning Design Concept, 99designs will distribute a pro rata portion of the Designer Fee (as defined below) in the form of Designer Earnings Credits among the eligible Designers who satisfy criteria determined by 99designs in its sole discretion. Client will have no right to a refund or to use the Design Concepts.

1.3 Design Project

1.3.1 Design Project Generally

Client and Designer can work with each other on design projects by starting a 1-to-1 project by creating a Design Brief, agreeing to project-specific terms (“Project Terms”) and following other instructions on the Site (a “Design Project”). There are currently two types of Design Projects: (1) [Fixed Price] Design Project and (2) [Individual Price] Design Project.

1.3.2 Fixed Price Design Project

Client can initiate a Fixed Price Design Project by selecting a package that contains fixed Project Terms (“Fixed Price Project Terms”) and creating a Design Brief. 99designs will invoice Client for the Fixed Price Design Project, including the platform fee and any other applicable fees. Once Client pays 99designs’ invoice, Designers can express interest in working on the Fixed Design Project. Client will choose one Designer to deliver Design Concepts based upon the Design Brief. Client and Designer will work together in accordance with the Design Brief and Fixed Price Project Terms on Design Concepts until Client selects a final Design Concept, which will be transferred from Designer to Client pursuant to the execution of the Design Transfer Agreement as further set out under Section 2.

1.3.3 Individual Price Design Project

Client can initiate an Individual Design Project by creating a Design Brief that they present to an individual Designer. Client and Designer may then discuss the Design Brief and negotiate the Project Terms of the Individual Price Design Project (“Individual Price Project Terms”). Once Client and Designer come to an agreement with respect to the Individual Price Project Terms, Designer can create and present to Client a quote that contains the agreed upon pricing details for the Individual Price Design Project (a “Quote”). 99designs will invoice Client for the Quote plus the platform fee and any other applicable fees. Once Client pays 99designs’ invoice, Designer will deliver Design Concepts based upon the Design Brief. Client and Designer will work together in accordance with the Design Brief and Individual Price Project Terms on Design Concepts until Client selects a final Design Concept, which will be transferred from Designer to Client pursuant to the execution of the Design Transfer Agreement as further set out under Section 2.

1.3.4 Design Project Dispute

Client is entitled to cancel a Design Project and request a refund if Designer has not delivered any Design Concepts to Client, provided it is within 60 days of Client Payment for the Design Project. If Designer has delivered Design Concepts to Client and Designer and Client cannot agree upon a final Design Concept, or Client otherwise wishes to modify the Project Terms, cancel the Design Project, and/or request a refund (a “Project Dispute”), Client may initiate a Project Dispute by informing Designer via the Site. Client must initiate a Project Dispute within 60 days of Client’s payment of 99design’s invoice, after which time Client loses the right to both initiate a Project Dispute and to any refund. Following the initiation of a Project Dispute, Client and Designer shall make good-faith efforts to come to a mutually agreed upon resolution of such Project Dispute based upon the Project Terms. If after a reasonable amount of time, Client and Designer cannot reach a mutually agreed upon resolution to the Project Dispute, 99designs shall determine the outcome of the Project Dispute in its sole discretion, including the amount of any refund to Client. If the Design Project is cancelled for any reason, including if the resolution of a Project Dispute does not result in the selection of a final Design Concept, Client will have no right to use the Design Concepts.

1.4 Partner Integrations

99designs may partner with unaffiliated third party websites and platforms that wish to integrate with 99designs to enable Clients to identify potential providers of design or other services and connect with Designers on the 99designs platform and to work with each other on design projects (each such integration being a “Partner Integration”). Clients who choose to acquire design services from Designers through a Partner Integration will be subject to these Terms in respect of any design services acquired and must sign up for an Account. Designers acknowledge and agree that 99designs may make their information available to our unaffiliated third party partners who may make the information available on their own sites for the purpose of such Partner Integrations.

1.5 Limitations and Restrictions.

For the avoidance of doubt, Client has no right or license to use or transfer any Design Concept other than the rights they acquire to the Sold Design through the applicable Design Transfer Agreement. Client may not: (a) run a Design Contest or participate in a Design Project if Client 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 Client via any means other than via the Site; and/or (c) collude in relation to the awarding of a winner In a Design Contest or awarding a separate account held by Client as the successful Designer in a Design Contest or Design Project. Clients and Designers must deal on an arm’s length basis and Client may not cancel any Design Contest or Design Project for the purpose of contracting separately with a Designer who Client meets through the Site which results in Client avoiding paying 99designs any Client Payment or any fees and charges of 99designs.

2. Design Transfer Agreement

The Design Transfer Agreement, available at https://99designs.com/legal/design-transfer- agreement, sets forth the legally binding terms between the applicable Designer and Client for the sale of a Sold Design through the Design Contest. The Design Transfer Agreement, available at https://99designs.com/projects/design-transfer-agreement, sets forth the legally binding terms between the applicable Designer and Client for the sale of a Sold Design through the Design Project.

3. Payment Terms

The following terms apply to Clients who have initiated Design Contests or Design Projects and Designers who are participating in Design Contests or Design Projects.

3.1 Client Payment; Designer Fee.

Client Payment” means (i) the price selected by Client when Client created a Design Contest as set forth at https://99designs.com/pricing; or (ii) 99designs’ invoiced price for the Sold Design based on the Fixed Price Project Terms or Quote issued through the Design Project service by Designer to Client. “Designer Fee” means the charge to Client by 99designs for Sold Designs less any introductory and platform fees retained by 99designs.

3.2 Refunds

99designs will make refunds of the Client Payment to Client using the same payment methods that Client used to make the Client Payment to 99designs or via any other method specified by 99designsat its sole discretion from time to time. If a refund is paid to Client or a credit card charge back occurs, then: (a) Designer must reimburse 99designs for the applicable Designer Fee (the reimbursement will first be paid out of any 99designs Credits held by Designer and any remaining debt will be payable by Designer to 99designs on demand); and (b) Client will initially receive the amount of the Client Payment, less the Designer Fee and will receive the Designer Fee only once the Designer Fee is reimbursed by Designer to 99designs. 99designs may refund Clients 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 Client will avoid any dispute or increased costs to 99designs; (iv) 99designs issues the refund to Client in accordance with any refund policy specified by 99designs from time to time; (v) the order placed (or request made) by Client is found to be fraudulent; (vi) Client 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. A Sold Design will be deemed to be “Defective” if: (i) Client and 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 third party’s copyright interests, and such claim is plausibly meritorious as determined by 99designs in its sole discretion.

3.3 99designs Credits

There are three types of “99designs Credits”: (i) “Client 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 Client Credit would be equivalent to U.S. $1; if you are using the German site, the Client Credit would be equivalent to 1 Euro; etc.); (ii) “Designer Earnings Credits”, which are equivalent to U.S. $1 and are used by 99designs to pay the Designer Fee to Designers; and (iii) “Bonus Credits”, which are credits that have not been purchased by a User and are given to a User by 99designs in its sole discretion from time to time and are not equivalent to any currency. Bonus Credits are only exchangeable for Sold Designs. 99designs Credits are not legal tender and cannot be traded or sold to third parties. The balance of any Client and Designer Earnings Credits held by you may be reduced at any time by 99designs for charge-backs or refunds, or for any amount owing by you to 99designs, or to compensate 99designs for any loss it has suffered as a result of any breach of these Terms by you. Provided that you are not in breach of these Terms and your Account is not suspended, you may at any time (and 99designs may require you to at any time) convert Client Credits or Designer Earnings 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 by 99designs, to address, for example, charge-backs and refunds. 99designs is not an escrow service and does not hold cash or 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 these Terms as stated in Section 12, all Bonus Credits will be cancelled immediately and you may convert Client Credits or Designer Earnings Credits described above.

3.4 General Payment Terms

Client Credits or Designer Earnings Credits are convertible into the local currency based on the location of the Site. 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. 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 these Terms.

4. Exclusivity and Non-Circumvention

4.1 Exclusivity

You acknowledge and agree that 99designs’ revenue is derived from its receipt of Client Payments made through the Site. Therefore, for 24 months from the time you meet any party through the Site (the “Exclusivity Period”), you must use the 99designs Services as your exclusive method to request, make, and receive all payments for work directly or indirectly with that party or arising out of your relationship with that party (the “99designs Relationship”). You may opt-out of this obligation only if Client or prospective Client pays 99designs an “Opt-Out Fee” computed to be the greater of the following amounts:

(a) $2,500; or

(b) 15% of the cost to the Client of the services to be performed in the 99designs Relationship during the Exclusivity Period, as estimated in good faith by the prospective Client.

To pay the Opt-Out Fee, you must request instructions by sending an email message to support@99designs.com.

4.2 Non-Circumvention

You agree not to circumvent the payment methods offered by the Site. By way of illustration and not in limitation of the foregoing, you must not:

(a) Share any personal information on your Profile (excluding personal websites and portfolios) in the way of email, video, phone or any other method of direct contact.

(b) Submit proposals or solicit parties identified through the Site to contact, hire, manage, or pay outside the Site.

(c) Accept proposals or solicit parties identified through the Site to contact, deliver services, invoice, or receive payment outside the Site.

(d) Cancel any Design Contest or Design Project for the purpose of contracting separately with a Designer who Client meets through the Site.

(e) Invoice or report on the Site or in an Opt-Out Fee request an invoice or payment amount lower than that actually agreed between Client and Designer.

You agree to notify 99designs immediately if another person improperly contacts you or suggests making or receiving payments outside of the Site. If you are aware of a breach or potential breach of this non-circumvention policy, please submit a confidential report to us by sending an email message to: support@99designs.com.

5. Important Disclaimers and Release

5.1 Disclaimer

We make no warranties regarding the Design Project, Design Contest, Design Concepts, Sold Designs, Adobe Stock, Partner Integrations or any other products or services provided by us, Vista Affiliates, Designers, Clients, or other Users and each of the foregoing are facilitated through the Site on an “AS IS” basis. Designers are independent contractors and are not employees, agents or representatives of 99designs. Designers sell and Clients 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. Neither Designers nor 99designs performs trademark clearances with regard to any Sold Design and as a Client, you are responsible for conducting whatever clearances or other investigations may be necessary to determine whether you may obtain trademark rights in a Sold Design and/or the Sold Design you purchased will not infringe or misappropriate the trademark rights of third-parties. 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 (excluding those directly due to wrongful acts or omissions of 99designs). 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 these Terms.

5.2 Release

You hereby release and forever discharge us, our Vista Affiliates and our and their 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, your use of the Site and/or Services, your use of Adobe Stock, any interactions or transactions of you with, or act or omission of you in relation to other Users, including Clients and Designers and Third Party Sites & Ads, except in each case excluding those directly due to wrongful acts or omissions of 99designs.

If applicable, you hereby waive California Civil Code Section 1542 in connection with the foregoing, which states: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”

6. Accounts

Before you can use certain of the Services offered on this Site, you will need a Vista account (“Account”). We provide a single sign-on functionality, which allows us to offer features such as the ability to use your log-in credentials across our Vista Signature Services. Please read the Your Account section in our Vista General Terms and Conditions.

7. User Content

7.1 Your User Content

“User Content” means any and all information, content, reviews and/or testimonials (“Reviews”) that a User submits to, or uses with, the Site or Services. 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, 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 any time. You are solely responsible for creating backup copies of your User Content if you desire.

7.2 License to User Content

You hereby grant, and you represent and warrant that you have the right to grant, to 99designs and its Vista Affiliates an irrevocable, nonexclusive, royalty-free and fully paid, worldwide license for all the duration of the intellectual property rights 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, for the purposes of (i) including your User Content in the Site and Services, (ii) offering and/or delivering the Vista Signature Services to you (including making your User Content available on the Vista Signature Services’ platforms) and making your User Content available on third party platforms via Partner Integrations, (iii) for general marketing purposes of 99designs and/or the other Vista Signature Services, and (iv) or for the purposes of enabling and operating a Partner Integration as contemplated in section 1.4 above; provided, however, that 99designs will use your Design Brief and Design Concepts in accordance with the private or public settings of the Design Contest and Design Project . 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, Designer’s assignment of the Sold Design (which may be subject to third-party license requirements, if applicable) to Client is set forth in the applicable Design Transfer Agreement.

8. Acceptable Use Policy

The following sets forth 99designs’ “Acceptable Use Policy”:

8.1 Privacy

You agree that you will only use the personal information of other Clients or Designers made available to you for the purposes of interacting with them in relation to the Services. Unless otherwise agreed, you must not use their personal information for any other purpose, including for marketing purposes. You represent and warrant that you will comply with all applicable privacy laws and data protection laws in relation to the storage, use and transfer of personal information.

8.2 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 (including by allowing any third party to download or reuse any User Content in violation of any such third party rights, by using any work in an editorial manner without affixing the necessary credit or attribution or by posting or uploading or allowing any third party to post or upload any User Content on social media sites that grant exclusive rights or ownership in respect of such User Content to any third party); (b) is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, slanderous, indecent, 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 that would otherwise imply that the creator of the User Content, or the persons or property appearing in the User Content (if any), endorse any political, economic or other opinion-based movements or parties or in a way that places any person in the User Content in a bad light or in a defamatory, unlawful, immoral or offensive manner; (c) is in violation of any laws, or obligations or restrictions imposed by any third party; or (d) would cause a material risk to the security or operations of 99designs or any third party. 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 these Terms or otherwise create liability for us or any other person.

8.3 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, or to offer, use, or permit the use of the Site and/or Services in a computer service business, third-party outsourcing service, on a membership or subscription basis, on a service bureau basis, on a time-sharing basis, as part of a hosted service, or on behalf of any third party, or to sell, license or distribute any work as stand-alone or as part of an online database or any other database, or any derivative product containing any work in such way that is intended to allow a third party to use, download, extract or access the work as a stand-alone file or otherwise share any work with any third party; (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, or remove, obscure, or alter any proprietary notices associated with the Site and/or Services; (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, or otherwise attempt to interact with the operating system underlying the Site and/or Services.

9. Site

9.1 License

Subject to these Terms, 99designs grants you a non-transferable, non-exclusive, license to use the Site and Services (excluding Adobe Stock, Design Concepts, and Sold Designs) for your internal business purposes. For the avoidance of doubt, Designer’s assignment of the Sold Design (subject to third-party license requirements, if and where applicable) to Client is set forth in the applicable Design Transfer Agreement.

Adobe Stock License Terms

Subject to these Terms and to your election to utilise our Adobe Stock functions, 99designs grants you a non- transferable, non-exclusive, license to use the Adobe Stock licensed by 99designs for the sole purpose of allowing you to: (A) use, reproduce, archive, modify or display the relevant item of Adobe Stock for marketing, promotional, internal presentation or decoration purposes, digital productions, and non-commercial uses with no reproduction or production limit; (B) distribute the relevant item of Adobe Stock as incorporated into any item of merchandise or other work of authorship; (C) use, reproduce, distribute and display the relevant item of Adobe Stock in connection with: (1) electronic templates and design template applications intended for resale, provided the recipient is only permitted to use or access the relevant item of Adobe Stock in connection with the template; (2) any goods or services intended for resale or distribution; or (3) public relations campaign to promote goods or services through the media; (D) transfer files containing the relevant item of Adobe Stock or permitted derivative works to your employees or subcontractors (which may include 99designs and Designers), provided that such employees and subcontractors agree in a binding written agreement to abide by the restrictions in these Terms and only use the relevant item of Adobe Stock on your behalf (and, in the case of 99designs and Designers, only use the relevant item of Adobe Stock in connection with the final design); and (E) create an archive, digital library, network configuration or similar arrangement to allow the relevant item of Adobe Stock to be viewed by your employees.

9.2 Certain Restrictions

The rights granted to you in these Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, customize, or otherwise commercially exploit the Site or Services, or otherwise host or sub-license the Site and/or Services (or any part thereof); (b) you shall not modify, make derivative works of, adapt, translate, disassemble, reverse compile, decompile or reverse engineer any part of the Site or Services, or otherwise attempt to discover the source code in the Site and/or Services (or any part thereof); (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 these Terms. 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.

9.3 Feedback

If you provide 99designs any comments, proposals, suggestions or other feedback regarding the Site or Services (“Feedback”), you hereby transfer and assign and agree to transfer and assign to 99designs all right, title and interest in the Feedback, including all copyrights and other intellectual property rights therein. You agree that 99designs shall have the right to use such Feedback 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.

9.4 Ownership

Each User owns or has the necessary rights to its own User Content. Excluding your User Content, you acknowledge that the Site and Services, including all intellectual property rights, are owned by 99designs, our Vista Affiliates or our respective 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 Site and Services, and/or any intellectual property rights therein. 99designs, our Vista Affiliates and our respective suppliers and licensors reserve all rights not granted in these Terms.

10. Indemnity

You agree to indemnify and hold 99designs, our Vista Affiliates and our and their officers, employees, and agents harmless, including reasonable costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of (a) your use of the Site or Services, (b) your User Content (including your Design Contest, Design Concepts, and Reviews), (c) your interaction with any other User, (d) your use of Adobe Stock, or (e) your violation of these Terms 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. This Section 10 does not apply to Clients located in the EEA.

11. Third Party Sites & Ads

The Site might contain links to websites, services, and advertisements for unaffiliated third parties (collectively, “Third Party Sites & Ads”). These 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.

12. Term and Termination

Subject to this Section, these Terms 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), including in part or in full, or (b) terminate these Terms, at any time for a legitimate purpose, including in part or in full, and including for any use of the Site or Services in violation of these Terms or where any of our licensors terminates our license to use any content (including the Adobe Stock). Upon termination of these Terms, your Account and right to access and use the Site and Services (or relevant part thereof) will terminate immediately. Any 99designs Credits or payments outstanding to you at termination will be paid to you. You understand that any termination of your Account may involve deletion of your User Content associated therewith from our databases. However, we reserve the right to continue to use your User Content to the extent permitted under applicable law. 99designs will not have any liability whatsoever to you for any termination of these Terms, including for termination of your Account or deletion of your User Content. Even after these Terms are terminated, the following provisions of these Terms will remain in effect: Sections 4, 5, 7, 8, 9 (excluding Section 9.1), 10, 11, 13, 14, and 15.

13. Disclaimers; Mandatory Statutory Rights

13.1 General Disclaimer

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 states do not allow the exclusion of implied warranties, so the above exclusion may not apply to you.

13.2 Mandatory Statutory Rights

Some jurisdictions provide consumers and others with certain mandatory statutory rights (e.g., right to supplementary performance, right for a refund, right to withdrawal, etc.) which cannot be waived or limited by contract. These Terms are qualified by such mandatory statutory rights where applicable and shall not be interpreted to waive, limit or other abrogate such mandatory statutory rights.

14. Limitation on Liability

14.1 In General.

In no event shall we, our Vista Affiliates and/or any of our suppliers or licensors 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 these Terms 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 (but subject to clause 14.4), our (and our suppliers’) liability to you for any damages arising from or related to these Terms (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 jurisdictions to jurisdictions.

14.2 The following Section applies to users in Australia:

If the Consumer Law under the Competition and Consumer Act 2010 (Cth) (or analogous legislation) apply to these Terms 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.

14.3 The following Section applies to users in the EEA and Switzerland:

99designs is liable without limitation for (a) damages caused intentionally or with gross negligence by 99designs, its legal representatives or executive staff and other assistants in performance; (b) personal injury, damage to health and death caused intentionally or as a result of gross negligence on the part of 99designs, its legal representatives or assistants in performance, and (c) damages caused by the absence of warranted characteristics and for damages relating to product liability. 99designs is liable for damages resulting from the breach of primary contractual obligations by 99designs, its legal representatives or other assistants in performance; primary contractual obligations are such basic duties which form the essence of the Terms which were decisive for the conclusion of the Terms and its performance. If 99designs breaches its primary obligations through simple negligence, then its ensuing liability shall be limited to the amount which was foreseeable by 99designs at the time the respective service was performed.

14.4 Limitation related to Adobe Stock

In respect of Adobe Stock, subject to all other limitations set out in these terms, the maximum aggregate liability of 99designs for each and all claims (including any claim that alleges that any item of the Adobe Stock directly or indirectly infringes a third party’s patent, copyright, trademark, publicity rights or privacy rights) under or relating to your use of the Adobe Stock is equivalent to the greater of 10,000 USD or 10,000 USD per item of Adobe Stock.

15. General

15.1 Changes to General Terms and Conditions

These Terms may be updated by 99designs at any time without prior notice. When we make updates to these Terms, we will update the date at the top of this page. Your continued use of our Site or Services after an updated version of these General Terms and Conditions has been posted shall indicate your acknowledgement of such changes and your agreement to be bound by the updated terms and conditions. You also agree that we may provide all legal communications and notices to you electronically by posting them on our Site.

15.2 Privacy and our use of Cookies

99designs has set out in its Privacy and Cookie Policy how it collects, uses, discloses, stores and protects the information that you, whether as a Client, Designer, visitor or otherwise, submit to us during the use of the Site. This Privacy and Cookie Policy applies to every Site visit, every use of the Services, and every transaction and agreement that is concluded through the Site.

15.3 Disputes

15.3.1 Governing Law

These Terms shall be governed by and construed solely and exclusively in accordance with the laws of the State of New York, USA without giving effect to any law that would result in the application of the law of another jurisdiction.

15.3.2 United States

If you located are in the United States, the following applies to you. Please read this carefully. It affects your rights.

(i) 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. (ii) 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. (iii) 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; Chicago, IL; 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 New York County, New York. 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 New York County, New York.

15.3.3 EEA and Switzerland

If you located are in the EEA or Switzerland, the parties irrevocably submit to the exclusive jurisdiction of the courts of London, England and their Courts of Appeal.

15.3.4 Australia and Elsewhere

If you are located in Australia or elsewhere in the world, the parties irrevocably submit to the exclusive jurisdiction of the courts of the State of Victoria, Australia and their Courts of Appeal.

15.4 Entire Agreement

These Terms 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 these Terms shall not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. The word including means including without limitation. If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms 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. These Terms, 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. These Terms shall be binding upon assignees.