Welcome to D’Marie! D’Marie’s "Industry Platform" is an on-line service through which designers, stylists and [high-profile clients] may track and manage garments, projects and related commercial relationships. Please see our website at www.dmariearchive.com for more information about our services.
BEFORE YOU CLICK ON THE "I ACCEPT" BUTTON, CAREFULLY READ THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY CLICKING ON THE "I ACCEPT" BUTTON OR USING THE INDUSTRY PLATFORM, YOU AND THE BUSINESS ENTITY THAT YOU REPRESENT ARE AGREEING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE BUSINESS ENTITY YOU REPRESENT. YOU HEREBY COVENANT TO ENSURE THAT ALL USERS THAT GAIN ACCESS TO THE INDUSTRY PLATFORM THROUGH YOUR REGISTRATION INFORMATION ARE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THEN DO NOT CLICK "I ACCEPT" AND YOU WILL NOT BE PERMITTED TO ACCESS AND/OR USE THE INDUSTRY PLATFORM.
1. Registration; Types of Users. The Industry Platform is described in more detail on our Website. When You register for the Industry Platform, we will require certain information from You and we will provide You with certain information regarding the scope of Your subscription and any applicable fees (collectively, the "Registration Information"). Among the Registration Information we will require from You is Your indication of whether You are a "Designer", "Stylist" or "Industry Client". A "Designer" is a person or company which will utilize the Industry Platform primarily to manage Your collection of garments or similar items and to correspond with Stylists and Industry Clients regarding potential commercial relationships involving Your products or Your brand. A "Stylist" is a person or company who will utilize the Industry Platform primarily to manage projects in which garments or similar items are utilized, to obtain such items from Designers and to correspond with Designers and Industry Clients regarding potential commercial relationships. Examples of Stylists are fashion editors, wardrobe stylists and costume designers. An "Industry Client" is a person or company which may utilize the products made available by Designers or using a Stylist, or who desires to correspond with Designers and Stylists regarding potential commercial relationships. The Industry Platform may permit You to register as, or to access functionality applicable to, one or more of these categories. A "User" is a Designer, Stylist and/or Industry Client. Your right to access and use the Industry Platform is limited in scope, revocable, personal, non-transferable and non-exclusive. D’Marie reserves the right to determine whether to admit any User to the Industry Platform based on the Registration Information they provide, or to remove any User who, in D’Marie’s sole discretion, is not contributing to the strength and utility of the Industry Platform for other Users. We also provide to the general public and to potential consumers of products and services ("Consumers") access to our public-facing website at www.dmariearchive.com and related services thereon (the "Lifestyle Platform"). You are responsible for obtaining any equipment and Internet service necessary to access and the Industry Platform or the Lifestyle Platform.
2. Use and Access Terms.
(a) Access and Use Rights. D’Marie hereby grants to You, on the terms and conditions set forth herein, a non-transferable, non-sublicensable, non-exclusive, limited right to access and use the modules of the Industry Platform (set forth in the Registration Information) for Your internal business purposes, through login credentials to be provided by D’Marie. You may obtain additional login credentials for users employed by You ("Sub-Users"), upon request to D’Marie. You are responsible for all Sub-Users who access and use the Industry Platform using login credentials provided to You, as if their actions are made by You. If You are a Sub-User for a User, then You shall have the right to use the Industry Platform only for the benefit of that User, and subject to all the terms and conditions of this Agreement applicable to You and/or that User. You may utilize the Industry Platform solely for Your internal use as a Designer, Stylist or Industry Client. You shall not provide any output of the Industry Platform in a form that is modified from such output or which removes any of the proprietary marks on such output, unless agreed by D’Marie on a case-by-case basis. You acknowledge that any and all users of the Industry Platform on your behalf, who obtain new login credentials provided to You, will be required to accept the terms of this Agreement before they are permitted to first access the Industry Platform. Your access to the Lifestyle Platform is subject to the Terms and Conditions of Use generally applicable to users of that Lifestyle Platform.
(b) Subscription Periods. You may subscribe to the Industry Platform for an initial subscription period of one (1) year (the "Initial Subscription Period"), which will renew for successive one (1) year renewal subscription periods (each a "Renewal Subscription Period," together with the Initial Subscription Period, the "Subscription Period") unless either party provides notice of termination at least thirty (30) days prior to the end of the then-current Subscription Period. After the expiration or termination of a Subscription Period, You will not be able to access or view any of Your data on the Industry Platform.
(d) Fees; Payment Terms. D’Marie reserves the right to charge fees for access to or use of the Industry Platform, or for supplemental functionality or services, in the future. If any such fees are established, D’Marie will provide You with prior notice of such fees. You shall pay each amount due under this Agreement in full within thirty (30) days of receipt of the applicable invoice. You shall pay interest of 1.5% per month on the amount shown on any invoice that is paid later than the due date.
(e) Training. D’Marie may make available user training to You or Your Users via online or in-person training sessions, but is not obligated to do so. Fees may apply to any such training, as may be agreed by the parties. During the Subscription Period, D’Marie will also use good faith efforts to make available help desk support to you (or your applicable users).
(f) Non-Competition. You hereby agree not to use, directly or indirectly, any service which competes with the Industry Platform during the term of this Agreement.
(g) Indemnification. You shall indemnify and hold D’Marie, its directors, officers, employees, suppliers, agents, successors, and assigns harmless from and against all third party liabilities, losses, costs, expenses, (including reasonable attorney’s fees) and damages awarded to a third party to the extent caused by (i) the use of the Industry Platform by You, or any other users accessing the Industry Platform using login credentials provided to You, whether or not You have knowledge of or have authorized any such access or use; (ii) any information or results obtained through use of the Industry Platform or access to Industry Platform; (iii) Your gross negligence or willful misconduct; or (v) any commercial relationships You establish with any User or other third party in connection with the Industry Platform. D’Marie shall indemnify and hold you and your directors, officers, employees, suppliers, agents, successors, and assigns harmless from and against all third party liabilities, losses, costs, expenses, (including reasonable attorney’s fees) and damages awarded to such third party to the extent caused by a claim alleging that the Industry Platform directly infringes a copyright, a U.S. patent issued as of the Effective Date or a trademark of such third party. A party’s obligations to indemnify the other party with respect to any third party claim, action or proceeding shall be conditioned upon the indemnified party: (A) providing the indemnifying party with prompt written notice of such claim, action or proceeding under this clause (g), (B) permitting the indemnifying party to assume and solely control the defense of such claim, action or proceeding and all related settlement negotiations, with counsel chosen by the indemnifying party, and (C) cooperating at the indemnifying party’s request and expense with the defense or settlement of such claim, action or proceeding which cooperation shall include providing reasonable assistance and information. No indemnified party shall enter into any settlement agreement for which it will seek indemnification under this Agreement from the indemnifying party without the prior written consent of the indemnifying party. Nothing herein shall restrict the right of a party to participate in a claim, action or proceeding through its own counsel and at its own expense.
(h) Term. This Agreement shall be in effect from the Effective Date until the one year anniversary of the Effective Date, upon which the Agreement shall automatically renew for successive one (1) year periods unless terminated by either party by delivery of written notice of non-renewal at least thirty (30) days prior to the end of the then-current one (1) year term. Each Subscription Period then in effect shall continue for the remainder of its term. Either party may terminate this Agreement and all Subscription Periods at any time upon thirty (30) days’ written notice in the event of a breach by the other party that is not cured in such thirty (30) day period. As between You and D’Marie, Sections 2(d), 2(g), 2(h), 3, 4(e), 5, 8, 9 and 10 of this Agreement shall survive the expiration or termination of this Agreement according to their terms.
3. Intellectual Property Rights; Restrictions.
(a) Restrictions. You shall not, and shall not permit any person or entity to: (i) resell or use the Industry Platform on a service bureau, time sharing or any similar basis, or for the benefit of any other person or entity; (ii) alter, enhance, or make derivative works of the Industry Platform; (iii) reverse engineer, reverse assemble or decompile, or otherwise attempt to derive source code from, the Industry Platform or any software component of the Industry Platform; (iv) use, or allow the use of, the Industry Platform for any unfair or deceptive practices or in contravention of any federal, state, local, foreign, or other applicable law, or rules and regulations of regulatory or administrative organizations; and/or (v) act in a fraudulent, tortious, malicious, or negligent manner when using the Industry Platform.
(b) Ownership. You acknowledge that the structure, organization, and code used in conjunction with the Industry Platform are proprietary to D’Marie and that D’Marie and/or its suppliers retain exclusive ownership of the Industry Platform, documentation, and any other intellectual property rights relating to the Industry Platform, including all modifications, enhancements, derivatives, and other software and materials relating to the Industry Platform, and all copies thereof. You shall not sell, transfer, publish, disclose, display or otherwise make available the Industry Platform including any modifications, enhancements, derivatives, and other software and materials provided hereunder by D’Marie or copies thereof to others in violation of this Agreement.
(c) No Other Rights. Except as expressly set forth in this Agreement or other written agreement between You and D’Marie, no license or other right in or to the Industry Platform, Services or Content are granted to You, by implication, estoppel, or otherwise, and all such licenses and rights are hereby reserved.
(d) Suggestions. If You provide any feedback, improvements or other suggestions (collectively, "Suggestions") to D’Marie for improvements to the Industry Platform or related services, You hereby grant to D’Marie a non-exclusive, royalty-free, fully-paid, perpetual, irrevocable license under such Suggestions and all intellectual property rights therein to exploit and distribute the Suggestions in connection with the Industry Platform and related services, except as may be otherwise agreed in writing.
4. Use of Information.
(b) D’Marie’s Right to Use Your Submissions. You hereby grant to D’Marie and its affiliates a non-exclusive, fully-paid, irrevocable, royalty-free, perpetual, worldwide license to use, modify, publicly perform, publicly display, reproduce and distribute Your Public Submissions within the scope which You permit using the functionality in our Industry Platform. You further hereby grant to D’Marie and its affiliates a non-exclusive, fully-paid, irrevocable, royalty-free, perpetual, worldwide license to use, modify, reproduce and aggregate all of Your Submissions, whether or not Public Submissions, for the purpose of providing our products and services to You, other Users and the general public. D’Marie may use any aggregated data regarding Your Submissions, in a manner which does not identify You or any other individual, for any lawful purpose, including without limitation, for marketing and advertising purposes.
(c) Your Use of Other Users’s Submissions. You agree to use other Users’ Submissions only for the purpose for which those Submissions are provided to You in connection with Your use of the Industry Platform. You agree and acknowledge that other Users’ Submissions are subject to intellectual property rights of those Users, and that D’Marie does not, and does not have the power to, grant to You any rights under any such intellectual property rights.
(d) You Must have the Right to Provide Submissions. You are solely responsible for the Submissions that You post, any material or information that You transmit to others, and Your interactions with others. You represent and warrant that: (i) You own the Submissions posted by You or otherwise have the right to grant the license set forth in the above paragraphs; and (ii) the posting of Your Submissions does not violate the privacy rights, publicity rights, copyrights, contract rights or any other rights of any person. You agree to pay for all royalties, fees and any other monies owing any person by reason of any Submissions posted by You.
(e) Confidentiality. You agree that the Industry Platform and the output thereof, and all pricing and subscription plans provided by D’Marie, other than your Submissions, are the confidential information of D’Marie; You agree not to disclose any of such confidential information to any third party except to the extent expressly permitted by this Agreement and to use such confidential information solely for the purposes of this Agreement. D’Marie may require You to agree to a non-disclosure agreement prior to sharing certain information with you.
5. Limited Warranty.
(a) By D’Marie: D’Marie warrants that, during the term of this Agreement, the Industry Platform will perform substantially in accordance with the documentation provided by D’Marie to You.
(b) Mutual Warranties. Each of You and D’Marie represents and warrants that it has the legal power to enter into this Agreement and provide the services and information contemplated herein.
(c) Compliance with Laws. The Industry Platform is controlled, operated and administered by D’Marie from our offices in New York, NY, USA. You are solely responsible for ensuring that Your use of the Industry Platform complies with applicable laws. You further agree that You will not access or use the Industry Platform or the Websites in any country or in any manner that is prohibited by any applicable law or regulation.
(d) Disclaimers. You acknowledge that the Industry Platform is one tool to be utilized by You in connection with Your business, and that any reports, data or information generated, obtained or acquired through the use of the Industry Platform is at Your sole risk and discretion. D’Marie and its licensor’s are not liable or responsible for any results generated through the use of the Industry Platform. D’Marie does not warrant or represent that the Industry Platform will be error-free or uninterrupted or secured. EXCEPT AS SET FORTH IN THIS SECTION 5, WE PROVIDE NO OTHER WARRANTY OF ANY KIND, EITHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON–INFRINGEMENT.
6. Standards of User Conduct. You may not use the Industry Platform or this Website to:
(1) post any Submissions or transmit via or through the Website any information, data, text, images, files, links, software, chat, communication or other content that is, or which D’Marie considers in its sole discretion to be, unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, offensive, obscene, pornographic, hateful or threatening to any group defined by race, religion, gender, national origin or sexual orientation, or otherwise objectionable, including without limitation blatant expressions of bigotry, prejudice, racism, hatred or excessive profanity or post any obscene, lewd, lascivious, excessively violent, harassing or otherwise objectionable content;
(2) sell or promote any products or services that are unlawful in the location at which the Submission is posted or received;
(3) sell or promote controlled pharmaceutical substances, tobacco, fire arms or alcoholic beverages;
(4) introduce viruses, worms, Trojan horses and/or harmful code on the Internet;
(5) display material that exploits children under 18 years of age;
(6) post any Submissions or otherwise infringe in any way or violate any copyright, patent, trademark, service mark, trade name, trade secret or other intellectual property right of any third party;
(7) promote, solicit or participate in multi-level marketing or pyramid schemes;
(8) harass, embarrass or cause distress or discomfort upon another participant, user or other individual or entity;
(9) impersonate any other person, including but not limited to, any other User or a D’Marie employee or agent;
(10) post or disclose any personally identifying information or private information about children or any third parties without their consent (or their parent's consent in case of a child under 18 years of age);
(11) post or transmit any unsolicited advertising, promotional materials, or any other forms of solicitation on our bulletin boards, including without limitation solicitations of credit card numbers, solicitations for sponsors or promotion of raffles or contests;
(12) intentionally or unintentionally violate any applicable local, state, national or international law, including but not limited to any regulations having the force of law while using or accessing the Website or in connection with Your use of the Website, in any manner; or
(13) invade the privacy or violate any personal or proprietary right (including intellectual property rights) of any person or entity.
D’Marie reserves the right, without prior notice and in its sole discretion, to decide whether Submissions violate these terms and conditions for any of the above reasons or for any other reason, and if D’Marie does so, to remove such Submissions which You post to the Website and/or terminate Your access to any restricted access Services of D’Marie.
7. No Implied Endorsements; Shipping Services; Links to Other Users and to Third-Party Web Sites. In no event shall any reference to any third party or third party product or service, including without limitation any preferred vendor or similar designation, be construed as an approval or endorsement by D’Marie of that third party or of any product or service provided by a third party. For instance, the Industry Platform coordinates with third party shipping services, but we are not responsible for the acts or omissions of any shipping service that You may use in connection with the Industry Platform. The Industry Platform provides connections with other Users and links to non-D’Marie web sites. While D’Marie uses good faith efforts to admit only Users who will positive contribute to the Industry Platform, we are not responsible for their acts or omissions. These connections and links are provided to You as a convenience, and D’Marie is not responsible for the acts or omissions of any User or any content provided by another User or of a third party web site. Any non-D’Marie web site accessed from this Website is independent from D’Marie, and D’Marie has no control over the content of that web site. In addition, the inclusion of a User in the Industry Platform or a link to any non-D’Marie web site does not imply that D’Marie endorses or accepts any responsibility for such User or the content or use of such web site.
8. Notice and Take Down Procedures; Copyright Agent. If You believe any materials accessible on or from this Website infringe Your copyright, You may request removal of those materials (or access thereto) from this Website by contacting D’Marie’s copyright agent (identified below) and providing the following information:
A. Identification of the copyrighted work that You believe to be infringed. Please describe the work, and where possible include a copy or the location (e.g., URL) of an authorized version of the work.
B. Identification of the material that You believe to be infringing and its location. Please describe the material, and provide us with its URL or any other pertinent information that will allow us to locate the material.
C. Your name, address, telephone number and (if available) e-mail address.
D. A statement that You have a good faith belief that the complained of use of the materials is not authorized by the copyright owner, its agent or the law.
E. A statement that the information that You have supplied is accurate, and indicating that under penalty of perjury, You are the copyright owner or are authorized to act on the copyright owner's behalf.
F. A signature or the electronic equivalent from the copyright holder or authorized representative.
D’Marie's agent for copyright issues relating to this Website is as follows:
Name of Copyright Agent: Frank Spadafora
D’Marie Group, Inc.
794 9th Avenue, #2RN
New York, NY 10019 USA
Tel: (206) 465-5482
In an effort to protect the rights of copyright owners, D’Marie maintains a policy for the termination, in appropriate circumstances, of Users who infringe the copyright of any third party.
9. Limitation of Liability.
(a) Limitation. D’Marie’s aggregate liability for all claims arising from this Agreement shall not exceed the greater of (i) Ten U.S. Dollars ($10) and (ii) the total fees paid by You to D’Marie for access to and use of the Industry Platform during the then-preceding twelve (12) months.
(b) Disclaimer. IN NO EVENT SHALL DMARIE, ITS LICENSORS, VENDORS OR RESELLERS BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, LOSS OF USE, OR COSTS OF OBTAINING SUBSTITUTE GOODS OR SERVICES) ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE INDUSTRY PLATFORM OR SERVICES, WHETHER BASED UPON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.
10. Miscellaneous. This Agreement shall be governed by the laws of the State of New York, without regard to (i) its principles of conflicts of law where such principles would permit the application of the law of any other jurisdiction, (ii) the United Nations Convention on Contracts for the International Sale of Goods; (iii) the 1974 Convention on the Limitation Period in the International Sale of Goods; and (iv) the Protocol amending the 1974 Convention, done at Vienna April 11, 1980. You may not assign or transfer this Agreement in whole or in part to any third party. This Agreement shall bind and inure to the benefit of the parties to this Agreement and their respective successors, permitted transferees, and permitted assigns. D’Marie and You are independent contractors and are not partners, joint venturers, agents, employees or representatives of the other party. This Agreement, together with any written agreement between You and D’Marie, and the terms and conditions set for D’Marie’s Website, contains the entire understanding of the parties with respect to the transactions and matters contemplated hereby, supersedes all previous communications, understandings and agreements (whether oral or written), and cannot be amended except by a writing signed by both parties or by D’Marie’s posting of an amended version of this Agreement on its Website. The headings and captions used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement. If any part of this Agreement is held to be unlawful, void, or unenforceable, that part will be deemed severable and shall not affect the validity and enforceability of the remaining provisions.