Terms and Conditions
Effective date: March 14, 2014
Last updated: March 14, 2014
The Terms and Conditions set forth herein describe the terms under which Designs Desk, LLC ("Designs Desk", "we", or "us"), a Delaware Limited Liability Company with its principal place of business in Chicago, Illinois, offers you ("you" or "your") access to this website (including all content and functionality available through DesignsDesk.com), and the services provided by us. By visiting or using the services available on DesignsDesk.com (the "Site" or "DesignsDesk.com") you agree to the following terms and conditions, without modification, including those terms available by hyperlink (the "Agreement"). If you do not agree with any of the terms of this Agreement and any related policies referenced herein, do not use the Site. Your use of the Site after the effective date signifies your acceptance of all of the terms of this Agreement.
By accessing and using the Site and the services offered by Designs Desk, you represent to us that you are at least eighteen (18) years of age and may lawfully enter into binding contracts. Before you may become a member of the Site, you must read and accept all of the terms and conditions of this Agreement.
1. How it Works (Designs Desk's "Services")
Designs Desk is an online service where Members post projects requesting design services ("Buyers"). Thereafter, other Members can submit actual design works in response to a Buyer's posted project and according to the Buyer's requirements ("Designers"). Buyers choose the winning entry(s) ("Winning Designer"). In providing this online service, we do not source (except for us, where this is expressly stated in the project) or deliver projects or entries. "Member" means any registered user of the Site or of its Services, and may be a Buyer or a Designer.
1.1 Contract Between Buyers and Designers. By registering as a Member of the Site, you acknowledge and agree that you are utilizing our Service in order to contract directly with other Members to buy or sell services. When a Buyer posts a project, the Buyer can select whether to use their own contract or a Designs Desk contract to complete a transaction with a Designer ("Design Contract"). Designers can preview the terms in the Design Contract prior to submitting entries to a project. By submitting entries to a project, Designers agree that if their entry is selected, they will be entering into a binding agreement with that Buyer, pursuant to the terms of the Design Contract.
When a Buyer selects a Winning Designer, the Buyer agrees to purchase, and the Designer agrees to deliver, the Designer's services in accordance with the terms of the Design Contract and this Agreement. The Buyer agrees to select the winning design within five (5) business days after the project ends. The Buyer further agrees that it would be unfair if no Designer received the award(s) offered by the Buyer due to the Buyer abandoning the project. Therefore, if the Buyer does not select the Winning Designer, the Buyer agrees that after thirty (30) or more days have passed following the project end date, Designs Desk may select the Winning Designer and pay the award(s) on behalf of the Buyer.
Additionally, you agree that when you are a Buyer in a project, you will take all final steps to close your project within thirty (30) days of your project end date. You authorize us to release funds to pay the Winning Designer(s) if more than thirty (30) days have passed since your project end date (the Winning Designer will still be required to close the project and to deliver the final files to you under their written agreement with you). You agree not to enter into any contractual provisions in conflict with this Agreement. You further agree that any provision in a Design Contract that conflicts with this Agreement is void.
1.2 Fees. There is no cost to becoming a Member on the Site. We charge a fee to Buyers who post projects on our Site. Buyers also have the option of selecting various add-on features that will increase project exposure. When you post a project as a Buyer, you will always have an opportunity to review and accept any fees that you will be charged. We also charge a fee to Winning Designers based on a percentage of the total project award amount. This fee is deducted from the Winning Designer's project award payment. We may choose to temporarily change the fees for our services. All fees are quoted in U.S. Dollars. You agree to pay in a timely manner and with a valid payment method, all fees applicable to your use of the services. If your payment method fails, we may collect fees owed using other collection mechanisms.
1.3 Taxes and Reporting. Each Member is solely responsible for satisfying all income tax, payroll tax, payroll withholding, sales and use tax, governmental reporting and other legal requirements under applicable law, including without limitation those applicable to the purchase and sale of services provided by Designers, from and by independent contractors. Designs Desk will not issue 1099 tax forms. If you are a U.S. Buyer purchasing services from a U.S. Designer, you are solely responsible to issue 1099 tax forms to those Designers.
1.4 No Agency. No agency, franchise, partnership, joint-venture, or employee-employer relationship is intended or created by this Agreement.
1.5 Member Entries. You shall be solely responsible for your own entries and all content you post on the Site, and the consequences of posting or publishing entries or content. When uploading entries or comments to the Site, you affirm, represent and/or warrant that: you own or have the necessary licenses, rights, consents and permissions to use and authorize us to use all patent, trademark, trade secret, copyright, or other proprietary rights in and to any and all of your entries of content, to enable inclusion and use of your entries and content in the manner contemplated on the Site and in this Agreement.
2. Acceptable Use of Site
You agree that you will use the Site and the services offered by Designs Desk in a lawful manner and for lawful purposes only. We will report fraudulent conduct to law enforcement, and will cooperate with law enforcement to ensure that violators are prosecuted to the fullest extent of the law.
You agree not to use the Site or Services to provide any products or services that:
- violate any third-party rights, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right;
- are unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another's privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, 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 in any way; or
- violate any laws, or obligations or restrictions imposed by any third party.
In addition, you agree not to use the Site or Services to:
- upload, transmit, or distribute any computer viruses, or any software intended to damage or alter a computer system or data;
- 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;
- harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent;
- copy, reproduce, modify, create derivative works from, distribute, or publicly display any content (other than content you have submitted to us) from the Site without our prior express written permission and the appropriate third party, as applicable;
- 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;
- 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;
- bypass any measures we may use to prevent or restrict access to the Site;
- harass or interfere with another user's use and enjoyment of the Site or Services;
- 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; or
- impersonate any person or entity or falsify or misrepresent yourself or your affiliation with any person or entity.
The Site contains robot exclusion headers. Much of the information on the Site is updated on a real-time basis and is proprietary to us, our Members or third parties. You agree that you will not use any robot, spider, scraper or other automated means to access the Site for any purpose without our express written permission.
Notwithstanding the foregoing, Designs Desk grants the operators of public search engines permission to use spiders to copy materials from the Site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials.
3. Links To Third Party Content
You may find links to other websites on the Site. You acknowledge and agree that we are not responsible or liable for: (i) the availability or accuracy of such sites or resources; or (ii) the content, advertising, or products on or available from such sites or resources. The inclusion of any link on the Site does not imply that we endorse the linked site. You use the links at your own risk and expressly release us from any and all liability arising from your use of any third-party website.
4. Reservation of Rights
We reserve the right, in our sole and absolute discretion, to immediately stop any project or transaction, prevent or restrict access to the Site or to our services, or take any other action in case of technical problems, objectionable material, inaccurate project listings, inappropriately categorized projects, inaccuracies, unlawful projects or content, procedures or actions otherwise prohibited by our policies and rules, or for any other reason.
5. Disclaimers and Release of Liability
You assume the sole risk for use of this Site. The Site and the Services provided by Designs Desk are provided "as is", and without any warranties or conditions (express or implied, arising by statute or otherwise in law or from a course of dealing or usage or trade). We make no representations or warranties, of any kind, either express or implied, as to the quality, identity or reliability of any third party, or as to the accuracy of the postings made on the Site by any third party. We cannot guarantee continuous or secure access to our Services or that the Site or Services will meet your requirements. Operation of the Site may be affected by factors outside our control. To the fullest extent legally permitted, Designs Desk, its officers, directors, employees and agents disclaim and exclude all implied warranties, terms and conditions, including but not limited to the implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. No advice or information, whether oral or written, which you receive from us or through the use of our Services shall create any warranty not expressly stated in this Agreement.
You will not hold Designs Desk, its officers, directors, employees or agents responsible for other Members' actions or omissions, including their posts. You acknowledge and agree that we are not a traditional auctioneer. We provide a venue to allow anyone to offer, sell and buy design services, at anytime, from anywhere. Except when purchasing design services for its own use, Designs Desk is not a party to any Design Contract. We have no control over and do not guarantee the quality, safety or legality of design services, the truth or accuracy of project listings or member information, the qualifications, background, or abilities of Members, the ability of Designers to deliver design services, or that Members will complete a transaction. Each Designer and Buyer must look solely to the other for enforcement and performance of all the rights and obligations pursuant to the transactions it entered into with the other on DesignsDesk.com, and any other terms, conditions, representations, or warranties associated with such transactions.
We do not endorse any Member submitted content to the Site, or any opinion, recommendation, or advice expressed by Members. We expressly disclaim any and all liability in connection with content submitted by Members.
If you have a dispute with another Member, you release Designs Desk (and our officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such dispute.
If you are a California resident, you hereby waive California Civil Code §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." If you are a resident of another state, you hereby waive any analogous law in your jurisdiction. You acknowledge that this waiver is an essential and material term of this Agreement, and that without such waiver, we would not have entered into this Agreement.
You will not hold us liable to you or any other Member for any special, indirect, consequential or punitive damages pursuant to this Agreement, including but not limited to, loss of profits, loss of business opportunities or loss of goodwill or reputation, even if advised of the possibility of such damages.
This Site is controlled and offered by us from facilities in the United States of America. Those who access or use the Site from other jurisdictions do so at their own risk and are solely responsible to comply with local law.
Notwithstanding any other provision of this agreement, in no event will our liability to you for any action or claim related to the services provided under this Agreement, whether based on contract, tort, negligence or any other theory of liability, exceed the total fees you paid to us in the three months prior to the action giving rise to the liability.
You agree to defend, hold harmless and indemnify Designs Desk, its officers, directors, employees and agents, from and against any and all losses, costs, expenses, damages or other liabilities (including reasonable attorneys' fees) incurred by us from and against any cost, liability, loss, damage, cause of action, claim, suit, proceeding, demand or action brought by a third party against us: (a) in connection with your use of the Services or the use of the Service using your account, including any payment obligations incurred through use of the Services; or (b) resulting from: (i) your use of the Site (ii) your decision to supply credit information via the Site, including personal financial information; (iii) your decision to submit postings and accept offers from other members; (iv) any breach of contract or other claims made by Members with which you conducted business through the Site; (v) your breach of any provision of this Agreement; (vi) any liability arising from the tax treatment of payments or any portion thereof; (vii) any negligent or intentional wrongdoing by any Member; (viii) any act or omission of yours with respect to the payment of fees; (ix) your dispute of or failure to pay any invoice or any other payment; and/or (x) your obligations to another Member. This defense and indemnification will survive this Agreement and your use of the Site.
7. Intellectual Property
When you submit content to the Site, you grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free sublicensable and transferable license to use, reproduce, distribute, prepare derivative works of, display and perform the content in connection with the Site, in any media known now or in the future.
Subject to and conditioned on compliance with this Agreement, we grant you a limited license to access and to use the Site for the purpose of buying and selling the services offered by Designers.
You cannot and must not sell, reproduce, distribute, modify, display, publicly perform, prepare derivative works based on, repost or otherwise use any content found on DesignsDesk.com in any way for any public or commercial purpose without our prior written consent or the consent of the rights holder. Unless you are otherwise lawfully entitled to do so, you cannot and must not use any content found on the Site on any other website, in a networked computer environment, or in any medium, for any purpose except your own internal viewing. You agree that you will not attempt to reverse engineer or attempt to interfere with the operation of any part of the Site unless expressly permitted by law.
We retain all right, title and interest in and to all patent rights, inventions, copyrights, and trade secrets relating to the Site. The Designs Desk logo and name may be trademarks of Design Desk, and may be registered in certain jurisdictions. All other product names, company names, marks, logos and symbols on DesignsDesk.com may be the trademarks of their respective owners. Except as expressly stated above, nothing in this Agreement confers any license under any of our or any third party's intellectual property rights, whether by estoppel, implication or otherwise.
You consent to receive communications from Designs Desk electronically, by email (as amended by you from time to time) or by posting communications on the Site. You agree that these electronic communications satisfy any legal requirement that such communications be in writing. Electronic communications are deemed to have been received 24 hours after we send it to the email address you have provided to us, or when we post such communication on the Site. You shall keep your email address updated, and agree to regularly check the Site for postings. In the event that the last email address that you have provided us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the email containing such notice will nonetheless constitute effective notice. In some circumstances, legal notice may be given to the address provided during the registration process (as amended by you from time to time). In such case, notice shall be deemed given three days after the date of mailing.
All notices to Designs Desk intended to have legal effect concerning this Agreement must be in writing and delivered either in person or through a delivery method confirmed by delivery receipt. All notices must be sent to the following address and are deemed effective upon receipt:
Designs Desk, LLC
Attn: Legal Department - Notices
150 North Michigan Avenue, Suite 2800
Chicago, Illinois 60601
9. Dispute Resolution
You agree to resolve any claim or controversy at law or equity that arises between the parties out of this Agreement or the Services ("Claim") in accordance with this section, entitled "Dispute Resolution." Before resorting to these alternatives, you agree to contact us directly to seek a resolution.
9.1 Jurisdiction. This Agreement is governed in all respects by the laws of the State of Illinois without giving effect to any principle that may provide for the application of the law of another jurisdiction. You agree that any claim or dispute you may have against Designs Desk must be resolved by a court located in Cook County, Illinois, or as described in the Alternative Dispute Resolution paragraph below. You hereby submit to the personal jurisdiction of the courts located within Cook County, Illinois for the purpose of litigating all such claims or disputes. You expressly agree that any and all Claims you may have against DesignsDesk.com must be commenced within 45 days of occurrence or the Claim is barred.
9.2 Alternative Dispute Resolution. For any claim arising between you and Designs Desk (excluding claims for injunctive or other equitable relief) where the total amount of the award sought is less than $25,000, the party requesting relief may elect to resolve the dispute in a cost-effective manner through binding non-appearance-based arbitration. A party electing arbitration must initiate such arbitration through an established alternative dispute resolution ("ADR") provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: (a) the arbitration will be conducted by telephone, online and/or be solely based on written entries, the specific manner will be chosen by the party initiating the arbitration; (b) the arbitration will not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (c) if an arbitrator renders an award the party receiving the award may enter any judgment on the award in any court of competent jurisdiction.
9.3 Improperly Filed Claims. If you file a claim contrary to this section entitled "Dispute Resolution," we will be entitled to recover attorneys' fees and costs, provided that we have notified you in writing about the improperly filed claim, and you have failed to promptly withdraw the claim.
This Agreement shall become effective upon your acceptance of the Terms and Conditions or your use of the Site, and shall continue until terminated by either party as described in this section. Unless otherwise agreed to in writing between the parties, either party may terminate the Agreement at any time upon notice to the other party. In such event, (i) we shall continue to perform those Services necessary to complete any open transaction between you and another member; and (ii) you shall continue to be obligated to pay us and any Designers for all Services which you contracted from us or Designers in order to complete said open transactions.
When your membership is terminated, you may no longer have access to data, messages, files and other material you maintained on the Site. We reserve the right to delete any material you maintained on the Site along with all your previous posts and bids.
11. Site Policies
We reserve the right to change, modify and create new or additional Site Policies. Changes, modifications, new or additional policies take effect when we post them to the Site. When using the Site and its Services, you are subject to all posted policies and rules. All policies and rules contained on the Site are expressly incorporated into this Agreement.
12. General Terms
12.1 Designs Desk, LLC is located at 150 North Michigan Avenue, Suite 2800, Chicago, IL 60601. You agree that the Site shall be deemed solely based in Illinois and that the Site shall be deemed a passive website that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than Illinois.
12.2 Designs Desk reserves the right to amend this Agreement at any time by posting the revised terms on the Site. Unless otherwise stated in such revision, the revised terms will take effect when they are posted. You are responsible for reviewing the notice and any changes. This Agreement may not be otherwise amended except in a writing signed by both parties. You can review the most current version of this Agreement at any time here. Your continued use of the Site and our services following changes or modifications to the Agreement will constitute your acceptance of the changes or modifications. If you do not agree to any changes or modifications that are made to this Agreement, please discontinue use of the Site and the Services offered by Designs Desk.
12.3 This Agreement sets forth the entire understanding and agreement between the parties with respect to the subject matter of this Agreement. The following sections survive termination of this Agreement: 1, 2, 5, 6, 7, 9.
12.4 You are responsible for ensuring compliance with applicable local laws, keeping in mind that access to the content of this Site may not be legal for or by certain persons or in certain countries.
12.5 Designs Desk will not be considered to have modified or waived any of our rights or remedies under this Agreement unless the modification or waiver is in writing and signed by an authorized representative of Designs Desk. No delay or omission by us in exercising our rights or remedies will impair our rights or be construed as a waiver. Any single or partial exercise of a right or remedy will not preclude further exercise of any other right or remedy.
12.6 If any provision of this Agreement is held to be invalid, illegal or unenforceable, the remaining provisions of this Agreement will continue in full force and effect apart from such provision which will be considered deleted from the Agreement.
12.7 Nothing in this Agreement or related policies should be deemed to confer rights or benefits on third parties. You will not transfer, assign or delegate your rights or obligations (including your Account) under this Agreement to anyone without our express written permission, and any attempt to do so will be null and void. We may assign this Agreement without restriction.
12.8 Except for the payment of fees to us, neither party shall be responsible for the failure to perform or any delay in performance of any obligation hereunder due to an act of God, accidents, fires, floods, telecommunications or Internet failures, strikes, wars, riots, rebellions, blockades, acts of government, governmental requirements and regulations or restrictions imposed by law or any other similar conditions beyond the reasonable control of such party. The time for performance by such party shall be extended by the period of such delay.
12.9 Any section headings in this Agreement are included for reference purposes only and have no binding effect.
12.10 This Agreement and all policies referenced herein constitute the entire agreement between the parties with respect to the use of this Site and the Services offered by Designs Desk. Likewise, this Agreement and all policies referenced herein supersede all prior agreements between the parties regarding the subject matter, as well as any conflicting or inconsistent terms in any websites that link to or are linked from this Site.