Design transfer agreement

Last revised on: September 3, 2024

1. Parties

   This Design Transfer Agreement (“DTA”) is entered into by Client and Designer as of the Effective Date and is binding solely upon Client and Designer. Neither 99designs nor any of its third-party providers is a party to this DTA. All capitalized terms used but not defined herein shall have the meanings ascribed to them in the 99designs General Terms and Conditions available on the 99designs website (https://99designs.com and the correlate local domains such as, and including, but not limited to, https://99designs.co.uk) (“99designs T&Cs”).

2. Scope of application and definitions

   Client has selected one or more Design Concepts submitted to Client by Designer through Client’s Account, and Client and Designer agree that each such selected Design Concept shall be transferred by Designer to Client on the terms and conditions set forth in this DTA (each, a “Transferred Design”). Client and Designer both acknowledge and warrant to the other that they have closely reviewed and are subject to the 99designs T&Cs.

   Without any prejudice to Section 3 below, Client and Designer may also elect to enter into a separate agreement to regulate the assignment and/or license of intellectual property rights in a Transferred Design.

3. Order of precedence

   If there is any conflict or inconsistency among this DTA, the 99designs T&Cs, and/or any other agreement entered into by Client and Designer, the following order of precedence shall apply:

   a) 99designs T&Cs;

   b) Sections 5.3 and 5.4 of this DTA;

   c) Any separate agreement entered into by Client and Designer;

   d) Any other provision of this DTA.

4. Effective Date

   For purposes of this DTA, the “Effective Date” is the later of the date upon which (i) 99designs receives the Client Payment, or (ii) Client and Designer have both electronically signed or otherwise electronically accepted this DTA.

5. Terms

   Client and Designer agree as follows.

   5.1. Assignment of the Transferred Design and all of Designer’s intellectual property rights therein

   Effective as of the Effective Date, and subject to Section 5.2 below, Designer hereby assigns to Client all of Designer’s right, title and interest in and to the Transferred Design, including all worldwide intellectual property rights that Designer owns or otherwise holds in the Transferred Design.

   5.2. Incorporation of intellectual property rights owned by a third party into Transferred Design

   Designer warrants that, prior to or at the time of submitting a Transferred Design to Client that incorporates intellectual property rights held by or belonging to a third-party, Designer disclosed to Client in writing, with reasonable specificity, the intellectual property rights in such Transferred Design that may be held by or belong to a third party.

   If a Transferred Design incorporates intellectual property rights of a third party, then:

   1. Designer warrants that it has obtained a license from the relevant third party to incorporate the intellectual property rights of that third party in the Transferred Design ("Third-Party License");
   2. If the Third-Party License is capable of assignment to Client, then Designer hereby assigns and transfers to Client, and Client hereby agrees to take an assignment and transfer of, the Third-Party License and all of the rights and obligations of Designer under the Third-Party License;

   3. If the Third-Party License is not capable of assignment to Client, then:

      1. Designer must disclose this fact to Client prior to providing Client with the Transferred Design and prior to the conclusion of the relevant Design Contest (if any);
      2. Designer warrants that Client may obtain a Third-Party License to the Transferred Design in its own name; and
      3. Prior to the conclusion of the Design Contest (if any) or the supply of the Transferred Design to Client, Designer must provide Client with details of where to obtain the Third-Party License to the Transferred Design in its own name and the cost of doing so.
      4. Designer warrants that unless expressly stated to the contrary by Designer prior to providing Client with the Transferred Design and prior to the conclusion of the Design Contest (if any), the Third-Party License provides Client with a worldwide, royalty free, perpetual right to display, distribute and reproduce (in any form) the intellectual property rights of the third party contained in the Transferred Design.

    

   5.3. Incorporation of generative AI elements into Transferred Design

   If the Transferred Design incorporates any elements created using generative artificial intelligence (“AI”) tools or services, then Designer warrants that it: (i) has fully complied with the 99designs T&Cs and all 99designs policies, requirements and guidelines surrounding the use of generative AI in Design Concepts; (ii) has fully informed Client about the incorporation of generative AI elements within the Transferred Design; and (iii) obtained from the utilized generative AI service or otherwise possesses all necessary and sufficient rights and permissions to enable Designer to make the assignment set forth above. Client understands and acknowledges that the assignment set forth above might not include any intellectual property rights in the generative AI elements of the Transferred Design, depending on prevailing applicable law at the time of and after such assignment.

   5.4. Indemnity

   Designer shall defend, indemnify and hold harmless Client, 99designs and 99designs' affiliates and third-party providers

   (each, an "Indemnified Party") from and against any loss, cost, expense or damage (including legal costs on a full indemnity basis) which an Indemnified Party may suffer or incur as a result of a breach by the Designer of any of the provisions of Sections 5.1, 5.2 and/or 5.3.

   5.5. Liability of 99designs and its third-party providers

   99designs and any of its third-party providers have no responsibility or liability in relation to (i) any right, title or interest subsisting in a Transferred Design and/or (ii) any breach of this DTA by Client or Designer.

   Without any prejudice to the above, Client and Designer agree that 99designs and its affiliates and third-party providers may rely on and benefit from the indemnity provision set out in Section 5.4.

6. Miscellaneous

   This DTA constitutes the entire agreement between Client and Designer concerning the subject matter hereof and supersedes all prior and contemporaneous agreements and understandings, whether written or oral, relating to such subject matter.

   Any notice given under this DTA shall be in writing and shall be given by delivering such notice by reputable courier service to the recipient’s address set forth below.

   If any provision or part-provision of this DTA is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this DTA.

   This DTA is governed by, and must be construed in accordance with, the laws of the State of New York without giving effect to any choice of conflict of law provision, principle or rule (whether of the State of New York or any other jurisdiction).