Last edited: December 15th, 2022
You understand that by accepting these terms and conditions, you (hereinafter referred to as the “Creator”) agree to provide Premium services to the Clients of Creativby.com (hereinafter referred to as the “Company”) (present and future) in accordance with the terms and conditions listed herein (“Services”). All the previous agreements, arrangements and understandings between you and the Company in relation to the Services shall stand terminated from the date of your acceptance of these terms and conditions.
1) Scope of Services
The scope of your Services shall include, without limitation, the following:
i. You shall interact with the company’s Account Managers and provide services when the Client of the Company approaches the Company for any services (any such project of the Client, a “Project”).
ii. The Company may assign prospective Clients for specific projects (such prospective client is defined herein as “Company Leads”) to you. You shall interact with the Account Manager to determine the scope and extent of their Project and their specific requirements.
iii. The Project management is to be done by the Account Manager. You shall render such services and assistance as may be necessary for the completion of the execution of any such Project by the clients associated with the Company. You shall continue to interact with the Account Manager and Client on any ongoing Project and ensure its conclusion within the timelines agreed upon with the Client. You shall execute the project per the Company’s Standard Operating Procedure (SOP) under the guidance of the Account Manager handling each Project.
iv. You and the Account Manager shall mutually agree on a specified timeline for completion of the Project, mutually agreed upon by the Client of the Company(“Timeline”). You shall ensure that the project assigned to you by the Company from time to time is completed within the Timeline & with quality assurance. In the event due to unforeseen circumstances for a reasonable period due to labor disturbances, accidents, fires, floods, telecommunications or Internet failures, strikes, wars, riots, rebellions, blockades, acts of government, governmental requirements and regulations or restrictions imposed by law or any other conditions beyond the reasonable control, the Timeline has to be modified, then you shall inform the Account Manager of the same in advance. You shall agree upon a revised Timeline with the Client. You agree and acknowledge that time is of the essence, and a breach of any agreed Timelines for any Project shall constitute a breach of these terms and conditions. In no event shall you cause any delay in the submission and the completion of the Project. You shall also work with multiple Creators on the same project and ensure the timely completion of services as a Team.
v. However, in cases wherein, despite all efforts, Timelines still need to be met or, project execution needs to be up to the mark, all parties involved in the Project shall call for a joint meeting to identify the defaulting party and such defaulting party only shall be penalized.
vi. During the Term (as defined herein below), you shall neither give nor accept any gifts or favors from any source within or outside the Company in connection with or concerning your association with the Company. You will not reach the Client of the Company directly or indirectly in any circumstances. In cases wherein the Client is directly or indirectly contacting you, bypassing the Company, please notify the Company immediately.
vii. You may use your desktop as per industry standards. However, it should be noted that the Company would not be held liable for any damages to the desktop’s hardware or other software caused by the software installed by you for working on any of the projects of the Company. The company does not install any software on your desktop. However, the company uses a 3rd party web application called ClickUp to manage the project you are working on in collaboration with the Client of the company. It is hereby clarified that for rendering the Services, you shall be solely responsible for all open-source/authorized/unauthorized software.
viii. Upon completion of each project, you shall maintain the backup of the same with you for two years from completion. Optionally if you don’t have space in your drive, you shall also hand over a copy of the backup in an archived version which we will maintain in the Company Cloud. Suppose a client asks for any changes to the project after the completion within these two years. In that case, you should be available to make those revisions within the mutually agreed timeline and deliver, for which you will be paid the nominal charges for the same upon mutually agreed.
ix. In case of your unavailability in the clause mentioned above, you shall ensure that the specific Projects source files requested by the company are handed-over to the identified Creator and the Account Manager within the specified timeline. However, the company shall not pay you for the Project source files in case of your unavailability, as mentioned herein.
x. You must deliver the final output files in ClickUp, and the Project Google folder shared with you.
i. Commission: The Creator(s) and any other talents involved in the project shall receive up to 80% of the project cost minus applicable fees (including currency conversion charges, intermediate bank charges, and swift charges) from the Client for each Project as Commission. We will pay the same to you via Paypal, Wise & Bank Transfer.
Payment Terms & Conditions
ii. If any change or revision in the agreed amounts payable from the Client for any Project due to any revision in rates or scope of the Project, such amount shall be adjusted with the final payment to you. In the event there is any refund receivable from you as a result of such adjustment, you shall return such amounts to the Company without any delay.
iii. If you fail to complete or abandon the Project before completion, you shall not be eligible for any payments concerning any such Project. You shall be required to immediately and without demur and protest return all amounts received from the Company concerning any such Project. The Company shall be entitled to terminate your Services immediately in case of such abandonment under Clause 3 of these terms and conditions.
iv. The earnings, incentives, payment schedules, and all other related provisions as specified in these terms and conditions are subject to change at any point in time, with prior intimation from the Company.
v. Pricing you quoted through our pricing form remains the same for a minimum of one (1) year from the signing date. It remains the same until you request to change.
i. You shall provide your Services in accordance with the terms and conditions mentioned herein until your Services are terminated in the manner provided in this Clause (“Term”). The Company and you may terminate your Services without assigning any reason whatsoever by giving thirty (30) days’ email notice to the other party.
ii. Notwithstanding Clause 3(i), the Company may terminate your Services immediately, in the event of any breach of the terms and conditions mentioned herein or any gross misconduct or any act or omission by you which may materially affect the completion of any of the Project.
iii. Upon issuing a notice of termination, you shall prepare a handover process whereby you shall specifically identify the timeline and the manner in which all Projects entrusted to you by the Company shall be handed over to another Creator under the guidance of the Account Manager (specifically identified in your hand-over process). You shall ensure that all incomplete Projects source files are handed-over to the identified Creator and the Account Manager within the specified timeline. Upon complete and satisfactory handing-over of the Projects, the Account Manager to whom such Projects have been handed over, shall give a clearance certificate in writing, confirming the completion of the handing-over process to their satisfaction. You shall be given your effective date of termination only after receipt of the clearance certificate, as mentioned above. However, it is hereby clarified that the Company reserves the right to extend the effective date of termination to ensure completion of the Projects entrusted to you.
iv. You at this moment agree that during or upon the termination of your Services, you shall not disparage the Company, its officers, or employees in any manner, including on any public forum, online media, or to any Clients. In the event you disparage the Company, its officers or employees in any manner, the Company reserves the right to take all actions against you that it may deem necessary, including without limitation, complaints/petitions before statutory, regulatory, judicial or quasi-judicial authorities and other forms of legal proceedings.
4) Your obligations as a Creator
i. During the Term and for one (1) year following the termination of your Services, you shall not, without the prior written consent of the Company, directly or indirectly employ, engage the services of or solicit any employee of the Company.
ii. You shall not entice, solicit or in any manner directly or indirectly approach or transact or engage to provide services which are or can be provided by the Company to the Client/s of the Company or those referred by the Client/s of the Company, with whom you are / were associated with as a result of your Services, either during the Term or until one (1) year from the termination of your Services.
iii. You are hereby allowed to provide services (which cannot be provided by the Company) to the leads/clients of the Company subject to prior written confirmation & approval from the Company.
iv. You shall not publish on the world wide web (online) or any other forum/venue/place, whether physical or digital, details of the Project, including the design proposal, brief and any working drafts, visuals, either during the Term or any time post the termination of your Services, without the prior written approval from the Company. By default the company tells you when to publish with client’s permission.
v. You shall not replicate any design proposal or any working drafts or visuals / works related to a Project (including any Project worked by other Creators for the Company) and execute it for the clients of the competitors of the Company either during the Term or after termination of your Services.
i. All information and materials obtained directly or indirectly in relation to the Company or its Clients; all knowledge about the business, products, programming techniques, experimental work, Clients and Creators of the Company; details of all Leads; these terms and conditions; details of earnings, incentives and compensation payable to you or other partners/employees/contractors of the Company; samples; catalogues; models; computer programs; drawings; designs and other particulars of any projects of the Company, are and will be the trade secrets and confidential and proprietary information of the Company (“Confidential Information”).
ii. You shall NOT be entitled to disclose or copy visuals, samples, catalogues, models, computer programs, drawings, documents or other instruments furnished by the Company hereunder and containing Confidential Information, unless and to the extent permitted by the Company in writing. All visuals, samples, models, computer programs, drawings, documents and other instruments furnished hereunder and containing confidential information shall remain the property of the Company. Such instruments and copies thereof generated shall be promptly returned by you upon the Company’s request or in any event of termination of your Services.
iii. Without in anyway limiting the generality of the definition of Confidential Information in sub-clause
(i), Confidential Information shall include any information that may relate to Company’s business, financials, and/or have commercial or other value to the Company or and is confidential or proprietary, whether explicitly designated as such or not, including but not limited to concepts and techniques, formulas, specifications, research, development, data, database, design briefs, computer programs, source code, object code, flow charts, photographs, information related to the Company’s affiliates, Clients, their business details, data, drawings, designs, technical, business and financial information, supplier and product development plans or information, schedules, forecasts, strategies, marketing plans, techniques, and materials but does not include:
6) Intellectual Property Rights
i. You agree and acknowledge that the Company’s trade names, logos, trademarks, designs, documentation, enhancement, revisions, updates, upgrades, modifications and derivative works thereto, including but not limiting to, all other items developed, designed or created by you as part of your Services (“Intellectual Property”), shall be the proprietary to the Company and all copyrights, patent and other intellectual property rights therein shall be owned and be the properties of the Company. You shall not be entitled to any ownership, claim or any other right on the Intellectual Property. Further, you hereby undertake not use the Intellectual Property in breach of these terms and conditions in any manner. You shall not sell, transfer, encumber, pledge, reproduce, publish, transmit, translate, modify, reverse engineer, compile, disassemble, reconfigure, market, distribute or otherwise use the Intellectual Property in whole or in part use it or disclose or allow the use of the Intellectual Property by any third party. However, you are allowed to showcase your work on your personal portfolios mentioning “In collaboration with Creativby.com”.
ii. You irrevocably transfer and assign to the Company all intellectual property rights that may be developed or created by you during the course of your Services. You hereby agree to execute, upon the request of the Company all necessary papers and otherwise provide proper assistance during and subsequent to the rendering of the Services, to enable the Company to obtain for itself or its nominees (and to vest legal title in the Company or its nominees), patents, copyrights, or other legal protection for such inventions, discoveries, innovations, improvements, original works of authorship, trade secrets and technical or business information in any and all countries. You shall ensure and warrant that any content developed and/or released to the public, as part of your Services shall be original works for hire and does not violate the intellectual property rights of any third parties.
iii. Intellectual Property ownerships
i. You shall defend, indemnify and hold harmless the Company, subsidiaries and holding companies and all of their respective Clients, officers, directors, agents, partners, associates, and employees (“Affiliates”) from and against any and all third-party suits, proceedings, claims, liabilities, actions, judgments, costs and expenses incurred, including attorney’s fees, to the extent arising out of (a) breach of any of the terms and conditions specified herein; (b) your non-performance or inadequate performance of the Services; (c) your act and/or omissions or any act of willful misconduct and/or gross negligence in the performance of the Services; or (d) loss, misappropriations, misuse or damage to the documents or instruments / things, including the Confidential Information that are in your possession or within your control.
i. Portfolio Copyrights: You assure that you are the copyright owner of all the images and works in your portfolio shared with Creativby.
ii. Notices: Notices shall be given by you to Creativby via email to legal@Creativby.com (or to such other email address as Creativby may specify in writing) and (ii) Creativby to you by email to the email address provided by you.
iii. Changes to these Terms and Conditions: The Company may modify, amend or update all or part of these terms and conditions with prior intimation to you. By continuing your services to Creativby upon intimation, you agree to the latest terms & conditions.
iv. No Waiver of rights: The failure or delay of either party to exercise or enforce any right or claim in these Terms and Conditions does not constitute a waiver of such right or claim and shall in no way affect that party’s right to later enforce or exercise it, unless such party issues an express written waiver, signed by a duly authorized representative of each party..
v. Dealing with a controversy or a dispute: In case a controversy or a dispute related to a Project, SoP, these Terms and Conditions and/or other written policies and procedures posted on the Creativby Platform should arise between you and Creativby, you and Creativby agree to engage in discussions in good faith in order to try to resolve the controversy or dispute. Further, you expressly agree to follow the procedure set out in the Procedures for Resolution of Controversies and Disputes and to be bound by the ruling…
vi. Governing law and venue: These terms and conditions shall be governed and construed in accordance with the laws of India. The courts in Chennai, India shall have exclusive jurisdiction over all disputes arising herefrom. In the event of the parties being unable to resolve such disputes amicably, the parties shall refer such disputes to arbitration. The arbitral tribunal shall constitute a sole arbitrator. The arbitration proceedings shall be conducted in English in accordance with the terms of the Arbitration and Conciliation Act, 1996. Notwithstanding this Clause, either party shall be entitled to seek interlocutory remedies such as an injunction, attachment, etc. with any law court of competent jurisdiction.
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