needdesigns general services agreement

The use of the online services provided by needdesigns ("needdesigns"), is governed by both the terms and conditions set out below as well as each Addendum ("this Agreement"). Without limiting the ways in which you may be bound by this Agreement, by signing a document agreeing to be bound by this Agreement, by clicking a button or checkbox on your computer screen including your acceptance of this Agreement, or by proceeding to use the Services (as defined below) you will be deemed to have accepted and will be bound by the terms and conditions of this Agreement.

1. Definitions and interpretation

1.1 Definitions

In this Agreement, the following terms will have the following meanings, unless the context otherwise requires:

needdesigns Handover Process Addendum

means the addendum to this Agreement by that name which sets out the terms and conditions applying to Designers and Customers in relation to their use of the handover process portion of the needdesigns platform;

Handover Process

needdesigns

means needdesigns

needdesigns.com

means the needdesigns website and underlying software and infrastructure which permits the provision of the Services;

Amendment Date

has the meaning given in clause 15.1;

Customer

means a person who hosts a Design Contest for one or more Designers to create a Design to fulfill the requirements of the person's Design Brief

Customer Payment

has the meaning given in clause 5.3(a);

Design

means a graphic design or image which a Customer engages a Designer to create as part of a Design

Design Brief

means a Customer's requirements for a Design;

Design Project

means the procedure pursuant to which a Customer invites one or more Designers to submit Design concepts for the provision of a Design to the Customer pursuant to the terms of this Agreement, the winner(s) of which will be those Designers who tender Designs selected by a Customer (for the avoidance of doubt, only one Designer may win a Design Project);

Design Project Services Addendum

means the document by that name which governs the participation of Designers and Customers in Design Projects;

Design Transfer Agreement

means the document by that name (or a similar name) which sets out a default set of terms and conditions governing the separate agreement between the Customer and Designer described in clause 4;

Designer

means a person who creates a Design in response to a Customer's Design Brief as part of a Design Project

Designer Fee

has the meaning given in clause 5.3(a)(i);

pound sterling

pound sterlings ("Pound sterlings") or other currencies;

Indemnified

has the meaning given in clause 13;

Intellectual Property Rights

means all intellectual property rights of any type whatsoever throughout the world including all rights arising under copyright, patent right, trademark, trade secret and other, similar doctrines, whether or not such rights are registered or able to be registered;

Personal Information

has the meaning given in clause 8.1;

Stock Images

means images, logos or other artistic works which may be purchased from a third party website or directly from a third party;

Taxes

means any applicable duties, sales taxes, VAT or other taxes which may be levied in respect of a transaction contemplated by this Agreement;

Third Party Work

means any image, logo, artistic work, literary work or other item or thing (including a Stock Image) in which the Intellectual Property Rights are owned by a third party;

User Account

means an online account with needdesigns which enables you to use needdesigns.com.

1.2 Rules for Interpretation

In the interpretation of this Agreement, unless the contrary intention appears:

(a) a reference to this Agreement means a reference to an agreement between you and needdesigns on the terms and conditions of the documents described in clause 1.3, and includes an amendment or supplement to, or replacement or novation of this Agreement;

(b) the words "includes" or "including" mean "includes without limitation" or "including without limitation";

(d) the singular includes the plural and vice versa;

(e) a reference to any gender includes a reference to all other genders;

(f) a reference to any legislation or to any provision of any legislation includes a reference to any modification or re-enactment of or any provisions substituted for such legislation or provisions;

(g) an agreement, representation or warranty made by two or more persons is made by them jointly and by each of them severally;

(h) where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning; and

(i) headings are inserted for convenience only and do not affect the interpretation of this Agreement.

1.3 What documents comprise this Agreement?

(a) This Agreement is made up of the following documents:

(i) the terms and conditions contained in this document;

(ii) Handover Process Addendum.

(b) In interpreting this Agreement, the terms and conditions contained in this document will override and take precedence over any inconsistent term contained in the Addendums.

2. Services offered by needdesigns

2.1 needdesigns provides online services relating to the sale, purchase and supply of Designs, in accordance with and subject to, the terms and conditions of this Agreement ("Services"), whereby:

(a) Customers and Designers may participate in Design Projects in accordance with this Agreement; and

(d) Customers and Designers may receive other goods and services from needdesigns as set out in this Agreement.

2.2 You, as a user of the Services, may use the Services in the capacity as a Customer, Designer or both a Customer and a Designer. The terms and conditions of this Agreement will apply to your use of the Services in either or both of those capacities.

3. Creating a user account to use the services

3.1 Creating a User Account

(a) You agree to create a User Account with needdesigns in order to use the Services.

(b) Your User Account will be created using needdesigns's online sign up process, or any other method specified by needdesigns from time to time.

(c) Your User Account will permit you to login to needdesigns.com to manage your User Account, make use of needdesigns.com and to manage other details involving your relationship with needdesigns.

(d) You agree to keep confidential and secure any username or password used to access your User Account.

(e) You warrant that all information provided to needdesigns in the setup of your User Account is true and correct in every detail.

(f) You agree to maintain only one User Account in relation to your use of the Services and needdesigns.com.

(g) You agree to provide needdesigns with all identification documents (including copies of passports and drivers licences) which needdesigns requests from you from time to time for the purposes of verifying your identity.

(h) All users of the Services must be 18 years of age or older. By creating a User Account, you represent and warrant to needdesigns that you are 18 years of age or older and you can form legally binding agreements under applicable law. You may however permit youths under 18 years of age to use your User Account on your behalf provided that you are their parent or legal guardian, and provided that their use of your User Account occurs under your supervision at all times. If you do permit a minor to use your User Account in accordance with the forgoing then you agree that you are responsible for their actions, omissions or negligence and you indemnify needdesigns against any loss, cost, expense or damage it may suffer as a result of the same.

(i) If you are using the Services on behalf of your employer, then both you and your employer will be bound jointly and severally in relation to this Agreement and your employer will be responsible for your actions. Further you warrant that you have full authority to enter into this Agreement on behalf of your employer.

3.2 Use of your User Account and needdesigns.com

You agree that you will only use your User Account and needdesigns.com for the purposes of using the Services and for no other purpose. In particular, in using your User Account and accessing needdesigns.com, you will not:

(a) subject to clause 3.1(h), resell or sublicense the use of needdesigns.com or your User Account to any other person;

(b) use your User Account to promote the services of a competitor of needdesigns without first obtaining the prior written consent of needdesigns;

(c) use your User Account in a fraudulent or illegal manner, or email or send any materials from your User Account which are offensive, unlawful, harassing, libelous, defamatory, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable or in violation of applicable law;

(d) use your User Account to stalk or harass another person;

(e) use your User Account to impersonate any person in any way whatsoever;

(f) use your User Account to infringe the copyright, trademark, patent or other Intellectual Property Rights of any person;

(g) use your User Account for sending advertising, chain letters, junk mail, "spamming" or any other type of unsolicited email;

(h) forge or alter the header or address information contained in any email or communication which you send from your User Account or in relation to the Services;

(i) use your User Account to send or deliver viruses, spyware, malware or other harmful, disruptive, or destructive files;

(j) use your User Account in such a way which damages needdesigns.com or denies access to needdesigns.com to other users of needdesigns.com;

(k) intentionally or recklessly use your User Account in a way that degrades the performance of needdesigns.com for other users; and

(l) cancel any Design Project or other sale or purchase of a Design for the purpose of contracting separately with a Designer or Customer you meet through needdesigns.com which results in you avoiding paying needdesigns any Customer Payment or any fees and charges of needdesigns. In these circumstances, without limiting needdesigns remedies against you, needdesigns may recover its lost fees and charges and the Customer Payment from you by suspending your User Account and/or deducting its loss from any needdesign fees in your User Account.

4. Supply of designs from designers to customers

4.1 The supply of a Design from a Designer to a Customer will be made in accordance with the Handover Process

4.2 Once a Customer selects a winning Design in a Design Project, the Customer and the Designer will be deemed to have entered into a separate binding agreement in relation to the provision of the Design and the Customer's rights in relation to the Design. needdesigns and its third party providers will not be a party to this separate agreement and will have no liability whatsoever in relation to the performance or failure to perform of a Customer or Designer under the terms of the separate agreement. The terms of the separate agreement will be:

(a) in the case of a Design sold pursuant to a Design Project, unless separately agreed in writing between a Customer and Designer, on the terms of the Design Transfer Agreement.

4.3 By entering into this Agreement but subject to clause 4.2, you agree that you will be bound by the Design Handover Agreement in your capacity as a Customer who purchases a Design or a Designer who provides a Design.

5. Payments

(a) You may pay for goods and services provided by needdesigns, including design services invoiced through needdesigns payment system,

(b) There is only one type of needdesigns Credit:

(i) Pound sterling

(d) Any Pound sterling Credit which includes a fraction of a cent may be reduced by needdesigns to the nearest whole number.

5.2 Converting Pound sterling Credits to amounts payable to you

(a) Any payment to you in a currency other than UK pound sterling will be made at an exchange rate determined by needdesigns in its sole discretion. You will bear all risk in relation to any loss you may make as a result of the exchange of UK pound sterling to another currency.

5.3 The amount payable by a Customer

(a) When you, as a Customer, submits a Design Project, you will pay needdesigns a total amount ("Customer Payment") which is comprised of:

(i) the price or portion of the Customer Payment which will be paid to the Designer for their Design, which is the total amount of the Customer Payment minus the amounts set out in clauses 5.3(a)(ii) to 5.3(a)(vi) below, as applicable ("Designer Fee");

(ii) any fees and charges imposed by needdesigns (as they exist from time to time);

(iii) any fees and charges imposed by any third party on needdesigns in respect of a Design Project

(iv) any Taxes which may be levied on the provision of the Design Services, to you;

(v) any Taxes which may be levied on the provision of any other goods or services by needdesigns to you; and

(vi) any other portion of the Customer Payment retained by needdesigns after deduction or payment of the above amounts.

(b) The total amount of the Customer Payment will be either:

(i) specified by you as required under the Launch a Design Project Addendum when you create a Design Project;

(ii) specified by needdesigns in relation to the purchase of the Design or

(iii) specified in an invoice for design.

(d) You agree that you will not enter into any arrangement or agreement with a Designer to pay any amount in excess of the Customer Payment for the Design or to pay them separately outside needdesigns.com in relation to the supply of a Design, or of design services that are the subject of an invoice issued through needdesigns, to you.

5.4 How is the Customer Payment paid?

The Customer Payment is paid using credit card, PayPal.

5.5 What amounts are paid to Designers?

(a) If a Customer elects to purchase your Design or to pay for your design services that are the subject of an invoice issued through needdesigns, then needdesigns will pay you the amount of the Designer Fee (subject to having first received payment from the Customer).

(b) The Designer Fee will be paid to you in in full

5.6 needdesigns is not a trust service

needdesigns does not hold property on trust on behalf of any person. All amounts deposited or paid to needdesigns are property of needdesigns and needdesigns may use those funds as it sees fit. The only rights that you have to receive payment of any amounts held by needdesigns are as set out in this clause 5 or under clause 6.

5.7 Taxes

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 Designs via needdesigns.com or your provision of design services that are the subject of an invoice issued through needdesigns. needdesigns is not responsible for collecting, reporting, paying, or remitting to you any such Taxes.

6. Processing of refunds

6.1 How refunds are paid

If needdesigns issues you a refund, that refund will be paid to you using the same payment methods you used to remit the Customer Payment to needdesigns as described in clause 5.4 or via any other method specified by needdesigns from time to time.

6.2 Refunds for "defective" Designs

If a refund is paid to a Customer as a result of a defective Design (as determined under clause 6.3), then:

(a) if the Design is provided by you, in your capacity as a Designer, then you must reimburse needdesigns for the amount of the Designer Fee you received in respect of that Design.

(b) if the refund is paid to you as a Customer, then you will receive the Designer Fee only once the Designer Fee is reimbursed by the Designer to needdesigns as contemplated in clause 6.2(a) above.

6.3 When is a Design deemed to be "defective"?

(a) A Design will be deemed to be "defective" if:

(i) both a Customer and the Designer agree it is (or they are) defective and notify needdesigns of this fact;

(ii) it is (or they are) determined to be defective under the terms of an Addendum;

(iii) needdesigns receives a demand or claim from a third party who claims ownership of the Design (or the Intellectual Property Rights in the design services) and needdesigns accepts (to be determined by needdesigns in its sole and absolute discretion) that there may be grounds for the third party's claim; or

(iv) needdesigns deems (in its sole and absolute discretion) that it is (or they are) defective.

(b) You agree that any determination by needdesigns that a Design is (or design services are) defective is final and conclusive, is not subject to challenge by you, and is binding upon you.

(c) If needdesigns determines that a Design is not defective (or that design services are not defective), this will not restrict a Customer from pursuing a Designer separately for amounts paid by needdesigns to the Designer.

6.4 Other circumstances in which a refund may be paid

(a) needdesigns may refund an amount paid by a Customer in respect of a Design (or design services) supplied by a Designer if:

(i) the refund is issued in accordance with any terms awarding a refund as set out in an Addendum;

(ii) needdesigns is required by law or considers that it is required by law to do so;

(iii) needdesigns determines that issuing a refund to the Customer will avoid any dispute or increased costs to needdesigns;

(iv) needdesigns issues the refund to the Customer in accordance with any refund policy specified by needdesigns from time to time;

(v) the order placed (or request made) by the Customer is found to be fraudulent;

(vi) the Customer placed a duplicate order (or request) in error; or

(vii) in needdesigns's sole opinion, needdesigns considers that it is likely that the refund is necessary to avoid a credit card charge back.

(b) needdesigns’ determination as to whether a refund is required by this clause 6.4 is final and conclusive and may not be challenged by you.

7. Suspension of the services

7.1 Without limiting needdesigns' other rights arising under this Agreement, needdesigns may suspend your User Account and your use of the Services at any time, with or without notice to you, and for any reason in its sole and absolute discretion, including if:

(a) needdesigns considers that you have breached any of your obligations to needdesigns under this Agreement (including an obligation arising under an Addendum);

(b) you submit a Design for sale via needdesigns.com which is a Third Party Work without the written consent of the owner of the Third Party Work;

(d) a provision contained in an Addendum permits needdesigns to suspend your User Account or use of the Services;

(e) you are using your User Account or the Services for illegal or fraudulent purposes or in a manner which needdesigns in its sole discretion considers unlawful, offensive, harassing, libelous, defamatory, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable; or

(f) in needdesigns's sole and absolute opinion, the provision of the Services to you is resulting in an unreasonable load on needdesigns's servers or needdesigns's other services.

7.2 You agree that:

(a) needdesigns may suspend the Services where permitted under clause 7.1 at any time;

(b) needdesigns's suspension of the Services may, in needdesigns's sole discretion, apply to only some of the Services and/or for a fixed or indefinite period of time; and

(c) needdesigns may in its sole discretion reactivate the Services and your User Account for you at any time after their suspension.

8. Privacy Policy

This Privacy Policy applies to all of the products, services and websites offered by needdesigns or its subsidiaries or affiliated companies. Sometimes, we may post product specific privacy notices or Help Centre materials to explain our products in more detail on our website.

If you have any questions about this Privacy Policy, please feel free to contact us through our website or write to us at:

info@needdesigns.com

8.1 Personal Information - Information we collect and how we use it

We may collect the following types of information:

Information you provide – When you sign up for a needdesigns Account, we ask you for some personal information. We may combine the information you submit under your account with information from our other services in order to provide you with a better experience and to improve the quality of our services. For certain services, we may give you the opportunity to opt out of combining such information. You can use the “My Account” section on the site to edit or change the information associated with your Account. Only needdesigns administrators will have access to your account information including your email.

Cookies – When you visit the needdesigns website, we send one or more cookies to your computer or other device. We use cookies to improve the quality of our service, including for storing user preferences.

Log information – When you access needdesigns services via a browser, application or other client our servers automatically record certain information. These server logs may include information such as your web request, your interaction with us, Internet Protocol address, browser type, browser language, the date and time of your request and one or more cookies that may uniquely identify your browser or your account.

User communications – When you send email or other communications to needdesigns, we may retain those communications in order to process your inquiries, respond to your requests and improve our services. When you send and receive SMS messages to or from one of our services that provides SMS functionality, we may collect and maintain information associated with those messages, such as the phone number, the wireless carrier associated with the phone number, the content of the message, and the date and time of the transaction. We may use your email address to communicate with you about our services.

Affiliated needdesigns Services on our other sites – We offer some of our services on or through other web sites. Personal information that you provide to those sites may be sent to needdesigns in order to deliver the service. We process such information under this Privacy Policy.

Other sites – This Privacy Policy applies to needdesigns services only. We do not exercise control over other sites such as Facebook and Twitter, products or services, or links from within our various services. These other sites may place their own cookies or other files on your computer, collect data or solicit personal information from you.

In addition to the above, we may use the information we collect to:

Provide, maintain, protect, and improve our services (including advertising services) and develop new services; and

Protect the rights or property of needdesigns or our users.

If we use this information in a manner different than the purpose for which it was collected, then we will ask for your consent prior to such use.

needdesigns processes personal information on our servers in the United Kingdom and Europe. In some cases, we process personal information outside your own country

8.2 Choices

You can use the needdesigns “My Account” to review and control the information stored in your needdesigns Account.

Most browsers are initially set up to accept cookies, but you can reset your browser to refuse all cookies or to indicate when a cookie is being sent. However, some needdesigns features and services may not function properly if your cookies are disabled.

8.3 Information sharing

needdesigns only shares personal information with other companies or individuals outside of needdesigns in the following limited circumstances:

• We have your consent. We require opt-in consent for the sharing of any sensitive personal information.

• We provide such information to our subsidiaries, affiliated companies or other trusted businesses or persons for the purpose of processing personal information on our behalf. We require that these parties agree to process such information based on our instructions and in compliance with this Privacy Policy and any other appropriate confidentiality and security measures.

We have a good faith belief that access, use, preservation or disclosure of such information is reasonably necessary to (a) satisfy any applicable law, regulation, legal process or enforceable governmental request, (b) enforce applicable Terms of Service, including investigation of potential violations thereof, (c) detect, prevent, or otherwise address fraud, security or technical issues, or (d) protect against harm to the rights, property or safety of needdesigns, its users or the public as required or permitted by law.

If needdesigns becomes involved in a merger, acquisition, or any form of sale of some or all of its assets, we will ensure the confidentiality of any personal information involved in such transactions and provide notice before personal information is transferred and becomes subject to a different privacy policy.

8.4 Information security

We take appropriate security measures to protect against unauthorized access to or unauthorized alteration, disclosure or destruction of data. These include internal reviews of our data collection, storage and processing practices and security measures, including appropriate encryption and physical security measures to guard against unauthorized access to systems where we store personal data.

We restrict access to personal information to needdesigns employees, contractors and agents who need to know that information in order to process it on our behalf. These individuals are bound by confidentiality obligations and may be subject to discipline, including termination and criminal prosecution, if they fail to meet these obligations.

8.5 Accessing and updating personal information

When you use needdesigns services, we make good faith efforts to provide you with access to your personal information and either to correct this data if it is inaccurate or to delete such data at your request if it is not otherwise required to be retained by law or for legitimate business purposes. We ask individual users to identify themselves and the information requested to be accessed, corrected or removed before processing such requests, and we may decline to process requests that are unreasonably repetitive or systematic, require disproportionate technical effort, jeopardize the privacy of others, or would be extremely impractical, or for which access is not otherwise required. In any case where we provide information access and correction, we perform this service free of charge, except if doing so would require a disproportionate effort. Because of the way we maintain certain services, after you delete your information, residual copies may take a period of time before they are deleted from our servers and may remain in our backup systems.

9. Relationship of the parties

9.1 needdesigns is an independent service provider to you and is not your partner, employee or agent. You do not have the power to bind needdesigns in relation to any obligation owing to a third party.

9.2 You agree that by entering a Design Project, by purchasing or selling design services (either as Customer or Designer) that needdesigns, in providing the Services and your access to needdesigns.com, is providing a platform or venue for you to enter into a separate agreement with other Customers or Designers (as the case may be). needdesigns is not a party to that separate agreement and is not responsible for any act or omission of the other parties to that separate agreement.

10. Your general obligations

You agree that:

10.1 you will not use the Services for any illegal or fraudulent purpose or for any purpose other than using the Services as a Customer or Designer;

10.2 you will comply with all laws which must be complied with in relation to the Services or the supply or purchase of a Design or of other design services contemplated herein;

10.3 you will comply with any export restrictions which may apply to the export or import of Designs or other Intellectual Property Rights to locations inside or outside the England and Wales or the territory in which you are located;

10.4 you warrant that you will not, by engaging needdesigns to provide the Services, place needdesigns in breach of any law or obligation owing to a third party;

10.5 you will not undertake any act or cause any omission which will bring needdesigns, its brand or other Customers and Designers into disrepute;

10.6 you will not use the Services in a manner that may lead to the suspension of the Services under clause 7.1;

10.7 you will provide needdesigns with all information requested by needdesigns which needdesigns requires to provide the Services;

10.8 you will not conduct any online or public voting (whether via needdesigns.com or any other website) in relation to any Design not created by you in your capacity as a Designer or purchased by you in your capacity as a Customer;

10.9 you will not use any robot, spider, scraper or other automated means to access needdesigns.com for any purpose without our express written permission; and

10.10 you will not:

(a) take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on needdesigns.com;

(b) copy, reproduce, modify, create derivative works from, distribute, or publicly display any content (other than content or Designs you have submitted to needdesigns.com) from needdesigns.com without our prior express written permission and the appropriate third party, as applicable;

(c) interfere or attempt to interfere with the proper working of needdesigns.com or any activities conducted on needdesigns.com; or

(d) bypass any measures we may use to prevent or restrict access to needdesigns.com or to your User Account.

11. Term and termination

11.1 This Agreement will commence on the date that you first create a User Account with needdesigns and will terminate at the later of the date that:

(a) the User Account is terminated or closed; or

(b) you otherwise cease using the Services.

11.2 If after termination or closure of your User Account, your User Account is reactivated or a new User Account is opened, you will again become bound by this Agreement at that time.

11.3 This Agreement and your User Account may be terminated by needdesigns at any time for any reason whatsoever with or without notice to you.

11.4 This Agreement may be terminated by a party immediately on written notice to the other party if:

(a) the other party is in default or breach of this Agreement; and

(b) the party has provided the defaulting party with written notice of the default or breach and the defaulting party fails to rectify the breach or default within 7 days of the notice.

11.5 Upon the termination of this Agreement:

(a) needdesigns will, within a time period determined by needdesigns, disable your access to, and use of the Services;

(b) you may redeem any Pound sterling Credits held by you to UK pound sterlings pursuant to clause 5. needdesigns may however withhold a reasonable portion of any amount payable to you (with such amount to be determined by needdesigns in its sole discretion) on account of credit card charge backs, refunds, payments due to third parties on your behalf or other costs and expenses which may be incurred by needdesigns after termination (including as a result of a breach by you); and

(d) within 12 months after termination of this Agreement, needdesigns will pay to you the amount withheld under clause 11.5(c) less any portion of that amount used by needdesigns to satisfy credit card charge backs, refunds, payments due to third parties or other costs and expenses incurred by needdesigns either before or after termination.

11.6 Your obligations and needdesigns rights arising under clauses 3, 4, 5, 6, 8, 9, 10, 11.5, 12, 13, 14 and 15 will survive the termination of this Agreement.

12. Limitation of liability and implied terms

12.1 You acknowledge that needdesigns and its third party providers have made no warranties that the Services will be uninterrupted or error free.

12.2 You agree that needdesigns and its third party providers will not be liable or responsible for any failure in, or delay to, the provision of the Services or in needdesigns complying with its obligations under this Agreement where such failure or delay has a arisen as a direct or indirect result of:

(a) fire, earthquake, storm, flood, hurricane, inclement weather or other act of God, war, terrorism, explosion, sabotage, industrial accident or an industrial strike;

(b) denial of service attacks, telecommunications failure, hardware failure or the failure of software provided by a third party to function in accordance with its specifications;

(c) a significant demand is placed on needdesigns's services which is above the usual level of demand and which results in a failure of needdesigns's software and hardware to function correctly;

(d) the failure of any third party (including without limitation, any bank or other financial organisation) to fulfill any obligations to needdesigns; or

(e) any other circumstances or events similar to the above which are beyond the reasonable control of needdesigns.

12.3 You acknowledge and agree that needdesigns and its third party providers shall have no liability or responsibility to you whatsoever for any unauthorised withdrawals:

(a) any of the events described in clause 12.2; or

(b) any unauthorised use or access of your User Account or needdesigns.com.

12.4 You acknowledge and agree that needdesigns and its third party providers have not made and will not make any express or implied warranties in relation to the Services or any other goods or services provided by needdesigns under this Agreement, other than those warranties expressly contained in this Agreement. Subject to clauses 12.7 and 12.8, any term that would be implied into this Agreement, including without limitation any condition or warranty, is hereby excluded.

12.5 Subject to clauses 12.7 and 12.8, you agree that needdesigns and its third party providers will not be liable in respect of any claim by you (whether arising in contract, or tort, under statute or otherwise) for any direct, special, incidental, indirect or consequential damages or injury including, but not limited to, any loss of profits, contracts, revenue or data arising out of or in connection with the provision of the Services or the provision of any other goods or services under this Agreement and whether as a result of any breach or default by, or any negligence of, needdesigns or its third party providers.

12.6 The maximum liability of needdesigns under this Agreement for any and all breaches of this Agreement and for any negligence in relation to this Agreement, will not exceed the lesser of:

(a) the amount of the Customer Payments paid for the Services by you; or

(b) the total amount of the Designer Fee received by you.

12.7 If the Sales of Goods and Services Act 1982 (or analogous legislation) applies to this Agreement and permits the limitation of liability for breach of warranty implied by legislation, the liability of needdesigns is limited, at the option of needdesigns, 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.

12.8 Any of the terms and conditions of this Agreement which limit or exclude any term, condition or warranty, express or implied, or the liability of needdesigns will apply to the extent permitted by law and will not be construed as excluding, qualifying or limiting your statutory rights or remedies arising by virtue of the breach of any implied term of this Agreement where such exclusion, qualification or limitation would be prohibited by legislation.

13. Indemnity

You indemnify needdesigns, its agents, officers, employees, and third party providers ("Indemnified") against any loss, cost, expense or damage (including legal costs on a full indemnity basis) which any of the Indemnified suffer or incur as a direct or indirect result of:

(a) any breach by you of any representation, warranty or term of this Agreement;

(b) any acts or omissions by you which are described in clause 7.1;

(d) any infringement by you of the Intellectual Property Rights of a third party including in respect of any Third Party Work; and

(e) any legal proceedings threatened or initiated against needdesigns by a third party as a result of the events described in clause 13(a) to (d), inclusive, above.

14. Intellectual property

14.1 You acknowledge that needdesigns is the owner of all Intellectual Property Rights which subsist in your User Account and needdesigns.com (but not your Designs). You acknowledge that you have no Intellectual Property Rights in your User Account or in needdesigns.com.

14.2 You acknowledge that the ownership of the Intellectual Property Rights in any Design will be set out in the separate agreement described in clause 4 between the Customer and the Designer.

14.3 You grant a worldwide, royalty free, irrevocable, perpetual licence to needdesigns.com for needdesigns.com to:

(a) use any Designs you submit to display on needdesigns.com and for needdesigns's promotional purposes; and

(b) reproduce, distribute, prepare derivative works of, and display your Designs or any other works, item or thing you supply to needdesigns (whether via needdesigns.com or by other means).

14.4 You acknowledge and agree that:

(a) subject to clause 6.3, needdesigns will not act as a moderator or adjudicator in relation to any claim by you or any third party that a Design or other content submitted to needdesigns.com infringes any Intellectual Property Rights owned by you or a third party;

(b) needdesigns does not warrant or represent that it has undertaken or will in future undertake any particular investigation or review as to whether any Design supplied by a Designer infringes any Intellectual Property Rights held by a third party. Each Customer is responsible for undertaking their own due diligence or investigations in relation to the same;

(c) needdesigns will not be liable or responsible for any breach by a Designer or Customer of any Intellectual Property Rights held by a third party in relation to any Design, Service or other use of needdesigns.com; and

(d) notwithstanding the above, needdesigns may at any time remove any content, Third Party Work or Designs from needdesigns.com which needdesigns determines, in its sole and absolute discretion, may infringe the Intellectual Property Rights of a third party.

15. Miscellaneous

15.1 needdesigns may amend the terms and conditions of this Agreement at any time. Such amendments will take effect from the date on which they are posted on needdesigns.com ("Amendment Date"). You agree that without limiting the ways in which you may be bound by such amendments, you will be deemed to have agreed to such amendments by making use of or accessing your User Account or needdesigns.com after the Amendment Date.

15.2 Unless otherwise requested in writing by you, needdesigns may use your corporate identity (if applicable) as part of promoting the Services and needdesigns in the market place.

15.3 Any notice given under this Agreement must be in writing and must be signed by the party or its agent giving the notice. A notice is taken to be received:

(a) in the case of a notice delivered by hand, when so delivered;

(b) in the case of a notice sent by pre paid post, on the third day after the date of posting;

(c) in the case of a notice sent by facsimile, upon the receipt by the sender of a transmission report from the dispatching facsimile machine which confirms that the facsimile has been successfully sent; or

(d) in the case of a notice sent by email, upon the receipt by the sender of a confirmation from the recipient or the recipient's email server that the email has been received by the recipient.

15.4 This Agreement supersedes all prior representations, arrangements, understandings and agreements between the parties relating to the subject matter of this Agreement and sets forth the entire and exclusive agreement and understanding between the parties relating to the subject matter of this Agreement.

15.5 A provision of or a right created under this Agreement may not be waived except in writing signed by the party or parties to be bound by the waiver. No single or partial exercise by any party of any right, power or remedy under this Agreement will preclude any other or further exercise of that or any other right, power or remedy. The rights, powers or remedies provided in this Agreement are cumulative with and not exclusive of any rights, powers or remedies provided independently of this Agreement.

15.6 If any provision of this Agreement is judged invalid or unenforceable for any reason whatsoever by a court of competent jurisdiction, such invalidity or unenforceability (unless deletion of such provision would materially adversely affect one of the parties) will not affect the operation or interpretation of any other provision of this Agreement to the intent that the invalid or unenforceable provision will be treated as severed from this Agreement.

15.7 needdesigns may assign its rights and update or transfer obligations which arise under this Agreement. You may not assign, update or otherwise transfer your rights or obligations under this Agreement without the prior written consent of needdesigns (which may be withheld by needdesigns in its sole discretion).

15.8 The parties acknowledge and agree that no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of this Agreement or part of it.

15.9 This Agreement is governed by, and must be construed in accordance with, the laws of England and Wales and the parties irrevocably submit to the exclusive jurisdiction of the courts of the England and Wales and their Courts of Appeal.

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needdesigns general services agreement