The website located at https://www.ngd.africa/ (the “Site”) is a copyrighted work belonging to NGD Ltd, 4th Floor, Valley View Plaza, Number 99, Opebi Road, Ikeja Lagos, Nigeria (“NGD”, “us”, and “we”). Certain features of the Services or Site may be subject to additional guidelines, terms, or rules, which will be posted on the Service or Site in connection with such features. To the extent such terms, guidelines, and rules conflict with these terms of use, these terms of use shall govern.
These terms of use (“Agreement”) set forth the legally binding terms for your use of the Site and Services (whether as a Customer or as a Designer). By registering for Services, you are accepting this Agreement and you represent and warrant that you have the right, authority, and capacity to enter into this Agreement. You may not access or use the Site or Services if you are not at least 18 years old. If you do not agree with all of the provisions of this Agreement, you cannot use the Services.
1. Service
1.1 General
NGD provides an online platform that helps connect and support customers who wish to purchase designs (“Customers”) and designers who wish to provide such designs (“Designers”), “User” means any user of the Site or Service and may be a Designer or a Customer.
1.2 Assigned Project
(a) Customer may create a project (“Project”) by filling out a design brief (“Design Brief”), committing to paying the Payment terms in predetermined milestones (as defined in Section 3.1 below) to NGD 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 criteria upon which their Design Concepts will be judged. There are currently two types of Design Projects: (1) the default NGD Managed Project (YMP) and (2) the Concept pitch (CP). For YMP, Designers invited by NGD (in NGD’ sole discretion) to Design something may submit design concepts (“Design Concepts”) in the format specified by NGD by following the instructions on the Site. Design Concepts must comply with the Design Brief. (b) For CPs, Customer must select one winning Design Concepts by a certain time specified by NGD. If no approved concept is selected in the qualifying or final round of a CP, NGD will retain the Customer Payment and, will distribute the amount apportioned for that milestone in the form of NGD Credits pro rata among the Designers who participated in the CP and designers who eventually tweaked or reworked the final approved concept. 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 NGD any Customer Payment or any fees and charges of NGD.
2. Design Transfer Agreement
The Design Transfer Agreement, available at http://ngd.africa/legal/design-transfer-agreement, sets forth the legally binding terms between the applicable Designer and Customer for the sale of a Sold Design through the Design Project.
3. Payment Terms
The following terms apply to Customers who have requested a Design project.
3.1 Customer Payment
The “Customer Payment” means (i) the total price calculated as selected by Customer when Customer created a Design project, and the determined milestone payment has been determined as set forth at http://ngd.africa/new-project.
3.2 Refunds
NGD will make no refunds of the Customer, but will work together to hold such value in a customer’s wallet and can be used to pay for another service within specified timeline.
3.3 NGD Credits
NGD pays the Designer a Fee in the form of NGD Credits, which are equivalent to one unit of the US dollar or equivalent to local currency of the user, and can be redeemable as local cash domiciled in the users local bank account after statutory deductions. Redeeming cash in local Bank account costs 1% of the transfer amount.
3.4 General Payment Terms
Currency Credits are convertible into 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 transactions via the Site. NGD 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
4.1 Exclusivity
You acknowledge and agree that NGD’ revenue is derived from its receipt of Customer Payments made through the Site. Therefore, for 24 months from the time you meet any party through the Site (the “Exclusivity Period“), you must use the NGD 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 “NGD Relationship”). You may opt-out of this obligation only if Customer or prospective Customer pays NGD 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 NGD 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 support@ngd.africa.
4.2 Non-Circumvention
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) Cancel any Design Contest for the purpose of contracting separately with a Designer who Customer meets through the Site.
(e) 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 NGD 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: support@ngd.africa.
5. Important Disclaimers and Release
5.1 Disclaimer
We make no warranties regarding the Design Projects, Design Concepts, or any other products or services provided by us, Designers, Customers, or other Users. Designers sell and Customers buy 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 NGD will not be responsible for any loss or damage incurred as the result of any such interactions (excluding those directly due to NGD’ 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, NGD will use commercially reasonable efforts to provide the Services described in this Agreement.
5.2 Release
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, your use of the Site and/or Services, 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 NGD’ acts or the Services).
6. Accounts
In order to use the Service, you must register for an account with NGD (“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 NGD with identification documents (including copies of IDs, passports or drivers licenses) which NGD 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 NGD of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security which is based on your negligence. NGD 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, 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 NGD. Because you alone are responsible for your User Content (and not NGD), you may expose yourself to liability if, for example, your User Content violates the Acceptable Use Policy. NGD is not obligated to remove any Design Contests, Design Concepts, or Reviews from the Site unless required by applicable Law. NGD 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 NGD 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 and making it available on third party platforms via Partner Integrations; and for general marketing purposes of NGD; provided that NGD will only use your Design Brief and Design Concepts in accordance with the private or public settings of the Design Contest and Project Service or for the purposes of enabling and operating a Partner Integration as contemplated in section 1.4 above. 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 NGD’ “Acceptable Use Policy”:
8.1 Privacy
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 (including by allowing any third party to download or reuse any User Content in violation of any such third party rights, by using any work in an editorial manner without affixing the necessary credit or attribution or by posting or uploading or allowing any third party to post or upload any User Content on social media sites that grant exclusive rights or ownership in respect of such User Content to any third party); (b) is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, slanderous, indecent, 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 that would otherwise imply that the creator of the User Content, or the persons or property appearing in the User Content (if any), endorse any political, economic or other opinion-based movements or parties or in a way that places any person in the User Content in a bad light or in a defamatory, unlawful, immoral or offensive manner; (c) is in violation of any laws, or obligations or restrictions imposed by any third party; or (d) would cause a material risk to the security or operations of NGD or 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, or to offer, use, or permit the use of the Site and/or Services in a computer service business, third-party outsourcing service, on a membership or subscription basis, on a service bureau basis, on a time-sharing basis, as part of a hosted service, or on behalf of any third party, or to sell, license or distribute any work as stand-alone or as part of an online database or any other database, or any derivative product containing any work in such way that is intended to allow a third party to use, download, extract or access the work as a stand-alone file or otherwise share any work with any third party; (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, or remove, obscure, or alter any proprietary notices associated with the Site and/or Services; (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, or otherwise attempt to interact with the operating system underlying the Site and/or Services.
8.5
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.
9. Site
9.1 License
Subject to the terms of this Agreement, NGD grants you a non-transferable, non-exclusive, license to use the Site and Services (excluding Design Concepts, 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 Feedback
If you provide NGD any feedback or suggestions regarding the Site or Services (“Feedback”), you hereby assign and agree to assign upon our request to NGD all rights in the Feedback and agree that NGD shall have the right to use such Feedback and related information in any manner it deems appropriate. NGD will treat any Feedback you provide to NGD as non-confidential and non-proprietary. You agree that you will not submit to NGD any information or ideas that you consider to be confidential or proprietary.
9.4 Ownership
Each User owns its own User Content. Excluding your User Content, you acknowledge that the Site and Services are owned by NGD or NGD’ licensors. The provision of the Site and Services does not transfer to you or any third party any rights, title or interes. NGD and its suppliers reserve all rights not granted in this Agreement.
10. Indemnity
You agree to indemnify and hold NGD (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 (a) your use of the Site or Services, (b) your User Content (including your Design Contest, Design Concept, designs in the Project Service, and Reviews), (c) your interaction with any other User, (d) your use of Adobe Stock, or (e) your violation of this Agreement or any applicable laws. NGD 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 NGD. NGD will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
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”). These Third Party Sites & Ads are not under the control of NGD and NGD is not responsible for any Third Party Sites & Ads. NGD 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), including in part or in full, or (b) terminate this Agreement, at any time for a legitimate purpose, including in part or in full, and including for any use of the Site or Services in violation of this Agreement or where any of our licensors terminates our licence to use any content (including the Adobe Stock). Upon termination of this Agreement, your Account and right to access and use the Site and Services (or relevant part thereof) will terminate immediately. Any NGD 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). NGD 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 1.3(b), 4, 5, 7, 8, 9 (excluding Section 9.1), 10, 11, 13, 14, and 15.
13. Disclaimers
13.1
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.
14. Limitation on Liability
14.1
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 (but subject to clause 14.4), 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 NGD in the prior 12 months (if any). The existence of more than one claim will not enlarge this limit. Some jurisdictions 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 jurisdictions to jurisdictions.**
15. General
15.1 Changes to Terms of Use
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.
15.2 Disputes
(a) Governing Law
This Agreement shall be governed by and construed solely and exclusively in accordance with the laws of the Federal Republic of Nigeria.
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 NGD 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 NGD’ 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 © 2019, NGD. 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.
15.5 Contact Information
howfar@ngd.africa