TERMS AND CONDITIONS OF USE
By using any website, domain, service, application or product owned or operated by iGraphic-Designs or our wholly owned subsidiaries, including those “powered by” another company on our behalf (each, a “Service“) or signing up as a client or user of any Service, you agree to be legally bound by these Terms and Conditions of Use (these “Terms“), including those terms and conditions incorporated by reference. We may revise these Terms at any time by updating this posting. You should visit this web page periodically to review these Terms and Conditions, because they are binding on you. iGraphic-Designs is sometimes referred to in these Terms using the terms “us”, “we”, “our” and similar terms. References herein to a Service shall be deemed to include all text, images, photographs, user interface, “look” and “feel”, data and other content related to such Service wherever the context of the applicable reference so warrants.
You acknowledge and agree that we shall have the right (but not the obligation) in our sole discretion, to pre-screen, refuse or remove any project and/or user provided content that violates these Terms or is otherwise objectionable, including, without limitation, projects or content that are illegal, obscene, indecent, defamatory, incites religious, racial or ethnic hatred, or violates the rights of others. Activity that is brought to our attention which appears in our sole judgment to violate the law will be brought to the attention of the proper authorities. You acknowledge, consent and agree that we may access, preserve, and disclose your account information and content if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce these Terms; (c) respond to claims that any content violates the rights of third-parties; (d) respond to your requests for customer service; or (e) protect our rights, property, or safety of the rights, property, or safety of our users or the public.
1. Our Services
(a) Description. We provide an online offering where individuals or entities that have signed up with us as clients (each, a “Client“) can post specific assignments and project descriptions, including illustrative samples or other media (each, a “Creative Brief“), revise those Creative Briefs (each, a “Revision Brief“) and obtain responses (each, a “Response“) to those Creative or Revision Briefs from design experts retained by us or otherwise affiliated with us or the Services (“Members“). We will provide you, as the Client, with certain of the Services according to the Package you have chosen as detailed in Section 1(e). Your Responses will be created iteratively through a drafting cycle of Creative Briefs, Revision Briefs and Responses, ultimately resulting in a final Response conforming to your various Creative and Revision Briefs.
(b) Creative Brief and Revision Briefs. You are solely responsible for preparing and posting detailed descriptions of each of your Creative Briefs as permitted by the Services, including providing samples illustrating your Creative Brief and any relevant deadlines. For each Response to a Creative Brief that you want to receive, a term sheet (a “Term Sheet“) will be generated that will contain, and be subject to, the terms and conditions you have established for the Creative or Revision Brief. We are under no obligation to review a Creative or Revision Brief or Term Sheet for any purpose, including accuracy, completeness of information, quality or clarity. We may decide, in our sole discretion, to deny a Creative or Revision Brief or a Term Sheet.
(c) Reviewing Responses. You are responsible for reviewing any Responses you receive. If you fail to promptly inform us that a Response is not reasonably responsive to the related Term Sheet or Creative Brief, you will be deemed to have accepted the Response. If you notify us that you think a Response is not reasonably responsive to the related Creative Brief, you shall then submit to the Services a Revision Brief containing information regarding amendments or modification to be made to the initial Response. After you provide us with a Revision Brief, you may receive a subsequent Response through the Services that conforms to the additional criteria you requested. We are not responsible for the content of Responses developed to the extent that such Responses are prepared to conform to your Creative or Revision Briefs.
(d) Revision Cycles. Revision cycles generally consist of 2-6 additional compositions that incorporate changes you request in a Revision Brief. The purpose of the revision process is to create Responses that move your project forward in the specific direction you have determined. You may request significant changes in the first and second cycles, and the Responses generated might be quite different in nature from the original composition you selected. By the third revision request, your requests shall be modifications of the current composition only. Revision requests that depart from the then-current composition will be honored and completed in a timely manner, however; we reserve the right to charge $50 for each such Revision. No revision work, which requires payment, will be started without your authorization.
(e) Packages. You may select from the following Service Packages:
4-6 original Response compositions
2 revision cycles
6-8 original Response compositions
Unlimited revision cycles
10-12 original Response compositions
Unlimited revision cycles
2 original Response stationery sets
2 revision cycles
(f) Client Accounts. When you register for the Services, you must pay for the Services via credit card, or other payment method expressly authorized by us. You will be charged for the Package you have selected. If you pay by credit card, you will be required to provide a valid credit card number and credit card billing address when registering as a Client. We will email you a receipt for the transactions in which you are involved. Our fee policy for Clients may change and we may decide to impose additional fees on Clients at any time; however, such additional fees will not apply to projects submitted before we implement any such change in fees.
(g) Refunds. If you are not satisfied with the initial Responses provided by through the Services, and have paid the full fee up-front, you may request a refund by completing the Refund Request form, which will be provided to you upon request. Upon timely receipt of the completed form, we will refund the total payment made by you, less a ninety-nine dollar ($99.00) service and processing fee. If you paid ninety-nine dollars ($99.00) up-front and are not satisfied with the initial Responses provided through the Services, you may complete the project cancellation form or email email@example.com. If the request is submitted within three business days from when the initial Responses were completed, you will not be billed the remaining balance for the logo package you purchased. If this form is not completed within three business days from when the initial Responses were completed, you will be billed the remaining balance of the price of the selected package. In addition, refunds are only available to the actual Client for whom the logo was created. No refund is available for design firms or for those who order our design services on behalf of another entity. Furthermore, you shall forfeit the right to the refund outlined above if you request additional revisions to any of the initial concepts. You shall also forfeit the right to a refund if you do not respond in a timely manner to a status notification from us, as described below in Section 1(h). Should you receive a refund, you agree that your acceptance of the refund shall constitute your sole and exclusive remedy with respect to related Responses. Additionally, you acknowledge that you will have no right (express or implied) to use any Response or other work product, content, or media, nor will you have any ownership interest in or to the same.
(h) Project Duration. You agree to provide timely responses to any status notifications that we send to you. You shall have 30 days to respond to each Response sent to you. If after 30 days you have failed to respond, we will assume that your project is complete and the project shall be deemed completed. At such time, we will have no further obligation to you, and you will pay us pursuant to the provisions of these Terms. Notwithstanding the foregoing, we reserve the right, in our sole discretion, to terminate your access to all or any portion of the Services, at any time, with or without notice. In the event of such termination, we will determine, in our sole discretion, whether you are entitled to any refund.
2. Eligibility, Access, Use and Service
(b) Authorization to Use; Permitted Uses. You may access and use the Services solely in accordance with these Terms and any posted policies and procedures that are posted or otherwise provided in connection with the Services. You may provide Creative Briefs and obtain Responses only if you register as a Client. Any use of the Services is at your sole risk and responsibility. Subject to these Terms, you may (i) display the Services on an Internet access device, and (ii) on an occasional, infrequent and ad hoc basis, and only in circumstances that constitute “fair use” under United States copyright law, print copies of insubstantial portions of the Services.
(c) Prohibited Uses. Except as expressly permitted in these Terms and Conditions, you may not display or print the content from the Services and in no event may you broadcast, circulate, distribute, download, perform, publish, rent, reproduce, sell, store, transmit or create decorative works related to the Services. Additionally, you agree to comply with all applicable laws (including, without limitation, any applicable export controls) in connection with your use of the Services, and with such further limitations or rules as may be posted or otherwise provided in connection with the Services. Without limiting the foregoing, you agree not to transmit, distribute, post, communicate or store information or other material on, to or through the Services that (i) is copyrighted, unless you are the copyright owner; (ii) reveals trade secrets, unless you own them; (iii) infringes on any other proprietary or intellectual property rights of others, on the privacy or publicity rights of others, or any statutory right; (iv) is obscene, defamatory, threatening, harassing, abusive, hateful, or embarrassing to any other person or entity; (v) is sexually-explicit; (vi) constitutes advertisements or solicitations of business, chain letters or pyramid schemes; or (vii) contains viruses, Trojan horses, worms, time bombs, or other computer programming routines or engines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or information. You further agree not to (I) use any incomplete, false or inaccurate biographical information or other information for purposes of registering as a Client; (II) delete or revise any material or other information of any other user of the Services; (III) take any action that imposes an unreasonable or disproportionately large load on the Services’ infrastructure; (IV) use any device, software or routine to interfere or attempt to interfere with the proper working of the Service or any activity being conducted through the Services; (V) use or attempt to use any engine, software, tool, agent or other device or mechanism (including, without limitation, browsers, spiders, robots, avatars or intelligent agents) to navigate or search the Web Site, other than the search engine and search agents available from us through the Services and other than generally available third-party web browsers (e.g., Microsoft Internet Explorer, Google Chrome); or (VI) attempt to decipher, decompile, disassemble or reverse-engineer any of the software comprising or in any way making up a part of the Services.
(d) Security. You are prohibited from violating or attempting to violate the security of the Services, including, without limitation, (i) accessing data not intended for you or logging into a server or account that you are not authorized to access; (ii) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization; (iii) attempting to interfere with service to any user, host or network, including, without limitation, by way of submitting a virus to, or overloading, “flooding”, “spamming”, “mailbombing” or “crashing”, the Services; (iv) sending unsolicited email to any user of the Services, including promotions and/or advertising of products or services; or (v) forging any TCP/IP packet header or any part of the header information in any email or posting generated in connection with the Services. Violations of system or network security may result in civil or criminal liability. We will investigate occurrences that may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting users who are involved in such violations. We reserve the right to review postings on the Services, to remove any postings, and to terminate your ability to communicate with, or post to, the Services at any time without notice, in our sole discretion. We will use commercially reasonable efforts not to disclose any information you communicate with, or post to, the Services, but reserve the right to disclose such information to the extent necessary to satisfy any applicable law, regulation, legal process or governmental request, and the right to edit, refuse to post or to remove any information or materials, in whole or in part.
(e) Operation of Services. We are not responsible for any delays or interruptions of, or errors or omissions contained in, the Services. We reserve the right, but are not required, to correct any such delays, interruptions, errors or omissions. Although we intend to use commercially reasonable efforts to make the Services accessible, we make no representation, warranty or covenant that the Services will be available at all times or at any time. We may at any time discontinue the Services in whole or in part, may change or eliminate any transmission method, and may change transmission speeds or other signal characteristics. We will not be responsible for any loss, cost, damage or liability that may result from any of the circumstances, actions or inactions described in this paragraph.
3. Registration, Password, User Identity
(a) Your User Identity. When you register as a Client, you will create a user identity (your “User Identity“), which will be your identity for purposes of interacting with other users through the Services. Your User Identity will include certain personal information, such as, the industry in which you operate. However, your user name need not be your real name. During the registration process, the fields requesting information that will be made available to others as part of your User Identity are identified. You are responsible for ensuring that you are comfortable making such information available to other users of the Services.
(b) Access Numbers, Passwords, and Password Access. You shall keep confidential, shall not disseminate, and shall use solely in accordance with these Terms, your User Identity, registration identification and password for the Services. You shall immediately notify us if you learn of or suspect: (i) any loss or theft of your User Identity, registration identification or password, or (ii) any unauthorized use of your registration identification or password or of the Services. In the event of such loss, theft, or unauthorized use, we may impose on you, at our sole discretion, additional security obligations.
(c) Security Breaches and Revision. If any unauthorized person obtains access to the Services as a result of any act or omission by you, you shall use your best efforts to ascertain the source and manner of acquisition and shall fully and promptly inform us. You shall otherwise cooperate and assist in any investigation relating to any such unauthorized access.
4. Ownership; Rights to Use
(a) The Services Generally. Except as expressly contemplated under these Terms, as between us and you, we will own all right, title and interest in and to all copyright, trademark, service mark, patent, trade secret or other intellectual property and proprietary rights in and to the Services, and in all Responses, logos and other materials created using the Services, in all media now known or later devised, to the fullest extent provided under United States and international law. You shall not remove, conceal or alter any copyright notice, byline information, disclaimer, restriction or other notice posted in connection with the Services or any portion thereof. You shall not use or permit any third party to use our name, trademarks, trade names, or trade dress, including “iGraphic-Designs”, without our prior written consent, as determined in our sole discretion, for each such use.
(b) Creative and Response Briefs. Upon submission of a Creative or Response Brief or any other information or media provided by you in connection with your use of the Services (collectively, the “Client Information“), we and our Members and other agents shall have all rights and licenses necessary to use such Client Information for the purpose of obtaining and preparing Responses and for archival purposes.
(c) Our Rights. Upon your submission of Client Information to the Service, you grant us and our agents a royalty-free, perpetual, irrevocable, sublicenseable, non-exclusive, worldwide right (including any moral rights) and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, communicate to the public, perform and display (in whole or in part), and/or incorporate in other works, in any form, media, or technology now known or later developed, such Client Information and any Final Product, for the full term of any intellectual property rights that may exist in such Client Information or the Final Product, as applicable.
(d) Rights of Clients. Subject to your compliance with these Terms, you shall own the final Response composition provided to you by us (the “Final Product“). You shall not, however, own the Creative and Revision Briefs, individual Responses provided to you or any materials, media or other content generated during any revision cycles leading up to the Final Product, and we expressly reserve all right, title and interest in and to the same. For greater clarity, we retain the rights to all artwork concepts and other content not selected by you. You acknowledge that your ownership rights under these Terms are limited to the Final Product, and that no ownership interest in any trademarks or service marks contained in or made a part of any Final Product are being conveyed under these Terms. You hereby acknowledge that we shall have no obligation or duty to perform trademark, service mark or copyright searches or inquiries, or the like, in order to validate the propriety or legality of the Final Product. Accordingly, you are encouraged to perform your own independent searches with regard to the Final Product. Furthermore, you acknowledge that we shall have no responsibility or obligation of any kind to assist you in seeking state or federal intellectual property protection (i.e., without limitation, trademark or copyright registration) for the Final Product, nor shall we be responsible for otherwise assisting you in any way in your attempt to perfect your rights in or to the Final Product.
5. Non Disclosure and Privacy
6. Disclaimers; Indemnification; Limitations of Liability
(a) Responsibility for Content. We shall not be responsible for any use that is or is not made of the Services. Without limiting the foregoing, we make no representations, warranties or covenants regarding, and does not guarantee, the truthfulness, accuracy, or reliability of any information or other material (including, without limitation, any Creative Brief, Term Sheets, Responses or User Identity) that are communicated through, or posted to, the Services, whether by Members, Clients, us or otherwise, nor do we endorse any opinions expressed by any user of the Services, including any Member or Client. Without limiting the foregoing, we make no representations, warranties or covenants regarding the validity of the rights to Responses granted pursuant to these Terms. You acknowledge that any reliance on information or other material, including, without limitation, any information related to a particular Package or your project, Term Sheet, Response or User Identity, communicated through or posted in connection with the Services will be at your own risk. Without limiting the foregoing, you agree and acknowledge that you use each Response at your own risk and that you are responsible for taking any actions you deem reasonable to determine whether your use of a Response will infringe any statutory or third-party intellectual property, privacy or publicity rights.
(b) Links to Third-Party Services. The Services may contain links to third-party web sites or other services (the “Linked Content“). The Linked Content is not under our control and we are not responsible for the Linked Content, including, without limitation, links contained in the Linked Content, or any changes or updates to Linked Content. We are providing Linked Content to you only as a convenience, and the inclusion of such Linked Content is not an endorsement by us of such Linked Content. If you decide to access any Linked Content, you do so at your own risk.
(c) Disclaimer of Warranties. THE SERVICES AND THE RESPONSES ARE PROVIDED “AS IS.” WE MAKE NO REPRESENTATION OR WARRANTY OF ANY KIND WHATSOEVER TO YOU OR ANY OTHER PERSON RELATING IN ANY WAY TO THE SERVICES, INCLUDING ANY PART THEREOF, OR ANY CONTENT OR SERVICE THAT MAY BE ACCESSIBLE DIRECTLY OR INDIRECTLY THROUGH THE SERVICES, INCLUDING ANY TERM SHEET, RESPONSE, USER IDENTITY OR LINKED CONTENT. WE DISCLAIM, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ANY AND ALL SUCH REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE DISCLAIM, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ANY AND ALL (i) WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; (ii) WARRANTIES AGAINST INFRINGEMENT OF ANY THIRD-PARTY INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS; (iii) WARRANTIES RELATING TO DELAYS, INTERRUPTIONS, ERRORS, OR OMISSIONS IN THE WEB SITE, OR ANY PART THEREOF; (iv) WARRANTIES RELATING TO THE TRANSMISSION OR DELIVERY OF THE SERVICES; AND (v) WARRANTIES OTHERWISE RELATING TO PERFORMANCE, NON-PERFORMANCE, OR OTHER ACTS OR OMISSIONS BY US OR ANY THIRD PARTY. FURTHERMORE, THERE IS NO WARRANTY THAT THE SERVICES WILL MEET YOUR NEEDS OR REQUIREMENTS OR THE NEEDS OR REQUIREMENTS OF ANY OTHER PERSON.
(d) Release from Claims. The Services serve solely as a venue for the creation of work and we dos not regularly screen or censor any information or material posted in connection with the Services. Although we make commercially reasonable efforts to determine the identity of Clients, we cannot and does not confirm that any Client, Member or other user is who they claim to be or that any Client, Member or other user has the qualifications he or she claims to have. Because we do not and cannot be involved in user-to-user dealings or control the behavior of participants in connection with the Services, if you have a dispute with one or more users, you hereby release us (and our affiliates, agents and employees) from claims, demands and damages (actual and consequential, direct and indirect) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. If you are a California resident, you waive California Civil Code section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
(e) Indemnification. You hereby agree to defend, indemnify and hold harmless us and our subsidiaries, affiliates, officers, agents, co-branders or other partners and employees from any action, claim, demand, or liability arising from or relating to your violation of any of these Terms or use of the Services, and any expenses incurred in connection therewith, including, without limitation, reasonable attorneys’ fees.
(f) Limitation of Damages. IN NO EVENT SHALL THE COMPANY OR ANY THIRD PARTY BE LIABLE TO YOU OR ANY OTHER PERSON FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR INDIRECT DAMAGES ARISING UNDER OR IN ANY WAY RELATED TO THE SERVICES, INCLUDING ANY PART THEREOF, OR THESE TERMS AND CONDITIONS OR ANY OTHER CONSENT (INCLUDING LOST PROFITS, LOSS OF BUSINESS OR DATA, BUSINESS INTERRUPTION, TRADING LOSSES, AND DAMAGES THAT RESULT FROM INACCURACY OF THE INFORMATION OR INCONVENIENCE, DELAY, OR LOSS OF THE USE OF THE SERVICES) EVEN IF WE OR ANY THIRD PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. OUR TOTAL LIABILITY FOR DAMAGES SHALL BE LIMITED TO THE TOTAL AMOUNT YOU PAID TO US FOR YOUR PACKAGE UNDER THESE TERMS AND CONDITIONS.
8. Miscellaneous Provisions
(b) Amendment. No modification, amendment, or waiver of these Terms or any part hereof shall be binding unless evidenced in writing and signed by one of our authorized corporate officers.
(c) Severability. If any provision of these Terms is held by a court of competent jurisdiction to be invalid, void, or unenforceable, then such provision shall be deemed null and void, but the remaining provisions shall continue in full force without being impaired or invalidated in any way.
(d) Mutual Participation. The language of these Terms shall be deemed to be the language mutually chosen by the parties and no rule of strict construction shall be applied against or in favor of either party hereto.
(e) Headings. The section headings and other headings contained herein shall not affect the meaning or interpretation of these Terms.
(f) Choice of Law; Forum. These Terms and Conditions shall be governed by the substantive law of the State of New York, without reference to any choice of law rules that would result in the application of the substantive law of any other jurisdiction. The parties agree that any disputes arising out of or relating to these Terms shall be submitted to the federal courts having jurisdiction in the Borough of Manhattan, New York, New York, or state courts having jurisdiction in the area in which such federal courts have jurisdiction, and the parties consent to the personal jurisdiction of such courts with respect to such disputes.
(g) Assignment. You may not assign or otherwise transfer (by operation of law or otherwise) any of your rights or duties hereunder unless we agree in writing after receiving prior written notice. Any attempted assignment or other transfer without the requisite consent shall be null and void ab initio. We may assign or otherwise transfer any of our rights or the performance of any of our duties without your consent.
(h) Waiver. The waiver by us of a breach or a violation of any provision of these Terms shall not operate as or be construed to be a waiver of any subsequent breach or violation of any provision of these Terms.
(i) Independent Contractors. The parties and their respective personnel are and shall be independent contracts and neither party by virtue of these Terms shall have any right, power or authority to act or create any obligation, express or implied, on behalf of the other party.
(j) Force Majeure. If the performance of any part of these Terms by either party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God or any other causes beyond the control of either party, that party shall be excused from such to the extent that such performance is prevented, hindered or delayed by such causes.
(k) Capacity. The parties hereby warrant and represent that they have all necessary rights and authority to execute these Terms and to fulfill their obligations hereunder.
(l) Further Assurances. The parties hereto shall, at their own cost and expenses, execute and deliver such other documents, artwork, programming code and instruments and shall take such other action as may reasonably be required or appropriate to evidence or carry out the intent and purposes of these Terms.