The following Standard Terms of Service (“Terms of Service”), together with any Order Form or Statement of Work referencing these Terms of Service which is issued by StyleSage and accepted by you (“Order Form” and “Statement of Work”, respectively) form a binding agreement (“Agreement”) between you and StyleSage and govern your access to and use of the retail data aggregation and analysis services (“Services”) currently provided at www.stylesage.co (the “Site”) and/or through any software or mobile applications provided by StyleSage for your installation and use in connection with such services (“Software”), and your access to and use of any and all content, data, information and results provided through the Site, Software and/or Services (collectively, “Content”). In addition, StyleSage's Privacy Statement, located here, applies to StyleSage's use and disclosure of any personal information you provide, and is hereby incorporated into these Terms of Service by this reference. If you are accessing the Platform on behalf of another entity or individual, you represent and warrant that you have the authority to agree to the Terms of Service on such entity's or individual's behalf. If you do not agree with anything contained in the Terms of Service, you are not authorized to, and must not access or otherwise utilize the Platform in any way.
As used in these Terms of Service, “you” and “your” refer to (i) you, the individual accepting these terms or, if you are acting on behalf of an organization, the organization you represent or (ii) the Customer listed in an applicable Order Form or Statement of Work. The terms “StyleSage”, “we”, “us” and “our” refer to StyleSage, Inc.
1. General Terms and Conditions.
1.1 Access. Subject to your full and continued compliance with the Terms of Service, you are hereby granted the right to access the Site, Software, Content and those Services specified in an applicable Order Form or otherwise provided to you by us (collectively, the “Platform”) on a remote basis as hosted by StyleSage during the Term (as defined below) for your own internal business purposes and not for the use or benefit of any third party. By accessing and using the Platform, you acknowledge, accept, and agree to the Terms of Service. You are solely responsible for ensuring that your use of the Platform complies with all laws, rules and regulations applicable to you. Your right to access the Platform is revoked where this Agreement or your use of the Platform or the Content is prohibited or to the extent offering, sale or provision of the Platform conflicts with any applicable law, rule or regulation.
1.2 Registration. When signing up for the Platform and creating an account on the Platform (an “Account”), you must provide accurate and complete information and keep your Account information updated. You shall not: (a) select or use as a username a name of another person with the intent to impersonate that person; (b) use as a username a name subject to any rights of a person other than you without appropriate authorization; or (c) use, as a username, a name that is otherwise offensive, vulgar or obscene. You are solely responsible for the activity that occurs on your Account, and for keeping your Account password secure. You may never use another person's user account or registration information for the Platform without permission. You must notify us immediately of any change in your eligibility to use the Platform or any breach of security or unauthorized use of your Account. You should never publish, distribute or post login information for your Account.
1.3 Scope; Changes. The Terms of Service are in addition to any other agreements between you and StyleSage, including any other agreements that govern your use of the Platform. StyleSage reserves the right to change the Terms of Service at any time by sending you an email, placing a notice on the Site, or notifying you through the Platform. Use of the Platform following the posting of any changes to the Terms of Service shall be deemed to be acceptance thereof by you. From time to time, we may agree to perform additional services pursuant to a separate Statement of Work. For purposes of these Terms of Service Such professional services shall be deemed Services and any deliverables or other work product developed under any such Statements of Work shall be deemed Content.
2.1 Acceptable Use. You will use the Platform only in compliance with all applicable laws and regulations and in accordance with the rights granted hereunder, subject to any additional terms, conditions or restrictions set forth in the Order Form. You will not (and will not allow any third party to): (a) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Service; (b) modify, translate, or create derivative works based on the Platform; (c) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Platform; (d) use the Platform for timesharing or service bureau purposes or otherwise for the benefit of a third party; (e) remove or otherwise alter any proprietary notices or labels from the Platform or any portion thereof, or (f) use any data or information provided via the Platform for any purpose other than the your internal use as authorized hereunder (for example, you will not sell such any Content or use it to create any product or service).
2.2 No Malicious Conduct. In addition, you shall not: (a) take any action that imposes or may impose (as determined by us in our sole discretion) an unreasonable or disproportionately large load on our (or our third party providers') infrastructure; (b) interfere or attempt to interfere with the proper working of the Platform or any activities conducted on the Platform; (c) bypass, circumvent or attempt to bypass or circumvent any measures we may use to prevent or restrict access to the Platform (or other accounts, computer systems or networks connected to the Services); (d) use manual or automated software, devices, or other processes to “crawl” or “spider” any page of the website; (e) harvest or scrape any Content from the Platform; or (vi) otherwise take any action in violation of any guidelines and policies posted via the Platform.
3.1 License. As between the parties, all Content made available through the Platform and the Platform's look and feel, text, graphics, logos, images, audio and video clips (if any) and software are the sole and exclusive property of StyleSage. The Platform is subject copyright and other intellectual property rights of StyleSage, third party content originators and other licensors. Subject to your full and continued compliance with the Terms of Service, we grant you, for the Term, a worldwide, royalty-free, non-exclusive, non-sublicensable and non-transferable license to download and view the Content solely in connection with your authorized access to and use of the Platform. If an “Expanded Use” license is specified in the applicable Order Form, [we also grant you the right to share the data contained in any reports provided through the Platform with your third party service providers and to allow such third parties to use the Platform on your behalf, solely as necessary to enable them to assist you in your authorized use of the Platform], subject to all of the terms and restrictions set forth in this agreement and in no event shall any such third party use such data or the Platform in combination with any third party software or algorithms not approved by StyleSage. You agree to be responsible and liable for any such use by such third parties in breach of any of the terms set forth herein. Any unauthorized use, reproduction, modification, distribution, transmission, republication, display or performance of the Content or any other aspect of the Platform is strictly prohibited. You may copy information from the Platform only as strictly necessary for your own use of the Platform. Otherwise, no portion of the Platform may be reproduced, duplicated, copied, sold, resold, licensed, rented or otherwise exploited for any commercial purpose, or publicly disseminated in any manner, unless expressly agreed to in writing by StyleSage.
3.3 Third Party Content. Certain portions of the Content, including, without limitation, workbooks, documents, downloads, reports, and other information, may contain content originating from third parties (“Third Party Content”). No attempt to verify the accuracy or completeness of any Third Party Content is made, and you are solely responsible for your use of any Third Party Content. StyleSage has no duty to monitor or verify any aspect of any Third Party Content or to investigate or correct any errors or other issues concerning any Third Party Content; provided, however, that StyleSage reserves the right to remove from the Platform any Third Party Content (and any other Content) that it deems in its sole discretion to be harmful, offensive, or otherwise objectionable. The Third Party Content is for informational purposes only and does not constitute the rendering of advice of any kind or nature. You are advised to independently evaluate and verify the information contained in any Third Party Content before drawing any conclusions therefrom or taking any actions in connection therewith.
3.4 Disclaimer. NOTWITHSTANDING ANYTHING TO THE CONTRARY, StyleSage makes no representations, warranties or guarantees whatsoever WITH RESPECT to any Third Party Content, and hereby EXPRESSLY disclaims ANY and all liability arising out of or related to your access to and use of any Third Party Content.
3.5 Third Party Sites. The Platform may contain links to third party websites and other websites may contain links to the Platform. Any such link is provided only as a convenience. The inclusion of any link does not imply an affiliation, sponsorship, endorsement, approval, investigation, verification or monitoring by StyleSage of any information contained in any third party website. The terms and conditions applicable to your use of third party websites, and their privacy practices, may be different from those applicable to your use of the StyleSage Platform.
4. Email Notification. StyleSage uses email to communicate with users. You hereby authorize and agree that StyleSage may communicate with you via any email address provided by you for such purpose and you consent to receiving and giving any notice required under the Terms of Service or any other agreement with StyleSage via email. You may send any such required notice to us at email@example.com.
5. Fees and Payment. You agree to pay StyleSage the fees as set forth in the applicable Order Form(s) and/or Statements of Work (collectively, “Fees”). You authorized us to charge the payment method specified in the Order Form and/or Statement of Work (and any updated payment method you provide to use from time to time) for all Fees, including, for any recurring Fees, at the beginning of the Initial Term and any Renewal Terms. For any Services under a Statement of Work for which Fees are billed in arrears, we will invoice you following completion of the Services. Unpaid invoices are subject to a finance charge of 1.5% per month or the maximum permitted by law, whichever is lower, plus all expenses of collection. You shall be responsible for all (i) taxes associated with the Services other than taxes based on our net income, and (ii) our costs of collection in the event of your delinquent payment. All Fees paid are non-refundable (except as otherwise expressly set forth in the Order Form) and not subject to set-off.
6. Term and Termination.
6.1 Term. This Agreement shall be effective as of the Effective Date specified in the applicable Order Form and, if not terminated as provided under this Section 6, shall continue in effect for the Initial Term specified in such Order Form followed by successive Renewal Terms of the duration specified in such Order Form unless either party gives notice its intent not to renew at least sixty (60) days prior to the end of the then-current Initial Term or Renewal Term, as applicable. Unless terminated as specified herein or provided otherwise in the applicable Statement of Work, each Statement of Work shall remain in effect until completion of the Services specified therein. The Initial Term and any Renewal Terms are referred to collectively as the “Term.”
6.2 Termination. This Agreement may be terminated in whole or with respect to any individual Order Form or Statement of Work by either party (a) if the other party materially breaches a provision of this Agreement and fails to cure such breach within 30 days (10 days in the case of any non-payment) after receiving written notice of such breach from the non-breaching party or (b) immediately upon written notice, if the other party makes any assignment for the benefit of creditors, or a receiver, trustee in bankruptcy or similar officer is appointed to take charge of any or all of the other party's property, or the other party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding or such a proceeding is instituted against the other party and is not dismissed within 90 days, or the other party, without a successor, dissolves or liquidates.
6.3 Effects of Termination. Upon expiration or termination of this Agreement for any reason, all rights and licenses granted hereunder shall cease and neither party shall have any further obligations to other party, except that (a) your liability to pay Fees accrued as of the effective date of termination (including any non-cancelable expenses incurred in connection with any Services under a Statement of Work) shall become due and payable as of the effective date of expiration or termination, (b) all other obligations that accrued prior to the effective date of termination and remedies for breach of this Agreement shall survive any termination and (c) the provisions of Sections 1.3, 2-11 and this Section 6.3 shall survive.
7. Confidential Information. During the term of this Agreement, each party (a “Disclosing Party”) may provide the other party (a “Receiving Party”) with confidential and/or proprietary materials and information (“Confidential Information”). All materials and information provided by Disclosing Party to Receiving Party and identified at the time of disclosure as “Confidential” or bearing a similar legend, and all other information that the Receiving Party reasonably should have known was the Confidential Information of the Disclosing Party, shall be considered Confidential Information; for the avoidance of doubt, the Service and terms of this Agreement are Confidential Information of Company. Receiving Party shall maintain the confidentiality of the Confidential Information and will not disclose such information to any third party without the prior written consent of Disclosing Party. Receiving Party will only use the Confidential Information internally for the purposes contemplated hereunder. The obligations in this Section 7 shall not apply to any information that: (i) is made generally available to the public without breach of this Agreement, (ii) is developed by the Receiving Party independently from the Disclosing Party's Confidential Information, (iii) is disclosed to Receiving Party by a third party without restriction, or (iv) was in the Receiving Party's lawful possession prior to the disclosure to the Receiving Party and was not obtained by the Receiving Party either directly or indirectly from the Disclosing Party. Receiving Party may disclose Confidential Information as required by law or court order; provided that, Receiving Party provides Disclosing Party with prompt written notice thereof and uses its best efforts to limit disclosure. At any time, upon Disclosing Party's request, Receiving Party shall return to Disclosing Party all Disclosing Party's Confidential Information in its possession, including, without limitation, all copies and extracts thereof. Notwithstanding the foregoing, (a) Receiving Party may disclose Confidential Information to any third-party to the limited extent necessary to exercise its rights, or perform its obligations, under this Agreement; provided that, all such third parties are bound in writing by obligations of confidentiality and non-use at least as protective of the Disclosing Party's Confidential Information as this Agreement and (b) all Content and any non-public information, documentation, materials and trade secrets underlying the Platform shall be StyleSage's “Confidential Information.”
8. Limitation of Liability.
EXCEPT IN THE CASE OF DEATH, BODILY INJURY OR FRAUD OR TO THE EXTENT THAT ANY EXCLUSION OR LIMITATION OF LIABILITY IS VOID, PROHIBITED OR UNENFORCEABLE BY APPLICABLE LAW, IN NO EVENT SHALL STYLESAGE BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) MATTER BEYOND ITS REASONABLE CONTROL, (B) LOSS OF DATA, LOSS OR INTERRUPTION OF USE OF THE DELIVERABLE OR SERVICE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES, (C) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS OR GOODWILL OR (D) AGGREGATE DAMAGES IN EXCESS OF THE AMOUNTS PAID TO STYLESAGE BY YOU HEREUNDER WITH RESPECT TO THE SERVICE OR DELIVERABLE THAT GAVE RISE TO THE CLAIM DURING THE 12-MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE, EVEN IF STYLESAGE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.
9. Warranty Disclaimer.
THE PLATFORM (INCLUDING ALL SERVICES AND CONTENT) ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND. COMPANY DOES NOT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THEIR USE. STYLESAGE HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT.
You agree to indemnify and hold harmless StyleSage, our affiliates and each of our and their respective officers, directors, agents, and employees, from and against any suit, action, claim, demand, penalty or loss, including reasonable attorneys' fees, arising out of or relating to your access to, use or misuse of the Platform (or that of any third party using your Account), including any violation of any law, regulation, order or other legal mandate or the rights of a third party, and any breach of this Agreement. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with us in asserting any available defenses.
11. General Provisions.
11.1 Publicity. StyleSage may include your name in lists of StyleSage customers which we may make available on our website and otherwise disseminate from time to time.
11.2 Independent Contractors. The parties shall be independent contractors in their performance under this Agreement, and nothing contained herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose. Neither party has any authority to bind the other in any respect whatsoever.
11.3 No Interference. During the term of this Agreement and for 1 year thereafter, you will not directly or indirectly recruit, employ or retain any employee or independent contractor of StyleSage, or otherwise solicit, induce or influence any employee or independent contractor to leave their employment with StyleSage.
11.4 Miscellaneous. The parties will comply with the additional term and conditions (if any) set forth in the Order Form. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable or transferable by a party except with the other party's prior written consent; provided that, a party may transfer and assign its rights and obligations under this Agreement without consent to a successor to all or substantially all of its assets or business to which this Agreement relates. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement, and all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. Any notices in connection with this Agreement will be in writing and sent by first class US mail, confirmed facsimile or major commercial rapid delivery courier service to the address specified on the Order Form (or such other address as may be properly specified by written notice hereunder). Email notice shall be authorized to the extent set forth herein. This Agreement shall be governed by the laws of the State of New York, without regard to the conflict of law provisions thereof. Except for claims for injunctive or equitable relief or claims regarding intellectual property rights (which may be brought in any competent court), any dispute arising under this Agreement shall be finally settled in accordance with the Comprehensive Arbitration Rules of the Judicial Arbitration and Mediation Service, Inc. (“JAMS”) by three arbitrators appointed in accordance with such Rules. The arbitration shall take place in the City of New York, USA, in the English language and the arbitral decision may be enforced in any court. With respect to all disputes arising in relation to this Agreement, but subject to the preceding arbitration provision, the parties consent to exclusive jurisdiction and venue in the state and Federal courts located in the Borough of Manhattan, County of New York, USA. The prevailing party in any action or proceeding to enforce this Agreement will be entitled to recover costs and attorneys' fees.