Clearly Design - Service Agreement

Last updated: Jan 6, 2024

THIS TERMS OF USE AGREEMENT (the “Agreement”) constitutes a legally binding agreement by and between Clearly Digital, Inc (“Clearly Design”) and the client, whether personally or on behalf of an entity (“Client”), with regard to access and use of Clearly Design's website: https://clearly.design (the “Website”) and any other service, media form, channel, mobile website or mobile application related, linked or otherwise connected thereto. Failure to agree and adhere to all of the terms, conditions and obligations contained herein results in the express prohibition of the Client's use of the Website, and the Client is ordered to discontinue use immediately. Thereafter the relationship between Client and Clearly Design shall cease and be of no further force and effect between the parties, except that any obligation of Client to pay Clearly Design for services rendered shall remain and continue to be an ongoing obligation owed by Client to Clearly Design.

1. Definitions

Fees -the Setup Fees, Recurring Fees and Non-Recurring Fees;
Initial Term -the period of time commencing upon the Service Commencement Date and ending one year later;
Non-Recurring Fees -any fees set forth on the Quote that are due when and if a particular Service is utilized, such as additional setup services, consulting services, additional system usage used by you during the term of this Agreement;
Recurrence Period -the period upon which you have agreed to pay for the Services as set forth in the Quote, typically [1 month]. For Example: May 5th to June 5th.;
Recurring Fees -the fees detailed on the Quote that are due to Clearly Design on a recurring basis throughout the term of this Agreement upon each Recurrence Period.
Renewal Term -the subsequent renewal of the Initial Term or any Renewal Term, commencing upon expiration of such Initial Term or Renewal Term and ending upon expiration of the Service Contract period set forth on the Quote.
Service Commencement Date -that date upon which you are given access by Clearly Design to begin using the Services.
Services -the professional services requested by you and provided by Clearly Design as set forth on a Quote.
Setup Fees -the fees set forth on the Quote that are due upon the Service Commencement Date and represent the initial fees necessary to initially setup and configure the Services.
Service Plan -the predefined set of services provided by Clearly Design to the client.
Quote -the agreement of Parties to provide a service or services to Client for a fee. This may take the form of a predefined 'service plan' offered by Clearly Design, or any fee based service defined and agreed to by both parties.

2. Overview of Services

Clearly Design shall provide to Client design services as outlined in the service plan. The recurring fee is paid for access to such services, and submitting work requests are the sole responsibility of the client in order to utilize this service.

3. Obligations of Clearly Design

Provide Client with a “design board” to submit new work requests as well as provide feedback on open work requests, which would form the centre of all communication around design requests;
Once design requests are received, ensure timeous turnaround is adhered to in order to provide feedback and/or design options to Client for consideration;
Ensure we move swiftly from one design task to the next, once the initial task is approved and closed.

4. Obligations of Client

Client agrees to use the provided “design board” to submit new design requests;
Client agrees to use the provided “design board” to review all design options in order to provide feedback for revision or close the task to move on to the next. Any delay in feedback would cause a delay in making changes or moving to the next task;
Client agrees to pay all invoices on or before the Due Date specified on each invoice to avoid service disruption.

5. Payment to Clearly Design

Clearly Design will invoice Client according to the renewal term. Invoices are paid in advance for the services during this period. Unless otherwise stated in the Statement of Work or Invoice, Client shall pay all invoices upon receipt. Unpaid invoices shall be considered in default after thirty (14) days of the due date shown on the invoice. Clearly Design reserves the right to charge Client an additional 5% penalty for all invoices that are in default. Clearly Design reserves the right to terminate this Agreement and cancel all services to Client for non-payment.

6. Intellectual Property Rights

Unless otherwise indicated, the Website is the property of Clearly Design and all source code, databases, functionality, software, website designs, audio, video, text, photographs and graphics of any nature and regardless of format (herein, collectively or individually, the “Content”) and the trademarks, service marks, and logos contained there (the “Marks”) are owned and controlled by Clearly Design and are protected by copyright and trademark laws and any other applicable intellectual property law or regulation of British Columbia, Canada, foreign jurisdictions and international conventions. The Content and Marks are provided “As-Is” for your information and personal use only. Except as expressly provided herein, no part of the Website and no Content may be copied, reproduced, aggregated, republished, uploaded, posted, displayed, encoded, translated, transmitted, distributed, sold, licensed, or otherwise exploited for any commercial purpose whatsoever, without Clearly Design's express prior written permission. Clearly Design reserves all rights in the Website, Content and Marks.

7. Ownership of Materials

Notwithstanding Clearly Design's ownership of Submissions, as described in Paragraph 10 (“Client Feedback”), all design and original source files created on Client's behalf (“Projects”) belong to Client, and Client shall be the sole owner of the copyright for all Projects. In the event that any operation of law would cause Clearly Design to become the owner of a Project, in whole or in part, rather than Client, Clearly Design irrevocably and perpetually assigns its entire interest in the Project to Client, without limitation. Client warrants that any and all materials provided to Clearly Design as examples or as material to be incorporated into a project during the design process are owned by Client and do not infringe on or misappropriate any third party's rights, including, but not limited to, all intellectual property rights and any right of publicity. Clearly Design always reserves the right to share the Client's design work publicly (social media, website, etc.) unless agreed upon as stated in section 24 (”Showcasing Design Work”) of this document.

8. User Representations

By using the Website, Client represents and warrants that:

Client has the legal capacity and agrees to comply with these Terms of Use;
Client is not a minor in the jurisdiction of their domicile;
Client will not access the Website through automated or non-human means;
Client will not use the Website for any illegal or unauthorized purpose;
Client's use of the Website will not violate any applicable law or regulation.

9. Prohibited Activities

Client shall not access or use the Website for any purpose other than that for which the Website is made available to the Client. The Website may not be used in connection with any commercial endeavors except those related to the work performed by Clearly Design on behalf of the Client.

Further, Client agrees to refrain from the following:

Make any unauthorized use of the Website;
Retrieve data or content for the purposes of creating or compiling a database or directory;
Circumvent, disable, or otherwise interfere with security-related features on the Website;
Engage in unauthorized framing or linking of the Website;
Trick, defraud or mislead Clearly Design or other users;
Interfere with, disrupt or create an undue burden on the Website or Clearly Design's networks or servers;
Use the Website in an effort to compete with Clearly Design;
Decipher, decompile, disassemble, or reverse engineer any of the software comprising or in any way making up a part of the Website;
Bypass any measures on the Website designed to prevent or restrict access to the Website or any portion thereof;
Harass, annoy, intimidate or threaten any of Clearly Design's employees, independent contractors or agents providing services through the Website;
Delete the copyright or other rights notice from any Content; Copy or adapt the Website's software;
Upload or transmit, or attempt to do so, viruses, Trojan horses, or other material including anything that interferes with any party's use of the Website or modifies, impairs, disrupts, alters, or interferes with the use, features, functions, operations or maintenance of the Website;
Upload or transmit, or attempt to do so, any material that acts as a passive or active information collection or transmission mechanism;
Disparage, tarnish or otherwise harm Clearly Design;
Use the Website in a manner inconsistent with any applicable laws, statutes or regulations.

10. Client Feedback

Client acknowledges and agrees that any questions, comments, suggestions or other feedback or submission (each a “Submission”) shall be the sole property of Clearly Design and Clearly Design is under no obligation to keep a Submission confidential or take steps necessary to ensure the confidentiality of a Submission. Clearly Design shall be the sole and exclusive owner of all rights related to the Submission except to the extent that rights are granted to Client under Paragraph 7 (“Ownership of Materials”), and shall at its sole and unrestricted discretion use and disseminate a Submission for any lawful purpose without permission, acknowledgment or compensation of or to the Client. Client agrees that it has the right to articulate and put forth the Submission and Client hereby waives all claims and recourse against Clearly Design for its use of the Submission in accordance with the terms hereof and in its sole discretion hereafter.

11. Management and Oversite

Clearly Design reserves the right to monitor the Website for violations of these Terms of Use and to take appropriate legal action in response to a violation of the Terms of Use or any applicable law, statute or regulation. Clearly Design further reserves the right to restrict or deny access to the Website or disable the Client's use of the Website. Such decision shall be in the sole discretion of Clearly Design, without notice or liability to Client. All decisions regarding the management of the Website shall be at the sole discretion of Clearly Design and shall be designed to protect Clearly Design's rights and property.

12. Privacy Policy

By using the Website, Client agrees to be bound and abide by the Privacy Policy and the terms more particularly set forth therein and adopted and incorporated herein. The Website is hosted in the United States of America. Access of the Website from the EU, Asia or other region of the world may result in the applicability of laws, statutes or regulations differing from those of the United States which govern personal data collection, use or disclosure. Client's continued use of the Website and transfer of data to the United States constitutes express consent of Client to the transfer and processing of data in the United States. Clearly Design does not knowingly accept or solicit information from individuals under the age of 18. In accordance with the United States' Children's Online Privacy Protection Act, upon the receipt of actual knowledge that an individual under the age of 13 has provided personally identifiable information to Clearly Design without parental consent, Clearly Design shall delete that information as soon as reasonably practical.

13. Returns and Refunds

Clearly Design reserves the right to deny refunds based on its own self discretion and without notice or liability to Client. Refund requests are assessed on a case by case basis. Should Client request a refund during the first 14 days of use, all materials produced by Clearly Design are ownership of the company and are prohibited from being used by the Client in any way. Clearly Design reserves the right to take appropriate legal actions against Client for breach of this paragraph. After the fist 14 days of use, no refunds would be processed and Client should rather cancel their subscription.

14. Cancellation

By Clearly Design:

Clearly Design reserves the right to cancel the service should Client not adhere to these terms based on the sole discretion of Clearly Design;
Clearly Design reserves the right cancel and suspend any services when a payment is missed for any reason.

By Client:

Client can cancel at any time with a reasonable cancellation notice;
On the “Standard” subscription we require a minimum of 14 days notice of cancellation;
On the “Advanced” subscription we require a minimum of 30 days notice of cancellation;

15. Non Solicitation

Clearly Design and Client each agree that, during the term of this Agreement, and for a period of one year thereafter, the Parties will not participate in, assist or encourage the solicitation or hiring by the other party or by another business entity of any person that is an employee or independent contractor of the Parties.

16. Modification

Clearly Design reserves the right to change, alter, modify, amend or remove anything or any content on the Website for any reason at its sole discretion. Clearly Design reserves the right to modify or discontinue all or part of the Website without notice and without liability to Client.

17. Connection Interruptions

Clearly Design does not guaranty or warrant the Website will be available and accessible at all times. Issues with hardware, software or other items may result in interruption delays or errors beyond Clearly Design's control. Client agrees that Clearly Design shall not be liable to Client for any loss, damage or inconvenience caused by Client's inability to access or use the Website during any interruption in the connection or service.

18. Governing Law

These Terms of Use shall be governed by and construed in accordance with the laws of British Columbia, Canada without regard to conflict of law principals.

19. Litigation

Any legal action of whatever nature shall be brought in the state courts of British Columbia. The parties hereto consent to personal jurisdiction in said courts and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to venue and jurisdiction. Application of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act are excluded from these Terms of Use.

20. Disclaimer

The Website is provided on an as-is, as-available basis. Client agrees that its use of the Website and Services are at Client's sole risk. Clearly Design disclaims all warranties, express or implied, in connection with the Website and Client's use thereof, including the implied warranties of merchantability, fitness for a particular purpose and non-infringement. Clearly Design makes no warranties or representations about the accuracy or completeness of the Website or any content thereon or content of any websites linked to the Website and Clearly Design assumes no liability for any errors, mistakes or inaccuracies of content and materials, personal injury or property damage, of any nature whatsoever, any unauthorized access to or use of Clearly Design's secure servers and/or any personal information and/or financial information stored therein, any interruption or cessation of transmission to or from the site, any bugs, viruses, Trojan horses or the like which may be transmitted to or through the Website by any third party and/or any errors or omissions in content and materials or for any loss or damage of any kind incurred as a result of the use of any content posted, transmitted or otherwise made available through the Website. Clearly Design does not warrant, endorse, guarantee or assume responsibility for any product or service advertised or offered by a third party either through the Website, a hyperlinked website or any website or mobile application featured in any advertising.

21. Limitations of Liability and Indemnification

Clearly Design and its directors, employees, members, independent contractors or agents shall not be liable to Client or any third party for any direct, indirect, consequential, incidental, special or punitive damages, including lost profit, lost revenue, lost data, attorneys' fees, court costs, fines, forfeitures or other damages or losses arising from Client's use of the Website. Client agrees to defend, indemnify and hold harmless, Clearly Design and its subsidiaries, affiliates and all respective officers, members, agents, partners, employees and independent contractors from and against any loss, damage, liability, claim or demand including reasonable attorneys' fees and expenses, made by any third party due to or arising out of: (1) use of the Website; (2) breach of these Terms of Use; (3) any breach of Client's representations and warranties set forth herein; (4) Client's violation of the rights of any third party, including but not limited to intellectual property rights. Notwithstanding the foregoing, Clearly Design reserves the right, at Client's expense, to assume control and defense of any matter for which Client shall be required to indemnify Clearly Design hereunder. Client agrees to cooperate with the defense of such claims.

22. User Data

Client is solely responsible for all data transmitted to or that relates to any activity Client has undertaken using the Website. Clearly Design shall have no liability to Client for any loss or corruption of any such data and Client hereby waives any right of action against Clearly Design from any such loss or corruption.

23. Electronic communications, transactions and signatures

Client hereby consents to receive electronic communications from Clearly Design and Client agrees that all agreements, notices, disclosures and other communications sent via email or through the Website satisfy any legal requirement that such communication be in writing. Client hereby agrees to the use of electronic signatures, contracts, orders and other records, and to electronic delivery of notices, policies and records of transactions initiated or completed by Clearly Design or through the Website. Client hereby waives any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records or to payments or the granting of credits by any means other than electronic.

24. Showcasing Design Work

Clearly Design reserves the right to share design work on public digital channels including social media, and this website unless otherwise agreed upon. The Client reserves the right to issue an NDA between themselves and Clearly Design, which in turn would void the right of Clearly Design to share or discuss Client's work publicly.

25. Miscellaneous

These Terms of Use and any policies posted on the Website or regarding the Website constitute the entire agreement and understanding between the Client and Clearly Design. Failure of Clearly Design to enforce any right or provision of these Terms of Use shall not operate as a waiver of such right or provision. If any provision or part of these Terms of Use is determined to be unlawful, void or unenforceable, that provision shall be severed from these Terms of Use but shall not otherwise affect the validity or unenforceability of the remaining provisions herein. Nothing in these Terms of Use, the Privacy Policy or on the Website shall be construed to constitute the forming of a joint venture, partnership, employment or agency relationship between Client and Clearly Design.

26. Contact Information

For any questions or complaints regarding the Website, please contact Clearly Design at: legal@clearly.digital.