Subscription Agreement

BROWZWEAR SUBSCRIPTION SERVICES AGREEMENT

Terms last updated: 5th Mar 2024

This Agreement is an agreement between the business entity which has executed an Order Form ("You" or “Client”) for receipt of the Services (as defined below) and the applicable Browzwear company as further detailed in the Order Form (“Service Provider”).

By accepting this Agreement, you expressly acknowledge and agree that You have understood and agree to comply with, and be legally bound by, this Agreement. You hereby waive any applicable rights to require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent not prohibited under applicable law. If You do not agree to be bound by this Agreement, please do not accept this Agreement, access or use the Services or any part thereof.

Service Provider may update the terms of this Agreement from time to time. Service Provider will provide you with written notice of any material updates at least thirty (30) days prior to the date the updated version of this Agreement is effective, unless such material updates result from changes in laws or regulations. The updated version of this Agreement will be available at https://help.browzwear.com/hc/en-us/articles/4921371933337-Subscription-Agreement. Notices for material updates to the terms of this Agreement will be given in accordance with Section 13.8 (Notices). Following such notice, your continued use of the Services on or after the date the updated version of this Agreement is effective and binding, as indicated at the top of this Agreement, constitutes your acceptance of the updated version of this Agreement. The updated version of this Agreement supersedes all prior versions. If you do not agree to the updated version of this Agreement, you must stop using the Services immediately.

In the event of a conflict between this Agreement and any Order Form, the Order Form shall prevail.

WHEREAS, Service Provider has the right to offer and/or distribute certain desktop and cloud-based software for the fashion industry (collectively, in whole and in part, the “System” or the “Services”) as further described in one or more Order Forms (as defined below), as well as the Fabric Analyzer Product for accurate fabric digitalization (the “Product”).

NOW, THEREFORE, for good and valuable consideration, the adequacy and sufficiency of which is hereby acknowledged, the Parties agree as follows:

  1. SUBSCRIPTION SERVICE.

    1.1. Subscription Service. In consideration of Client’s fulfilment of its obligations hereunder, including without limitation, payment of all applicable Fees (as stated in the applicable Order Form), Service Provider grants Client (including, where applicable, Client’s affiliated companies, such as parent, subsidiary and/or sister companies (“Client Affiliated Companies”) a non-exclusive, non-transferable, non-assignable (except as otherwise provided in Section ‎14.5 (“Assignment”) below)), limited right (the “Subscription”) to use the System and/or Services, as more particularly described in one or more sequentially numbered written Order Forms specifically referencing this Agreement, which, upon their execution, by this reference, are incorporated in and made a part of this Agreement (each, an “Order Form”), solely for Client’s internal business operations during the Term (defined below) and solely in accordance with the applicable terms and conditions of this Agreement, and any applicable third party licenses and/or terms and conditions referenced in Section ‎1.4 (Client Acknowledgments) (collectively, the “Subscription Service”). The Subscription Service shall be subject, inter alia, to the following terms and conditions:

    1.1.1. Client shall not, (and shall ensure that no third party given access to the System shall (if and to the extent that such access is permitted in accordance with the terms herein) (“Permitted Access”)) modify, adapt, decompile, translate, disassemble, reverse engineer, make derivative works of, or otherwise attempt to derive the source code, object code, algorithms or the overall structure of, the System, including integrating the System into any other software nor bundle or distribute it alongside any program which may add functionality to the System, including plugins, integration, and similar software. Where applicable, licenses which are purchased on a per-user basis may not be shared, transferred or used by any other user whether such user is an employee of the Client or not. In addition, Client shall not remove, alter, or conceal, in whole or in part, any copyright, trademark, or other proprietary right notices that are contained within the System (if any).

    1.1.2. Client shall (a) be responsible for its authorized users’ (“Users”) compliance with the provisions of this Agreement; and (b) use the Subscription Service only in accordance with applicable laws and regulations (where applicable).

    1.1.3. Except as expressly permitted herein, Client shall not, and shall ensure that no third party given Permitted Access to the System shall (a) assign (except as provided in Section ‎14.5 (“Assignment”) below), or otherwise transfer any of the rights contained in this Agreement; (b) copy any portion of the System, including any documentation associated therewith;(c) interfere or attempt to interfere with the integrity or proper working of the System; (d) use the System in any unlawful manner or in breach of this Agreement; or (c) sell, rent, lease, lend, or distribute the System, in whole or in part, or use the System to operate in, or as, a time-sharing, outsourcing, or service bureau environment, or in any other way allow any third party to access or use the System without the express prior written consent of Service Provider. Client shall not, and shall not allow any third party, to circumvent any security or access control mechanism of the System.

    1.1.4. Notification of Violations. In the event that Client becomes aware that anyone is using or has used the System in a manner that is inconsistent with the terms of this Agreement or that is likely to harm or violate the Service Provider's proprietary rights or applicable law, Client shall promptly notify Service Provider in writing and fully cooperate in any Service Provider attempt to minimize the impact and prevent the re-occurrence of such use.

    1.1.5. Prohibited Use. Client shall not (i) upload or transmit through the Subscription Service any material which violates or infringes in any way upon the rights of others, which is unlawful, which encourages conduct that would constitute a criminal offense, gives rise to any liability or otherwise violates any applicable laws and regulations, (ii) use the Subscription Service to store or transmit viruses, Trojan horses, time bombs, worms and other harmful or malicious code, files, scripts, agents or programs, (iii) interfere with or disrupt the integrity or performance of the Subscription Service or third-party data contained therein, or (iv) attempt to gain unauthorized access to the Subscription Service and/or the systems or networks on which it depends or is stored.

    1.1.6. System Repairs and Corrections. Where required, Client shall provide reasonable assistance to Service Provider as so requested in the event that the Service Provider is implementing updates or is required to resolve technical issues.

    1.1.7. Minimum Computing Requirements. In order for the Client to have full usage of the System, Client’s internal computing systems must equal or exceed the hardware/software requirements as detailed at the following link: Minimum System Requirements.

    1.1.8. License. Client hereby grants Service Provider an irrevocable, permanent, unlimited, world-wide, royalty-free, sublicensable, non-exclusive license to use the Client Confidential Information as necessary for Service Provider to provide the Services in accordance with this Agreement.

    1.2. Client Acknowledgments. Client hereby acknowledges the following: (a) any misuse of the System may cause loss and/or damage to the Client, and in the event that Client bypasses or misuses the System, Client shall be solely liable for any loss or expense incurred by Client as a result of such bypassing or misuse; and (b) it is critical for Client to pay special attention to the features of the System and not operate it without a clear understanding of its operations; and (c) the System contains certain third party software components, which are governed, in the case of open source software, solely by their respective licenses.

  2. FEES.

    2.1. Fees and Payment Terms. Client shall pay to Service Provider the amounts set forth in the applicable Order Form (“Fees”), in accordance with the payment terms and timelines stated in that Order Form(s) and in the currency set out in that Order Form(s). The first Invoice shall be issued on the date of execution of this Agreement by both Parties, to cover the billing period commencing on the Effective Date of this Agreement.

    2.2. Travel and Accommodation. All travel expenses for onsite visits (including hotels, flights and sundry expenses), if any, are excluded from the Fees and will be at Client’s expense and shall be subject to obtaining Client’s prior written approval. Onsite visits include but are not limited to training sessions and executive business reviews.

    2.3. Taxes. The Fees are exclusive of all current and future taxes, such as sales, use, value-added, withholding, and all other taxes or levies on transactions or payments made under this Agreement (collectively, “Taxes”). If any taxes are required to be withheld, Client shall pay an amount such that the net amount payable to the Service Provider after withholding of taxes shall equal the Subscription Fees as set forth in the applicable Order Form, which would have been otherwise payable under this Agreement. In the event Client intends to withhold any taxes or other charges from its payment to Service Provider in accordance with applicable laws, it shall notify Service Provider of the amount to be withheld, so that Service Provider may issue or reissue an amended invoice reflecting a grossed-up fee, so that the net amount payable to Service Provider after withholding of the applicable taxes or charges shall equal the Subscription Fees as set forth in the applicable Order Form.

    2.4. Late Payment. If any Fees due are not received by Service Provider by the due date as stated in the Order Form, Service Provider may charge Client, and Client agrees to pay (in addition to the unpaid Fees) a late fee equal to 1.5% per month or, if lower, the maximum rate allowed under applicable law, plus any reasonable fees and expenses (including attorney’s fees) incurred by Service Provider in the collection thereof.

    2.5. Price Protection. All Fees set forth in applicable Order Form are fixed during the Initial Subscription Term. Upon the commencement of each Renewal Term such Fees shall be increased by 7%.

  3. CONFIDENTIALITY.

    Protection of Confidential Information. Each Party agrees to keep confidential and to use only for purposes of performing its obligations under this Agreement, any proprietary or confidential information of the other Party disclosed pursuant to this Agreement (“Confidential Information”). Client acknowledges that the Services and any information in connection therewith shall be deemed as Service Provider’ Confidential Information.

    3.1. Protection of Confidential Information. If either Party receives from the other Party information, whether in tangible or intangible form and in whatever media, which is either marked as being confidential or which, due to the nature of such information or the circumstances under which it was disclosed, ought reasonably to be treated as confidential information of the disclosing Party, such information shall be deemed “Confidential Information” and the receiving Party shall protect such information and safeguard it from unauthorized use, access, and disclosure, by exercising the same degree of care it uses to protect its own information of like importance, but in no event less than a reasonable standard of care. The receiving Party further agrees that it will only use the disclosing Party's Confidential Information for the purpose of performing under this Agreement, and shall only disclose such information to its officers, employees and professional advisors who have a need to know, and only to the extent necessary to perform under this Agreement; provided, however, that such officers, employees and professional advisors are bound to comply with the confidentiality obligations hereunder and are not direct competitors of the disclosing Party. In any event, the receiving Party shall remain liable at all times for any acts and/or omissions of its officers, employees and professional advisors with respect to the disclosing Party’s Confidential Information. Confidential Information includes, without limitation, trade secrets, documentation, techniques, specifications, manuals, and technical information. For the avoidance of doubt, the System, including all related software, data, documentation and materials constitutes the Confidential Information of Service Provider. Upon any termination of this Agreement, each Party shall return to the other Party all Confidential Information of the other Party, and all copies thereof, in the possession, custody or control of the Party unless otherwise expressly provided in this Agreement.

    3.2. Exceptions to Definition of Confidential Information. Confidential Information shall not include any information that the receiving Party can demonstrate with its written records: (i) is publicly known prior to disclosure by the disclosing Party through no wrongful act, or involvement, of the receiving Party; (ii) has already been rightfully in the possession of the receiving Party prior to disclosure; (iii) is rightfully obtained by the receiving Party from a third party free from any obligation of confidentiality towards the disclosing Party; or (iv) is independently developed by the receiving Party without use or knowledge of the disclosing Party's Confidential Information.

    3.3. Exceptions to Obligation of Confidentiality. The receiving Party may disclose: (A) the existence (but not the terms) of this Agreement; (B) the Agreement as a whole, provided that such disclosure is reasonably necessary in the context of a due diligence process and on a confidential basis; and (C) Confidential Information that is required to be so disclosed under any applicable law, regulation, judicial or administrative order; provided, however, that receiving Party shall (i) make reasonable efforts to give the disclosing Party prompt notice of such requirement or order (subject always to the requirements of the applicable law, regulation, judicial or administrative order) in order to allow the disclosing Party to seek a protective order or otherwise prevent or restrict such disclosure; and (ii) only disclose such Confidential Information to the extent required by the law, regulation, or order.

  4. TECHNICAL SUPPORT.

    4.1. Support Services. Subject to Client’s payment of the Fees specified in the applicable Order Forms, Service Provider shall make commercially reasonable efforts to provide its standard technical support services (“Support”), as detailed in the SLA, for the purpose of resolving issues with the System reported to Service Provider based on the System’s failure to provide its main features. Service Provider’ support and training obligations are conditioned upon Client making all reasonable efforts to cooperate with Service Provider and providing reasonable access to personnel, equipment and resources as necessary. Notwithstanding the foregoing, in no event shall Service Provider be obligated to provide Support where the reported failure results from (i) a failure of Client's hardware or other software; or (ii) misuse or unauthorized use of, or unauthorized modification to, the System.

  5. INTELLECTUAL PROPERTY.

    5.1. Intellectual Property Rights. Service Provider exclusively owns or has sufficient legal rights, title and interest in and to the System and Subscription Service, and any associated documentation, content, and deliverables (collectively, “Documentation”) developed and/or provided during the Services and all Intellectual Property Rights therein. As used herein, “Intellectual Property Rights” means all patents, copyrights, trademarks (registered and unregistered), service marks, trade secrets, and confidential and proprietary rights therein, any applications, continuations and renewals of any of the foregoing (if and where applicable), and all goodwill associated therewith. The System and Documentation contain confidential and proprietary information and trade secrets belonging to Service Provider and/or its licensors, and nothing herein gives Client any right, title or interest in the System or Documentation except for Client’s limited express rights granted pursuant to Section 1.1 hereof. Service Provider shall be entitled to the unrestricted use and dissemination of any questions, comments, suggestions, ideas, feedback or any other information about the System or Services provided by Client to Service Provider (as well as to any designee of Service Provider).

    5.2. Service Provider IP. Except as expressly set forth herein, Service Provider alone (and its licensors, where applicable) will retain all Intellectual Property Rights relating to any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Client or any third party relating to the Subscription Service, which are hereby completely, irrevocably and unconditionally assigned to Service Provider. Client will not copy, distribute, reproduce or use any of the foregoing except as expressly permitted under this Agreement. This Agreement is not a sale and does not convey to Client any rights of ownership in or related to the Subscription Service or any of Service Provider’s Intellectual Property Rights.

    5.3. Client and its licensors shall (and Client hereby represents and warrants that they do) have and retain all right, title and interest (including, without limitation, sole ownership of) all Client Confidential Information (including all content) distributed through the Subscription Service and the Intellectual Property Rights therein.

  6. TERM AND TERMINATION.

    6.1. Term. The term of this Agreement shall commence on the Effective Date and, unless otherwise terminated hereunder, shall remain in full force and effect until the date of termination of all outstanding Order Forms. The start date and initial term (the “Initial Term”) of each Order Form shall be stated on the Order Form. On expiration of the Initial Term of each Order Form, the Order Forms, will automatically renew for additional periods equal to the Initial Term of the 1st Order Form, under the same terms and conditions as in the original Order Form unless provided to the contrary in the applicable Order Form (each, a “Renewal Term”) unless either Party notifies the other in writing at least ninety (90) days prior to the end of the Initial Term or then-current Renewal Term, as the case may be, of its intent to terminate that Order Form upon the expiration of the Initial Term or then-current Renewal Term, as applicable (the Initial Term and any subsequent Renewal Term, collectively, the “Term”).

    6.2. Termination. This Agreement may be terminated as follows:

    6.2.1. Either Party may terminate this Agreement in the event that the other Party materially breaches (or threatens to materially breach) this Agreement (i) immediately upon written notice if the breach is not capable of cure, or (ii) if the breach is capable of cure, thirty (30) days after the notifying Party has given the breaching Party written notice specifying such breach and the breach has not been cured within such period. Notwithstanding the foregoing, Service Provider may either suspend the Services for a period of up to 30 days or terminate this Agreement and any outstanding Order Form effective upon written notice to Client if any payment due is not paid to Service Provider more than fifteen (15) days after the specified due date for payment in the Order Form. In the event that following 30 days of suspension, Client has still not paid the outstanding Fees payable, Service Provider may terminate this Agreement immediately on written notice.

    6.2.2. In the event that Service Provider suspends the Services in accordance with section ‎7.2.1 above, Client remains liable to pay Service Provider for all Fees due in respect of any such suspension period.

    6.2.3. Either Party may terminate this Agreement immediately in the event that the other Party (i) ceases to trade (either in whole, or as to any part or division involved in the performance of this Agreement; (ii) becomes insolvent or unable to pay its debts within the meaning of the insolvency legislation applicable to that Party; (iii) a person (including the holder of a charge or other security interest) is appointed to manage or take control of the whole or part of the business or assets of that Party, or notice of an intention to appoint such a person is given or documents relating to such an appointment are filed with any court; (iv) the ability of that Party’s creditors to take any action to enforce their debts is suspended, restricted or prevented or some or all of that Party’s creditors accept, by agreement or pursuant to a court order, an amount of less than the sums owing to them in satisfaction of those sums; or (v) any process is instituted which could lead to that Party being dissolved and its assets being distributed to its creditors, shareholders or other contributors (other than for the purposes of solvent amalgamation or reconstruction), or the equivalent of any of the events, proceedings or steps described above in this Section ‎7.2.3 occurs in relation to a Party under the laws of any relevant jurisdiction.

    6.3. Post-Termination Obligations. Upon expiration or termination of this Agreement for any reason, all rights granted by Service Provider to Client hereunder shall immediately cease and the Subscription Service shall immediately terminate, and Client shall forthwith return to Service Provider (or certify the destruction of) any software, documentation and all embodiments of the System. Each party shall return (or certify the destruction of) the Confidential Information of the other party; provided, however, that Service Provider may retain any data or information of Client to the extent, and for the time period, required for purposes of enforcing Service Provider’s rights hereunder, including without limitation, rights to payment of the Fees. Termination of this Agreement for any reason shall not relieve Client’s obligations hereunder with respect to the payment of any and all Fees that are due and payable as of the effective date of termination and throughout the remainder of the Term. For greater clarity, and without limiting any other remedies available to Service Provider hereunder, if this Agreement terminates before the expiration of the Term other than as a result of Service Provider’s breach of this Agreement, Client shall be liable for the entire balance of the Fees under each Order Form which otherwise would be payable by Client in installments throughout the remainder of each Term, along with any late fees chargeable under Section ‎2.4 above and the entirety of such sums shall be payable in full on the date termination of this Agreement is effective.

    6.4. Survival. Unless expressly specified otherwise hereunder, all provisions which by their nature are intended to survive termination of this Agreement, including, without limitation, Sections ‎3 (“Confidentiality”), 5 (“Intellectual Property”), ‎6.3 (“Post-Termination Obligations”), ‎8 (“Indemnification”), 9 (“Disclaimer of Warranties”),‎ 10 (“Limitation of Liability”), ‎11 (“Governing Law”) and ‎13 (“General”) shall so survive.

  7. REPRESENTATIONS AND WARRANTIES.

    7.1. Client and Service Provider each hereby represent and warrant to the other as follows:

    7.1.1. Legal Authority. (i) It has the full corporate and contractual (if required) rights, power and authority to enter into this Agreement and perform the acts required of it hereunder, (ii) the execution of this Agreement and the performance of its obligations hereunder do not and shall not violate any other agreements to which it is a party; (iii) this Agreement constitutes a valid, legal and binding obligation when executed and delivered.

    7.1.2. Compliance with Laws. It is currently, and will remain throughout the Term, compliant with any and all applicable laws, government rules and regulations, licenses and directives to which it is subject in connection with this Agreement, including without limitation, those relating to privacy laws.

  8. INDEMNIFICATION.

    8.1. Service Provider Indemnity. Service Provider shall indemnify, protect and hold harmless Client, its directors, shareholders, employees, and any related entity of the Client from and against all losses, penalties, fines, damages, liabilities, settlements, awards, judgments costs and expenses, including reasonable management time and legal costs (“Losses”) resulting from or arising out of or in connection with (a) Service Provider’s willful misconduct or fraud; or (b) any claim demand or action of any kind (“Claim”) from a third party that the Subscription Service infringes, misappropriates or otherwise infringes the Intellectual Property Rights of such third party, provided that the foregoing obligations of Service Provider shall not apply with respect to portions or components of the Subscription Service: (i) that are modified after delivery by Service Provider, (ii) combined with other products, processes or materials where the alleged infringement relates to such combination, (iii) where Client continues the allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (iv) where Client’s use of the Subscription Service is not strictly in accordance with this Agreement and all related Documentation. Service Provider shall indemnify, protect and hold harmless Client from and against all Losses arising out of or in connection with any Claim relating to Service Provider’s willful misconduct, fraud and/or gross negligence.

    8.2. Client Indemnity. Client shall indemnify, protect and hold harmless Service Provider, its directors, shareholders, employees, and any related entity of Service Provider from and against any Losses arising out of or in connection with a) Client’s willful misconduct or fraud or (b) any claim demand or action of any kind (“Claim”) from a third party that the Client misappropriates or otherwise infringes the Intellectual Property Rights of such third party.

    8.3. Sole obligation and remedies. The indemnity in section 8.1 sets forth Service Provider’s sole and exclusive obligation to Client with respect to infringement or misappropriation of Intellectual Property Rights of any kind, and Client’s sole and exclusive remedies in relation to the same.

    8.4. Notice and Assistance. A Party indemnified under this Section 8 shall promptly notify the indemnifying Party in writing of any third party claim brought against it and shall render reasonable assistance (at the indemnifying Party's expense) as required.

    8.5. Control of Claims. An indemnifying Party shall be permitted to direct the defense of, and conduct settlement negotiations for, the third party claim, and the indemnified Party shall render reasonable assistance and cooperation (at the indemnifying Party's expense) to the indemnifying party. In no event shall the indemnifying Party settle any claim in a manner that would cause the indemnified Party to incur liability, without the latter's prior written approval.

  9. DISCLAIMER OF WARRANTIES.

    9.1. Save for any specific commitments agreed between the parties in Service Level Agreement:

    (a) Client understands and agrees that the system, subscription service, and any associated materials or information provided by or through Service Provider to the Client are provided on an "as is" and "as available" basis, and that Service Provider hereby disclaims any and all warranties, whether express, implied, or statutory, including without limitation, the implied warranties of merchantability, fitness for a particular purpose and functionality to the maximum extent permitted by law; and

    (b) Client acknowledges and agrees that Service Provider does not represent or warrant that (i) the operation of the system will be uninterrupted or error-free; (ii) information or data provided in connection with the system will be accurate, timely or reliable; or (iii) the system, subscription service or associated materials will meet client's needs or requirements.

    9.2. Service Provider is not and shall not be responsible for any internet or communications networks, facilities, or configurations, and makes no representation or warranty regarding delays, malfunctions, or failures thereof.

  10. LIMITATION OF LIABILITY.

    10.1. Liability Cap. Subject to Section ‎‎11.1.1 and Section ‎11.2, Service Provider’s liability under or in connection with this Agreement, whether arising from contract, negligence or otherwise, shall be limited to the higher of :(i) the amounts actually paid by Client to Service Provider (if any) during the six months immediately preceding the date on which the event or events giving rise to the loss or damage occurs; or (ii) fifty thousand United States Dollars ($50,000).

    10.1.1. Liability Exclusions. Service Provider shall not be liable to Client for any of the following types of loss or damage even if, in each case, Service Provider has been advised of the possibility of such loss or damage: special, indirect or consequential loss; loss of profits; loss of revenue; loss of contracts; loss of anticipated savings; loss of business or investment opportunity loss of use; loss of goodwill or reputation; loss or damage arising from loss, damage or corruption of any data; and damage to any Client systems or software.

    10.2. The exclusions and limitation of liability set out in Sections ‎11.1 and ‎11.2 do not apply to:

    10.2.1. liability arising from death or injury to persons caused by negligence;

    10.2.2.either party’s liability arising as a result of fraud or fraudulent misrepresentation; and

    10.2.3.anything else which cannot be excluded or limited by applicable law, to which no limit applies.

  11. NON-SOLICITATION

    11.1. For the purposes of this Section ‎11, a “Key Employee” shall mean any officer, employee, agent or consultant employed or engaged by Service Provider during the term of this Agreement, who has been engaged in the direct provision of the Services to Client.

    11.2. Client agrees that it shall not, in any capacity, without the prior written consent of Service Provider, at any time during the Term and for a period of six months following expiry or termination of this Agreement, solicit or entice or seek to solicit or entice, away from the employment of Service Provider any Key Employee, whether or not such person would commit a breach of his contract of employment.

    11.3. Client is not restricted from employing or engaging or offering to employ or engage any Key Employee to fill a job vacancy where that Key Employee has responded to a bona fide public advertisement for that job vacancy.

  12. GOVERNING LAW.

    This Agreement shall be governed and construed solely in accordance with the laws of the jurisdiction where the Service Provider is registered, without regard to principles of conflicts of laws. Any conflict or dispute arising out of or related to this Agreement shall be subject to the exclusive jurisdiction of the courts in jurisdiction where the Service Provider is registered (the "Primary Jurisdiction"). In the event of a threatened or actual breach or default by the Client, the Service Provider may, at its sole discretion, seek any legal or equitable remedies available under the laws of the Primary Jurisdiction or any other competent jurisdiction.

  13. GENERAL.

    13.1. Relationship of Parties. This Agreement shall not be construed to create any employment or agency relationship, partnership, or joint venture, nor shall it authorize either Party to enter into any commitment or agreement binding the other Party. Except as expressly set forth herein, nothing in this Agreement shall confer any rights upon any person or entity other than the Parties hereto and their respective successors and permitted assigns.

    13.2. Account. Client must access the System through Client’s account. Client is responsible for creating and managing their usernames and passwords within the System. Client shall immediately notify Service Provider of any unauthorized use of Client’s account or password. Client is fully and solely responsible for the security of Client’s computer system and Client’s account and passwords and all activity on Client’s account, even if such activities were not committed by Client. Service Provider will not be liable for any losses or damage arising from unauthorized use of Client’s account or password.

    13.3. Fabric Analyzer. Delivery of the Product (if applicable) shall be in accordance with the timeframe designated in the applicable Order Form, to the address indicated therein. Delivery related costs and taxes, including without limitation, import duties, taxes and other government charges, are Client’s responsibility and may be added to the Fees. Details of the Product warranty can be found at Product Warranty.

    13.4. Privacy Policy. By using the System, you agree to the Service Provider’s Privacy Policy regarding the collection of personal data.

    13.5. Client Manager. Client shall have reasonable access to a Client Manager who shall serve as Client’s main point of contact with Service Provider. The Client Manager can be a resource for ongoing support and specialized training as reasonably requested by the Client.

    13.6. Assignment. This Agreement and any rights and obligations hereunder may not be assigned, transferred, held on trust, have any security interest granted over them or delegated in whole or in part by Client without the prior written consent of Service Provider. Notwithstanding anything herein to the contrary, all authorized assignees of Client, before having access to the System, must comply with Service Provider’s administrative, verification and infrastructure requirements. Any unauthorized assignment or transfer shall be null and void and constitute a material breach of this Agreement. Service Provider may, in its sole discretion, assign and delegate or sub-contract any of its rights and obligations under this Agreement, including the Agreement itself. All of the terms and conditions of this Agreement shall bind and benefit, and be enforceable by, the respective successors and permitted assigns of the parties hereto.

    13.7. Waiver. A waiver of any right under this Agreement is only effective if it is in writing, and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given. The waiver by either Party of any default or breach under this Agreement shall not constitute a waiver of any other, or subsequent, default or breach.

    13.8. Notices. All notices required under this Agreement must be in writing sent by email, overnight courier, or certified or registered mail, return receipt requested, and (unless sent by email) will be addressed to the receiving Party's address set forth in the Order Form. Either Party may change its address for receipt of notice by notice to the other Party in accordance herewith. All notices shall be deemed given ten (10) business days following the date of mailing or one (1) business day following delivery to an overnight courier or via email.

    13.9. Severability. If any provision of this Agreement is declared invalid by a court of competent jurisdiction, such provision shall be ineffective only to the extent of such invalidity, so that the remainder of that provision and all other provisions of this Agreement shall be valid and enforceable to the fullest extent permitted by applicable law, and, if necessary, the Parties agree to substitute for such invalid provision a valid provision which most closely approximates the intent and effect of the invalid provision.

    13.10. Force Majeure. Neither Client not Service Provider shall be liable for failure to perform any of its respective obligations hereunder (notwithstanding Client’s obligation to pay the Fees) if such failure is caused by an event outside its reasonable control, including without limitation, an act of god, war, natural disaster, fire, flood, terrorism, riot, embargo, fuel or energy shortage, wrecks or delay in transportation, epidemic, pandemic or any other cause beyond its reasonable control. If there is a performance delay due to any such cause, the date of delivery or time for completion shall be extended by a time period reasonably necessary to overcome the delay's effect.

    13.11. Equitable Relief. The Parties hereby acknowledge and agree that the breach of certain provisions of this Agreement, including without limitation those provisions relating to confidentiality and intellectual property, shall cause irreparable harm to the non-breaching Party for which there may be no adequate remedy available at law, and that an affected Party shall be entitled to appropriate equitable relief (including without limitation injunctive relief and specific performance) in the event of any such breach, threatened breach, or intended breach by the other Party. Such remedies shall be in addition to all other remedies available at law or in equity.

    13.12. Publicity. Each Party shall have the right to include a reference to the other Party on its website (logo), marketing literature, labeling and in its promotional materials during the Term of the Agreement. In addition, the Client agrees to provide a quote for usage by the Service Provider on their website and to participate in a video testimonial on the Parties relationship.

    13.13. Amendments. No modifications, additions, or amendments to this Agreement and the Schedules attached hereto shall be effective unless made in writing and signed by a duly authorized representative of each Party.

    13.14. Headings. The section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe, or describe the scope or extent of such section or in any way affect this Agreement.

    13.15. Entire Agreement. This Agreement and the applicable Order Forms constitute the entire agreement and understanding between the Parties with respect to the subject matter set forth herein, and supersede all prior or contemporaneous agreements or understandings, written or oral, concerning such subject matter.

    13.16. Electronic Signatures. Each party agrees that the electronic signatures of the parties to the Order Form are intended to authenticate this Agreement and to have the same force and effect as wet-ink signatures.

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