”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” shall mean these General Terms and Conditions, the Specific Terms and Conditions and their exhibits, if any. By signing the Specific Terms and Conditions and/or by using the Services, the Client expressly and unreservedly and irrevocably agrees to the terms and conditions contains in these documents, 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, in their entirety. These terms constitute binding and enforceable obligation on the Client.In the event of any conflict or inconsistency between these documents, the General Terms and Conditions shall prevail in any circumstances.
”API” shall mean the application programming interface that can be provided by FITTINGBOX to the Client for configuring and parameterizing a Solution.
"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 Intangible Elements and/or the Solutions.
“Client” means the purchaser of the Services, as designated in the STC.
"Confidential Information" shall mean any information related to this Agreement or a party, whether products, commercial, financial, technical, operational or otherwise, in any format, disclosed by or on behalf of a party in connection with this Agreement which by its nature is clearly confidential (whether or not that information is marked or designated as confidential or proprietary), whether disclosed orally, in documentary form, by demonstration or otherwise. The Agreement and the Intangible Elements (including but not limited to their structure, content or Documentation) are also considered as Confidential Information by nature.
”Documentation” shall mean the documentation that may be provided by FITTINGBOX in relation with its Solutions and Services.
”Elements” shall mean, as the case may be, the deliverables and/or any immaterial elements (including the API or the SDK) that may be provided by FITTINGBOX under the performance of the Agreement, and expressively mentioned in the Specific Terms and Conditions.
“Fittingbox Database” means the database created and enriched by FITTINGBOX, containing Photographs (high-definition images in 2D) and VTO Frames (digital modeling of glasses, in 3D and/or virtual try-on), as well as any related data and meta-data. If applicable, it is stressed that the Client can access to the frames contained in Fittingbox Database only accordingly to the License granted under the Agreement.
“General Terms and Conditions” or “GTC” means this document and its further updates or modification. The Client is aware and irrevocably accepts that others FITTINGBOX’s products and services, and in particular the virtual try-on and optical Solutions and/or the digitization or advertising services, are governed by dedicated general terms and conditions. These General Terms and Conditions may be modified from time to time by FITTINGBOX, at its sole discretion. The last version of these GTC are accessible at https://www.fittingbox.com/general-terms-services-sdk-api. In the event of any inconsistency with a translated version of these GTC, and with exception to the French version, the English version of the GTLU shall prevail in any circumstance; any version of the GTC other than French and English is for reference purposes only.
”Granted Site(s)” shall mean, whenever applicable, the premises or the website(s) exploited by the Client, as strictly mentioned in the Specific Terms and Conditions, and with exclusion to any relocation and/or declension and/or extension.
“Intellectual Property” means any and all intellectual property rights including but not limited to patents, trademarks, copyright, moral rights, service marks, design rights (registered or not), applications for any of the foregoing, copyrights, data rights, technique, know-how, trade or business names and/or logo, domain names, drawings, computer software, data and related documentation, flow charts, diagrams, descriptive texts and programs, computer printouts, databases, and all other intellectual property rights with equivalent or similar protection anywhere around the world, whether such rights are registered or unregistered and including the goodwill attaching to such rights and the right to apply for any such rights.
”License” shall mean the non-exclusive, non-transferable, non-assignable and revocable right to use the Elements granted by FITTINGBOX to CLIENT according to the terms of section 7.2. As the case may be, the License granted under the performance of the Agreement may include a right to access and use MyFittingBox and/or the content of Fittingbox Database, in their version existing at the signature date of the Agreement.
“MyFittingBox” shall mean the back-office interface developed by FITTINGBOX, allowing the Client to access to a Solution and/or Fittingbox Database, if applicable.
“Services” shall mean the services exhaustively set forth in the STC in relation - or not - with the Elements provided by FITTINGBOX in connection with this Agreement. By way of example, the Services may target (i) R&D and/or feasibility and/or impact and/or proof of concept studies, (ii) parametering and/or customization and/or development services, (iii) assistance, implementation and/or maintenance services. Unless otherwise expressively agreed by FITTINGBOX, the performance of the Services does not grant the Client and/or any Third Party any Intellectual Property rights on the Elements or deliverables that might be realized by FITTINGBOX or their potential derivative works; for the avoidance of doubt, the Intellectual Property rights may be conveyed to the Client only (i) if expressively mentioned in the STC and (ii) in case of specific developments realized by FITTINGBOX, being specified that such specific developments shall have to be usable independently of Fittingbox’ services and/or solutions or, as a general rule, of any Intellectual Property rights hold by FITTINGBOX and/or its Affiliates.
“Setup” shall mean, as the case may, the installation, configuration, activation services and/or the provision of the identification codes related to the Elements, whenever applicable. The Setup fee, if any, is payable by the Client only once, at the signature of the Agreement and independently of the Licenses or Services fees.
“SDK” shall mean the software development kit based on a Solution, that may be provided by FITTINGBOX under the performance of the Agreement and allowing the development by the Client of a virtual try-on or measurement software or application based on a Solution, with respect to all and any FITTINGBOX’s Intellectual Property rights.
“Solution(s)” shall mean the software(s) edited and licensed by FITTINGBOX and/or its authorized partners, with exclusion to any other products and/or services of FITTINGBOX. The Solution may be an in-store or online solution (i) allowing to virtually try on optical frames and/or sunglasses and/or (ii) enabling to measure pupillary distance (PD) of an end-user and/or (iii) allowing the development of a virtual try-on software or application. As the case may be, a limited, non-exhaustive, non-transferable and revocable license to use the Solution strictly mentioned in the STC may be granted to the Client; If so, the Client is aware and irrevocably accepts that the terms and conditions of use of such Solution are governed by dedicated terms and conditions that may be found at https://www.fittingbox.com/en/legal-information, and amended from time to time, at FITTINGBOX’s sole discretion.
“Specific Terms and Conditions” or ‘STC” shall mean the document qualified as a purchase order which complete these General Terms and Conditions and detail the specific conditions of the Agreement, such as the designation of the Client, the financial proposal of FITTINGBOX, the effective date of the Agreement, the Territory, etc.
“Territory” shall mean, as the case may be, the limited geographical area set forth in the Specific Terms and Conditions. Unless otherwise expressively agreed by FITTINGBOX, the Territory shall be limited to the country where the Client has established its main office.
“Third Party” shall mean any natural person and/or legal entity other than the Parties.
- Scope of the Agreement
This Agreement has been freely concluded 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.
Unless otherwise agreed between the parties, the timelines mentioned in the Agreement are for information purposes only and are defined in French business days.
Unless otherwise expressly mentioned in the STC, the Agreement takes effect at its signature date.
Unless otherwise expressly specified in the Specific Terms and Conditions, the License starts from the delivery date of the Element and shall end at the termination of the Agreement, for any reason whatsoever.
Subject to any mandatory provision of the applicable law, unless the Agreement is terminated according to the procedures set out in section 4 below and/or unless otherwise set forth in the STC, the Parties agree that this Agreement shall then be tacitly renewed at its initial term for successive and similar periods, 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.
Unless otherwise expressly mentioned in the STC, 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.
Early termination of the Agreement shall occur in case of breach by the Client of one of its obligations under this Agreement, fifteen (15) days after an unsuccessful formal notice sent by mail or email, or with immediate effect in case of a breach with cannot be cured.
FITTINGBOX may terminate this Agreement immediately upon the non-respect by the Client of its obligations notably described in sections 5 6, 7, 10 and 12, without any compensation and without prejudice to any damages or remedies FITTINGBOX may claim in result of such breach or failure. FITTINGBOX may also immediately terminate this Agreement following the takeover or the change of control or investment equity of the Client by a direct or indirect competitor of FITTINGBOX or any of its Affiliates, without any compensation.
In the event of a termination of this Agreement, the Client undertakes to remove and delete, without delay, any copy of the Elements, 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.
Any early termination due to the Client will result in the payment of all the fees mentioned in the STC, until the ongoing term and without prejudice to all other damages and penalties FITTINGBOX may claim.
Under no circumstances, FITTINGBOX could be requested to refund any payment made by the Client.
Sections 1 (Definitions), 7 (Property), 8 (Limits), 9 (Limited liability), 10 (Indemnification), 11 (Assignment), 12 (Confidentiality / Publicity), and 15 (Governing Law / Jurisdiction) will survive the expiration or termination of this Agreement.
- Obligations of the Client
The Client undertakes to implement and use the Elements accordingly to their Documentation and/or the instructions or directives of FITTINGBOX, that might be provided by on on-line module. It is stressed that the Client is solely liable for the use or implementation operations of the Elements, 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 if FITTINGBOX has expressively agreed to provide support for additional assistance or implementation services, the Client shall be invoiced at the applicable scale prices of FITTINGBOX. In any case, if applicable and unless expressively set forth in the STC, the implementation of the Elements shall be deemed effective 3 months maximum after the provision by FITTINGBOX of the access or activation or Identification codes related to the Elements provided. The identification code is under the sole responsibility of the Client. Any access using the Identifying Code is deemed to be made by the Client. The Client shall be solely liable for the consequences of a malfunction of the Elements and/or the Solution due to any use by any natural and/or legal person to whom the Client may have provided its identification code.
The Client is solely responsible for the adequacy of the Services subscribed to its requirements and professional needs. As the case may be, and especially with regards of the Services, 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.
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%.
Whenever applicable, the Client undertakes to install any update or patch provided by FITTINGBOX in relation with the Elements and/or a Solution. Under no circumstance, the Client can have more than one (1) gap with the last update or patch provided by FITTINGBOX under the performance of the Agreement.
The Client undertakes to take any appropriate measures to ensure that its employees, and any other persons which are under its authority or having access to the Elements, are complying the terms and conditions resulting from this Agreement and in particular in compliance with the Intellectual Property rights of FITTINGBOX. The Client shall take immediate steps to prevent any authorized uses and shall immediately notify in written FITTINGBOX of them. It is also stressed that FITTINGBOX reserves the exclusive right to update or correct or intervene on the Elements, including for maintenance or interoperability operations (if applicable).
If applicable, it is stressed that the Client is and remains solely responsible for the digitalized frames (Frame Photos and/or VTO Frames) which it has chosen to use with the Solution or software it has developed or parameterized thanks to the Elements, and in particular with respect to the right to use, reproduce and display such digitalized frames and related material and to commercialize and market such models of glasses.
The undertakings described in this entire section 5, and, as well as those described in sections 4, 7 and 12 are substantial obligations of the Client.
- Financial terms
The fees payable by the Client are mentioned in the STC. Unless otherwise expressly mentioned in the STC, whenever applicable, the Setup fees are payable by the Client only once, upfront at the signature of the Agreement and independently of the License or Services fees. It is stressed that the delivery of the Identification Code may not be initiated until such fees are effectively paid by the Client. Without prejudice to the above, all invoices shall be paid within thirty (30) days from the date of the invoice, net and without discount, in the currency specified in such invoice. Unless otherwise stated, FITTINGBOX’s prices and fees do not include VAT and/or all applicable taxes.
Under no circumstances, FITTINGBOX could be requested to repay any payment made by the CLIENT under the Agreement.
In case of non-payment of a FITTINGBOX invoice, late interests will be charged at the rate of 8% 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 STC – shall also be due automatically as a result of any delay in payment, for the costs of recovery, in addition to interests 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). Also, in case of non-payment of a FITTINGBOX invoice, FITTINGBOX shall be allowed, without notice, to suspend or revoke the access to the Elements (and/or the Solution, as the case may be) without prejudice to any damages FITTINGBOX may claim and without prejudice to the right to terminate this Agreement as per in section 4.
7.1 Intellectual Property rights
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. FITTINGBOX holds and retains all Intellectual Property rights directly or indirectly related to the performance of this Agreement, and in particular related to the Elements, FittingBox Database, the Solutions, their Documentation and their content, be they registered or not, and any related derivative works. 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. 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 that these elements are significant items of FITTINGBOX’s assets; any disclose of any of these elements may damage FITTINGBOX. The Client shall respect all Intellectual Property rights belonging to FITTINGBOX or its Affiliates during the legal protection term of these rights. In the event the Client breaches this obligation, including by negligence, regardless of any claim for damages, the Client undertakes to indemnify FITTINGBOX up to the incurred loss and 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.
7.2 License to use the Elements
Subject to the Client’s observing and performing all of its obligations under the performance of this Agreement, and in particular with sections 5, 6, 7 and 12, FITTINGBOX hereby grants to the Client a limited, personal, non-exclusive, non-transferable and revocable right to use the Elements expressively mentioned in the STC, pursuant the terms and conditions of the Agreement. Unless otherwise expressly specified in the STC, this License is granted for the Territory or Granted Site(s) and for the duration of the Agreement solely, unless earlier termination as set forth in section 4.
Especially with regard of the SDK, if applicable, FITTINGBOX grants a limited personal, non-exclusive and non-transferable licence to use such SDK to develop an end user solution or interface or application, and to reproduce, distribute and sub-license part of the SDK included in such end user solution or interface or application. This License is strictly limited to the term of the Agreement, to the own and internal professional needs of the Client or the group to which it belongs, and to the Territory where applicable, exclusively.
The 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 on the Elements or any derivative works related to the Elements or a Solution. The Client irrevocably undertakes to NOT use the Elements, in any manner not expressly authorized 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. In particular, unless otherwise expressly specified in the Agreement and unless express prior and written consent from FITTINGBOX, the Client shall not, in any manner and/or importance whatsoever:
- use the Elements in order to parasite or compete, directly or indirectly, in any manner whatsoever and including through ASP/SaaS or service bureau models, with any solutions or services provided or commercialized by FITTINGBOX and/or its Affiliates, and and a fortiori for distribution and/or commercial purposes;
- use the Elements in order to access or derive their source code, or to alter them or adapt them completely or partially;
- use the Elements in order to develop multiple software or applications or create derivative works based on the Elements or a Solution;
- reproduce, duplicate, extract, adapt, translate, display, arrange or make available to any Third Party, either directly or indirectly, any part of these immaterial assets, in any manner whatsoever;
- modify the Elements or have them modified by a Third Party;
- extract all or material parts of Fittingbox Database or to extract on a regular basis parts of such database and its contents;
- copy, frame or mirror any part the Intellectual Property rights retained by FITTINGBOX;
- encourage end users or allow them, directly or indirectly, to access to Fittingbox Database and/or FittingBox’s virtual try-on technology and solutions, in any other way than by the solution and/or the interface and/or the application based on the SDK;
- reverse or attempt to decompile or reverse engineer these immaterial assets, irrespective of the cause, either directly or indirectly.
- assign, sell, resell, rent, lease of distribute, whether for free or for consideration, the Elements, in any way whatsoever;
- interfere with or disrupt the integrity or performance of these immaterial elements and/or any A/V or computer system to which they might be connected or interfaced or attempt to gain unauthorized access to the Elements or their related systems or networks.
In the event that FITTINGBOX authorizes any Third Party to use and/or access the Elements, the Client shall have this Third-Party priory entering into a confidentiality agreement with FITTINGBOX. This confidentiality agreement shall indicate that such Third Party shall only access or use the Elements for the account of the Client in accordance with this Agreement. The Client shall be fully liable for the compliance by such Third Party with the provision of this Agreement and irrevocably agrees to indemnify FITTINGBOX against any damage that could result from it.
Any unauthorized or non-compliant use of the Elements shall constitute a counterfeiting act. In case of any breach of the above-mentioned provisions, FITTINGBOX shall be entitled to immediately 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. In case of any breach of this provision, the Client shall pay to FITTINGBOX liquidated damages in the amount of 20,000 € for each commenced week such breach persists, as a penalty clause.
Whenever applicable, the Client is aware of the material configuration requirements to make the Elements function properly and undertakes to set up and maintain them at its cost. The Client is aware and accepts that any disrespect of such requirements may result in degraded operation or malfunction of the Elements; in no event will FITTINGBOX be liable for such disrespect and their consequences.
The Client is aware and irrevocably accepts that the efficient use of the Elements and/or the Solutions may require a non-restricted access to the Internet. Therefore, the Elements and/or the Solutions 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 Intangible Element and/or the Solutions; in no event will FITTINGBOX be liable for such disrespect and their consequences.
FITTINGBOX shall be excused from delays and/or failure in performing the Services and/or delivering the Elements or activating the Licences, to the extent that such delays or failures result from the Client, directly or indirectly, entirely or partially.
No services other than those expressly mentioned the STC are provided to the Client. Any subscription to an additional service shall be expressly done and accepted and set forth in the corresponding signed STC. Unless expressively mentioned in the STC, FITTINGBOX does not provide any specific or particular training or maintenance services under this Agreement.
Save as expressly provided in the Agreement, 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. In particular, FITTINGBOX shall not be responsible for damages which may be caused by use of defective installation, or by non-respect of the Documentation or by non-availability of the Elements.
- Limited liability
The Services and the Elements 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 Elements - and/or or the Solution, if applicable - will meet the requirements or expectations of the Client or will run without interruption or without errors or with any combination of elements chosen by the Client. Consequently, FITTINGBOX shall not be deemed responsible for defects of the Elements for the mere fact that such defects exist The Client acknowledges that the Elements are standard services that are NOT designed to meet particular needs.
FITTINGBOX accepts responsibility only for the means of carrying out its obligations.
The liability of FITTINGBOX may only be established in case of proof of gross negligence or gross misconduct in performance of its obligations.
With regard of the License for the SDK, if applicable, it is clearly stated that the Client will use and exploit the based-Solution software or application it has developed at its own costs and risks. Similarly, the Client shall be solely responsible for the supply of any running operations (including any maintenance and support services) related to such software or application based on a Solution. FITTINGBOX shall not be liable for any direct or indirect damages that may arise from, or in relation to, the use and or the exploitation of the software or interface or application developed by the Client thanks to the SDK. FITTINGBOX will refuse any other guaranty or warranty, whatever it is, expressed by third parties.
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 Elements to suit its own needs or specifications.
FITTINGBOX shall not be responsible for counterfeiting acts resulting from actions or omissions of CLIENT, whether the Elements are being used in relation with other software, hardware or products not provided by FITTINGBOX.
FITTINGBOX shall not be responsible for loss of time or inconveniences caused to production caused by the Elements or by performance of its Services under the Agreement or resulting from a breakdown of all or part of the Elements.
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 liable for any special, incidental, indirect or consequential damages whatsoever (including, without limitations, damages for loss of Data / revenue / business profits, business interruption, loss of business information, or any other pecuniary loss) arising out the performance of the Agreement and/or the use of the Elements.
Without prejudice to the provisions of this section, in the event that FITTINGBOX’s responsibility is proved in case of defective performance of its obligations, such responsibility shall be strictly limited, in all circumstances and including on the grounds of counterfeiting acts, to (i) 50% of the amount actually paid by the Client for the License in case the generating fact of its responsibility originates in the related Element or (ii) (iii) 50% of the amount actually paid by the Client for the Service in case the generating fact of its responsibility originates in the related Service.
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.
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 this Agreement or any other act or omission or negligence by the Client relating to its obligations under this Agreement.
If FITTINGBOX employs attorneys to enforce any rights arising out of or relating to this Agreement, FITTINGBOX will 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.
Any transfer or assignment, whether for a charge or not, for a part or whole, by the Client to a Third Party of the benefit of this Agreement or the License shall be forbidden, in particular to a direct or indirect competitor of FITTINGBOX and/or a facilities management service provider, unless expressly authorised by FITTINGBOX.
For the duration of this Agreement as well as after its termination, each party agrees to keep as confidential all the Confidential Information concerning the other party, the Elements, this Agreement (including its existence and content). Thus, each party shall not disclose to any unauthorized Third Party, directly or indirectly, any Confidential Information, in whole or in part, provided to them during this Agreement, without the prior express written agreement of the other party. Either party also undertakes to take any required steps which are necessary for preservation of confidentiality towards its staff as well as towards any Third Party having access to the Confidential Information. Each party may disclose the other's Confidential Information if required to comply with a court order or other government demand that has the force of law. Before doing so, the disclosing party must seek the highest level of protection available and, when possible, give the other enough prior notice to provide a reasonable chance to seek a protective order or to take other actions. The Client acknowledges that any breach of this Section 12 shall constitute a major breach of this Agreement. In this case, FITTINGBOX shall be entitled to immediately terminate this Agreement without notice or any indemnity and without prejudice to any damages FITTINGBOX may claim.
- Commercial Reference
For the duration of this Agreement, FITTINGBOX shall be authorized to issue press prelease 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 medias or event: FITTINGBOX’s website and/or blog and/or newsletter, social networks, 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.
14.1. 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 purchase order 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.
14.2. 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..
14.3. If one or more of the provisions of this Agreement is void as a consequence of a legal regulation in force or of a final judicial judgement, it shall be deemed to be non-written, without affecting the validity of the other provisions.
14.4. The fact that either party does not claim for the performance of whatever provision of this Agreement or accepts its non-performance, whether temporarily or permanently, shall not be construed as a waiver by such party to its rights deriving from such provision. The parties mutually agree that the fact for one of the parties, to tolerate a situation, shall not grant the other party acquired rights. Any waiver to be valid and enforceable shall have been made in writing and signed by the party waiving its rights.
14.5. 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-venturer of the other party.
14.6. 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 Information Privacy Act of 2008, the US Health Information Technology for Economic and Clinical Health of 2009, and with the US CCPA of 2020, and any similar laws and regulations, as applicable, as amended, and take any administrative measures required of.
14.7. 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 or ifs 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 1 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.
14.8 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 to from FITTINGBOX the CLIENT by email or similar electronic communication medium are valid and represent evidence between the Parties.
- Governing law / Jurisdiction
THE AGREEMENT SHALL BE GOVERNED BY 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, AND, ON APPEAL, TO THE JURISDICTION OF THE INTERNATIONAL COMMERCIAL CHAMBER OF THE PARIS COURT OF APPEAL. THE AFORE-PROVISION SHALL NOT BE AN OBSTACLE TO THE SUBMISSION OF A JUDGEMENT OF THE COMMERCIAL COURT (TRIBUNAL DE COMMERCE) OF PARIS 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 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 - August 2022