'PlatformE RealTime' Terms and Conditions
THIS AGREEMENT, first published on November 20, 2023, most recent update on 17th June 2024,
is accepted on the registration date by
PARTIES
(1)
PlatformE International Ltd, a company
registered in England and Wales with company number 04457695 and whose
registered address is at 16 South End, Croydon, Surrey CR0 1DN ('PlatformE'); and
(2)
The customer, meaning a user, group of
users, individual person, company or group of companies that makes a
registration into 'PlatformE RealTime', ('Customer').
BACKGROUND
(A)
PlatformE has developed a web-based sourcing software for
fashion called 'PlatformE RealTime' that helps suppliers, brands, individual users and other
relevant stakeholders to optimize the product development cycle, in order to
reduce time-to-market, by leveraging the power of real-time data and digital
catalogues ('PlatformE RealTime').
(B)
The Customer wishes to use PlatformE RealTime on the terms set out in this
Agreement.
OPERATIVE PROVISIONS
1.
Definitions and interpretation
1.1
The definitions and rules of interpretation set out in Schedule 1, shall
apply to this Agreement.
1.2
This Agreement hereby incorporates the Acceptable Use Policy, Service Level
Agreement, and any Additional Service Terms that may be applicable from time
to time.
1.3
In the event of any conflict in respect of the provisions of this Agreement
and/or the documents referred to therein the following order of priority
shall prevail (in descending order of priority): (i) Commercial Schedule;
(ii) the Service Level Agreement; (iii) Additional Service Terms; (iv) the
main body of this Agreement; and (v) the Documentation.
1.4
Subject to the order of priority between the documents in clause 1.3, later
versions of documents shall prevail over earlier ones if there is any
conflict or inconsistency between them.
1.5
These terms form a binding Agreement between the Customer and PlatformE regarding
the use of PlatformE RealTime. By using PlatformE RealTime, the Customer acknowledges
that accepts and agrees to be bound by this Agreement. If the Customer does not
agree to this Agreement, the customer should not access PlatformE RealTime, and
if the Customer is already registered, the Customer should cancel his/her account.
2.
PlatformE RealTime
2.1
Subject to the Customer's compliance with this Agreement, PlatformE grants
to the Customer a non-exclusive, non-transferable and non-sublicensable
right to allow Authorised Users to access and use PlatformE RealTime during
the Term.
2.2
PlatformE may from time-to-time provide new versions or updates to
PlatformE RealTime at no additional cost to the Customer (excluding
Additional Services and features which shall incur additional fees) in order
to: (a) fix bugs or update security; (b) improve general performance; (c)
enhance current features and functionality; or (d) support new devices and
operating systems.
2.3
The Customer shall purchase the number of Authorised User accounts and
Capacity set out in the Commercial Schedule.
2.4
The Customer may purchase additional Authorised User accounts and
additional Capacity from time to time during the Term by agreement with
PlatformE in writing.
2.5
PlatformE does not own, create, sell, resell, provide, control, manage, offer, delive,
or supply any Products. Providers alone are responsible for their Products, the
quality of the Products and delivery of the Customer’s Product. In case the Customer
has an issue with the Product, the Provider should be contacted. At any moment has
the responsibility for the physical products production, logistics, money transfer
between other parties or taxes. At no moment the physical products belong to PlatformE.
3.
Authorised Users
3.1
The Customer shall at all times be liable for: (a) the acts and omissions
of such Authorised Users as if they were its own; and (b) the Authorised
Users' compliance with this Agreement.
3.2
The Customer, when a company, shall ensure that only Authorised Users access the
Services and that such Authorised Users are employees or contractors of: (a) the
Customer or (b) the third party to whom Account User accounts are assigned
by the Customer. Access to the Services by anyone who is not an Authorised
User is prohibited.
3.3
The Customer acknowledges that Authorised User accounts cannot be shared or
used by more than one individual at the same time.
3.4
The Customer warrants and undertakes that it, and all Authorised Users and
all others acting on its or their behalf (including systems administrators)
shall, keep confidential and not share with any third party (or with other
individuals except those with administration rights at the Customer as
necessary for use of the Services) their password or access details for
PlatformE RealTime.
4.
Additional Services
4.1
The Customer may request Additional Services from PlatformE by submitting a
request in writing to PlatformE. Such Additional Services will incur
additional fees and may be subject to Additional Service Terms.
5.
Support Services
5.1
PlatformE will use reasonable endeavours to notify the Customer in advance
of scheduled maintenance, but the Customer acknowledges that it may receive
no advance notification for downtime caused by Force Majeure or for other
emergency maintenance.
6.
Changes to Services and terms
6.1
PlatformE may at its absolute discretion from time-to-time make changes to
the Documentation or Additional Service Terms. PlatformE shall notify the
Customer of such updates in writing. Such changes shall become effective
from the date 10 Business Days after PlatformE notifies the Customer (or at
such later date as PlatformE may specify).
6.2
In the event that the Customer reasonably believes that any update under
clause 6.1 materially adversely impacts its use of the Services, it may by
notice elect to terminate this Agreement in respect of the impacted
Subscribed Services, provided it exercises such right prior to the taking
effect pursuant to clause 6.1 on not less than five Business Days' prior
written notice and notifies PlatformE at the time of exercising such right
of the negative impact which has caused it to exercise this right. In the
event of such termination the Customer shall receive a refund of any
pre-paid Fees in respect of such terminated Subscribed Services.
6.3
The Customer acknowledges that PlatformE shall be entitled to modify the
features and functionality of PlatformE RealTime, provided that any such
modification does not materially adversely affect the use of PlatformE
RealTime by Authorised Users.
6.4
PlatformE may, without limitation to the generality of clause 6.3,
establish new limits on PlatformE RealTime (or any part), including limiting
the volume of data which may be used, stored or transmitted, remove or
restrict application programming interfaces or make alterations to data
retention periods, provided such changes are made in accordance with this
Agreement.
6.5
The Customer will be able to change the Plan with immediate effects. The invoice
and payment cycle will only consider changes before the 25th day of the cycle. When
the customer decides to change to a year plan, the period starts to count from that
day onwards.
6.6
If the Customer decides to downgrade its Plan, PlatformE is not responsible
for information lost.
7.
Fees
7.1
The License Fees, User Fees, Listing Fees, Additional Service Fees, and any
other charges (including expenses) expressly agreed between the parties in
writing shall be paid by the Customer at the rates and in the manner agreed
between the parties in the Commercial Schedule or otherwise in
writing or present at PlatformE pricing webpate.
7.2
Unless otherwise specified in the Commercial Schedule (or otherwise agreed
in writing), PlatformE shall be entitled to invoice the Customer:
(a)
in respect of License Fees and/or User Fees, on a monthly basis in
arrears (and any additional Authorised User accounts purchased in
accordance with clause 2.4 shall be pro-rated accordingly);
(b)
in respect of Listing Fees, on a monthly basis in arrears (and any
additional Capacity purchased in accordance with clause 2.4 shall be
pro-rated accordingly);
(c)
in respect of Additional Service Fees, as on acceptance in writing by
PlatformE of the Customer's written request for the Additional Services;
and
(d)
in respect of any other Fees, as agreed between the parties in writing
but otherwise monthly in arrears,
and the invoices shall be paid within 30 calendar days of the date on the
invoice.
7.3
The Fees are exclusive of VAT which shall be payable by the Customer at the
rate and in the manner prescribed by law.
7.4
Fees payable to PlatformE under this Agreement shall be paid into
PlatformE's bank account identified on the relevant invoice by electronic
funds transfer unless otherwise notified by PlatformE to the Customer in
writing in accordance with this Agreement. All transfer costs shall be at
the Customer’s responsibility.
7.5
PlatformE shall have the right to charge interest on overdue invoices at
the rate of 8% per year above the base rate of Barclays Bank PLC, calculated
from the date when payment of the invoice becomes due for payment up to and
including the date of actual payment whether before or after judgment.
7.6
PlatformE may increase the Fees for any and all Subscribed Services on an
annual basis with effect from the subsequent Renewal Term up to the higher
of: (i) 5% of the Fees; or (ii) the percentage increase in the consumer
prices index (as published by the United Kingdom's Office for National
Statistics from time to time, or failing such publication, such other index
as the parties may agree most closely resembles such index) in the preceding
12-month period.
7.7
To the extent this Agreement terminates (other than due to termination by
the Customer under clauses 6.2 or 17.3) the Customer shall not be entitled
to any refund or discount of Fees paid for any parts of any period during
which the Services cease to be provided and the Customer will immediately
pay any Fees that would otherwise have been payable (if applicable) for the
duration of the Initial Term or Renewal Term (as applicable).
8.
Warranties
8.1
Subject to the remainder of this clause 8, PlatformE warrants that: (a)
PlatformE RealTime, and each Additional Service, shall operate materially in
accordance with the relevant Documentation when used in accordance with this
Agreement under normal use and normal circumstances; and (b) it will provide
the Services with reasonable care and skill.
8.2
The Customer acknowledges that clause 8.1 does not apply to Free or Trial
Services or to Support Services provided in connection with the same. Free
or Trial Services and Support Services provided in connection with the same
are provided 'as is' and without warranty to the maximum extent permitted by
law.
8.3
The Services may be subject to delays, interruptions, errors or other
problems resulting from use of the internet or public electronic
communications networks used by the parties or third parties. The Customer
acknowledges that such risks are inherent in cloud services and that
PlatformE shall have no liability for any such delays, interruptions, errors
or other problems.
8.4
If there is a breach of any warranty in clause 8.1, PlatformE shall use
reasonable endeavours to repair or replace the impacted Services within a
reasonable time.
8.5
The warranties in clause 8.1 are subject to the limitations set out in
clause 15 (Limitation of Liability) and shall not apply to the extent that
any error in the Services arises as a result of (in whole or in part): (a)
incorrect operation or use of the Services by the Customer or any Authorised
User (including any failure to follow the Documentation); (b) use of any of
the Services other than for the purposes for which it is intended; (c) use
of any Services with third party software or services or on equipment with
which it is incompatible (unless PlatformE recommended or required the use
of that other software or service or equipment in the Documentation); (d)
any act by any third party (including hacking or the introduction of any
virus or malicious code); (e) any modification of Services (other than that
undertaken by PlatformE or at its direction); or (f) any breach of this
Agreement by the Customer (or by any Authorised User).
8.6
PlatformE may make Non-PlatformE Materials available for the Customer's use
in connection with the Services. The Customer agrees that: (a) PlatformE has
no responsibility for the use or consequences of use of any Non-PlatformE
Materials; (b) the Customer's use of any Non-PlatformE Materials shall be
governed by the applicable terms between the Customer and the owner or
licensor of the relevant Non-PlatformE Materials; (c) the Customer is solely
responsible for any Non-PlatformE Materials used in connection with the
Services and for compliance with all applicable third party terms which may
govern the use of such Non-PlatformE Materials; and (d) the continued
availability, compatibility with the Services and performance of the
Non-PlatformE Materials is outside the control of PlatformE and PlatformE
has no responsibility for any unavailability of or degradation in the
Services to the extent resulting from the availability, incompatibility or
performance of any of the Non-PlatformE Materials.
8.7
The Customer acknowledges that no liability or obligation is accepted by
PlatformE (howsoever arising whether under contract, tort, in negligence or
otherwise): (a) that the operation of PlatformE RealTime shall not be
subject to minor errors or defects; or (b) that the Services (including
PlatformE RealTime or any Additional Service) shall be compatible with any
other software or service or with any hardware or equipment except to the
extent expressly referred to as compatible in the relevant Documentation.
8.8
Other than as set out in this clause 8, and subject to clause 15.5, all
warranties, conditions, terms, undertakings or obligations whether express
or implied and including any implied terms relating to quality, fitness for
any particular purpose or ability to achieve a particular result are
excluded to the fullest extent allowed by applicable law.
9.
Customer's responsibilities
9.1
The Customer shall (and shall ensure all Authorised Users shall) at all
times comply with all applicable laws relating to the use or receipt of the
Services, including laws relating to privacy, data protection and use of
systems and communications.
9.2
Use of the Services is at all times subject to the Customer's compliance
with this Agreement and the requirements identified in this Agreement
(including, for the avoidance of doubt, the Documentation and the Acceptable
Use Policy).
9.3
The Customer shall provide PlatformE with: (a) the Pre-Requisites; and (b)
all assistance as PlatformE may reasonably require from time to time, and
the Customer acknowledges that PlatformE's ability to provide Services may
be adversely affected, interrupted and/or delayed if the Customer does not
provide such information, assistance or access.
9.4
PlatformE shall have no liability for any delays, interruptions or other
problems to the extent caused (in whole or in part) by the Customer's
failure to comply with its obligations under this Agreement.
9.5
The Customer agrees to assist PlatformE in the creation of: (a) one or more
case study(ies) concerning the Customer's experiences of the Services; and
(b) testimonials from the relevant business division of the Customer, each
of which PlatformE may use for its business purposes as it sees fit.
9.6
The Customer shall provide Feedback about the Services (including any
improvements, suggestions or bugs) to PlatformE on a no less than quarterly
basis.
9.7
The Customer shall provide reasonable information to PlatformE (as
PlatformE may reasonably request from time to time) about the financial and
sustainability gains achieved by the Customer as a result of using the
Services.
9.8
The Customer shall be solely responsible and liable for the Customer Data
uploaded and configurated in PlatformE RealTime, including Designs and
Design Variants, as well as information such as (but not limited to) lead
times, stock, and pricing.
10.
Intellectual property
10.1
All Intellectual Property Rights in and to the Services (including in
PlatformE RealTime, Documentation, PlatformE Provided Materials, and bespoke
interfaces, but excluding any Customer Provided Materials and Results)
belong to and shall remain vested in PlatformE or the relevant third-party
owner. To the extent that the Customer, any of its Affiliates or any person
acting on its or their behalf acquires any Intellectual Property Rights in
PlatformE RealTime, Documentation, PlatformE Provided Materials or any other
part of the Services, the Customer shall assign or procure the assignment of
such Intellectual Property Rights with full title guarantee (including by
way of present assignment of future Intellectual Property Rights) to
PlatformE or such third party as PlatformE may elect. The Customer shall
execute all such documents and do such things as PlatformE may consider
necessary to give effect to this clause 10.1.
10.2
All Intellectual Property Rights in and to the Customer Provided Materials,
Customer Data and Results belong to and shall remain vested in the Customer
or the relevant third-party owner. The Customer and Authorised Users may
store or transmit Customer Data using PlatformE RealTime and PlatformE
RealTime may interact with Customer Systems. The Customer hereby grants a
royalty-free, non-transferable, non-exclusive licence for PlatformE (and
each of its direct and indirect sub-contractors) to use, copy and other
otherwise utilise the Customer Data, Results, Customer Provided Materials,
and Customer Systems to the extent necessary to perform, provide, improve or
enhance the Services or to exercise or perform PlatformE's rights, remedies
and obligations under this Agreement.
10.3
To the extent Non-PlatformE Materials are made available to, or used by or
on behalf of the Customer or any Authorised User in connection with the use
or provision of PlatformE RealTime, such use of Non-PlatformE Materials
(including all licence terms) shall be exclusively governed by applicable
third-party terms notified or made available by PlatformE or the third party
and not by this Agreement. PlatformE grants no Intellectual Property Rights
or other rights in connection with any Non-PlatformE Materials.
10.4
PlatformE may use any feedback and suggestions for improvement relating to
the Services provided by the Customer or any Authorised User without charge
or limitation ('Feedback'). The Customer hereby assigns (or shall or procure
the assignment) of all Intellectual Property Rights in the Feedback with
full title guarantee (including by way of present assignment of future
Intellectual Property Rights) to PlatformE at the time such Feedback is
first provided to PlatformE.
10.5
Except for the rights expressly granted in this Agreement, the Customer,
any Authorised User and their direct and indirect sub-contractors, shall not
acquire in any way any title, rights of ownership, or Intellectual Property
Rights of whatever nature in the Services (or any part including PlatformE
RealTime or Documentation) and no Intellectual Property Rights of either
party are transferred or licensed as a result of this Agreement.
10.6
The Customer hereby grants PlatformE a limited, revocable, non-exclusive,
non-transferable, worldwide and royalty-free licence to use the Customer's
name, logo and trade mark in order to refer to the supply by PlatformE of
the Services on PlatformE's website and in PlatformE's sales and promotion
material.
10.7
PlatformE agrees, in relation to its use of the names and trademarks
described in clause 10.6, to adhere to the reasonable instructions of the
Customer as to the form and manner in which the marks may be used and shall
adhere to the Customer's brand guidelines (as notified to PlatformE from
time-to-time).
10.8
The Customer and Authorised Users will not remove, obscure, or alter
PlatformE's copyright notices, trademarks, other proprietary rights notices,
or any other content of any kind appearing in the Services, PlatformE
RealTime, or Documentation. Nothing in this Agreement shall transfer or
assign any right, title or interest in the applicable product or components
of the Services to the Customer.
10.9
The Customer grants PlatformE a non-exclusive, irrevocable, perpetual,
worldwide licence to use the case studies created in accordance with clause
9.5.
10.10
The Customer can only post and/or upload Intellectual Property that is either owned
by the Customer or for which the Customer has written authorization from the Intellectual
Property owner. The Customer represents and warrants that any Intellectual Property
posted by the Customer is owned by the Customer or that the Customer has authorization
from the Intellectual Property owner to post it. The Intellectual Property must
comply with international trademark and copyright laws. The Customer will provide
PlatformE with evidence of the Customer Intellectual Property Rights if requested
by PlatformE. If the Customer believes that someone has improperly used the Custome's
copyrights or trademarks, the Customer should report it to
PlatformE at support@platforme.com.
10.11
This clause 10 shall survive the termination of this Agreement.
11.
PlatformE indemnity
11.1
Subject to clauses 11.2 and 11.5, PlatformE shall indemnify, keep
indemnified and hold harmless the Customer from and against any losses,
claims, damages, liability, costs (including legal and other professional
fees) and expenses incurred by it (or any of its Affiliates) as a result of
any third party alleging that the Customer's use of the Services infringes
any Intellectual Property Right (an 'IP Claim').
11.2
The provisions of clause 11.1 shall not apply unless the Customer: (a)
promptly (and in any event within 20 Business Days) notifies PlatformE upon
becoming aware of any actual or threatened IP Claim and provides full
written particulars; (b) makes no comment or admission and takes no action
that may adversely affect PlatformE's ability to defend or settle the IP
Claim; (c) provides all assistance reasonably required by PlatformE subject
to PlatformE paying the Customer's reasonable costs; and (d) gives PlatformE
sole authority to defend or settle the IP Claim as PlatformE considers
appropriate.
11.3
The provisions of clause 15 (Limitation of Liability) shall apply to any
payment of costs and damages awarded or agreed in settlement or final
judgment of an IP Claim under clause 11.1.
11.4
In the event of any IP Claim PlatformE may elect to terminate this
Agreement immediately by written notice and promptly refund to the Customer
on a pro-rata basis for any unused proportion of Fees paid in advance. This
clause 11.4 is without prejudice to the Customer's rights and remedies under
clauses 11.1.
11.5
PlatformE shall have no liability or obligation under this clause 11 in
respect of any IP Claim which arises in whole or in part from: (a) any
modification of the Services (or any part) without PlatformE's express
written approval; (b) any Non-PlatformE Materials; (c) any Customer Data;
(d) any breach of this Agreement by the Customer; (e) installation or use of
the Services (or any part) otherwise than in accordance with this Agreement;
or (f) installation or use of the Services (or any part) in combination with
any software, hardware or data that has not been supplied or expressly
authorised by PlatformE.
11.6
Subject to clause 15 (Limitation of Liability) the provisions of this
clause 11 set out the Customer's sole and exclusive remedy (howsoever
arising, including in contract, tort, negligence or otherwise) for any IP
Claim.
12.
Customer indemnity
12.1
Subject to clauses 12.2 and 12.3, the Customer shall indemnify, keep
indemnified and hold harmless PlatformE (on PlatformE's own behalf and on
behalf of each of PlatformE's Affiliates) from and against any losses,
claims, damages, liability, costs (including legal and other professional
fees) and expenses incurred by it (or any of its Affiliates) as a result of
any third party alleging that the Customer Provided Materials or Customer
Data (without prejudice to PlatformE's obligations under applicable data
protection law) infringes the rights, including any Intellectual Property
Rights, of a third party.
12.2
The provisions of clause 12.1 shall not apply unless PlatformE: (a)
promptly (and in any event within 20 Business Days) notifies the Customer
upon becoming aware of any actual or threatened claim and provides full
written particulars; (b) makes no comment or admission and takes no action
that may adversely affect the Customer's ability to defend or settle the
claim; (c) provides all assistance reasonably required by the Customer
subject to the Customer paying PlatformE's reasonable costs; and (d) gives
the Customer sole authority to defend or settle the claim as the Customer
considers appropriate.
12.3
The Customer shall have no liability or obligation under this clause 12 in
respect of any claim which arises in whole or in part from: (a) any breach
of this Agreement by PlatformE; or (b) use of the Customer Provided
Materials or Customer Data (or any part) otherwise than in accordance with
the Customer's instructions.
12.4
This clause 12 shall survive termination of this Agreement.
13.
Customer Systems and Customer Data
13.1
The Customer acknowledges that the Services do not include dedicated data
back up or disaster recovery facilities (and the Customer should ensure it
at all times maintains backups of all Customer Data).
13.2
Customer Data shall at all times remain the property of the Customer or its
licensors.
13.3
Except to the extent PlatformE has direct obligations under applicable data
protection laws, the Customer acknowledges that PlatformE has no control
over which Customer Data is hosted as part of the provision of the Services
and may not actively monitor or have access to the content of the Customer
Data. The Customer shall ensure (and is exclusively responsible for) the
accuracy, quality, integrity and legality of the Customer Data and that its
use (including use in connection with the Service) complies with all
applicable laws.
13.4
If PlatformE becomes aware of any allegation that any Customer Data may not
comply with this Agreement, PlatformE shall have the right to delete or
otherwise remove or suspend access to any Customer Data which is suspected
of being in breach of any of the foregoing from the Services and/or disclose
Customer Data to law enforcement authorities (in each case without the need
to consult the Customer). Where reasonably practicable and lawful PlatformE
shall notify the Customer before taking such action.
13.5
Except as otherwise expressly agreed in this Agreement, PlatformE shall not
be obliged to provide the Customer with any assistance extracting,
transferring or recovering any data whether during or after the Term. The
Customer acknowledges and agrees that it is responsible for maintaining safe
backups and copies of any Customer Data, including as necessary to ensure
the continuation of the Customer's business. The Customer shall, without
limitation, ensure that it backs up (or procures the back up of) all
Customer Data regularly (in accordance with its and its' Authorised User's
needs) and extracts it from PlatformE RealTime prior to the termination of
this Agreement or the cessation or suspension of any of the Services.
13.6
Unless otherwise agreed by the parties in writing, the Customer hereby
instructs that PlatformE shall within 60 days of the end of the provision of
the Services (or any part) relating to the processing of the Customer Data
securely dispose of such Customer Data processed in relation to the Services
(or any part) which have ended (and all existing copies of it) except to the
extent that any applicable law requires PlatformE to store such Customer
Data. PlatformE shall have no liability (howsoever arising, including in
negligence) for any deletion or destruction of any such Customer Data
undertaken in accordance with this Agreement.
14.
Relief
14.1
To the maximum extent permitted by law, PlatformE shall not be liable for
any breach, delay or default in the performance of this Agreement to the
extent the same (or the circumstances giving rise to the same) arises or was
contributed to by any Relief Event.
15.
Limitation of liability
15.1
The extent of the party's liability under or in connection with this
Agreement (regardless of whether such liability arises in tort, contract or
in any other way and whether or not caused by negligence or
misrepresentation or under any indemnity) shall be as set out in this clause
15.
15.2
Subject to clause 15.6, PlatformE's total aggregate liability howsoever
arising under or in connection with this Agreement shall not exceed £5,000.
.
15.3
Subject to clause 15.6, PlatformE's aggregate liability in respect of each
individual Free or Trial Service (and all Support Services provided in
connection with the same) (howsoever arising under or in connection with
this Agreement) shall not exceed £5,000.
15.4
Subject to clause 15.6, PlatformE shall not be liable for consequential,
indirect or special losses.
15.5
Subject to clause 15.6, PlatformE shall not be liable for any of the
following (whether direct or indirect): loss of profit or revenue;
destruction, loss of use or corruption of data; loss or corruption of
software or systems; loss or damage to equipment; loss of use; loss of
production; loss of contract; loss of opportunity; loss of savings, discount
or rebate (whether actual or anticipated); and/or harm to reputation or loss
of goodwill.
15.6
Notwithstanding any other provision of this Agreement, PlatformE's
liability shall not be limited in any way in respect of the following: (a)
death or personal injury caused by negligence; (b) fraud or fraudulent
misrepresentation; or (c) any other losses which cannot be excluded or
limited by applicable law.
15.7
PlatformE is not responsible for the physical products created, sold or transacted
via the use of Real Time. The full responsibility of the physical products, including
quality, invoicing, logistic and customer support is not transferred to PlatformE
or Real time. As a consequence, PlatformE is not responsible for production order
creation or implementation.
15.8
This clause 15 shall survive the termination of this Agreement.
16.
Suspension
16.1
PlatformE may suspend access to the Services to all or some of the
Authorised Users if: (a) PlatformE reasonably suspects that there has been a
serious misuse of the Services; or (b) the Customer fails to pay any sums
due to PlatformE by the due date for payment and such amount remains unpaid
within 15 Business Days after the Customer has received notification that
the payment is overdue.
16.2
Where the reason for the suspension is suspected misuse of the Services,
without prejudice to its rights under clause 17, PlatformE will take steps
to investigate the issue and may restore or continue to suspend access at
its discretion (acting reasonably).
16.3
In relation to suspensions under clause 16.1, access to the Services will
be restored promptly after PlatformE receives payment in full and cleared
funds.
16.4
Fees shall remain payable during any period of suspension notwithstanding
that the Customer or some or all of the Authorised Users may not have access
to the Services.
17.
Term and termination
17.1
This Agreement shall come into force on the Effective Date and, unless
terminated earlier in accordance with its terms, shall continue for the
duration of the Term.
17.2
After the Initial Term (or Renewal Term, as applicable), this Agreement
shall automatically renew for a Renewal Term on the anniversary of the
Effective Date, unless either party provides the other with written notice
of non-renewal no later than 30 days prior to the expiration of the Initial
Term or any Renewal Term (as applicable). This clause 17.2 shall not apply
in respect of Free or Trial Services (which shall not renew unless otherwise
expressly stated in the Commercial Schedule).
17.3
Either party may terminate this Agreement immediately at any time by giving
notice in writing to the other party if: (a) the other party commits a
material breach of this Agreement and such breach is not remediable; (b) the
other party commits a material breach of this Agreement which is not
remedied within 20 Business Days of receiving written notice of such breach;
or (c) the other party has failed to pay any amount due under this Agreement
on the due date and such amount remains unpaid within 15 Business Days after
the other party has received notification that the payment is overdue.
17.4
PlatformE may terminate or suspend the provision of Free or Trial Services
(and all related Support Services) at any time with or without notice.
17.5
Immediately on termination of this Agreement (for any reason), the rights
granted by PlatformE under this Agreement shall terminate and the Customer
shall (and shall procure that each Authorised User shall) stop using the
Services and destroy and delete or, if requested by PlatformE, return any
copies of the Documentation in its possession or control (or in the
possession or control of any person acting on behalf of any of them).
17.6
Termination of this Agreement shall not affect any accrued rights and
liabilities of either party at any time up to the date of termination and
shall not affect any provision of this Agreement that is expressly or by
implication intended to continue beyond termination.
18.
Miscellaneous
18.1
Data protection. PlatformE and the
Customer shall comply with all applicable data protection laws in respect of
the Services.
18.2
Confidentiality. Each party undertakes
that it shall not at any time during the Term and for a period of five (5)
years after termination of this Agreement, disclose to any person any
confidential information concerning the business, affairs, customers,
clients or suppliers of the other party, except as permitted by this clause
18.2. Each party may disclose the other party's confidential information:
(i) to its employees, officers, representatives or advisers who need to know
such information for the purposes of exercising the party's rights or
carrying out its obligations under this Agreement. Each party shall ensure
that its employees, officers, representatives or advisers to whom it
discloses the other party's confidential information comply with this clause
18.2; and (ii) as may be required by law, a court of competent jurisdiction
or any governmental or regulatory authority. Neither party shall use the
other party's confidential information for any purpose other than to
exercise its rights and perform its obligations under or in connection with
this Agreement.
18.3
Entire agreement. This Agreement
constitutes the entire agreement between the parties and supersedes all
previous agreements, understandings and arrangements between them in respect
of its subject matter, whether in writing or oral. Each party acknowledges
that it has not entered into this Agreement in reliance on, and shall have
no remedies in respect of, any representation or warranty that is not
expressly set out in this Agreement. Nothing in this Agreement shall limit
or exclude any liability for fraud.
18.4
Notices. Any notice given by a party
under this Agreement shall be sent by email and shall be deemed to have been
received at the time of transmission, or, if this time falls outside
business hours in the place of receipt, when business hours resume. Notices
to PlatformE shall be sent to finance@platforme.com and notices to the
Customer shall be sent to the email address specified in the Commercial
Schedule. This clause 18.4 does not apply to notices given in legal
proceedings or arbitration.
18.5
Variation. Without prejudice to clause
6, no variation of this Agreement shall be valid or effective unless it is
made in writing, refers to this Agreement and is duly signed or executed by,
or on behalf of, each party.
18.6
Assignment and subcontracting. Except as
expressly provided in this Agreement, PlatformE may at any time assign,
sub-contract, sub-licence (including by multi-tier), transfer, mortgage,
charge, declare a trust of or deal in any other manner with any or all of
its rights or obligations under this Agreement. Except as expressly
permitted by this Agreement, the Customer shall not assign, transfer,
sub-contract, sub-licence, mortgage, charge, declare a trust of or deal in
any other manner with any or all of its rights or obligations under this
Agreement (including the licence rights granted), in whole or in part,
without PlatformE's prior written consent.
18.7
Set off. Each party shall pay all sums
that it owes to the other party under this Agreement without any set-off,
counterclaim, deduction or withholding of any kind, save as may be required
by law.
18.8
No partnership or agency. The parties
are independent and are not partners or principal and agent and this
Agreement does not establish any joint venture, trust, fiduciary or other
relationship between them, other than the contractual relationship expressly
provided for in it. Neither party shall have, nor shall represent that it
has, any authority to make any commitments on the other party's behalf.
18.9
Severance. If any provision of this
Agreement (or part of any provision) is or becomes illegal, invalid or
unenforceable, the legality, validity and enforceability of any other
provision of this Agreement shall not be affected. If any provision of this
Agreement (or part of any provision) is or becomes illegal, invalid or
unenforceable but would be legal, valid and enforceable if some part of it
was deleted or modified, the provision or part-provision in question shall
apply with such deletions or modifications as may be necessary to make the
provision legal, valid and enforceable. In the event of such deletion or
modification, the parties shall negotiate in good faith in order to agree
the terms of a mutually acceptable alternative provision.
18.10
Waiver. No failure, delay or omission by
either party in exercising any right, power or remedy provided by law or
under this Agreement shall operate as a waiver of that right, power or
remedy, nor shall it preclude or restrict any future exercise of that or any
other right, power or remedy. No single or partial exercise of any right,
power or remedy provided by law or under this Agreement shall prevent any
future exercise of it or the exercise of any other right, power or remedy. A
waiver of any term, provision, condition or breach of this Agreement shall
only be effective if given in writing and signed by the waiving party, and
then only in the instance and for the purpose for which it is given.
18.11
Third party rights. A person who is not
a party to this Agreement shall not have any rights under the Contracts
(Rights of Third Parties) Act 1999 to enforce any of its provisions.
18.12
Authority. Each party represents and
warrants to the other that it has the right, power and authority to enter
into this Agreement and grant to the other the rights (if any) contemplated
in this Agreement and to perform its obligations under this Agreement.
18.13
Governing law and jurisdiction. This
Agreement and any dispute or claim arising out of, or in connection with,
it, its subject matter or formation (including non-contractual disputes or
claims) shall be governed by, and construed in accordance with, the laws of
England and Wales. The parties irrevocably agree that the courts of England
and Wales shall have exclusive jurisdiction to settle any dispute or claim
arising out of, or in connection with, this Agreement, its subject matter or
formation (including non-contractual disputes or claims).
Schedule 1
Definitions and interpretation
1
In this Agreement:
| 'Account Users' |
Authorised Users who have 'account user' functionality, as further
described in the Documentation;
|
| 'Additional Service Fee' |
in respect of each Additional Service, the fees payable by the
Customer in consideration of that Additional Service, as notified to
Customer by PlatformE in writing;
|
| 'Additional Service Terms' |
in respect of each Additional Service, any specific additional or
amended terms that are relevant to that Additional Service (as updated
from time to time) and made available to the Customer;
|
| 'Additional Services' |
the additional services (including additional features or
functionality) and deliverables available from PlatformE from time to
time and as may be requested by the Customer. By way of illustration,
Additional Services may include: 3D creation; 3DBuild Packaging (PRC
and CSR); 3D Consultancy; Tech Consultancy; and Project Management;
|
| 'Affiliate' |
in respect of any entity, any entity that directly or indirectly
controls, is controlled by or is under common control with that entity
within the meaning set out in section 1124 of the Corporation Tax Act
2010;
|
| 'Authorised Users' |
the users authorised by the Customer to use PlatformE RealTime in
accordance with the terms of this Agreement, comprising Head Users and
Account Users;
|
| 'Business Day' |
a day other than a Saturday, Sunday or bank or public holiday in
Portugal;
|
| 'Capacity' |
the number of Designs and Design Variants available to be used by the
Customer on PlatformE Real Time;
|
| 'Commercial Schedule' |
the commercial terms agreed between the parties in respect of this
Agreement, as set out at Schedule 2;
|
| 'Customer Data' |
all data (in any form) that is provided to PlatformE or uploaded or
hosted on any part of any Subscribed Service by the Customer or by any
Authorised User, including Designs and Design Variants (but excluding
Feedback);
|
| 'Customer Provided Materials' |
all of the Materials provided or made available by or on behalf of the
Customer;
|
| 'Customer Systems' |
all software and systems used by or on behalf of the Customer, any of
its direct or indirect sub-contractors, or any Authorised User in
connection with the provision or receipt any of the Services or that
the Services otherwise, link, inter-operate or interface with or
utilise (in each case whether directly or indirectly);
|
| 'Designs' |
designs of products that can be uploaded onto PlatformE RealTime; |
| 'Design Variant ' |
changeable aspects of a Design (or part of a Design), being colour and
materials, that can be uploaded to PlatformE RealTime;
|
| 'Documentation' |
all information, materials, instructions and documentation made
available to the Customer by PlatformE from time to time, relating to
the use and operation of the Services, including but not limited to
any technical specification requirements and guidelines (for example
on preparing files for PlatformE RealTime, and utilisation rules);
|
| 'Effective Date' |
the date at the beginning of this Agreement; |
| 'Feedback' |
has the meaning given to it in clause 10.4; |
| 'Fees' |
the User Fee, the Listing Fee, any Additional Service Fee and any
other amounts payable to PlatformE under this Agreement;
|
| 'Force Majeure' |
an event or sequence of events beyond a party's reasonable control
preventing or delaying it from performing its obligations under this
Agreement (provided that an inability to pay is not Force Majeure),
including any matters relating to transfer of data over public
communications networks and any delays or problems associated with any
such networks or with the internet;
|
| 'Free or Trial Service' |
means any Subscribed Service identified as being provided on a trial
basis or provided without charge (for the duration of the period
during which it is provided on such basis);
|
| 'Head Users' |
Authorised Users who have 'head user' functionality, as further
described in the Documentation;
|
| 'Individual Person' |
refers to a single human being, distinct from a corporate or legal entity, who is
recognized by law as having certain rights and responsibilities. At least 18 years
of age, capable of entering into contracts, being subject to legal obligations,
and exercising their legal rights. Furthermore, an Individual Person is solely responsible
for their actions and decisions.
|
| 'Initial Term' |
a period of 1 year from the Effective Date; |
| 'Intellectual Property Rights' |
any and all copyright, neighbouring and related rights, rights in
inventions, patents, know-how, trade secrets, trade marks and trade
names, service marks, design rights, rights in get-up, database rights
and rights in data, semiconductor chip topography rights, utility
models, domain names and all similar rights and, in each case (a)
whether registered or not; (b) including any applications to protect
or register such rights; (c) including all renewals and extensions of
such rights or applications; (d) whether vested, contingent or future;
and (e) wherever existing;
|
| 'IP Claim' |
has the meaning given to it in clause 11.1; |
| 'Listing Fee' |
the fees payable by the Customer for access to and use of the
Capacity, as set out in the Commercial Schedule or, in the case of the
purchase of additional Capacity by the Customer during the Term, as
notified by PlatformE to Customer in writing;
|
| 'Materials' |
all services, data, information, content, Intellectual Property
Rights, websites, software and other materials provided in connection
with the Services, but excluding all Customer Data;
|
| 'Non-PlatformE Materials' |
Materials provided, controlled or owned by or on behalf of a third
party the use of which is subject to a separate agreement or licence
between the Customer and the relevant third party (including such
Non-PlatformE Materials which may be linked to, interact with or used
by the Services) and all other Materials expressly identified as
Non-PlatformE Materials in this Agreement;
|
| 'Plan' |
Pricing Plan for the use of Real Time, available in
PlatformE Website.
|
| 'PlatformE Provided Materials' |
all of the Materials provided or made available by or on behalf of
PlatformE, but excluding all Customer Data and all Non-PlatformE
Materials;
|
| 'PlatformE RealTime' |
has the meaning given to it in the 'Background' section of this
Agreement;
|
| 'Pre-Requisites' |
the pre-requisite information the Customer must provide to PlatformE
to use the Services, as notified to the Customer by PlatformE in
writing or set out in the Documentation, including, for the avoidance
of doubt, visual assets according to PlatformE's written guidelines as
notified to the Customer (as may be updated from time to time);
|
| 'Products' |
refers to all products offered by different Providers on our Website including,
but not limited to clothing, accessories, footwear, and and other;
|
| 'Providers' |
refers to the organisations and companies, including its third-party contract
manufacturer, that PlatformE partners within the scope of its Service to offer
Products to the Customer;
|
| 'Registration' |
the act of creating an account on PlatformE RealTime |
| 'Relief Event' |
(a)
any breach of this Agreement by the Customer; or
(b)
any Force Majeure;
|
| 'Renewal Term' |
a period of 1 year renewing on each anniversary of the Effective Date; |
| 'Results' |
the output created by the Customer on PlatformE RealTime; |
| 'Service Level Agreement' |
means the service level agreement agreed between PlatformE and the
Customer in respect of the Services;
|
| 'Services' |
the Subscribed Services, Additional Services and Support Services; |
| 'Special Terms' |
any terms set out in paragraph 3 of the Commercial Schedule; |
| 'Subscribed Services' |
the access to PlatformE RealTime and any Additional Services to which
the Customer has subscribed (and 'Subscribed Service' shall refer to
each respective service separately);
|
| 'Support Services' |
in respect of the Subscribed Service, the support services provided by
PlatformE to the Customer;
|
| 'Term' |
means the Initial Term and Renewal Term(s) (if any); |
| 'User Fee' |
the fees payable by the Customer for access to PlatformE RealTime by
Authorised Users, as set out in the Commercial Schedule or, in the
case of the purchase of additional Authorised Users by the Customer
during the Term, as notified by PlatformE to Customer in writing; and
|
| 'VAT' |
means United Kingdom value added tax, any other tax imposed in
substitution for it and any equivalent or similar tax imposed outside
the United Kingdom;
|
2
In this Agreement, unless otherwise stated:
2.1
the table of contents, recitals section and the clause, paragraph, schedule
or other headings in this Agreement are included for convenience only and
shall have no effect on interpretation;
2.2
PlatformE and the Customer are together the 'parties' and each a 'party',
and a reference to a 'party' includes that party's successors and permitted
assigns;
2.3
words in the singular include the plural and vice versa;
2.4
any words that follow 'include',
'includes',
'including',
'in particular' or any similar words and
expressions shall be construed as illustrative only and shall not limit the
sense of any word, phrase, term, definition or description preceding those
words;
2.5
a reference to 'writing' or
'written' includes any method of reproducing
words in a legible and non-transitory form (including email);
2.6
the Schedules to this Agreement form part of (and are incorporated into)
this Agreement;
2.7
any defined terms used in a Schedule shall have the same meaning as set
forth for such terms in this Agreement;
2.8
a reference to specific legislation is a reference to that legislation as
amended, extended, re-enacted or consolidated from time to time and a
reference to legislation includes all subordinate legislation made as at the
date of this Agreement under that legislation; and
2.9
a reference to any English action, remedy, method of judicial proceeding,
court, official, legal document, legal status, legal doctrine, legal concept
or thing shall, in respect of any jurisdiction other than England, be deemed
to include a reference to that which most nearly approximates to the English
equivalent in that jurisdiction.
Schedule 2
Commercial Schedule
To be individually shared by Platforme commercial team.
