ENTERPRISE TERMS AND CONDITIONS
Last Modified: April 13, 2026
These Enterprise Terms and Conditions (these “Terms” and, together with any Order (as defined below), this “Agreement”), effective as of the date on which you execute with DressX an Order (as defined below) that incorporates this Agreement by reference (the “Effective Date”), is by and between More Dash Inc., a Delaware corporation with offices located at 1925 Century Park E, #1700 Los Angeles, CA 90067 (“DressX”) and the entity identified on the applicable Order (“Customer”). DressX and Customer may be referred to herein collectively as the “Parties” or individually as a “Party.”
The Parties agree as follows:
Definitions.
“Authorized User” means Customer’s employees, consultants, contractors, and agents: (i) who are authorized by Customer to access and use the Platform under this Agreement; and (ii) for whom access to the Platform has been purchased hereunder.
“Client-Side Software” means any DressX software in source or object code form that DressX makes available to Customer for use in connection with Customer’s permitted use of the Platform pursuant to the Purpose, including any application programing interfaces (“APIs”).
“Customer Data” means information, data, images, photographs, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Platform; provided that, for purposes of clarity, Customer Data as defined herein does not include Usage Data.
“Customer End-User Data” means data, images, photographs, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of End Users through the Customer Offering for processing on the Platform.
“Customer Offering” means the services or products through which End Users may access the DressX Platform.
“Documentation” means DressX’s documentation relating to Customer’s and its Authorized Users’ use of the Platform, if any, that is or may be made available by DressX from time to time, including as available at https://dressx.gitbook.io/dressx-docs/.
“DressX IP” means the Platform, the Documentation, the Client-Side Software, and any and all intellectual property provided to Customer or any Authorized User in connection with the foregoing. For the avoidance of doubt, DressX IP includes Usage Data and any information, data, or other content derived from DressX’s provision of the Platform but does not include Customer Data.
“End User” means a third-party user who is not an Authorized User and who accesses and uses the Platform through the Customer’s products or services that connect to the Platform as is permitted under this Agreement.
“Harmful Code” means any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system, or network; or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data processed thereby.
“Order” means a purchase order, order form, or other ordering document entered into by the Parties that incorporates this Agreement by reference.
“Personal Data” means any information that, individually or in combination, does or can identify a specific individual or by or from which a specific individual may be identified, contacted, or located, including all data considered “personal data”, “personally identifiable information”, or similar terms under applicable laws, rules, or regulations relating to data privacy.
“Platform” means DressX’s proprietary AI virtual try-on and measurement platform, as made available by DressX from time to time.
“Professional Services” means training, migration, implementation, integration, or other professional services, if any, that are described on an Order and provided to Customer in connection with its use of the Platform hereunder.
“Sensitive Data” means: (i) special categories of data enumerated in European Union Regulation 2016/679, Article 9(1) or any successor legislation; (ii) protected health information as defined in the Health Insurance Portability and Protection Act, as amended (“HIPAA”); (iii) payment cardholder information or financial account information, including bank account numbers or other personally identifiable financial information; (iv) social security numbers, driver’s license numbers, or other government identification numbers; (v) other information subject to regulation or protection under specific laws such as the Children’s Online Privacy Protection Act (“COPPA”) or the Gramm-Leach-Bliley Act (“GLBA”), in each case as amended, or related rules or regulations; or (vi) any data similar to the above protected under applicable laws, rules, or regulations.
“Subscription Period” means the time period identified on the Order during which Customer and its Authorized Users may access and use the Platform.
“Third-Party Products” means any third-party products provided with, integrated with, or incorporated into the Platform.
“Usage Data” means usage data collected and processed by DressX in connection with Customer’s use of the Platform, including data used to identify the source and destination of a communication, activity logs, and data used to optimize and maintain performance of the Platform, and to investigate and prevent system abuse.
“Usage Limitations” means the usage limitations set forth in this Agreement and the Order, including any limitations on the number of Authorized Users (if any), and support tiers agreed-upon by the Parties.
Access and Use.
Provision of Access. Subject to and conditioned on Customer’s compliance with the terms and conditions of this Agreement, including the Usage Limitations, Customer may, solely through its Authorized Users, access and use the Platform during the Subscription Period on a non-exclusive, non-transferable (except in compliance with Section 13.8), and non-sublicensable (except to Authorized Users) basis. Such use is limited to Customer’s business purposes for integration into the Customer Offering (the “Purpose”) and the features and functionalities specified in the Order. For clarity, any Authorized User that wishes to access the Platform as an End User must separately sign up for an account directly through the Platform, and such use shall be subject to the Terms of Service (as defined below) applicable to the Platform.
Updates. To the extent DressX provides updates, upgrades, or new versions of the Platform or new features or functionalities in connection with the Platform (collectively, “Updates”) after the Effective Date, at DressX’s sole discretion, Customer’s access to certain such Updates may require a new Order between the Parties with additional Fees for such Updates. Any Updates for which no new Order is required shall be deemed part of the Platform for purposes of this Agreement.
Documentation License. Subject to and conditioned on Customer’s compliance with the terms and conditions of this Agreement, DressX hereby grants to Customer and its Authorized Users a non-exclusive, non-transferable (except in compliance with Section 13.8), and non-sublicensable license to use the Documentation during the Subscription Period solely for Customer’s internal business purposes in connection with its use of the Platform.
Use Restrictions. Customer shall not use the Platform for any purposes beyond the scope of the access granted in this Agreement. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of any DressX IP, whether in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Platform or Documentation to any third party; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Platform, in whole or in part; (iv) remove any proprietary notices from any DressX IP; (v) use any DressX IP in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law; (vi) access or use any DressX IP for purposes of competitive analysis of DressX or the Platform, the development, provision, or use of a competing software service or product, or any other purpose that is to DressX’s detriment or commercial disadvantage; (vii) bypass or breach any security device or protection used by the Platform or access or use the Platform other than by an Authorized User through the use of valid access credentials; (viii) input, upload, transmit, or otherwise provide to or through the Platform any information or materials, including Customer Data, that are unlawful or injurious or that infringe or otherwise violate any third party’s intellectual property or other rights, or that contain, transmit, or activate any Harmful Code; (ix) as set forth in Section 2.4(c), use the Platform to store Sensitive Data and or submit, post, or otherwise transmit through the Platform any Customer Data that includes or constitutes Sensitive Data; (x) use any DressX IP for any activity where use or failure of the DressX IP could lead to death, personal injury, or environmental damage, including life support systems, emergency services, nuclear facilities, autonomous vehicles, or air traffic control; or (xi) use Output (as defined below) to develop any artificial intelligence (“AI”) models that compete with DressX’s products or services.
Data Rights and Outputs.
Customer Data; Customer End-User Data. Customer hereby grants to DressX a non-exclusive, royalty-free, transferable, sublicensable worldwide license during the Term to reproduce, distribute, and otherwise use and display the Customer Data and Customer End-User Data and perform all acts with respect to the Customer Data, Customer End-User Data, and all Outputs (as defined below) based on or related to such Customer Data and Customer End-User Data, as may be necessary or useful for DressX to (i) provide the Platform to Customer in connection with the Purpose, (ii) improve, test, and develop the Platform and any Updates that DressX may make available from time to time, (iii) and to provide Professional Services to Customer (if any), (iv) and for DressX’s other business purposes.
Security Measures. DressX shall use commercially reasonable efforts to maintain the security and integrity of the Platform and the Customer Data. Customer acknowledges and agrees that the Platform may be subject to limitations on the length of time that Customer Data will be stored, and the amount of Customer Data that may be stored, and that Customer Data which exceeds either of such limitations may be automatically deleted by the Platform. DressX may delete all Customer Data upon termination or expiration of this Agreement. In addition, and notwithstanding anything to the contrary, Customer acknowledges and agrees that DressX may internally use and modify (but not disclose) Customer Data to provide the Platform to Customer. Customer represents and warrants that it has all rights, consents, and authorizations necessary to grant such rights to DressX.
Processing of Personal Data; No Sensitive Data. Personal Data processed by DressX on behalf of Customer will be governed by the terms of this Agreement and the DressX Data Processing Addendum, available at [LINK]. Notwithstanding the foregoing, Customer acknowledges and agrees that: (i) the Platform is not designed to store, process, or generate Sensitive Data; (ii) Customer will not use the Platform to store, process, or generate Sensitive Data and will not submit, post, or otherwise transmit through the Platform any Customer Data or Customer End-User Data that includes or constitutes Sensitive Data; and (iii) Customer shall instruct and contractually obligate End Users to not use the Platform to store, process, or generate Sensitive Data or submit, post, or otherwise transmit through the Platform any Customer End-User Data that includes or constitutes Sensitive Data.
AI Technologies. The Platform includes features and functionalities supported by AI technologies. In connection with the Purpose, (a) End Users may submit Customer End-User Data through the Platform for use with certain Customer Offerings and (b) Customer and its Authorized Users may provide Customer Data via the Platform ((a) and (b), collectively, “Input”), and Customer, its Authorized Users, or its End Users, as applicable, shall receive outputs from the Platform based on such Input (“Output”). As between DressX and Customer, and to the extent permitted by applicable law, Customer: (i) retains all ownership rights in its Customer Data; and (ii) owns all Output. Except to the extent otherwise expressly set forth in this Agreement, DressX will only use Customer End-User Data, Customer Data and Output as necessary to provide Customer with the Platform, comply with applicable law, and enforce DressX’s policies. Customer acknowledges that Output may contain errors or misleading information, can perpetuate biases present in the data used to train them, which can result in Output that is discriminatory or offensive, and can struggle with complex tasks that require reasoning, judgment, and decision-making. Customer further acknowledges that Output may not be unique and other users may receive similar content from the Platform, and such similar content is not considered “Output” owned by Customer hereunder. Customer is solely responsible for its use of all Output and evaluating the Output for accuracy and appropriateness for its use cases, including by utilizing human review where appropriate. ALL OUTPUT IS PROVIDED “AS IS” WITHOUT WARRANTIES OF ANY KIND.
Reservation of Rights. DressX reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the DressX IP.
Suspension. Notwithstanding anything to the contrary in this Agreement, DressX may temporarily suspend Customer’s and any Authorized User’s access to any portion or all of the Platform or any Client-Side Software if: (i) DressX reasonably determines that (a) there is a threat or attack on any of the DressX IP; (b) Customer’s or any Authorized User’s use of the DressX IP, including through the Customer Offering, disrupts or poses a security risk to the DressX IP or to any other customer or vendor of DressX; (c) Customer, or any Authorized User, is using the DressX IP for fraudulent or illegal activities; (d) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; (e) DressX’s provision of the Platform or any Client-Side Software to Customer or any Authorized User is prohibited by applicable law; or (f) any Customer Data submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Platform may infringe or otherwise violate any third party’s intellectual property or other rights; (ii) any vendor of DressX has suspended or terminated DressX’s access to or use of any Third-Party Products required to enable Customer to access the Platform; or (iii) in accordance with Section 6.1 (any such suspension described in subclauses (i), (ii), or (iii), a “Service Suspension”). DressX shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Platform following any Service Suspension. DressX shall use commercially reasonable efforts to resume providing access to the Platform as soon as reasonably possible after the event giving rise to the Service Suspension is cured. DressX will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
Usage Data. Notwithstanding anything to the contrary in this Agreement, DressX may process Usage Data to monitor, maintain, and optimize the Platform and for any other lawful purpose. As between DressX and Customer, all right, title, and interest in and to such Usage Data is owned solely and exclusively by DressX.
Open Source Components. Certain aspects of the Platform or Client-Side Software may contain or be distributed with open source software code or libraries (“Open Source Components”). DressX will provide a list of Open Source Components for a particular version of any distributed portion of the Platform, on Customer’s request. To the extent required by the license applicable to such Open Source Components: (i) DressX will use reasonable efforts to deliver to Customer any notices or other materials (such as source code); and (ii) the terms of such licenses will apply to such Open Source Components in lieu of the terms of this Agreement. To the extent the terms of such licenses prohibit any of the restrictions in this Agreement with respect to any particular Open Source Component, such restrictions will not apply to such Open Source Component. To the extent the terms of such licenses require DressX to make an offer to provide source code or related information in connection with the Open Source Component, such offer is hereby made. For purposes of clarity, Open Source Components are Third-Party Products.
Customer Responsibilities.
General. Customer is responsible and liable for all uses of the Platform and Client-Side Software resulting from access provided by DressX to Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Platform and shall cause Authorized Users to comply with such provisions.
Attribution. Customer represents and warrants to DressX that Customer will attribute DressX as the source of the DressX IP when displaying or distributing results generated through the Platform, including by displaying “Powered by DressX” or another attribution reasonably requested by DressX.
Customer End-User Terms. Customer represents and warrants to DressX that Customer will make the DressX Platform available to End Users pursuant to enforceable written terms that are at least as protective of DressX and its rights as this Agreement and those contained in DressX’s Terms of Service [LINK]. Promptly upon DressX’s written request, Customer will provide DressX with a copy of its then-current End User terms. Customer agrees to use reasonable efforts to enforce its End User terms, to protect DressX’s proprietary rights, and to cooperate, without charge, in DressX’s efforts to protect and enforce its proprietary rights, including against End Users. Customer shall promptly notify DressX of any known or suspected violation of any End User terms directly or indirectly impacting DressX, or any infringement or misappropriation of DressX’s intellectual property or other proprietary rights. .
Rights and Authorizations. Customer represents, warrants, and covenants to DressX that Customer has received or will obtain all rights, authorizations, consents and licenses necessary to submit Customer Data and Customer End-User Data to be processed through the DressX Platform, and to authorize DressX’s interactions with Customer’s End Users and the processing of Customer End-User Data for the purposes set forth in this Agreement, including by providing all necessary disclosures to, and obtaining all necessary consents from all identifiable individuals (including but not limited to End Users) whose likeness or Personal Data are captured or submitted through the Platform. While DressX may provide features or sample language designed to help Customer address these obligations, DressX is not responsible for, and disclaims all liability relating to, ensuring all necessary rights, authorizations, consents and licenses have been obtained.
Third-Party Products. DressX may from time to time make Third-Party Products available to Customer or DressX may allow for certain Third-Party Products to be integrated with the Platform to allow for the transmission of Customer Data from such Third-Party Products into the Platform. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions. DressX is not responsible for the operation of any Third-Party Products and makes no representations or warranties of any kind with respect to Third-Party Products or their respective providers. If Customer does not agree to abide by the applicable terms for any such Third-Party Products, then Customer should not install or use such Third-Party Products. By authorizing DressX to transmit Customer Data from Third-Party Products into the Platform, Customer represents and warrants to DressX that it has all right, power, and authority to provide such authorization.
Customer Control and Responsibility. Customer has and, as between the Parties, will retain sole responsibility for: (i) all Customer Data and Customer End-User Data, including its content and use as permitted or contemplated herein; (ii) all information, instructions, and materials provided by or on behalf of Customer or any Authorized User in connection with the Platform; (iii) all Customer Offerings, including products for sale through Customer Offerings; (iv) Customer's information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party platforms or service providers ("Customer Systems") and the Customer Offering; (v) the security and use of Customer's and its Authorized Users' access credentials related to the Purpose; and (vi) all access to and use of the Platform directly or indirectly by or through the Customer Systems, the Customer Offering, or its Authorized Users' access credentials related to the Purpose, with or without Customer's knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use. Additionally, Customer shall: (a) reasonably cooperate with DressX in all matters relating to the Platform and Professional Services; (b) respond reasonably promptly to any DressX request to provide direction, information, approvals, authorizations, or decisions that are reasonably requested by DressX (including product photography, garment information, file naming conventions, SKU data, garment measurements); and (c) provide such information as DressX may reasonably request in order to provide the Platform and carry out the Professional Services, in a timely manner. If DressX’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants, or employees outside of DressX’s reasonable control, DressX shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Customer, in each case, to the extent arising directly from such prevention or delay.
Support. During the Subscription Period, DressX will use commercially reasonable efforts to provide Customer with basic customer support via DressX’s standard support channels during DressX’s normal business hours.
Professional Services. DressX will perform Professional Services as described in an Order. Customer will provide DressX with all reasonable cooperation required for DressX to perform the Professional Services, including timely access to any reasonably required Customer materials, information, Customer Systems, or personnel. Subject to any limitations identified in an Order, Customer will reimburse DressX’s reasonable travel and lodging expenses incurred in providing Professional Services. To the extent the Professional Services result in any software code or other work product of any kind (“Work Product”), unless otherwise set forth in an Order, all such Work Product will remain owned solely and exclusively by DressX and may be used by Customer solely in connection with Customer’s authorized use of the Platform under this Agreement.
Fees and Taxes.
Fees. Unless otherwise specified in an Order, the following terms apply. Customer shall pay DressX the fees (“Fees”) identified in the Order without offset or deduction at the cadence identified in the Order (e.g., monthly or annually). Fees paid by Customer are non-refundable. Customer shall make all payments hereunder in US dollars by a mutually agreed-upon payment method. If Customer pays via invoice, Customer will pay the invoiced amount within ten (10) calendar days of the invoice date. If Customer fails to make any payment when due, and Customer has not notified DressX in writing within ten (10) days of the payment becoming due and payable that the payment is subject to a good faith dispute, without limiting DressX’s other rights and remedies: (i) DressX may charge interest on the undisputed past due amount at the rate of 1.5% per month, calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse DressX for all reasonable costs incurred by DressX in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for ten (10) days or more, DressX may suspend Customer’s and its Authorized Users’ access to all or any part of the Platform or any Client-Side Software until such amounts are paid in full.
Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on DressX’s income.
Confidential Information.
Definition. From time to time during the Subscription Period, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media that: (i) is marked, designated or otherwise identified as “confidential” or something similar at the time of disclosure or within a reasonable period of time thereafter; or (ii) would be considered confidential by a reasonable person given the nature of the information or the circumstances of its disclosure (collectively, “Confidential Information”). The Platform, including all Client-Side Software and any non-public DressX IP or other information provided by DressX to Customer or any Authorized User shall be considered DressX’s Confidential Information. Except for Personal Data, Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party without use of, reference to, or reliance upon the disclosing Party’s Confidential Information.
Duty. The receiving Party shall not use the disclosing Party’s Confidential Information except to perform its obligations and exercise its rights hereunder nor shall it disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees, contractors, and agents who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder (“Representatives”). The receiving Party will protect and safeguard the confidentiality of the disclosing Party’s Confidential Information with at least the same degree of care as the receiving Party would protect its own confidential information, but in no event with less than a reasonable degree of care. The receiving Party will be responsible for all the acts and omissions of its Representatives as they relate to Confidential Information hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. Further, notwithstanding the foregoing, each Party may disclose the terms and existence of this Agreement to its actual or potential investors, debtholders, acquirers, or merger partners under customary confidentiality terms.
Return of Materials; Effects of Termination/Expiration. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-use and non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire one (1) years from the date of termination or expiration of this Agreement; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement until such Confidential Information is no longer considered a trade secret under applicable law through no wrongful act or omission of the receiving Party.
Intellectual Property Ownership; Feedback.
DressX IP. Customer acknowledges that, as between Customer and DressX, DressX owns all right, title, and interest, including all intellectual property rights, in and to the DressX IP and, with respect to Third-Party Products, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products.
Customer Data. DressX acknowledges that, as between DressX and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data and Output.
Feedback. If Customer or any of its employees, contractors, or agents provides, sends or transmits any communications or materials to DressX by mail, email, telephone, or otherwise, suggesting or recommending changes to the DressX IP, including new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), DressX is free to use such Feedback without remuneration or notice to Customer, irrespective of any other obligation or limitation between the Parties governing such Feedback.
Warranty Disclaimer. THE DRESSX IP IS PROVIDED “AS IS” AND DRESSX HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. EXCEPT FOR THE LIMITED WARRANTIES SET FORTH HEREIN, DRESSX HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. DRESSX SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. DRESSX MAKES NO WARRANTY OF ANY KIND THAT THE DRESSX IP, OR ANY OUTPUTS, PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER PLATFORM, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. THE DRESSX IP IS PROVIDED FOR INFORMATIONAL AND REFERENCE PURPOSES ONLY AND DRESSX IS NOT RESPONSIBLE OR LIABLE FOR ANY DECISIONS OR PURCHASES MADE BY END USERS THROUGH THE CUSTOMER OFFERING.
Indemnification.
DressX Indemnification.
DressX shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses”) incurred by Customer resulting from any claim, suit, action, or proceeding brought by an unaffiliated third party (“Third-Party Claim”) against Customer alleging that the Platform, or any use of the Platform in accordance with this Agreement, infringes or misappropriates such third party’s US intellectual property rights; provided that Customer promptly notifies DressX in writing of the claim, cooperates with DressX, and allows DressX sole authority to control the defense and settlement of such claim.
If such a claim is made or appears possible, Customer agrees to permit DressX, at DressX’s sole discretion: to (i) modify or replace the Platform, or component or part thereof, to make it non-infringing; or (ii) obtain the right for Customer to continue use. If DressX determines that neither alternative is reasonably commercially available, DressX may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer.
This Section 10.1 will not apply to the extent that the alleged infringement arises from: (i) use of the Platform in combination with data, software, hardware, equipment, or technology not provided by DressX; (ii) modifications to the Platform not made by DressX; (iii) Customer Data; or (iv) Third-Party Products.
Customer Indemnification. Customer shall indemnify, hold harmless, and, at DressX’s option, defend DressX from and against any Losses resulting from any Third-Party Claim: (a) alleging that the Customer Data or Customer End-User Data, or any use of the Customer Data or Customer End-User Data in accordance with this Agreement, or the Customer Offering or the use of the Customer Offering infringes or misappropriates such third party’s intellectual property, privacy or other rights (including any Third-Party Claim alleging the rights, authorizations, consents or licenses described in Section 3.4 were not obtained or were insufficient); (b) based on or related to Customer’s or any Authorized User’s: (i) negligence or willful misconduct; (ii) use of the Platform or any Client-Side Software in a manner not authorized by this Agreement; or (iii) use of the Platform or any Client-Side Software in combination with data, software, hardware, equipment or technology not provided by DressX; (c) based on or related to the Customer Offering or any product made available for sale through the Customer Offering, including as to any End User’s use of any such Customer Offering or purchase of any such product; or (d) based on or related to any use of or reliance on any Output; in each case provided that Customer may not settle any Third-Party Claim against DressX unless DressX consents to such settlement in writing, and further provided that DressX will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
Sole Remedy. THIS SECTION 10 SETS FORTH CUSTOMER’S SOLE REMEDIES AND DRESSX’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE PLATFORM INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
Limitations of Liability. IN NO EVENT WILL DRESSX BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (i) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (ii) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (iii) LOSS OF GOODWILL OR REPUTATION; (iv) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (v) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL DRESSX’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO DRESSX UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM.
Subscription Period and Termination.
Subscription Period. The initial term of this Agreement begins on the Effective Date and, unless terminated earlier pursuant to this Agreement’s express provisions, will continue in effect for the period identified in the Order (the “Initial Subscription Period”). Unless otherwise identified in the Order, this Agreement will automatically renew for additional successive terms equal to the length of the Initial Subscription Period unless earlier terminated pursuant to this Agreement’s express provisions or either Party gives the other Party written notice of non-renewal at least sixty (60) days prior to the expiration of the then-current term (each a “Renewal Subscription Period” and together with the Initial Subscription Period, the “Subscription Period”).
Termination. In addition to any other express termination right set forth in this Agreement:
DressX may terminate this Agreement, effective on written notice to Customer, if Customer: (i) fails to pay any amount when due hereunder, and such failure continues more than ten (10) calendar days after DressX’s delivery of written notice thereof; or (ii) breaches any of its obligations under Section 2.3 or Section 7;
either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) calendar days after the non-breaching Party provides the breaching Party with written notice of such breach; or
either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of the DressX IP and, without limiting Customer’s obligations under Section 7, Customer shall delete, destroy, or return all copies of the DressX IP and certify in writing to the DressX that the DressX IP has been deleted or destroyed. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund.
Survival. This Section 12.4 and Sections 1, 5, 7, 8, 9, 10, 11, 12.3, and 13 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
Miscellaneous.
Entire Agreement. This Agreement, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, this Agreement; and (ii) second, any other documents incorporated herein by reference. Excluding Orders, terms in business forms, purchase orders, quotes, or similar documents used by either Party will not amend or modify this Agreement; any such documents are for administrative purposes only. As used herein, “include” and “including” shall be deemed to be followed by “without limitation.”
Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth in the Order (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or email (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.
Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control, including acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
Amendment and Modification. DressX may change this Agreement (except for any Orders) from time to time at its discretion. The date on which the Agreement was last modified will be updated at the top of this Agreement. DressX will provide Customer with reasonable notice prior to any material amendments or modifications taking effect, either by emailing the email address associated with Customer’s account on the Platform or by another method reasonably designed to provide notice to Customer. If Customer accesses or uses the Platform after the effective date of the revised Agreement, such access and use will constitute Customer’s acceptance of the revised Agreement beginning at the next Renewal Subscription Period or, if Customer enters into a new Order with DressX, as of the date of execution of such Order.
Waiver. No failure or delay by either Party in exercising any right or remedy available to it in connection with this Agreement will constitute a waiver of such right or remedy. No waiver under this Agreement will be effective unless made in writing and signed by an authorized representative of the Party granting the waiver.
Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of New York. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder must be instituted in the federal courts of the United States or the courts of the State of California in each case located in Los Angeles, California and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of DressX. Any purported assignment or delegation in violation of this Section will be null and void. DressX may assign this Agreement without restriction. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
Export Regulation. The Platforms utilize software and technology that may be subject to US export control laws, including the US Export Administration Act and its associated regulations. Customer shall not, directly or indirectly, export, re-export, or release the Platform or the underlying software or technology to, or make the Platform or the underlying software or technology accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Platform or the underlying software or technology available outside the US.
US Government Rights. Each of the Documentation and the software components that constitute the Platform is a “commercial item” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Customer is an agency of the US Government or any contractor therefor, Customer only receives those rights with respect to the Platform and Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government users and their contractors.
Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 7 or, in the case of Customer, Section 2.3, would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
Publicity. DressX may identify Customer as a user of the Platform and may use Customer’s name, logo, and other trademarks in DressX’s customer list, press releases, blog posts, advertisements, and website (and all use thereof and goodwill arising therefrom shall inure to the sole and exclusive benefit of Customer). Otherwise, neither Party may use the name, logo, or other trademarks of the other Party for any purpose without the other Party’s prior written approval.