Ascential Inc. (formerly WGSN Inc.) Mindset Terms & Conditions
Mindset Terms & Conditions
Effective 1 December 2019
- 1. Definitions
“Affiliate” means any person or entity that directly or indirectly controls, is controlled by, or is under common control with another person or entity.
“Company” has the meaning given to that term in the Order Form.
“Company Materials” means all materials, equipment and tools, drawings, specifications and data supplied by the Company to WGSN.
“Company Undertakings” has the meaning given to that term in the Statement of Services.
“Content” means 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.
“Contract” has the meaning given to that term in the Order Form.
“Contract End Date” has the meaning given to that term in the Order Form.
“Deliverables” has the meaning given to that term in the Statement of Services.
“Force Majeure” means an event or sequence of events beyond a party’s reasonable control preventing or delaying it from performing its obligations under the Contract and includes, but is not limited to war, terrorism, riot or civil commotion, strikes, lock outs or other industrial action, acts of or restrictions imposed by government or public authority, a party becoming at risk of, or being placed on, a sanctions list or becoming a “designated person” on such sanctions list, failures of supply of services, explosion, fire, flood, natural disaster and breakdown or failure of equipment.
“Intellectual Property Rights” means all patents, rights to inventions, utility models, copyrights (including in software), trademarks, service marks, trade, business and domain names, trade dress rights, rights in goodwill or to sue for passing off, unfair competition rights, design rights, data and database rights, rights in confidential information (including know-how and trade secrets), publicity rights, and any other proprietary rights, in each case whether registered or unregistered, and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.
“Order Form” means the purchase order form signed by WGSN and the Company in relation to the Services.
“Services” means the advisory services described in the Statement of Services.
“Statement of Services” means the statement of services issued to the Company together with the Order Form.
“WGSN” means WGSN, Inc., a Delaware corporation.
- 2. Basis of Contract
The Order Form constitutes an offer by the Company to purchase services in accordance with the Statement of Services and these terms and conditions. The Order Form shall only be deemed to be accepted when WGSN issues written acceptance of the Order Form at which point and on which date the Contract shall come into existence. The Contract shall continue until the Contract End Date, unless terminated earlier in accordance with paragraph 9 below.
These terms and conditions apply to the Contract to the exclusion of any other terms that the Company seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. Provision of services to the Company does not constitute acceptance of any of the Company’s terms and conditions and does not serve to modify the terms of the Contract.
- 3. Supply of Services
WGSN shall supply the Services to the Company from the Contract Start Date in accordance with the Contract. In supplying the Services, WGSN shall:
- a. perform the Services with reasonable care and skill;
- b. use reasonable efforts to perform the Services in accordance with the service description set out in the Statement of Services; and
- c. observe all reasonable health and safety rules and regulations and security requirements that apply at any of the Company’s premises and have been communicated to WGSN, provided that WGSN shall not be liable under the Contract if, as a result of such observation, it is in breach of any of its obligations under the Contract.
The Services will be completed by delivering the Deliverables to the Company. The acceptance of Deliverables by the Company will constitute confirmation that the Deliverables and all WGSN requirements have been completed.
The Company agrees to accept or reject the Deliverables within 3 days of delivery. Any rejection of the Deliverables by the Company must be reasonable and in writing containing an express reference to the provision of the Statement of Services which has not been delivered. WGSN will then have 7 days to carry out any appropriate amendments to the Deliverables and resubmit them for approval. If the Company fails to accept or reject the Deliverables within 3 days of delivery the Deliverables and WGSN requirements shall be deemed to have been accepted.
Each Party shall comply with all applicable laws, statutes, regulations from time to time in force, provided that neither party shall not liable under the Contract if, as a result of such compliance, it is in breach of any of its obligations under the Contract.
- 4. Company obligations
The Company shall co-operate with WGSN in all matters relating to the Services and shall comply with the Company Undertakings. If WGSN’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Company or failure by the Company to perform any relevant obligation (the “Company Default”):
- a. WGSN shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Company remedies the Company Default, and to rely on the Company Default to relieve it from the performance of any of its obligations to the extent the Company Default prevents or delays the WGSN’s performance of any of its obligations;
- b. WGSN shall not be liable for any costs or losses sustained or incurred by the Company arising directly or indirectly from WGSN’s failure or delay to perform any of its obligations as set out in this paragraph 4; and
- c. the Company shall reimburse WGSN on written demand for any costs or losses sustained or incurred by WGSN arising directly or indirectly from the Company Default.
- 5. Charges and payment
In consideration for the Services, the Company shall pay to WGSN a non-refundable fee as specified in the Order Form (the “Fee”). The Fee shall be payable on such terms as are specified in the Order Form, and is not subject to any deductions, credits or other set-offs.
The Fee shall be exclusive of out-of-pocket and travel expenses incurred by WGSN. The Company will reimburse WGSN for all pre-approved out-of-pocket and travel expenses within 30 days of receipt of an invoice from WGSN and payment shall not be subject to any acceptance of the Deliverables.
The Fee is exclusive of any and all applicable taxes. The Company is responsible for any taxes that the Company is obligated to pay or that WGSN may collect from the Company or may be liable to pay in connection with the Contract, other than taxes on WGSN’s income.
Without prejudice to any other rights and remedies available to WGSN, WGSN shall be entitled to charge the Company interest on any overdue amount under the Contract at the lesser of the prime interest rate (as quoted in the Wall Street Journal, Eastern Edition) plus 2% and the maximum amount permitted under applicable law, accruing on a daily basis from the due date until the date of actual payment of the overdue amount whether before or after judgment and compounding every 90 days.
- 6. Intellectual property
Subject to the terms of this Contract, the Company hereby grants WGSN a fully paid-up, worldwide, non-exclusive, royalty-free, non-transferable (except as set forth in paragraph 13(f)) license to copy, modify, and prepare derivative works based on the Company Materials for the term of the Contract for the purpose of providing the Services to the Company in accordance with the Contract. WGSN acknowledges that as between Company and WGSN, the Company is and will be the exclusive owner of all right, title and interest in the Company Materials, including all Intellectual Property rights therein and thereto.
The Company gives WGSN permission to use the Company’s name and logo in WGSN marketing material, including publication on the WGSN website. Neither party shall issue any press release regarding the subject matter herein without the prior written approval of the other party.
Subject to the terms of this Contract, WGSN hereby grants the Company a non-transferable, non-exclusive, perpetual, worldwide, limited license (without the right to sub-license) to use the Deliverables (and any Content included therein) for internal business purposes only. The Company may provide pictorial works such as images, photographs, graphics, pictures, illustrations and designs included within the Deliverables to its suppliers, vendors, independent contractors and consultants for the sole purpose of aiding the Company with its product design, development, inspiration, research and manufacturing requirements only and subject to the Company being responsible at all times for the actions of such parties.
WGSN reserves all rights in and to the Services and the Deliverables, and any Content included therein (collectively, the “WGSN Materials”), not expressly granted to the Company pursuant to this Contract. The Company acknowledges that as between the Company and WGSN, WGSN is and will be the exclusive owner of all right, title and interest in the WGSN Materials, including all Intellectual Property Rights therein and thereto.
For the avoidance of doubt no assignment or transfer of any kind is made of any Intellectual Property Rights contained in or referred to in the Deliverables.
- 7. Indemnity
The Company agrees to indemnify and defend WGSN and its employees, agents, officers, directors and other representatives from and against all damages, expenses (including attorneys’ fees and court costs), losses, liabilities, obligations, claims, demands, suits, actions, investigations, proceedings, and causes of action (collectively, “Losses”) which WGSN may suffer or incur, arising out of or in connection with the Company’s breach of the Contract or misuse of Content or the Deliverables.
- 8. Limitations of liability
ALL CONTENT IS PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND EITHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, WARRANTY OF TITLE, OR WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY. ANY RELIANCE BY THE COMPANY UPON ANY ADVICE, OPINION, STATEMENT OR OTHER INFORMATION DISPLAYED OR DISTRIBUTED THROUGH THE DELIVERABLES IS AT THE COMPANY’S OWN RISK.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, (a) NEITHER WGSN NOR ANY OF ITS CONTENT PROVIDERS SHALL BE LIABLE FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR LOSS OF DATA OR DIMINUTION IN VALUE OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER CAUSE OF ACTION REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT WGSN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE; AND (b) IN NO EVENT WILL WGSN’S TOTAL LIABILITY TO THE COMPANY FOR ALL LOSSES ARISING OUT OF OR RELATING TO THE CONTRACT OR THE DELIVERABLES, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER CAUSE OF ACTION, EXCEED THE FEE.
- 9. Termination
Without affecting any other right or remedy available to it, either party to the Contract may terminate it with immediate effect by giving written notice to the other party in the event that the other:
- a. commits a material breach of the Contract that is not remediable, or (where the breach is capable of remedy) is not remedied within 14 days after being required by notice to do so; or
- b. becomes insolvent or unable to pay its debts as they mature, (ii) makes an assignment for the benefit of its creditors, (iii) is dissolved or liquidated, or takes any corporate action for those purposes, (iv) has a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business, or (v) seeks relief or if proceedings are commenced against that other party, or on its behalf, under any bankruptcy, insolvency or debtors’ relief law and those proceedings have not been fully stayed within seven days or vacated or set aside within 30 days after the commencement of those proceedings.
Without affecting any other right or remedy available to it, WGSN may terminate the Contract with immediate effect by giving written notice to the Company if the Company fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 3 days after being notified in writing to make such payment.
On termination of the Contract for whatever reason:
- a. where WGSN is the terminating party:
- i. the Fee shall become immediately due and payable and WGSN may submit an invoice for the Fee and all out-of-pocket and travel expenses incurred which shall be payable immediately on receipt; and
- ii. the Company shall immediately pay all of WGSN’s outstanding unpaid invoices and interest; or
- b. where the Company is the terminating party:
- c. the Company shall immediately pay all of WGSN’s outstanding unpaid invoices and interest; and
- d. WGSN may submit an invoice for Services supplied and all out-of-pocket and travel expenses incurred, which shall be payable immediately on receipt; and
- e. termination of the Contract shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
- 10. Confidentiality
“Confidential Information” means all non-public information in any form, furnished or made available in connection with the Contract by or on behalf of one party, including for the avoidance of doubt the Content and Deliverables, (“Disclosing Party”) to the other (“Receiving Party”) which is marked confidential, restricted, or would be understood by a reasonable person in the Receiving Party’s position to be confidential.
Except as expressly permitted, the Receiving Party will keep confidential the terms of the Contract as well as any other Confidential Information disclosed to it by the Disclosing Party; provided that WGSN may disclose the terms of the Contract to any potential or actual financing source, acquirer, attorney, accountant or agent.
The provisions of this paragraph 10 shall not apply to any information which (a) is or becomes public knowledge other than by breach of this paragraph 10; (b) is in the possession of the Receiving Party without restriction in relation to disclosure before the date of receipt from the Disclosing Party; (c) is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure; (d) is independently developed without access to the Confidential Information; or (e) if the Receiving Party discloses the Disclosing Party’s Confidential Information to its employees, consultants, contractors or other representatives performing services in connection with the Contract, provided, that (i) such persons have a need to know and have been notified that such information is Confidential Information; and (ii) such persons have entered into binding obligations of confidentiality no less restrictive than those of the Contract.
The Receiving Party shall be entitled to disclose any part of the Confidential Information to the extent that it is legally required to do so by any government authority or court of competent jurisdiction, provided that the Receiving Party shall notify the Disclosing Party of any required disclosure. The Disclosing Party shall be entitled to seek injunctive relief for any violation of this paragraph 10.
- 11. Force Majeure
A party will not be liable if delayed in or prevented from performing its obligations under the Contract due to Force Majeure, provided that it promptly notifies the other of the Force Majeure. 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 for a continuous period of more than 7 days, either party may terminate the Contract on notice without any liability.
The provisions of this paragraph 11 shall not be relied upon in relation to any obligation to pay under the Contract.
- 12. How we may use your personal information
- 13. General
- a. Governing law: The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the laws of the State of New York without giving effect to any choice or conflict of law provisions or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of New York.
- b. Jurisdiction: Each party irrevocably and unconditionally agrees that the federal courts of the United States of America and the courts of the State of New York in each case located in New York County shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims), and each party irrevocably and unconditionally agrees not to commence any legal action or proceeding arising out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims) except in such courts. The parties agree that a final judgment in any such dispute or claim shall be conclusive and may be enforced in other jurisdictions by suits on the judgment or in any other manner provided by law.
- c. Entire Agreement: The Contract together with the Order Form and Statement of Services, constitutes the entire agreement between the Company and WGSN in relation to the Services and the Deliverables and supersedes all prior agreements with respect to the subject matter hereof. No waiver by WGSN of any of the provisions of the Contract is effective unless explicitly set forth in writing and signed by WGSN. Any failure or delay by WGSN to enforce any provisions of the Contract shall not be construed as a waiver of any of WGSN’s rights or operate as a waiver of any subsequent breach.
- d. Severability: If any term or provision of the Contract shall be held to be invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining terms or provisions shall not be affected.
- e. Notices: Except as otherwise set forth herein, all notices required or permitted to be given pursuant to the Contract to the Company shall be sent by e-mail to the Company’s designated email address(es) contained in the Order Form or as otherwise agreed in writing between the parties. All notices required or permitted to be given pursuant to the Contract to WGSN shall be sent by e-mail to: email@example.com. Such notices (if given by e-mail) shall be deemed effective three hours from transmission. In addition, a party may also give notice in writing and will be deemed to be delivered and received (i) when personally delivered; (ii) on the third business day after the date on which deposited with a nationally recognized overnight delivery service, sent to the address set forth on the Order Form or such other address as a party notifies to the other party.
- f. Assignment: The Company may not assign, sub-license or otherwise transfer any of its rights or obligations under the Contract, by operation of law or otherwise. WGSN may at any time assign, sub-license or otherwise transfer any or all of its rights under the Contract to an Affiliate or to a successor in connection with the sale of all or substantially of all its equity interests or assets related to this Contract. Any purported assignment in violation of this paragraph 13(f) is void.
- g. Anti-Bribery:
- i. Each of WGSN and the Company shall comply with all applicable U.S. and non-U.S. laws, statutes and regulations relating to anti-bribery and anti-corruption including but not limited to the U.S. Foreign Corrupt Practices Act of 1977, as amended from time to time, and the U.K. Bribery Act 2010, as amended from time to time;
- ii. the Company shall (A) comply with such of WGSN’s anti-bribery and anti-corruption policies as are notified to the Company from time to time; and (B) promptly report to WGSN any request or demand for any undue financial or other advantage of any kind received by or on its behalf in connection with the performance of the Contract. Breach of this paragraph (g) shall be deemed a material breach of the Contract.
- h. Third party Rights: The Contract is for the sole benefit of the parties and their respective successors and permitted assigns and, except as provided elsewhere in the Contract, nothing herein is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of the Contract.
- i. Relationship of the Parties: The relationship between the parties is that of independent contractors. Nothing contained in the Contract shall be construed as creating an agency, partnership or joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have the authority to contract for or bind the other party in any manner whatsoever.