”Agreement” means the Order Form and these GTC.
“BigData” or “Metadata” means a voluminous set of qualitative or quantitative data in any format, structured or unstructured, used, collected, formatted, processed, manipulated, stored, and/or analysed throughout the performance of this Agreement.
"Confidential Information" means all information disclosed by a Party to the other Party in writing or by oral communication which is designated as confidential or for which the receiving Party cannot reasonably be unaware of the confidentiality of the information or the conditions under which they are disclosed. The Agreement, the structure and/or of the Message are also considered as Confidential Information.
“Client” means the sale professional of optical products as mentioned in the Order Form, excluding all Third Party.
“FITTINGBOX” means FITTINGBOX, a limited liability company and/or its affiliates that provides, directly or through an agreed partner, the Service as described on the Order Form.
“General Terms and Conditions” or “GTC” means this document, solely. The General Terms and Conditions may be modified from time to time by FITTINGBOX, at its sole discretion. The last version of the applicable General Terms and Conditions may be found at http://www.fittingbox.com/legal.
“Intellectual Property” means any patent, copyright, trademark, trade dress, trade name or trade secret right and any other intellectual property or proprietary right of FITTINGBOX, anywhere around the world, whether such rights are registered or unregistered and including the goodwill attaching to such rights and the right to apply for any such rights.
”Message” means the customizable message that incorporate a clickable link toward an Owiz virtual try-on module, that might be sent to eyecare professionals and/or consumers by bus or text-mailing for business and/or promotional and/or advertising purposes.
“Order Form” means the document supplementing the present General Terms and Conditions and consulting an order form. The Order Form specifies in particular the identity of the Client, the commercial offer of FITTINGBOX and, as the case may be, the target recipients of the Message.
“Service” means the promotional and/or advertising campaign that allows an end-user to access to a limited and temporary Owiz VTO module. The Campaign is,performed by FITTINGBOX for and on behalf of the Client, by bus-mailing or bus-texting service as the case may be, with exclusion to other services. Any additional order or modification of the Service ordered by the Client that is not included in this Agreement shall be subject to additional estimate and invoice and/or another agreement, and being specified that FITTINGBOX reserves the right to refuse to perform such additional services, at its sole discretion and without having to justify its decision. Unless otherwise specified in the Order Form, the Owiz module is accessible for a 1-month period after the Message has been displayed.
“Third Party” means any natural person and/or legal entity other than the Parties.
This Agreement has been freely negotiated between the Parties; each Party warrants and represents that the signature and the performance of this Agreement is compliant with its corporate objects and/or articles of association.
The Client is aware that the contractual documents may be signed electronically. The digital signing will have the same legal value as a handwritten signing and will be enforceable against the Client and any Third Persons.
The signature of the Order Form induces the express and irrevocable acceptance of the Client to these GTC.
These GTC only apply only for the Service referred to as "Owiz Campaign". Unless otherwise expressively mentioned in the Order Form, the Client is aware and irrevocably accepts that others FITTINGBOX’s products and services, and in particular its VTO solutions and digitalization services, are governed by dedicated general terms and conditions.
The signature of the Order Form and/or the use of the Softwares involve the express and irrevocable acceptance of the Client to the present GTC.
In the event of any inconsistency with a translated version other than French, the English version of the GTC shall prevail in any circumstance.
2. EXECUTION DETAILS
Pursuant to Articles 1984 et seq. of the French Civil Code, the Client gives a special mandate to FITTINGBOX, who agrees to receive it, to perform the Service. The Client may terminate this mandate at any time, by formal notification clearly indicating the effective date and the reason of the termination (registered mail with return receipt required). However, the Client shall still be liable for any other obligation resulting from this Agreement, and in particular its payment obligations.
The deadlines mentioned in this Agreement are for information purposes only and being specified that un minimum of 2 weeks is required to perform an Owiz Campaign. Unless otherwise agreed by the Parties, deadlines are defined in working days. The Client shall be liable for any additional fee or cost and, more generally, for any consequence of any delay or default caused by the Client, or any wrong or incomplete data and/or document delivered to FITTINGBOX that could not be used to perform the Service under normal conditions.
FITTINGBOX defines alone the human, material and / or technical resources that might be necessary for the performance of the Service.
The content of the Message (including the figurative elements and the frames selection that might be virtually tried-on) and the definition of the list of its recipients and/or its segmentation are on the initiative and the sole responsibility of the Client. It is clearly stated that FITTINGBOX performs the Service as a mere technical sub-contractor. However, FITTINGBOX reserves the right to refuse to send a Message that would be manifestly illicit or contrary to the regulations in force, or when the said Message would be contrary to the personal and/or commercial interests of FITTINGBOX, and without FITTINGBOX incurring liability as a result.The recipients of the Message may access to an Owiz VTO module, via a link embedded in the Message. It is stressed that FITTINGBOX holds and retains the exclusive intellectual property rights on the Owiz solutions. It is clearly stated that the said module is intended to be used by the recipients of the Message only and is limited to the purpose and the duration of the Service.
3. OBLIGATIONS OF THE PARTIES
FITTINGBOX undertakes to perform the Service under the terms and conditions set out in this Agreement.
The Client is aware and irrevocably accepts that the performance of the Service may be suspended or delayed, without FITTINGBOX incurring liability as a result, in particular when FITTINGBOX is mandated to send the Message, in the event of a suspension of the supply of electricity or telecommunications, breakdown or malfunctioning of the telecom or Internet network in the transmission of messages or documents.
FITTINGBOX does not warrant that the Service will result in a profitable operation for the Client and that it will meet the expectations of the Client, being further reminded that the list of recipients, the content of the Message (including the frames selection) and the broadcast period are determined by the Client under its sole liability.
Unless expressively mentioned in this Agreement; FITTINGBOX refuses any other guaranty or warranty of any kind, whatever it is, to which it has not expressly agreed or expressed by Third Parties.
3.2 Obligations & warranties of the Client
The Client shall fully cooperate with FITTINGBOX in good faith throughout the performance of the Agreement.
The Client shall provide FITTINGBOX with any data, information or element needed to perform the Services. The Client is and remains solely responsible of the data, information or element it may provide to FITTINGBOX, and including about (i) the designation and the scope of the campaign, (ii) the information related to the Client and/or its products and services, (iii) the quality and/or performance of the products and services it may sell or distribute, (iv) the personal data directly or indirectly related of the recipients it wants to have the Message displayed and (v) and the frames selection that might be virtually tried-on via the Owiz module.
It is stressed that the Client is and remains solely responsible for the content of the Message it has drafted or drawn up and for the recipients list that it has chosen to display such Message, and in particular with respect to the all the applicable Data Protection, Privacy and Security and/or promotional and advertising laws and regulations and with respect to the right to use, reproduce, and display the text, images, logos and/or frames that are part of such Message. The Client notably warrants to FITTINGBOX that the content of the Message it has drafted or drawn up (i) is lawful, in compliance with public policy and good moral standards, and compliant with current regulations and (ii) does not infringe the rights of third parties, intellectual and industrial property rights of Third Parties, in particular to the brands and models and authors' rights to the frames mentioned or displayed in such Message or via it.
The Client discharges FITTINGBOX from all liability and shall hold FITTINGBOX harmless of any claims or damage, including from Third Parties, resulting from the breach of this warranty.
The Client shall prevent any loss or accident of the documents and data it may communicate to FITTINGBOX during this Agreement by implementing all required copies or backups and, more generally, all appropriate security measures. FITTINGBOX does not provide any backup of such documents and data and FITTINGBOX shall not be held responsible for any accidental loss or destruction of these elements
4. LIABILITIES - LIMITATION
Each Party shall be responsible for the proper performance of its required actions and its own obligations under the Agreement.
FITTINGBOX shall not be responsible if the result of the Services does not meet the Client’s requirements or professional needs or expectations. FITTINGBOX shall only be bound by an obligation of means under the performance of this Agreement.
FITTINGBOX shall not be responsible if the Services cannot be performed or fail, in all or part, due to a fault or negligence or miscommunication of the Client or any wrong or incomplete data and/or document delivered to FITTINGBOX that could not be used to perform the Service under normal conditions
The Client is solely liable for the content of the Message and the listing of the targeted recipients; the Client discharges FITTINGBOX from all liability and shall hold FITTINGBOX harmless from any claims, including from Third Parties on such matter.
The CLIENT undertakes to indemnify FITTINGBOX for any loss which it may suffer and all the expenses it may incur for any claim and/or sanction as a result of the actions of the CLIENT or in connection with the Content and the Client Selection, and users.
Similarly, FITTINGBOX reserves the right to suspend or revoke the Service if the content of a Message constitutes a risk or infringes the rights of third parties (brands, models etc.) to the Products and Services or for the server on which these materials are hosted (piracy, security vulnerability etc.). FITTINGBOX may block access to the relevant Content immediately, without affecting the performance of the Agreement.
To the maximum extent permitted by law, in no event shall FITTINGBOX be responsible for any special, incidental, indirect or consequential damages whatsoever (including without limitations damages for loss of business profits, business interruption, loss of business information, or any other pecuniary loss) arising out the performance of this Agreement and/or the delivery of the Services.
If the liability of FITTINGBOX is incurred for any reason whatsoever in relation to the Agreement, it is expressly limited to the amount paid by the Client for the Service, VAT excluded, that caused the damage and provided that there is a clear and direct link between such Service and the occurred damage.
The Parties expressly agree that should any limitation or provision of this Section 4 be held to be invalid under any applicable statute or rule of law it shall to that extent be deemed omitted but if any Party thereby becomes liable for loss or damage which would otherwise have been excluded, such liability shall be subject to the other limitations and provisions set out herein.
Each Party shall take out insurance with a leading insurance company to cover any liability which it may incur in relation to the Agreement.
5. INTELLECTUAL PROPERTY
FITTINGBOX holds and retains all Intellectual Property rights directly or indirectly related to the performance of this Agreement, and in particular related to the Services and/or the Owiz solutions, be they copyrighted or not, and all other Intellectual Property rights, including any patent, design, features, model or other property deed and any request for, claim on or extension of such rights, within the Territory and that of any other country worldwide. The same goes with any technique, methodology, know how, update, tool, material and/or other Intellectual Property right created by FITTINGBOX and/or enriched and/or held in full title by FITTINGBOX during this Agreement. Under no circumstances these rights might be transferred to the Client and/or any Third Party. The Client acknowledges that these elements are significant items of FITTINGBOX’s assets; any disclose of any of these elements may damage FITTINGBOX. The Client shall respect all Intellectual Property rights belonging to FITTINGBOX during the legal protection term of these rights.
Any unauthorized or improper or non-compliant use of the Message, including its content and/or structure, and any unauthorized or non-compliant use of an Owiz solution accessible via the Message, as the case may, shall be considered as a counterfeit act entitling to compensation, damages and remedies.
Each Party declares that it is vested with the rights required for the performance of the Agreement. Each party, each on its own behalf, shall hold the other harmless against any claim, action, damages or indemnities which any natural or legal person could instigate or claim, in particular in reliance on an Intellectual Property right, an act of unfair competition and/or commercial parasitism, provided that: (i) it has been informed by the other party, in writing, as soon the latter became aware of the claim; (ii) It keeps the sole control of the defense of the claim and/or any settlement; (iii) it has received from the other party complete and accurate information and all reasonable assistance in order to enable to settle or defend the Claim; (iv) the Claim does not result from changes made to the Products and Services by the other party or a Third Party.
In the event of the Client breaches the undertakings above mentioned, including by negligence, then the Client shall hold FITTINGBOX harmless of any claims or damage, including from Third Parties, resulting from the breach of this warranty. FITTINGBOX shall also be discharged from all related liability, and without prejudice to any remedies, damages and/or other rights that may be claimed by FITTINGBOX.
6. FINANCIAL CONDITIONS
The prices and terms of payment for the Services are those set out in the Order Form. The prices set out are stated in the currency of the Order Form, excluding value added tax and other taxes, which shall be invoiced in addition according to the rate applicable at the date of invoicing. In any circumstances, FITTINGBOX could be requested to refund any payment made by the Client.
The Client is aware that the invoices related to the Services and this Agreement may be established electronically. The e-invoice will have the same legal value as a paper invoice and will be enforceable against the Client and any third person.
The Client recognises that only membership of a network may allow him to enjoy the preferential terms and/or tariffs applicable to the aforesaid network. If the Client ceases to be a member of such network during the performance of the Agreement, for any reason, the standard terms and/or prices of FITTINGBOX shall apply automatically. Loss of membership shall not entitle the Client to terminate the Agreement.
Unless otherwise provided in the Order Form, all the sums related to the Services are payable cash at the signature of the Order Form.
If the Client fails to pay when due, FITTINGBOX shall invoice a 8% late interests penalty of the overdue invoice(s), or the maximum permitted by the applicable law – even at a State level, from the first day of delay and without a prior reminder. The aforementioned penalty is capitalized each year on the total overdue amounts and will be applicable each year until complete payment.
A flat rate indemnity of 40 Euro or $50 – depending on the currency mentioned in the Order Form – shall also be due automatically as a result of any delay in payment, for the costs of recovery, in addition to interest for late payment.
The Client shall also bear the cost of the definitive amount of any costs incurred by FITTINGBOX for the recovery of his debt (judicial and extrajudicial).
7. DURATION & TERM
Unless otherwise expressly specified in the Order Form, the Agreement shall enter into force on the date of signature of the Order Form and shall be terminated 1 month after the performance of the Service. Unless otherwise expressly specified in the Order Form, this Agreement is not tacitly renewable. Any additional or new service ordered by the Client that is not included in this Agreement shall be subject to additional estimate and invoice and/or another agreement.
8. BREACH - TERMINATION BEFORE THE TERM
Termination of the Agreement shall occur in case of breach by the other Party of one of its core obligations under this Agreement within fifteen (15) calendar days of the dispatch of a formal demand to remedy this breach which has remained without effect. Shall be notably considered as serious breaches: failure to comply with (i) the payment obligations, (ii) the non-divulgation of the Confidential Information, (iii) the respect of Intellectual Property rights, (iv) the warranties set forth in section 3.2. FITTINGBOX also reserves the right to terminate the Agreement, with immediate effect and without any compensation, in case of a change of control of the shareholder structure of the Client or a taking-over of the Client by a direct or indirect competitor of FITTINGBOX.
Except a justified force majeure event, in the event of early termination by the Client or due to the Client, for any reason whatsoever – including the assignment or the termination of his lease or business – the Client shall remain liable, as first compensation, for all the amounts set forth in the related Order, without prejudice to any other damages or penalties. For the avoidance of doubt, it is stressed that an address modification and/or the conversation from one corporate form to another and/or a registration number modification shall not be considered as a legitimate reason to terminate the Agreement or a force majeure event.
Under no circumstances, the expiration or the termination of this Agreement, for any reason whatsoever, in all or part, may induce a reimbursement of the fees paid by the Client.
It is clearly stated that the Sections 1.1 (Definitions), 5 (Intellectual Property), 7 (Liability), 10 (Confidentiality), and 13 (Governing Law / Jurisdiction) will survive the expiration or termination of this Agreement.
9. CONFIDENTIALITY AND NON-DISCLOSURE UNDERTAKING
Each Party agrees and undertakes to keep as confidential all the Confidential Information concerning the other Party, the Products and Services and this Agreement (including its existence and its contents). The obligations resulting from the present article shall remain in force for a period of five (5) years following the termination or the expiration of the Agreement, for any reason whatsoever. Each Party agrees not to use this Confidential Information for any purpose other than those provided in the Agreement.
Each Party shall provide the same care for the protection of such confidential information as for its own confidential information.
Each Party shall not communicate, reproduce, publish or disclose such Confidential Information, in any manner whatsoever, in all or part, to any unauthorized Third Party, directly or indirectly, any Confidential Information of the other Party, in whole or in part, provided during this Agreement, without the prior express written agreement of such other Party.
Each Partyalso undertakes to take any required steps which are necessary for preservation of confidentiality towards its employees and company officers, as well as towards any Third Party having access to the Confidential Information.
In the event that a judgment or governmental application with the force of law is required to order the disclosure of Confidential Information, the concerned Party shall (i) immediately notify the owner of the Confidential Information so that such Party may apply for a protection order or take action (Ii) take all necessary measures to maintain the highest possible level of protection.
Upon termination of the Agreement, and for any reason whatsoever, the CLIENT shall return all information and documents relating to FITTINGBOX and transmitted to it within the framework of the Agreement, without keeping a copy thereof, except in compliance with legal and regulatory obligations, as soon as possible.
The Client acknowledges that any breach of this Section 9 shall constitute a major breach of this Agreement. In this case, FITTINGBOX shall be entitled to immediately terminate the Agreement without notice or any indemnity and without prejudice to any damages FITTINGBOX may claim.
10. PERSONAL DATA
Each Party undertakes to comply with all the applicable Data Protection, Privacy and Security laws and regulations, and in particular with the European Regulation 2016/679 of 27 April 2016 (GDPR) and/or with the EU-U.S. and Swiss-U.S. Privacy Shield, as amended, and take any administrative measures required of.
It is recalled that FITTINGBOX performs the Service as a mere technical sub-contractor. Therefore, as data controller, it is under the Client’s responsibility to ensure that the recipients of the Message have given their consent for the collection and processing of their personal data, including for advertising or commercial purposes. The Client shall indemnify and save harmless FITTINGBOX from and against any and all claims, actions, damages or indemnities of any kind whatsoever, that may be brought by a Third Party as a result of a breach or negligence of the Client to its obligations on such matter.
As the case may be, if the Message incorporate a link that may access to an Owiz VTO module, FITTINGBOX will ensure that the recipients which access to such module are informed that the entry of their email and/or the taking and sharing of a selfie are personal information that may be used for the purposes of the Owiz service and / or as commercial communication. FITTINGBOX also undertakes to allow such users to exercise their right to access, modify, rectify, correct, update and delete their personal data, in accordance with the applicable regulations.
The Client is aware and irrevocably accepts that FITTINGBOX reserves the rights to collect Big Data within the performance of the Agreement. FITTINGBOX is entitled to use and exploit such Big Data (aggregated and anonymous data), for or without consideration, notably for purposes of geo-localisation and/or statistics and/or analysis.
11.1 Entire Agreement
At its effective date, the Agreement expresses the full agreement of the Parties with regard to its purpose; it cancels and replaces any previous agreement, letter, offer or other document having the same purpose. Under no circumstances may the CLIENT’s Order Form or general terms and conditions be enforced on FITTINGBOX.
If any provision of this Agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable the invalidity or unenforceability of such provision shall not affect the other provisions of this Agreement and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect. The Parties hereby agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the economic legal and commercial objectives of the invalid or unenforceable provision, whereby the substitution is subject to the consent of both Parties.
A valid waiver is in writing and signed by the party waiving its rights. The waiver by either Party of a breach or default of any of the provisions of this Agreement by the other Party shall not be construed as a waiver of any succeeding breach of the same or other provisions nor shall any delay or omission on the part of either Party to exercise or avail itself of any right power or privilege that it has or may have hereunder operate as a waiver of any breach or default by the other Party.
The relations instituted between the Parties by the Agreement are those of independent contra-parties and the Agreement intends to institute no other relationship between them. Neither party is an employee, agent, partner or joint venture of the other.
11.5 Assignment / Subcontract
The Client may not assign or transfer the benefit of the Agreement to any Third Party, in whole or in part, and in duration and / or importance, without the express Agreement and of FITTINGBOX. FITTINGBOX reserves the right to assign or transfer the Agreement to its affiliates or any Third Party, provided that the transferee assumes all rights and obligations under the Agreement. FITTINGBOX reserves the right to subcontract all or part of the Service. In the event of subcontracting, FITTINGBOX remains solely responsible to the Client for the proper performance of the Service.
For the duration of this Agreement, provided however that FITTINGBOX does not misrepresent or embellish its relationship with the Client, FITTINGBOX shall be authorized to use and reproduce the name, logo(s) brands, trade names of the Client for the needs of the Service and in its marketing and/or promotional materials and/or solutions, including but not limited on the following medias or event: FITTINGBOX’s website and/or blog and/or newsletter, social networks (i.e. LinkedIn, Facebook; etc.), professional seminars and/or conferences and/or exhibitions and/or meetings, marketing, promotional, prospective and advertising activities towards FITTINGBOX’s prospective customers and/or clients and/or partners.
THE AGREEMENT IS GOVERNED BY FRENCH LAW. UNLESS OTHERWISE PROVIDED BY STATUTE, ANY DISPUTE WHICH MAY ARISE BETWEEN THE PARTIES RELATING TO THE FORMATION, PERFORMANCE OR CONSTRUCTION OF THE AGREEMENT SHALL BE UNDER THE JURISDICTION OF THE COMPETENT COURTS OF TOULOUSE (FRANCE).
Copyright FITTINGBOX – August 2018