SUSTAINABLE APPAREL COALITION, INC.

 

LICENSE AGREEMENT AND TERMS OF USE

 

FOR HIGG INDEX DISTRIBUTED TOOLS

 

Last Updated: August 13, 2018

 

This License Agreement and Terms of Use (these “Terms”) is a binding agreement between you (“your” or “you”) and the Sustainable Apparel Coalition, Inc. (the “SAC”, “we” or “us”) relating to your access to and use of SAC’s Higg.org (“Site”) distributed tools, defined as Higg Index modules available for use in Microsoft Excel format (each, a “Distributed Tool” or “Tool” and collectively, “Distributed Tools” and “Tools”).  These Distributed Tools enable facilities, brands, and second- and third-party verifiers to evaluate, track, verify and maintain data related to the sustainability of Higg User operations, products and services and allow Higg Users to measure and score the sustainability of their operations, products and services off of the Higg.org Site.

 

These Terms are a legal and binding contract between you and the SAC.  By accessing, downloading, and/or using a Tool, 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 ACCESS, DOWNLOAD OR USE THE TOOL.  BY ACCESSING, DOWNLOADING AND/OR USING THE TOOL, OR CLICKING ON THE “I ACCEPT” OR SIMILAR BUTTON, 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 THE TERMS.

 

Background

The SAC was founded by a group of sustainability leaders from the global apparel and footwear industry who recognize that addressing our current social and environmental challenges are both a business imperative and an opportunity.  The vision of the SAC is an apparel and footwear industry that produces no unnecessary environmental harm and has a positive impact on the people and communities associated with its activities.  Through multi-stakeholder engagement, the SAC seeks to lead the industry toward a shared vision of sustainability built upon a common approach for measuring and evaluating apparel and footwear product sustainability performance that will spotlight opportunities for technological innovation and priorities for action.

 

The SAC provides a suite of Tools, which are collectively referred to as the “Higg Index”, which are made available on www.higg.org (the “Site”).  All registered users of higg.org who have permission to access and use the Higg Index, including the Distributed Tools covered under these Terms, are referred to as “Higg Users”.

 

Changes to these Terms

The SAC 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, SAC 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. SAC may require you to provide consent to the updated Terms in a specified manner before further use of any Tool, and/or any other services available therein is permitted.  If you do not agree to any change(s) after receiving notice of such change(s), you shall stop using the Distributed Tools and related services.  Otherwise, your continued use of any Distributed Tool and related services constitutes your acceptance of such changes.

 

Grant of License by the SAC to Higg Users

Subject to the restrictions on use set forth below, the SAC hereby grants you a limited, non-exclusive, non-assignable, non-transferable license (the “Limited License”) to: (i) access and use the Distributed Tools; and (ii) distribute copies of and provide access and use of the Distributed Tools to additional Higg Users within your company or organization. The SAC reserves the right to charge license or other fees to all Higg Users to use the Distributed Tools. Any violation of these Terms shall immediately and automatically terminate the Limited License granted herein and may result in a permanent ban from membership in the Sustainable Apparel Coalition and any further use of the Higg Index, without notice to you.  Upon termination of this Limited License, you agree to immediately cease using the Distributed Tools and destroy all copies of the Distributed Tools and any associated content. Except for the Limited License, you acknowledge that you have no right, title or interest in or to the Distributed Tools.

 

Restrictions on Use

We encourage your use of the Distributed Tools for their intended purpose, but the SAC imposes certain rules of conduct and restrictions on your permissible use:

 

  • You may not send or receive the Distributed Tools (self-assessed or verified) to request or provide a Higg Index assessment from another party without first having signed these Terms of Use on either Higg.org or, for the Brand and Retail Module, through registration at http://apparelcoalition.org/higg-brm-beta-registration/.

 

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

 

  • You may not distribute copies of the Distributed Tools to anyone outside of your company or organization 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 Distributed Tools.

 

  • You may not share scores (self-assessed or verified) outside the “Higg Sharing” feature on Higg.org unless given specific written consent from the SAC.

 

  • You many not use the Distributed Tools to perform verifications or training that fall outside the scope and requirements of SAC’s Higg Verification and Training Programs.

 

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

 

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

 

  • You agree to retain all copyright, trademark and other proprietary notices contained in the Distributed Tools and in any material you obtain from the Distributed Tool and to attribute ownership to the SAC 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.

 

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

 

  • If you are a verifier, consultant, vendor or service provider to an authorized User of the Distributed Tools and have accessed the Distributed Tool for the purpose of providing services to that specific authorized User of the Distributed Tools, you may not use the Distributed Tools for any purposes other than in connection with providing services to that specific authorized user of the Distributed Tools 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 Distributed Tools.
  • You may not use any device, software or routine that interferes with the proper working of the Distributed 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 Distributed Tools is stored, or any server, computer or database connected to the Distributed Tools.
  • You may not remove, circumvent, disable, damage or otherwise interfere with any security-related features of the Distributed Tools or features that enforce limitations on the use of the Distributed 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 Distributed Tools, you will act in compliance with all applicable international, federal, state, and local laws, regulations and ordinances and you may not use the Distributed Tools for any illegal purpose.
  • You may not directly or indirectly attack the Distributed 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 Distributed Tools.

 

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 Distributed Tools 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 with the use of the Distributed Tool.

 

Sharing Your Scores and Results

You may ONLY share your score and results obtained from using the Distributed Tools with your current business partners who are Higg Users on a one-on-one basis through Higg Sharing on the Site. Sharing scores (self-assessed or verified) outside the Higg Sharing feature on Higg.org is prohibited unless given specific written consent from the SAC.

 

Accuracy of Results

The Higg Index provides Higg Users with a suite of tools and Distributed Tools that are designed to, among other things, enable Higg Users to estimate the environmental performance 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.  SAC makes no warranty, representation, endorsement or guarantee regarding, and accepts no responsibility for the accuracy, completeness, timeliness or reliability of any Outputs. SAC 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.

Our Proprietary Rights

The SAC shall have and retain all right, title and interest in and to the Higg Index and the Distributed Tools, including without limitation all rights in the patents, copyrights, trade secrets and other intellectual property and proprietary rights in the Higg Index and the Distributed Tools.  Except for the license provided hereunder, you do not acquire any right, title or interest in or to the Distributed Tools.

 

The trademark HIGG INDEX is a registered trademark of the SAC.  You are prohibited from using this mark and other graphics, logos, trademarks and copyrights of the SAC without the prior written consent of the SAC.

 

Audit Rights

You acknowledge and agree that the SAC, or its designated third-party auditor, may audit your books, records and systems during and after the termination or expiration of these Terms, upon reasonable prior notice, for the purposes of verifying your compliance with these Terms.  You agree to fully cooperate with SAC (or its third-party auditor) in any such audit, including, without limitation, the provision of full access to your books, records and systems. In the event any such audit reveals any breach of these Terms by you, you will pay the costs and expenses incurred by the SAC in connection with such audit.

Feedback and Third-Party Information

Feedback.  We encourage you to provide and share with us your questions, comments, suggestions, ideas, and feedback regarding the Site and Distributed Tools (collectively, “Feedback”). You agree that the SAC has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback.  You represent and warrant that you have all rights necessary to submit the Feedback, and you hereby grant to SAC the irrevocable right and license to use all Feedback in connection with the operation and maintenance of the Site, Distributed Tools and related SAC services.

 

Third Party Information.  If you post or otherwise incorporate information regarding any third party (“Third Party Content”) in the content you upload or otherwise make available to or via the Site or Distributed Tools, 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.

 

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 the SAC and are an essential basis of this contract between you and the SAC.  Your use of the Distributed Tools and the information you obtain through the Distributed Tools is at your own risk.

 

NEITHER SAC 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 DISTRIBUTED TOOLS OR ANY CONTENT, OR THAT THE DISTRIBUTED TOOLS OR ANY CONTENT OR ANY SERVICES OR INFORMATION OBTAINED THROUGH THE DISTRIBUTED TOOLS WILL BE ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT THE DISTRIBUTED TOOLS IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE DISTRIBUTED TOOLS OR ANY SERVICES OR INFORMATION OBTAINED THROUGH THE DISTRIBUTED TOOLS WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.  THE SAC HAS NO LIABILITY FOR ANY ERRORS, MISTAKES, INACCURACIES OR OMISSIONS IN THE DISTRIBUTED TOOLS OR ANY CONTENT THEREIN, WHETHER PROVIDED BY THE SAC, ITS VENDORS OR LICENSORS OR ANY OTHER PERSON OR ENTITY.  THE DISTRIBUTED TOOLS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND.  TO THE FULLEST EXTENT PERMITTED BY LAW, THE SAC, 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 THE SAC OR ITS MEMBERS, LICENSORS, VENDORS, AGENTS OR ANY OTHER CONTRIBUTOR TO THE DISTRIBUTED 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, INCLUDING ANY PERSONAL INFORMATION; (C) THE USE OR MISUSE OF THE DISTRIBUTED TOOLS BY ANY PERSON OR ENTITY; (D) ANY OF THE DISTRIBUTED TOOLS CONTENT; OR (E) OTHERWISE; WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE SAC OR ANY OF ITS MEMBERS, LICENSORS, VENDORS, AGENTS OR ANY OTHER CONTRIBUTOR TO THE DISTRIBUTED TOOLS 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 DISTRIBUTED 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 DISTRIBUTED TOOLS AND THE SITE.  YOU AGREE THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION WILL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS LICENSE AGREEMENT AND TERMS OF USE 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 THE SAC OR ANY OF ITS MEMBERS, LICENSORS, VENDORS, AGENTS, OR ANY OTHER CONTRIBUTOR TO THE DISTRIBUTED TOOLS WILL NOT EXCEED ONE HUNDRED DOLLARS ($100).

 

Indemnity

You agree to defend, indemnify, and hold harmless the SAC and its members, licensors, vendors, and any contributors to the Site and/or Distributed 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 arising from or relating to (i) your access or use of the Distributed Tools, (ii) your violation of these Terms, (iii) your violation of any applicable law or regulation, including violation of international, federal and state antitrust statutes, rules or regulations, (iv) your anti-competitive practices, or (v) your content. You should not use Distributed Tools 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 Distributed Tools results, answers and scores.  The SAC 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 Distributed 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 this Agreement 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 SAC, shall be made in SAC’s sole discretion, and that SAC shall not be liable to you or any third party for any termination of your Account. Upon termination of the Limited License and/or these Terms, your right to use such Distributed Tool will automatically terminate immediately.

 

Governing Law

These Terms and your use of the Distributed Tools 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 Site, Distributed Tools, Feedback, or these Terms, and you hereby submit to the personal jurisdiction of such courts.  The SAC 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 this Agreement, 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 the SAC and you regarding your access and use of the Distributed Tools and supersedes any prior agreements between you and the SAC concerning these matters.  If any of these Terms are 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. The SAC’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 the SAC.  The SAC 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 Index, please contact us through the SAC website: http://www.apparelcoalition.org, or at support@apparelcoalition.org, or Attn:  Terms of Use Questions, Sustainable Apparel Coalition, P.O. Box 237, San Francisco, CA  94104-0237.