The terms of this document apply to agreements between Designer and Buyer according to which the Designer promises to create the Buyer a Product for a pre-agreed fee. By posting a project or submitting a bid, the Buyer and the Designer respectively accept the terms and conditions described herein. These terms apply in conjunction with General Terms and Conditions. The following terms do not apply to the general sale of 3D models and for Wildcat Projects.
Terms that are not defined herein are defined in the “Definitions” subsection under General Terms and Conditions or have the meanings that have been given to such terms on the Site.
This document, as well as General Terms and Conditions, are in their entirety binding for the Parties. No modification or amendment of the clauses stated in the present document or in General Terms and Conditions shall be effective for the Parties unless such discretion is given by clauses herein.
SERVICE CONTRACTS FOR 3D PROJECTS
1. The conclusion and the substance of the Contract
1.1 The parties will be deemed to have entered into a Contract once the Buyer and Designer reach an agreement and the Buyer has transferred the agreed fee onto the CGTrader account.
1.2 The Contract between Buyer and Designer is deemed to be a service Contract. By concluding the Contract Designer obliges to perform the task agreed upon between the parties and Buyer obliges to transfer the price agreed to CGTrader.
The Contract will NOT be construed to create a partnership, joint venture, or employer - employee relationship. Designer is not the agent of the Buyer or CGTrader and is not authorized to make any representation, contract, or commitment on behalf of Buyer or CGTrader. Designer will choose the manner and means to perform the obligations arising from the Contract. Designer will provide its own equipment, tools, and other materials at its own expense.
2. The obligations arising from the Contract
2.1. Designer’s obligations are following:
- Deliver the Product that is in conformity with the Contract;
- Submit the Product within the timeframe agreed upon;
- Grant and act accordingly to the agreed license to the Buyer.
2.2. Buyer’s obligations are as follows:
- Buyer cannot order a Product that would violate any international or domestic law, statute, ordinance, or regulation. The content of the ordered Product cannot be defamatory, libelous, pornographic, obscene, offensive or evocative of racial hatred of any kind, and it must not infringe upon intellectual property rights of third parties;
- Buyer is obliged not to change requirements once the Contract has entered into force, unless the Parties mutually agree to the changes;
- Buyer must be helpful towards the Designer and provide information and/or materials necessary to allow the Designer to fulfil his or her contractual obligations;
- Buyer must pay the agreed fee to CGTrader in a manner set forth on the Site;
- Buyer must accept the Product if it is in conformity with the requirements agreed upon;
- Buyer must save the file(s) containing submitted Product and keep a back-up of the Products ordered at all times. Files uploaded to the Site cannot be used as a backup source;
- In case of breach of Contract by the Designer, the Buyer is obliged to lodge a complaint to CGTrader before accepting the Product or before the Product is deemed accepted.
3. Conformity of the Product
3.1. Product does not conform to the Contract if it does not have the agreed qualities.
3.2. The agreed qualities shall be determined by the conditions and images presented by the Buyer in the initial project offer as well as the conditions agreed between Parties via other means of communication such as comments section or private messages of the Site.
3.3. If the quality is not determinable from the Contract, the Product does not conform to the Contract if is not of the quality which is usual for such type of work and which the customer may reasonably have expected based on the nature of the work and considering the declarations made by the Designer.
3.4. The Product does not have the agreed qualities also if it is not fit for the specific purpose for which the Buyer needs it and which was explicitly expressed in the project description field.
3.5. Product also does not conform to the Contract if third parties have claims or other rights which they may submit with respect to the Product and which impede Buyers ability to use the Product.
3.6. If the Buyer himself or herself orders the Product to include third party copyrighted, industrial property or trademarked images, logos, brand names, etc, it is the responsibility of the Buyer to determine, before ordering the Product, whether additional licensing, rights, permissions, releases, or clearance are necessary for the intended use of Product. It is the Buyer’s sole responsibility to obtain such licenses, rights, permissions, or clearances.
3.7. In case of a dispute, the quality will be decided by CGTrader following the procedure set forth in subsection 13 and 14 of this document.
4.1. If, for the purposes of fulfilling the Contract, the Buyer discloses information to the Designer, which can be deemed confidential and the Buyer marks the confidentiality of such information or confidential nature of the information is otherwise evident , the Designer is bound not to disclose such information for indeterminate duration. Confidential information must be protected with the same degree of care as a person uses to protect his or her own confidential information but in no event with less than due care. Protecting confidentiality shall mean, among else, that the Designer must not (a) disclose or permit others to disclose Buyer’s confidential information to anyone without first obtaining the express written consent of the owner of the confidential information; (b) use or permit the use of Buyer's confidential information, except as necessary for the performance of Contract (including, without limitation, the storage or transmission of confidential information on or through the Site).
Information shared publicly in the project description or comments section cannot be deemed confidential.
4.2. If and when confidential information is no longer needed for the performance of the Contract or at Buyer’s written request (which may be made at any time), the Designer shall promptly return and (or) destroy the disclosing party's confidential information and any copies under his or her control.
5. Buyer´s materials
5.1. In case the Buyer permits the Designer access to its own materials (such as pictures, previous 3D models, etc.) for the purposes of fulfilling the Contract, the following clause applies:
Buyer grants the Designer a limited, non - exclusive, revocable (at any time, at Buyer’s sole discretion) right to use the Buyer’s materials as necessary solely for the performance of the Contract. Buyer reserves all other rights and interest, including, without limitation, all intellectual property rights regarding such material. Upon completion or termination of the Contract, or upon Buyer’s written request, Designer will immediately destroy all his or her copies of the materials.
6. License of the Product
6.1. Buyer is licensed to use the Product in accordance with terms of the applicable license.
6.2. Buyer may obtain exclusive or non-exclusive license to the Products as it is agreed between the Designer and the Buyer.
6.4. In case the Buyer obtains an exclusive license to the Products, the following terms shall apply unless expressly agreed otherwise between the Designer and Buyer:
1. License is valid within the whole territory of the world;
2. License is valid for the maximum validity of the author’s economic rights;
3. The Buyer is granted all author’s economic rights, including but not limited to reproduction of the Product in any form or by any means; publication of the Product; adaptation, arrangement, dramatisation or other transformation of the Product; distribution of the original or copies of the Product to the public by sale, rental, lending, or by any other transfer of ownership or possession, as well as by exporting and importing; public display of the original or copies of the Product; public performance of the Product in any form or by any means; broadcasting, retransmission of the Product, as well as communication to the public of the Product in any other way, including the making available to the public of the Product over computer networks (on the Internet), for all known methods of use;
4. The Buyer has the right to transfer or sub-licence the license to third parties.
6.5. In case the Buyer obtains an exclusive license, the Designer has no right to provide the license of the Product to any third party or to use any of the author’s economic rights himself in any manner.
6.6. In case the Buyer obtains non-exclusive license, the Designer has the right to provide a non-exclusive license of the Product to any third party or to use any of the author’s economic rights himself in any manner.
6.7. Any Product, returned to CGTrader and (or) the Designer in accordance with applicable law for whatever reason must be destroyed by the Buyer immediately. The license to use any of the work is revoked at the time Product is returned. Product obtained by means of theft or fraudulent activity of any kind is not granted a license.
6.8. If parties are to agree on different license terms to the ones set forth in this subsection, there must be an explicit and reproducible agreement of such custom terms.
7. Accepting the Product
7.1. After Designer has submitted the Product, Buyer is deemed to have accepted it if he or she has opened the submitted Product and has not lodged an objection regarding the quality in 10 business days after initially opening the Product.
7.2. Product is also deemed accepted instantly if the Buyer clicks on the “Accept the Product” button.
8. Additional term for performance and withdrawal
8.1. If the Product does not conform to the Contract, the Buyer may require the Designer to improve the work to meet the demands of the Contract by filing a complaint before the Product is deemed accepted. In such case CGTrader shall withhold the fee until a Product meeting the Contract demands has been submitted.
8.2. If an objection regarding the quality has been filed by the Buyer, the Designer will be notified by CGTrader after which the Designer can either agree to amend the Product, or present a counterargument to the claims presented by Buyer. In the latter case CGTrader will make a decision regarding the quality of the work following the procedure set forth in subsections 13 and 14.
8.3. The default length of the additional terms shall be 20 days. CGTrader has the discretion to impose longer or shorter additional term based on the justified request of a Party.
8.4. The additional term countdown starts, once the Designer agrees to amend the Product or CGTrader judges the Product not be in conformity with the Contract and sends the decision to Parties.
8.5. If a Product conforming to the Contract has not been submitted before the additional term deadline, the Buyer has the right to withdraw from the Contract. In case of withdrawal the fee will be returned to the Buyer.
9.1. Once the Contract has been concluded, it is not allowed to be terminated, unless the parties mutually agree to do so. To mutually terminate the Contract both parties must send a relevant notification to the CGTrader.
9.2. If the Designer unilaterally refuses to fulfil the Contract, he or she will not receive the agreed fee. The refusal to fulfil the contract will bring about a deduction of 25% of user’s reputation points. If the Designer has more than one violation of such, CGTrader reserves the right to block the Designer from applying to any other project offers.
9.3. If the Contract is terminated by a mutual decision or by a decision of CGTrader, the Designer has a right for fair remuneration for the work already done. Such fee shall be agreed by the Parties or determined by CGTrader.
9.4. Prior to concluding the Contract the Buyer shall give express content of waiving his or her 14-day right of withdrawal regarding the personalized digital content (the Product).
10. Representation of the Buyer
10.1. CGTrader is not a party to the Contract but acts as an agent between Buyer and Designer. The contractual relation between CGTrader and Buyer is deemed to be an agency contract.
10.2. Buyer authorizes CGTrader to collect and hold the fee for the Product from the Buyer following the procedure set forth herein and distribute payment amounts to Designer if the Product is deemed to have been accepted following the procedure set forth under subsection 11.
11. The Fee
11.1. The fee will be paid by the Buyer upon concluding the Contract between the Parties. The fee will be held up by CGTrader until the proper performance of the Designer is deemed fulfilled according to subsection 7.
11.2.CGTrader will detect Buyer’s location and charge VAT which is applied in particular country. VAT will be deducted from the purchase price and transmitted to local authorities using MOSS system.
11.3. CGTrader fee is equal to 5% (five percent) of the fee paid by the Buyer to the Designer. Upon conclusion of the Contract, CGTrader will calculate and pay royalties to Designer after having deducted VAT, payment processing costs and CGTrader fee.
11.4.If a purchase is reversed after Designer has been paid or if for any reason CGTrader has already paid the Designer in excess of the correct royalty payment, the Designer acknowledges that such overpayment is due from him or her to CGTrader and authorizes CGTrader to deduct from his or her future payments. If the Designer discovers or becomes aware of overpayment, he or she agrees to notify CGTrader of such occurrence and settle it accordingly.
11.5. Every calendar month by the twentieth (20) day, or the following business day if the twentieth is weekend or holiday, CGTrader will pay the Designer its royalty payments.
11.6. CGTrader reserves the right to withhold payments in the following cases:
1. There is a non-performance or improper performance by the Designer and Buyer has lodged a complaint according to the procedure herein;
2. The amount is below the minimum allowed for a monthly royalty payment (which is $200), unless the Designer has chosen Paypal as his or her transfer method;
3. Designer’s payments are on hold because previous payment to Designer failed to be received;
4. Designer has provided inaccurate payment information;
5. There is violation of Site policies that must be reconciled before any payment is made.
11.7. The Parties are solely responsible for determining whether it is required by applicable law to pay any other taxes that might apply to them. CGTrader takes no responsibility for determining, remitting, or withholding any taxes applicable to paid fees.
PROCEDURE FOR RESOLVING DISPUTES
12.1. In the event of a dispute between a Buyer and a Designer, parties are obliged to turn to CGTrader for dispute resolution. CGTrader will take all actions necessary to resolve the case in an impartial and evidential manner.
12.2. You agree and acknowledge that:
- CGTrader is not a provider of legal services;
- CGTrader will not advise you regarding any legal matters;
- If you desire to have legal counsel, it is up to you to seek an independent legal counsel from those licensed to practice law in your jurisdiction.
12.3. The decision of CGTrader is final, binding and irreversible.
12.4. You agree to indemnify and (to the maximum extent permitted by law) hold CGTrader harmless against any damages or liability you may suffer as a result of using the dispute system provided by CGTrader.
12.5. CG Trader will retain the confidentiality of the project and the privacy of the involved users and will not release the collected information to any party unless required by law.
13. Dispute resolution process
13.1. Submitting a complaint by contacting CGTrader at firstname.lastname@example.org.
13.2. Once a dispute is opened, the other party has 7 days to respond starting from the day the notification regarding the dispute was sent. If the other party will not answer in time, or present a reasoned argument to receive a lengthier response period, the decision will be made in favour of the party that submitted the dispute.
13.3. The Parties are highly encouraged to submit all the documents that would support their claims regarding the dispute, including the agreements made via means such as comments on the Site or private messages.
13.4. The Parties agree to allow the Dispute Board to read all correspondence made on the Site and download or access, and test (if necessary), all uploaded files, programs, and websites related to the dispute for the sole purpose of having the dispute resolved.
13.5. CGTrader will review all accepted evidence to reach a decision. The decision will be made within 7 days after which CGTrader shall inform the Parties of the decision.
13.6. Dispute Board will aspire to make a fair decision based on relevant evidence and the terms and conditions of CGTrader’s website.
WARRANTIES AND LIABILITY
14. General Information
The Members are solely and exclusively liable for all Products and other Content that that they upload, download and (or) otherwise provide or acquire to or from the Site. As CGTrader cannot guarantee that the Content you download or access via the Site is problem-free, our liability to you is limited, as described below. You are also agreeing to indemnify us. We cannot provide a warranty for the Product/Content hosted on this site.
By accepting the terms of the terms herein, you agree to indemnify, defend and hold harmless CG Trader, its affiliates, and their respective officers, shareholders, partners, representatives, agents and employees from any and all liability, loss, damages, claim and expense, including reasonable attorney's fees, related to or arising from your violation of this agreement, your use or misuse of the Site and (or) Content, or any infringement of any intellectual property or other right as a result of the of Content or your use or provision of the Content. We reserve the right to assume the exclusive defense and control of any matter subject to indemnification by you, in which you will cooperate with us in asserting any available defenses.
16. Limitation of Liability
In no event shall CG Trader or any of its affiliates, or their respective officers, shareholders, partners, representatives, agents and employees be liable for any direct, indirect, punitive, special, incidental, exemplary or consequential damages or any damages whatsoever (including without limitation, damages for loss of use, data, information, profits or business interruption) arising out of or in any way related to the use or performance of this Site or any linked web site or to any Content or other material obtained through this Site, or otherwise arising out your inability to use this Site or any decision made or action taken by you in reliance of any information, advice or materials on this Site, whether such damages are based in tort, contract, negligence, strict liability or otherwise, even if CG Trader has been advised of the possibility of such damages. Your sole and exclusive remedy is to discontinue your access to and use of the Site, even if this remedy fails of its essential purpose. As some jurisdictions do not allow the exclusion or limitation of liability to a certain extent, some of the above exclusions or limitations may not apply to you.
17. No Warranty
17.1. Being only a forum for exchange of Products’ licenses, CGTrader has no control over the quality or legality of any Content on this Site or the accuracy of any related information. It is your full responsibility to ensure and evaluate the quality and legality of any Content and its use. You agree that CGTrader shall have no liability for any misrepresentation, incomplete statement or failure to disclose any Content data, or for any claims arising from a transaction resulting from your use of the Site or a business transaction you enter into using the Site.
17.2. CGTrader makes all commercially reasonable efforts to ensure that all material, information and data on this Site are accurate and reliable; however, accuracy cannot be guaranteed.
17.3. This Site is provided by CGTrader on an “as is” basis. CGTrader makes no warranties with respect to this site, and disclaims all applicable warranties, express or implied, including without limitation all implied warranties of merchantability, fitness for a particular purpose, title and non-infringement for the Site and all Content and any warranties arising from course of dealing or usage in trade. CGTrader makes no warranty or representation regarding results that may be obtained from use of this site, or use of material, information or data downloaded or otherwise obtained from this Site, or regarding the accuracy or reliability of any information obtained from this Site. CGTrader does not warrant or guarantee the accuracy, completeness, correctness, timeliness, or usefulness of this Site or any Content or other material, obtained through use of this Site or that use of this site or any product/content on this Site will meet any requirement, be uninterrupted, timely, secure or error-free. CG Trader shall have no responsibility for the timeliness, deletion, misdelivery or failure to store any user communication.
17.4. By accepting this agreement you acknowledge and agree that your use of this Site and (or) Content is at your own discretion and risk, and that you are solely responsible for any damage that results from the download and use of any Content.
17.5. CGTrader does not warrant or guarantee that Content or other materials and information available through this Site will be free of infections, viruses, worms, Trojan horses or other code that could be harmful to your computer system. You should take all reasonable appropriate precautions against such code and (or) software.
17.6. CGTrader is not liable to users and Members of this Site for any damage resulting from use of this Site or use of Content obtained from this Site, and is not in any way responsible for the conduct of users or Members of this Site or for Content posted or exchanged on this Site.
17.7. No advice or information, whether oral or written, obtained by you from CGTrader or in any manner from this Site shall create any warranty.
17.8. Because Content is delivered via the Internet, there may be some circumstances where the delivery of Content is delayed. In no event will CGTrader be liable for any delays in delivery or performance caused by your failure to provide necessary and accurate information in a timely manner, or caused by circumstances or causes beyond CGTrader’s reasonable control.