This Agreement was last modified on 30 June, 2014.
This user sales agreement ("User Sales Agreement") is a legal contract between Buyers and Sellers (together "Users") transacting on the Freelancer Marketplace (alternately "Marketplace"), including its corporate subsidiaries and affiliates, (together "Store", "we" or "us") which operates www.freelancer.com/marketplace ("Site").
The Site permits Sellers to license Products to Buyers for a fee, under certain terms and conditions as set out in this Agreement ("Service"). The User Sales Agreement governs all transactions conducted on the Site. The Site is offered to you conditional on your acceptance of the User Sales Agreement. Please review the terms and conditions set out below before transacting with another User on the Site.
By ordering a license, Buyer and, if applicable, Seller, is confirming that it has capacity to form a contract under its governing laws.
2. Third Party Beneficiaries
You acknowledge and agree that the Store and any subsidiaries or associated parties are third party beneficiaries of the User Sales Agreement for each Product, and that, upon your acceptance of the terms and conditions of the license to any such Product, the Store will have the right (and will be deemed to have accepted the right) to enforce such license against you as a third party beneficiary thereof.
The defined terms in the User Sales Agreement have the same meaning as the User Agreement. In this User Sales Agreement the following definitions apply:
"Buyer" means the entity purchasing a license pursuant to this User Sales Agreement or, if there is a separate Purchaser, the entity specifically designated as Buyer during the purchase process and set forth as such in the Invoice.
"Buyer Work" means an end product or service that has been created by or on behalf of the Buyer using independent skill and effort and that incorporates a Reproduction of the Licensed Material as well as other material.
"Exclusive Licensed Material" means Licensed Material that is specified as exclusive Licensed Material on the Site.
"Invoice" means the invoice provided by the Store. The Invoice shall be incorporated into this Agreement and all references to the Agreement shall include the Invoice.
"Licensed Material" means any Product protected by copyright, trademark, patent or other intellectual property rights, which is licensed under the terms of this Agreement. Any reference in this Agreement to the Licensed Material shall be to each individual item within the Licensed Material and also to the Licensed Material as a whole.
"Products" means any products listed on the Site, including Licensed Material.
"Purchaser" means an entity purchasing the license hereunder on behalf of a third-party Buyer.
"Reproduction" and "Reproduce"
mean any form of copying or publication of the whole or a part of any Licensed Material, via any medium and by whatever means of the whole or any part of the Licensed Material, and the creation of any derivative work from, or that incorporates, the Licensed Material.
"Royalty-Free Licensed Material" means Licensed Material that is specified as royalty-free Licensed Material on the Site.
"Rights and Restrictions"
means the information available to Buyer at the time of Licensed Material selection, either: (i) accompanying the Licensed Material on the Site and in the Invoice. Such restrictions may include, without limitation, the permitted scope of use, duration of license, any territory or other use restrictions applicable to the Licensed Material selected, and the corresponding price for the license of such Licensed Material ("License Fee"). The Rights and Restrictions shall be incorporated into this Agreement and all references to the Agreement shall include the Rights and Restrictions.
"Sub-licensable Licensed Material"
means Licensed Material that is specified as resaleable Licensed Material on the Site.
4. Amendment of User Sales Agreement
The Store may amend or modify this User Sales Agreement in whole or in part from time to time, without notice, by posting an amended User Sales Agreement on the Site or any linked information. Such updated version of the User Sales Agreement will be effective at the time we post it.
The Buyer agrees as follows:
5.1 Applicable Terms
Your license to each Product that you obtain through the Site is subject to the User Sales Agreement, and you agree that the terms of the User Sales Agreement will apply to each Product that you license through the Site. The Seller reserves all rights in and to the Product not expressly granted to you.
5.2 Licence of Products
The products made available through the Site (the "Products") are licensed, not sold, to you. The Products have been developed, and are licensed to you, by a third party developer (the "Seller"), not the Store.
5.3. System Requirements
The purchase of Products and use of the Service may require one or more compatible devices, Internet access (fees may apply), and certain software (fees may apply), and may require obtaining updates or upgrades from time to time. Because use of the Service involves hardware, software, and Internet access, your ability to use the Service may be affected by the performance of these factors. You acknowledge and agree that such system requirements, which may be changed from time to time, are your responsibility. The Service is not part of any other product or offering, and no purchase or obtaining of any other product shall be construed to represent or guarantee you access to the Service. Accordingly, high speed Internet access is strongly recommended.
5.4 Binding Agreement
You acknowledge that the license you purchase to each Product is a binding agreement between you and the Seller of that Product only.
By purchasing an item on the Store you agree with the Seller to be bound by the conditions of sale included in the item's description, subject to any exceptions set out here, such as where the conditions of sale are in breach of this User Sales Agreement, the User Agreement for the Site or unlawful. If you purchase an item on the Site, you are obliged to complete the transaction with the seller, unless the item or transaction is prohibited by law, by this Agreement or by our policies.
You must pay the purchase price in full for a Sale together with any other applicable fees or charges, for example delivery charges.
5.5 Failure to Pay for Products
You agree to pay for all Products you purchase through the Service, and that the Store may charge your credit card or PayPal account, Moneybookers account, Freelancer account or any other account for any Products purchased and for any additional amounts (including any taxes and late fees, as applicable) as may be accrued by or in connection with your account
No ownership or copyright in any Licensed Material shall pass to Buyer by the issuance of the license contained in this Agreement. Except as expressly stated in this Agreement, Seller grants Buyer no right or license, express or implied, to the Licensed Material.
5.7 Trade Marks
In connection with the use of "Seller" or any other of Seller' or its partners' trade names, trademarks, logos or service marks, including the names of all Licensed Material collections ("Marks"), Buyer acknowledges and agrees that (i) such Marks are and shall remain the sole property of Seller or its partners; (ii) except as expressly required in order to satisfy credit obligations under this Agreement, nothing shall confer upon Buyer any right of use in or to the Marks; and (iii) Buyer shall not now or in the future contest the validity of the Marks.
5.8 Notice of Violations
Buyer will immediately notify Seller if it becomes aware or suspects that any third party that has gained access to the Licensed Material through Buyer is wrongfully using the Licensed Material, in whole or in part, or is violating any of Seller' intellectual property rights, including, but not limited to, Marks and copyrights.
5.9 Seller's Warranties
While efforts have been made to correctly describe the subject matter of, and to provide other information related to, the Licensed Material, Seller makes no warranties as to the accuracy of such information.
5.10 Responsibility for Product
The Site is not a party to the license between you and the Seller with respect to that Product; and we are not responsible for that Product, the content therein, or any warranties or claims that you or any other party may have relating to that Product or your use of that Product.
The Seller agrees as follows:
6.1 General Responsibilities
The Seller agrees to:
Accurately describe the Products;
Honour the original terms by accepting payment for a Product at the end of a successful sale;
Respond promptly and professionally to Buyer questions
6.2 Item listed for Sale
You must be legally able to sell any item you list for sale on our Site.
You must describe your item fully and accurately and include all terms of sale on the listing page of our Site. Your listings may only include text descriptions, graphics, pictures and other content relevant to the sale of that item, including any information that you are required to provide by any applicable law. The listing and the content of the listing must be your own work or work that you are legally entitled to use. All listed items must be listed in an appropriate category.
6.3 Responsibility for Product
The Seller of each Product is solely responsible for that Product, the content therein, any warranties to the extent that such warranties have not been disclaimed, and any claims that you or any other party may have relating to that Product or your use of that Product.
7. GRANT OF RIGHTS AND RESTRICTIONS
Subject to the terms of this User Sales Agreement, Licensed Material is licensed to the Buyer according to the type of licence that applies, which is specified on the Site as being one of the following categories:
Royalty-free Licensed Material;
Sub-Licensable Licensed Material;
Exclusive Licensed Material.
7.1 Royalty-Free Licensed Material
In respect of Royalty-Free Licensed Material on the Site, the Seller grants to the Buyer a perpetual, non-exclusive, non-transferable, non-sublicensable, worldwide right to reproduce the Licensed Material identified in the Invoice an unlimited number of times in any and all media for all purposes other than those uses prohibited in clause 7.2.
Royalty-Free Licensed Material may be used by the Buyer multiple times for multiple Buyer Works without incurring additional fees.
7.2 Restrictions on grant of Royalty-Free Licensed Material
The Buyer of Royalty-Free Licensed Material may not make the Licensed Material available (separate from the Buyer Work) in any medium accessible by persons other than authorized Users.
7.3 Sub-Licensable Licensed Material
In respect of Sub-licensable Licensed Material, the Seller grants to the Buyer a perpetual, non-exclusive, non-transferable, sub-licensable, worldwide right to reproduce the Licensed Material identified in the Invoice an unlimited number of times in any and all media for all purposes other than those uses prohibited in clause 7.4.
7.4 Restrictions on grant of Sub-Licensable Licensed Material
The Buyer of Sub-licensable Licensed Material may not make the Licensed Material available for resale in any medium that is identical or similar to the Site.
7.5 Exclusive Licensed Material
In respect of Exclusive Licensed Material, the Seller grants to the Buyer an exclusive, non-sublicensable and non-assignable right to use and Reproduce the Exclusive Licensed Material identified in the Invoice, solely to the extent explicitly stated in clause 7.6.
7.6 Restrictions on grant of Exclusive Licensed Material
The Buyer of Exclusive Licensed Material may not make the Exclusive Licensed Material available (separate from the Buyer Work) in any medium accessible by persons other than authorized Users.
Use of the Licensed Material is strictly limited to the use, medium, period of time, territory and any other restrictions specified in the Rights and Restrictions. Buyer may utilize the Licensed Material in any process as may be necessary for the intended use specified in the Rights and Restrictions.
The rights granted to a Buyer pursuant to this User Agreement may be exercised by subcontractors of Licensee (including Purchaser) for the preparation of the Buyer Work, provided that such sub-contractors agree to abide by the terms of this User Agreement.
Licensed Material shall not be used contrary to the Rights and Restrictions.
8. WARRANTY AND LIMITATION OF LIABILITY
8.1 Seller Warranties
The Seller warrants that: (i) the Licensed Material will be free from defects in material and workmanship for thirty (30) days from delivery (Buyer's sole and exclusive remedy for a breach of this warranty being the replacement of the Licensed Material); (ii) it has all necessary rights and authority to enter into and perform this Agreement; (iii) Buyer's use of the Licensed Material in accordance with this Agreement and in the form delivered by Seller will not infringe on any copyrights or moral rights of any person or entity; and (iv) Buyer's use of the Licensed Material in the form delivered by Seller and in accordance with this Agreement will not infringe on any trade mark or other intellectual property right and/or will not violate any right of privacy or legal right.
The Buyer and Seller agree that:
Provided Licensed Material is only used in accordance with this Agreement and Buyer is not otherwise in breach of this Agreement and as Buyer's sole and exclusive remedy for any breach of the representations and warranties is set out above, Seller shall defend, indemnify and hold harmless Buyer and its parent, subsidiaries and commonly owned or controlled affiliates and their respective officers, directors and employees from all damages, liabilities and expenses (including reasonable outside attorney fees), arising out of or connected with any actual lawsuit or legal proceeding alleging that Seller is in breach of its warranties set out above. The foregoing states Seller's entire indemnification obligation under this Agreement.
Buyer shall, subject to the terms set out below, defend, indemnify and hold harmless Seller and its parent, subsidiaries and commonly owned or controlled affiliates and their respective officers, directors and employees from all damages, liabilities and expenses (including reasonable outside attorneys' fees), arising out of or as a result of claims by third parties relating to: (i) Buyer's use of any Licensed Material outside the scope of this Agreement; (ii) any other actual or alleged breach by Buyer of this Agreement; or (iii) Buyer's failure to obtain any required release.
The party seeking indemnification pursuant to this Clause 8.3 shall promptly notify the other party of such claim. At indemnifying party's option, indemnifying party may assume the handling, settlement or defence of any claim or litigation, in which event indemnified party shall cooperate in the defence of any such claim or litigation as may be reasonably requested by indemnifying party. Indemnified party shall have the right to participate in such litigation, at its expense, through counsel selected by indemnified party. Indemnifying party will not be liable for legal fees and other costs incurred prior to the other party giving notice of the claim for which indemnity is sought and Seller shall not be liable for any losses arising from Buyer's failure to discontinue use of the Licensed Material.
9. MISCELLANEOUS TERMS
9.1 Unauthorized use
Any use of Licensed Material in a manner not expressly authorized by this Agreement constitutes copyright infringement, entitling Seller to exercise all rights and remedies available to it under copyright laws around the world. Buyer shall be responsible for any damages resulting from any such copyright infringement, including any claims by a third party. In addition and without prejudice to Seller' other remedies under this Agreement, Seller reserves the right to charge and Buyer agrees to pay a fee equal to up to five (5) times Seller' standard license fee for the unauthorized use of the Licensed Material. Seller reserves the right to terminate this Agreement in the event Buyer: (i) enters the Agreement after having received notice of unauthorized use from Seller relating to the Licensed Material; (ii) provides inaccurate information regarding its proposed use of the Licensed Material at the time of entering the Agreement; (iii) fails to pay the License Fee on the due date; or (iv) otherwise breaches the terms of this Agreement. Upon termination, Buyer must immediately (I) stop using the Licensed Material; and (II) destroy or, upon the request of Seller, return to Seller the Licensed Material and, in the case of termination by Seller for cause, the Buyer Work in the possession or control of Buyer.
Upon notice from Seller, or upon Buyer's knowledge, that any Licensed Material is subject to a threatened, potential or actual claim of infringement of another's right for which Seller may be liable, Buyer must immediately and at its own expense: (i) stop using the Licensed Material; (ii) delete or remove the Licensed Material from its premises, computer systems and storage (electronic or physical); and (iii) ensure that its clients do likewise. Seller shall provide Buyer with comparable Licensed Material (which comparability will be determined by Seller in its reasonable commercial judgment) free of charge, but subject to the other terms and conditions of this Agreement.
9.3 Governing Law
This Agreement will be governed in all respects by the laws of Switzerland. Seller shall have the right to commence and prosecute any legal or equitable action or proceeding before any court of competent jurisdiction to obtain injunctive or other relief against Buyer in the event that, in the opinion of Seller, such action is necessary or desirable.
If one or more of the provisions contained in the Agreement is found to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not be affected. Such provisions shall be revised only to the extent necessary to make them enforceable.
No action of either party, other than express written waiver, may be construed as a waiver of any provision of this Agreement. A delay on the part of either party in the exercise of its rights or remedies will not operate as a waiver of such rights or remedies, and a single or partial exercise by either party of any such rights or remedies will not preclude other or further exercise of that right or remedy. A waiver of a right or remedy on any one occasion will not be construed as a bar to or waiver of rights or remedies on any other occasion.
9.6 Entire Agreement
This User Sales Agreement and all policies and terms incorporated by reference constitute the entire agreement between you and another User as to its subject matter.
No terms or conditions may be added or deleted unless made in writing and either signed by an authorized representative of both parties or issued electronically by Seller and signed by an authorized representative of Buyer. In the event of any inconsistency between the terms contained herein and the terms contained on any purchase order sent by Buyer, the terms of this Agreement shall govern.
All License Fees are exclusive of any applicable sales, use, withholding or other transactional taxes, which are the sole responsibility of Buyer (if any).
9.8 Electronic Agreement
Your use of the Service includes the ability to enter into agreements and/or to make transactions electronically. You acknowledge that your electronic submissions constitute your agreement and intent to be bound by this User Sales Agreements and to pay for transactions governed by it. Your agreement and intent to be bound by electronic submissions applies to all records relating to all transactions you enter into on this Site, including notices of cancellation, policies, contracts and applications.