Legal Information - Digital Assets

1. DEFINITIONS

”Affiliate” means any company that directly or indirectly controls or is controlled by or is under common control with a Party hereto by means of ownership of more than fifty per cent (50%) of the voting shares or similar interest in said company, or the power to direct or cause the direction of the management and policies of the relevant company, including without limitation a party’s joint venture partners.

”Agreement” means these General Terms and Conditions, the Order Form and any appendices or exhibits or attachments. Unless expressly overruled in the Order Form, in the event of any conflict or inconsistency between these documents, the General Terms and Conditions shall prevail in any circumstances. Any other documents or information that may be provided by FITTINGBOX are for information purposes only and shall not bind FITTINGBOX.

“BigData” or “Metadata” means a voluminous set of qualitative or quantitative data in any aggregated or anonymized format, structured or unstructured, used, collected, formatted, processed, manipulated, stored, and/or analyzed throughout the performance of the Services.

"Classification" means the classification of brands and/or SKUs within Fittingbox Database (Tier 1, 2 or 3). The Classification may be modified from time to time by FITTINGBOX, at its sole discretion.

"CLIENT" means the professional (independent, reseller, retailer, pure player, manufacturer, etc.) as designated in the Order Form.

"Confidential Information" means any non-public data, software, hardware, drawings, designs, processes, specifications, works, methodologies or other information (whether electronic or otherwise and whether commercial, financial or technical in nature) relating to the business or affairs of each Party other or its Affiliates and which are acquired from the other Party under the Agreement and/or provided to a Party in connection with the Agreement. The Agreement and the content of Fittingbox Database are also considered as Confidential Information by nature.

"Derivative Work" means any new creation that has been conceived and produced from one or more pre-existing works.

"Digital Assets" means the SKUs modeled by FITTINGBOX in 2D, 3D or VTO format and/or Selected by the CLIENt within the performance of the Agreement. By default, the Digital Assets are issued or incorporated into Fittingbox Database. As a principle, and unless otherwise expressly specified in the Order Form, the Digital Assets - and in particular the Digital Assets in VTO format - are provided under a proprietary format of FITTINGBOX and compatible only with the Solutions.

"Digitization" means the process consisting of the numerical modelling of SKUs and / or any physical element for the creation of Digital Assets. By default, Digitization in 2D format is provided in front view and / or 3/4 view only, any other angle that would be selected or ordered by the CLIENT, if accepted by FITTINGBOX, shall be invoiced consequently at the current rate services of FITTINGBOX. As a principle, all Digitization are incorporated into Fittingbox Database.

"Filter" means the interactive or animated filter implementing Digital Assets in 3D or VTO format for Social Media, to be displayed on a social network.

“Fittingbox Database” means the digital assets developed and enriched by FITTINGBOX. Fittingbox Database contains in particular high-definition images, Digital Assets (in 2D, 3D or VTO format), Model Studio, as well as any related data and Metadata. Unless otherwise expressly specified in the Order Form, the access and/or use of any part of Fittingbox Database is possible only via a Solution that the CLIENT has a regular license for, and to the exclusion of any other use.

"FITTINGBOX" means FITTINGBOX, a limited liability company, including any business unit and/or Affiliate, that provides the Services under the performance of the Agreement, directly or through an agreed distributor or reseller or partner.

“Force Majeure” means any circumstances or event beyond the reasonable control of a party, including an external unforeseeable and irresistible event, making it impossible to fulfil an obligation, as usually retained by the case law in France.

“General Terms and Conditions” or “GTC” means this document - and its further updates or modifications, exclusively. The CLIENT is aware and irrevocably accepts that other FITTINGBOX’s products and services, and in particular the Solutions, are governed by dedicated terms and conditions. The GTC 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 https://www.fittingbox.com/en/legal-information-digital-assets. In the event of any inconsistency with a translated version of these GTCs, and with the exception of the French version, the English version of the GTC shall prevail in any circumstance; any version of the GTC other than French and English is for reference purposes only.

“Intellectual Property” means, notably but not exhaustively, any patent, copyright, trademark, trade dress, trade name or trade secret right and any other intellectual property or proprietary right of a Party and/or its Affiliates, anywhere around the world, including know-how and methods, whether such rights are registered or unregistered and including the goodwill attaching to such rights and the right to apply for any such rights.

“Model(s)” shall mean the natural person(s) whose photographs or images are or might be used, adapted and/or displayed under the performance of the Agreement, and in particular for the purpose of creating and displaying the Model Studio.

“Model Studio” means the deliverables implementing a Digital Asset in VTO format on a Photo Model. For the avoidance of doubt, it is stressed that 1 Model Studio = 1 SKU view implemented on 1 Photo Model.

“Order Form” means the document that details the specific conditions of the Agreement such as the designation of the CLIENT, the Services subscribed, the commercial and financial proposal of FITTINGBOX, the effective date of the Agreement, the minimum volume commitment if any, etc.

"Party” or “Parties" means, in the singular, FITTINGBOX or the CLIENT and, in the plural, FITTINGBOX and the CLIENT.

“Platform” shall mean the Internet interface developed and licensed by FITTINGBOX, allowing the CLIENT to access and handle the Photo Models and/or the Model Studio.

"Photo Model" means the photographs of Model(s), as selected by the CLIENT under the performance of the Services and that are used as the basis for the Model Studio. Unless otherwise mentioned in the Order Form, the number of Models that can be selected by the CLIENT is limited to 3.

"Selection" means the Digital Assets selected by the CLIENT within the performance of the Agreement, organized by brand or by reference. Unless otherwise specified in the Order Form, the Images are selected within Fittingbox Database or any other FittingBox’s catalogue or database; the category and /or number of Digital Assets that may be accessible and displayable is specified by the Order Form, as the case may be.

"Services" shall mean the Digitization services and/or the Model Studio services and/or any service or license related to the access and use of the Digital Assets or Fittingbox Database, in all or in part, as limitatively mentioned in the Order Form It is stressed that the Services do not induce the provision of any Solution; as the case may be, the right to use such Solution shall be governed by their dedicated general terms and conditions.

"Setup" means the installation, configuration, parametering, activation and training costs for the Platform and/or the Solutions, as the case may be, in their standard version as existing on the effective date of the Agreement. The Setup is due only once by the CLIENT, at the signature of the Agreement and independently of the other contractual fees.

"SKUs" or “Stock Keeping Unit(s)” means a physical object or item with a unique style combined with a unique colour. For the avoidance of doubt, it is stressed that there is only one SKU per item with its specific features and details (i.e. an item model with 5 possible colour variations will be turned into as many SKUs).

"Social Media" means the social network(s) as limitatively mentioned in the Order Form, as the case may be, where the CLIENT is entitled to use an Image via a Filter.

"Solution(s)" means the digital solution of which FITTINGBOX holds exclusive property rights, and that are subject to dedicated general terms of license and use. As a principle, the Solutions are provided under a proprietary format of FITTINGBOX.

“Third Party” means any natural person and/or legal entity other than the Parties.

“Virtual Try On” or "VTO" means the technology allowing to virtually try on a SKU .

"Working Hours / Days" means business hours or days applicable in Metropolitan France, from Monday to Friday, from 9 am to 6 pm, excluding bank and public holidays.

2. SCOPE

The Agreement has been freely concluded between the Parties; each Party warrants and represents that the signature and the performance of the Agreement is compliant with its corporate objects and/or articles of association.

By signing the Order Form and/or by entrusting the Services to FITTINGBOX, the CLIENT expressly and unreservedly and irrevocably agrees to the entire terms and conditions contained in the Agreement (and in particular the GTC), and their full enforcement. Similarly, the CLIENT continued use of the Solutions and/or Services after posting an updated version of the GTC by FITTINGBOX will constitute a formal acceptance of the CLIENT of the related changes. These terms constitute binding and enforceable obligations on the CLIENT.

Throughout the term of the Agreement, and unless otherwise expressly waived by FITTINGBOX and mentioned in the Order Form, it is clearly understood between the Parties that FITTINGBOX will be the exclusive partner of the CLIENT for the Digitization services and/or the provision of Digital Assets and/or, as the case may be, licenses for VTO solutions.

No services other than those expressly mentioned the Order Form are provided to the CLIENT. Any subscription to an additional service shall be expressly done and accepted and set forth in the corresponding signed order form. FITTINGBOX reserves the right to refuse to perform such additional or specific services, at its sole discretion and without having to justify its decision.

3. ENTRY IN FORCE - DURATION

Unless otherwise expressly specified in the Order Form, the Agreement shall enter into force on the date of signature of the Order Form.

Unless otherwise stated in the Order Form, (i) the Agreement is concluded for an initial period of one (1) year; (ii) at the end of this initial period, the Agreement shall be tacitly extended by successive periods of twelve (12) months, unless if a three (3) months’ notice of termination is given by one of the Parties prior to the extension date, notified by registered letter with acknowledgement or receipt; and (iii) upon renewal of the Agreement, the Services will be invoiced at the FITTNGBOX catalogue rate, excluding the initial discount stipulated for the initial Agreement period as it appears on the Order Form, as the case may be. Renewal periods shall not be considered as a novation of the Agreement. Any contractual period (initial or renewed) is firm and definitive.

4. EARLY TERMINATION - BREACH

The Agreement shall terminate before its regular term if a Party fails to fulfil any of its obligations hereunder and does not remedy the default within a period of fifteen (15) days following receipt by the said defaulting Party of a formal notice asking it to remedy the default - or immediately in case of a serious breach or if the breach cannot be remedied or repaired. Shall be notably considered as serious breaches from the CLIENT: failure to comply with (i) the payment obligations, (ii) the confidentiality obligations, (iii) the respect of Intellectual Property rights, (iv) the obligations and warranties set forth in sections 5.3, 6.1, 7, 8.1, 11 & 12.

Neither Party shall be liable for non-performance of the Agreement if the non-performance of its obligations is delayed or prevented by reason of an event of Force Majeure. For the avoidance of doubt, an obligation to make payment shall never be subject to Force Majeure.

In the event of early termination by the CLIENT or caused by the CLIENT, for any reason whatsoever - including in the event of the sale of his lease or goodwill or termination of business - the CLIENT shall remain liable, as first compensation, of all the amount mentioned in the Order Form until the regular term of the Agreement (whether for the initial period or its renewals), without prejudice to all other damages or penalties FITTINGBOX may claim. It is clearly stressed that the change of (i) address and / or (ii) social / legal form and / or (iii) identification number shall never be considered as a case of Force Majeure or a case of legitimate termination. Similarly, the legal liquidation, the dissolution or the ceasing of activity or assignment of its business by the CLIENT entails the termination of the Agreement and leads to the immediate payability of the entire contractual fees, according to the conditions mentioned in this article.

Notwithstanding the foregoing, and subject to (i) the CLIENT being up-to-date with its payment obligations and (ii) the transferee or the substitute owner subscribes to a new Agreement with FITTINGBOX on at least an equivalent contractual scope and amount, the early termination penalties mentioned in this article shall not apply.

FITTINGBOX also reserves the right to terminate the Agreement immediately ipso jure and without compensation, by notification, in the event of a change of control or takeover or investment equity of the CLIENT by a direct or indirect competitor of FITTINGBOX or its Affiliates.

On termination of the Agreement, for any reason whatsoever, the CLIENT shall stop using the Digital Assets, the Platform and/or the Solution and/or any license that might have been granted to the CLIENT under the performance of the Agreement; the provisions relating to Intellectual Property, CLIENT’s warranties, liability, confidentiality, and litigation rules, notably, will survive.

5. PERFORMANCE OF THE SERVICES

5.1 General Conditions of the Service

The Parties agree to cooperate closely and in good faith in their relations relating to the implementation and performance of the Agreement.

The Parties undertake to disclose any information they deem useful for the successful implementation of the Agreement and any difficulties which they may have, and which may have an impact on the performance of the Agreement, as and when the execution of the Agreement and will reflect together on the most appropriate way to overcome it. To this end, each Party shall designate a referent person having the capacity and power to take or cause to be taken the decisions necessary for the proper performance of the Digitization services.

Similarly, each Party expressly undertakes not to denigrate the other Party or to any of the goods and / or services provided or marketed by the other Party in any way and / or importance whatsoever.

The Services shall be performed according to the timeline agreed between the parties. Regarding the Digitization Services, the production times start from the receipt of the related batch, subject that the CLIENT has provided a completed and accurate Order to FITTINGBOX. In any case, the delivery times in days or hours shall refer to the Working Hours or Days applicable in Metropolitan France. 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, including but not limited to (i) any wrong or incomplete information and/or document provided to FITTINGBOX; (ii) additional or variation requests, and in particular related to the Services; (iii) change in strategy or timeline; (iv) inappropriate or insufficient organization or coordination; (v) miscommunication, internal disruption or inertia. Any intervention performed by FITTINGBOX and/or any additional costs engaged by the latter as a result of any default or inertia or delay caused by the CLIENT may result in additional costs for the CLIENT, on the current and standard man-day rates of FITTINGBOX increased by 50%.

The Digital Assets issued from Fittingbox Database and/or provided by FITTINGBOX are the sole images whose quality and homogeneity are validated by FITTINGBOX.

The quality and consistency of the Digital Assets are checked by FITTINGBOX; The Digital Assets shall meet the FITTINGBOX standard level of quality or, as the case may be, the level of quality contractually agreed between the Parties, before and after any retouching. Any discrepancies in denomination or quality (reproduction of colours, reflections, etc.) that do not correspond to the FITTINGBOX standard quality or the contractually foreseen finish shall be reported to FITTINGBOX within ten (10) calendar days following their delivery to the CLIENT. In the absence of report or request by the CLIENT within such ten (10) calendar days, the quality of the said Digital Assets will be deemed to have been irrevocably accepted by the CLIENT; therefore, any post-production requested by the CLIENT beyond such period shall be considered as a new service, and shall be invoiced consequently at the current rate services of FITTINGBOX.

FITTINGBOX determines on its own all the means that it wishes to use or assign to the Services. Under no circumstance can the CLIENT have authority on a FITTINGBOX’s employee or resource.

FITTINGBOX reserves the exclusive right to intervene on the Digital Assets, the Model Studio and/or the Platform, including for maintenance or interoperability operations.

FITTINGBOX reserves the right to not produce Digital Assets – and consequently not charge the CLIENT for such Digital Assets – and in particular for internal organization reasons and/or if the related SKUs present a high degree of complexity and/or in the case of non-standard quality or format of FITTINGBOX.

5.2 Specific rules for the Digitization Services

The CLIENT is and remains solely responsible for the choice of the SKUs and/or items entrusted to FITTINGBOX with a purpose to their Digitization and its use of the the Digital Assets, in particular with regard to rights of use, reproduction and display / communication to the public as well as the right to market, distribute and/or advertise for the related SKUs and/or items represented by such Digital Assets.

It is reminded between the Parties that the SKUs entrusted by the CLIENT with the intent of Digitization are provided for free; under no circumstances, may the provision of such SKUs be invoiced to FITTINGBOX or be subject to any credit note or an offset.

The CLIENT undertakes to provide FITTINGBOX with all relevant information relating to the SKUs entrusted to FITTINGBOX for their Digitization; In particular, the CLIENT agrees to use and complete the eOrder provided by FITTINGBOX, to the exclusion of any other document, duly completed for the considered batch. The batches shall be sent to FITTINGBOX’s HQ, or to any other address indicated by FITTINGBOX, by courier and/or transportation services (such as UPS), at the CLIENT’s own cost and expense.

Throughout the duration of the Agreement, FITTINGBOX agrees to use the SKUs sent to it by the CLIENT under the most reasonable and appropriate conditions.

FITTINGBOX agrees to verify the proper condition of the SKUs within forty-eight (48) Working hours of their receipt and to notify the CLIENT of any anomaly or damage within the same period. FITTINGBOX will promptly notify the CLIENT of any deterioration or damage it may have identified. FITTINGBOX will not be obliged to repair or indemnify the CLIENT accordingly for any damage caused by a transport defect or the normal use of the SKUs. FITTINGBOX agrees to return the SKUs and /or the Lenses on the date agreed between the Parties in good working order. It is expressly agreed between the Parties that the cost of returning the SKUs shall be borne by the CLIENT exclusively. If the CLIENT does not collect back the SKUs sent to FITTINGBOX in a three-month period following their Digitization, the CLIENT shall be deemed to have waived the rights, titles or interests it could have on such elements; therefore, FITTINGBOX shall be free to dispose them at its convenience and without compensation for the CLIENT.

5.3 Specific rules for the Model Studio Services

Unless otherwise specified in the Order Form, the CLIENT is and remains solely responsible for (i) the selection of (i) the Models and the Photo Models, (ii) the organization of the photo shooting session with the related Models. The CLIENT undertakes to inform FITTINGBOX as soon as possible of the exact dates and location planned for the photo shooting, and at least thirty (30) calendar days before such event. The CLIENT shall take all measures to enable FITTINGBOX to access the photo shooting location in order to make a 3D face acquisition of the Model(s) and warrants that such Models shall be available at least 2 hours each to make it happen. In case the shooting session would not have been realized due to the CLIENT or unavailability of the Models, in all or part, the CLIENT shall reimburse FITTINGBOX with all actual expenses engaged by FITTINGBOX for such session.

The CLIENT is aware and irrevocably accepts that the creation of a Model STudio requires a Digital Asset in VTO format of the selected SKU. When the SKU selected by the CLIENT is not available within Fittingbox Database, and unless otherwise expressly mentioned in the Order Form, the CLIENT shall order a Digitization of such SKU to FITTINGBOX; this Digitization shall be invoiced in addition to the Services initially scheduled.

The CLIENT is aware and irrevocably accepts that each Digital Asset selected by the CLIENT shall be implemented on at least 3 different Model Studio, whoever are the Models represented on such Model Studio.

The CLIENT undertakes to implement and/or use the Platform accordingly to its documentation and the instructions or directives of FITTINGBOX, that might be provided by an on-line module. The CLIENT undertakes to install any update or patch provided by FITTINGBOX in relation with the Platform (and/or the Solutions if applicable). The CLIENT shall never have more than 1 gap with the last update or patch provided by FITTINGBOX.

The identification code provided by FITTINGBOX for accessing the Platform is under the sole responsibility of the CLIENT. Any access using such identification code is deemed to be made by the CLIENT. The CLIENT shall be solely liable for the consequences of a malfunction of the Platform due to any use by any natural and/or legal person to whom the CLIENT may have provided its identification code.

The CLIENT is and shall remain solely responsible for the implementation and display of the Model Studios on its website(s), or any other third-party medium as the case may be; under no circumstances FITTINGBOX may be required or forced to replace the CLIENT on such matter. As the case may be, and only if FITTINGBOX has expressively agreed to provide additional support service for such implementation, the CLIENT shall be invoiced at the applicable scale prices of FITTINGBOX, in addition of the Services fees.

The CLIENT is aware and irrevocably accepts that once a Model Studio uploaded on the Platform or on the CLIENT’s website(s) it is be deemed to have been irrevocably checked and accepted by the CLIENT. Therefore, any modification or post-production requested by the CLIENT after such upload shall be considered as a new service and shall be invoiced consequently at the current rate services of FITTINGBOX.

The undertakings described in this entire section 5.3 are cumulative and substantial obligations of the CLIENT; they shall survive the termination of the Agreement, for any reason whatsoever. The CLIENT shall hold FITTINGBOX harmless from any claims, including from Third Parties, and undertakes therefore to indemnify FITTINGBOX for any direct and indirect loss which it may suffer and all the expenses it may incur for any claim and/or sanction as a result of in connection with any failure of this section 5.3. FITTINGBOX shall also be discharged for any liability in case of failure from the CLIENT to any provision of this section 5.3.

5.4 Specific conditions for the Social Media services

The Social Media services are performed BY FITTINGBOX as a technical intermediary party solely.

Unless otherwise expressly mentioned in the Order Form, FITTINGBOX only provides raw data or files under the performance of the Social Media Services. The CLIENT is and shall remain solely responsible for the implementation of the raw data or files provided by FITTINGBOX within a Filter, to make them compatible or operable with the social network(s) listed in this Order Form. Similarly, the CLIENT is and shall remain solely responsible for the implementation and display of the Filter containing the Digital Assets provided by FITTINGBOX. Under no circumstances FITTINGBOX may be required or forced to replace the CLIENT on such matter; As the case may be, and only if FITTINGBOX has expressively agreed to provide additional support service for such implementation, the CLIENT shall be invoiced at the applicable scale prices of FITTINGBOX, in addition of the Services fees.

All property rights related to the Digital Assets – either embedded in a Filter or not – including structure, know-how and methods, remain the exclusive property of FITTINGBOX or the Third Party which has granted FITTINGBOX all or part of the related rights. FITTINGBOX reserves the right to control the usage of the Digital Assets by any means at its convenience.

Subject to the CLIENT’s observing and performing all of its obligations under (i) the performance of this Agreement, (ii) FITTINGBOX’s instructions or directives and (iii) terms and conditions applicable to the social networks selected, FITTINGBOX grants the CLIENT a limited, temporary, non-exclusive, non-assignable, non-transferable, revocable license to use the Digital Assets provided under the Agreement for the duration of the Agreement and for the social networks exhaustively listed in the Order Form, solely. Any unauthorized use is strictly forbidden and shall be considered to constitute a counterfeiting act and the CLIENT shall indemnify FITTINGBOX accordingly for any direct and indirect damage or remedies.

FITTINGBOX does not give any warranty or guaranty of any kind related to the approval process or timing of the Filter – either provided by FITTINGBOX or not – by the selected Social Network or Media. When the Filter is provided by FITTINGBOX, and if the Filter has been rejected by the selected Social Network or Media, FITTINGBOX will make its best effort to correct the processing errors that would have been properly identified and re-submit the related Filter for a new approval.

In view of the technical uncertainties intrinsic to the Internet, or from any incompatibility stemming from the web browsers, or technologies and/or technical operation inherent to the selected Social Network or Media, FITTINGBOX does not give any warranty or guarantee of any kind that the Digital Assets – or the Filter as the case may be – will meet the requirements of the CLIENT or will be accessible or run without interruption or without errors. It is also stressed the Digital Assets – either embedded in a Filter or not – may be displayed by a third-party (either owned in full title or licensed by each selected Social Network or Media). As FITTINGBOX is not the licensor or the technical provider of such virtual try-on engines, FITTINGBOX does not give any warranty or guarantee of (i) compatibility or (ii) update or upgrade or (iii) non-regression or (iv) defects, non-conformities or bugs affecting or related to such third-party virtual try-on engines. Consequently, FITTINGBOX shall not be deemed responsible for defects of the Digital Assets provided under the Agreement and used on a Social Media or Network for the mere fact that such defects exist. Similarly, FITTINGBOX does not give any warranty or guaranty of any kind regarding the compliancy of each selected Social Network or Media with any applicable data privacy laws and regulations, and in particular with the European Regulation 2016/679 (GDPR), the US Health Insurance Portability and Accountability Act (HIPAA), the California Privacy Protection Act (CCPA), the Illinois' Biometric Information Privacy Act (BIPA), the US Health Information Technology for Economic and Clinical Health (HITECH), and/or any similar laws and regulations, as applicable, as amended.

It is stressed that the CLIENT is solely responsible of (i) its activities, (ii) its strategies, including business and communication, (iii) its Selection on any media or support whatsoever, including on Internet.

It is stressed that the CLIENT is solely responsible of the full observance and compliance of the terms and conditions applicable to the Social Network or Media where the Digital Assets – or the Filter as the case may be – can be displayed. The CLIENT is aware and irrevocably accepts that such terms and conditions may be modified from time to time by the Social Networks or Media, at their sole discretion, without FITTINGBOX incurring liability as a result; FITTINGBOX encourages therefore the CLIENT to regularly refer or consult such terms and conditions.

The CLIENT shall hold FITTINGBOX harmless from any claims, including from Third Parties, and undertakes therefore to defend and indemnify FITTINGBOX for any direct and indirect damage and/or loss which it may suffer and all the expenses it may incur for any claim and/or sanction as a result or in connection with any violation or failure or negligence of the above undertakings. FITTINGBOX shall also be discharged for any liability in case of failure from the CLIENT to any provision here above.

6. OBLIGATIONS OF THE PARTIES

6.1 Specific obligations of the CLIENT

The CLIENT undertakes to provide FITTINGBOX with all relevant information and/or documents relating to the performance of the Agreement and the Services.

The CLIENT undertakes to use the Digital Assets and/or the Platform according to the instructions or directives of FITTINGBOX.

Throughout the term of the Agreement, the CLIENT undertakes to order - and pay - Digitization services and/or Digital Assets, at least for the minimum volume commitment mentioned in the Order Form (if any).

The CLIENT guarantees the respect by its employees and / or subcontractors and / or partners, whoever they are, of the main provisions of the Agreement and must make sure to prevent any unauthorized use of the Digital Assets or the Platfeform. In particular, and unless otherwise expressly authorized by FITTINGBOX, on a case-by-case basis, the CLIENT undertakes not to directly or indirectly:

extract or try to extract all or material parts of the Fittingbox Database, in any manner and/or importance whatsoever;
extract or try to extract all or material parts of the Digital Assets from the Model Studio, in any manner and/or importance whatsoever;
use or reuse the Digital Assets and/or elements for which FITTINGBOX holds the Intellectual Property rights, in order to create Derivative Works and / or a direct or indirect competing product or service, including in order to create or enrich a competitive database, and a fortiori for distribution and/or commercial purposes;
use the Services and/or the Digital Assets and/or the Platform and/or the Solutions in order to interfere or compete or parasite, directly or indirectly, with any product and / or service distributed and/or marketed by FITTINGBOX, its Affiliates and/or its authorized partners;
reverse or attempt to decompile or reverse engineer the Platform or the Digital Assets or the Solutions, irrespective of the cause;
encourage any Third Party and / or allow any Third Party to access and/or extract any part of Fittingbox Database.

Unless otherwise expressly and prior authorized by FITTINGBOX, any use and/or exploitation of the Digital Assets and/or the Platform and/or the Solutions that may interfere or compete or parasite, directly or indirectly, with any product and / or service distributed and/or marketed by FITTINGBOX, its Affiliates and/or its authorized partners is strictly forbidden and shall be considered constituting a counterfeiting act and the CLIENT shall indemnify FITTINGBOX accordingly for any direct and indirect damage or remedies.

The CLIENT shall be personally and solely responsible for the backup of all and any of its information, documents and/or data, either such elements have been provided to FITTINGBOX on not under the performance of the Agreement, and in particular in consideration of any cyber risk. It is stressed that FITTINGBOX does not provide any backup or reversibility service to the CLIENT.

The undertakings described in this entire section 6.1 are cumulative and substantial obligations of the CLIENT; they shall survive the termination of the Agreement, for any reason whatsoever.

In the event the CLIENT breaches any of the obligations contained this section 6.1, including by negligence, (i) FITTINGBOX shall be entitled to immediately terminate the Agreement, with no need for any authorization whatsoever from a court and without incurring liability, and without prejudice to any direct and/or indirect damages, and (ii) the CLIENT will defend, indemnify and hold FITTINGBOX and its officers, directors, employees, contractors, Affiliates and agents harmless from any and all claims, suits, demands, costs, liabilities, expenses, damages (including reasonable attorneys' costs and fees) and judgments (or settlements to which the CLIENT already consents) related to any default or breach or alleged default or breach of the Agreement or any other act or omission or negligence by the CLIENT relating to its obligations under the Agreement, and (iii) the CLIENT undertakes to reimburse any profit and/or savings eventually earned by breaching this obligation, without prejudice to any additional damages or remedies FITTINGBOX may claim as a result of such breach or failure.

6.2 Specific obligations of FITTINGBOX

FITTINGBOX performs and provides the Services specified in the Order Form, under an obligation of means solely.

FITTINGBOX or the Third Party in charge of the hosting service, as the case may be, shall make reasonable efforts to keep the Digital Assets and the Platform accessible. However, the CLIENT is aware and irrevocably agrees that access to the Digital Assets or the Platform may be suspended without FITTINGBOX incurring liability as a result, in particular in the event of a malfunctioning or the temporary suspension of access to its solutions, including the Platform, in particular due to the suspension of the supply of electricity or telecommunications, suspensions required for updating or maintenance, breakdown or malfunctioning of the Internet network in the transmission of messages or documents, and/or any event beyond the reasonable control of FITTINGBOX.

FITTINGBOX reserves the right to suspend or revoke access to the Digital Assets or the Platform if the CLIENT is in breach of any of its obligations, with immediate effect and without indemnity, and in particular if the Selection infringes – or constitutes a risk to infringe - the rights of Third Parties, with immediate effect and without incurring any liability, without prejudice of its right to terminate the Agreement, according to the conditions mentioned in article 4.

7. PRICE AND PAYMENT TERMS

7.1 Price

The prices and terms of payment for the Services and, where applicable, the Setup Fee are those indicated in the Order Form.

Whenever applicable, the CLIENT is aware and irrevocably accepts that the minimum commitment set forth in the Order Form is firm and irrevocable. Therefore, if the CLIENT fails to achieve such minimum commitment, then FITTINGBOX should be entitled to invoice the remaining gap and the CLIENT shall pay it.

As applicable, the Order Form may specify if the services are part or might be part of a package offer with switchable modules or options In this case, and unless otherwise specified, the CLIENT will be entitled to switch from one module to another - depending on the offer subscribed and only within the very same package - in the course of the Agreement without additional cost, by sending an email to FITTINGBOX FITTINGBOX reserves the right to modify or extend its services offer from time to time, at its sole discretion. Any subscription by the CLIENT to a higher level pack during the term of the Agreement may be subject to a new term of subscription, at FITTINGBOX's discretion.

It is reminded that the Digitization fees may be subject to (i) the Classification (which can be modified from time to time by FITTINGBOX, at its sole discretion), (ii) the quality level agreed between the parties, (iii) the complexity of the SKUs, and/or (iv) a volume commitment from the CLIENT or a maximum volume production by FITTINGBOX. Therefore, FITTTINGBOX shall be entitled to apply the related tariff surcharge or price increase, at any time and at its sole discretion, in case of any exceeding volume or change of category or unreasonable complexity of the SKUs to be Digitized.

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 invoice.

The prices and fees set forth in the Order Form do not include (i) the update and/or upgrade of the Platform, (ii) the travel and accommodation expenses of FITTINGBOX (and in particular those engaged for the 3D face acquisition of the Models), or (iii) the transportation costs of the SKUs / Lenses for Digitization purposes, that shall be borne or reimbursed by the CLIENT, exclusively.

The CLIENT recognizes that only membership of a network enables 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 for the remaining term of the Agreement. Loss of membership shall not entitle the CLIENT to terminate the Agreement.

On renewal, and unless otherwise expressly mentioned in the Order Form, the Services shall be invoiced at the standard prices of FITTINGBOX, and/or without the initial rebate granted for the initial term of the Agreement as stated on the Order Form, if any. Unless additional services subscribed by the CLIENT, no Setup fee shall be invoiced on renewal.

7.2 Payment

Unless otherwise stated in the Order Form, FITTINGBOX invoices are payable within thirty (30) days of the date of issue. No discount or rebate will be made in case of an advance payment.

Under no circumstances:

- could FITTINGBOX be requested to (i) refund any payment made by the CLIENT under the Agreement and/or (ii) waive all or part of its legitimate invoicing, including in case of early termination of the Agreement or non-achievement of the minimum contractual commitment;

- will the CLIENT have the right to suspend, delay or reduce the payment of invoices for any reason whatsoever.

If the CLIENT fails to pay when due FITTINGBOX reserves the right, in the event of default payment at maturity, to suspend its services, including access to the Images, the Platform and/or the Solutions, from the due date and until complete payment by simple email and without prejudice to its right to terminate the Agreement in the manner provided for in Article 4 of these General Terms and Conditions.

If the CLIENT fails to pay when due and/or in case of deterioration or downgrading of the CLIENT’s solvency (creditworthiness), FITTINGBOX shall be entitled to modify the payment terms set forth in the Order Form, and in particular turn any payment in arrears into payment in advance, unilaterally and without notice, by sending a simple notification to the CLIENT.

If the CLIENT fails to pay when due, FITTINGBOX shall invoice an 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 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 costs incurred by FITTINGBOX in recovering its claim (judicial and extrajudicial).

7.3 Price revision

Unless otherwise specified in the Order Form, FITTINGBOX reserves the right to revise the prices set forth in the Order Form (a) immediately in case of a change of the scope or volume of the Agreement and (b) once a year on each anniversary date of the Agreement, and/or at each renewal period, by applying the formula R = Ro x S / So, wherein (i) R means the revised fee, (ii) Ro means the fee in effect on the date of revision, (iii) S means the latest French SYNTEC index published on the revision date, and (iv) So means the value of the same index on the date of the previous revision or on the date of signature of the Agreement for the first revision.

8. WARRANTIES

Each Party represents and warrants that it has the full rights required to enter into the Agreement and perform its obligations in accordance with the terms of the Agreement and the entry into the Agreement does not constitute a breach of any obligation (including any statutory, contractual or fiduciary obligation) or default under any agreement or undertaking, by which that Party is bound. Each Party shall, as far as it is concerned, indemnify the other Party against any recourse, action, damages or indemnity which any natural or legal person may invoke or claim, including intellectual property rights, acts of unfair competition and / or parasitism subject to (i) having been notified by the written party as soon as the party becomes aware of the complaint; (ii) having been notified by written as soon as the other Party became aware of the complaint; (iii) having received from the other Party any and all relevant information and / or assistance for the defence of the action. This warranty shall not apply in the case the complaint results directly or indirectly from changes or alteration or adjunction made by the CLIENT or an unauthorized Third Party on the services provided by FITTINBGOX, and in particular on the Digital Assets and/or the Platform and/or the Solutions.

8.1 Warranties from the CLIENT

It is reminded that is and remains solely responsible for (i) the selection of the SKUs and/or Lenses it entrusts to FITTINGBOX for Digitization purpose and (ii) the Selection.

In particular, the CLIENT represents and warrants that:

It is and will be the legitimate holder of all the rights associated with the SKUs (including for the reproduced brands or trademarks) it entrusts to FITTINGBOX for Digitization purposes; and
It is and will be the legitimate holder of all the rights associated with the SKUs (including for the reproduced brands or trademarks) composing its Selection; and
It is and will be duly authorized to provide SKUs and/or items to FITTINGBOX for Digitization purposes; and
it has procured any authorisation required from the legitimate holders to display, promote and/or market the brands and items issued from the Selection and that the Selection does not infringe the intellectual and/or industrial rights of Third Parties, in particular to the brands and models and authors' rights to the Digital Assets Selected and that may be displayed by the CLIENT, whatever the form or the medium; and
FITTINGBOX is and will be duly authorized to photograph and/or digitalize such SKUs, in order to create Digital Assets, without having to obtain authorizations or pay royalties to any Third Party whatsoever; and
FITTINGBOX is and will be duly authorized to incorporate the digitalized SKUs and/or items into Fittingbox Database and/or into its Solutions, without having to obtain authorizations or pay royalties to any Third Party whatsoever; and
FITTINGBOX is and will be duly authorized to perform broadcast / demonstrations at trade shows / public or private meetings; and
FITTINGBOX is and will be duly authorized to use, exploit, market, promote, sell, display, promote and distribute the Digital Assets, whatever their format, incorporated into Fittingbox Database or not, as widely as possible, for free or for consideration, worldwide, without conditions or restrictions and/or without having to obtain authorizations or pay royalties to any Third Party whatsoever; and
It will keep all relevant authorizations valids and in force as long as necessary.

Regarding the Model Studio Services, and unless if the Photo Models are provided by FITTINGBOX among an existing catalogue, the CLIENT represents and warrants that it is fully vested with the Intellectual Property rights required for the use and display of the photographs and/or images of the Models. In particular, the CLIENT warrants it has received the full and explicit authorization from the related Models to capture and/or record their images and/or photographs and/or video, and to use, re-use, adapt, display, represent, publish and/or exploit such photographs and/or images and/or videos, on any medium and formats, in an unlimited number, in whole or in part, for free or for a fee, worldwide and for an indefinite period (or, at the very least, for the duration of the Agreement and/or the display or exploitation period of such images and/or photographs and/or video). the CLIENT shall provide without delay any supporting documents that may be requested by FITTINGBOX on such matter. The CLIENT also represents and warrants that FITTINGBOX is and will be duly authorized to (i) make a 3D face acquisition of the selected Model(s) and (ii) use the photographs and/or images provided by the CLIENT in order to create the Model Studio, without having to obtain authorizations or pay royalties to such Models and/or any Third Party whatsoever, and (iii) to use, exploit, market, promote, sell, display, promote and distribute the Model Studio, for free or for consideration, worldwide, without conditions or restrictions and/or without having to obtain authorizations or pay royalties to any Third Party whatsoever, including the Model(s). FITTINGBOX reserves the right to revoke or suspend the access of the FOM, immediately, in case of a complaint or claim or action from a Model or any Third Party in relation with the use or exploitation such photographs and/or images and/or videos and/or the related consequences, without prejudice to any damages FITTINGBOX may claim and without prejudice to its right to terminate immediately the Agreement.

The warranties mentioned in this entire section 8.1 are cumulative and substantial obligations of the CLIENT; they shall survive the termination of the Agreement, for any reason whatsoever and for the entire for the duration of the applicable Intellectual Property rights. The CLIENT shall hold FITTINGBOX harmless from any claims, including from Third Parties, and undertakes therefore to defend and indemnify FITTINGBOX for any direct and indirect damage and/or loss which it may suffer and all the expenses it may incur for any claim and/or sanction as a result or in connection with any violation or failure or negligence of this section 8.1.

FITTINGBOX shall also be discharged for any liability in case of failure from the CLIENT to any provision of this section 8.1.

8.2 Warranties from FITTINGBOX

The CLIENT acknowledges that the Services are a standard offer of FITTINGBOX that are NOT designed to meet particular needs. The CLIENT declares having received full and accurate information about the Services that it has subscribed to the Agreement, and in particular about the characteristics of the Digital Assets and/or the functionalities of the Platform, with full background knowledge.

The Services are provided “AS IS”, without any warranty or guaranty of any kind as to their potential quality, performances or results. FITTINGBOX does not give any warranty or guaranty that the Services and/or the Digital Assets provided under the performance of the Agreement will meet the requirements of the CLIENT or will be accessible or run without interruption or without errors. Consequently, FITTINGBOX shall not be deemed responsible for defects of the Platform or the Digital Assets for the mere fact that such defects exist.

FITTINGBOX will refuse any warranty and liability in case of malfunctions or damages resulting, in whole or part, directly or indirectly from any tangible or intangible element used in conjunction and/or in addition with the Platform, Fittingbox Database, the Digital Assets and/or the Solutions, and more generally from any element, system or software not provided by FITTINGBOX and/or installed by the CLIENT or a Third Party without prior express authorization and instructions from FITTINGBOX.

It is reminded that the Platform is provided to the CLIENT in its standard version as existing at the effective date of the Agreement; FITTINGBOX does not make or give any representations or warranties about update or upgrade of the Platform or the adaptation thereof to the current or future requirements of the CLIENT. The using licence granted under the Agreement, as the case may be, does not include the provision of adaptations and/or new features of the Platform; FITTINGBOX reserves the right to incorporate them into its standard offering and/or to offer them to the CLIENT, at its sole discretion.

FITTINGBOX does not provide any warranty for the defects, non-conformities or bugs affecting any computer programme or other equipment used in conjunction with the Platform to the Digital Assets, or the defects, non-conformities or bugs which, as a consequence, may affect the Platform or the Digital Assets or any other hardware or software, and more generally on any system or device; under no circumstances FITTINGBOX will be liable for any related direct or indirect consequence.

The CLIENT is aware and irrevocably accepts that the efficient access and use of the Platform and/or Fittingbox Database and/or the Solutions, as the case may be, requires a non-restricted access to the Internet. Therefore, such element may not be accessible and/or may not operate in countries limiting or restricting or preventing access to the Internet, and in particular – but not limited to – China, Cuba, Eritrea, Ethiopia, Iran, North Korea, Saudi Arabia, Syria.

Save as expressly provided in the Agreement, and in particular in this section 8.2, FITTINGBOX does not make or give any representations, conditions, warranties or other terms, whether express or implied, arising by statute or otherwise, including but not limited to any implied representations, conditions, warranties or other terms of satisfactory quality or fitness for a particular purpose. FITTINGBOX will refuse any other guaranty or warranty, whatever it is, expressed by third parties.

9. LIMITED LIABILITY & INSURANCE

Each Party shall be responsible for the proper performance of its required actions and its own obligations under the Agreement. The responsibility of either Party may not be sought if the non-performance of its obligations is delayed or prevented by reason of an event of Force Majeure.

Each Party will make its personal affaire to take out and maintain a professional indemnity insurance for as is necessary to cover its liabilities.

The CLIENT is solely responsible for the adequacy of the Services subscribed to its requirements and professional needs. As the case may be, it is under the CLIENT's sole responsibility to express its own needs and constraints within a detailed specification. Under no circumstances may FITTINGBOX be liable of the inertia or failure of the CLIENT or being obliged to substitute to the CLIENT on such matter.

It is reminded that the CLIENT is solely liable for the Selection and the SKUs / items it has selected for Digitization purposes: therefore, the CLIENT discharges FITTINGBOX from all liability and shall hold FITTINGBOX harmless from any claims, including from Third Parties, due to such selection and the Selection.

FITTINGBOX is only held by a best-effort obligation under the performance of the Agreement. The liability of FITTINGBOX may only be established in case of proof of gross negligence or gross misconduct in the performance of the Services.

FITTINGBOX shall not be responsible for the loss of time or inconveniences caused to production caused by or resulting from a breakdown of all or part of the Platform or the Services. FITTINGBOX will not be liable for any liability due to the existence - or the possibility of existence - of malfunctions - or possible malfunctions – that may affect the Platform or the Services. FITTINGBOX is not liable for any deterioration or destruction of the information, programs, files, databases etc. which may occur subsequently to the use of the Platform or the Services. The CLIENT must take all appropriate security measures beforehand and set up all the procedures required for the protection of its own information, programs, files, databases etc., notably in terms of viruses, worms, Trojan horses and other kinds of cyber / computer attacks.

FITTINGBOX shall not be responsible for counterfeiting acts resulting from actions or omissions or negligence of the CLIENT and/or any Third Party, in any manner and for any reason whatsoever, whether it has modified the Platform or the Digital Assets or the Model Studio to suit its own expectations or specifications. Similarly, FITTINGBOX shall not be responsible for counterfeiting acts resulting from actions or omissions of CLIENT, whether the Platform or the Digital Assets or the Model Studio are being used in relation with other software, hardware or products not provided by FITTINGBOX.

FITTINGBOX shall be relieved of any responsibility and/or liability for any damages occurred, directly or indirectly, in all or in part, from a breach or a failure or inertia or negligence of the CLIENT.

To the maximum extent permitted by law, in no event shall FITTINGBOX be liable 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 the Agreement.

Under no circumstances, the aggregate liability of FITTINGBOX, for any reason whatsoever and including on the grounds of section 8, will exceed the limited amount actually paid by the CLIENT to FITTINGBOX, during the six (6) months preceding the damage and in direct relation with the Services provided.

The Parties expressly agree that should any limitation or provision of this Section 9 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.

10. FORCE MAJEURE

Neither Party shall be liable for any failure or breach of its obligations arising out of Force Majeure. The Party that avails itself of an event of Force Majeure shall to declare it and prove its existence as soon as possible after the occurrence of the event.

The Party concerned by the Force Majeure shall do its utmost to resolve or attempt to limit its consequences with a view to resuming its contractual obligations as soon as possible. The Parties shall meet to determine the manner in which the performance of the obligations under the Agreement would be continued. The obligations suspended shall be re-executed as soon as the effects of the cause (s) of non-executed have ceased.

In the event, the Force Majeure event takes effect for a period exceeding forty-five (45) days, the Agreement may be terminated ipso jure immediately upon written notice to the other Party, i.e. without the need for judicial determination.

11. PROPERTY RIGHTS

11.1 General provisions related to the Intellectual Property Rights of FITTINGBOX

FITTINGBOX holds and retains all Intellectual Property rights directly or indirectly related to the performance of the Agreement, and in particular related to Fittingbox Database, the Digital Assets, the Platform, the Solutions and/or any related derivative works, including their structure or content, be they registered or not. 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 or any of its affiliates during the Agreement. Under no circumstances these rights might be transferred to the CLIENT and/or any Third Party because of the execution or the termination of the Agreement. The CLIENT acknowledges and irrevocably accepts that these elements are significant items of FITTINGBOX’s assets; any disclosure of any of these elements may significantly damage FITTINGBOX.

Unless otherwise expressly authorized by FITTINGBOX, the CLIENT undertakes not to (i) use or reuse the Digital Assets independently and/or for any other use than their intended use or as expressly authorized by FITTINGBOX, and a fortiori in order to create or enrich, directly or indirectly, a competitive database, (ii) extract or try to extract all or material parts of the Digital Assets from the Model Studio and/or Fittingbox Database, in any manner and/or importance whatsoever, (iii) reverse engineer, decompile or disassemble the Digital Assets and/or the Platform and/or the Solutions, reconstitute or attempt to reconstitute their source code, or to enable any unauthorized Third Party to gain or maintain access thereto, in any manner whatsoever directly or indirectly, and irrespective of the cause, (iv) use the Services in order to interfere or compete or parasite, directly or indirectly, with any product and / or service distributed and/or marketed by FITTINGBOX, its Affiliates and/or its authorized partners, and (v) create Derivative Works from any elements owned by FITTINGBOX.

The CLIENT undertakes not to modify and/or the notices related to the physical and/or intellectual property of FITTINGBOX, whatsoever. Similarly, the CLIENT may not use the name or logo of FITTINGBOX and/or its Affiliate, for marketing or advertising purposes without FITTINGBOX's prior written consent which can be withheld at the sole discretion of FITTINGBOX. The CLIENT is aware that it could be prosecuted under the law in case of failure or breach of this obligation, including by negligence.

Whenever applicable, and subject to the CLIENT’s observing and performing all of its obligations under the performance of the Agreement, FITTINGBOX grants the CLIENT a personal, temporary, non-exclusive and non-transferable right to use the Platform. This license is granted only in object code and for the duration of the Agreement.

Any unauthorized or non-compliant use of Fittingbox Database and/or the Digital Assets and/or the Platform, or any other Intellectual Property rights of FITTINGBOX, shall be considered as a counterfeit act and the CLIENT shall be solely responsible for any damages it may occur or cause in relation thereto, including any damages or remedies in the aggregate caused by any Third Party claim or action related hereto. In the event the Client breaches this obligation, including by negligence, (i) FITTINGBOX shall be entitled to immediately terminate the Agreement, with no need for any authorization whatsoever from a court and without incurring liability, and without prejudice to any direct and/or indirect damages, and (ii) the Client will defend, indemnify and hold FITTINGBOX and its officers, directors, employees, contractors, Affiliates and agents harmless from any and all claims, suits, demands, costs, liabilities, expenses, damages (including reasonable attorneys' costs and fees) and judgments (or settlements to which the Client already consents) related to any default or breach or alleged default or breach of the Agreement or any other act or omission or negligence by the Client relating to its obligations under the Agreement, , and (iii) the Client undertakes to reimburse any profit and/or savings eventually earned by breaching this obligation, without prejudice to any additional damages or remedies FITTINGBOX may claim as a result of such breach or failure. FITTINGBOX shall also be discharged from all related liability.

The CLIENT is aware and irrevocably accepts that any FITTINGBOX's technology, including but not limited to the Platform and/or the Solutions, may implement or be interfaced with third-party technology, including open-source software. Unless otherwise explicitly stated in the related third-party software licences, such third-party technology is provided under the same conditions and restrictions as the licence granted by FITTINGBOX for its own services and solutions. FITTINGBOX reserves the right to remove or replace any third-party technology implemented or interfaced with its own technology, from time to time, at its sole discretion.

In the event that FITTINGBOX expressively authorizes a Third Party to use and/or access Fittingbox Database and/or the Platform and/or the Digital Assets and/or the Solutions, as the case may be, the CLIENT shall have this Third-Party priory entering into a confidentiality agreement with FITTINGBOX, exclusively in accordance with the terms and conditions set forth in the Agreement and in particular in compliance with the provisions set forth in these GTC. This confidentiality agreement shall indicate that the Third Party shall only intervene in the name and on the behalf of the CLIENT in accordance with the Agreement. The CLIENT shall also have the Third Party respecting the confidentiality and Intellectual Property clauses of the Agreement. The CLIENT shall be fully liable for the compliance by the Third Party with this provision and undertake to indemnify FITTINGBOX against any damage that could result from it.

11.2 Intellectual / Industrial Property rights of the SKUs

All property rights related to the SKUs, including copyrights and trademarks reproduced on or used to designate such SKUs / Lenses, remain the exclusive property of the CLIENT or the Third Party which has granted to the CLIENT all or part of the related rights of use and/or operate and/or commercialize such SKUs / Lenses.

FITTINGBOX does not acquire any ownership of these elements, except the right to use them for its Digitization purposes and without prejudice to the guarantees set out in section 8.1.

11.3 Intellectual Property rights related to the Digital Assets

As the original creator of the Digital Assets, FITTINGBOX is and shall remain the exclusive owner of such Digital Assets created/or processed throughout the performance of the Agreement and/or incorporated into Fittingbox Database, including the underlying Digitization technology and their architecture. The Agreement, because its execution and/or termination, does not grant the CLIENT any Intellectual Property rights to any of these elements. Unless otherwise expressly mentioned in the Agreement, FITTINGBOX only grants the CLIENT a limited, temporary, non-exclusive, non-assignable, non-transferable, revocable license to use such Digital Assets, jointly with a Model Studio or via a Solution solely; such license is granted for the duration of the Agreement and, as the case may be, the limited territory set forth in the Order Form, solely.

The Intellectual Property rights related to the Digital Assets in 2D format created by FITTINGBOX directly under the performance of the Agreement might be transferred to the CLIENT, in particular for a Tier3 Classification, provided however that the CLIENT owns the trademarks and/or the exclusive Intellectual Property rights of the physical SKUs represented by such Digital Assets. Subject that the CLIENT has observed and performed all of its obligations under the performance of the Agreement and with respect to all FITTINGBOX’s Intellectual Property Rights, FITTINGBOX shall assign to the CLIENT, free of charge, to the maximum extent permitted by the applicable law, all the Intellectual Property Rights over such Digital Assets in 2D format. In such case, the CLIENT shall grant FITTINGBOX a free-of-charge, non-exclusively, worldwide and for the duration of the copyright, right to use, adapt, represent, publish, distribute and/or commercialize such Digital Assets, in their current condition or in 3D or VTO format. As a consequence, FITTINGBOX shall be fully invested with the right to exploit such Digital Assets, in the widest possible way, including the right to use, exploit, reproduce, represent, modify, commercialize, transfer, by any means and processes, on any medium and formats, in an unlimited number, in whole or in part, for free or for a fee, for all activities of FITTINGBOX, and worldwide. The CLIENT shall not be entitled to receive any remuneration of any nature arising from the integration of the Digitization within Fittingbox Database and / or the Solutions or, in general, their past or future operation by FITTINGBOX. For sake of clarity, the CLIENT is hereby informed and acknowledges that the Digital Assets directly or indirectly produced by FITTINGBOX and/or its partner, either the CLIENT holds the related Intellectual property rights or not, may be incorporated into Fittingbox Database and/or the Solutions, represented, published, distributed and/or commercialized by FITTINGBOX to its customers and/or partners, either free-of-charge or in exchange for remuneration, leaving it to such customers and/or partners to have obtained the right to use these images and/or retail the corresponding SKUs from the corresponding frame manufacturer, without any financial compensation of any kind for the CLIENT and/or any Third Party.

Under no circumstances the Intellectual Property rights related to the Digital Assetsin VTO format directly or indirectly created by FITTINGBOX under the performance of the Agreement shall be conveyed to the CLIENT; that being said, FITTINGBOX might grant the CLIENT a copyright license on such Digital Assets in VTO format, provided however that such Digital Assets depict CLIENT’s own brand labels (i.e. the CLIENT owns the trademarks and/or the exclusive Intellectual Property rights of the related physical SKUs).

The CLIENT shall maintain also the full ownership over the trademarks and the exclusive Intellectual Property rights of the related SKUs.

11.4 Intellectual Property rights related to the Model Studio

In any event, the Digital Assets created and/or implemented in a Model Studio, including the underlying digitization technology and their architecture, remain the entire and exclusive property of FITTINGBOX. The Agreement, because its execution and/or termination, does not grant the CLIENT any Intellectual Property rights to any of these elements.

The Intellectual Property rights related to the Model Studio might be conveyed to the CLIENT, provided however that the CLIENT owns the exclusive first ranking Intellectual Property rights related to the photographs and/or images of the Models, and without prejudice of FITTINGBOX’s Intellectual Property rights on the related Digital Assets. Subject that the CLIENT has observed and performed all of its obligations under the performance of the Agreement and with respect to all FITTINGBOX’s Intellectual Property Rights, FITTINGBOX shall assign to the CLIENT, free of charge, to the maximum extent permitted by the applicable law, all the Intellectual Property Rights over such Model Studio. As a consequence, the CLIENT shall be fully invested with the right to exploit such Model Studio, in the widest possible way, including the right to use, exploit, reproduce and/or represent, on any medium and formats, in an unlimited number.

When the images or photographs of a Model are selected by the CLIENT among a catalogue proposed by FITTINGBOX, the Model Studio shall remain the entire and exclusive property of FITTINGBOX. In this case, any unauthorized or non-compliant use or re-use of the Model Studio shall constitute a counterfeiting act and the CLIENT shall indemnify FITTINGBOX accordingly, at the same conditions exposed in these GTC. Provided that the CLIENT has observed and performed all of its obligations under the performance of the Agreement, FITTINGBOX shall grant a limited, personal, revocable, non-exclusive and non-assignable right to use such Model Studio, only for the duration of the Agreement and the intended use agreed between the parties; the Agreement, because its execution and/or termination, shall not grant the CLIENT any other Intellectual Property rights to any of these elements.

12. CONFIDENTIALITY

Each Party agrees and undertakes to keep as confidential all the Confidential Information concerning the other Party, the Products and Services, the 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. The receiving Party agrees not to use this Confidential Information for any purpose other than those provided in the Agreement.

The receiving Party shall provide the same care for the protection of such confidential information as for its own confidential information.

The receiving 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 disclosing Party, in whole or in part, provided during this Agreement, without the prior express written agreement of the disclosing Party.

The receiving Party also undertakes to take any required steps which are necessary for reservation 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 receiving Party shall (i) immediately notify the disclosing Party so that the disclosing 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 receiving Party shall return all information and documents relating to the receiving Party 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 receiving Party acknowledges that any breach of his Section 12 shall constitute a major breach of the Agreement. In this case, the disclosing Party shall be entitled to immediately terminate the Agreement without any indemnity and without prejudice to any damages the disclosing Party may claim, upon written notice to the defaulting Party.

13. GENERAL PROVISIONS

13.1 Entire agreement

The Agreement expresses the entire contractual obligations of the Parties with regard to its purpose; it supersedes and replaces any previous agreement, letter, offer or other document having the same purpose. No modification may be made to the Agreement without a written additional clause being signed by both Parties. Under no circumstances may the CLIENT’s purchase order or general terms and conditions be enforced on FITTINGBOX.

Any modification, waiver or amendment of the Agreement or any of its terms and / or conditions shall be valid only if it is the subject of an endorsement duly signed by both Parties.

13.2 Validity

If any provision of the 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 the 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.

13.3 No-waiver

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 the 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 operated as a waiver of any breach or default by the other Party.

13.4 Independence of the Parties

Nothing in the Agreement may be assimilated or interpreted as contributing to the establishment of a subsidiary, a joint venture, a subordination bond or an agency contract. The relations instituted between the Parties by the Agreement are those of independent contractors and the Agreement intends to institute no other relationship between them. Within the framework of its activity, each Party shall act independently and shall deal personally with all legal, social and fiscal provisions. Neither party is an employee, agent, partner or joint venturer of the other Party.

13.5 Transfer / Subcontracting

As the Agreement is concluded intuitu personae, neither Party 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 and written consent of the other Party. By way of derogation from the foregoing:

The change of control or of shareholders within FITTINGBOX, or the transfer of all or part of FITTINGBOX or FITTINGBOX's activities to a Third Party, will take place without the CLIENT's consent being required. The Agreement will automatically continue with the new legal entity substituting for FITTINGBOX without possibility to the CLIENT to terminate the Agreement;
FITTINGBOX may subcontract all or part of its services. In the event of subcontracting, FITTINGBOX shall remain liable to the CLIENT for the proper performance of the services.
The assignment of the Agreement by the CLIENT (assignor) will be valid only if it is the subject of an addendum or a new agreement signed between FITTINGBOX and the assignee. In the event of an agreement, and unless specifically waived by FITTINGBOX, the transferor will remain jointly and severally liable for its assignee. Failing this, the transfer of the business of the CLIENT will result in the termination of the Agreement and the immediate exigibility of the entirety of the contractual fees, under the conditions mentioned in Article 4.

13.6 Communication & Commercial indexing

For the duration of the Agreement, FITTINGBOX shall be authorized to issue press release or make public communication, provided however that FITTINGBOX does not misrepresent or embellish its relationship with the CLIENT; to such end, FITTINGBOX shall be authorized to use and reproduce the name, logo(s) brands, trade names of the CLIENT in its marketing and/or promotional materials and/or solutions, including but not limited on the following media 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.

13.7 Data Protection, Privacy and Security

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), the California Privacy Right Act (CPRA), the US Health Insurance Portability and Accountability Act (HIPAA), the Illinois' Biometric Information Privacy (BIPA), the US Health Information Technology for Economic and Clinical Health (HITECH), and any similar laws and regulation, as applicable, as amended, and take any administrative measures required thereof.

As data controller, it is reminded that the CLIENT is and remains solely responsible for (i) the collection, processing and/or hosting of personal data or biometric identifier or information of its own clients, consumers or end-users, (ii) the implementation and display of any suitable disclaimer or notice of information to be provided to sata subjects under applicable data protection, privacy and security laws and regulations, (iii) the modification or removal of such disclaimer or notice of information, and (iv) its own privacy policy terms or charters; therefore, the CLIENT shall hold FITTINGBOX harmless from any related claims, including from Third-Party and/or resulting of a class action, and undertakes to indemnify FITTINGBOX for any direct and indirect loss and/or damage and/or expense that FITTINGBOX and/or its Affiliates may suffer as a result or in connection with a failure of this section 13.7.

The CLIENT is aware and irrevocably accepts that FITTINGBOX reserves the right to collect aggregated or anonymous Big Data within the performance of the Agreement. FITTINGBOX is entitled to use and exploit such Big Data, free of charge or for a valuable consideration, notably for statistics and/or analysis purposes.

According to the applicable Data Protection Regulations, FITTINGBOX can be contacted by the CLIENT at contact@fittingbox.com for any question or enquiry related to personal or professional data that may be processed by FITTINGBOX under the performance of the Agreement.

13.8 Electronic evidence

The CLIENT is expressly informed and agrees that the Agreement documents can be signed electronically. The Parties consider that the electronic signature will have the same probative value as a handwritten signature and will be binding on each Party and any Third Party.

The CLIENT is aware and irrevocably accepts that FITTINGBOX’s invoices may be established electronically. The e-invoice will have the same legal value as a paper invoice and will be enforceable against the CLIENT.

The CLIENT is aware and irrevocably accepts that notification and information provided from FITTINGBOX to the CLIENT by email or similar electronic communication medium are valid and represent evidence between the Parties.

13.9 Non-solicitation

Unless otherwise expressively agreed by FITTINGBOX, during the term of the Agreement and for a period of two (2) years following the expiration or termination of the Agreement, the CLIENT shall not, directly or indirectly, solicit for employment any person employed by or under contract with FITTINGBOX or its Affiliates, and even if the initial solicitation comes from such person and either he/she has already terminated his/her employment or services agreement with FITTINGBOX or not. In case of a breach of this section, the CLIENT shall pay to FITTINGBOX a lump sum equal to 2 years of the fully-loaded salary of the person hired by the CLIENT, and without prejudice to any other damages or remedies that FITTINGBOX may claim.

14. ELECTION OF DOMICILE - NOTIFICATIONS

The Parties shall elect domicile at their respective registered or principal offices, as indicated in the Agreement. Any change of domicile by one of the Parties shall be binding on the other only on the expiry of fifteen (15) days from the receipt of the notification by registered letter with Acknowledgment of receipt.

15. GOVERNING LAW / JURISDICTION

The Agreement shall be governed and construed in accordance with the laws of France.

All disputes or claims arising out of or relating to the Agreement, or any operation contemplated thereby shall be subject, in the first instance, to the jurisdiction of the International Commercial Chamber of the Commercial Court of Paris, France, and, on appeal, to the jurisdiction of the International Commercial Chamber of the Paris Court of Appel, France. The afore-provision shall not be an obstacle to the submission of a judgement of the Commercial Court ('Tribunal de commerce') or Paris, France, to another court for enforcement purposes.

Any proceeding to resolve or litigate any dispute in any forum, whether in arbitration or court, will be conducted solely on an individual basis. Neither Party will seek to have any dispute heard as a class or representative or a named or unnamed member in a class, consolidated, representative or private attorney general legal action or in any other proceeding in which either party acts or proposes to act in a representative capacity. No proceeding will be combined with another without the prior written consent of all parties to all affected proceedings. The CLIENT also agrees not to participate in claims brought in a private attorney general or representative capacity, or any consolidated claims involving another person's account, if FITTINGBOX is a party to the proceeding. The CLIENT is giving up its right to participate as a class representative or class member on any class claim it may have against FITTINGBOX including any right to class arbitration or any consolidation of individual arbitrations.

FITTINGBOX – Registered in U.E. & U.S. Patent & Trademark Office – Copyright August 2023

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