In case you are located in the United States, this Agreement requires the use of arbitration on an individual basis to resolve disputes, rather than jury trials or class actions, and also limits the remedies available to you in the event of a dispute.
Section 1. Service
99designs provides an online platform that helps connect and support customers who wish to purchase visual content (“Customers”) through 99designs' vendor SmartShoot (the "Service").
1.2 Visual Content via SmartShoot:.
Customers may order video, photography or photos (the "Visual Content") to be created by SmartShoot, by placing an order through 99designs. Once an Order is received, Customer will communicate directly with SmartShoot on the parameters of the Visual Content ordered, on scheduling for the creation of such Visual Content (the "Appointment") and shall have the right to approve such Visual Content. Customer shall receive completed Visual Content directly from SmartShoot.
Section 2. Transfer of Rights in Visual Content:
Upon Customer's approval of the Visual Content, SmartShoot shall assign all right, title and interest in and to such Visual Content, to Customer. Such assignment shall be pursuant to the terms of the Services Agreement (Order) and Release between Customer and SmartShoot.
For informational purposes only:
(a) Subject to Customer's execution of SmartShoot's standard release for talent and location, all right, title and interest, including all intellectual property (including, but not limited to, copyright) and other proprietary rights in and to the final Visual Content shall be the sole property of Customer as a "work made for hire" under copyright laws, provided that SmartShoot or its subcontractors and Client may be granted a limited, revocable, non-exclusive, transferable, worldwide, perpetual license to host and display the Visual Content solely for their own marketing and promotional purposes. To the extent any such Visual Content does not qualify as a "work made for hire," SmartShoot agrees to and shall assign all right, title and interest in and to the Visual Content to a Customer, immediately as of Customer's approval of Visual Content via SmartShoot tokenized page.
(b) The ownership and copyright to raw footage shot while creating any Visual Content, including outtakes, b roll, interviews, location shots and clips not used in the Visual Content (the "Raw Footage") will not transfer to Customer.
(c) As between SmartShoot and Customer, SmartShoot, SmartShoot's independent contractors, or their respective third party licensors retain all ownership rights, including copyright, to any music included in any Visual Content by SmartShoot or its independent contractors, including, without limitation any original musical compositions created by SmartShoot or its independent contractors and any music licensed by SmartShoot or its independent contractors from a third party, and all related rights of any kind to such music, including, without limitations, the rights to the musical composition, sound recording, arrangement, reproduction, transmission, broadcast, dissemination by any manner, performance and moral rights (all such rights, together, the "Music"). SmartShoot shall grant Customer a limited, irrevocable, worldwide, non-exclusive, non-assignable right and license to perform the Music solely as part of and during the display of the Visual Content in accordance with this Agreement.
(d) SmartShoot shall represent and warrant to Customer that SmartShoot (i) holds all rights to the Visual Content, sufficient to assign all such rights to Customer under this Agreement; and (ii) the Visual Content created by SmartShoot or its contractors under its agreement with Customer, as delivered by SmartShoot, and used in accordance with the terms of its agreement with Customer, will not infringe the copyright, trademark, patent or other intellectual property right (whether registered or unregistered) of any third party. Notwithstanding the foregoing, SmartShoot will make no representation or warranty of non-infringement with regards to any third party names, people, trademarks, trade dress, registered, unregistered or copyrighted designs or works of art or architecture depicted in any Visual Content, unless explicitly agreed to in a specific Order,
Section 3. Payment Terms.
The following terms apply to Customers who purchase services for Visual Content via SmartShoot:
3.1 Payment and Delivery.
For orders of Visual Content via SmartShoot, (a) Customer will pay the Customer Payment to 99designs at the time an Order is placed. SmartShoot will upload the Visual Content to Customer, in a format agreed by Customer and SmartShoot. The “Customer Payment” means the price specified by 99designs at the time the Visual Content is ordered.
Refunds will be paid to Customer using the same payment methods Customer used to remit the Customer Payment to 99designs or via any other method specified by 99designs from time to time. 99designs may refund amounts to Customers for the following reasons: (i) the Visual Content 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 Customer will avoid any dispute or increased costs to 99designs; (iv) 99designs issues the refund to Customer in accordance with any refund policy specified by 99designs from time to time; (v) the order placed (or request made) by Customer is found to be fraudulent; (vi) Customer placed a duplicate order (or request) in error; or (vii) in 99designs’ sole opinion, 99designs considers that it is likely that the refund is necessary to avoid a credit card charge back. Visual Content will be deemed to be “Defective” if: (i) Customer and SmartShoot agree it is defective and notify 99designs of this fact; or (ii) the Visual Content is subject to a third party claim that the Visual Content infringes/misappropriates such party’s IPR, that is not frivolous.
In the event SmartShoot is unable to shoot the Visual Content at the designated Appointment time due to Customer’s (i) failure to abide by an Appointment, (ii) cancellation of an Appointment with less than forty-eight (48) hour notice to SmartShoot, (iii) failure to allow SmartShoot or its agents access to the applicable location at the designated appointment time, or (iv) failure to provide signed releases to SmartShoot as appropriate, SmartShoot shall be entitled to cancel the Appointment and Customer shall pay 99designs a cancellation fee of $100 (the “Cancellation Fee”). Cancellation refund amounts are as follows:
- Cancellation upon more than 48 hours' notice prior to an Appointment – Customer entitled to full refund
- Cancellation upon less than 48 hours' notice prior to an Appointment - Customer entitled to refund less $100 cancellation fee
- Cancellation after successful Appointment – Customer not entitled to any refund.
Section 4. 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 Order for the purpose of contracting separately with SmartShoot or a SmartShoot Contractor who Customer meets through the Site.
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: firstname.lastname@example.org.
Section 5. Important Disclaimers and Release
We make no warranties regarding the Visual Content or any other products or services provided by us or SmartShoot, and Visual Content is provided by us “AS IS.” Customers buy Visual Content at their own risk. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction. Your interactions with SmartShoot are solely between you and SmartShoot and 99designs will not be responsible for any loss or damage incurred as the result of any such interactions (excluding those directly due to 99designs’ acts or the Services). If there is a dispute between you and SmartShoot, we are under no obligation to become involved. Notwithstanding the foregoing, 99designs will use commercially reasonable efforts to provide the Services described in this Agreement.
You hereby release and forever discharge us (and our officers, employees, agents, successors, and assigns) from, and hereby waive and release, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or relates directly or indirectly to, your use of the Site and/or Services, any interactions or transactions of you with, or act or omission of you in relation to SmartShoot (excluding those directly due to 99designs’ acts or the Services). This Section 5.2 does not apply to customers located in the EEA.
If you are a California resident, you hereby waive California Civil Code Section 1542 in connection with the foregoing, which states: “a general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.”
Section 6. User Content
6.1 Your User Content.
“User Content” means any and all information and content that a User submits to, or uses with, SmartShoot, 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 information regarding an order for Visual Content 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.
6.2 License to User Content.
You hereby grant, and you represent and warrant that you have the right to grant, to 99designs an irrevocable, nonexclusive, royalty-free and fully paid, worldwide license 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, solely for the purposes of providing your User Content to SmartShoot for purposes of creation of Visual Content, and the right to use Visual Content for 99designs' marketing and promotional purposes.
Section 7. Site
Subject to the terms of this Agreement, 99designs grants you a non- transferable, non-exclusive, license to use the Site and Services for your internal business purposes. For the avoidance of doubt, SmartShoot's assignment of rights in the Visual Content to Customer is set forth in the applicable SmartShoot Agreement.