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HIGG CO LLC License Agreement and Terms of Use For Higg Index Tools

HIGG CO LLC

 

LICENSE AGREEMENT AND TERMS OF USE

 

FOR HIGG INDEX TOOLS

 

Last Updated: October 30, 2019

 

 

This License Agreement and Terms of Use (these “Terms”) is a binding agreement between you (“your” or “you”) and Higg Co LLC (“Higg Co,” “we” or “us”) relating to your access to and use of the www.higg.org website (the “Site”), the Higg Index modules and tools (“Higg Index” or the “Tools”), which includes any Downloadable Tools (defined below) and other web-based tools available on the Site, and the services and resources available or enabled via the Site (“Services”). 

 

These Terms are a legal and binding contract between you and Higg Co.  By accessing, downloading, and/or using the Higg Index, or browsing the Site, you acknowledge that you have read and understand these Terms and agree to be bound by and abide by these Terms.  PLEASE CAREFULLY READ THESE TERMS.  IF YOU DO NOT AGREE WITH THESE TERMS IN THEIR ENTIRETY, DO NOT BROWSE THE SITE, OR ACCESS, DOWNLOAD OR USE THE TOOLS.  BY ACCESSING THE SITE AND/OR ACCESSING, DOWNLOADING AND/OR USING THE TOOLS, YOU REPRESENT AND WARRANT (I) THAT YOU ARE AT LEAST 18 YEARS OLD AND THAT YOU ARE LEGALLY ABLE TO ENTER INTO THESE TERMS, (II) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THESE TERMS, AND (III) YOU HAVE THE AUTHORITY TO ENTER INTO THESE TERMS PERSONALLY OR ON BEHALF OF THE ENTITY YOU HAVE NAMED AS THE USER, AND TO BIND THAT ENTITY TO THESE TERMS. 

 

Background

The Higg Index is a suite of measurement tools, including a Brand & Retailer Module (“Higg BRM”), Facility Modules (“Higg FEM” and “Higg FSLM”), a Design and Development Module (“Higg DDM”), the Higg Materials Sustainability Index (“Higg MSI”), the Material Sustainability Index Contributor (“Higg MSI Contributor”) and other modules and tools that may be developed from time to time by or on behalf of Higg Co that are accessed and used as web-based tools at www.higg.org and any other Higg Co owned web property or otherwise made available to you via download from the Site (the “Downloadable Tools”).  All users of the Higg Index are defined as “Higg Users.”  

 

Changes to these Terms

Higg Co reserves the right, from time to time, in its sole discretion, to revise, modify, or update these Terms at any time.  When changes are made, Higg Co will make a new copy of the Terms available at the Site, or we may provide you with email notice.  We will also update the “Last Updated” date at the top of the Terms. Higg Co may require you to provide consent to the updated Terms in a specified manner before further use of the Site, Tools, and/or any other Services.  If you do not agree to any change(s) after receiving notice of such change(s), you shall stop using the Site, the Tools, and Services.  Otherwise, your continued use of the Site, the Tools, and Services constitutes your acceptance of such changes.  PLEASE REGULARLY CHECK THE SITE TO VIEW THE CURRENT TERMS.

 

Downloadable Tools

Higg Co may make certain Tools available for download (i.e., the Downloadable Tools). Use of any Downloadable Tools is governed by these Terms and the terms of any license agreement or terms of use that accompanies or is included with the Downloadable Tools (the “Downloadable Terms”).  You shall not use, download or run any Downloadable Tools that are accompanied by or include Downloadable Terms unless you agree to those Downloadable Terms. With respect to the Downloadable Tools, if there is any conflict between these Terms and the Downloadable Terms applicable to the particular Downloadable Tool, the Downloadable Terms shall take precedence in relation to that Downloadable Tool.

 

Registration and Account Information

Accessing and using the Tools requires registration and creation of an account on the Site (“Account”).  In registering for an Account, you agree to (1) provide true, accurate, current and complete information about yourself and the Higg User as prompted by the Account registration page (“Registration Data”); and (2) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You are entirely responsible for maintaining the confidentiality of your password.  You may not use the Account, username, or password of someone else at any time.  You agree to notify Higg Co immediately of any unauthorized use of your account, user name, or password.  You may be held liable for any losses incurred by Higg Co due to someone else’s use of your Account or password.  Higg Co is not liable for any loss that you incur as a result of someone else accessing your Account or using your password, either with or without your knowledge.

 

Fees and Payment Terms

Payment. Your access and use of the Tools is contingent on timely and full payment of the applicable fees due. Higg Co reserves the right to suspend or limit your access to portions of the Site or the Tools (including any modules) should you fail to remit timely payment. You agree to pay all fees or charges to your Account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable.  You must provide Higg Co with a valid credit card (Visa, MasterCard or any other issuer accepted by us) (“Payment Provider”), or purchase order or payment information as a condition for signing up for certain Services, which are described in your invoice.  Your Payment Provider agreement governs your use of the designated credit card, and you must refer to that agreement and not to these Terms to determine your rights and liabilities with respect to your payment method. By providing Higg Co with your credit card number, you agree that Higg Co is authorized to immediately invoice your Account and charge your payment instrument for all fees and charges due and payable to Higg Co hereunder and that no additional consent or notice is required.  You agree to immediately notify Higg Co of any change in your billing address or credit card account used for payment hereunder. Higg Co reserves the right at any time to change its prices and billing methods, either immediately upon posting on the Site or by email delivery to you.

Taxes. Higg Co’s fees are net of any applicable Sales Tax (as defined below). If any Services, or payment for any Services, under the Terms are subject to Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Higg Co, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority.  “Sales Tax” means any sales or use tax, and any other tax measured by sales, proceeds, that Higg Co is permitted to pass to its customers, that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.

Withholding Taxes. You agree to make all payments of fees to Higg Co free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments of fees to Higg Co will be your sole responsibility, and you will provide Higg Co with official receipts issued by the appropriate taxing authority, or such other evidence as Higg Co may reasonably request, to establish that such taxes have been paid.

User Content

We encourage you to provide requested data and information about your company or organization and to respond to questions posed on the Site and in the Tools (all information entered by Higg User in the Site or any Tools, collectively is the “User Content”).  Higg Co does not claim any ownership interest of your User Content.  However, in order to provide the Tools and Services, we require you and all Higg Users to provide Higg Co with a license to the User Content you provide.

 

Grant of License by Higg Users to Higg Co

You hereby grant Higg Co a non-exclusive, sub-licensable, irrevocable, worldwide, perpetual, royalty-free, sublicensable (through multiple tiers), and transferable license to aggregate, analyze, use, reproduce, distribute, display, and prepare derivative works of the User Content in order to provide the Tools and Services to the Higg Users of the Site and to other entities of Higg Co’s choosing. 

 

Higg Co reserves the right, but has no obligation, to monitor or review User Content at any time.  Without limiting the foregoing, Higg Co shall have the right to delete or disregard any portion of User Content that Higg Co determines is inaccurate, inappropriate, violates applicable law or is otherwise inconsistent with Higg Co’s policies and/or purposes.  Unless otherwise specified, you waive all rights to claim that Higg Co infringed on your proprietary rights, intellectual property rights, rights of privacy and publicity, moral rights, and rights of attribution in connection with your User Content.  You represent and warrant that you have all necessary rights and licenses to grant us the foregoing license.

 

You alone are responsible for your User Content.  You assume all risks associated with your User Content, including, without limitation, any person or entity’s reliance on its reliability or accuracy as well as any of your User Content that makes you personally identifiable. 

 

Grant of License by Higg Co to Higg Users

Subject to the restrictions on use set forth below, Higg Co hereby grants you a limited, non-exclusive, non-assignable, non-sublicensable, and non-transferable license to: (i) access and use the Tools; and (ii) distribute copies of and provide access and use of the Tools to additional Higg Co-authorized users (also “Higg Users") within your company or organization (the “Limited License”). Higg Co reserves the right to charge license or other fees to all Higg Users to use the Tools. The Limited License is contingent upon payment of all applicable fees for the use of the Tools to either Higg Co or its designee (e.g., the Sustainable Apparel Coalition (“SAC”)), in accordance with the applicable purchase order or other invoice provided to you by Higg Co or such designee. Any violation of these Terms shall immediately and automatically terminate the Limited License granted herein without notice to you.  Upon termination of this Limited License, you agree to immediately cease using all Tools (whether Downloadable Tools, web-based tools, or otherwise) and destroy all copies of the Tools in your possession and any associated content. Except for the Limited License, you acknowledge that you have no right, title or interest in or to this Site or the Tools.  

 

Restrictions on Use

We encourage your use of the Tools and you to provide User Content on the Site or through the Tools, but Higg Co imposes certain rules of conduct and restrictions on your permissible use: 

 

  • You may not send, receive, or share the Scores (self-assessed (i.e., non-Verified) or Verified, as both terms are defined below) or provide a Higg Index assessment from another party without first having assented and agreed to these Terms on either Higg.org or other authorized websites.

 

  • You may not access, retrieve or index any portion of the Tools for purposes of constructing or populating a database or other reference.

 

  • You may not distribute copies of the Tools to anyone outside of your company except as set forth herein and instead shall direct any interested users to the Site. Such users shall be required to register, create an account and agree to these Terms before accessing, downloading or using the Tools.  

 

  • You may not share any Scores (yours or any other Higg Users’ Scores) except as otherwise permitted under these Terms. You shall not, in any event, (a) include your Higg Index score in any marketing, advertising or promotional materials without the express written permission of Higg Co, (b) present your Higg Index results or scores at a meeting or conference attended by representatives from more than one outside organization without the prior consent of Higg Co, or (c) if you are a supplier, send a mass email to current and prospective customers with your scores or your Facility Module(s) attached.    

 

  • You may not use our Tools or Services for the purpose of creating SPAM or bulk email messages.

 

  • You agree to retain all copyright, trademark and other proprietary notices contained in the Tools and in any material you obtain from the Site and to attribute ownership to Higg Co except as otherwise noted.

 

  • You are prohibited from using the trademarks and other graphics, logos, trade names, service marks, copyrights and other intellectual property of others without the consent of the owner.

 

  • You agree that any User Content you provide into the Tools or otherwise to Higg Co and/or its licensors will not infringe any laws or third party rights, including intellectual property rights.

 

  • Unless otherwise stated, you may not sell, modify, reproduce, display, distribute, or otherwise use the Tools or any materials from the Tools or the Site in any way for any commercial purpose. This includes integrating any or all components of the Tools into any software platforms without expressed written permission from Higg Co.

 

  • If you are a consultant, vendor or service provider to an authorized User of the Tools and have accessed the Tools for the purpose of providing services to that specific authorized User of the Higg Index, you may not use the Tools, inclusive of associated tools, for any purposes other than in connection with providing services to that specific authorized user of the Higg Index and, in all cases, in accordance with these Terms. 

 

  • You may not post unauthorized communications (such as spam).
  • You may not introduce viruses, trojan horses, worms, or other malicious material or code.
  • You may not use any robots, spiders or other automatic devices, processes or means to access, retrieve, scrape or compile any portion of the Site or Tools.
  • You may not use any device, software or routine that interferes with the proper working of the Site or Tools.
  • You may not attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of the Tools, the server on which the Tools are stored, or any server, computer or database connected to the Tools.
  • You may not remove, circumvent, disable, damage or otherwise interfere with any security-related features of the Tools or features that enforce limitations on the use of the Tools.
  • You may not solicit login and password information or access an account belonging to someone else.
  • You shall respect and shall not violate the privacy of others. You will not record, process, or mine information about other users; or post any other person’s identifying documents or information or any sensitive financial or personal information.
  • You will not alter, modify, create derivative works of, decompile or otherwise attempt to extract source code from us unless we give you express written permission.
  • At all times when accessing, downloading, and using the Tools and providing your Feedback on the Site or through the Tools, you will act in compliance with all applicable international, federal, state, and local laws, regulations and ordinances and you may not use the Index for any illegal purpose.
  • You may not directly or indirectly attack the Tools via a denial-of-service attack or a distributed denial-of-service attack or otherwise attempt to interfere with the proper working of the Tools.

 

Sharing Scores and Results

You may share the scores and results obtained from your use of the Site and/or Tools, including your scores and results and those of others (each, a “Score,” and collectively, the “Scores”) in the following circumstances and manner:

 

  • If you are a supplier:

 

  • If your Higg FEM Scores have been confirmed for validity by a SAC-approved third-party verification partner (“Approved Verifier”) and posted as a “vFEM” on the Site (a “Verified” Score), you may share and communicate your Higg FEM Scores with your supply chain partners and publicly in accordance with the communication guidelines established by the SAC located at: https://apparelcoalition.org/download-the-higg-communications-manual/, including but not limited to the guideline that prohibits the sharing of single Higg FEM Scores without also providing access to the Higg Index Facility Environmental Report (such guidelines, the “Communication Guidelines”).
    • If your Scores are un-Verified, you may share your Higg FEM and Higg FSLM Scores with those brands and retail partners you work with via the Site, and you may share your un-Verified Scores with an Approved Verifier

 

  • If you are a brand or retailer:

 

    • You may share your own Higg BRM Score in the following scenarios:
      • You may share your un-Verified Scores related to your Brand Module(s) with your supply chain partners; and
      • You may share your un-Verified Scores with an Approved Verifier for the purpose of getting your Scores verified.
    • You may share the Higg FEM Scores of your supply chain partners in the following scenarios:
      • You may invite (but not require) your supplier chain partners to complete and share their Facility Module(s) Scores with you, in which case, you may only use the Facility Module Scores for internal planning purposes.
      • You may share Verified Higg FEM Scores of your supply partners publicly under three conditions: (i) the Higg FEM score is Verified by an Approved Verifier; (ii) the supply chain partner has granted you explicit written permission to share their score; and (iii) you follow the Communication Guidelines.

 

No Requirements for Disclosure:  All Higg Users are prohibited from requiring their supply chain partners, (such as a brand requiring a facility), to disclose its Higg Module Score(s) publicly.

 

The accuracy, timeliness, truthfulness and legitimacy of any Score is based on the information provided, and acts and/or omissions, of the company to whom the score pertains, and is therefore outside of the control of Higg Co.  Accordingly, Higg Co makes no representations, warranties or guarantees with respect to any Score(s).  In the event you publicly post, display or otherwise disclose any Score, you agree that you will indemnify, defend and hold harmless Higg Co from and against any damages, judgments, liabilities, losses, penalties, settlements, costs and expenses (including reasonable attorneys’ fees) arising from, or related to, your Score.

 

Special Provisions Applicable to Users Outside the United States

We strive to create a global community with consistent standards for everyone, but we also strive to respect local laws. The following provisions apply to users and non-users of the Tools and the Site outside the United States: (i) you consent to having your personal data transferred to and processed in the United States; and (ii) if you are located in a country embargoed by the United States, or are on the U.S. Treasury Department's list of Specially Designated Nationals you will not engage in commercial activities on the Site. 

 

Accuracy of Results

The Higg Index provides Higg Users with a suite of tools that are designed to, among other things, enable Higg Users to estimate emissions levels and the environmental impact of an entity’s conduct and business (“Outputs”) based on the inputs and information provided by such Higg Users (“Inputs”).  As such, you acknowledge and agree that the Outputs are wholly dependent upon the accuracy, timeliness and completeness of the Inputs provided by you and other Higg Users.  HIGG CO MAKES NO WARRANTY, REPRESENTATION, ENDORSEMENT OR GUARANTEE REGARDING, AND ACCEPTS NO RESPONSIBILITY FOR THE ACCURACY, COMPLETENESS, TIMELINESS OR RELIABILITY OF ANY OUTPUTS. HIGG CO DISCLAIMS ANY AND ALL WARRANTIES OF ACCURACY RELATING TO ANY OUTPUTS. You are solely responsible for the consequences of any acts or omissions taken by you based on any Outputs. Such Outputs are estimates and ARE intended for informational purposes only, and not intended for any reporting purPoses.

Custom Services

From time to time, you and Higg Co may agree to additional services requiring data exchange or bespoke customizations of and developments related to the Distributed Tools, which may be subject to the payment of additional fees and separate terms and conditions (“Custom Services”). In the event Higg Co, in its discretion, determines that such Custom Services require extensive customization or development effort, the Custom Services will be subject to a separate agreement, including terms related to any applicable fees for the Custom Services.

 

Our Proprietary Rights

As between you and Higg Co, Higg Co and its licensors  shall have and retain all right, title and interest in and to the Higg Index, the Tools, and all Output, including without limitation all rights in the patents, copyrights, trade secrets and other intellectual property and proprietary rights in the Higg Index, Tools, and the Output.  Except for the Limited License provided hereunder, you do not acquire any right, title or interest in or to the Higg Index or the Tools. 

 

The trademark, HIGG INDEX, is a registered trademark of the Sustainable Apparel Coalition, to which Higg Co has an exclusive, worldwide, perpetual, and royalty-free, license . You are prohibited from using this mark and other graphics, logos, trademarks and copyrights of the Sustainable Apparel Coalition or Higg Co without the prior written consent of the Sustainable Apparel Coalition or Higg Co.

 

Content Provided by Other Users

The Site and Tools may contain information, data, text, and other materials that has been uploaded or transmitted to the Site and/or Tools by other users (“User-Supplied Supplemental Content”).  You acknowledge and agree that Higg Co has no obligation to pre-screen User-Supplied Supplemental Content, although Higg Co reserves the right in its sole discretion to pre-screen, refuse or remove any User-Supplied Supplemental Content.  YOU ACKNOWLEDGE AND AGREE THAT USER-SUPPLIED SUPPLEMENTAL CONTENT DOES NOT REFLECT THE VIEWS OF HIGG CO, ITS AFFILIATES, VENDORS OR LICENSORS AND THAT HIGG CO, ITS AFFILIATES, VENDORS AND LICENSORS ARE NOT RESPONSIBLE FOR ANY VIEWS, IDEAS, POSITIONS, AND THE LIKE CONTAINED IN ANY SUCH CONTENT.

 

Feedback 

We encourage you to provide and share with us your questions, comments, suggestions, ideas, and feedback regarding the Site and Tools (collectively, “Feedback”). You agree that Higg Co has no obligations (including without limitation obligations of confidentiality, royalty, or accounting) with respect to such Feedback.  You represent and warrant that you have all rights necessary to submit the Feedback, and you hereby irrevocably and unconditionally assign and transfer to Higg Co all right, title, and interest in and to such Feedback automatically upon your submission of the Feedback to Higg Co or any of its licensors.

 

Third Party Information 

If you post or otherwise incorporate information regarding any third party (“Third Party Content”) in your User Content, you will obtain their consent before doing so.  You are responsible for your posting of Third Party Content.  You agree that you will not post any third party’s sensitive financial information, intellectual property, information that the third party treats as confidential or proprietary information, and/or any other information that the third party may consider to be a trade secret. You hereby grant Higg Co a limited, worldwide, non-exclusive, transferable, sublicensable, royalty-free license to access and use all Third Party Content for any reason.

      

Copyright Infringement / Digital Millennium Copyright Act Notice

Higg Co is committed to respecting and protecting the legal rights of copyright owners. As such, Higg Co adheres to the following notice and take down policy, in full compliance with Section 512(c)(3) of the DMCA (17 U.S.C. § 512 et seq.).  If you believe any of the User Content or other content available through the Site or Tools infringes upon your intellectual property rights, please submit a notification alleging such infringement (hereafter a “DMCA Takedown Notice”).  To be valid, a DMCA Takedown Notice must (i) be provided to Higg Co’s designated agent, (“Copyright Agent”), as set forth below, and (ii) include the following:

  1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
  2. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works;
  3. Identification of the material claimed to be infringing or to be the subject of infringing activity and that is to be removed or access disabled and information reasonably sufficient to permit the service provider to locate the material;
  4. Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail;
  5. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
  6. A statement that, under penalty of perjury, the information in the notification is accurate and you are authorized to act on behalf of the owner of the exclusive right that is allegedly infringed.

 

Higg Co’s Copyright Agent to receive DMCA Takedown Notices is: support@higg.com. For clarity, only DMCA Takedown Notices should go to the Copyright Agent; any other feedback, comments, online purchases or other communications should be directed to the applicable customer service links posted on the Site. You acknowledge that in order for Higg Co to be authorized to takedown any content, your DMCA Takedown Notice must comply with all of the requirements of this Section. 

 

Disclaimer of Warranties

You acknowledge and agree that the disclaimers and limits set forth in these Terms reflect the reasonable and fair allocation of risk between you and Higg Co and are an essential basis of this contract between you and Higg Co.  Your use of the Site and Tools and the information you obtain through the Site and Tools is at your own risk. 

 

NEITHER HIGG CO, NOR ANY OF ITS AFFILIATES, VENDORS AND LICENSORS, MAKES ANY REPRESENTATIONS, WARRANTIES OR GUARANTEES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, ABOUT THE QUALITY, ACCURACY, RELIABILITY, AVAILABILITY, COMPREHENSIVENESS, ADEQUACY, COMPLETENESS, SECURITY OR TIMELINESS OF THE SITE, THE TOOLS, SERVICES, CUSTOM SERVICES, OR ANY CONTENT OR INFORMATION THEREIN (COLLECTIVELY, “MATERIALS”), OR THAT THE MATERIALS WILL BE ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT THE SITE, TOOLS, OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE MATERIALS WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.  HIGG CO HAS NO LIABILITY FOR ANY ERRORS, MISTAKES, INACCURACIES OR OMISSIONS IN THE MATERIALS, WHETHER PROVIDED BY HIGG CO, ITS VENDORS OR LICENSORS OR ANY OTHER PERSON OR ENTITY.  THE MATERIALS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND.  TO THE FULLEST EXTENT PERMITTED BY LAW, HIGG CO, FOR ITSELF AND ITS AFFILIATES, VENDORS AND LICENSORS, DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.   

 

Limitation of Liability

TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL HIGG CO OR ITS MEMBERS, LICENSORS, VENDORS, AGENTS OR ANY OTHER CONTRIBUTOR TO THE TOOLS BE LIABLE TO ANY PERSON OR ENTITY FOR ANY DAMAGES OF ANY KIND WHATSOEVER, ARISING OUT OF OR IN CONNECTION WITH (A) THESE TERMS; (B) THE USE, DISCLOSURE, DISPLAY, OR MAINTENANCE OF REGISTRATION INFORMATION OR FEEDBACK PROVIDED ON THE SITE OR THROUGH THE TOOLS, INCLUDING ANY PERSONAL INFORMATION; (C) THE USE OR MISUSE OF THE HIGG INDEX BY ANY PERSON OR ENTITY; (D) ANY OF THE HIGG INDEX CONTENT OR OTHER MATERIALS; OR (E) OTHERWISE; WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT HIGG CO OR ANY OF ITS MEMBERS, LICENSORS, VENDORS, AGENTS OR ANY OTHER CONTRIBUTOR TO THE INDEX IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  AS USED IN THIS SECTION, “DAMAGES” MEANS INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE, RELIANCE, EXEMPLARY AND/OR SPECIAL DAMAGES, INCLUDING LOST PROFITS OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION.  YOUR RIGHT TO ACCESS AND USE THE SITE AND/OR TOOLS IS CONDITIONED UPON YOUR ACCEPTANCE OF THESE TERMS, INCLUDING BUT NOT LIMITED TO ITS DISCLAIMERS OF WARRANTIES AND LIMITATIONS OF LIABILITY. YOU AGREE THAT YOUR EXCLUSIVE REMEDY SHALL BE TO IMMEDIATELY STOP USING THE TOOLS AND THE SITE.  YOU AGREE THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION WILL SURVIVE ANY TERMINATION OR EXPIRATION OF THESE TERMS AND WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED HEREIN IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE.  IN ANY CASE, THE AGGREGATE LIABILITY OF HIGG CO OR ANY OF ITS MEMBERS, LICENSORS, VENDORS, AGENTS, OR ANY OTHER CONTRIBUTOR TO THE HIGG INDEX OR TOOLS WILL NOT EXCEED ONE HUNDRED DOLLARS ($100). 

 

Indemnity

You will defend, indemnify, and hold harmless Higg Co and its members, licensors, vendors, and any contributors to the Site and/or Tools and their respective officers, directors, members, managers, employees, consultants, agents, and representatives, (collectively, the “Indemnified Parties”), from any and all claims, liability, damages, losses, suits, expenses, and/or costs (including reasonable attorneys’ fees) (collectively, “Claims”) suffered by you or Higg Co arising from or relating to (i) your access or use of the Site or Tools, (ii) your violation of these Terms, (iii) your violation of any applicable law or regulation, including violation of international, federal and state, and local antitrust statutes, rules or regulations, (iv) your anti-competitive practices, or (v) your User Content, Input or any Third Party Content. You should not use Higg Index results, answers, or Scores as a sole or contributing factor in making business decisions regarding any supply chain partners, and you agree to defend, indemnify, and hold harmless the Indemnified Parties from third-party Claims arising from your business decisions directly or indirectly or wholly or partly based on Higg Index results, answers and Scores.  Higg Co will endeavor to notify you promptly of any such Claim and will provide you with reasonable assistance, at your expense, in defending any such Claim.

 

Term and Termination.

The Terms commence on the date you accept them (as described in the preamble above) and remain in full force and effect while you use the Services, the Site, or the Tools, unless terminated earlier in accordance with the terms herein. Either party may terminate these Terms in the event the other party materially breaches any provision of these Terms and does not fully cure such breach within thirty (30) days of the non-breaching party’s notice. You agree that all terminations for cause by Higg Co shall be made in Higg Co’s sole discretion, and that Higg Co shall not be liable to you or any third party for any termination of your Account. Upon termination of any Service and/or these Terms, your right to use such Service and the Tools and Materials will automatically terminate immediately.

 

Governing Law

These Terms and your use of the Index shall be construed in accordance with and governed by the laws of the United States and the State of California, without regard to their rules regarding conflicts of law.  You irrevocably consent to the exclusive jurisdiction and venue of the state or federal courts in San Francisco, California, USA for all disputes arising out of or related to the use of the Materials or these Terms, and you hereby submit to the personal jurisdiction of such courts.  Higg Co and you agree that the Uniform Computer Information Transaction Act (UCITA), or any version of UCITA adopted by any state, including California, will not govern or be used to interpret these Terms.  The United Nations Convention on Contracts for the International Sale of Goods (UNCCISG) does not apply to these Terms.

 

Arbitration

Any controversy arising under or related to these Terms, and any disputed claim by any party against another under these Terms, excluding any dispute relating to patent validity or infringement arising under these Terms, shall be settled by arbitration in accordance with the then existing Commercial Arbitration Rules of the International Chamber of Commerce (the “Rules”).  Upon request by a party, arbitration will be by a panel of three (3) arbitrators within thirty (30) days of such arbitration request.  Each party shall select one arbitrator, and the final arbitrator shall be appointed by the arbitrators designed by each party. The arbitration shall be conducted in English. Judgment upon the award rendered by the panel shall be final and non-appealable and may be entered in any court having jurisdiction thereof.  In order to conduct discovery, and in addition to the discovery provisions provided under the Rules, the parties expressly incorporate into any arbitration occurring under this Agreement the discovery rules provided for in the Federal Rules of Civil Procedure of the United States of America.  Any arbitration shall be held in San Francisco, CA, unless the parties hereto mutually agree in writing to another place.  Notwithstanding the foregoing, nothing in this provision shall be construed to bar a party from seeking equitable relief in order to preserve the status quo or prevent irreparable harm.

 

Miscellaneous

These Terms constitute the entire agreement between Higg Co and you regarding your access and use of the Site and Tools, and supersedes any prior agreements between you and Higg Co concerning these matters.  If any of these Terms is found to be inconsistent with applicable law, void, or unenforceable for any reason, the remaining portions (and any partially-enforceable provisions) shall not be affected thereby and shall remain valid and enforceable to the maximum possible extent. Higg Co’s failure to enforce any of these Terms will not be deemed a waiver of such term or any other terms herein or a consent to any subsequent breach of the same or another term. You may not assign or transfer your rights and obligations under these Terms without the prior written consent of Higg Co.  Higg Co may assign or transfer its rights and obligations under these Terms at any time and without notifying you.  Any of the Terms that are, by their nature, intended to survive termination shall survive termination.  Section titles are for convenience only and have no legal effect. The Indemnified Parties are third-party beneficiaries to these Terms.

 

English Language Controls

These Terms were written in English (US). To the extent any translated version of these Terms conflicts with the English version, the English version shall govern and control. 

 

Contact

If you have any questions concerning these Terms or the Tools or other Materials, please contact us through the Higg Co website: www.higg.com or at support@higg.com, or Attn: Terms of Use Questions, 384 Colusa Ave, Kensington, CA 94707    

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