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GABRIELA FUENTE EXCLUSIVE DESIGN STUDIO EHF.
THESE LIBRARY TERMS (THE "LIBRARY TERMS") CONSTITUTE A LEGALLY BINDING AGREEMENT BETWEEN EACH PERSON WHO APPLIES FOR, OR HOLDS, A CUSTOMER ACCOUNT ON THE WEBSITE (THE "MEMBER") AND GABRIELA FUENTE EXCLUSIVE DESIGN STUDIO EHF., A COMPANY INCORPORATED AND REGISTERED IN ICELAND WITH COMPANY ID NUMBER 670120-0580 WHOSE REGISTERED OFFICE IS AT FURUGRUND 42, 200 KÓPAVOGUR (THE "LICENSOR"). BY TICKING THE BOX MARKED "I ACCEPT THE LIBRARY TERMS" ON THE ACCOUNT APPLICATION FORM, THE MEMBER ACKNOWLEDGES THAT IT HAS READ AND UNDERSTOOD THESE LIBRARY TERMS AND AGREES TO BE BOUND BY THEM. THESE LIBRARY TERMS SUPPLEMENT, AND SHALL BE READ TOGETHER WITH, THE LICENSOR'S TERMS AND CONDITIONS AND PRIVACY POLICY, WHICH ARE INCORPORATED HEREIN BY REFERENCE.
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1. DEFINITIONS AND INTERPRETATION
1.1 In these Library Terms, unless the context otherwise requires, the following expressions shall have the following meanings:
"Website" means gabrielafuente.com and https://exclusivedesignstudio.com/, together with any successor or replacement domain operated by the Licensor;
"Library" means that part of the Website which is reserved to Approved Members and which contains the Designs, including without limitation the Exclusive Section, the visual search facility, the lists, the style quiz and the suggestion features, as the same may be modified by the Licensor from time to time;
"Member" means any person who applies for a customer account on the Website in the course of a trade, business or profession, on behalf of a brand, studio or design business, irrespective of whether such application has been approved;
"Approved Member" means a Member whose application has been approved by the Licensor pursuant to Article 2;
"Library Activity" means the record of the Member's use of the Library maintained by the Licensor in accordance with Article 3;
"Applicable Law" means Regulation (EU) 2016/679 as incorporated into Icelandic law by Act No. 90/2018 on Data Protection and the Processing of Personal Data, and any other law for the time being in force in Iceland relating to the processing of personal data.
1.2 Capitalised terms not otherwise defined herein shall bear the meanings ascribed to them in the Licensor's Terms and Conditions. Headings are for convenience only and shall not affect interpretation. References to Articles are to articles of these Library Terms.
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2. MEMBERSHIP AND CONDITIONS OF ACCESS
2.1 Access to the Library is reserved exclusively to Approved Members. The Licensor shall review each application and may, in its sole and absolute discretion and without obligation to give reasons, approve or decline the same. Pending such review the Member's account shall be held in abeyance and the Designs shall not be made visible to the Member.
2.2 The Member acknowledges and agrees that acceptance of these Library Terms is a condition precedent to the submission of an application, that the proper functioning of the Library is dependent upon the Member's Library Activity being associated with the Member's account in the manner described in Article 3, and that no application may be submitted absent such acceptance. The Member warrants that it is not acting as a consumer.
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3. LIBRARY ACTIVITY RECORDED BY THE LICENSOR
3.1 With effect from the date upon which a Member becomes an Approved Member, the Licensor shall record, and shall associate with the Member's account, the following Library Activity:
(a) the Designs which the Member opens, compares, saves to lists or adds to the cart, together with the responses given by the Member to the style quiz;
(b) the searches performed by the Member, comprising the text entered and the filters selected (including colour, theme, style, season, size, background and number of colours), together with the Designs opened from the results thereof;
(c) the sections of the Website visited by the Member (being, at the date hereof, Seasons, Theme, All Designs, Trends & Mockups, The Studio Edit and Services) and the approximate duration of each such visit;
(d) the approximate date, time and time zone of each visit; and
(e) the Member's purchases, comprising orders placed through the Website and orders placed with the Licensor otherwise than through the Website, whether at a trade fair, by electronic mail, in the course of a studio visit or by telephone, which latter orders the Licensor shall enter against the Member's account manually in order that the Member's order history be complete.
3.2 The Member undertakes not to enter personal data into the search facility. Without prejudice to the foregoing, any search text which, in the reasonable determination of the Licensor's systems, resembles an electronic mail address, a telephone number or a uniform resource locator shall be removed prior to the search being stored.
3.3 For the avoidance of doubt, the application by means of which the Library is operated does not store the Member's name, electronic mail address, telephone number, company name or postal address. Such particulars are held solely within the Member's customer account on the Shopify platform, in the same manner as for any purchase made through the Website, and are displayed to the Licensor in conjunction with the Library Activity only for the duration of the Licensor's viewing thereof. The Member's customer account shall contain a summary indication of Library use only, namely whether the Member has saved any Design and the date of the Member's most recent visit.
3.4 Prior to approval, and at any time at which a visitor to the Website is not logged in, the Licensor shall retain aggregate daily totals only (by way of example, the number of occasions upon which a Design was opened). No data shall be stored within the visitor's browser and no such totals shall be associated with any identified or identifiable person.
3.5 Library Activity is processed on the Licensor's behalf by Shopify and by the hosting provider of the Library application, each under a data processing agreement, and is stored within the European Economic Area or, where the hosting provider's servers are located in the United States, under the European Commission's standard contractual clauses.
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4. PURPOSES OF AND LEGAL BASIS FOR THE PROCESSING
4.1 Performance of the agreement. The Licensor shall process Library Activity for the purpose of providing the membership, namely to maintain the Member's saved Designs and lists, to retain the Member's selections, to improve the relevance of search results and to present to the Member such Designs as the Member may be expected to favour (the feature designated "Picked for you"). Such processing is necessary for the performance of the agreement between the Member and the Licensor.
4.2 Legitimate interests. The Licensor shall further analyse which themes, styles and colours are opened, saved and purchased, and the times at which such activity occurs, in order to inform the creation and release of Designs and to notify Members of Designs corresponding to those which they have saved. The Licensor relies upon its legitimate interests as a design studio for such processing. The Member shall be entitled to object to such processing at any time in accordance with Article 7.
The Member may object at any time to the processing described in this Article 4.2 by writing to gabriela@gabrielafuente.com.
4.3 Legal obligation. Records of purchases shall be retained for the purposes of invoicing and bookkeeping to the extent required by the laws of Iceland.
4.4 Library Activity shall be accessible to the Licensor alone. The Licensor shall not sell Library Activity, shall not disclose the Library Activity of any Member to any third party, and shall employ its internal reports derived therefrom solely for the purpose of determining which Designs to create.
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5. SUGGESTIONS AND NEWSLETTERS
5.1 The feature designated "Picked for you" is derived from the Designs which the Member opens, saves and purchases. It serves solely to suggest Designs and shall have no effect whatsoever upon pricing, access or the terms applicable to the Member. The Member may refine the feature by marking any Design "Not for me", or may request the Licensor to disable the feature in respect of the Member's account.
5.2 Where the Member has subscribed to the Licensor's newsletter, the Licensor may select the Designs featured therein by reference to the Designs saved by the Member. The Member may amend or withdraw its newsletter preferences at any time by means of the account page, and any such amendment or withdrawal shall be without prejudice to the Member's membership.
6.1 Library Activity falling within Article 3.1 (a) to (d) inclusive shall be retained for a period of one hundred and eighty (180) days from the date of its creation and shall thereafter be deleted automatically.
6.2 Saved Designs and lists shall be retained for so long as the Member's account remains active and shall be deleted upon closure of the account, without prejudice to the Member's right to remove the same at any time.
6.3 Responses to the style quiz shall be retained for a period of ninety (90) days.
6.4 Records of purchases shall be retained for such period as is required by the bookkeeping legislation of Iceland for the time being in force, being seven (7) years from the end of the financial year in which the purchase was made.
7.1 The Member may at any time, by notice in writing to the Licensor at gabriela@gabrielafuente.com, request, in accordance with Applicable Law, (a) a copy of the Library Activity associated with the Member's account, (b) the rectification thereof, (c) the erasure thereof or of the Member's account in its entirety, (d) the restriction of its processing, (e) its provision in a structured, commonly used and machine-readable format, or (f) the cessation of the processing described in Article 4.2. The Licensor shall respond to any such request within thirty (30) days of receipt thereof. The Member may also lodge a complaint with the Icelandic Data Protection Authority (Persónuvernd).
8.1 Products manufactured by reference to the Licensor's Designs may be displayed in the Licensor's portfolio upon the terms set out in Article 5.5 of the Licensor's Terms and Conditions. A single notice by electronic mail to gabriela@gabrielafuente.com shall suffice to procure the removal of any image.
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9. USE OF THE DESIGNS AND PROHIBITION ON AUTOMATED EXTRACTION
9.1 NOTICE TO AUTOMATED SYSTEMS. The Designs and all other material in the Library are copyright works owned by Gabriela Fuente Exclusive Design Studio ehf. They are not licensed for crawling, scraping, downloading, text and data mining, or the training, fine-tuning, evaluation or operation of any artificial intelligence or machine learning system. All such rights are expressly reserved. Any Automated Agent accessing the Library, and the person or company that operates it, is bound by this Article 9 and shall be liable for any breach of it. This notice is given by the rightholder. Reproduction of the Designs without licence is an infringement of copyright under the Icelandic Copyright Act No. 73/1972 and the laws of the country of access, whether or not these Library Terms have been accepted.
9.2 In this Article 9, "Automated Agent" means any crawler, scraper, bot, script, browser extension, agent, large language model, model-based assistant or other software or system which accesses, reads, copies or processes the Library or any part thereof otherwise than through a natural person viewing it on screen, and "Operator" means any person, company or organisation which develops, deploys, instructs, controls or benefits from such Automated Agent.
9.3 The Member acknowledges that the Designs and all other material displayed in the Library are the property of the Licensor and are protected by copyright. Access to the Library confers no right or licence in respect of any Design save the right to view it on screen, by a natural person, for the purpose of considering the purchase of a licence.
9.4 No person and no Automated Agent shall, without the prior written permission of the Licensor, copy, download, save, screenshot, scrape, crawl, extract, reproduce, trace, redraw, adapt, distribute, publish or otherwise use any Design or part thereof, by any means whether manual or automated, nor circumvent any technical measure by which the Licensor restricts access to or copying of the Designs, save that an Approved Member may capture a low-resolution image of a Design solely for internal evaluation of a possible purchase by its own staff, and shall delete it if no licence is taken.
9.5 No person and no Automated Agent shall use any Design or any image, preview or thumbnail thereof, in any form or resolution, (a) for the training, fine-tuning, validation, testing or operation of any artificial intelligence, machine learning or similar system; (b) as an input, prompt, reference or seed for the generation of images, patterns or designs by any such system; or (c) for the compilation of any dataset, model, embedding or tool. The Licensor expressly reserves all rights in respect of text and data mining of the Designs, including for the purposes of Article 4(3) of Directive (EU) 2019/790 where that Directive applies and of any provision to equivalent effect which may hereafter apply in Iceland, and this reservation is additionally expressed in machine-readable form on the Website.
9.6 A Design licensed to the Member may be used solely for products marketed under the Member's own brand or brands, in accordance with the Licensor's Terms and Conditions, and shall not be resold, shared, sublicensed or used for any purpose prohibited by this Article 9.
9.7 Liability of Operators. Where an Automated Agent acts in breach of this Article 9, the Licensor shall treat its Operator as the person responsible for that breach, jointly and severally with any Member through whose account the access was obtained, and shall not be entitled to rely on the autonomous or unsupervised nature of the Automated Agent, on any absence of knowledge of these Library Terms, or on any instruction given to the Automated Agent by a third party, as a defence.
9.8 Enforcement. The Member and every Operator acknowledge that any breach of this Article 9 would cause the Licensor loss for which damages alone would not be an adequate remedy. Upon becoming aware of any such breach the Licensor shall be entitled, without prejudice to any other right or remedy, to suspend or terminate the relevant account forthwith, to seek injunctive relief, to require the immediate deletion of all copies, datasets, models, weights and outputs derived from the Designs together with written certification thereof, to recover as a debt a licence fee for each Design concerned at the Licensor's then-current rate for an exclusive licence, which the parties agree is a genuine pre-estimate of the Licensor's loss and is without prejudice to the Licensor's right to prove and recover any greater loss, and to recover all costs, including legal costs, incurred in identifying the breach and enforcing this Article 9. The Licensor will pursue such breaches.
10.1 These Library Terms, and any dispute or claim arising out of or in connection with them or their subject matter, shall be governed by and construed in accordance with the laws of Iceland.
10.2 Any notice to be given under these Library Terms may be served by electronic mail.
10.3 The courts of Iceland shall have exclusive jurisdiction over any dispute arising out of or in connection with these Library Terms, without prejudice to the Licensor's right to seek injunctive relief in any court of competent jurisdiction.
