Terms of Service

1.1 “Confidential Information” means all information regarding a party’s business, including, without limitation, technical, marketing, financial, employee, planning, and other confidential or proprietary information, disclosed under this Agreement, that is clearly identified as confidential or proprietary at the time of disclosure or that the receiving party knew or should have known, under the circumstances, was considered confidential or proprietary.  Subscriber Data and Outputs are the Confidential Information of Subscriber. Confidential Information of Vendor includes non-public information derived from or concerning the Vendor Service, the Vendor Platform, the Documentation and the terms of this Agreement.

1.2 “Documentation” means any user manuals, handbooks, and online materials provided by Vendor to Subscriber that describe the features, functionality, or operation of the Vendor Platform.

1.3 “Order Form” means any order form for Vendor Service executed by both parties that references this Agreement, which may include the pricing page set forth on the Vendor Service.

1.4 “Outputs” means clothing, fashion, footwear or apparel related designs, outputs, specifications, images or responses generated by the Vendor Platform.

1.5 “Performance Data” means any log files, metadata, telemetry data and other technical performance data automatically generated by the Vendor Platform relating to the use, performance, efficacy, reliability and/or accuracy of the Vendor Platform, which does not contain any personally identifiable information or Subscriber Data.

1.6 “Subscriber Data” means any data uploaded or transmitted to the Vendor Service by Subscriber, including any training data and text prompts or inputs provided by Subscriber to the Vendor Platform.

1.7 “Trained Model” means any machine learning or AI model, structure or artifact produced or built from Subscriber Data that can be used to make or produce Outputs.

1.8 “Users” means Subscriber’s employees, representatives, consultants, contractors, or agents authorized by Subscriber to access the Vendor Platform for which applicable fees have been paid.

1.9 “Vendor Platform” means the technology, including AI and machine learning algorithms or models, including the Trained Model, used by Vendor to deliver the Vendor Service to Subscriber.

1.10 “Vendor Service” means the service(s) delivered by Vendor to Subscriber as more fully described in the Order Form.

2.1 Subscription to the Vendor Platform. Subject to the terms and conditions of this Agreement, Vendor hereby grants to Subscriber, a non-sublicensable, non-transferable (except as provided in Section 11.6), non-exclusive subscription to access and use the Vendor Platform by solely for Subscriber’s internal business purposes, during the subscription period set forth in the applicable Order Form.

2.2 Support. Subject to the terms of this Agreement, Vendor shall use commercially reasonable efforts to (a) provide the Vendor Platform in accordance with its historical levels; and (b) provide 10am – 6pm (PST) email support, excluding federal holidays.

3.1 Access and Security Guidelines. Each User will be provided access to and use of the Vendor Platform through confidential account credentials. Subscriber will be responsible for all uses of its account, except to the extent caused by Vendor’s negligence. Subscriber will promptly notify Vendor of any unauthorized use or access to its account. User seats may not be shared amongst other Users.

3.2 Restrictions. Subscriber will not, and will not permit any User or other party to: (a) reverse engineer, disassemble or decompile any component of the Vendor Platform; (b) interfere in any manner with the operation of the Vendor Service, or the Vendor Platform or the hardware and network used to operate the Vendor Service; (c) sublicense any of Subscriber’s rights under this Agreement, or otherwise use the Vendor Platform for the benefit of a third party or to operate a service bureau; (d) modify, copy or make derivative works based on any part of the Vendor Platform;  or (e) otherwise use the Vendor Service in any manner that exceeds the scope of use permitted under Section

Subscriber will pay Vendor the fees for the Vendor Service as set forth on the applicable Order Form (“Fees”). Unless otherwise stated in the applicable Order Form, all Fees will be paid in advance and are due within thirty (30) days of receipt of invoice. All Fees owed by Subscriber in connection with this Agreement are exclusive of, and Subscriber shall pay, all sales, use, excise and other taxes and applicable export and import fees, customs duties and similar charges that may be levied upon Subscriber in connection with this Agreement, except for employment taxes and taxes based on Vendor’s income. Vendor reserves the right (in addition to any other rights or remedies Vendor may have) to discontinue the Vendor Service and suspend Subscriber’s access to the Vendor Service if any Fees set forth in the applicable Order Form are more than thirty (30) days overdue until such amounts are paid in full. Subscriber shall maintain complete, accurate and up-to-date Subscriber billing and contact information.

The receiving party agrees that it will not use or disclose to any third party any Confidential Information of the disclosing party, except as expressly permitted under this Agreement. The receiving party will limit access to the Confidential Information to those who have a need to know such information to use or provide the Vendor Service. The receiving party will protect the disclosing party’s Confidential Information from unauthorized use, access, or disclosure in a reasonable manner. Upon termination of this Agreement, the receiving party will return to the disclosing party or destroy all copies of the Confidential Information. The restrictions on use and disclosure of Confidential Information set forth above will not apply to any Confidential Information which (a) is or becomes a part of the public domain through no act or omission of the receiving party, (b) was in the receiving party’s lawful possession prior to the disclosure, as shown by the receiving party’s competent written records, or (c) is independently developed by the receiving party.  The receiving party may disclose Confidential Information to the extent that such disclosure is required by law or by the order of a court or similar judicial or administrative body.

6.1 Vendor Platform and Technology. Subscriber acknowledges that Vendor retains all right, title and interest in and to the Vendor Platform and all software and all Vendor proprietary information and technology used by Vendor or provided to Subscriber in connection with the Vendor Service (the “Vendor Technology”), and that the Vendor Technology is protected by intellectual property rights owned by or licensed to Vendor. Other than as expressly set forth in this Agreement, no license or other rights in the Vendor Technology are granted to the Subscriber. Subscriber hereby grants Vendor a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Vendor Service any suggestions, enhancement requests, recommendations or other feedback provided by Subscriber, including Users, relating to the Vendor Service. Vendor shall not identify Subscriber as the source of any such feedback.

6.2 Subscriber Data. Subscriber retains all right, title and interest in and to the Subscriber Data. Subscriber hereby grants to Vendor a non-exclusive, worldwide, royalty-free and fully paid-up license to access and use Subscriber Data to provide the Vendor Services to Subscriber. Subscriber represents and warrants that it has all necessary rights to grant Vendor the foregoing licenses.

6.3 Data Security. Vendor currently utilizes GCP, Amazon Web Services, and BaseTen as reputable hosting services providers, to store all Subscriber Data; provided, that, Vendor may utilize other hosting service providers of similar repute, such Microsoft Azure. In the event Vendor becomes aware of any loss or unauthorized access, disclosure or use of any Subscriber Data (“Security Breach”), Vendor will (i) promptly notify Subscriber in writing of such Security Breach, and (ii) take reasonable steps to identify the cause of such Security Breach, minimize the harm associated therewith and prevent reoccurrence thereof. Any notification of any Security Breach will describe, to the extent known, details of the Security Breach, including steps taken to mitigate the potential risks.

6.4 Performance Data. Vendor retains all right, title and interest in and to the Performance Data, and may use Performance Data for any lawful purpose.

7.1 Term. The term of this Agreement will commence on the Effective Date and continue until all Order Forms have expired, unless terminated earlier in accordance with the terms of this Agreement (the “Term”). Unless otherwise set forth in an Order Form, each Order Form will have an initial term of one (1) month (the “Initial Order Term”), and will automatically renew for successive one (1) month terms (each, a “Renewal Order Term” and collectively with the Initial Order Term, the “Order Term”), unless either party provides no less than thirty (30) days written notice of its intent to terminate the Order prior to the end of the then-current term.  Unless otherwise set forth in the Order Form, all Renewal Order Terms shall be renewed at Vendor’s then-current fees and rates.

7.2 Termination. Either party may terminate this Agreement upon written notice if the other party materially breaches the Agreement and does not cure such breach (if curable) within thirty (30) days after written notice of such breach. Upon the expiration or termination of this Agreement for any reason, (a) any amounts owed to Vendor under this Agreement will become immediately due and payable; and (b) each party will return to the other all property (including any Confidential Information) of the other party. Vendor agrees that upon expiration or termination of this Agreement, Vendor will remove all Subscriber Data from the Vendor Platform and all Subscriber access to the Vendor Service will cease.  Sections 1, 5, 6, 7.2, 8.3, 8.4, 9-11 will survive the termination of this Agreement.

8.1 General Disclaimer. To the maximum extent permitted by applicable law: (a) the Vendor Service, Vendor Platform and documentation are provided “as is” and “as available” and (b) Vendor and its suppliers make no other warranties, express or implied, by operation of law or otherwise, including, without limitation, any implied warranties of merchantability or fitness for a particular purpose.

8.2 Special Disclaimer. Subscriber acknowledges and agrees that: (A) the Vendor Platform is designed to assist in the development of fashion, apparel and footwear designs and specifications and that such designs and specifications are based, in part, on the training data provided or chosen by the parties, along with other text prompts that may be provided by Subscriber (“Inputs”); (B) any Outputs are dependent upon the Inputs; and (C) Trained Models may contain inadvertent systemically prejudiced results or errors, commonly known as biases, as a result of the training data chosen by the parties.

9.1 By Subscriber. Solely to the extent permitted under applicable law, if any action is instituted by a third party against Vendor relating to (a) Subscriber’s breach or alleged breach of Agreement, (b) any claim that the Subscriber Data infringes upon, or misappropriates, any third party’s rights, including intellectual property rights, or (c) Subscriber’s use of the Vendor Services in violation of any applicable laws, rules or regulations, Subscriber will defend such action at its own expense on behalf of Vendor and shall pay all damages attributable to such claim which are finally awarded against Vendor or paid in settlement of such claim.  This subsection states the sole and exclusive remedy of Vendor and the entire liability of Subscriber for the claims and actions described herein.

9.2 Procedure. Any party that is seeking to be indemnified under the provision of this Section 9 must (a) promptly notify the other party (the “Indemnifying Party”) of any third-party claim, suit, or action for which it is seeking an indemnity hereunder (a “Claim”), and (b) give the Indemnifying Party the sole control over the defense of such Claim.

To the extent permitted by law, in no event shall Vendor or Subscriber be liable for special, incidental, consequential or punitive damages or lost profits in any way relating to this Agreement. In no event shall Vendor’ or Subscriber’s aggregate, cumulative liability in any way relating to this Agreement exceed the amount of fees actually received by Vendor from Subscriber pursuant to the applicable Order Form or Statement of Work during the twelve (12) months preceding the claim. The foregoing limitations shall not apply to payment and indemnity obligations. the parties would not have entered into this agreement but for such limitations.

11.1 Governing Law and Venue. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of California, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. Subscriber hereby expressly consents to the personal jurisdiction and venue in the state and federal courts for the county in which Vendor’s principal place of business is located for any lawsuit filed there against Subscriber by Vendor arising from or related to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. The laws of the jurisdiction where Subscriber is located may be different from California law.

11.2 Export. Subscriber agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Vendor, or any products utilizing such data, in violation of the United States export laws or regulations.

11.3 Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Without limiting the generality of the foregoing, Subscriber agrees that the section titled Limitation of Liability will remain in effect notwithstanding the unenforceability of any provision in the subsection titled Vendor Limited Warranty.

11.4 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

11.5 Remedies. Except as provided in the sections titled Limited Warranty and Indemnification, the parties’ rights and remedies under this Agreement are cumulative. Subscriber acknowledges that the Vendor Service and Vendor Technology contain valuable trade secrets and proprietary information of Vendor, that any actual or threatened breach of the sections titled Restrictions or Confidential Information or any other breach by Subscriber of its obligations with respect to intellectual property rights of Vendor will constitute immediate, irreparable harm to Vendor for which monetary damages would be an inadequate remedy. In such case, Vendor will be entitled to immediate injunctive relief without the requirement of posting bond, including an order that any software, Documentation, or any portions thereof, that Subscriber attempts to import into any country or territory be seized, impounded and destroyed by customs officials. If any legal action is brought to enforce this Agreement, the prevailing party will be entitled to receive its attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive.

11.6 No Assignment. Neither party shall assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either party may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without the consent of the other party.  The terms of this Agreement shall be binding upon the parties and their respective successors and permitted assigns.

11.7 Force Majeure. Any delay in the performance of any duties or obligations of either party will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.

11.8 Independent Contractors. Subscriber’s relationship to Vendor is that of an independent contractor, and neither party is an agent or partner of the other. Subscriber will not have, and will not represent to any third party that it has, any authority to act on behalf of Vendor.

11.9 Notices. Each party must deliver all notices or other communications required or permitted under this Agreement in writing to the other party at the address listed on the first page of the Agreement by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized express mail service. Notice will be effective upon receipt or refusal of delivery. If delivered by certified or registered mail, any such notice will be considered to have been given five (5) business days after it was mailed, as evidenced by the postmark. If delivered by courier or express mail service, any such notice shall be considered to have been given on the delivery date reflected by the courier or express mail service receipt. Each party may change its address for receipt of notice by giving notice of such change to the other party.

11.10 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall be taken together and deemed to be one instrument.

11.11 Publicity. Subscriber agrees that Vendor may use Subscriber’s name, trademark(s) and logo on its website and in its advertising materials to identify Subscriber as a customer of Vendor.

11.12 Modifications of this Agreement. Vendor may modify this Agreement in its sole discretion, at any time.  When changes are made, Vendor will make a new copy of the Agreement available on its website and update the Last Updated date above.  Vendor will also email Subscriber at the last email address Subscriber provided to Vendor.  Unless otherwise specified in Vendor’s notice, any changes will become effective within thirty (30) days of Vendor’s provision of notice of such updates.  Vendor may require Subscriber to provide consent to the updated Agreement in a specified manner before further use of the Vendor Service is permitted.

11.13 Entire Agreement This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters. No waiver of any rights under this Agreement, will be effective unless in writing and signed by an authorized signatory of Subscriber and Vendor.