”Agreement” means the Order Form and these GTC. In the event of any conflict or inconsistency between these documents, the General Terms and Conditions shall prevail in all circumstances.
“BigData” or “Metadata” means a voluminous set of qualitative or quantitative data in any format, structured or unstructured, used, collected, formatted, processed, manipulated, stored, and/or analysed throughout the performance of this Agreement. As aggregated or anonymized data, BigData are not considered per se as personal identifiable information (PII).
"Confidential Information" means all information disclosed by a Party to the other Party in writing or by oral communication which is designated as confidential or for which the receiving Party cannot reasonably be unaware of the confidentiality of the information or the conditions under which they are disclosed. The Agreement, the structure and/or of the Message are also considered as Confidential Information by nature.
“Client” means the purchaser of the Services, as designated in the Order Form.
“FITTINGBOX” means FITTINGBOX, a limited liability company and/or its affiliates that provides, directly or through an agreed partner, the Service as described on the Order Form.
“General Terms and Conditions” or “GTC” means this document and its further updates and modifications, solely. These GTC only apply only for the Service referred to as "Advertising". Unless otherwise expressively mentioned in the Order Form, the Client is aware and irrevocably accepts that others FITTINGBOX’s products and services, and in particular its VTO solutions and digitalization services, are governed by dedicated general terms and conditions. Any other document than these GTLU is for information purpose only and shall not bind FITTINGBOX in any manner whatsoever. In the event of any inconsistency with a translated version other than French, the English version of the GTC shall prevail in any circumstance. The General Terms and Conditions may be modified from time to time by FITTINGBOX, at its sole discretion. The last version of the applicable General Terms and Conditions may be found at https://www.fittingbox.com/en/legal-information-standard-advertising.
“Intellectual Property” means, notably but not exhaustively, any patent, copyright, trademark, trade dress, trade name or trade secret right and any other intellectual property or proprietary right of FITTINGBOX, anywhere around the world, whether such rights are registered or unregistered, and including the goodwill attaching to such rights and the right to apply for any such rights.
”Message” means the customizable message that incorporate a clickable link toward a virtual try-on module, that might be sent to eyecare professionals and/or consumers by bus or text-mailing for business and/or promotional and/or advertising purposes.
“Order Form” means the document supplementing the present General Terms and Conditions and consulting an order form. The Order Form specifies in particular the identity of the Client, the commercial offer of FITTINGBOX and, as the case may be, the target recipients of the Message.
“Service” means the promotional and/or advertising campaign that allows an end-user to access to a limited and temporary FittingBox VTO module. The Service is performed by FITTINGBOX for and on behalf of the Client, by bus-mailing or bus-texting service as the case may be, with exclusion to other services. Unless otherwise specified in the Order Form, the VTO module is accessible for a 1-month period after the Message has been displayed.
“Third Party” means any natural person and/or legal entity other than the Parties.
This Agreement has been freely 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.
By signing the Order Form and / or using the Service to FITTINGBOX, the Client expressly and unreservedly and irrevocably agrees to the entire terms and conditions contained in the Agreement, and their full enforcement. Similarly, the Client continued use of the Service after posting an updated version of these GTC 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.
No services other than those expressly mentioned the Order Form are provided to the Client. 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 subject to additional estimate and invoice according to the scale of prices of FITTINGBOX applicable when the order is placed. FITTINGBOX reserves the right to refuse to perform such additional or specific services, at its sole discretion and without having to justify its decision.
Pursuant to Articles 1984 et seq. of the French Civil Code, the Client gives a special mandate to FITTINGBOX, who agrees to receive it, to perform the Service. The Client may terminate this mandate at any time, by formal notification clearly indicating the effective date and the reason of the termination (registered mail with return receipt required). However, the Client shall still be liable for any other obligation resulting from this Agreement, and in particular its payment obligations.
The deadlines mentioned in this Agreement are for information purposes only and being specified that un minimum of 2 weeks is required to perform the Services. Unless otherwise agreed by the Parties, deadlines are defined in working days. The Client shall be liable for any additional fee or cost and, more generally, for any consequence of any delay or default caused by the Client, or any wrong or incomplete data and/or document delivered to FITTINGBOX that could not be used to perform the Service under normal conditions. 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%.
FITTINGBOX defines alone the human, material and / or technical resources that might be necessary for the performance of the Service.
It is clearly stated that FITTINGBOX performs the Service as a mere technical sub-contractor. However, FITTINGBOX reserves the right to refuse to send a Message that would be manifestly illicit or contrary to the regulations in force, or when the said Message would be contrary to the personal and/or commercial interests of FITTINGBOX, and without FITTINGBOX incurring liability as a result.
The recipients of the Message may access to a VTO module, via a link embedded in the Message. It is clearly stated that the said module is intended to be used by the recipients of the Message only and is limited to the purpose and the duration of the Service.
FITTINGBOX undertakes to perform the Service under the terms and conditions set out in this Agreement.
The Client is aware and irrevocably accepts that the performance of the Service may be suspended or delayed, without FITTINGBOX incurring liability as a result, in particular when FITTINGBOX is mandated to send the Message, in the event of a suspension of the supply of electricity or telecommunications, breakdown or malfunctioning of the telecom or Internet network in the transmission of messages or documents.
FITTINGBOX does not warrant that the Service will result in a profitable operation for the Client and that it will meet the expectations of the Client, being further reminded that the list of recipients, the content of the Message (including the frames selection) and the broadcast period are determined by the Client under its sole liability.
Unless expressively mentioned in this Agreement; FITTINGBOX refuses any other guaranty or warranty of any kind, whatever it is, to which it has not expressly agreed or expressed by Third Parties.
The Client shall fully cooperate with FITTINGBOX in good faith throughout the performance of the Agreement.
The Client shall provide FITTINGBOX with any data, information or element needed to perform the Services. The Client is and remains solely responsible of the data, information or element it may provide to FITTINGBOX, and including about (i) the designation and the scope of the campaign, (ii) the information related to the Client and/or its products and services, (iii) the quality and/or performance of the products and services it may sell or distribute, (iv) the personal data directly or indirectly related of the recipients it wants to have the Message displayed and (v) and the frames selection that might be virtually tried-on via the VTO module.
The content of the Message (including the figurative elements and the frames selection that might be virtually tried-on) and the definition of the list of its recipients and/or its segmentation are on the initiative and the sole responsibility of the Client. It is stressed that the Client is and remains solely responsible with respect to the all the applicable Data Protection, Privacy and Security and/or promotional and advertising laws and regulations and with respect to the right to use, reproduce, and display the text, images, logos and/or frames that are part of such Message. The Client notably warrants to FITTINGBOX that the content of the Message it has drafted or drawn up (i) is lawful, in compliance with public policy and good moral standards, and compliant with current regulations and (ii) does not infringe the rights of third parties, intellectual and industrial property rights of Third Parties, in particular to the brands and models and authors' rights to the frames mentioned or displayed in such Message or via it.
The Client shall prevent any loss or accident of the documents and data it may communicate to FITTINGBOX during this Agreement by implementing all required copies or backups and, more generally, all appropriate security measures. FITTINGBOX does not provide any backup of such documents and data and FITTINGBOX shall not be held responsible for any accidental loss or destruction of these elements.
Each Party shall be responsible for the proper performance of its required actions and its own obligations under the Agreement.
FITTINGBOX shall not be responsible if the result of the Services does not meet the Client’s requirements or professional needs or expectations. FITTINGBOX shall only be bound by an obligation of means under the performance of this Agreement.
FITTINGBOX shall not be responsible if the Services cannot be performed or fail, in all or part, due to a fault or negligence or miscommunication of the Client or any wrong or incomplete data and/or document delivered to FITTINGBOX that could not be used to perform the Service under normal conditions.
The Client is solely liable for the content of the Message and the listing of the targeted recipients; the Client discharges FITTINGBOX from all liability and shall hold FITTINGBOX harmless from any claims, including from Third Parties on such matter.
The CLIENT undertakes to indemnify FITTINGBOX for any loss which it may suffer and all the expenses it may incur for any claim and/or sanction as a result of the actions of the CLIENT or in connection with the Content and the Client Selection, and users.
Similarly, FITTINGBOX reserves the right to suspend or revoke the Service if the content of a Message constitutes a risk or infringes the rights of third parties (brands, models etc.) to the Products and Services or for the server on which these materials are hosted (piracy, security vulnerability etc.). FITTINGBOX may block access to the relevant Content immediately, without affecting the performance of the Agreement.
The Parties expressly agree that should any limitation or provision of this Section 4 be held to be invalid under any applicable statute or rule of law it shall to that extent be deemed omitted but if any Party thereby becomes liable for loss or damage which would otherwise have been excluded, such liability shall be subject to the other limitations and provisions set out herein.
Each Party shall take out insurance with a leading insurance company to cover any liability which it may incur in relation to the Agreement.
FITTINGBOX holds and retains all Intellectual Property rights directly or indirectly related to the performance of this Agreement, and in particular related to the Services and/or its solutions, be they registered or not, and all other Intellectual Property rights, including any patent, design, features, model or other property deed and any request for, claim on or extension of such rights, within the Territory and that of any other country worldwide, and including 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 during this Agreement. Under no circumstances these rights might be transferred to the Client and/or any Third Party. The Client acknowledges that these elements are significant items of FITTINGBOX’s assets; any disclose of any of these elements may damage FITTINGBOX. The Client shall respect all Intellectual Property rights belonging to FITTINGBOX during the legal protection term of these rights.
Any unauthorized or improper or non-compliant use of the Message, including its content and/or structure, and any unauthorized or non-compliant use of a FittingBox’s VTO solution accessible via the Message, as the case may, shall be considered as a counterfeit act entitling to compensation, damages and remedies.
Each Party declares that it is vested with the rights required for the performance of the Agreement. Each party, each on its own behalf, shall hold the other harmless against any claim, action, damages or indemnities which any natural or legal person could instigate or claim, in particular in reliance on an Intellectual Property right, an act of unfair competition and/or commercial parasitism, provided that: (i) it has been informed by the other party, in writing, as soon the latter became aware of the claim; (ii) It keeps the sole control of the defense of the claim and/or any settlement; (iii) it has received from the other party complete and accurate information and all reasonable assistance in order to enable to settle or defend the Claim; (iv) the Claim does not result from changes made to the Products and Services by the other party or a Third Party.
In the event of the Client breaches the undertakings above mentioned, including by negligence, then the Client shall hold FITTINGBOX harmless of any claims or damage, including from Third Parties, resulting from the breach of this warranty. FITTINGBOX shall also be discharged from all related liability, and without prejudice to any remedies, damages and/or other rights that may be claimed by FITTINGBOX.
Unless otherwise expressly specified in the Order Form, the Agreement shall enter into force on the date of signature of the Order Form and shall be terminated 1 month after the performance of the Service. Unless otherwise expressly specified in the Order Form, this Agreement is not tacitly renewable. Any additional or new service ordered by the Client that is not included in this Agreement shall be subject to additional estimate and invoice and/or another agreement.
Termination of the Agreement shall occur in case of breach by the other Party of one of its core obligations under this Agreement within fifteen (15) calendar days of the dispatch of a formal demand to remedy this breach which has remained without effect. Shall be notably considered as serious breaches from the Client: failure to comply with (i) the payment obligations, (ii) the non-divulgation of the Confidential Information, (iii) the respect of Intellectual Property rights, (iv) the warranties set forth in section 3.2. FITTINGBOX also reserves the right to terminate the Agreement, with immediate effect and without any compensation, in case of a change of control of the shareholder structure of the Client or a taking-over of the Client by a direct or indirect competitor of FITTINGBOX.
Except for a justified force majeure event, in the event of early termination by the Client or due to the Client, for any reason whatsoever – including the assignment or the termination of his lease or business – the Client shall remain liable, as first compensation, for all the amounts set forth in the related Order, without prejudice to any other damages or penalties. For the avoidance of doubt, it is stressed that an address modification and/or the conversation from one corporate form to another and/or a registration number modification shall not be considered as a legitimate reason to terminate the Agreement or a force majeure event.
Under no circumstances, the expiration or the termination of this Agreement, for any reason whatsoever, in all or part, may induce a reimbursement of the fees paid by the Client.
It is clearly stated that the Sections 1.1 (Definitions), 5 (Intellectual Property), 7 (Liability), 10 (Confidentiality), and 13 (Governing Law / Jurisdiction) will survive the expiration or termination of this Agreement.
For the duration of this Agreement as well as five (5) years after its termination and for any reasons whatsoever, each Party (i) undertakes to keep as confidential all the Confidential Information concerning the other Party, the Service and this Agreement (including its existence and its contents), (ii) undertakes to use it only on the framework of the Agreement, and (iii) provide an equivalent protection as for its confidential information.
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. Each party 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.
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.
It is stressed that any breach of this section shall constitute a major breach of this Agreement that may lead to immediate termination of this Agreement without notice or any indemnity and without prejudice to any damages the damaged Party may claim.
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.
It is recalled that FITTINGBOX performs the Service as a mere technical sub-contractor. Therefore, as data controller, it is under the Client’s responsibility to ensure that the recipients of the Message have given their consent for the collection and processing of their personal data, including for advertising or commercial purposes. The Client shall indemnify and save harmless FITTINGBOX from and against any and all claims, actions, damages or indemnities of any kind whatsoever, that may be brought by a Third Party as a result of a breach or negligence of the Client to its obligations on such matter.
The Client is aware and irrevocably accepts that FITTINGBOX reserves the rights to collect Big Data within the performance of the Agreement. FITTINGBOX is entitled to use and exploit such Big Data, for or without consideration, notably for purposes of geo-localisation and/or statistics and/or analysis.
According to the applicable Data Protection Regulations, each individual may exercise a right of access to and rectification of all of his/her personal data; FITTINGBOX can be contacted by email at firstname.lastname@example.org for any question or enquiry related to any data processing it might be the data controller or the data processor.
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.