Terms of use
TERMS OF USE (March 2011)I. INTRODUCTION
These terms and conditions (the “Terms”), and the Purchase / Subscription Order(s) (“Purchase Order”, as defined below) together form the Agreement (“Agreement”) that govern the use by (“Client”) of the following products and services provided by Beautystreams, Inc. (“Beautystreams”): (a) license(s) to access the Beautystreams Content; (b) lll Services (Insight – Inspiration – Intelligence) (“Services”); and/or (c) Bespoke Consulting (“Bespoke”) (each as defined below).
II. DEFINITIONS
1. In the Agreement, the following words shall have the following meanings:
“lll Services” means the standard services provided by Beautystreams for Client using the Beautystreams Content;
“Affiliate” means any entity controlling, controlled by or under common control with Client or Beautystreams;
“Beautystreams Authorized Signatory” means any individual on the Beautystreams executive team authorized to enter into legally binding agreements on the behalf of Beautystreams, Inc.;
“Beautystreams Content” means Beautystreams or its licensors’ reports, opinions, blogs, product comparisons, methodologies, spreadsheets, graphics, tables, charts, images, data, mood-boards, assessment tools, formulas and algorithms and all other proprietary content and material provided on the Site or to Client in other forms or as an output of the Services and any enhancements and modifications thereto, regardless of the means of access, posting or delivery;
“Beautystreams Products” means the Beautystreams Content, lll Services and the Bespoke Consulting Product as applicable;
“Bespoke Consulting” means the services provided by Beautystreams for Client, which may include consulting and design;
“Bespoke Produtcs” means the components to be delivered (if any), which may include Beautystreams Content, customized projects produced for Client by Beautystreams as part of the Bespoke Consulting as identified in the relevant Purchase Subscription Document;
“Fees” means the cost and fees specified in any Purchase Order to be paid by Client to Beautystreams for (a) the Beautystreams Content; and/or (b) lll Services; and/or (c) Bespoke Consulting;
“Confidential Information” means all non-public information in any form, divulged or made available in connection with the Agreement by or on behalf of one party (“Disclosing Party”) to the other (“Receiving Party”) which is marked confidential or restricted, or would be understood by a reasonable person in the Receiving Party’s position to be confidential;
“Effective Date” means the date when the first Purchase Order is executed by the parties incorporating the terms of the Beautystreams Terms;
“Entity” or “Client Entity” means the Client legal entity including Client’s Affiliates;
“Force Majeure” means any cause preventing a party from performing any or all of its obligations under the Agreement which arises from or is attributable to strikes, lock-outs or other industrial disputes, nuclear accident or acts of God, war or terrorist activity, riot, civil commotion, malicious damage (excluding malicious damage involving the employees of the affected party or its sub-contractors), compliance with any law or governmental order, rule, regulation or direction, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors and, where they are beyond the reasonable control of the party so prevented, any other acts, events, omissions or accidents;
“ID” means the username and password assigned to each User to use and access the Beautystreams Content;
“Privacy Policy” means the Beautytreams privacy policy as published on the Site (and as may be varied from time to time by Beautystreams upon posting on the Site);
“Purchase Subscription Order” means each separate document forming part of the Agreement which Client completes to receive (a) the Beautytreams Content; and/or (b) lll Services; and/or (c) Bespoke Consulting;
“Renewal Date” means the date set out in a Purchase Document for renewal of the Beautystreams Content or lll Services;
“Renewal Term” means, relating back to a Purchase Order, each automatic period of renewal following the Term, which will have a duration equivalent to the Term for that Purchase Order;
“Services” means the lll Services and Bespoke Consulting as applicable;
“Site” means the website(s) run by Beautystreams, incorporating the Beautystreams Content;
“Term” means the minimum period of the license set out in the Purchase Order;
“User” means each Client employee, consultant or contractor of Client who has been nominated by Client and approved by Beautystreams to have access to or otherwise be supplied with the Beautystreams Content subscribed for by Client;
“User License” means a license granted to User(s) to use Beautystreams Content during the Term and any Renewal Term in accordance with the terms of the Agreement;
“Website Terms” means the website terms governing use of the Site as published on the Site (and as may be varied from time to time by Beautystreams upon posting on the Site);
III. CLIENT OBLIGATIONS
1. Client will ensure that all use of Beautystreams Products and the Site by Client (including its User(s) will be made in accordance with the Agreement.
2. Client shall pay the Fees in accordance with the payment terms set out in each Purchase Subscription Order.
3. The Client shall permit Beautystreams to take such steps as Beautystreams reasonably considers appropriate to monitor compliance by the Client and User(s) with the provisions of the Agreement and shall co-operate fully with Beautystreams in relation to such monitoring.
IV. USER LICENCE FOR BEAUTYSTREAMS CONTENT
1. All intellectual property rights in the Beautystreams Products are reserved by Beautystreams, or its licensors (as applicable) and no such rights whatsoever are assigned or transferred to Client or User(s) under the Agreement. Any misappropriation or unauthorized use of the Beautystreams Products may unfairly and irreparably harm Beautystreams, Inc., and/or its licensors. Client shall not commit or permit any act or omission that would compromise Beautystreams’, or its licensors’ proprietary and/or intellectual property rights in the Beautystreams Products.
2. Any User License granted to Client to the Beautystreams Content shall be a non-transferable, non-exclusive, limited license for the number of Users and types of products specified in the Purchase Order to access the Beautystreams Content (except in the case of use under Clause IV.4A) for the benefit of the Client Entity only for the period set out in the Purchase Document. No other use of the Beautystreams Content (in whole or in part) may be made without the prior written approval of a Beautystreams Authorized Signatory. Any such approval shall not constitute either a general consent or a waiver of other provisions of the Agreement.
3. Subject to Clause V.2, (Bespoke Consulting agreement), a User License is required for each User that has access to the Beautystreams Content. The ID is strictly to be used by the User to which it was assigned only and shall not be used by any other individual. Failure to comply with this requirement shall constitute a breach of the Agreement and entitles Beautystreams to suspend all Client access to the Beautystreams Content.
4. A User License entitles the User to:
◦ 1. Download and display any page from the Site on a computer screen;
◦ 2. Download and store Beautystreams Content on the hard disk of the computer, portable
media player or, Beautystreams My Atelier (where appropriate) of the User;
◦ 3. Print any page on the Site;
◦ 4. Use extracts from the Beautystreams Content to form a collage of ideas (in either
electronic or hard copy form) provided that:
(i) the Beautystreams Content is properly credited;
(ii) the collage is used strictly within the Client Entity; and not for external
commercial and/or promotional use;
4. B User License also entitles the User to share, by means of the transfer by e-mail, of files from the Beautystreams Image Bank, Beautystreams Content with manufacturer or supplier partner of the Client Entity (but not including any fashion and/or style information service) for the purpose of discussion only between the User and such third party and not for re-use or further dissemination by third party for any commercial purpose; and provided that the Client brings such limitation clearly to the attention of any such third party, and such third party agrees that the terms of Clauses 5 and 6 below shall apply to the use of such Beautystreams Content by such third party as if such third party were the “Client”.
5. Client shall not distribute, reproduce, modify, store, transfer or in any other way use any of the Beautystreams Content, Services and Products (including by using it as part of any library, news, information, archive, website or similar service), except as set out above.
6. Subject to the permission of Clause IV.4, Client shall not (and shall ensure that its User(s) shall not) sell, lease, transfer, sub-license or otherwise make available or permit access to the Beautystreams Content or any portion thereof, to any third party or any employee, consultant or contractor other than the Users. Client shall be fully responsible for the User(s)’s use of the Beautystreams Content and ensuring it is made strictly in accordance with the Agreement.
V. SERVICES AND BESPOKE CONSULTING
1. Beautystreams warrants that the Services will be performed using reasonable care and skill and in accordance with the description set out in the Purchase Subscription Document.
2. In the event that the Purchase Order specifies that Beautystreams is to produce Bespoke Consulting, Beautystreams grants Client a non-exclusive, non-transferable, limited license to use the Consulting including any Beautystreams Content provided therein.
VI. WARRANTIES AND LIMITATION OF LIABILITY
1. Client agrees that the Beautystreams Products, Sevices and Consulting are provided only for general information and are not intended to address particular requirements of Client. In particular, the Beautystreams Products, Services and Consulting do not constitute any form of advice, recommendation or arrangement by Beautystreams, Inc., and shall not be relied upon by Client or User in making (or refraining from making) any specific investment or other business or personal decisions and acknowledges that further professional advice should be obtained before making any such decision.
2. Beautystreams, Inc., will deploy anti-virus software across its IT assets and Site but makes no warranty that the Beautystreams Content, Services and Bespoke are free from infection, viruses or anything else that has contaminating or destructive properties. Beautystreams, Inc., will endeavor to ensure uninterrupted, error-free or secure services; any defects therein will be corrected.
3. Because of the number of outside sources from which Beautystreams, Inc. obtains content and of the nature of electronic distribution via the world wide web, Beautystreams Content is provided on an “as available” basis. Beautystreams will give its best effort to ensure accuracy, timeliness, and completeness, but declines to give a warrant of fitness for a particular purpose. Beautystreams, Inc. reserves the right to modify the Beautystreams Content at any time.
4. Beautystreams, Inc. does not warrant, endorse, guarantee or assume responsibility for any product or service (i) advertised by a third party on the Site or (ii) offered by a third party through any site hyperlinked to the Site or make any representations about their content or availability. Any use or resultant transaction is made entirely at Client’s own risk and Beautystreams accepts no liability for any losses resulting from such action. Please note that Beautystreams gives no warranty that links to third party sites on the Site shall be marked as such.
5. All implied warranties are excluded from the Agreement to the extent that they may be excluded as a matter of law.
6. Beautystreams’ aggregate liability in respect of any loss, damage, liabilities and expenses suffered by Client (or its User(s) or Affiliates) in respect of any Term or Renewal Term and arising out of or in connection with the Agreement, whether in contract, tort (including negligence) or for breach of statutory duty or in any other way, shall not exceed the Fees paid by Client for that Term or Renewal Term. Beautystreams shall not be liable in contract, tort (including negligence) or for breach of statutory duty or in any other way for any of the following suffered or incurred by Client (or its User(s) or Affiliates) arising out of or in connection with the Agreement:
◦ 1. Any loss arising from or in connection with loss of revenues, profits, data, contracts or
business or failure to realize anticipated savings;
◦ 2. Any loss of goodwill or reputation or any special, indirect or consequential losses;
◦ 3. Any damages arising from failure by the User to use the Site and/or the Beautystreams
Content in accordance with the Agreement; or
◦ 4. Third party claims of any kind.
VII. INDEMNIFICATION
1. Client shall be liable to Beautystreams for all and any breach of the Agreement by Client and/or the User and any other third party using the ID or Beautystreams Services and Consulting accessed through the Client or User(s) and hereby agrees to indemnify and hold Beautystreams, its employees, agents, officers, directors and other representatives harmless from and against all liabilities, damages, claims, actions, costs and expenses (including legal fees) which Beautystreams may suffer or incur in connection with or arising from any breach of the Agreement by Client or the User(s) or any such third parties.
VIII TERMINATION
1. The Terms, once signed and or electronically acknowledged by the parties, will come into effect each time a Purchase Document is signed by the Client and a Beautystreams Authorized Signatory.
2. The Agreement shall (subject to suspension and/or early termination in accordance with these Terms):
◦ 2.1. With respect to a Purchase Order for Beautystreams Content and/or lll Services, continue for the Term, and continue thereafter for each
Renewal Term unless earlier terminated in accordance with the Agreement; or
◦ 2.2. With respect to a Purchase Order for Bespoke Consulting, continue for the period set out in the Purchase Order for Bespoke Consulting.
3. Either party may terminate the Agreement (in whole or with respect to a particular Purchase Documents) with immediate effect by written notice to the other:
◦ 3.1. If the other party commits a material breach of the Agreement which is not curable, or (where the breach is capable of remedy) is not cured
within 30 days after being required by notice to do so;
◦ 3.2. Upon written notice at any time after the expiration or termination of all Purchase Documents executed hereunder; or
◦ 3.3. If the other party becomes or is declared insolvent or takes formal steps to initiate judicial bankruptcy proceedings or makes or proposes
any composition with its creditors or the appointment of a receiver or similar officer over or in respect of some or all of its assets or takes any steps
to enter into an insolvency process including without limitation the appointment of a tasks master, administrative receiver, administrator,
provisional liquidator, receiver or any other office holder over all or some of its assets or the filing of any papers at court in respect of a moratorium
or the taking of any steps for winding up, dissolution or charge off.
4. Without prejudice to Clause VIII.3, Beautystreams reasonably believes that Client has breached the terms of the Agreement (including by late payment of any invoices submitted or misuse of the ID, Beautystreams may terminate the Agreement with immediate effect or temporarily suspend Client access to the Beautystreams Content and/or Services (without refund of Charges).
5. A Purchase Document may include additional termination provisions applicable only to such Purchase Document. Subject to Clause 8.3, the termination of an individual Purchase Document will not affect any other Purchase Document.
6. Notwithstanding termination or expiry of the Agreement or any individual Purchase Document, any provisions in the Agreement that by their nature are intended to survive expiration or termination of the Agreement shall continue to have full force and effect.
7. The Charges shall be refunded to Client on a pro rata basis in the event of termination by Client due to unreasonable disruption (5 business days) of services provided by Beautystreams. However, if the disruption is caused by a Force Majeure, no refund shall be issued. In the event of termination for any other reason, there shall be no refund of any Charges paid by the Client.
IX. CONSEQUENCES OF TERMINATION
1. Immediately following the expiration or termination of a Purchase Document or the Agreement (as applicable), Client will (i) ensure that all Users and members of the Entity cease using the Beautystreams Content and the ID; and (ii) within 10 days of the termination date permanently, delete from their records and storage media and destroy all copies of the Beautystreams Content acquired after such termination date. Upon termination, Beautystreams shall also be entitled to suspend all access to the Beautystreams Content and/or the Services provided under the applicable Purchase Document(s).
2. If Beautystreams so requests, Client shall provide in writing a confirmation that Client has complied with Clause 9.1 (the “Confirmation”). If Beautystreams does not receive the Confirmation within 28 days of such request, Beautystreams may charge Client an amount equal to the greater of (i) 65% of the Charges; or (ii) three months of the then current charges for the Beautystreams Content (in the case of free trials where no Charges are included) (the “Reduced Charge”). Following payment of the relevant Reduced Charge the Client will be able to use all Beautystreams Content downloaded in accordance with the Agreement up to the date of the Confirmation.
X. CONFIDENTIALITY
1. Each party will keep confidential the terms of the Agreement as well as any other Confidential Information disclosed to it by the other party provided this shall not apply to any information which:
◦ 1. Is/becomes public knowledge other than by breach of this Clause 10;
◦ 2. Is in the possession of the Receiving Party without restriction in relation to disclosure before the receipt date from the Disclosing Party;
◦ 3. Is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure;
◦ 4. Is independently developed by the Receiving Party without access to the Confidential Information; or
◦ 5. Is required to be disclosed by operation of law, government regulation, or order of a Court of competent jurisdiction, providing the Receiving Party
first gives written notice of such required disclosure to the Disclosing Party.
2. The obligations with respect to Confidential Information shall survive termination of the Agreement and continue for as long as such information remains confidential.
XI. PRIVACY POLICY
The Client agrees to abide by the terms of the Privacy Policy posted elsewhere in the site.
XII. GENERAL
1. The Agreement shall be governed by, and construed in accordance with, the Federal Laws of the United States, and the laws of the State of Delaware who shall have exclusive jurisdiction to hear any dispute which may arise out of, under, or in connection with the Agreement.
2. Client may not assign, sub-license or otherwise transfer any of its rights or obligations under the Agreement without the prior written agreement of a Beautystreams Authorized Signatory, which shall not be unreasonably withheld or delayed.
3. Neither party will be held in breach of the Agreement in the event of any delay or failure to perform its obligations by reason and to the extent and duration of any Force Majeure event.
4. No right, power or remedy conferred upon or reserved for Beautystreams is exclusive of any other right, power or remedy available to Beautystreams provided either under the Agreement or as a matter of law and each such right, power or remedy shall be cumulative.
5. In the event that any provision of the Agreement is held to be invalid or unenforceable, the remaining provisions of the Agreement shall remain in full force and effect.
6. No person who is not a party to the Agreement, including but not limited to the User, shall have any rights under or in connection with the Agreement, and the rights of the parties to terminate, rescind or agree any variation, waiver or settlement under the Agreement shall not be subject to the consent of any third party.
7. The Agreement is the complete agreement between Beautystreams and Client regarding the Beautystreams Content, Products, Services and/or Bespoke Service (as applicable). Any Client terms or conditions contained in, or incorporated by reference into, a purchase order, confirmation or other document submitted by Client which purport to vary or supersede the Agreement shall be of no effect. Each of the parties agrees that in entering into the Agreement, it has not relied on any statement, representation, warranty, understanding, undertaking, promise or assurance of any person other than as expressly set out in the Agreement.
8. The Agreement may not be changed or amended except in writing signed by both parties.
9. Where the Agreement has been translated into a language other than American English and where there is any inconsistency between the interpretation of the American English version and the translated version, the meaning under the American English version shall prevail.