”Additional services” means the optional services that may be subscribed by the Client in addition of the License. By way of example, the Additional services may target new functionalities, features or modules, and/or particular assistance or training services.
”Affiliate” shall mean 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, by decreasing order or priority, a) these General Terms and Conditions completed by the EULA if applicable, b) the Order Form, and c) the specific terms of the agreed partner of FITTINGBOX, if any. In the event of any conflict or inconsistency between these documents, the General Terms and Conditions shall prevail in any circumstances. By signing the Order Form and/or by using the Solutions, the CLIENT expressly and unreservedly and irrevocably agrees to the terms and conditions contains in these documents, and their full enforcement.
"BigData" or"Metadata" means a voluminous set of qualitative or quantitative data of any format, structured or unstructured, used, collected, processed and / or analysed through the use of the Solutions and or MyFittingBox and/or Fittingbox Database.
“CLIENT” means the optical-eyewear professional (independent, retail chain, pure player, distributor, manufacturer, etc.) of optical products and related products and/or services, as mentioned in the Order Form.
“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 of the Solutions and / or MyFittingBox, the content of Fittingbox Database, the documentation relating to the Solutions are also considered as Confidential Information.
“Content” means any element or information (such as a text on the technical or aesthetic characteristics of the brand concerned), in any kind and/or form whatsoever, placed by the CLIENT on a subscribed Smart Solution, including the Selection.
"End User License Agreement" or “EULA” means the using terms and conditions of the Solutions enforceable to the end users, whenever applicable. The EULA may be modified from time to time by FITTINGBOX, at its sole discretion.
"Fittingbox Database" means the database of digital frames developed and enriched by FITTINGBOX; Fittingbox Database contains, in particular, 2D or 360 images (“Photographs”), 3D images or files (“VTO frames”), and related Metadata. It is clearly stated that, unless otherwise expressly specified in the Order Form, the CLIENT is authorized to access to Fittingbox Database only in accordance with the License granted under the Agreement and only by using the subscribed Solutions (and / or MyFittingBox if applicable), and with the exclusion of any other use.
“FITTINGBOX” means FITTINGBOX, a limited liability company, and/or its Affiliates that supplies and hosts software solutions for optic and eyewear professionals, directly or through an agreed partner or distributor or reseller.
"Force Majeure" means any external event, unpredictable, irresistible and outside the will of the Parties.
“General Terms and Conditions
” or “GTLU
”: means this document that governs the terms and conditions of use of the Solutions and Fittingbox Database. These GTLU only apply for the Solutions provided by FITTINGBOX and/or its agreed partners, as expressively mentioned in the Order Form, throughout the performance of the Agreement. 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 the digitalization or data or development services, are governed by dedicated general terms and conditions. Any other document than these GTLU is for information purpose only and shall not bind FITTINGBOX in any manner whatsoever. These GTLU 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-vto-optical-solutions
. As the case may be, and provided that it is consistent with the Solutions for which the CLIENT has a regular License, a pop-up message informing of such modification could appear when the related Solution is updated; in such case, and in order to continue to use the related Solution, the CLIENT shall accept the last version of the General Terms and Conditions.
”Hardware” mean all of the physical elements compatible with the Solutions, that may be provided by FITTINGBOX and/or its agreed partners under the performance of the Agreement, and that are strictly mentioned in the Order Form. Regarding the in-store Solutions, the Hardware provided by FITTINGBOX includes a minima a player; it is completed by a display LCD screen that may be provided by FITTINGBOX or sourced by the Client amongst a limitative reference list provided by FITTINGBOX. FITTINGBOX does not give any compatibility guarantee, whatever it is, outside such reference list. The price of the Hardware provided by FITTINGBOX is set forth in the Order Form.
“Intellectual Property” means any patent, copyright, trademark, DNS, trade dress, trade name or trade secret right and any other intellectual property or proprietary right of FITTINGBOX and/or its Affiliates, anywhere around the world, whether such rights are registered or unregistered and including the know-how and goodwill attached to such rights and the right to apply for any such rights.
”License” means the personal, temporary, non-exclusive and non-transferable right to use the Solutions and/or MyFittingBox and/or Fittingbox Database, as the case may be, granted to the CLIENT under the Agreement.
"MyFittingBox" means the interface developed by FITTINGBOX, allowing the CLIENT to access the back office of certain Solutions and in which the CLIENT can make its Selection.
"Order Form" means the document supplementing these GTLU and considered as specific conditions to the Agreement. The Order Form specifies in particular the identity of the CLIENT, the commercial offer of FITTINGBOX, the Site(s), the effective date and duration of the Agreement.
"Setup" means the installation, configuration, parametering, activation and training costs for the Solutions and/or MyFittingBox. The Setup fee also includes access to the Solutions and/or to MyFittingBox and/or the predetermined frames catalogue based on Fittingbox Database, 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 License fees.
"Selection" means the digitized frames selected by the Client in Fittingbox Database or MyFittingBox, organized by brand or by reference. The number of frames that may be accessible and displayable can be specified by the Order Form. The available frames catalogue depends on the License subscribed by the Client.
"Site" means the URL or the delivery address indicated in the Order Form, as set forth in the Order Form, where the Client is allowed to use the Solution with the exclusion to any other location and/or declension and/or extension.
"Solutions" means the virtual try-on (VTO) and/or measurement and/or videoconferencing solutions designed and licensed by FITTINGBOX, as well as the services associated therewith and/or MyFittingBox and/or Fittingbox Database, as the case may be. The CLIENT is aware and irrevocably accept that the Solutions are provided under a proprietary license only.
“Third Party” means any natural person and/or legal entity other than FITTINGBOX and the CLIENT.
The 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 and/or the use of Solutions involve the express and irrevocable acceptance of the CLIENT to these General Terms and Conditions. Similarly, the CLIENT continued use of the Solutions after posting an updated version of these GTLU by FITTINGBOX will constitute a formal acceptance of the CLIENT of the related changes, in their entirety. These terms constitute binding and enforceable obligations on the CLIENT.
In the event of any inconsistency with a translated version of these GTLU, and with exception to the French version, the English version of the GTLU shall prevail in any circumstance; any version of the GTLU other than French and English is for reference purposes only.
2. ENTRY INTO FORCE AND TERM OF THE AGREEMENT
Unless otherwise expressly specified in the Order Form, the Agreement shall enter into force on the date of signature of the Order Form until the expiry of its term, which constitutes a firm and definitive initial subscription period.
Unless otherwise expressly specified in the Order Form, the License starts on the effective date of the Agreement or on the delivery date of the Identification Code of the subscribed Solutions. Unless otherwise expressly specified in the Order Form, the License is granted for the Site and for the term of the Agreement solely.
Unless otherwise expressly specified in the Order Form, the anniversary date is set up on the 1st of the month following the date on which FITTINGBOX provides the CLIENT with his Identification Code. The anniversary date occurs once a year, every year, throughout the performance of the Agreement.
Subject to any mandatory provision of the applicable law, unless the Agreement is terminated according to the procedures set out below and/or unless otherwise set forth in the Order Form, the Parties agree that this Agreement shall then be tacitly renewed for successive periods of the term provided in the Order Form, under the terms and conditions set out herein. The renewal shall not be considered as a novation of the Agreement.
Any contractual period shall be firm and definitive. Any early termination due to the CLIENT will result in the payment of all the fees provided for in the Agreement until the ongoing term, as a penalty clause and without prejudice to any other damages or penalties FITTINGBOX may claim as a result of such early termination or failure of the CLIENT.
If a Party does not wish to renew this Agreement at its term, it must send a letter at least three (3) months prior the term of the Agreement by registered letter with confirmation of receipt to the other Party; the CLIENT shall send its notification to: FITTINGBOX – 209 rue de l’Innovation, 31670 LABEGE, France, or its partner mentioned on the Order Form as the case may be.
The License granted will cease once the Agreement terminated, for any reason whatsoever.
3. TERMINATION BEFORE THE TERM
The Agreement may be terminated by either Party in the event of a breach by the other party of one of its obligations within fifteen (15) calendar days of the dispatch of a formal demand to remedy this breach which has remained without effect, or immediately in case of a serious breach of 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 set forth in section 5.2, (v) the warranties set forth in section 6.2, (vi) the obligation and/or warranties related to the Content or the Selection.
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 Form, and including all the License fees which shall become immediately due over the remaining term of the Agreement (irrespective of whether such term is the initial term or a renewal), without prejudice to any other damages or penalties. For the avoidance of doubt, it is stressed that an address modification and/or the conversion from one corporate form to another and/or a registration number modification shall not be considered as a legitimate reason to terminate the Agreement, not a Force Majeure Event.
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 of Solutions, early termination penalties mentioned in this article 3 shall not apply.
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 3.
Also, FITTINGBOX reserves the right to terminate the Agreement with immediate effect, 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 or its Affiliates without any compensation.
In the event of a termination of this Agreement, for any reason whatsoever, the Client undertakes to return to FITTINGBOX the Hardware provided by the latter, without delay, and not to keep any copy of the Solutions and/or MyFittingBox and/or data of Fittingbox Database, whether total or partial, under judicial prosecution.
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 (Definitions), 8 (Intellectual Property), 6.2 (Warranties), 7 (Liability), 10 (Confidentiality), 13 (Conciliation) and 14 (Governing Law / Jurisdiction) will survive the expiration or termination of this Agreement, irrespective of the cause.
4. DESCRIPTION OF THE SERVICES
The Solutions subscribed to by the CLIENT, in a pack or not, are listed and broken down in the Order Form and their characteristics and functionalities are explained in specific terms and/or the description provided by FITTINGBOX. The CLIENT may subscribe Solutions pack of a higher level during the term of the Agreement. In such case, it shall commit to a new term of subscription, of the same term as the initial term, at the catalogue price in force which FITTINGBOX will have communicated to him beforehand.
The Services may notably include:
- the supply VTO and/or PD measurement and/or videoconferencing technologies developed by FITTINGBOX; and/or
- the supply of optional functionalities, features and/or modules; and/or
- the supply of MyFittingBox; and/or
- the access to all or part Fittingbox Database, organized by brands in which the CLIENT can make the Client Selection; and or
- the hosting of the Solutions by FITTINGBOX; and/or
- the supply of remote support and assistance services, and in particular via webinars and/or MOOC; and/or
- the provision of corrective, adaptive and/or progressive maintenance of the Solutions, in their regular version.
FITTINGBOX does not provide any services other than those expressively specified in the Order Form. In particular FITTINGBOX does not provide specific or particular support or training or implementation or maintenance services to the CLIENT. Any Additional service that may be subscribed by the CLIENT, and only if agreed by FITTINGBOX, shall be invoiced according to the scale of prices of FITTINGBOX applicable when the order is placed.
FITTINGBOX does not give any undertaking or warranty as to the evolution of the Solutions or the adaptation thereof to the current or future requirements of the CLIENT. The License granted to CLIENT does not include the provision of adaptations and/or new features, which FITTINGBOX may have developed and/or could market separately; FITTINGBOX reserves the right to incorporate them into its standard offering and/or to offer them to the CLIENT, at its sole discretion.
4.2 Specific conditions for in-store Solutions (if applicable)
Unless otherwise expressively mentioned in the Order Form, FITTINGBOX does not provide any hardware or peripheral to be jointly used with the Solutions. The CLIENT shall source and acquire such elements at its own costs among a limitative reference list provided by FITTINGBOX. FITTINGBOX does not give any compatibility guarantee, whatever it is, outside such reference list.
When Hardware is provided by FITTINGBOX, and subject that the Client has been compliant with (i) all of its obligations under the performance of this Agreement and (ii) the manufacturer’s recommendations and/or specifications in using the Hardware, the Client shall benefit of the manufacturer’s standard warranty or guaranty over the Hardware. FITTINGBOX does not provide any additional or substitutive warranty to that provided by the manufacturer of the Hardware. As FITTINGBOX is not the manufacturer of the Hardware, it does not guarantee the availability or proper functioning of the Hardware. This warranty will not apply in case of a failure of the Hardware resulting, in all or part, directly or indirectly, from a software of hardware used in conjunction and/or in addition with the Hardware, and more generally from any system not provided by FITTINGBOX and/or installed by the Client or a Third Party without prior express authorization and instructions from FITTINGBOX.
Without prejudice to the Intellectual Property rights of FITTINGBOX, and unless leasing or financial renting expressly specified in the Order Form and agreed by FITTINGBOX, the physical property of the Hardware is conveyed to the Client upon full payment of the fees mentioned in section 9. The conveyance of property over the Hardware shall not be construed as transferring to the Client any Intellectual Property rights on all or part of the Solutions or MyFittingBox or Fittingbox Database or their documentation, in any way whatsoever. The terms of delivery for the Hardware are DAP ("Delivered At Place"), DAP is a 2011 Incoterm (international commerce term). The Parties may mutually agree to an alternative method of delivery. The transfer of risks relating to the Hardware shall take place at the delivery date of the Hardware to the Client and until their return in good working order to FITTINBOX whenever applicable.
The Client shall check the proper functioning of the Hardware at its delivery; notwithstanding the warranty set forth in Section 2.1, any claim related to a Hardware provided by FITTINGBOX, either missing or defective, shall be reported to FITTINGBOX by written in a maximum of 10-days period following its delivery on the Granted Site.
In the event of any supply problem (i.e. stock shortage, market withdrawal, etc.), FITTINGBOX will make its best effort to provide an equivalent hardware within a reasonable period of time. In the event that the supplied Hardware is found to be defective, FITTINGBOX will make its best efforts to replace such Hardware within a reasonable period of time following notification of failure by the Client to FITTINGBOX within the manufacturer's warranty on such Hardware and provided that such notification takes place within a maximum period of ten (10) calendar days following the delivery date, or following the date that the Client became aware of the related malfunction if it can be satisfactorily proven by the Client than this date came after the delivery date.
In the event that, under this warranty, replacement hardware is provided by FITTINGBOX to the Client, the Client expressly and irrevocably agrees to uninstall the old Hardware and install the new Hardware in accordance with the instructions of FITTINGBOX and/or its partners. If applicable, the freight costs incurred by FITTINGBOX for the replacement of the defective Hardware will be re-invoiced identically to the Client.
In order to facilitate return management and transport in the best conditions, the Hardware shall be returned in its original packaging. FITTINGBOX cannot guarantee the application of this warranty if the Hardware provided by FITTINGBOX is returned without its original packaging.
The Hardware, and as the case may be the additional peripheral provided by FITTINGBOX, can not be moved or removed without FITTINGBOX prior express authorization; As the case may be, the removal or relocation of the Hardware is borne by the CLIENT, at its own costs and risks.
4.3 Specific conditions for Owiz Web (if applicable)
Unless otherwise expressively mentioned in the Order Form, OWIZ Web (the “Website”) is necessarily provided as an additional service to the Solutions. The Website consists in the provision of a tool enabling the CLIENT to compose the website of his optical store himself with several tabs (e.g. home, news, store, our brands, virtual mirror, your eyesight, our differences and plan & contact). The Website shall, in particular, enable the creation of printable promotional coupons (without restriction on the number of impressions). It is reminded that the CLIENT is solely responsible for the Content of the Website, and in particular with the Selection and any promotional offers and the legal notices associated or related to its business activity.
- FITTINGBOX undertakes to reserve the domain name chosen by the CLIENT, subject to any availability and provided that the CLIENT warrants its lawfulness, except where the structure of the domain name or subdomain name is already defined in the terms and conditions of membership to a network (including a logo) or its policy, of which the CLIENT is a member or if the reservation is in breach thereof.
- If the CLIENT is no longer a member of the network (including the logo or commercial sign or name of such network) during the term of the Agreement, FITTINGBOX may change the domain name in order to comply with the rights of the network (including the logo and/or the commercial sign) and in particular with regard of the Intellectual Property rights of such network.
- If the CLIENT already has an existing domain name and, as the case may be, an existing website with this domain name, and wishes to have the Website available on this domain name in replacement of his former website, FITTINGBOX undertakes to transfer the domain name in consideration for a lump sum of eighty (80) Euros excluding tax, notably covering the administrative costs, and provided to clause 3 a) above.
- FITTINGBOX shall not make any backup of the former website of the CLIENT. Consequently, the CLIENT shall not be able to recover his former website through FITTINGBOX. Optionally, a backup may be requested by the CLIENT to FITTINGBOX as an Additional service. FITTINGBOX reserves the right to accept or refuse any related request about it, at its sole discretion. If accepted by FITTINGBOX, this Additional service will be invoiced in addition to any other billing issued by FITTINGBOX.
Characteristics and functionalities:
The following elements form an integral part of the Content:
- The presentation texts that the CLIENT has put on the Website to promote his sales outlet, as well as any additional information;
- The other customisable elements composing the Website, and in particular its homepage;
- The comments and remarks that the CLIENT may associate with the brands composing the Selection and the choice of domain name of the Website, provided to clause 3 a) above; and
- The advertisements and/or sales animation.
The CLIENT may offer to the Website’s users the virtual on-line service based on the technology developed by FITTINGBOX, by using a photograph and/or in real time, as the case may be and depending of the browser and/or the operating system used by the end user, to try on spectacles.
Visuals of spectacles of the brands which the CLIENT has declared available for purchase at his store (either online or physical) may be placed in various locations of the Website. These visuals will be issued from Fittingbox Database. The end users of the Website shall be required to contact the CLIENT to check the availability of Solutions. FITTINGBOX shall not be liable for the lack of availability of a product which happens to be displayed on the Website.
The CLIENT expressly authorises FITTINGBOX to geo-locate the store(s) of the CLIENT.
The referencing service consists in having the Website indexed by the main search engines (Google, Yahoo and Bing). FITTINGBOX shall make its reasonable best efforts for the Website to be indexed by search tools. FITTINGBOX cannot warrant that the Website shall be properly indexed by all search engines as a result of their current developments, reactivity or offers of referencing for financial consideration.
Considering the constant evolution of search engines, FITTINGBOX cannot give any undertaking as to the positioning of the Website in search engines for any enquiry.
Termination of the Agreement:
The CLIENT is not the owner of the Website. The hosting service of the Website shall end on expiry of the Agreement. The Website shall no longer be available (either online and offline) and FITTINGBOX shall not renew or keep the domain name related to such website.
If the CLIENT wishes it, and if feasible, the domain name may be sold to him in consideration of a flat rate payment of 80 Euro (on the USD equivalent, depending on the currency mentioned in the Order form) applicable taxes excluded; this flat rate amount covers the administrative costs of transferring the domain name. Upon termination date, FITTINGBOX shall be entitled to delete the Content(s).
FITTINGBOX shall not make any backup of the Website and its Content, or the statistical data, and does not warrant any reversibility of the Website and its Content. Consequently, the CLIENT shall not be able to recover the Website and its Content on termination of the Agreement.
4.4 Specific conditions for Fittingbox Visio (if applicable)
Fittingbox Visio (the “Platform”) is a videoconferencing web platform (i) enabling a connection between the CLIENT – of members of its network – and end customer, (ii) implementing a virtual waiting room and, as the case may be, (iii) implementing or linking to Solutions.
The DNS and the URL(s) of the Platform are chosen and set by FITTINGBOX only and are part of FITTINGBOX’s Intellectual Property rights. Under no circumstance may the CLIENT request the modification or the customization or the transfer of such DNS or URL, including their sub-domains if any.
The Platform may implement an appointment organization add-on through an unique URL link. Such URL link shall be sent to an end customer following an appointment request or proposal with the CLIENT. The appointment request of an end customer is made on the CLIENT’s own website or any other organization tool used by the CLIENT. The Platform does not implement any add-on or functionality managing the CLIENT’s agenda or calendar. The unique URL link provided allows the end customers to access the Platform, subject to their acceptance of the related EULA.
The Platform does not allow the exchange of documents, whatever they are, not the purchase of any optical products. Such transactions shall be operated directly between the CLIENT and the end customers, independently of the use of the Platform.
Visuals of spectacles of the brands which the CLIENT has declared available for purchase at his store (either online or physical) may be placed in various locations of the Platform or the Solutions linked to the Platform. These visuals will be issued from Fittingbox Database. The end users of the Platform shall be required to contact the CLIENT to check the availability of Solutions. FITTINGBOX shall not be liable for the lack of availability of a product which happens to be displayed on or via the Platform.
It is stressed that the Platform is not designed or intended for medical or therapeutical purposes.
The CLIENT shall be responsible for organizing the meeting with the end users. The CLIENT shall also be liable for the content of the exchanges or discussions to intervene with the end customers; therefore, the CLIENT shall discharges FITTINGBOX from all liability and shall hold FITTINGBOX harmless from any claims from Third-Parties, including from the end customer, in the application of this warranty.
5. OBLIGATIONS OF THE PARTIES
5.1 Obligations of FITTINGBOX
Access & hosting for Solutions:
FITTINGBOX shall supply Solutions to the CLIENT under the terms of the Agreement. Whenever applicable, it is stressed that CLIENT is solely liable of the choice of its Internet provider and of payment of the related service.
FITTINGBOX shall ensure the access to Solutions by:
- providing the URL links and/or the implementation codes, whenever applicable;
- communicating of the appropriate access codes for the solutions and/or MyFittingBox (hereinafter the "Identification Code").
Unless otherwise expressively mentioned in the Order form, the License is deemed to be effective at the provision by FITTINGBOX of the Identification or activation codes of the related Solution(s).
FITTINGBOX or the Third Party in charge of the hosting service, as the case may be, shall make reasonable efforts to keep the Solutions accessible and in operative conditions.
FITTINGBOX shall have an obligation of means only in providing the Solutions and their related services, including the maintenance services. The CLIENT agrees that access to the Solutions may be suspended without FITTINGBOX incurring liability as a result, in particular in the event of malfunctioning or the temporary suspension of access to the Solutions, 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. FITTINGBOX reserves the right to suspend or revoke the License or the access to the Solutions and/or MyFittingBox and/or Fittingbox Database if the CLIENT is in breach of any of its obligations, and in particular if the Content or 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 3.
Support and assistance:
FITTINGBOX shall provide standard support related to the Solutions in a timely manner following a request from the CLIENT, by telephone or to the e-mail address email@example.com
, at no extra cost for the Client, during business hours of FITTINGBOX (from Monday to Friday from 9 a.m. to 6 p.m., GMT+1, excluding the holidays), and subject to the undertakings given by the agreed partner of FITINGBOX, if any, which may provide level 1 support to the CLIENT.
It is also stressed that FITTINGBOX reserves the exclusive right to intervene on the Solutions and/or MyFittingBox, including for maintenance or interoperability operations.
5.2 Obligations of the CLIENT
The Client shall be responsible for the use of the Solutions subscribed, and/or the Hardware provided by FITTINGBOX if any, according to their regular usage, their documentation and according to the terms and conditions of this Agreement.
The CLIENT undertakes to implement and use the Solutions accordingly to their documentation and the instructions or directives of FITTINGBOX and/or its agreed partners, being specified that such instructions or directives might be provided by an online module. It is stressed that the CLIENT is solely liable for the implementation operations of the Solutions; under no circumstances FITTINGBOX may be required or forced to replace the CLIENT on such matter. As the case may be, and if FITTINGBOX has expressively agreed to provide Additional services for such implementation, the CLIENT shall be invoiced at the applicable scale prices of FITTINGBOX. In any case, and unless expressively set forth in the Order Form, the implementation of the Solutions shall be deemed effective three (3) months maximum after the provision by FITTINGBOX of the access or activation or Identification codes related to such Solutions.
Whenever applicable, the CLIENT undertakes to comply with the EULA, and to make the end customers comply with it.
The CLIENT undertakes not to use the Solutions in any manner not expressly authorised herein, in particular any representation, translation, communication to a Third Party or any distribution, marketing, sale, hire, assignment, sublicense, loan, in direct or indirect form, or gratuitously or for value.
The CLIENT undertakes to take any appropriate measures to ensure that its employees and any other persons who are under its authority or having access to the Solutions are complying the terms and conditions resulting from the Agreement.
The CLIENT shall take all necessary measures to prevent any unauthorized access or use of the Solutions and/or any use that may interfere with or disrupt or diminish the integrity or performance of the Solutions, or any solution that may be provided by FITTINGBOX and/ot its agreed partners. The Client undertakes, in particular, not to allow anybody to use all or part of the Solutions and/or MyFittingBox in order to derive its source code or to alter it or adapt it completely or partially. The Client shall take immediate steps to prevent such uses and shall immediately notify in written FITTINGBOX of them. The CLIENT undertakes not to reverse engineer, decompile or disassemble the Smart Solutions and/or MyFittingBox, 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.
The CLIENT undertakes not to extract all or material parts of Fittingbox Database or to extract on a regular basis parts of such database and its contents which are not material without the express and prior authorization of FITTINGBOX. Under no circumstances the CLIENT may be allowed to use or re-use the Photographs and/or the VTO frames and/or the related Metadata, directly or indirectly, in any manner whatsoever, in order to create or enrich a competitive database, and in particular for distribution and/or commercial purposes.
Any use of the Solutions and/or MyFittingBox and/or Fittingbox Database by an unauthorized Third Party shall constitute a counterfeiting act, allowing FITTINGBOX to proceed to immediate termination of this Agreement as of right, and without prejudice to any damages FITTINGBOX may claim. Similarly, and unless the prior and express authorization of FITTINGBOX, any use of the Solution that could parasite or compete, directly or indirectly, in any manner whatsoever and including through ASP/SaaS or service bureau models, with the solutions and/or any solutions or services provided or commercialized by FITTINGBOX shall constitute a counterfeiting act, allowing FITTINGBOX to proceed to immediate termination of this Agreement as of right, and without prejudice to any damages FITTINGBOX may claim.
The CLIENT shall take immediate steps to prevent and/or confine such actions and shall immediately notify in written FITTINGBOX of them.
The CLIENT undertakes to install any update or patch provided by FITTINGBOX in relation with the Solutions and/or MyFittingBox. The CLIENT shall never have more than 1 gap with the last update or patch provided by FITTINGBOX.
The Identification Code is under the sole responsibility of the CLIENT. It constitutes a means of authentication of the CLIENT and proof of identity. Any access using the Identifying Code is deemed to be made by the CLIENT.
The CLIENT shall be solely liable the consequences of a malfunction of the Solutions due to any use by members of its staff or by any other person to whom the CLIENT may have provided the Identification Code.
The CLIENT shall take all measures required to back up the Content. FITTINGBOX does not provide any backup or reversibility of the Content.
The Client is aware and irrevocably accept that the undertakings set forth in this article 5.2, as well as those set forth in articles 6.2, 10 and 11, are decisive and substantial conditions of this Agreement. Any breach or failure by the Client of theses undertaking may lead to the immediate termination of the Agreement, without prejudice to any remedies or damages FITTINGBOX may claim.
6.1 Warranties of FITTINGBOX
The Solutions, the Hardware if any, as well as any component thereof, are provided "as is" without any representation or warranty of any kind, express or implied, statutory, or otherwise, including but not limited to its continued operation, performance, merchantability or fitness for a particular purpose particular. FITTINGBOX makes no commitment to the evolution of the Solutions and / or MyFittingBox, not to any adaptation of these to the current or future requirements of the Client. FITTINGBOX cannot guarantee that the Solutions will be error free or will work continuously.
FITTINGBOX does not warrant that the Solutions and/or MyFittingBox and/or the Hardware shall operate without interruption or error or that it shall meet the expectations or requirements of the Client or that they shall operate with any combination of elements selected by the Client. For the avoidance of doubt, FITTINGBOX does not provide any training or maintenance services under this Agreement, unless expressly mentioned in the Order Form.
The Client acknowledges and agrees that the Solutions and MyFittingBox are standard solutions that are not intended to meet the specific needs or requirements the of Client. The Client declares having received full and accurate information about the functionality of the Solutions and that it has subscribed under the Agreement with full background knowledge.
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 Solutions or MyFittingBox or the Hardware, or the defects, non-conformities of bugs which, as a consequence, may affect the Solutions and/or MyFittingBox and/or the Hardware or any other hardware or software, and more generally on any system; under no circumstances FITTINGBOX will be liable for any related direct or indirect consequence.
The CLIENT is aware of the material and environmental configuration requirements (compatible hardware and peripheral devices, Internet network, Wi-Fi etc.) to have the Solutions and/or MyFittingBox and/or the Hardware as the case may be function properly and undertakes to set up and maintain them at his cost throughout the entire term of this Agreement and the renewal periods thereof, including in the event of the evolution of these requirements which he will be informed of by FITTINGBOX and/or any network operator and/or supplier of the Level 1 support, as the case may be.
The CLIENT is aware and irrevocably accepts that the efficient access and use of the Solutions are intrinsically linked to the Address. Consequently, any move or relocation of Solutions may result in a lack or a loss of access of the related Solutions. FITTINGBOX reserves the right to discretionary refuse its authorization to such move or relocation. As the case may be, the removal or relocation of the Solutions shall be borne by the CLIENT, at its own costs and risks.
The CLIENT is aware and irrevocably accepts that the efficient access and use of the Solutions and MyFittingBox and Fittingbox Database requires a non-restricted access to the Internet. Therefore, the Solutions and/or MyFittingBox shall 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.
The CLIENT is aware and accepts that any disrespect of such requirements may result in degraded operation or malfunction of the Solutions and/or MyFittingBox; in no event will FITTINGBOX be liable for such disrespect and their consequences.
All the guaranties or warranties granted by FITTINGBOX are expressively set forth in these GTLU. Save as expressly provided in this section 6.1 hereunder, 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 refuses all guarantees, of whatever document, to which it has not expressly agreed, or which would be required by a Third Party. FITTINGBOX will refuse any warranty 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 Solutions, and more generally from any system not provided by FITTINGBOX and/or installed by the CLIENT or a Third Party without prior express authorization and instructions from FITTINGBOX.
6.2 Warranties of the CLIENT
The Client warrants and represents that (i) it has the full power and authority to enter into this Agreement and perform its obligations under this Agreement; (ii) it will respect any and all FITTINGBOX’s Intellectual Property rights; (iii) it will comply with all laws, statutes and regulations applicable to its activities; (iii) it shall take all necessary measures to prevent any unauthorized use of the Solutions and/or MyFittingBox and/or Fittingbox Database and/or any use that may interfere with or disrupt their integrity or performance; and (iv) it will not bash or denigrate FITTINGBOX and/or its Affiliates and/or any FITTINGBOX’s product and service, including the Solutions and/or Fittingbox Database and/or MyFittingBox, in any manner whatsoever, throughout the performance of the Agreement and after its termination for any reason whatsoever.
The CLIENT is and remains solely liable for determining the Content, i.e. any element, in any form whatsoever, placed by the CLIENT on a Solution, and in particular the Selection which it has chosen to display through the Smart Solutions. The CLIENT notably warrants to FITTINGBOX that:
- the creation, dissemination, use and operation of the Content is lawful, in compliance with public policy and good moral standards, and compliant with current regulations;
- the Selection and the Content do not infringe the intellectual and/or industrial rights of Third Parties, in particular to the brands and models and authors' rights to the frames selected in the Selection and displayed through the Solutions;
- it has procured any authorisation required from the legitimate holders to display, promote and/or market the brands and frames issued from the Selection, and shall maintain such authorisation up to date throughout the entire term of the Agreement;
- If the CLIENT is a member of a network of opticians, that the Content and the name of the website comply with the terms of conditions of membership and the policies of the network (including the logo).
FITTINGBOX may block access to the Selection or the Content immediately, without affecting the performance of the Agreement and without incurring any liability, in case such Content or Selection Content infringes – or constitutes a risk to infringe - the Intellectual Property rights of Third Parties.
The Client shall indemnify and save harmless FITTINGBOX, its affiliates, directors, officers and/or employees, 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 warranties under this section 6.2, or the Agreement. Therefore, the Client shall bear any direct and indirect damages or indemnities (including legal and/or procedural, expertise costs and fees) incurred by FITTINGBOX as a result of such breach or negligence. If FITTINGBOX employs attorneys to enforce any rights arising out of or relating to this Agreement, FITTINGBOX may be entitled to recover its reasonable attorneys' fees, costs and other expenses, including the costs and fees incurred on appeal or in a bankruptcy or similar action.
7. LIABILITIES - LIMITATION
Each Party shall be responsible for the proper performance of its required actions and its own obligations under the Agreement.
FITTINGBOX is only held by a best-effort obligation under the performance of the Agreement.
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 Solutions. FITTINGBOX is not liable for any deterioration or destruction of the information, programmes, files, databases etc. which may occur subsequently to the use of the Solutions. The CLIENT must take all appropriate security measures beforehand and set up all the procedures required for the protection of its own information, programmes, files, databases etc., notably in terms of viruses, worms, Trojan horses and other kinds of computer attacks.
The liability of FITTINGBOX can only be engaged in the event of serious and proven fault. The burden of proof is borne by the CLIENT.
The CLIENT is solely responsible for the adequacy of the Smart Solutions subscribed to its requirements and professional needs.
It is reminded that the CLIENT is solely liable for the Content and the Selection and discharges FITTINGBOX from all liability and shall hold FITTINGBOX harmless from any claims, including from Third Parties, due to the Content or the Client Selection. The Client shall hold FITTINGBOX harmless from any claims, including from Third Parties, due to the content of the Content and/or the Selection and undertakes therefore 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 in connection with the content and/or the Selection.
Each Party shall take out insurance with a leading insurance company to cover any liability which it may incur in relation to its own business activities and the Agreement.
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 an inertia or a negligence of the CLIENT.
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, loss of data, loss of profits, business interruption, loss of business information, or any other pecuniary loss) arising out the performance of this Agreement and/or the delivery or the activation or the use of Solutions and their related services.
If the liability of FITTINGBOX is incurred for any reason whatsoever in relation to the Agreement, including on the grounds of Clause 8 hereunder, it is expressly limited to the direct loss incurred by the CLIENT and the maximum amount of compensation for all causes together shall not exceed the amount actually paid in the last six months by CLIENT, VAT excluded, for the Solution or the service or the Additional service that caused the damage and provided that there is a clear and direct link between such Product or Service and the occurred damage.
The Parties expressly agree that should any limitation or provision of this Section 7 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.
8. INTELLECTUAL PROPERTY
FITTINGBOX holds and retains all Intellectual Property rights directly or indirectly related to the performance of this Agreement. 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 this Agreement. In particular, all the Intellectual property rights to the Solutions and/or MyFittingBox and/or Fittingbox Database, including the underlying technology and architecture and/or content, are and shall remain the exclusive property of FITTINGBOX or the Third Party who granted all or part of the rights to FITTINGBOX. 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 critically damage FITTINGBOX. Therefore, the Client shall respect all Intellectual Property rights belonging to FITTINGBOX or its Affiliates during the legal protection term of these rights. The Client undertakes not to modify and/or the notices related to the physical and/or the 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 in 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.
Subject to the CLIENT’s observing and performing all of its obligations under the performance of this Agreement, FITTINGBOX grants the CLIENT a License. The License granted allows the CLIENT to access and use Solutions and/or MyFittingBox and/or the content of Fittingbox Database, in their standard version as existing at the signature date of the Order Form. The License also includes the standard corrective, adaptive and/or progressive maintenance of the Solutions and MyFittingBox, as long the Agreement is not terminated or the License is not revoked. The License is granted in object code format only. Unless otherwise expressly mentioned in the Order Form, the License is granted for the duration of the Agreement, for the Site and/or within the limited territory set forth in the Order Form, solely. This Agreement, because its execution and/or termination, for any reason whatsoever, does not grant the Client and/or any Third Party any other Intellectual Property rights.
In the event that FITTINGBOX expressively authorizes a Third Party to use and/or access the Solutions and/or MyFittingBox and/or Fittingbox Database, 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 GTLU. 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 this 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.
FITTINGBOX represents and warrants that it is fully vested with the Intellectual Property rights required for the performance of the Agreement. In particular, FITTINGBOX warrants that it has the full power and authority to grant Licences under the performance of the Agreement.
Therefore, FITTINGBOX warrants that, in case it is sued by a Third Party for a breach of copyright which would be allegedly attributable to the Solutions and/or MyFittingBox, FITTINGBOX shall defend the Client against such claims, provided that (i) the Client informs immediately FITTINGBOX in written of the alleged breach; and (ii) the claim does not result from software and/or hardware and/or other equipment not provided by FITTINGBOX and used in conjunction with the Solutions and/or MyFittingBox; and (iii) such claim is not related to a breach by the Client of this Agreement or an unauthorized access or modification of the Solutions and/or MyFittingBox and/or Fittingbox Database; and (iv) FITTINGBOX has the sole control of the defence and all related settlement negotiations; and (v) the Client accepts the intervention of FITTINGBOX and co-operates to the resolution or settlement, if applicable, of an possible dispute. FITTINGBOX shall only bear the proceedings costs or payments that it has expressly agreed to in written. FITTINGBOX shall not be liable for any claim or action for infringement resulting from: (a) any unauthorized modification or access to the Software and / or MyFittingBox, or (b) breach or negligence on the part of the Client or any Third Party which had contributed to the damage or the claim or the action.
If, during a three (3) year period following the effective date of the Agreement, the Solutions and/or MyFittingBox is held or is believed by FITTINGBOX to infringe a Third Party’s intellectual property right, FITTINGBOX shall have the option, at its sole discretion and expense, to modify such element to be non-infringing or obtain for the Client a license to continue using it; If it is not technically feasible at a reasonable cost and/or deadline, then FITTINGBOX may terminate the License and refund the License fee paid, in a pro-rata basis taking in consideration the period of effective use. The indemnification of the Client is limited, in any case, to the sums paid by the Client for acquiring the License.
Any unauthorized or non-compliant use of the Solutions and/or MyFittingBox and/or the content of Fittingbox Database 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, and without prejudice to any remedies, damages and/or other rights that may be claimed by FITTINGBOX. 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.
In case of any failure or breach of this section 8, for any reason whatsoever and including by negligence: (i) FITTINGBOX shall be entitled to immediately revoke the access to the Solutions and/or MyFittingBox and/or Fittingbox Database and/or terminate this 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 FITTINGBOX may claim in result of such breach; (ii) the Client shall indemnify FITTINGBOX up to the incurred loss and reimburse any profit and/or savings eventually earned by breaching this obligation and (iii) the Client shall fully indemnify FITTINGBOX against all direct and indirect loss, damage, cost and expense which may be incurred by FITTINGBOX by reason of infringement of its Intellectual Property rights.
9. PRICE AND PAYMENT TERMS
The CLIENT is aware and irrevocably accepts that the 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 and any third person.
The CLIENT is aware and irrevocably accepts that this Section 9 may supersede to the invoicing sections of the general terms of sale of the agreed partner of FITTINGBOX, in case of failure of such partner.
If the CLIENT is a member of a network, the CLIENT gives his authorisation to FITTINGBOX to send the invoices of the CLIENT in relation to this Agreement to such network (including the commercial brand, sign or name of such network). The CLIENT remains solely responsible for the payment of its invoices towards FITTINGBOX.
The prices and terms of payment for the Setup, Solutions and the Hardware, whenever applicable, 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.
It is stressed that the License fee may vary depending on the category of the CLIENT, as mentioned in the order form as the case may be. Such category can be determined by the market situation of the CLIENT or its website traffic, for instance. In case of a change of category during the performance of the Agreement, and unless otherwise expressed in the Order Form, FITTINGBOX shall be entitled to apply the License fee related to such change of category, at any time and at its sole discretion.
Under no circumstances, FITTINGBOX could be requested to refund any payment made by the CLIENT under the Agreement.
The CLIENT recognises 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.
The Client may request Additional or specific services from FITTINGBOX. A separate quotation an Order Form shall be issued for any request of this kind. FITTINGBOX reserves the right to refuse to perform such Additional services requested by the Client, either standard or specific, at its sole discretion and without having to justify its decision. If any, FITTINGBOX’s consent will result in the issuance of a quote and a separate Order Form.
9.2 Price on renewal
Unless leasing or financial renting expressly specified in the Order Form and agreed by FITTINGBOX, the Setup fees and the Hardware fees provided by FITTINGBOX are payable by the Client only once, upfront at the signature of the Agreement and independently of the License and/or other service fees. Unless Additional services subscribed by the Client, only Licence fees are payable at the renewal of the Agreement, but without the initial rebate provided for the initial term of the Agreement as stated on the Order Form, if any.
FITTINGBOX reserves the right to review the applicable fees set forth in the Order Form, at each anniversary date of the Agreement, up to a maximum of the variation in the SYNTEC index.
Unless otherwise provided in the Order Form:
- The Solutions shall be paid according to the terms set out in the Order Form, by SEPA direct debit or by credit/debit card. Unless otherwise provided in the Order form, the Setup is invoiced at the signature date of the Agreement and invoicing for the Solutions shall begin on the 1st of the month following the communication of the Identification Code.
- The Setup and the Hardware fees are payable cash at the signature of the Order Form.
- The License fee shall be paid within 30 days of the invoice date. The invoicing of the License shall begin at the provision of the Identification Code.
No rebate shall be applied in the event of early payment.
If the CLIENT fails to pay when due and/or in case of a deterioration or downgrading of the CLIENT’ 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, simply by sending a written notification to the CLIENT.
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).
In the event of failure to pay when due, FITTINGBOX reserves the right to suspend or revoke access to the Solutions and/or MyFittingBox and/or any part of Fittingbox Database including the Selection simply by sending a written notification to the CLIENT and until complete payment, without prejudice to any damages FITTINGBOX may claim and without prejudice to its right to terminate this Agreement according to the procedures set out in Clause 3.
10. CONFIDENTIALITY & NON-DISCLOSURE UNDERTAKING
Each Party agrees and undertakes to keep as confidential all the Confidential Information concerning the other Party, the Solutions 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 Party also 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 cause whatsoever, the Parties shall return all information and documents relating to the other Party and transmitted to the latter under the Agreement, without Legal and regulatory requirements, as soon as possible. In addition, the Parties shall cease all activities in connection with such documents and information.
The CLIENT acknowledges that any breach of this Section 10 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.
11. DATA PRIVACY
Each Party undertakes to comply with 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 EU-U.S. and the Swiss-U.S. Privacy Shield, the US Health Insurance Portability and Accountability Act of 1996, the California Online Privacy Protection Act of 2004, The California Shine the Light Act of 2005, the Illinois' Biometric Privacy Act of 2008, the US Health Information Technology for Economic and Clinical Health of 2009, the US CCPA of 2020, and any similar laws and regulations, as applicable, as amended, and take any administrative measures required of.
The CLIENT is aware and irrevocably accepts that FITTINGBOX reserves the right to collect Big Data (i.e. (aggregated anonymous data) within the performance of the Agreement. FITTINGBOX is entitled to use and exploit such Big Data, for or without consideration, notably for statistics and/or analysis purposes.
According to the applicable Data Protection Regulations, the CLIENT - and the end-users of the Solutions as the case may be - may exercise their right of access to and rectification of all of their personal data. The CLIENT can contact FITTINGBOX by sending an email at firstname.lastname@example.org
12.1 Entire agreement
This Agreement contains the entire agreement and understanding between the Parties relating to the subject matter hereof, and supersedes all other prior agreements and understandings, both written and oral, between the Parties with respect to such subject matter. Under no circumstances may the Client’s order form or general terms and conditions, if any, be enforced on FITTINGBOX; the Parties are bound only by the terms and conditions set forth in this Agreement.
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.
This Agreement may not be modified or amended except by a written instrument that shall be effective after the authorized representative of each of the Parties have signed it.
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. 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. Within the framework of its activity, each Party shall act independently and shall deal personally with all legal, social and fiscal provisions.
12.6 Assignment / Subcontracting
The CLIENT may not assign or transfer the Agreement or its rights and obligations, in whole or in part, what the duration and/or importance could be, without the prior express and written consent of FITTINGBOX.
FITTINGBOX reserves the right to refuse this agreement at its own discretion. In any event, the actual assignment of the Agreement will be valid only if it is the subject of an endorsement or a new agreement signed between FITTINGBOX and the transferee. As a key requirement for such acceptance, FITTINGBOX reserves the right to delimit the geographical area, even within the territory in which the License is granted, in order to preserve its intellectual property rights. Unless otherwise expressly agreed by FITTINGBOX (i) the transferor (the Client) and the transferee are jointly and severally liable for the terms and conditions of the License; (ii) the totality of the CLIENT contribution fees to FITTINGBOX, prior to the assignment of the Agreement, remains the responsibility of the CLIENT.
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. Similarly, a change of control of the shareholder structure of FITTINGBOX, or the transfer of all or part of FITTINGBOX to a Third Party may be carried out without the approval of the CLIENT. This Agreement shall automatically survive with the new legal person that substitutes FITTINGBOX, without entitling the CLIENT to terminate the Agreement.
FITTINGBOX reserves the right to subcontract all or part of its services. In the event of subcontracting, FITTINGBOX remains solely responsible to the Client for the proper performance of the services.
12.7 Communication & Commercial indexing
For the duration of this 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 CLIENT ; to such end, FITTINGBOX shall be authorized to use and reproduce the distinctive brands of the CLIENT, including its name, logo(s) brands, trade names, 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.
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 this Agreement, the CLIENT shall not, directly or indirectly, solicit for employment any person employed by or under contract with FITTINGBOX, 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 two (2) year of the gross salary of the person hired by the CLIENT, and without prejudice to any other damages or remedies that FITTINGBOX may claim.
In case of difficulties relating to the execution of this Agreement, and before any judicial proceeding, the Parties agree to designate two representatives among their “Executive Officers”. These persons shall meet, on the initiative of the most diligent Party, within eight (8) days from the receipt of the letter requesting the conciliation meeting. The agenda is determined by the party which takes the initiative of the conciliation. The decisions, if agreed by mutual consent, shall be deemed to have a contractual value.
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 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 HEREBY GIVES 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.
Copyright FITTINGBOX – October 2021