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Visual.ly Marketplace Terms and Conditions

These Marketplace Terms and Conditions (the "Terms") govern the use of the online marketplace for creative services (the "Marketplace") offered by Visually, Inc. ("Visually"). By participating in or otherwise using the Marketplace, you agree to be bound by these Terms, as well as by Visually’s Terms of Service and Privacy Policy, each of which are hereby incorporated herein by this reference.

Introduction

The Marketplace provides functionality which allows users who are seeking creative services ("Commissioners") to identify and connect with service providers ("Creators") for the provision of creative services ("Creative Services"). If you order Creative Services through the Marketplace, you are considered a Commissioner hereunder, and if you provide Creative Services through the Marketplace, you are considered a Creator hereunder.

Commissioning Design Services through the Marketplace

Commissioners must order Creative Services by submitting a creative brief through the Marketplace, in the form and format specified by Visually (a "Creative Brief"). Visually is not obligated to provide, or exercise any control or oversight over, Creative Services. When you order Creative Services through the Marketplace, you hereby consent to Visually providing your Creative Brief and contact information to Creators in order to identify one or more Creators who can provide such Creative Services. Creators provide Creative Services directly and assume responsibility for all aspects of their Creative Services, including any Deliverables (as defined below).

Providing Creative Services through the Marketplace

As a Creator, Visually may provide you (in its sole discretion) with the opportunity to provide Creative Services to Commissioners based on Creative Briefs submitted through the Marketplace, either alone, or in collaboration with other Creators. When you indicate to Visually through the Marketplace (whether by email or other Marketplace functionality) that you are willing to provide Creative Services to a specific Commissioner, you agree to provide that Commissioner with the designs, materials and other deliverables (collectively, the "Deliverables" associated with such Creative Services within the time frame set forth in the applicable Creative Brief. As a Creator, once you have been introduced to a Commissioner for the purpose of providing Creative Services via the Marketplace, you may not provide any Creative Services which are similar to those available through the Marketplace to that Commissioner, other than through the Marketplace.

 

As noted above, Creators provide Creative Services directly and assume responsibility for all aspects of their Creative Services and Deliverables. Visually does not provide, or exercise any control or oversight over, the Creative Services. Visually retains the right to revoke any Creator’s access to the Marketplace in Visually’s sole discretion. As a Creator, (i) you agree to abide by Visually’s then-current Code of Ethics, which is incorporated herein by this reference, and (ii) you agree that you will not use any information, data or other materials provided by or obtained from a Commissioner hereunder (including, without limitation, the identity of such Commissioner) except for the limited purpose of providing Creative Services to such Commissioner through the Marketplace.

Fees and Payment

All payments for Creative Services and Deliverables must be made through Visually via the Marketplace.

 

Fees payable by Commissioners for Creative Services and Deliverables ("Commissioner Fees") shall be as set forth on the Marketplace. Unless otherwise agreed in writing by Visually in each instance, Commissioner agrees to pay all Commissioner Fees in advance prior to the commencement of Creative Services.

 

Fees payable to Creators for particular Creative Services and Deliverables ("Creator Fees") shall be as set forth in communications between Visually and Creators prior to the commencement of such Creative Services. Creator Fees for particular Creative Services and Deliverables shall be payable to Creator upon the earliest to occur of: (i) the Commissioner’s written final acceptance of the applicable Deliverables; (ii) fourteen (14) days following delivery of the final Deliverables to Commissioner, provided that the Commissioner has not rejected such Deliverables within such thirty (30) day period; or (iii) Visually determining, in its sole discretion, that the Deliverables are complete (and both the Commissioner and all Creators shall be bound by Visually’s determination in this regard). Notwithstanding anything to the contrary, with respect to a particular Deliverable: Visually shall not be obligated to make any payment of Creator Fees for such Deliverable unless (a) each Creator delivers such Deliverable within the time frame suggested in the Project Center (or other time frame mutually agreed upon by each Creator and the applicable Commissioner and approved by Visually), and (b) Visually has actually received payment in full of the associated Commissioner Fees from the applicable Commissioner.

Intellectual Property

Commissioner shall own all right, title and interest in and to all Deliverables provided to Commissioner as part of the Creative Services, and each Creator hereby makes all assignments necessary to effectuate the foregoing ownership. To the extent allowed by law, the foregoing assignment and any license granted to Commissioner hereunder includes all rights of paternity, integrity, disclosure and withdrawal and any other rights that may be known as or referred to as "moral rights," "artist’s rights," "droit moral," or the like. If for any reason the foregoing assignment is ineffective, each Creator shall and hereby does grant Commissioner a perpetual, irrevocable, worldwide, royalty-free, non-exclusive, sublicensable, transferable right and license to exploit and exercise the Deliverables for any purpose.

 

Commissioner hereby grants Visually (and, unless Commissioner explicitly indicates otherwise in the Creative Brief, each Creator) a perpetual, irrevocable, worldwide, royalty-free, non-exclusive, sublicensable, transferable right and license to copy, modify, publicly perform and publicly display the Deliverables on Visually’s website(s) and/or on such Creator’s personal portfolio(s) (which may be hosted by Visually, such Creator, or one or more third parties).

 

Creator warrants and represents to that: (i) the Creative Services and Deliverables do not infringe, violate, or misappropriate any rights of any third party; and (ii) Creator owns or otherwise controls all of the rights to the Creative Services and Deliverables, including, without limitation, all the rights necessary for Creator to provide, post, upload, input or submit the Creative Services and Deliverables. EXCEPT FOR THE EXPRESS WARRANTY PROVIDED BY DESIGNER HEREIN, ALL CREATIVE SERVICES ARE PROVIDED "AS IS" AND WITHOUT WARRANTY OF ANY KIND. VISUALLY PROVIDES NO WARRANTY WITH RESPECT TO THE CREATIVE SERVICES AND DELIVERABLES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR FREEDOM FROM MALICIOUS CODE OR VIRUSES, ALL OF WHICH ARE HEREBY EXPRESSLY DISCLAIMED.

Other Terms

BECAUSE VISUALLY IS NOT THE PROVIDER OF CREATIVE SERVICES, IF A DISPUTE ARISES BETWEEN ONE OR MORE USERS OF THE MARKETPLACE (INCLUDING, WITHOUT LIMITATION, BETWEEN A COMMISSIONER AND A CREATOR, OR BETWEEN MULTIPLE CREATORS), YOU HEREBY RELEASE VISUALLY (AND ITS AFFILIATES, AGENTS AND EMPLOYEES) FROM, AND SHALL INDEMNIFY VISUALLY AGAINST, ALL CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) 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, UNLESS CAUSED BY VISUALLY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE §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." YOU, BEING AWARE OF SAID CODE SECTION, HEREBY EXPRESSLY WAIVE ANY RIGHTS YOU MAY HAVE THEREUNDER, AS WELL AS UNDER ANY OTHER STATUES OR COMMON LAW PRINCIPLES OF SIMILAR EFFECT. YOU ACKNOWLEDGE AND AGREE THAT THIS WAIVER IS AN ESSENTIAL AND MATERIAL TERM OF THIS AGREEMENT, AND THAT WITHOUT SUCH WAIVER, THIS AGREEMENT WOULD NOT HAVE BEEN ENTERED INTO BY VISUALLY.

 

All communications between Creators and Commissioners regarding the Marketplace and Creative Services must take place through official Marketplace channels, and Visually is not responsible for any communications occurring outside such channels. Visually is not the service provider in the actual transaction between a Commissioner and a Creator (or Creators) with respect to Creative Services or Deliverables and is not the agent of either for any purpose. Without limiting Visually’s right to decide that Deliverables have been completed hereunder, Visually does not have the duty to resolve any disputes between Commissioners and Creators related to or arising out of any such transaction.

 

Creators are independent contractors and are not employees, agents, partners or joint venturers of either Visually or any Commissioners, and Creators will not bind nor attempt to bind Visually or any Commissioner to any contract. Creators are not eligible to participate in Visually’s or any Commissioner’s employee benefit plans, fringe benefit programs, group insurance arrangements or similar programs. Neither Visually nor any Commissioner will provide workers’ compensation, disability insurance, Social Security or unemployment compensation coverage or any other statutory benefit to a Creator. Creator will provide Visually with any information required for tax reporting purposes, and will comply (at Creator’s expense) with all applicable provisions of workers’ compensation laws, unemployment compensation laws, federal Social Security law, the Fair Labor Standards Act, federal, state and local income tax laws, and all other applicable federal, state and local laws, regulations and codes relating to terms and conditions of employment required to be fulfilled by employers or independent contractors. If Creator is an entity, Creator will ensure that its employees, contractors and others involved in the Creative Services, if any, are bound in writing to the foregoing, and to all of Creator’s obligations under any provision of this Agreement, and Creator will be responsible for any noncompliance by them.

 

Visually retains the right, but does not have the obligation, to immediately prevent or restrict access to the Marketplace or take any other action in case of technical problems, infringing or objectionable material, inaccurate listings, inappropriately categorized products or services, or actions otherwise prohibited by applicable law, the procedures and guidelines contained on the Marketplace, or for any other reason in the sole and absolute discretion of Visually, and to correct any inaccurate listing or technical problems on the Marketplace.

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