Brazil Terms & Conditions
TERMS AND CONDITIONS
1.1 This terms and conditions (the “Terms and Conditions”) and the Purchase Document (together the “Agreement”) govern the access and use by the Client of the WGSN Content provided in the Site.
1.4 To the extent there is any conflict between this Agreement and any other terms and conditions, this Agreement shall take precedence.
2.1 The terms hereunder shall be construed in accordance with the following meanings:
“4C” company described above, from the same economic group as WGSN, which holds the patrimonial rights to exploit the WGSN Content in Brazil;
“4C’s Authorized Signatory” any representative of 4C duly authorized to execute the Agreement and related documents;
“Amounts” amounts owed by the Client to 4C as specified in the Purchase Document;
“Client’s Authorized Signatory” any representative of the Client duly authorized to execute legally binding contracts on its behalf;
“Client” natural person, individual legal entity and/or organization, as identified in the Purchase Document;
“Effective Date” the date when the Purchase Document is signed by the parties, constituting the Agreement;
“Purchase Document” purchase document or form which is an integral part of the Agreement, being executed between 4C and the Client to access and use the WGSN Content through the Site;
“Renewal Date” the date when each Renewal Term shall begin;
“Renewal Term” each successive and automatic renewal period after the expiration of the Term, further periods to be equal to the initial Term beginning on each date following the end of the current Term or Renewal Term, as the case may be
“Site” the WGSN website located here: www.wgsn.com and related applications owned by WGSN where WGSN Content is available;
“Term” initial contracted period for access and use of WGSN Content, as established in the Purchase Document;
“User” any employees, consultants or contractors of the Client, expressly nominated by the Client and authorized by 4C to have access to WGSN Content contracted by the Client, or as specified in the Agreement;
“WGSN Content” all the ready and non-personalized data, materials and information accessed through the Site, including visual interfaces, text and written compositions, videos and other audiovisual works, pictorial works such as images, photographs, graphics, pictures, illustrations, and designs, audio recordings and musical compositions, compilations, reports, and any other works of authorship ;
“WGSN” WGSN Limited, company based in London, England, holder of rights of WGSN Content and the Site.
2.2 Any reference to the Agreement in singular includes plural and vice versa, and words referring to one gender include both genders.
3. CLIENT’S OBLIGATIONS
3.2 The Client shall be solely responsible for ensuring that its systems adequately observe the technical requirements to the access of WGSN Content.
3.4 Client may incur and is responsible for all charges associated with connecting to the Site, including all telephone access lines, telephone and computer equipment and any service fees necessary to access the Site.
3.5 The Client declares and warrants that the information and data provided in the Purchase Document are precise and complete.
3.6 The Client shall keep its data updated, and shall inform 4C about any changes immediately by contacting its account manager.
3.7. As part of the registration process, WGSN or 4C shall assign to the Client or, at the discretion of 4C, shall allow the Client to select, a user name and password. Each registration is for a single User only unless otherwise set out in the Purchase Document.
3.7.1 Each additional User appointed by the Client shall be assigned (or selected at the discretion of 4C) a separate user name and password for access to the Sites; provided, however, that for educational institutions Clients, Users are not required to register individually.
3.8 4C and WGSN do not permit any sharing by more than one person of a user name and password or access to the Site through a single name being made available to multiple users on a network; provided, however, that the foregoing restriction does not apply to educational institutions.
3.9 Client agrees that it will not allow others to use a User’s user name and password and it is solely responsible for maintaining the confidentiality and security of each of its User accounts. Client agrees to notify 4C immediately of any known or suspected unauthorized use of any user name and password.
3.10 For the avoidance of doubt, Client is responsible for the actions and/or omissions of each of their respective partners, managers, employees, agents and other representatives who gain access to WGSN Content and/or the Site, whether or not such person is an authorized User.
3.11 Notwithstanding anything else in the Agreement, the WGSN Content and Site must only be used in the course of Client’s business and/or professional environment and for business and/or professional reasons. The WGSN Content and Site are not suitable for consumers and should not be used in such capacity.
4. PAYMENT CONDITIONS
4.1 The Client shall pay the Amounts due to use and have access to WGSN Content, as specified in the Purchase Document.
4.1.1. The Client shall pay the Amounts in full irrespective of the withholding of tax or the deduction of any charges, unless otherwise stated by the parties in writing.
4.1.2. The Client is responsible for the payment of all taxes, charges or fees and contributions of its responsibility, in accordance with the applicable legislation.
4.1.3. The Client acknowledges that access to the Site may not be granted until payment of all due Amounts are received by 4C, and such access prior to payment of the Amounts due shall be granted at the sole discretion of 4C unless otherwise stated on the Purchase Document.
4.2. The Amounts shall be paid by the Client to 4C by the due date(s) specified on the relevant billing document(s). Late payment will result in a late-payment fine of 2% (two percent) and interests of 1% (one percent) per month on the amounts due, calculated pro rata die from the maturity date until the date of effective receipt of the amounts by 4C.
4.3. 4C may suspend the Client’s access to WGSN Content and the Site if the Amounts due are not made within 30 (thirty) days from the due date. 4C also reserves the right to terminate the Agreement as set forth in Clause 9 where payment of all Amounts due are not made within 30 (thirty) days from the due date. No refunds will be provided by 4C in the case of a suspension under this clause, and all Amounts will continue to be due and owing including any related late payment fine and interest calculated under this Agreement.
4.4 The Amounts established in the Purchase Document shall be annually adjusted by applying the positive variation of the IGP-M/FGV index, or legal index that may replace it, , including in case of auto renewal as set forth in Clause 10.1..
4.5 The Amounts are not refundable except as otherwise set out in this Agreement.
4.6. Client’s option to pay the Amounts in installments shall not constitute monthly charges for the purposes of granting access to the Site and use of WGSN Content.
5. WGSN CONTENT
5.1. All intellectual property rights in WGSN Content shall be retained by WGSN, its content providers and their respective rightful owners, and no such rights are assigned or in any other way transferred to the Client or any Users, in full or in part. The Client pledges, on its behalf and on behalf of its Users, not to practice any act or omission that violates the intellectual property rights in WGSN Content, held by WGSN, its content providers or the respective rightful owners, including, but not limited to the abusive appropriation or unauthorized use of the WGSN Content, in full or in part.
5.2. With respect to WGSN Content located on the Site in the “Design Library” (but excluding any WGSN Content which is clearly copyrighted to a third party), 4C hereby grants Client a non-transferable, non-exclusive, limited license to do the following solely for Client’s information, product design, inspiration, development, research and manufacturing purposes: (i) view, download and print such WGSN Content; (ii) create derivative works of pictorial works such as images, photographs, graphics, pictures, illustrations, and designs included within such WGSN Content; and (iii) use Client’s derivative works thereof on or in Client’s products.
5.3. In case of educational institutions, WGSN Content is limited to educational use and any commercial use is forbidden.
5.4. 4C and WGSN disclaim any warranties and liabilities in relation to WGSN Content, including any warranties of title, merchantability or fitness for any particular purpose, and such permitted use of WGSN Content in accordance with this Clause 5 is solely at Client’s own risk and liability.
5.5 Save in respect to WGSN Content located on the Site in the “Design Library” (but excluding any WGSN Content which is clearly copyrighted to a third party), the following are strictly forbidden and represent a breach of this Agreement, unless prior written consent is obtained from a 4C Authorized Signatory or the relevant third party content provider:
(i) Incorporation of WGSN Content in promotional items and products (such as greeting cards, t-shirts, postcards, credit cards, posters, phone cards, templates, CD covers, board games and calendars), magazines, newspapers, advertising, editorials, catalogs, flyers, brochures, disposable packaging, book covers, and educational textbooks;
(ii) Incorporation of WGSN Content in any electronic or digital materials including screensavers, electronic greeting cards, websites, broadcast videos, and multimedia including film and video, and CD ROMs;
(iii) Resale or any other way of commercialization of WGSN Content in any form;
(iv) Incorporation of names or likenesses of individuals from WGSN Content on or in Client’s products or services;
(v) Incorporation of distinctive locations, buildings, businesses, personal property or products from WGSN Content in Client’s products or services;
(vi) Use of 4C’s, WGSN’s or third party’s trademarks, trade names or service marks on or in Client’s products or services; or
(vii) Use, or permitting the use of WGSN Content or other information on the Site for generating any statistical information which may be sold, rented, published, furnished or in any manner provided to a third party;
5.7. Any requests to republish or redistribute Content should be addressed to email@example.com and should not be considered authorized until validly approved in writing by 4C or WGSN.
5.10. Certain WGSN Content that is licensed from third parties may be subject to additional guidelines or rules that will be clearly posted on the Site. Client and Users are also subject to any such guidelines and rules.
6. ACCESS AUTHORIZATION
6.2 The access and use of WGSN Content on behalf of an educational institution is strictly limited to current students, faculty and staff of the institution; no alumni may be granted access.
6.3. The WGSN Content is protected by trademarks, copyrights, and other intellectual property rights owned by WGSN or its content providers. Client agrees not to misuse in any way the WGSN Content, including any infringement of trademarks, copyrights or other intellectual property rights comprised in the WGSN Content.
6.4. Client agrees not to use the Site for any illegal, unethical, fraudulent, misleading, or objectionable purpose or in breach of any legislation, regulation, or agreement.
6.7 Client agrees to hold harmless and indemnify 4C and WGSN, and their respective partners, managers, employees, agents and other representatives for any costs, losses, liabilities and expenses (including legal fees and taxes) incurred or suffered in connection with: (i) breach of the Agreement by Client or any User; (ii) misuse of the Site or the WGSN Content; or (iii) unauthorized use of Client’s or User’s user name and password.
7. WARRANTIES AND LIMITATION OF LIABILITY
7.1. Client agrees that WGSN Content is provided only for general information and is not intended to address particular requirements of Client. In particular, WGSN Content does not constitute any form of advice, recommendation or arrangement by WGSN or 4C and shall not be relied upon by Client or Users in making (or refraining from making) any specific investment or other business. The use of WGSN Content or any portion thereof in making any such decision shall be Client’s and/or User’s exclusive responsibility.
7.2. Under no circumstances shall 4C’s, WGSN’s and their content providers’ aggregate liability to the Client under this Agreement exceed the Amounts equivalent to a twelve-month access.
7.3. The provisions of this Clause 7 shall remain in force and effect for indeterminate term, notwithstanding termination or expiry of the Agreement.
8. CHANGES TO SITE AND AVAILABILITY OF THE SITE
8.1. 4C and WGSN will deploy antivirus software across its Site, among other measures to ensure a good working order of the Site, but shall not be held responsible for any virus, errors or interruptions commonly verified in websites.
8.2. Client agrees that the Site, including WGSN Content is provided on an “as is” and “as available” basis, and 4C and WGSN do not guarantee its accuracy, timeliness, completeness, performance or fitness for any particular purpose.
8.3. Client agrees that, as part of its policy of updating and improving the Site, WGSN reserves the right, at its discretion, to make changes to any part of or the whole of the Site (including by way of substitution).
8.4 WGSN shall use its reasonable endeavours to provide reliable access to the Site, provided that 4C and WGSN do not undertake or warrant that access to the Site will be uninterrupted.
8.4.1. The Client shall promptly report any fault in relation to the access to the Site by telephone or electronic mail to WGSN at the appropriate numbers or addresses shown on the Site. Upon receipt of a fault report, WGSN will endeavour to take all proper steps without undue delay to correct the fault.
8.4.2. 4C and WGSN do not undertake to provide any technical or user support in relation to any hardware (including peripherals), software, products or services used by the Client to access the Site.
8.5 From time to time, WGSN may:
(i) temporarily suspend for the purpose of emergency repair, maintenance or improvement, all or part of the Site without notice;
(ii) temporarily suspend all or part of the Site for scheduled support and maintenance by providing notifications and giving reasonable notice of such suspensions; and/or
(iii) vary the technical specification of the Site for operational or any other reason provided that there is no material detriment to the operation of the Sites.
8.6 Client acknowledges that there are special risks attached to the transmission of information by electronic, online or similar means and that 4C and WGSN are not responsible for the loss or corruption of information in transmission by these means.
9.1. Either party may terminate the Agreement with immediate effects by serving a written notice to the other:
9.1.1. if the other party commits a material breach of the Agreement which is not remediable, or is not remedied within 14 (fourteen) days after being required by notice to do so; or
9.1.2. if the other party (a) is declared insolvent or bankrupt; (b) makes a bankruptcy order, proposes any composition with its creditors, in court or out-of-court; (c) is appointed with an extrajudicial intervention; or (d) gets approval for liquidation or dissolution.
9.2. In the event of termination by 4C pursuant to this Agreement, there shall be no refund of any Amounts paid by Client. In this case, Client shall bear with the payment of the due amounts and make the payment of all remaining amounts of the Agreement, in the stated period of 30 (thirty) days counting from the termination date.
9.3 In the event of termination by Client pursuant to Clauses 8.1., 4C shall refund the proportion of the Amounts that have already been paid by the Client pro rata for the remainder of the Term or Renewal Period, as the case may be.
10. TERM AND AUTOMATIC RENEWAL
10.1 Without prejudice of the events of suspension of the access and early termination stated in the Agreement, the Agreement shall remain in force and effect during the Term and shall be automatically renewed on every Renewal Date unless terminated by the Client by providing written notice not less than 90 days’ prior to the end of the existing Term to firstname.lastname@example.org.
10.2 In the event that Client desires to terminate the Agreement before the end of Term or the Renewal Term, Client shall send 4C a written notice expressing such intention, in accordance with Clause 13. In such case, Client shall bear with the payment of all due and remaining amounts of the Agreement within thirty (30) days of the receipt of the notice by 4C.
11. MODIFICATIONS TO THE AGREEMENT
11.1. In the event that the Client is acquired by or acquire a third party which itself possesses a subscription to WGSN Content, with effect from expiry of either the Client’s or the third party’s Term or Renewal Term, whichever occurs soonest, the Parties may agree to replace or amend this Agreement to reflect the increased number of Users and the accompanying increase in the Amounts.
12. CONSEQUENCES OF TERMINATION OF THE AGREEMENT
12.1. Upon any expiration or termination of the Agreement, or suspension of the access, all rights and licenses granted herein shall terminate, except that Client shall have the right to continue to manufacture and sell products that incorporate WGSN Content in accordance with the Agreement and that were designed prior to such expiration, termination or suspension. The foregoing right shall not apply to access granted to educational institutions and respective Users.
13. NOTICES AND COMMUNICATIONS
13.1. Except as otherwise set forth in the Agreement, notices shall be given in writing by mail through certified letter; courier, or email; all with return receipt to the addresses contained in the Purchase Document, or other addresses and e-mails that might be informed by the party, in writing. The notices by e-mail from the Client to 4C shall be sent to email@example.com. Notices shall be deemed received: (i) if delivered by mail, on the date of confirmation of the receipt notice by the addressee; (ii) if given by e-mail, on the date when the email confirmation is received; or (iii) if delivered by courier, on the date of confirmation of receipt.
13.2. 4C and/or WGSN may also give notices to the Client via the Site, and such notices shall be deemed effective on the date it first appears on the Site.
14.1. “Confidential Information” comprises all non-public information in any form, furnished or made available in connection with this Agreement by or on behalf of one party (“Disclosing Party”) to the other (“Receiving Party”) which is marked confidential, restricted, or which would be reasonably understood by a person in the Receiving Party’s position to be confidential.
14.2 Save as expressly permitted under Clause 14.3 below, the Receiving Party will keep confidential all terms of the Agreement, as well as any other Confidential Information disclosed to it by the Disclosing Party.
14.3. The provisions of Clause 14.2 shall not apply to any information which (i) is or becomes public knowledge other than by breach of clause 14.2; (ii) is in the possession of the Receiving Party without restriction in relation to disclosure before the date of receipt from the Disclosing Party; (iii) is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure; (iv) is independently developed without access to the Confidential Information; or (v) is required to be disclosed by operation of law, government regulation, or order of a Court of competent jurisdiction, providing that the Receiving Party gives a prior written notice of such required disclosure to the other party and solely to the extent established in such law, government regulation or Court order.
14.4. The terms of this Clause shall remain in force and effect for an indeterminate term, notwithstanding termination or expiry of the agreement.
15. ANTI-BRIBERY AND ANTICORRUPTION
15.1 Client warrants on its behalf and on behalf of its Users, that it shall (i) comply with all applicable laws, statutes and regulations relating to anti-bribery and anti-corruption including but not limited to Brazilian Federal Law n. 12,846/2013; (ii) comply with such of 4C’s and WGSN’s anti-bribery and anti-corruption policies as are notified from time to time; and (iii) promptly report to 4C and/or WGSN any request or demand for any undue financial or other advantage of any kind received in connection with the performance of this Agreement.
15.2. Breach of this Clause shall constitute grounds for immediate termination of the Agreement by 4C with cause, regardless of any previous notice.
16. FINAL PROVISIONS
16.2 The failure or delay by WGSN to enforce any provisions of this Agreement shall not be construed as novation or waiver of any of WGSN’s rights or operate as a waiver of any subsequent breach.
16.3. The Agreement shall be governed by, and construed in accordance with the laws of the Federative Republic of Brasil. The parties elect the Court of the City of Sao Paulo, State of Sao Paulo, to settle any dispute which may arise out of, under, or in connection with the Agreement.
16.4. Client may not assign, sub-license or otherwise transfer any of its rights and obligations under the Agreement without the prior written agreement of a 4C Authorized Signatory.
16.5. Client hereby grants 4C and/or WGSN authorization to use the Client’s name and logo in 4C’s or WGSN’s marketing material, including publication on 4C’s and WGSN’s website.
16.6. Neither party will be held in breach of the Agreement in the event of any delay or failure to perform its obligations by reason of an event or sequence of events beyond a party’s control preventing or delaying it from performing its obligations under the Agreement (“Force Majeure”).
16.6.1. If, due to Force Majeure, a party is unable to perform a material obligation and/or is delayed in or prevented from performing its obligations, it shall promptly notify the other Party of the Force Majeure. If the delay or the inability to perform the obligation persists for a continuous period of more than thirty (30) days, either party may terminate the Agreement on notice.
16.6.2. The provisions of this Clause 16.5 shall not be relied upon in relation to the inability to pay.
16.7. In the event that any provision of the Agreement is held to be invalid or unenforceable, the remaining provisions of the Agreement shall remain in full force and effect.
16.8. Notwithstanding termination or expiry of the Agreement, any provisions in the Agreement that by their nature are intended to survive expiration or termination of the Agreement shall continue to have full force and effect.
16.9. The official version of this Agreement is in the Portuguese language. Any translations of this Agreement are provided merely for the convenience of the Client and shall not be legally binding. In the event of any conflict between the Portuguese language version and any translations, the Portuguese version will prevail.
In witness whereof, the Parties hereto execute this instrument in two (2) counterparts having the same substance and form, along with the witnesses set out below, who witnessed everything.