SAAS AGREEMENT

IMPORTANT-READ THIS VPERSONALIZE SOFTWARE AS A SERVICE AGREEMENT (THIS "AGREEMENT") CAREFULLY BEFORE CONTINUING REGISTRATION. BY CLICKING THE "I ACCEPT" BUTTON OR OTHERWISE ACCEPTING THIS AGREEMENT THROUGH AN ORDERING DOCUMENT THAT INCORPORATES THIS AGREEMENT (THE "ORDERING DOCUMENT"), YOU AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND, IN SUCH EVENT, "YOU" AND "YOUR" AS USED IN THIS AGREEMENT SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS IN THIS AGREEMENT, YOU MUST SELECT THE "I DECLINE" BUTTON AND MAY NOT USE THE SERVICES.

  1. Agreement Definition

    "You" and "your" refers to the individual or entity that has ordered software as a service from VPersonalize Inc. ("vPersonalize").

    Software as a service consists of system administration, system management, and system monitoring activities that vPersonalize performs for vPersonalize programs, including the right to remotely use the vPersonalize programs, and support services for such vPersonalize programs (collectively, the "services").

    The term "program documentation" refers to the program user manual as well as any other materials provided by vPersonalize as part of the services.

    The term "vPersonalize programs" refers to the software products owned by vPersonalize to which vPersonalize grants you access as part of the services, including program documentation, and any program updates provided as part of the services.

    The term "users" shall mean those individuals authorized by you or on your behalf to use the services.

    The term "your data" refers to the data provided by you that resides in your services environment.

    The term "ordering documents" refers to the online forms and pages you completed in the process of ordering the services.

  2. Rights Granted

    Upon acceptance by vPersonalize of your order and for the duration of each month for which you have paid for services, you have the nonexclusive, non-assignable, royalty free, worldwide limited right to use the services solely for your internal business operations and subject to the terms of the agreement. You may allow your users to use the services for this purpose and you are responsible for your users' compliance with the agreement. The services are provided as described in, and subject to, any services policies referenced in the ordering documents.

    You acknowledge that this is a services agreement that grants no software license, and that vPersonalize has no software delivery obligation and will not transmit copies of the vPersonalize programs to you as part of the services. You agree that you do not acquire under the agreement any license to use the vPersonalize programs specified in the ordering documents in excess of the scope or duration of the services. Upon the end of the agreement or the services thereunder, your right to remotely access or use the vPersonalize programs specified in the ordering documents shall terminate.

    The basic level of service allows a limited use of the vPersonalize programs without manufacturing pattern generation. All other levels of service charge an upfront fee to add the capabilities of manufacturing pattern generation and exclusive products.

  3. Ownership and Restrictions

    You retain all ownership and intellectual property rights in and to your data and your user data provided in connection with the services. vPersonalize retains all ownership and intellectual property rights to (i) the services and the vPersonalize programs, and all improvements, enhancements or modifications thereto and (ii) any software, applications, inventions or other technology developed in connection with the services or support thereof, including but not limited to all product silhouettes. If an exclusive product silhouette is created for you, vPersonalize retains ownership of the copyright thereto, but grants you an exclusive, perpetual, royalty free, worldwide license to its use within the vPersonalize services environment.

    In addition to the protections of copyright and trademark laws, you should be aware that multiple patents filed by vPersonalize also protect the services and vPersonalize programs.

    You may not:

    • Remove or modify any program markings or any notice of vPersonalize's or its licensors' proprietary rights;
    • Make the programs or materials resulting from the services available in any manner to any third party for use in the third party's business operations (unless such access is expressly permitted for the specific program license or materials from the services you have acquired);
    • Modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the services (the foregoing prohibition includes but is not limited to review of data structures or similar materials produced by programs), or access or use the services in order to build or support, or assist a third party in building or supporting, products or services competitive to vPersonalize;
    • Disclose results of any services or program benchmark tests without vPersonalize's prior written consent; and
    • License, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service bureau use, or otherwise commercially exploit or make the services, vPersonalize programs or materials available to any third party, other than as expressly permitted under the terms of the agreement.

    Third party technology that may be appropriate or necessary for use with some vPersonalize programs is specified in the program documentation or ordering documents as applicable. Your right to use such third party technology is governed by the terms of the third party technology license agreement specified by vPersonalize and not under the agreement.

  4. Warranties, Disclaimers and Exclusive Remedies

    vPersonalize warrants that the services will perform in all material respects in accordance with any claims referenced in the ordering documents. If the services provided to you for any given month during the services term were not performed as warranted, you must provide written notice of such deficiency to vPersonalize no later than five business days after the last day of that particular month.

    VPERSONALIZE DOES NOT GUARANTEE THAT THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT VPERSONALIZE WILL CORRECT ALL SERVICES ERRORS. YOU ACKNOWLEDGE THAT VPERSONALIZE DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. VPERSONALIZE IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

    FOR ANY BREACH OF THE ABOVE WARRANTIES VERIFIED BY VPERSONALIZE, VPERSONALIZE WILL REMIT A SERVICES FEE CREDIT TO YOU OF THE MONTHLY FEES FOR THE APPLICABLE SERVICES FOR THE MONTH IN WHICH THE BREACH OCCURRED. THE CREDIT WILL BE PROVIDED ONLY TOWARDS PAYMENT OF FEES FOR FUTURE SERVICES, AND THE REMITTANCE OF SUCH CREDIT WILL REPRESENT YOUR EXCLUSIVE REMEDY, AND VPERSONALIZE'S SOLE LIABILITY, FOR ALL BREACHES OF ANY WARRANTY SPECIFIED IN THE AGREEMENT. TO THE EXTENT NOT PROHIBITED BY LAW, THESE WARRANTIES ARE EXCLUSIVE AND THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS INCLUDING FOR HARDWARE, SYSTEMS, NETWORKS OR ENVIRONMENTS OR FOR MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE. VPERSONALIZE DOES NOT WARRANT THAT THE SITES OR SERVICES, INFORMATION, CONTENT, MATERIALS, PRODUCTS (INCLUDING SOFTWARE), SERVERS OR ELECTRONIC COMMUNICATIONS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, VPERSONALIZE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

  5. Trial Use of the Services

    If agreed with vPersonalize, you may order certain services for trial purposes subject to the terms and conditions of the agreement and any special terms agreed between the parties. Services acquired for trial purposes are provided "as is" and VPersonalize does not offer any warranties for such services.

  6. Indemnification

    If a third party makes a claim against either you or vPersonalize ("recipient" which may refer to you or vPersonalize depending upon which party received the material), that any information, design, specification, instruction, software, service, data, or material ("material") furnished by either you or vPersonalize ("provider" which may refer to you or vPersonalize depending on which party provided the material), and used by the Recipient infringes its intellectual property rights, the provider, at its sole cost and expense, will defend the recipient against the claim and indemnify the recipient from the damages, liabilities, costs and expenses awarded by the court to the third party claiming infringement or the settlement agreed to by the provider, if the recipient does the following:

    • Notifies the provider promptly in writing, not later than 30 days after the recipient receives notice of the claim (or sooner if required by applicable law);
    • Gives the provider sole control of the defense and any settlement negotiations; and
    • Gives the provider the information, authority, and assistance the provider needs to defend against or settle the claim.

    If the provider believes or it is determined that any of the material may have violated a third party's intellectual property rights, the provider may choose to either modify the material to be non-infringing (while substantially preserving its utility or functionality) or obtain a license to allow for continued use, or if these alternatives are not commercially reasonable, the provider may end the rights to use, and require return of, the applicable material and refund any unused, prepaid fees the recipient may have paid to the other party for such material. If such return materially affects vPersonalize's ability to meet its obligations under the relevant order, then vPersonalize may, at its option and upon 3 days prior written notice, terminate the order. The provider will not indemnify the recipient if the recipient alters the material or uses it outside the scope of use identified in the provider's user documentation or services policies or if the recipient uses a version of the materials which has been superseded, if the infringement claim could have been avoided by using an unaltered current version of the material which was provided to the recipient. vPersonalize will not indemnify you to the extent that an infringement claim is based upon the combination of any material with any products or services not provided by vPersonalize. vPersonalize will not indemnify you for infringement caused by your actions against any third party if the services as delivered to you and used in accordance with the terms of the agreement would not otherwise infringe any third party intellectual property rights. This section provides the parties' exclusive remedy for any infringement claims or damages.

  7. Design Services

    Design services may be ordered by you as needed, and are provided and paid for separately from the monthly software as a service fees. Any specific terms and conditions relating to the provision of design services are referenced in the ordering documents for such services. Your exclusive remedy for any defect in design services, if such defect is confirmed by vPersonalize, is a refund of the fees paid for such design services.

  8. Design Processing and Payment Transaction Fees

    You agree to pay for all services ordered as set forth in the applicable ordering documents. All fees due under the agreement are non-cancelable and the sums paid nonrefundable. You agree to pay any sales, value-added or other similar taxes imposed by applicable law that vPersonalize must pay based on the services you ordered, except for taxes based on vPersonalize's income.

    Design processing and payment transactions fees are paid separately and in addition to the monthly services fees. Design processing and payment transactions fees, which include credit card processing fees, are a percentage of each order cost, with the percentage varying by the service level applicable to the then current month. The design processing fee is charged to you. The payment transaction fee may be charged to you or directly to your consumer, depending on the arrangement specified in the ordering documents.

    You agree that you have not relied on the future availability of any services, programs or updates in entering into the payment obligations in the ordering documents. However, the preceding does not relieve vPersonalize of its obligation to deliver services that you have ordered per the terms of the agreement.

  9. End of Agreement

    Services provided under this software as a service agreement shall be provided on a month to month basis, or for another period defined in the ordering documents, unless earlier terminated in accordance with the agreement. Any paid services months are collectively defined as the "services term." At the end of the services term, all rights to access or use the services, including the vPersonalize programs listed in the ordering documents, shall end.

    If either of us breaches a material term of the agreement and fails to correct the breach within 10 days of written specification of the breach, then the breaching party is in default and the non-breaching party may terminate the applicable services term. If vPersonalize ends the services term as specified in the preceding sentence, you must pay within 30 days all amounts which have accrued prior to such end, as well as all sums remaining unpaid for the services ordered under the agreement plus related expenses. The nonbreaching party may agree in its sole discretion to extend the 10 day cure period for so long as the breaching party continues reasonable efforts to cure the breach. You agree that if you are in default under the agreement, you may not use the services ordered.

    In addition, vPersonalize may immediately suspend your password, account, and access to or use of the services (i) if you fail to pay vPersonalize as required under the agreement and do not cure within the 10 day cure period, or (ii) if you violate any provision within sections C, D, N or R of this agreement. Any suspension by vPersonalize of the services under this paragraph shall not excuse you from your obligation to make payments under the agreement. At your request, and for a period of up to 60 days after the termination of the applicable services, vPersonalize may permit you to access the services solely to the extent necessary for you to retrieve files of your data then in the services environment.

    vPersonalize will maintain an archive of product designs and collections that you choose to save. Each product, whether active or inactive, will be maintained during the services term and for a period of sixty days following the end of the services term. Thereafter your archive will be irretrievably deleted unless you have made specific arrangements with vPersonalize for further retention and have paid all applicable retention fees. vPersonalize exercises its best efforts to maintain your design archive in accordance with its policies, but is not liable for any products or designs that might be deleted or rendered unusable by mistake or technical changes or failures.

    Provisions that survive termination or expiration of the agreement are those relating to rights ownership, limitation of warranty and liability, indemnity, payment, and others which by their nature are intended to survive.

  10. Privacy

    vPersonalize recognizes that you have a right to privacy, and we will not give or sell anyone specific information about you or any user orders placed through vPersonalize services except that: (i) vPersonalize may provide information about you and any user order to its subcontractors in the course of fulfilling the order; and (ii) vPersonalize may share information about you or user orders if we believe in good faith that disclosure of specific information is necessary to (a) resolve disputes, investigate problems, or enforce this agreement; (b) comply with relevant laws or respond to requests from law enforcement or other government officials relating to investigations or alleged illegal activity (in which case we can, and you authorize us to, disclose personal information without subpoenas or warrants served on us); or (c) protect and defend our rights or property or the rights and property of you or third parties. vPersonalize collects contact information (including email addresses) that allows us, among other things, to: process and fill orders; contact you regarding the processing of orders; improve our services; and send informative and promotional emails that may be of interest to you.

  11. Non disclosure

    By virtue of the agreement, the parties may have access to information that is confidential to one another ("confidential information"). We each agree to disclose only information that is required for the performance of obligations under the agreement. Confidential information shall be limited to the terms and pricing under the agreement, your data residing in the services environment, and all information clearly identified as confidential at the time of disclosure.

    A party's confidential information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the other party; (b) was in the other party's lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on the disclosure; or (d) is independently developed by the other party.

    We each agree to hold each other's confidential information in confidence for a period of three years from the date of disclosure. Also, we each agree to disclose confidential information only to those employees or agents who are required to protect it against unauthorized disclosure in a manner no less protective than under the agreement. Nothing shall prevent either party from disclosing the terms or pricing under the agreement in any legal proceeding arising from or in connection with the agreement or from disclosing the confidential information to a governmental entity as required by law.

  12. Entire Agreement

    You agree that the agreement is the complete agreement for the services ordered by you, and that the agreement supersedes all prior or contemporaneous agreements or representations, written or oral, regarding such services. If any term of the agreement is found to be invalid or unenforceable, the remaining provisions will remain effective and such term shall be replaced with a term consistent with the purpose and intent of the agreement. It is expressly agreed that the terms of the agreement, including any vPersonalize ordering documents, shall supersede the terms in any purchase order or other non-vPersonalize document and no terms included in any such purchase order or other non-vPersonalize document shall apply to the services ordered. The agreement may not be modified and the rights and restrictions may not be altered or waived except in a writing signed or accepted online by authorized representatives of you and of vPersonalize.

  13. Limitation of Liability

    NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE OR PROFITS (EXCLUDING FEES UNDER THE AGREEMENT), DATA, OR DATA USE. VPERSONALIZE'S MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS SOFTWARE AS A SERVICE AGREEMENT, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNTS ACTUALLY PAID TO VPERSONALIZE FOR THE SERVICES THAT ARE THE SUBJECT OF THE CLAIM IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO EVERYONE.

  14. Export

    Export laws and regulations of the United States and any other relevant local export laws and regulations may apply to the services. You agree that such export control laws govern your use of the services and any services deliverables provided under the agreement, and you agree to comply with all such export laws and regulations (including "deemed export" and "deemed re-export" regulations). You agree that no data, information, or materials resulting from services (or tangible product thereof) will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation, or development of missile technology.

  15. General Terms

    • vPersonalize is an independent contractor and we agree that no partnership, joint venture, or agency relationship exists between us. We each will be responsible for paying our own employees, including employment related taxes and insurance.
    • You shall obtain at your sole expense any rights and consents from third parties necessary for vPersonalize and its subcontractors to perform the services under the agreement.
    • The agreement is governed by the substantive and procedural laws of California and you and vPersonalize agree to submit to the exclusive jurisdiction of, and venue in, the courts in San Francisco County in California in any dispute arising out of or relating to the agreement.
    • When you use vPersonalize services, you consent to receive communications from us electronically. We will communicate with you primarily by e-mail. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
    • If you have a dispute with vPersonalize or if you wish to provide a notice under the indemnification section of this software as a service agreement, or if you become subject to insolvency or other similar legal proceedings, you will promptly send written notice by email to: care@vpersonalize.com, Attention: General Counsel, Legal Department. vPersonalize may give notice applicable to vPersonalize's software as a service customer base by means of a general notice on the vPersonalize portal for the services, and notices specific to you by electronic mail to your e-mail address on record in vPersonalize's account information.
    • You may not assign the agreement or give or transfer the services or an interest in them to another individual or entity. If you grant a security interest in any portion of the services, the secured party has no right to use or transfer the services or any deliverables.
    • Except for actions for nonpayment or breach of vPersonalize's proprietary rights, no action, regardless of form, arising out of or relating to the agreement may be brought by either party more than two years after the cause of action has accrued.
    • The Uniform Computer Information Transactions Act does not apply to this software as a service agreement or orders placed under it.

  16. Force Majeure

    Neither of us shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); or other event outside the reasonable control of the obligated party. We both will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 30 days, either of us may cancel unperformed services upon written notice. This section does not excuse either party's obligation to take reasonable steps to follow its normal disaster recovery procedures or your obligation to pay for the services.

  17. Your Further Obligations

    You are responsible for maintaining the confidentiality of your accounts and passwords and for restricting access to your computers, and you agree to accept responsibility for all activities that occur under your accounts or passwords. You may not use a false e-mail address, impersonate any person or entity, or otherwise provide misleading information to vPersonalize.

    The rights granted to you under the agreement are also conditioned on the following:

    • The rights of any entity authorized to use the services cannot be shared or used by more than one entity, unless such rights are reassigned in their entirety to another entity with permission of vPersonalize, in which case the prior authorized user shall no longer have any right to access or use the services;
    • Except as expressly provided herein, no part of the services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means; and
    • You agree to make every reasonable effort to prevent unauthorized third parties from accessing the services.

  18. Protection of Persons and the Public

    vPersonalize respects the intellectual property of others. You agree to only upload and use images, designs, brand names and slogans that you own, have properly licensed from a third party owner, or know to be in the public domain. vPersonalize has a policy of deleting user submissions that violate copyright, trademark, or other intellectual property laws, suspending or blocking access to the design archive or other features of our services to any user who uses them in violation of any such law, and terminating in appropriate circumstances the account of any user who uses our services in violation of any such law. Pursuant to Title 17 of the United States Code, Section 512 and other laws, we will receive and process appropriately all written notifications of claimed infringement from third parties.

    You agree not to use or permit use of the services for any purpose that may (a) menace or harass any person or cause damage or injury to any person or property, (b) involve the publication of any material that is false, defamatory, harassing or obscene, (c) violate privacy rights or promote bigotry, racism, hatred or harm, (d) constitute an infringement of intellectual property or other proprietary rights, or (e) otherwise violate applicable laws, ordinances or regulations. In addition to any other rights afforded to vPersonalize under this agreement, vPersonalize reserves the right to remove or disable access to any material that violates the foregoing restrictions. vPersonalize shall have no liability to you in the event that vPersonalize takes such action. You agree to defend and indemnify vPersonalize against any claim arising out of a violation of your obligations under this section.

  19. Services Tools

    vPersonalize may use tools, scripts, software, and utilities (collectively, the "tools") to monitor and administer the services and to help resolve your service requests. The tools will not collect, report or store any of your data residing in the service production environment, except as necessary to troubleshoot service requests or other problems in the service. Data collected by the tools may also be used to assist in managing vPersonalize's product and service portfolio. You agree that except as expressly agreed in advance by vPersonalize, you may not access or use the tools.

  20. Statistical Information

    vPersonalize may compile statistical information related to the performance of the services, and may make such information publicly available, provided that such information does not incorporate your data or identify your confidential information or include your company's name. vPersonalize retains all intellectual property rights in such information.

  21. Customer Reference

    You agree that vPersonalize may identify you as a recipient of services and use your name and logo in sales presentations, marketing materials and press releases.