FDS

1. BINDING AGREEMENT.

1.1 Fabric Digitization Service (“Service”) is a fee-based service that CLO provides to digitally measure and capture the physical properties and surface appearance of (“Digitize”) your textile materials, textile products, and/or other related physical Fabrics (“Fabric(s)”) to create a digital rendering of the Fabric(s) (“Digitized Fabrics”). The Digitized Fabrics consist of (A) a virtual fabric file (the “Virtual Fabric”), which will indicate the physical properties of the Fabrics and (B) a texture which will indicate the surface appearance of the Fabrics (the “Texture”).

1.2 These terms (“Terms”) govern your use of the Service.

1.3 IF YOU HAVE ENTERED INTO ANOTHER AGREEMENT WITH US CONCERNING FABRIC DIGITIZATION SERVICE OR OTHER CLO’S SERVICES AND SOFTWARE, THEN THE TERMS OF THAT AGREEMENT CONTROLS WHERE IT CONFLICTS WITH THESE TERMS.

1.4 By clicking the “I accept” button (or its equivalent), you agree to these Terms. For the avoidance of doubt, if you click the “I accept” button (or its equivalent) on behalf of an entity, organization, or Legal Entity, you represent and warrant that you are authorized to accept these Terms on behalf of such entity or organization--in which case “you” and “your” will refer to that entity or organization.

1.5 If at any point for any reason you do not agree to any portion of the then-current version of these Terms, our Privacy Policy, or any other CLO policy, rules or codes of conduct relating to your use of Service, your use our Service shall immediately terminate and you must stop using our Service. CLO offers various services and software. As a result, additional terms or service requirements may apply. Additional terms will be available with the relevant services or software, and those additional terms become part of your agreement with us if you use those services or software. If you receive CLO Software from us, the use of such software is governed by the applicable License Agreement or End User License Agreement (collectively, “EULA”) presented to and signed by you. If no EULA or additional license terms are presented to and signed by you, these Terms apply.

1.6 Unless otherwise set forth in these Terms, to the extent these Terms conflict with any other CLO terms, policy, rules or codes of conduct, these Terms shall govern.

DEFINITIONS. Unless otherwise defined in the main body of these Terms, capitalized terms used in these Terms are defined as follows:

2.1 “Affiliate” means with respect to either party, any entity that directly or indirectly Controls, is Controlled by, or is under common Control with such party. "Control" shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of registered capital or voting securities, by agreement or otherwise, and includes (i) ownership directly or indirectly of fifty percent (50%) or more of the shares or other equity interests in issue or registered capital of such entity, (ii) ownership, directly or indirectly of fifty percent (50%) or more of the voting power of such entity or (iii) the power directly or indirectly to appoint a majority of the members of the board of directors or similar governing body of such entity, and the terms "Controlled" and "Controlling" shall have correlative meanings.

2.2 “CLO Software” means CLO’s proprietary 3D fashion design software, APIs, applications, platforms, and other related software.

2.3 “CLO-SET” “CLO-SET” means CLO’s cloud-based online platform that allows users to store, share, manage, and collaborate on digital assets and content--accessible at https://style.clo-set.com/aboutus as of the Effective Date.

2.4 “Fabric Digitization Service Method(s)” consists of three separate methods:

2.4.1 “Physical Properties” (or Physical Properties Testing) means testing of physical properties of Fabrics resulting in the Digitized Fabrics.

2.4.2 “3D Image Scanning” means testing and capturing the surface appearance of Fabrics. Digitized Fabrics will not be created when only this method is performed.

2.4.3 “3D Validation” means 3D verification and modification of the Digitized Fabrics. 3D Validation can only be performed in tandem with Physical Properties Testing.

2.5 “Legal Entity” means any company, corporation, limited liability company, general partnership, limited partnership, limited liability partnership, proprietorship, joint venture or other form of business organization. Legal Entity includes, without limitation, any government, non-profit, or Qualified Academic Institution.

3. ELIGIBILITY.

3.1 YOU MUST BE AT LEAST 13 YEARS OF AGE TO ACCESS OR USE OUR SERVICE.

3.2 You may only use our Service if you are over 13 years old and are allowed by law to enter into a binding contract. In any event, if you are under the age of majority in your jurisdiction you are not allowed to use our Service or submit personal information to us.

4. CHANGES TO TERMS & OUR SERVICES.

4.1 CLO reserves the right, at our discretion, to change or modify these Terms at any time. Although it is your responsibility to review these Terms from time to time for any changes, CLO will notify you of any revisions to these Terms by posting them at this location, and may provide other notice which may include by email or in-Service notice. If you do not agree to the revised Terms, you must stop using our Service. Your continued use of our Service following any revision to these Terms signifies your assent to and acceptance of the revised Terms.

4.2 These Terms may not otherwise be amended except in a writing hand signed by you and CLO. For purposes of this provision, "writing" does not include an e-mail message and a signature does not include an electronic signature.

4.3 You agree that CLO retains the unfettered right to modify any aspect of our Service. You acknowledge that CLO has been, is, and will be constantly making changes to our Service. These changes include modifications to features, functions or abilities of any element of our Service.

4.4 All descriptions, images, references, features, content, specifications, products and prices of Service described or depicted on our Services, are subject to change (including availability) at any time without notice.

5. CONFIDENTIALITY.

5.1 Confidentiality. In the course of providing the Service to you under these Terms, including any presales communications or post-sales support, we and/or our Affiliates (the “Disclosing Party”) may disclose or may have already disclosed to you and/or your Affiliates (the “Receiving Party”) non-public information relating to the subject matter of these terms, which shall be considered to be the Disclosing Party's "Confidential Information"--whether disclosed or received, directly or indirectly, in oral, written, or any other format or media whatsoever. The Receiving Party agrees that it will take the same steps to protect the confidentiality of the Disclosing Party’s Confidential Information as it takes to protect its own proprietary and confidential information. The Receiving Party shall protect and keep confidential and shall not use, publish or otherwise disclose to any third party, except as contemplated by this Agreement or with the Disclosing Party’s prior written consent, the Disclosing Party's Confidential Information during and after the term of this Agreement. Licensee agrees and acknowledges that CLO may share Licensee’s Confidential Information to third party contractors for the exclusive purpose of providing services to Licensee in relation to this Agreement; provided that CLO shall remain fully liable for acts and omissions of any such contractor in breach of this Agreement. For purposes of this Agreement, Confidential Information shall not include such information that (1) was known to the Receiving Party at the time of disclosure of it to the receiving Party by the Disclosing Party hereunder; or (2) was generally available to the public or was otherwise part of the public domain at the time of disclosure or became generally available to the public or otherwise part of the public domain after disclosure other than through any act or omission of the Receiving Party in breach of this Agreement; or (3) became known to the Receiving Party after disclosure from a source that had a lawful right to disclose such information to others; or (4) was independently developed by the Receiving Party where such independent development can be established by written documentation.

5.2 Permitted Disclosure. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information of the Disclosing Party and/or the terms and conditions of this Terms pursuant to a subpoena or other court process only (i) after having given the Disclosing Party prompt notice of the Receiving Party's receipt of such subpoena or other process and (ii) after the Receiving Party has given the Disclosing Party a reasonable opportunity to oppose such subpoena or other process or to obtain a protective order. Confidential Information of the Disclosing Party in the custody or control of the Receiving Party shall be promptly returned or destroyed upon the earlier of (i) the Disclosing Party's written request or (ii) termination of these Terms.

5.3 Term. The obligations of the Receiving Party under this Section 5 shall survive, with respect to any particular Confidential Information of the Disclosing Party, until all Confidential Information of the Disclosing Party disclosed hereunder becomes publicly known or made generally available through no action or inaction of the Receiving Party; except with respect to Confidential Information of the Disclosure that constitutes a trade secret under applicable law, in which case, such obligations of Recipient shall continue for as long as such Confidential Information constitutes a trade secret under applicable law.

6. SERVICES AND TERMS OF USE OF FABRICS.

6.1 Modification of FDS Order. You will be able to modify your FDS Order before the FDS Order has been confirmed. For confirmed FDS Orders, you will be able to modify the FDS Order by directly contacting us.

6.2 Transfer of Fabrics. You shall deliver the Fabrics listed in the applicable FDS Order to the shipping address designated in the applicable FDS Order.

6.3 Necessary Information. CLO shall be under no obligation to provide the Service under this Agreement unless you provide (A) all information requested by CLO in the applicable FDS Order; (B) all Fabric Information requested by CLO for each Fabric (collectively, the “Necessary Information”) and, (C) all documents requested by CLO for each Fabric.

6.4 Technical Requirements. CLO shall be under no obligation to provide the Service or any FDS Method under this Agreement for any Fabric that does not meet the applicable Technical Requirements specified by CLO in the applicable FDS Order.

6.5 Disclaimer; Unsuitable Fabrics. CLO does not warrant or guarantee that all or any particular Fabrics you’ve sent will be deemed suitable for the Service. You acknowledge and agree that (A) such determinations may be made by CLO in its sole reasonable discretion and that (B) any Fabric deemed unsuitable for the Service may be discarded by CLO.

6.6 Retrieval through CLO-SET. If you elect to have the Deliverables delivered through CLO-SET, you will be required to create a CLO-SET account to retrieve Digitized Fabrics.

6.7 Limited Use of Confidential Information and Fabrics. Neither CLO nor any of its Affiliates or subcontractors will disassemble, reverse engineer, attempt to determine the underlying chemical composition of, or replicate in any way the Fabrics or any samples, products or prototypes embodying your Confidential Information, except as may be necessary for CLO to perform its obligations under this Agreement.

6.8 Terms of Use of Fabrics. For any Fabrics shipped to CLO, CLO warrants that CLO, its Affiliates, and/or subcontractors will retain control of the Fabrics and will only permit employees of CLO, its Affiliates, and/or applicable subcontractor to handle or otherwise access or use the Fabrics—in each case solely to the extent permitted by this Agreement.

6.9 Test Report. Upon successful Digitization of any Fabric, a Test Report shall be provided to you. “Test Report” means a document verifying whether the Fabrics have been successfully Digitized. For clarity, a Test Report will be provided only when Physical Properties Testing and 3D Validation are performed. For further clarity, a successful Test Report result does not represent or guarantee exceptional performance, quality, effectiveness, or shape of the Digitized Fabrics.

6.10 Intellectual Property. Each party will retain all of its rights, titles and interests in and to its own intellectual property in existence. For the avoidance of doubt, the Fabrics are your background IP and will remain the sole and exclusive property of you. Except as set forth herein, this Agreement will not be construed to grant any license or other rights to either party.

6.11 Affiliates. You acknowledge and agree that in providing the Service, CLO may have its Affiliates and third-party subcontractor(s) engage in activities in connection with the Service on behalf of CLO—including (A) receiving and/or digitizing the Fabrics, (B) performing the FDS Methods, and/or (C) receiving your Confidential Information, subject to Section 5 —solely for the purposes contemplated in this Agreement; provided that CLO shall be fully liable for any act or omission of any such Affiliate or subcontractor in breach of this Agreement.

7. WARRANTIES.

7.1 Limited Warranties. CLO warrants that, as of the date on which the Digitized Fabrics are delivered to you and for twelve (12) months thereafter (“Warranty Period”), the Digitized Fabrics will conform to CLO’s 3D verification specifications and will be interoperable with CLO Software. CLO’s entire liability and your exclusive remedy with respect to such Digitized Fabrics during the Warranty Period (“Limited Warranty”) will be, with the exception of any statutory warranty or remedy that cannot be excluded or limited under law, at CLO’s option, (i) to use commercially reasonable efforts to repair or replace Digitized Fabrics, if any, or (ii) to issue a prorated refund of the Fabric Digitization Service Fee you’ve paid. Repair or replacement of any Digitized Fabrics does not extend the Limited Warranty Period for such impaired Fabrics or Digitized Fabrics.

7.2 Disclaimer of Other Warranties. EXCEPT FOR THE EXPRESS LIMITED WARRANTY AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CLO AND ITS AFFILIATES DISCLAIM ALL EXPRESS AND IMPLIED REPRESENTATIONS OR WARRANTIES (INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, OR WARRANTIES OTHERWISE IMPLIED BY STATUTE OR FROM A COURSE OF DEALING OR USAGE OF TRADE) WITH RESPECT TO THE FABRIC DIGITIZATION SERVICES AND DIGITIZED FABRICS. ANY STATEMENTS OR REPRESENTATIONS ABOUT THE FABRIC DIGITIZATION SERVICES, THE DIGITIZED FABRICS, AND THEIR FEATURES OR FUNCTIONALITY, OR ANY COMMUNICATION WITH YOU ARE FOR INFORMATION PURPOSES ONLY, AND DO NOT CONSTITUTE A WARRANTY OR REPRESENTATION. WITHOUT LIMITING THE FOREGOING, CLO DOES NOT WARRANT: (a) THAT ALL OF YOUR FABRICS WILL SUCCESSFULLY BE DIGITIZED; OR (b) THAT THE OPERATION OR OUTPUT OF THE DIGITIZED FABRICS WILL BE ONE HUNDRED PERCENT ERROR-FREE, ACCURATE, OR CONFORMABLE WITH ALL 3D SOFTWARE, PLATFORMS, OR APPLICATIONS; OR (c) THAT ERRORS FOLLOWING THE FABRIC DIGITIZATION SERVICE WILL BE CORRECTED BY CLO, ITS AFFILIATES, OR SUBCONTRACTOR. NOTHING IN THE FOREGOING RESTRICTS THE EFFECT OF WARRANTIES OR CONDITIONS WHICH MAY BE IMPLIED BY LAW WHICH CANNOT BE EXCLUDED, RESTRICTED OR MODIFIED NOTWITHSTANDING A CONTRACTUAL RESTRICTION TO THE CONTRARY.

7.3 Exclusions and Limitations. EXCEPT IN THE EVENT OF A BREACH OF SECTION 5, IN NO EVENT WILL CLO, ITS AFFILIATES SUBCONTRACTORS, OR SUPPLIERS, OR THEIR DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, DISTRIBUTORS, REPRESENTATIVES AND AGENTS HAVE ANY LIABILITY (DIRECTLY OR INDIRECTLY) FOR ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES; FOR LOSS OF PROFITS, USE, OR REVENUE; OR FOR BUSINESS INTERRUPTION (REGARDLESS OF THE LEGAL THEORY FOR SEEKING SUCH DAMAGES OR OTHER LIABILITY); OR FOR NORMAL WEAR AND TEAR, OR MINOR DEFECTS CAUSED BY ALTERATIONS AND MODIFICATIONS TO FABRICS. ADDITIONALLY, EXCEPT IN THE EVENT OF A BREACH OF SECTION 5, THE CUMULATIVE LIABILITIES OF CLO AND ITS AFFILIATES AND SUBCONTRACTORS, ARISING OUT OF OR RELATING TO ANY FABRICS, DIGITIZED FABRICS, OR THE SERVICE WILL NOT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER FOR THE SERVICE.

7.4 Application of and Basis for Limitations. THE LIMITATIONS OF LIABILITY WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW TO ANY DAMAGES OR OTHER LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, WHETHER DERIVED FROM CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE) OR OTHERWISE, EVEN IF CLO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITY AND REGARDLESS OF WHETHER THE LIMITED REMEDIES AVAILABLE HEREUNDER FAIL OF THEIR ESSENTIAL PURPOSE.

8. DATA PRIVACY AND SECURITY.

8.1 Data Collection and Procedures. CLO will collect your data as necessary to perform the Service. Any personal information or personal data collected as part of the Service shall be processed in accordance with all applicable data privacy laws.

8.2 Data Sharing. You acknowledge and agree that CLO, its Affiliates, and applicable subcontractor(s) may share with one another the data you’ve provided or data created in the performance of the Service, subject to Section 5 and solely for the purposes set forth in this Agreement.

8.3 Permissible Purposes. The data you’ve provided or data created in the performance of the Service shall be used solely (A) for the purposes of carrying out the parties’ obligations under this Agreement; (B) for CLO’s and/or subcontractors’ research and analytical purposes provided that the applicable data does not identify Customer, the Fabric Owner, or the Fabric supplier (“Anonymized”); (C) for the purposes of maintaining the security and integrity of the Service; and (D) to respond to any legitimate law enforcement or legal request.

8.4 Security Breach. If CLO becomes aware of, or reasonably believes that there has been, any unauthorized or unlawful access, use, disclosure, destruction or loss of your data (“Security Breach”), CLO shall promptly notify you via electronic mail to the email address you’ve provided in the Applicant Information.

8.5 CLO-SET. Notwithstanding any other provision of this Terms, any use of CLO-SET by you shall be governed by the then-current CLO-SET Terms of Service, Privacy Policy, and related policies accessible on the CLO-SET website at https://style.clo-set.com/aboutus (collectively, the “CLO-SET Terms”). In the event of any conflict between the terms of this Agreement and the CLO-SET Terms, the latter shall prevail and control.

9. TERM AND TERMINATION.

9.1 CLO may terminate these Terms and any outstanding FDS Orders if you are in breach of these Terms and fail to cure such breach within twenty (20) days after written notice of the breach. CLO may also terminate this Agreement if you become subject to bankruptcy proceedings, becomes insolvent, or makes an arrangement with your creditors. These Terms will terminate automatically without further notice or action by CLO if you go into liquidation. Either Party may terminate this Agreement for convenience upon sixty (60) days prior written notice to the other Party.

9.2 Effect of Termination. Upon expiration or termination of these Terms, CLO and/or Subcontractor will promptly return to you all your Confidential Information and any outstanding Digitized Fabrics already paid for by you and discard Fabrics already delivered to CLO with written confirmation of such destruction.

9.3 Surviving Provisions. The rights and obligations of the Parties under Sections 2, 5, 6, 8, and 10 will survive the expiration or termination of this Agreement.

10. PAYMENT AND DELIVERY.

10.1 Payment. CLO will issue an invoice upon the receipt of the Fabrics from Customer in accordance with the requirements of these Terms and CLO’s acceptance thereof. You shall pay CLO the applicable Fees within thirty (30) calendar days after the invoice is issued.

10.2 Delivery. The applicable Digitized Fabrics and Test Report (collectively, the “Deliverables”) will be Delivered to you in accordance with the Delivery Timeline set forth in the applicable FDS Order. For clarity, the Delivery Timeline does not account for the pre-testing period, which is used to determine whether the applicable Fabrics are suitable for the Service (“Pre-Testing Period”). For further clarity, the deadlines set forth in the Delivery Timeline shall be calculated beginning on the first business day after the Pre-Testing Period has concluded. When ready, at your option, the Deliverables will be either (A) uploaded to the CLO-SET account associated with the email address specified in the applicable FDS Order or (B) emailed to your Contact Email specified in the applicable FDS Order. Uploading the applicable Deliverables onto such CLO-SET account or transmitting the Deliverables to the Retrieval Email Address shall constitute delivery (“Delivery,” “Deliver”).

11. AMICABLE DISPUTE RESOLUTION; GOVERNING LAW AND JURISDICTION.

In the event of any dispute, controversy, claim, question or disagreement (a “Claim”) arising out of or related to these Terms or the breach thereof, any issue that arises under these Terms, prior to taking any other dispute resolution measure, the parties agree to attempt to resolve the dispute amicably and informally to help get the parties to a resolution and control costs for both parties. The parties agree to make a good-faith effort to negotiate any dispute between the parties for at least thirty (30) calendar days (“Informal Resolution”). If the parties fail to resolve such Claim amicably, any Claim arising out of or related to this Agreement shall be subject to the exclusive jurisdiction and venue of the state of New York County, New York and the federal courts located in the Southern District of New York, without recourse to the principles of conflicts of laws. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply to this Agreement.

12. SEVERABILITY.

If and to the extent any provision of these Terms is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof will be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability and will be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties. The illegality, invalidity, or unenforceability of such provision in that jurisdiction will not in any way affect the legality, validity, or enforceability of such provision or any other provision of this Agreement in any other jurisdiction.

13. NOTICES.

CLO may notify you by posting(s) made within the Service, sending you an e-mail or using other ways of communicating with you based on the contact information you provide to us. Any notice to CLO required according to these Terms must be in writing and addressed to 16 E 34th Street, 18th Floor, New York, NY 10016 USA, unless we have provided a more specific method of notifying us. No notice to CLO under these Terms will be effective unless a copy of such notice is also emailed to legal@clo3d.com.

14. ENFORCEABILITY, ENTIRE AGREEMENT & NON-WAIVER.

These Terms are deemed accepted upon any use of the Services. These Terms and any additional terms referenced herein constitute the entire agreement between you and CLO regarding the use of the Services. Our failure to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect.

15. ASSIGNMENT.

You may not transfer or assign any of the rights or licenses granted to you hereunder without CLO’s prior written consent therefor. However, CLO may transfer or assign all or a part of CLO’s rights or responsibilities under these Terms to any person or entity without your consent.

16. FORCE MAJEURE.

CLO shall not be liable for any changes or problems out of our control, for example changes or problems caused by like natural disasters, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, network infrastructure failures, strikes, or shortages of transportation facilities, fuel, energy, labor or materials.