Terms and Conditions
THINK&SHIFT RED CLAY DESIGNERS
Find additional legal resources at the links below:
Red Clay Designer Participation
Terms and Conditions
Last Revised June 5, 2014
By selecting "I Agree" and in consideration of Red Clay, LLC evaluating and providing evaluation services for your Design for possible use in or on items you agree to the following Terms and Conditions.
Red Clay provides an online platform that helps connect customers who wish to purchase designs (“Customers”) and designers who wish to provide such designs (“Designers”), including, for example, through Design Projects as defined below and collectively, the “Services”). “User” means any user of the Site or Service, and may be a Designer or a Customer. If you are a User, the provisions in this Agreement regarding Users apply to you. If you are also a Customer, the provisions in this Agreement regarding Customers apply to you. If you are also a Designer, the provisions in this Agreement regarding Designers apply to you. “Sold Design” means the applicable winning Design Concept, or the design sold under the Project Service. “Sale” means the applicable sale. “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 Design Project
a) Customer may create a design project (“Design Project”) by creating a design brief (“Design Brief”), paying the Customer Payment and following the other instructions on the Site. The Design Brief must clearly specify the requirements for the Design Project, such that Designers clearly know the rules and criteria on which their Design Concepts will be judged. There is currently one project type on the Red Clay website: the Design Project. Designers invited by Red Clay (in Red Clay’s sole discretion) to enter a Design Project may submit design concepts (“Design Concepts”) in the format specified by Red Clay by following the instructions on the Site. Design Concepts must comply with the Design Brief. For Design Projects, Customer must select one or more winning Design Concepts by a certain time specified by Red Clay. If no winner is selected in the qualifying round and/or the final round of a Design Project, Red Clay will retain the Customer Payment, Red Clay will distribute the Designer Fee equally among the Designers who participated in the Design Project and who have won a Design Project in the past and who have not breached this Agreement, and Customer will have no right to a refund or to use the Design Concepts. Customer may additionally seek a refund of the Customer Payment for a Design Project at any time up to 60 days after the date of payment for the Design Project, but only if finalists were not chosen by Customer. (d) For the avoidance of doubt, Customer has no right or license to use any Design Concepts other than the Sold Design. Customer may not: (a) run a Design Project if Customer is tendering the creation of the same design through a service other than the Site (this Section (a) does not apply to customers located in the EEA); (b) allow or request Designers to submit Design Concepts to Customer via any means other than via the Site; and (c) collude in relation to the awarding of a winner in a Design Project or awarding a separate account held by Customer as the successful Designer in a Design Project. Customers and Designers must deal on an arm’s length basis. Customer may not cancel any Design Project for the purpose of contracting separately with a Designer who Customer meets through the Site which results in Customer avoiding paying Red Clay any Customer Payment or any fees and charges of Red Clay. (e) Some jurisdictions provide Customer certain mandatory statutory rights (e.g., right to supplementary performance (e.g., rectification or replacement), right for a refund, right to withdrawal, right to reduce the price and right to damages in case the Design Concepts are defective) (collectively, “Mandatory Statutory Rights”) which remain unaffected.
2. Design Concepts
2.1 Original Work
Designer promises that each and every Design Concept you submit to Red Clay is your own original work, is not and has not been offered for sale anywhere by any means, and does not contain any trademarks, logos, copyrighted material, content subject to right of publicity or privacy, or any other intellectual property belonging to any third party, other than that which has been provided to you by Red Clay. You also agree that you will not use any content provided to you by Red Clay, for any purpose other than to submit Design Concepts, Revisions and Deliverables incorporating such content to Red Clay.
2.2 Selected Design Concepts
Designer acknowledges that Red Clay may decline to select a Design Concept or exclude Design Concepts from consideration, for any reason, at any time, and in its sole discretion. If Designers Design Concept is selected for sale by Red Clay and Customer, at that time Designer immediately and irrevocably assign to Red Clay and its subsidiaries and affiliates the entire right, title, and interest in and to all intellectual property, ‘moral’ or other rights in Designers Design Concept, including the right to sue for past infringement and the right to further sublicense the Design Concept. Designer also licenses to Red Clay the use of any of your identifying information including your name and image for purposes of promoting the Design Concepts. Nothing in these Terms and Conditions obligates Red Clay to promote or sell any Design Concepts.
Without limiting the foregoing, Red Clay may, among other things, use the Design Concepts and your identifying information in any manner, including but not limited to: reproducing the Design Concept and your identifying information on products, selling products bearing the Design Concept and your identifying information, changing or reworking the Design Concept by making color or size changes, making derivative works of the Design Concept, using the Design Concept and Designer identifying information on the Red Clay website and otherwise to promote Red Clay, and registering the Design Concept with the US Copyright Ofﬁce in Red Clay’s or Customer's name. Designer agrees to provide Red Clay with any information as may be required in order to register the copyright of the Design Concept if Red Clay so requests, at no additional cost to Red Clay. If Designer’s Design Concept is selected, then you may not use the Design Concept (or derivatives of the Design Concept) or allow others to use the Design Concept (or derivatives of the Design Concept) in any manner whatsoever.
2.3 Unselected Design Concepts
Whether or not Red Clay or Customer selects Designers Design Concept for sale, Designer may not reproduce, sell, or submit the Design Concept to others for any purpose for 90 days after the submission deadline. During the 90 days after the submission deadline, Red Clay may display Designers Design Concept as a product for sale, even if your Design has not been selected as a winner. If Red Clay decides to sell items incorporating Designers Design Concept, the Design Concept will be deemed to be selected as an winning design, and the corresponding cash prize will be awarded to the Designer. After 90 days from the end of the submission deadline, if Red Clay has not notiﬁed you that it has selected Designers Design, Designer shall be free to use the Design Concepts for any purpose.
If Designers Design Concept is selected for sale by Red Clay, then Red Clay shall pay a cash prize to the Designer based on the terms of each project.
2.4 Image and Design Concept Rights
Designer may not submit any design Concepts, including, without limitation, photographs and other images, text, graphics, patterns, visuals, and other materials that could infringe any rights of privacy, publicity or copyrights, unless Designer has the permission of the owner of these rights and the persons (or their parents or legal guardians, where applicable) who are shown in the materials. Furthermore, designer may not submit any materials that may give rise to any civil or criminal liability under applicable law, or expose Red Clay or its affiliates or partners to the threat of the same. Red Clay reserves the right to delete, move, edit images, or suspend viewing or printing of materials if, in our sole discretion, Red Clay deems any submission abusive, defamatory, or in violation of any intellectual property or privacy laws or otherwise inappropriate or likely to lead to civil or criminal liability.
Designer represents, warrants and covenants that designer owns or otherwise possess all necessary rights with respect to the design concepts; the design concepts do not and will not infringe, misappropriate, use or disclose without authorization, or otherwise violate any intellectual property or proprietary right of any third party, and are not unlawful, fraudulent, threatening, abusive, libelous, defamatory, obscene or otherwise objectionable; and you hereby consent to the use of designer’s likeness, and designer has obtained the written consent, release, and/or permission of every identiﬁable individual who appears in any design materials to use such individual’s likeness, for purposes of using and otherwise exploiting the material in the manner contemplated by these terms and conditions or, if any such identiﬁable individual is under the age of eighteen, designer has obtained such written consent, release and/or permission from such individual’s parent or guardian, and designer further agrees to provide to Red Clay a copy of any such consents, releases and/or permissions upon Red Clay’s request.
Please note that Red Clay’s community members may report design concepts that they believe to be inappropriate. Red Clay has the right, but no obligation to remove any design concepts in response to user reports or requests. Red Clay is not responsible for, and will have no liability for, the removal or non-removal of any design materials.
3. Non-Disclosure Agreement
For purposes of this Agreement, "Confidential Information" shall include all information or material that has or could have commercial value or other utility in the business in which Disclosing Party is engaged.
Exclusions from Confidential Information. Receiving Party's obligations under this Agreement do not extend to information that is:
- publicly known at the time of disclosure or subsequently becomes publicly known through no fault of the Receiving Party;
- discovered or created by the Receiving Party before disclosure by Disclosing Party;
- learned by the Receiving Party through legitimate means other than from the Disclosing Party or Disclosing Party's representatives; or
- is disclosed by Receiving Party with Disclosing Party's prior written approval
Obligations of Receiving Party. Receiving Party shall hold and maintain the Confidential Information in strictest confidence for the sole and exclusive benefit of the Disclosing Party. Receiving Party shall not, without prior written approval of Disclosing Party, use for Receiving Party's own benefit, publish, copy, or otherwise disclose to others, or permit the use by others for their benefit or to the detriment of Disclosing Party, any Confidential Information.
Time Periods. The nondisclosure provisions of this Agreement shall survive the termination of this Agreement and Receiving Party's duty to hold Confidential Information in confidence shall remain in effect until the Confidential Information no longer qualifies as a trade secret or until Disclosing Party sends Receiving Party written notice releasing Receiving Party from this Agreement, whichever occurs first.
Severability. If a court finds any provision of this Agreement invalid or unenforceable, the remainder of this Agreement shall be interpreted so as best to effect the intent of the parties.
Integration. This Agreement expresses the complete understanding of the parties with respect to the subject matter and supersedes all prior proposals, agreements, representations, and understandings. This Agreement may not be amended except in a writing signed by both parties.
Waiver. The failure to exercise any right provided in this Agreement shall not be a waiver of prior or subsequent rights.
These Terms and Conditions and all matters relating to it or arising from it – whether sounding in contract law or otherwise – shall be governed by, and shall be construed and enforced pursuant to, the laws of the state of Wisconsin. If any provisions of the Agreement shall be prohibited by or ruled invalid under Wisconsin law, such provisions shall be ineffective only to the extent of such prohibition or invalidity, without affecting the validity or enforceability of the remaining provisions thereof.
No failure or delay on the part of Red Clay in exercising any power or right under these Terms and Conditions shall operate as a waiver, nor shall any single or partial exercise of any such power or right preclude any other exercise of any other power or right.
Any dispute between you and Red Clay shall be decided under Wisconsin law, via binding arbitration in accord with applicable rules of the American Arbitration Association. Any such arbitration demand shall be ﬁled in the state of Wisconsin within one year of the date that any claim may arise.
Your acceptance of these Terms and Conditions creates a binding contract under Wisconsin law.
Great to meet another visionary!
Fill out these basic account details and let's get you started on the platform.
Once you kick-off your project, you'll be introduced to our great designers and creativity can commence.
Thank you for your interest in joining the Red Clay Design Community.
Applying to our community is simple and only takes a few minutes.
First, give us a little information about yourself, and then share some images of your best work. We’ll take a look and get back to you soon.
We're excited to see what you can do!