WGSN GmbH Terms & Conditions — redundant
Terms & Conditions
Effective from August 2016
This Terms and Conditions document (the Agreement) is a legal contract between the client organization or individual (Client) identified in a WGSN order form (Order Form), and WGSN GmbH, a company incorporated in Cologne, Germany with registration number HRB 84654 and whose registered office is at WGSN GmbH, Alte Ziegelei 2-4, 51491 Overath, Germany (WGSN), that governs your use of any of WGSN’s online services (and the applications available thereon) available at the websites and related apps (Sites) for which access has been purchased pursuant to the Order Form including but not limited to WGSN’s fashion review service StyleTrial, WGSN Trends Services, WGSN’s INstock and related data feed products, and WGSN’s mobile applications (together the Services). Your acceptance of the Order Form constitutes an application to use the Services pursuant to the terms of this Agreement, and by clicking the “I agree” button on the Sites, accessing or using the Services, or signing the Order Form, you confirm your agreement to be bound hereby. To the extent there is any conflict between this Agreement and any other terms and conditions, this Agreement shall take precedence.
If you are entering into this Agreement on behalf of an organization, you represent and warrant that you have the authority to bind such organization. Any person who has access to the Services by virtue of being designated by the Client as an individual user of the Services (an Authorized User) similarly agrees to be bound hereby. If you are entering into this Agreement on behalf of an educational institution, then your Authorized Users are strictly limited to students, faculty and staff; no alumni may be granted access.
All references to “us,” “our” and “WGSN” in this Agreement are intended to refer to WGSN (as defined above) and its affiliates. All references to “you,” “your” and “user” in this Agreement are intended to refer to the Client and all Authorized Users.
1. Use of Services
(a) WGSN grants you a, non-transferable, non-exclusive, limited right to access the Services, provided that you fully comply with the terms and conditions of this Agreement.
(b) You agree that you will use data, materials and information that comprise the Services, 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 (Content) that you access through use of the Services, only in accordance with the terms and conditions of this Agreement.
(c) Certain areas of the Sites may only be open to you if you are a paid subscriber to that portion of the Site(s) or will only be available for a limited period of time. Any time limit applying to your access and use of any of the Sites will be set out in the Order Form.
(d) Certain Content that we license from third parties may be subject to additional guidelines or rules that will be clearly posted on the Sites. You are also subject to any such guidelines and rules.
(e) The Content is protected by trademarks, service marks, copyrights, and other intellectual property rights owned by WGSN or its Content providers. You agree not to misuse in any way the Content or the Services, including any infringement of trademarks, service marks, copyrights or other intellectual property rights comprised in the Content or Services.
(f) You agree not to use the Services for any illegal, unethical, fraudulent, misleading, or objectionable purpose or in breach of any law, regulation, or agreement, including the Privacy and Electronic Communications Regulations 2003 or other regulations regarding unsolicited email marketing.
(g) You agree not to rent, lease, loan, sell, allow, or otherwise provide access to the Services to anyone other than Client and Authorized Users.
(h) You acknowledge and agree that the Content and Sites must only be used in the course of a business and/or professional environment and for business and/or professional reasons. The Content and Sites are not suitable for consumers and should not be used in such capacity.
(i) The Client agrees to take necessary measures to procure and ensure the compliance by its Authorized Users with the terms and conditions set forth in this Agreement governing the use of the Services.
2. Changes to Sites and Availability of the Sites
(a) As part of its policy of updating and improving the Sites, WGSN reserves the right, at its discretion, to make changes to any part of or the whole of the Sites (including by way of substitution).
(b) WGSN shall use its reasonable endeavours to provide reliable access to the Sites, provided that WGSN does not undertake or warrant that access to the Sites will be uninterrupted The Client shall promptly report any fault in relation to the access to the Sites by telephone or electronic mail to WGSN at the appropriate numbers or addresses shown on the Sites that WGSN may from time to time provide. Upon receipt of a fault report, WGSN will endeavour to take all proper steps without undue delay to correct the fault. WGSN does 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 Sites.
(c) From time to time, WGSN may:
(i) temporarily suspend for the purpose of emergency repair, maintenance or improvement, all or part of the Sites without notice;
(ii) temporarily suspend all or part of the Sites for scheduled support and maintenance by providing notifications and giving reasonable notice of such suspensions; and/or
(iii) vary the technical specification of the Sites for operational or any other reason provided that there is no material detriment to the operation of the Sites.
(d) The Client acknowledges that there are special risks attached to the transmission of information by electronic, online or similar means and that WGSN is not responsible for the loss or corruption of Information in transmission by these means, unless such loss is caused intentionally or gross negligently by WGSN.
(a) The Client warrants that the information the Client has given in the Order Form is accurate and complete.
(b) To use the Sites, you must register and provide WGSN with accurate and complete registration information.
(c) It is your responsibility to update your registration data and promptly inform WGSN of any changes to your information by contacting your account manager.
(d) For subscription services, as part of the registration process, WGSN shall assign to the Client or, at the discretion of WGSN, 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 Order Form.
(e) Each additional Authorized User appointed by the Client shall be assigned (or selected at the discretion of WGSN) a separate user name and password for access to the Sites; provided, however, that for educational institutions, Authorized Users are not required to register individually.
(f) WGSN does not permit any sharing by more than one person of a user name and password or access to the Sites 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.
(g) You agree that you will not allow others to use your user name and password and you are solely responsible for maintaining the confidentiality and security of your account. You agree to notify WGSN immediately of any known or suspected unauthorized use of your user name and password.
4. Fees; billing
(a) You agree to pay to WGSN, in advance, the non-refundable fee for access to the Services as specified in the Order Form (the Fee). All invoices in respect of the Fee are due and payable by you upon receipt of the relevant invoice unless otherwise stated on the Order Form. You acknowledge that access to the Services may not be granted until payment of any Fee is received by WGSN, and such access prior to payment of the Fee shall be granted at the sole discretion of WGSN unless otherwise stated on the Order Form.
(b) Unless otherwise stated, you are responsible for any taxes that you are obligated to pay or that WGSN may collect from you in connection with your purchase of the Services. If you do not pay the sales or other taxes or fees on a transaction, you will be responsible for the taxes or fees in the event they are later determined to be payable on the Services, and WGSN reserves the right to collect the taxes or other related fees from you at any time. In certain jurisdictions, WGSN may be required to collect and remit sales tax in connection with your purchase of Services. Any such taxes will be added to the agreed Fee and reflected on your invoice.
(c) In addition to the charges set forth above, you may incur and are responsible for all charges associated with connecting to the Sites, including all telephone access lines, telephone and computer equipment and any service fees necessary to access the Sites.
(d) For subscription services, you acknowledge and agree that WGSN shall with effect from each anniversary from the start of your subscription be entitled to increase the Fee by an amount equal to the higher of: i) the annual Retail Prices Index, or ii) 3%, without prior notification to you.
(e) Without prejudice to any other rights and remedies available to WGSN, WGSN shall be entitled to charge you statutory interest (at the then current rate) on any overdue amount under this Agreement, 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.
(f) If you are acquired by or acquire a third party which itself possesses a subscription to a Site, with effect from expiry of either your subscription or the third party’s subscription (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 Fee.
5. Usage of content
(a) With respect to Content located on the Sites in the “Design Library” (but excluding any Content which is clearly copyrighted to a third party), WGSN hereby grants you a non-transferable, non-exclusive, limited license to do the following, solely for your information, product design, development, inspiration, research and manufacturing purposes: view, download and print such Content and create derivative works of pictorial works such as images, photographs, graphics, pictures, illustrations, and designs included within the Content and use your derivative works on or in your products; provided, however, that in the case of subscribing educational institutions and their Authorized Users, your use is limited to non-commercial, educational use only. Please note that WGSN disclaims all warranties in relation to such Content including any warranties of title, merchantability, or fitness for a particular purpose, and such permitted use in accordance with this paragraph is solely at the Client’s own risk.
(b) Save in respect to Content located on the Sites in the “Design Library” (but excluding any 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 WGSN or the relevant third party Content provider:
(i) Incorporation of Content in promotional items and products (including but not limited to greeting cards, t-shirts, postcards, posters, phone cards, credit cards, templates, CD covers, cassette covers, board games, and calendars), magazines, newspapers, advertising, editorials, catalogs, flyers, brochures, disposable packaging, book covers, and educational textbooks;
(ii) Incorporation of Content in any electronic or digital materials including screensavers, electronic greeting cards, websites, broadcast video, and multimedia including film and video, and CD ROMs;
(iii) Resale of Content in any form;
(iv) Incorporation of names or likenesses of individuals from Content on or in your products;
(v) Incorporation of distinctive locations, buildings, businesses, personal property or products from Content on or in your products;
(vi) Use of WGSN or third party trademarks, trade names or service marks on or in your products; or
(vii) Use, or permitting the use of, Content or any other information on the Sites for generating any statistical information which is sold, rented published, furnished or in any manner provided to a third party.
(c) Distribution of Content to parties outside of the Client organization. You may provide pictorial works such as images, photographs, graphics, pictures, illustrations, and designs included within Content to your suppliers, vendors, independent contractors and consultants for the sole purpose of aiding you in connection with your product design, development, inspiration, research and manufacturing requirements only, subject to you being responsible at all times for the actions of such suppliers, vendors, independent contractors and consultants, and for the avoidance of doubt any other third parties with whom you share any Content, for any breach of the terms of this Agreement. The sharing of such works for the purposes stated in this paragraph is at your discretion but in no way absolves you from the full responsibilities for all terms and conditions contained within this Agreement.
(d) Any requests to republish or redistribute Content should be addressed to email@example.com and should not be considered authorised unless and until validly approved in writing by WGSN.
(e) WGSN may provide e-mails or other prompts of Content. Your use of the Content received through the e-mails or other prompts will be subject to the terms and conditions of this Agreement.
(f) Copyright in any software that is made available to you for download from the Sites (Software) belongs to WGSN or its Software suppliers. You may not install or use any Software unless you agree to be governed by the terms of any license agreement that accompanies or is included with the Software.
(g) You acknowledge that the Content is only for your general information and use and does not constitute any form of advice, recommendation or arrangement by WGSN and is not intended to be relied upon by you in making any specific business or investment decisions. Any reliance by you upon any advice, opinion, statement or other information displayed or distributed through the Sites is at your sole risk.
(h) Any use of the Services other than as specifically permitted above is prohibited.
6. Your content
(a) You are solely responsible for any Content that you upload to the Sites or transmit through the Sites, and you represent, warrant and agree that:
(i) Such Content will not be unlawful, harmful, threatening, harassing, defamatory, obscene, pornographic, vulgar, invasive of another’s privacy or right of publicity, or infringing of a third party’s intellectual property rights;
(ii) Such Content will not be hateful, racially, ethnically, or otherwise objectionable, encouraging of conduct that could constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable local, state, national, or international law;
(iii) You have all necessary rights to such Content;
(iv) Such Content will not harm minors in any way, including transmitting content that violates federal, state, international or any other child pornography laws, child sexual exploitation laws or laws prohibiting the depiction of minors engaged in sexual conduct;
(v) You will not forge headers or otherwise manipulate identifiers in order to disguise the origin of any such Content;
(vi) Such Content will not contain software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software;
(vii) Such Content will not interfere with or disrupt (or attempt to interfere with or disrupt) the Sites or servers or networks connected to the Sites, or disobey any requirements, procedures, policies or regulations of networks connected to the Sites; or
(viii) You will not provide any information to WGSN that is false or misleading, that attempts to hide your identity or that you do not have the right to disclose.
(b) However, you agree that WGSN will not be responsible for screening, policing, editing or monitoring any Content posted, viewed, transmitted, reproduced and/or distributed by any person using the Sites.
(c) Your sharing of your Content constitutes permission for use by the recipient according to the terms of this Agreement.
You acknowledge that the software, inventions, know-how, databases, data compilations, methods, processes, designs and architecture underlying the Sites (Technology) are protected by intellectual property rights. You agree that you will not (and will not allow any third parties to):
(a) Use any device, robot, spider, other automatic software or device, or any manual process, to interfere or attempt to interfere with the proper working of the Sites, or to monitor use of the Sites, without WGSN’s prior written permission;
(b) Take any action that imposes an unreasonable or disproportionately large load on the Sites infrastructure;
(c) Decompile, disassemble, or otherwise reverse engineer or attempt to reconstruct or discover any source code or underlying ideas or algorithms or file formats or programming or interoperability interfaces of the Technology (except that the foregoing restrictions shall only apply to the extent they are allowable under applicable law);
(d) Use any network monitoring or discovery software to determine the Sites architecture, or extract information about usage, individual identities or users;
(e) Circumvent, disable, or otherwise interfere with security-related features of the Sites, including any features designed to prevent, limit, or restrict use or copying of any Content; or
(f) Bypass robot exclusion headers or other similar measures WGSN may use to prevent or restrict access to, or caching of, the Sites.
8. WGSN INstock and Data on Demand Services
The following additional terms and conditions in this paragraph 8 shall apply with respect to the INstock and Data on Demand data Services (the INstock Services):
(a) For Data on Demand Services, WGSN shall collate and provide the INstock data feed to the Client with reasonable skill and care and shall use reasonable endeavours to supply such data feed in accordance with the delivery frequency set out in the Order Form, provided that time shall not be of the essence.
(b) Notwithstanding any express request or requirement of the Client, the Client acknowledges that WGSN does not warrant or represent that any data contained within the INstock Services shall contain any information or data relating to a particular retailer. If, for any reason, a particular retailer requested or required by the Client ceases to allow WGSN to use the retailer’s information or data in the INstock Services, WGSN shall use reasonable endeavours to obtain information or data from a similar retailer but WGSN makes no warranty that it shall obtain such information or data for use within the INstock Services.
(c) The Client acknowledges that WGSN shall be entitled to make any changes to the INstock Services which are necessary to comply with any applicable law and/or regulation and/or to comply with any changes to or termination of the terms and conditions of a third party provider of content included in the INstock Services. The Client further acknowledges that the INstock Services contains only files of third party content selected and collated by WGSN.
(d) Subject to receipt of the Fee, and to the restrictions set out in this paragraph 8, WGSN hereby grants to the Client a non-exclusive, non-transferable license to access, download and use the INstock Services during the Initial Term and the Renewal Periods, as the case may be, solely for the Client’s internal analytic business operations.
(e) Without prejudice to paragraph (d) above, and except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties, the Client shall not:
(i) reproduce, distribute, exploit, offer for sale, resell or otherwise use all or part of the INstock Services outside of the Client’s internal analytic business operations for any commercial purposes, including but not limited to reproduction of all or part of the INstock Services on products or within marketing or promotional materials;
(ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of any software included within the INstock Services;
(iii) use all or any part of the INstock Services in order to build a product or service which competes with the INstock Services, the Site(s) or any other product of WGSN or any of its associated companies; or
(iv) attempt to obtain, or assist third parties in obtaining, access to the INstock Services.
(f) The Client shall permit WGSN to audit the Client’s business operations in order to ensure compliance with the provisions of this paragraph 8. An audit may be conducted no more than once every three months on reasonable prior written notice and in such a manner as not to interfere substantially with the Client’s normal conduct of business.
(g) Without incurring any liability to the Client, and without prejudice to any other rights or remedies available to it, WGSN shall be entitled to disable the Client’s access to the INstock Services in the event of any known breach of the provisions of this paragraph 8 or if WGSN has reasonable grounds to suspect such breach. The latter shall not apply if Client can provide evidence to WGSN that the breach is only insignificant and was not intentionally or gross negligently caused by the Client.
(h) The Client acknowledges that because of the number of sources from which WGSN obtains content used in the INstock Services, WGSN does not give any warranties in respect of the INstock Services. The INstock Services are provided on an “as is” basis without guarantee of accuracy, timeliness or completeness. All implied warranties or conditions of satisfactory quality, and fitness for a particular purpose are excluded to the fullest extent permitted by law. The Client is solely responsible for ensuring that the INstock Services are appropriate and suitable for its needs.
(i) The Client agrees that the INstock Services are made available only for general information and is not intended to address particular requirements or interests of the Client and the Client acknowledges that the Fee is priced accordingly. In particular, the INstock Services does not constitute any form of advice, recommendation or arrangement by WGSN and shall not be relied upon by the Client in making (or refraining from making) any specific investment or other business or personal decisions; professional advice should be obtained before making any such decision.
(j) On termination of the Agreement for any reason, the Client shall delete all content provided through the INstock Services from its systems and shall procure that all Authorised Users shall cease to access the INstock Services.
9. StyleTrial Services
The following additional terms and conditions in this paragraph 9 shall apply with respect to the WGSN StyleTrial Services:
(a) To use the Service the Client shall upload the relevant information to the Website (the Product Data).
(b) The Client warrants that (a) the Product Data is complete and accurate; (b) it has all necessary rights to upload the Product Data and permit WGSN to use and allow others to use and reproduce the Product Data in accordance with the terms of this Agreement; (c) the use and reproduction of the Product Data in accordance with the terms of this Agreement shall not infringe any third party rights, including but not limited to copyright nor breach any applicable law; and (d) the Product Data shall not contain any virus or other malicious code that may harm the Website.
(c) Once the Product Data has been uploaded, the Client cannot cancel the Review and the corresponding credit will be deducted from the Client’s account.
(d) The Services can only be provided if all of the Product Data complies with all formatting and other requirements.
(e) For all correctly received Product Data, WGSN will provide a fashion review of the Product Data (the Review).
(f) In consideration of credits for Reviews, the Client shall pay to WGSN the Fee set out on the Order Form and/or top up credits as indicated on a Order Form. Each credit entitles the Client to upload Product Data for one Review per demographic.
(g) Subject to receipt of the Fee and the restrictions set out in this paragraph 9, WGSN hereby grants to the Client a non-exclusive, non-transferable right to access, download and use the Review solely for the Client’s internal business operations.
(h) Without prejudice to paragraph 9(g) and except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties, the Client shall not (a) reproduce, distribute, exploit, offer for sale, resell or otherwise use all or part of the Review outside of the Client’s internal business operations; (b) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of any software included within the Service; (c) use all or any part of the Service in order to build a product or service which competes with the Services, the Website or any other product of WGSN or any of its associated companies; and/or (d) use the Services to provide services to any third party.
(i) The Client shall permit WGSN to audit the Client’s business operations in order to ensure compliance with the provisions of this paragraph 9. An audit may be conducted no more than once every three months on reasonable prior written notice and in such a manner as not to interfere substantially with the Client’s normal conduct of business.
(j) Without incurring any liability to the Client, and without prejudice to any other rights or remedies available to it, WGSN shall be entitled to disable the Client’s access to the Service in the event of any breach of the provisions of this paragraph 9 or if WGSN has reasonable grounds to suspect such breach. The latter shall not apply if Client can provide evidence to WGSN that the breach is only insignificant and was not intentionally or gross negligently caused by the Client.
(k) The Client agrees that the Review does not constitute any form of advice, recommendation or arrangement by WGSN and shall not be relied upon by the Client in making (or refraining from making) any specific investment or other business decisions. WGSN does not warrant that any result or objective whether stated in a Review or otherwise shall be achieved or be achievable in whole, in part of by any given date in relation to the product that is the subject of the Product Data.
THE SITES, INCLUDING CONTENT, ARE PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY REGARDING CONTENT, SERVICES, UNINTERRUPTED ACCESS, PRODUCTS PROVIDED THROUGH OR IN CONNECTION WITH THE SITES, RESULTS OF USE OF THE SITE OR ANY SOFTWARE LICENSED TO YOU, OR THE AVAILABILITY OR ACCURACY THEREOF. SPECIFICALLY, WGSN DISCLAIMS ANY WARRANTIES OF TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. USE OF THE SITE IS ENTIRELY AT YOUR OWN RISK.
11. Limitations of liability
NEITHER WGSN NOR ANY OF ITS CONTENT PROVIDERS SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING IN CONNECTION WITH THE SERVICES, INABILITY TO USE THE SITES OR ANY CONTENT ON THE SITES, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOUR (INCLUDING NEGLIGENCE) OR ANY OTHER CAUSE OF ACTION. THIS LIMITATION OF LIABILITY APPLIES (BUT IS NOT LIMITED TO) ANY DAMAGES OR INJURY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, OR THEFT OF, DESTRUCTION OF, UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF CONTENT OR DATA. YOU SPECIFICALLY ACKNOWLEDGE THAT WGSN IS NOT LIABLE FOR THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU. IN NO EVENT WILL WGSN’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT INCLUDING BUT NOT LIMITED TO THE SERVICES EXCEED THE AMOUNT PAID BY YOU TO WGSN DURING THE 12 MONTHS PRIOR TO THE DATE THE CAUSE OF ACTION ARISE.
NOTHING IN THIS CLAUSE SHALL LIMIT WGSN’s LIABILITY FOR DAMAGE FROM INJURY TO LIFE; BODY OR HEALTH DUE TO NEGLIGENT BREACH OF DUTY BY WGSN OR INTENTIONAL OR NEGLIGENT BREACH OF DUTY BY A LEGAL REPRESENTATIVE OR A PERSON USED TO PERFORM AN OBLIGATION OF WGSN; FOR OTHER DAMAGES ARISING FROM A GROSSLY NEGLIGENT BREACH OF DUTY BY WGSN OR FROM AN INTENTIONAL OR GROSSLY NEGLIGENT BREACH OF DUTY BY A LEGAL REPRESENTATIVE OF WGSN OR A PERSON USED TO PERFORM AN OBLIGATION OF WGSN AS WELL AS FOR NEGLIGENT NON-PERFORMANCE OF ESSENTIAL OBLIGATIONS OF THE CONTRACT (KARDINALSPFLICHTEN).
12. Term of agreement; termination; duration of term; automatic renewal
(a) This Agreement shall commence on the date set out on the Order Form. The Agreement shall continue:
(i) in respect of a subscription for any of the Services, initially for the period set forth in the Order Form (Initial Term) and thereafter shall automatically continue for further periods equal to the Initial Term (each a “Renewal Period”) on each date following the end of the existing Term 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; and
(ii) in respect of all other Services, for the period set forth on the Order Form.
(b) If WGSN in its sole discretion permits you to continue to use the Sites following expiration of the Initial Term or the Renewal Period, the terms and conditions of this Agreement shall continue to apply in respect of such use.
(c) Either party shall be entitled to terminate the Agreement with immediate effect in the event that the other:
(i) commits a material breach of the Agreement 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
(ii) becomes or is declared insolvent or takes formal steps to commence bankruptcy (including the making of a bankruptcy order) or makes or proposes any composition with its creditors or the appointment of a receiver or similar officer over or in respect of some or all of its assets or takes any steps to enter into an insolvency process including without limitation the appointment of a liquidator, administrative receiver, administrator, provisional liquidator, receiver or any other office holder over or in respect of some or all of its assets or the filing of any papers at court in respect of a moratorium or the taking of any steps for dissolution or strike off.
(d) If the Client terminates the Agreement under paragraph 12(c), WGSN shall refund:
(i) in the case of subscription services, to the Client the proportion of the Fee paid pro-rata for the remainder of the Initial Term or the Renewal Period, as the case may be.
(ii) In the case of INstock Data on Demand Services, WGSN shall refund to the Client the proportion of the Fee paid pro-rata for the remainder of the Term less the reasonable costs of setting up the Data Feed for the Client.
(iii) In the case of StyleTrial, WGSN shall refund to the Client the proportion of the Fees paid that relate to unused credits. Otherwise, no Fees are refundable.
(e) If WGSN terminates this Agreement, or suspends your account for any of the reasons set forth in paragraph 12(c), WGSN will not refund any amounts that you have previously paid. Further, you shall remain liable for any amounts owed to WGSN pursuant to the then-current Order Form and this Agreement.
(f) Upon any expiration or termination of this Agreement, all rights and licenses granted herein shall terminate, except that you may continue to manufacture and sell products that incorporate Content in accordance with this Agreement and that were designed prior to such expiration or termination; provided that the foregoing rights shall not apply if you are a subscribing educational institution or Authorized User thereof. The provisions of paragraphs 10, 11 and 13 shall survive any termination of this Agreement.
(g) These remedies are in addition to any other remedies that WGSN may have at law or in equity.
13. General provisions
(i) “Confidential Information” means 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 would be understood by a reasonable person in the Receiving Party’s position to be confidential. With respect to StyleTrial Services, for the avoidance of doubt, the Product Data shall be the Client’s Confidential Information for the purposes of this Agreement.
(ii) Save as expressly permitted under paragraph 13(a)(iii) the Receiving Party will keep confidential the terms of the Agreement as well as any other Confidential Information disclosed to it by the Disclosing Party.
(iii) The provisions of paragraph 13(a)(i) shall not apply to any information which (a) is or becomes public knowledge other than by breach of this paragraph 13(a); (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) is required to be disclosed by operation of law, government regulation, or order of a Court of competent jurisdiction, providing the Receiving Party first gives written notice of such required disclosure to the other party.
(b) Entire Agreement. This Agreement, as modified by WGSN pursuant to paragraph 13(j), together with the Order Form, constitutes the entire agreement between you and WGSN and supersedes all prior agreements with respect to the subject matter hereof. Any failure or delay by WGSN to enforce any provisions of this Agreement shall not be construed as a waiver of any of WGSN’s rights or operate as a waiver of any subsequent breach.
(c) Governing Law; Disputes. The interpretation and enforcement of this Agreement shall be governed by the laws of Germany (excluding its choice of law rules). You agree that any claim or dispute you may have against WGSN must be resolved by a court located in Cologne, Germany.
(d) International Use. You agree to comply with all local rules of your country regarding online Conduct and acceptable Content. Please note that information published on the Sites may refer to products, programs or services that are not available in your country.
(e) Severability. If any term or provision of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining terms or provisions shall not be affected.
(f) Notices. Except as otherwise set forth herein, all notices required or permitted to be given pursuant to this Agreement to the Client shall be sent by e-mail to the Client’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 this Agreement 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, WGSN may also give notice to the Client via the Sites, and such notice shall be deemed to be effective on the date it first appears on the Sites.
(g) Indemnity. The Client agrees to indemnify and hold WGSN and its employees, agents, officers, directors and other representatives harmless from and against all costs, losses, liabilities and expenses (including legal fees) which WGSN may suffer or incur, in connection with or arising from Client’s or any of the Client’s Authorized Users’ breach of this Agreement, use of the Sites, use of Content or unauthorized use of Client’s or any Authorized User’s user name or password as applicable.
(h) Assignment. You may not assign, sub-license or otherwise transfer any of your rights or obligations under this Agreement, by operation of law or otherwise.
(i) Force Majeure
(i) “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 Agreement 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.
(ii) A party will not be liable if delayed in or prevented from performing its obligations under the Agreement 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 30 days, either party may terminate the Agreement on notice.
(iii) The provisions of this paragraph 13(i) shall not be relied upon in relation to the inability to pay.
(j) Modifications to terms and conditions.
(i) WGSN reserves the right to modify the terms and conditions of this Agreement (including those relating to your use of the Content). Any modification is effective upon posting to the Sites or upon distribution to Client via e-mail or conventional mail, whichever is earlier.
(ii) Your continued use of the Services for 7 days following the effective date of notice of any modification(s) to this Agreement shall be deemed an acceptance of all such modifications.
(i) WGSN and the Client warrants to each other that it shall comply with all applicable laws, statutes and regulations relating to anti-bribery and anti-corruption including but not limited to the German Criminal Code (Strafgesetzbuch);
(ii) You warrant that you shall (i) comply with such of WGSN’s anti-bribery and anti-corruption policies as are notified to you from time to time; and (ii) promptly report to WGSN any request or demand for any undue financial or other advantage of any kind received by or on your behalf in connection with the performance of this Agreement. Breach of this paragraph 13(I) shall be deemed a material breach of this Agreement.
(m) Interpretation. Sections and sub-section headings in this Agreement are included herein for convenience of reference only and shall not constitute a part of this Agreement for any other purpose or be given any substantive effect. The words “include” and “including” are illustrative and not limiting.
(n) No person who is not a party to the Agreement, shall have any rights under or in connection with it by virtue of the Contracts (Rights of Third Parties) Act 1999 and the rights of the parties to terminate, rescind or agree any variation, waiver or settlement under the Agreement shall not be subject to the consent of any third party.
(o) The official version of this Agreement is in the English language. Any translations of this Agreement are provided merely for the convenience of the customer and shall not be legally binding. In the event of any conflict between the English language version and any translations, the English version will prevail.
(p) In consideration of the licenses granted in this Agreement, the Client hereby gives WGSN permission to:
(i) use the Client’s name and logo in WGSN marketing material including publication on a WGSN website; and
(ii) extract publicly available data from the Client’s website and use and reproduce such publicly available data within WGSN’s products and services available to its customers. For the avoidance of doubt, the Client shall not block WGSN from extracting data or unreasonably rate limit WGSN in relation to such extraction.
14. Copyright compliance
If you are a copyright owner or an agent thereof, and you believe that any content hosted on the Sites infringes your copyrights, you may submit a notification by providing WGSN with the following information in writing to firstname.lastname@example.org:
(a) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
(b) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the Sites are covered by a single notification, a representative list of such works at the Sites;
(c) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit WGSN to locate the material;
(d) Information reasonably sufficient to permit WGSN to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
(e) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
(f) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
You acknowledge that if you fail to comply with all of these requirements, your notice may not be valid.