Last updated on: November 2016
In case you are located in the United States this Agreement requires the use of arbitration on an individual basis to resolve disputes, rather than jury trials or class actions, and also limits the remedies available to you in the event of a dispute.
“Level Up Creation (LUC)” provides an online platform that helps connect customers who wish to purchase designs (“Clients”) and designers who wish to provide such designs (“Designers”), including, for example, through Project Service, and Tasks (each as defined below and collectively, the “Services”). Designers are Hired by our Management Team and the Graphics Experts. “User” means any user of the Site or Service, and may be a Designer or a Client. If you are a User, the provisions in this Agreement regarding Users apply to you. If you are also a Client, further the provisions in this Agreement regarding Clients apply to you. If you are also a Designer, further the provisions in this Agreement regarding Designers apply to you. “IPR” means all trade secrets, copyrights, trademarks, mask work rights, patents and other intellectual property rights recognized by the laws of any country.
1.2 Project Service.
(a) Clients and Designers can work with each other on design projects by creating a 1-to-1 project (“Project Dashboard Service”) and following the directions on the Site and the system between Clients & Designers will be Operated by Management Team. Who can create invoices to request payments from Client. Client can pay invoices and reserve the right to accept designs before they are considered Approve Designs. If designs have not been accepted by Client, Client may request a refund of the Client Payment, at any time up to 30 days after the date of invoice payment, or 10 days after delivery of Designs, whichever happens sooner. In addition to the foregoing. After Designer has delivered the designs, Client will be deemed to have accepted the designs unless Client provides notice of rejection to Level Up Creation and Designer within 10 days of delivery of the designs. If the cause for the notice of rejection is not cured within 30 days of a rejection notice, Client will be refunded the Client Payment and Client will have no right to use the resulting design in any way. Level Up Creation reserves the right in its sole discretion to restrict Clients or Designers from creating projects using Project Dashboard Services and to remove projects. Level Up Creation has no involvement in managing or providing the design to Client and is simply providing the ability for Management Team to store files for, work with, invoice and receive payments from Client, and for Clients to request services from, view designs, provide feedback on projects and pay Designers, using Project Services.
(a) The Marketplace:
We provide a marketplace (“Marketplace”) where Clients can submit to Designers, for a fee, simple and swift-to-complete design projects (Tasks). An appropriate Task, by way of example, might be to resize an image to a specified number of pixels across, while preserving its aspect ratio, or to change the color temperature of an image to make it warmer or cooler, or to create a clipping path of an object in a photo.
(b) Client Payments for Tasks:
Prior to submitting a Task, Clients shall prepay for one or more Tasks. Client Payments for Tasks may be prepaid in bulk quantities and any prepaid but unused amounts shall become Task credits to be applied to future Task submittals. Customer Payments for Tasks shall be in U.S. dollars unless a local currency option is offered by us.
(c) Task Submittal:
If you submit a Task to the Marketplace you automatically become a Customer. Once you submit a Task to our Marketplace, it remains there until it is claimed by a Designer or is removed by Customer Service as set forth below. The Designer who completes the Task provides the completed design to the Customer (“Task Delivery”) and all legal rights to it.
(i) Required Information: Each Task should consist of (A) a detailed description of the Task and (B) electronic files, if any, required for a Designer to complete the Task (together these are considered User Content). (ii) Representation Regarding Right to Submit. By submitting a Task to the Marketplace, a Client represents that Client owns the User Content or otherwise has the right to submit User Content to us, and Client’s use of the User Content does not violate any third party intellectual property or other rights.
(d) Task Claim by Designer:
We will monitor the Marketplace to ensure that every Task is claimed by a Designer in a timely manner. Tasks which aren’t claimed by a Designer within a reasonable amount of time, as determined by us in our discretion, will be removed from the Marketplace and sent to Client Service for review. A Client Service representative will contact the Client who submitted such Task to suggest changes which will increase the likelihood that a Designer will claim the Task.
(i) Inventory. Designers are expected to promptly claim or skip Tasks, so that Tasks can be quickly completed for Clients. (ii) When to Skip a Task. Tasks that are skipped frequently will be removed from the Marketplace and reviewed by Customer Service. Generally, a Designer should not skip a Task unless (A) such Designer does not have the necessary skills to complete such Task, or (B) the User Content provided does not constitute a Task because (1) not enough information is provided to enable the Designer to complete the Task or the information provided is not sufficiently clear, or (2) the Task would require more than 30 minutes of Designer’s time. (iii) Inactivity Penalty. The Marketplace works only if the engagement by the Designers matches or exceeds the activity by the Clients.
(e) Task Completion:
Each Designer agrees to use such Designer’s best professional and creative efforts and skills to complete each Task claimed by such Designer.
(i) Time to Complete the Task:
After a Designer claims a Task, such Designer will have one hour to complete it. (ii) Tasks Not Completed On Time. A Task that is not completed within the timeframe specified on the Site will automatically return to the Marketplace and Designer will not be credited for the work done on such Task.
(f) Task Client Delivery:
When a Designer completes a Task, such Designer will upload the Task to the Project Management Experts Team (Creative Team) and after a quality check & approval by Creative Team the design usually delivered to the Client to check and All revisions requests are managed by the Management Team and revised by the corresponding Designer.
(i) Representation Regarding Right to Submit. By providing Delivery to the Client, Designer represents the design but Management Team has the right to provide Delivery to Client, and Client’s use of the Task Delivery will not, to Designer’s knowledge, violate any third party intellectual property or other rights. (ii) Ownership of Task Delivery. Management Team assigns to Client all rights to Task Delivery. (iii) Grant of Limited Rights to Us. Each Designer authorizes us to retain archival copies of all Delivery that such Designer has created and to use such Task Delivery in connection with the Site and our business, including for promoting the Site in any media format and through any media channel.
(g) Client Task Acceptance:
When a Task is complete, the Client who submitted it will receive an email from us with a link to download the Task Delivery. A Task is considered “Accepted” by the Client (i) when the Client clicks on the “Approve” button, (ii) if it is not Approved by the Client, the design will be treated as Declined.
(h) Designer Payment:
A Designer is only paid if and when Task Delivery is accepted by Client. When a Client approve Task Delivery from the Management Team, Designer’s Bank Account will be credited by Management Team.
(i) Task Delivery Disputes:
(i) Resolution with Designer. If a Client is not satisfied with the Task Delivery, within 72 hours after notification of the Delivery is sent to the Client, and the Client has not clicked the “Approve” button, the Client may decline the Task Delivery and it will be returned to the Designer for revision. The Designer will attempt to make modifications to make the Task Delivery fit Client’s reasonable expectations. The Designer will resubmit the revised Task Delivery within the timeframe specified on the Site. A revised Task Delivery that is not declined by Client within 72 hours after being resubmitted will be considered accepted by Client. (ii) Client Service Intervention. If a Client is still not satisfied with the revised Task Delivery, Client may contact Customer Support Team any time 24/7. Customer Service will review the Task specifications, the Task Delivery and Client’s claims. (A) If Customer Service determines that Designer had failed to follow Task specifications, Client will be deemed not to have accepted the Task Delivery, and Client will have another opportunity to submit the Task to the Marketplace. (B) If Client Service determines that either (1) Client’s demands with respect to Task Delivery are not reasonable given the Task specification, (2) Client is being actively malicious, (3) Client has not provided enough guidance, direction, or instruction to the Designer resulting in the need for multiple edits, or (4) Client’s Task was too complex or time-consuming to constitute a Task, the Client will be deemed to have accepted the Task Delivery, and will be charged the Fee (or be ineligible for a refund if prepaid).
2. Design Transfer Agreement.
The Design Transfer Agreement, available at https://levelupcreation.com/copyright-agreement/, sets forth the legally binding terms between the applicable Designer and Client for the sale of a Sold Design through the Design Contest or Ready-made Design Store. The Design Transfer Agreement, available at https://levelupcreation.com/copyright-agreement/, sets forth the legally binding terms between the applicable Designer and Client for the sale of a Sold Design through the Project Service.
3. Payment Terms.
The following terms apply to Client who have purchased a Sold Design and Designers who have sold a Sold Design.
3.1 Payment and Delivery.
For the Design Contest and Ready-made Design Store, (a) Client will pay the Client Payment to Level Up Creation and Level Up Creation will pay Designer the Designer Fee (subject to first receiving payment from Customer), and (b) Designer will upload the Sold Design and Level Up Creation will deliver the Sold Design to Client, in a format specified by Level Up Creation. For the Project Services, (1) Designer will upload the Design and if Client accepts the Design as described above, then (2) Client will pay the Payment and Level Up Creation will pay Designer the Designer Fee (subject to first receiving payment from Client).
Refunds will be paid to Client using the same payment methods Client used to remit the Customer Payment to Level Up Creation or via any other method specified by Level Up Creation from time to time. If a refund is paid to Client or a credit card charge back occurs, then: (a) Designer must reimburse Level Up Creation for the applicable Designer Fee (the reimbursement will first be paid out of any Level Up Creation Credits held by Designer and any remaining debt will be payable by Designer to Level Up Creation on demand); and (b) Client will initially receive the amount of the Client Payment, less the Designer Fee and will receive the Designer Fee only once the Designer Fee is reimbursed by Designer to Level Up Creation. Level Up Creation may refund Customers for the following reasons: (i) the Sold Design is Defective; (ii) Level Up Creation is required by law or considers that it is required by law to do so; (iii) Level Up Creation determines that issuing a refund to Client will avoid any dispute or increased costs to Level Up Creation; (iv) Level Up Creation issues the refund to Client in accordance with any refund policy specified by Level Up Creation from time to time; (v) the order placed (or request made) by Client is found to be fraudulent; (vi) Client placed a duplicate order (or request) in error; or (vii) in Level Up Creations’ sole opinion, Level Up Creation considers that it is likely that the refund is necessary to avoid a credit card charge back. A Sold Design will be deemed to be “Defective” if: (i) Client and Designer agree it is defective and notify Level Up Creation of this fact; (ii) the Sold Design is subject to a third party claim that the Sold Design infringes/misappropriates such party’s IPR, that is not frivolous.
3.3 General Payment Terms.
All payment will be in the local currency based on the location of the Site. You agree that you are responsible for the collection and/or payment of all Taxes which you may be liable for in any jurisdiction arising from your sale or purchase of any Sold Designs via the Site. Level Up Creation is not responsible for collecting, reporting, paying, or remitting to you any such Taxes. “Taxes” means any applicable duties, sales taxes, GST, VAT or other taxes which may be levied in respect of a transaction contemplated by this Agreement.
4. Exclusivity and Non-Circumvention.
You acknowledge and agree that a substantial portion of the compensation Level Up Creation receives for making the Site available to you is collected as fees deducted from the Customer Payment which is only deducted when a Client and Designer pay and receive payment through the Site. Therefore, for 24 months from the time you meet any party through the Site (the “Exclusivity Period”), you must use the Level Up Creation Services as your exclusive method to request, make, and receive all payments for work directly or indirectly with that party or arising out of your relationship with that party (the “Level Up Creation Relationship”). You may opt-out of this obligation only if Client or prospective Client pays Level Up Creation an “Opt-Out Fee” computed to be the greater of the following amounts:
(a) $2,500; or
(b) 15% of the cost to the Customer of the services to be performed in the Level Up Creation Relationship during the Exclusivity Period, as estimated in good faith by the prospective Customer.
To pay the Opt-Out Fee, you must request instructions by sending an email message to “email@example.com” .
You agree not to circumvent the payment methods offered by the Site. By way of illustration and not in limitation of the foregoing, you must not:
(a) Share any personal information on your Profile (excluding personal websites and portfolios) in the way of email, video, phone or any other method of direct contact.
(b) Submit proposals or solicit parties identified through the Site to contact, hire, manage, or pay outside the Site.
(c) Accept proposals or solicit parties identified through the Site to contact, deliver services, invoice, or receive payment outside the Site.
(d) Invoice or report on the Site or in an Opt-Out Fee request an invoice or payment amount lower than that actually agreed between Client and Designer.
You agree to notify Level Up Creation immediately if another person improperly contacts you or suggests making or receiving payments outside of the Site. If you are aware of a breach or potential breach of this non-circumvention policy, please submit a confidential report to us by sending an email message to: firstname.lastname@example.org.
5. Important Disclaimers and Release
We make no warranties regarding the Design Contest, Design Concepts, Design Templates, Tasks, or any other products or services provided by Designers, Customers, or other Users and each of the foregoing are provided by us “AS IS”. Designers sell and Customers buy Sold Designs at their own risk. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any other User. Your interactions with other users are solely between you and such User and Level Up Creation will not be responsible for any loss or damage incurred as the result of any such interactions (excluding those directly due to Level Up Creation’ acts or the Services). If there is a dispute between you and any User, we are under no obligation to become involved. Notwithstanding the foregoing, Level Up Creation will use commercially reasonable efforts to provide the Services described in this Agreement.
You hereby release and forever discharge us (and our officers, employees, agents, successors, and assigns) from, and hereby waive and release, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or relates directly or indirectly to, any interactions or transactions of you with, or act or omission of you in relation to other Users, including Customers and Designers and Third Party Sites & Ads (excluding those directly due to Level Up Creations’ acts or the Services). This Section 5.2 does not apply to customers located in the EEA.
If you are a California resident, you hereby waive California Civil Code Section 1542 in connection with the foregoing, which states: “a general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.”
In order to use the Service, you must register for an account with Level Up Creation (“Account”) and provide certain information about yourself as prompted by the Site registration form. You represent and warrant that: (a) all required registration information you submit is truthful and accurate; and (b) you will maintain the accuracy of such information. Without limiting the generality of the foregoing, you agree to provide Level Up Creation with identification documents (including copies of IDs, passports or drivers licenses) which Level Up Creation requests from you from time to time for the purposes of verifying your identity. You may delete your Account at any time, for any reason, by calling Customer Support at the contact number in Section 15.5. You are responsible for maintaining the confidentiality of your Account login information and are fully responsible for all activities that occur under your Account. You agree to immediately notify Level Up Creation of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security which is based on your negligence. Level Up Creation cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements. Designers may not have more than one Account.
7. User Content.
7.1 Your User Content.
“User Content” means any and all information and content that a User submits to, or uses with, the Site or Services. User Content includes Design Contests, Design Concepts, Design Templates, and reviews and/or testimonials (“Reviews”). You are solely responsible for your User Content. You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your User Content that makes you or any third party personally identifiable. You hereby represent and warrant that your User Content does not violate the Acceptable Use Policy (defined below). You may not state or imply that your User Content is in any way provided, sponsored or endorsed by Level Up Creation. Because you alone are responsible for your User Content (and not Level Up Creation), you may expose yourself to liability if, for example, your User Content violates the Acceptable Use Policy. Level Up Creation is not obligated to remove any Design Contests, Design Concepts, Design Templates, or Reviews from the Site unless required by applicable Law. Level Up Creation is not obligated to backup any User Content and User Content may be deleted at any time. You are solely responsible for creating backup copies of your User Content if you desire.
7.2 License to User Content.
You hereby grant, and you represent and warrant, that you have the right to grant, to Level Up Creation an irrevocable, nonexclusive, royalty-free and fully paid, worldwide license for all the duration of the intellectual property rights to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use your User Content, and to grant sublicenses of the foregoing, solely for the purposes of including your User Content in the Site and Services; provided that Level Up Creation will only use your Design Brief and Design Concepts to run the applicable Design Contest in accordance with the private or public settings of the Design Contest. You agree to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Content (this sentence does not apply to customers located in the EEA). For the avoidance of doubt, Designer’s license or assignment of the Sold Design to Customer is set forth in the applicable Design Transfer Agreement.
8. Acceptable Use Policy.
The following sets forth Level Up Creation’ “Acceptable Use Policy”:
You agree that you will only use the personal information of other Customers or Designers made available to you only for the purposes of interacting with them in relation to the Services. You must not use their personal information for any other purpose, including for marketing purposes. You represent and warrant that you will comply with applicable privacy laws and data protection laws (including, without limitation, the Australian Privacy Act 1988 (Cth)) in relation to the storage, use and transfer of personal information.
8.2 User Content.
You agree not to use the Site or Services with any User Content or to provide any products or services that (a) violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (b) is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive (e. g. , material that promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual) or otherwise objectionable material of any kind or nature or which is harmful to minors in any way; or (c) is in violation of any Laws, or obligations or restrictions imposed by any third party.
8.3 Use Restrictions.
You agree not to use the Site or Services to: (a) upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter a computer system or data; (b) send unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (c) harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent; (d) interfere with, disrupt, or create an undue burden on servers or networks connected to the Site or Services or violate the regulations, policies or procedures of such networks; (e) attempt to gain unauthorized access to the Site or Services, other computer systems or networks connected to or used together with the Site or Services, through password mining or other means; (f) harass or interfere with another user’s use and enjoyment of the Site or Services; (g) introduce software or automated agents or scripts to the Site or Services so as to produce multiple accounts, generate automated searches, requests and queries, or to strip, scrape, or mine data from the Site or Services; (h) impersonate any person or entity or falsify or misrepresent yourself or your affiliation with any person or entity; or (i) display, mirror, or frame the Site.
We reserve the right (but have no obligation) to review any User Content, investigate, and/or take appropriate action against you in our sole discretion (including removing or modifying your User Content, terminating your Account, and/or reporting you to law enforcement authorities) if you violate the Acceptable Use Policy or any other provision of this Agreement or otherwise create liability for us or any other person.
Subject to the terms of this Agreement, Level Up Creation grants you a non- transferable, non-exclusive, license to use the Site and Services (excluding Design Concepts, Design Templates, designs in the Project Service, and Sold Designs) for your internal business purposes. For the avoidance of doubt, Designer’s license or assignment of the Sold Design to Customer is set forth in the applicable Design Transfer Agreement.
9.2 Certain Restrictions.
The rights granted to you in this Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, customize, or otherwise commercially exploit the Site or Services; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Site or Services; (c) you shall not access the Site or Services in order to build or promote a similar or competitive service; and (d) except as expressly stated herein, no part of the Site or Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Any future release, update, or other addition to functionality of the Site or Services shall be subject to the terms of this Agreement. All copyright and other proprietary notices on any Site or Services content must be retained on all copies thereof. Level Up Creation reserves the right, at any time, to modify, suspend, or discontinue the Site or Services or any part thereof with or without notice. You agree that Level Up Creation will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Site or Services or any part thereof. You acknowledge and agree that Level Up Creation will have no obligation to provide you with any support or maintenance in connection with the Site or Services.
If you provide Level Up Creation any feedback or suggestions regarding the Site or Services (“Feedback”), you hereby assign and agree to assign upon our request to Level Up Creation all rights in the Feedback and agree that Level Up Creation shall have the right to use such Feedback and related information in any manner it deems appropriate. Level Up Creation will treat any Feedback you provide to Level Up Creation as non-confidential and non-proprietary. You agree that you will not submit to Level Up Creation any information or ideas that you consider to be confidential or proprietary. This Section 9.3 does not apply to customers located in the EEA; customers in the EEA agree to assign Feedback to Level Up Creation upon our request.
Each User owns its own User Content. Excluding your User Content, you acknowledge that all the IPR in the Site and Services are owned by Level Up Creation or Level Up Creations’ licensors. The provision of the Site and Services does not transfer to you or any third party any rights, title or interest in or to such IPR. Level Up Creation and its suppliers reserve all rights not granted in this Agreement.
You agree to indemnify and hold Level Up Creation (and its officers, employees, and agents) harmless, including reasonable costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of (i) your use of the Site or Services, (ii) your User Content (including your Design Contest, Design Concept, Design Template, designs in the Project Service, and Reviews), (iii) your interaction with any other User, or (iv) your violation of this Agreement or any applicable laws. Level Up Creation reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of Level Up Creation. Level Up Creation will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it. This Section 10 does not apply to customers located in the EEA.
11. Third Party Sites & Ads.
The Site might contain links to third party websites, services, and advertisements for third parties (collectively, “Third Party Sites & Ads”). Such Third Party Sites & Ads are not under the control of Level Up Creation and Level Up Creation is not responsible for any Third Party Sites & Ads. Level Up Creation provides these Third Party Sites & Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third Party Sites & Ads. You use all Third Party Sites & Ads at your own risk. When you link to a Third Party Site & Ad, the applicable third party’s terms and policies apply, including the third party’s privacy and data gathering practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third Party Sites & Ads.
12. Term and Termination.
Subject to this Section, this Agreement will remain in full force and effect while you use the Site or Services. We may (a) suspend your rights to use the Site and/or Services (including your Account) or (b) terminate this Agreement, at any time for a legitimate purpose, including for any use of the Site or Services in violation of this Agreement. Upon termination of this Agreement, your Account and right to access and use the Site and Services will terminate immediately. Any Level Up Creation Credits or payments outstanding to you at termination will be paid to you. You understand that any termination of your Account may involve deletion of your User Content associated therewith from our live databases. However we reserve the right to continue to use your User Content to the extent permitted under applicable law (this sentence does not apply to customers located in the EEA). Level Up Creation will not have any liability whatsoever to you for any termination of this Agreement, including for termination of your Account or deletion of your User Content. Even after this Agreement is terminated, the following provisions of this Agreement will remain in effect: Sections 1.4(b), 4, 5, 7, 8, 9 (excluding Section 9.1), 10, 11, 13, 14, and 15.
The Site and Services are provided “AS-IS” and “AS AVAILABLE” and we (and our suppliers) expressly disclaim any warranties and conditions of any kind, whether express or implied, including the warranties or conditions of merchantability, fitness for a particular purpose, title, quiet enjoyment, accuracy, or non-infringement. We (and our suppliers) make no warranty that the Site or Services: (a) will meet your requirements; (b) will be available on an uninterrupted, timely, secure, or error-free basis; or (c) will be accurate, reliable, free of viruses or other harmful code, complete, legal, or safe. Some states do not allow the exclusion of implied warranties, so the above exclusion may not apply to you.
The following Section applies to users in the EEA and Switzerland: Level Up Creation is liable for defects in accordance with the applicable statutory provisions. With regard to companies, the warranty period is limited to twelve (12) months. An additional warranty is only provided if this has been expressly agreed.**
14. Limitation on Liability.
In no event shall we (and our suppliers) be liable to you or any third party for any lost profit or any indirect, consequential, exemplary, incidental, special or punitive damages arising from or relating to this Agreement or your use of, or inability to use, the Site or Services, even if we have been advised of the possibility of such damages. Access to, and use of, the Site and Services are at your own discretion and risk, and you will be solely responsible for any damage to your computer system or loss of data resulting therefrom. Notwithstanding anything to the contrary contained herein, our (and our suppliers’) liability to you for any damages arising from or related to this Agreement (for any cause whatsoever and regardless of the form of the action), will at all times be limited to the greater of (a) fifty us dollars ($50) or (b) amounts you have paid Level Up Creation in the prior 12 months (if any). The existence of more than one claim will not enlarge this limit. Some states do not allow the limitation or exclusion of liability for incidental of consequential damages, so the above limitation or exclusion may not apply to you and you may also have other legal rights that vary from state to state.**
14.2 The following Section applies to users in Australia:
If the Australian Trade Practices Act 1974 (Cth) (or analogous legislation) applies to this Agreement and permits the limitation of liability for breach of warranty implied by legislation, the liability of Level Up Creation is limited, at the option of Level Up Creation, to: (a) in the case of goods, any one or more of the following: (i) the replacement of the goods or the supply of equivalent goods; (ii) the repair of the goods; (iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or (iv) the payment of the cost of having the goods repaired; and (b) In the case of services: (i) the supplying of the services again; or (ii) the payment of the cost of having the services supplied again.
14.3 The following Section applies to users in the EEA and Switzerland:
Level Up Creation is liable without limitation for (i) damages caused intentionally or with gross negligence by Level Up Creation, its legal representatives or executive staff and other assistants in performance; (ii) personal injury, damage to health and death caused intentionally or as a result of gross negligence on the part of Level Up Creation, its legal representatives or assistants in performance, and (iii) damages caused by the absence of warranted characteristics and for damages relating to product liability. Level Up Creation is liable for damages resulting from the breach of primary contractual obligations by Level Up Creation, its legal representatives or other assistants in performance; primary contractual obligations are such basic duties which form the essence of the Agreement which were decisive for the conclusion of the Agreement and its performance. If Level Up Creation breaches its primary obligations through simple negligence, then its ensuing liability shall be limited to the amount which was foreseeable by Level Up Creation at the time the respective service was performed.
This Agreement (including pricing terms) is subject to occasional revision, and if we make any substantial changes, we may notify you by sending you an e-mail to the last e-mail address you provided to us (if any) and/or by prominently posting notice of the changes on our Site. Any changes to this agreement will be effective upon the earlier of thirty (30) calendar days following our dispatch of an e-mail notice to you (if applicable) or thirty (30) calendar days following our posting of notice of the changes on our Site. These changes will be effective immediately for new users of our Site or Services. You are responsible for providing us with your most current e-mail address. In the event that the last e-mail address that you have provided us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Continued use of our Site or Services following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.
(a) Governing Law.
This Agreement shall be governed by and construed solely and exclusively in accordance with the laws of the State of California, USA without giving effect to any law that would result in the application of the law of another jurisdiction.
(b) United States.
If you located are in the United States, the following applies to you. Please read this carefully. It affects your rights.
(i) Except for either party’s claims of infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret, any and all disputes between you and Level Up Creation arising under or related in any way to this Agreement, must be resolved through binding arbitration as described in this section. This agreement to arbitrate is intended to be interpreted broadly. It includes, but is not limited to, all claims and disputes relating to your use of any of the Level Up Creation Site and Service. (ii) You agree that by entering into this agreement, you and Level Up Creation are each waiving the right to trial by jury or to participate in a class action. You and Level Up Creation agree that each may bring claims against the other only in your or its individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. Any arbitration will take place on an individual basis; class arbitrations and class actions are not permitted. (iii) The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes of the American Arbitration Association (“AAA”), as modified by this section. For any claim where the total amount of the award sought is $10,000 or less, the AAA, you and Level Up Creation must abide by the following rules: (a) the arbitration shall be conducted solely based on written submissions; and (b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties. If the claim exceeds $10,000, the right to a hearing will be determined by the AAA rules, and the hearing (if any) must take place in your choice of the following locations: San Francisco, CA, Denver, CO, or New York, NY. The arbitrator’s ruling is binding and may be entered as a judgment in any court of competent jurisdiction. In the event this agreement to arbitrate is held unenforceable by a court, then the disputes that would otherwise have been arbitrated shall be exclusively brought in the state or federal courts located in San Francisco County, California. Claims of infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall be exclusively brought in the state and federal courts located in San Francisco County, California.
(c) EEA and Switzerland.
If you located are in the European Economic Area (EEA) or Switzerland, the parties irrevocably submit to the exclusive jurisdiction of the courts of London, England and their Courts of Appeal.
(d) Australia and Elsewhere.
If you are located in Australia or elsewhere in the world, the parties irrevocably submit to the exclusive jurisdiction of the courts of the State of Victoria, Australia and their Courts of Appeal.
15.3 Entire Agreement.
This Agreement constitutes the entire agreement between you and us regarding the use of the Site and Services. Our failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. The word including means including without limitation. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Your relationship to Level Up Creation is that of an independent contractor, and neither party is an agent or partner of the other. This Agreement, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Level Up Creations’ prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. The terms of this Agreement shall be binding upon assignees.
15.4 Copyright/Trademark Information.
Copyright © 2015, Level Up Creation. All rights reserved. All trademarks, logos and service marks (“Marks”) displayed on the Site are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks.