Terms of Service for Design Services on Fiverr.

Effective Date: 11th August 2024

1. Introduction

Welcome to the Terms of Service (TOS) for the design services offered through my profile on Fiverr and my personal website. By purchasing any of my design packages, you (the “Buyer”) agree to the following terms and conditions. These TOS are designed to protect both your rights as a consumer and my rights as a designer. This agreement is governed by the laws of Latvia, where I reside, and by the laws of the European Union (EU). As a British citizen, I am also guided by relevant UK legal principles where applicable.

2. Intellectual Property Rights

2.1. Designer’s Rights

Copyright Protection: As the designer, I retain full copyright ownership of all designs created until full ownership is explicitly transferred to the Buyer. Under both UK and EU law, copyright protection arises automatically upon the creation of an original work. This means that from the moment a design is conceived and documented in a tangible form, it is protected by copyright, without the need for registration.
Moral Rights: I retain the moral right to be recognised as the original creator of the design. This includes the right to object to any derogatory treatment of the work that might harm my reputation. Unauthorised modifications, alterations, or misuse of the design are prohibited unless full ownership has been transferred through the Premium package. Even after the transfer of ownership, the moral right to be credited as the designer remains unless explicitly waived.

2.2. Buyer’s Rights

Licence to Use: Upon purchase of a design under the Basic or Standard packages, you are granted a limited, non-exclusive licence to use the design as is. This licence permits the Buyer to use the design for personal or business purposes in its delivered form. However, this licence does not grant ownership of the design, nor does it permit the Buyer to modify, alter, vectorise, or otherwise transform the design without my express written consent.
Modification Rights: Full ownership rights, including the ability to modify, alter, vectorise, or resell the design, are granted only with the purchase of the Premium package. This transfer of ownership is effective upon full payment and delivery of the design. At this point, the Buyer gains all intellectual property rights associated with the design, subject to the terms outlined in this TOS.
Non-Transferability: Unless explicitly stated, the licence or ownership rights granted to you are non-transferable. This means you cannot sell, sublicense, or transfer the design to third parties without my explicit written consent. Any unauthorised transfer of rights may result in legal action.

3. Commercial Use Licence

Commercial Use: If the design is intended for commercial use, the Buyer must purchase a Commercial Use Licence, which is available as a Gig Extra or through an additional agreement. This licence provides the Buyer with broader rights to use the design in a commercial context, including but not limited to advertising, marketing, product packaging, and other business-related activities. The Commercial Use Licence is included by default in the Premium package, which grants full ownership and unrestricted usage rights.
Scope of Commercial Use: The Commercial Use Licence grants the Buyer the right to use the design for any business-related activities, but it does not permit the Buyer to sublicense the design to third parties unless explicitly stated. The Buyer must ensure that the design is not used in a manner that is defamatory, obscene, or illegal. Any misuse of the design will result in the revocation of the Commercial Use Licence and potential legal action.

4. Fiverr’s Right to Use Delivered Work

Fiverr’s Usage Rights: By using Fiverr to purchase design services, you acknowledge and agree that Fiverr retains the right to use any work delivered through its platform for marketing and promotional purposes. This includes, but is not limited to, displaying the design on Fiverr’s website, in advertisements, or in promotional materials. Such use is governed by Fiverr’s TOS and is beyond the control of the Seller.
Impact on Buyer’s Rights: While Fiverr’s use of delivered work does not affect the ownership rights granted to the Buyer, it does mean that the design may be publicly displayed as part of Fiverr’s promotional activities. The Buyer should be aware that Fiverr’s right to use the design for these purposes is perpetual and irrevocable once the design is delivered and accepted.

5. Governing Laws and Jurisdiction

This TOS is governed by the laws of Latvia, with consideration to the legal frameworks within the European Union, where applicable. The relevant laws include:

Directive 2001/29/EC on Copyright: This directive harmonises the laws of EU member states relating to copyright and related rights, ensuring that copyright protection is consistent across the EU.
Regulation (EU) No 2017/1001 on the European Union Trade Mark: This regulation provides a system for the registration of trade marks across the EU, which may be relevant if the design is used as part of a broader branding strategy.
Berne Convention for the Protection of Literary and Artistic Works: This international agreement, to which both the UK and EU are signatories, ensures that works are protected without the need for formal registration in any signatory country.

In the event of a dispute arising from the use of these services, the parties agree to submit to the jurisdiction of the courts in Latvia, or the relevant courts within the European Union, depending on the location of the Buyer.

6. Usage Restrictions

Basic and Standard Packages: The designs provided under these packages are for use strictly as delivered. You may not modify, alter, or vectorise the design without my explicit written consent. Any attempt to do so without permission will be considered a breach of this TOS and may result in the revocation of your usage licence and potential legal action.
Premium Package: The Premium package includes full ownership rights to the design. Once ownership is transferred, you may use, modify, alter, or resell the design as you see fit. However, this usage must still comply with all applicable laws and regulations, including those related to intellectual property.

7. Dispute Resolution

Fiverr’s Dispute Resolution Process: Any disputes arising from orders placed through Fiverr will be managed according to Fiverr’s dispute resolution process. This process typically involves initial mediation, and if necessary, arbitration. Fiverr’s dispute resolution system is designed to protect both Buyers and Sellers, but it is important to understand that Fiverr’s decision may be final in such cases.
Jurisdiction and Legal Action: If a dispute cannot be resolved through Fiverr’s dispute resolution process, either party may seek legal action in the courts of Latvia or the relevant courts within the European Union. Legal action should be considered a last resort, and both parties are encouraged to seek amicable solutions whenever possible.

8. Limitation of Liability

Seller’s Liability: I am not liable for any indirect, incidental, special, or consequential damages, including but not limited to loss of profits, arising out of or in connection with the use of the designs provided, even if I have been advised of the possibility of such damages. This limitation of liability applies to all claims, whether based on warranty, contract, tort, or any other legal theory.
Fiverr’s Limitation of Liability: Fiverr’s TOS also include a limitation of liability clause, which applies to all transactions conducted through their platform. As such, Fiverr will not be held responsible for any damages arising from the use of their platform, including but not limited to issues related to the delivery of services, payment processing, or customer support.

9. User Conduct and Content Moderation

Compliance with Fiverr Policies: All content and interactions on Fiverr must comply with Fiverr’s User Conduct and Content Moderation policies. This includes adhering to Fiverr’s guidelines on appropriate behaviour, respecting the intellectual property rights of others, and avoiding any activities that might be considered fraudulent, misleading, or harmful to other users.
Seller’s Rights: I reserve the right to remove any content, cancel any orders, or terminate any services that violate Fiverr’s policies or the terms of this TOS. This includes the right to refuse service to any Buyer who engages in inappropriate or abusive behaviour, or who attempts to circumvent Fiverr’s policies in any way.

10. Termination of Services

Grounds for Termination: I reserve the right to terminate services if the Buyer is found to be in violation of Fiverr’s TOS or if the Buyer’s account is disabled by Fiverr. This includes cases where the Buyer fails to comply with the usage restrictions outlined in this TOS, or where the Buyer engages in conduct that is harmful to my business or reputation.
Effect of Termination: Upon termination of services, the Buyer will lose all rights to the design, including any licences or ownership rights that may have been granted. Any payments made up to the point of termination will be non-refundable, and I may seek additional legal remedies if necessary.

11. Amendments and Updates

TOS Amendments: These TOS may be amended from time to time to remain consistent with updates to Fiverr’s TOS or to reflect changes in my business practices or legal obligations. Any significant changes to these terms will be communicated to clients through my website and reflected in the updated TOS. It is the responsibility of the Buyer to review these TOS periodically for any updates.
Binding Nature of Amendments: By continuing to use my services after any amendments to these TOS, you agree to be bound by the updated terms. If you do not agree with the changes, you must notify me immediately and discontinue using my services.

12. Confidentiality

Confidential Information: As part of the design process, you may be required to provide certain confidential information, such as business plans, proprietary data, or personal information. I agree to treat all such information as confidential and will not disclose it to any third parties without your explicit consent. This obligation of confidentiality does not apply to information that is already public, was independently developed without reference to your confidential information, or is required to be disclosed by law.
Protection of Confidential Information: I will take reasonable steps to protect the confidentiality of your information, including implementing physical, electronic, and procedural safeguards. However, no method of transmission over the internet or method of electronic storage is completely secure, and I cannot guarantee the absolute security of your information.
Duration of Confidentiality Obligation: The obligation to maintain confidentiality will continue even after the completion of the project and the termination of the services. This obligation remains in effect indefinitely unless otherwise agreed upon in writing.

13. Entire Agreement

Supersession of Prior Agreements: This TOS constitutes the entire agreement between the Buyer and the Seller regarding the services provided and supersedes any prior or contemporaneous understandings, agreements, representations, or warranties, whether written or oral. Any amendments or modifications to this TOS must be in writing and signed by both parties.
Severability: If any provision of this TOS is found to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that the remaining provisions of this TOS will remain in full force and effect.

14. Indemnification

Buyer’s Indemnification Obligation: You agree to indemnify, defend, and hold harmless the Seller from and against any and all claims, damages, losses, liabilities, costs, and expenses (including reasonable solicitor fees) arising out of or related to (i) your use of the design in violation of this TOS, (ii) any breach of these terms, or (iii) any infringement or violation of any intellectual property, proprietary, privacy, or other rights of any third party by you.
Scope of Indemnification: This indemnification obligation will apply to any claim, whether arising in tort, contract, or otherwise, and will survive the termination or expiration of this TOS and your use of the services.

15. Limitation of Liability

Limitation of Damages: In no event will the Seller be liable to the Buyer for any indirect, incidental, special, or consequential damages, including but not limited to loss of profits, revenue, data, or use, incurred by the Buyer or any third party, whether in an action in contract or tort, even if the Seller has been advised of the possibility of such damages.
Maximum Liability: The Seller’s maximum aggregate liability under this TOS for any and all claims arising from or related to the design services will not exceed the total amount paid by the Buyer for the specific service that gave rise to the claim.

16. Governing Law and Dispute Resolution

Governing Law: This TOS and any disputes arising from or related to it will be governed by and construed in accordance with the laws of Latvia, without regard to its conflict of law principles. If you are a resident of the European Union, additional protections under EU consumer laws may apply.
Dispute Resolution Process: In the event of a dispute, the parties agree to first attempt to resolve the issue through good-faith negotiation. If the dispute cannot be resolved through negotiation, either party may submit the dispute to mediation. If mediation fails, the dispute may be submitted to binding arbitration in accordance with the rules of the applicable arbitration body in Latvia.
Jurisdiction: For any disputes that cannot be resolved through the aforementioned dispute resolution processes, the parties agree to submit to the exclusive jurisdiction of the courts located in Latvia for the resolution of such disputes.

17. Amendments and Updates

Amendment Process: I reserve the right to amend these TOS from time to time to reflect changes in legal obligations, business practices, or for other reasons. Any amendments will be posted on my website and will take effect immediately upon posting. It is your responsibility to review these TOS periodically to stay informed of any changes.
Continued Use as Acceptance: Your continued use of my services after any amendments to these TOS constitutes your acceptance of the updated terms. If you do not agree with the amended terms, you must discontinue using my services immediately.

18. Termination

Termination by Buyer: You may terminate this agreement at any time by providing written notice to me. However, you will remain responsible for any fees and charges incurred prior to the termination, and I will retain the right to use the design as specified in this TOS.
Termination by Seller: I reserve the right to terminate this agreement and cease providing services if you breach any of the terms of this TOS, fail to make timely payments, or engage in conduct that is harmful or abusive. Upon termination, you will lose all rights to the design, and I may seek additional legal remedies if necessary.

19. Contact Information

If you have any questions, concerns, or need further clarification regarding these Terms of Service, or if you need to request permission for usage beyond what is granted in the standard packages, please feel free to contact me:

Email: info@tonyhughesdesign.com