Fittingbox Inc.

GENERAL TERMS AND CONDITIONS

1. INTRODUCTION

1.1. Definitions

”Additional services” means the optional services that may be subscribed by the CLIENT in addition of the License or the Services. 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 whenever 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 and/or ordering the Services, 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 the Services. For the sake of clarity, as aggregated or anonymized data, it is reminded that Metadata are not considered as personal identifiable information (PII) per se.
"Classification" means the classification of brands and/or SKUs within Fittingbox Database (Tier 1, 2 or 3), as available at https://info.fittingbox.com/en-us/fr-fr/fitmix-brands-tier-en-0. The Classification may be modified from time to time by FITTINGBOX, at its sole discretion.
“CLIENT” means the professional (independent, retail chain, pure player, distributor, manufacturer, etc.), as exclusively located in North America and designated 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. These GTCs, the Agreement, the structure of the Solutions and / or the Services, the structure and content of Fittingbox Database, the documentation relating to the Solutions and the Services are also considered as Confidential Information by nature.
“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, that may be placed by the CLIENT on a subscribed Solution or on a Image.
"Derivative Work" means any new creation that has been conceived and produced from one or more pre-existing works.
"Digitization" means the process consisting of the numerical modelling of SKUs and / or Lenses for the creation of Photographs and/or VTO frames. In extenso, "Digitization" refers to the SKUs and / or Lenses digitalized by FITTINGBOX and/or its partners.
"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.

"Filter" means the interactive or animated filter implementing VTO frames for SOcial Media, to be displayed on a social network

"Fittingbox Database" means the digital frames database developed and enriched by FITTINGBOX; Fittingbox Database contains, in particular, 2D or 360 images (“Photographs”), 3D images or files (“VTO frames”), and any 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, with the exclusion of any other use.
“FITTINGBOX” means FITTINGBOX Inc., a US limited liability company that provides services and solutions for optic and eyewear professionals, directly or through an Affiliate or 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 “GTCs”: means this document - and its further updates and modifications - that only apply for the Solutions and/or Services provided by FITTINGBOX to North American clients throughout the performance of their Agreement, and only if expressly mentioned in the Order Form. Unless otherwise expressively mentioned in the Order Form, the CLIENT is aware and irrevocably accepts that others FITTINGBOX’s products and services, and clients located outside the North America territory as well, are governed by dedicated general terms and conditions. Any other document than these GTCs is for information purpose only and shall not bind FITTINGBOX in any manner whatsoever. These GTCs may be modified - or merged in a global version - from time to time by FITTINGBOX, at its sole discretion. 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. In the event of any inconsistency with a translated version of these GTCs, the English version of the GTCs shall prevail in any circumstance; any version of the GTCs other than in English is for reference purposes only.
”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 some 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. The price of the Hardware provided by FITTINGBOX – if any – is set forth in the Order Form.
"Image(s)" means the Photographs and/or the VTO frames, as the case may be.
“Intellectual Property” means, notably but not exhaustively, 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 and/or its licensors or partners, 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.
“Lenses” means the lenses modelled and integrated within Fittingbox Database, allowing to simulate the lenses of SKUs.
”License” means the personal, temporary, non-exclusive and non-transferable right to use the Solutions and/or Fittingbox Database and/or the Images, 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 GTCs 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/or training costs for the Solutions. The Setup fee also includes access to the Solutions 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 and/or Services fees.
"Selection" means the digitized frames selected by the CLIENT in Fittingbox Database and/or the physical frames entrusted to FITTINGBOX for Digitization purposes, 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, where the CLIENT is allowed to use the Solution and/or the Images with the exclusion to any other location and/or declension and/or extension.
"Services" means the Digitization services and/or any service or license related to the access and use of Fittingbox Database, in all or in part, as limitatively mentioned in the Order Form.
"SKUs" or “Stock Keeping Unit(s)” means physical eyeglass frames and / or sunglasses with a unique style combined with a unique colour. For the avoidance of doubt, it is stressed that there is only one SKU per frame with its specific features and details (i.e. a frame model with 5 possible colour variations will be turned into as many SKUs).
"Solutions" means the social network(s) as limitatively mentioned in the Order Form, as the case may be, where the CLIENT is entitled to us an Image via a Filter.

"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, FITTINGBOX’s Affiliates and the CLIENT.

1.2. Scope

The 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.
Throughout the term of the Agreement, and unless otherwise expressly mentioned in the Order Form, it is clearly understood between the Parties that FITTINGBOX will be the exclusive partner of the CLIENT for the Digitization services and/or the provision of AR frames and/or 2D / 3D images of frames and/or the provision of VTO solutions, as the case may be.
No services other than those expressly mentioned the Order Form are provided to the CLIENT. Any subscription to an additional service shall be expressly done and accepted and set forth in the corresponding signed order form. FITTINGBOX reserves the right to refuse to perform such additional or specific services, at its sole discretion and without having to justify its decision.

2. EFFECTIVE DATE AND TERM OF THE AGREEMENT

Unless otherwise expressly specified in the Order Form:

• the Agreement shall be effective on the signature date of the Order Form and until the expiry of its term, which constitutes a firm and definitive initial subscription period;
• 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; and
• 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.
On termination of the Agreement, for any reason whatsoever:

• the License granted will be automatically revoked;
• the provisions relating to Intellectual Property, CLIENT’s warranties, liability, confidentiality, and litigation rules, notably, will survive.

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 or if the breach cannot be remedied or repaired.
Shall be notably considered as serious breaches from the CLIENT: failure to comply with (i) the payment obligations, (ii) the confidentiality obligations, (iii) the respect of Intellectual Property rights, (iv) the obligations 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 and/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 its 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 and Services 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 the change of (i) address and / or (ii) social / legal form and / or (iii) identification number shall never be considered as a case of Force Majeure or a case of legitimate termination.
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 and/or Services than previously subscribed, FITTINGBOX may waive the application of early termination penalties mentioned in this article 3.
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 and without any compensation, by simple notification, in the event of a change of control or takeover or investment equity of the CLIENT by a direct or indirect competitor of FITTINGBOX or its Affiliates.
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 data of Fittingbox Database and/or FITTINGBOX’s documentation, 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.

4. DESCRIPTION OF THE SOLUTIONS & SERVICES

4.1. Background

The Services subscribed 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 a higher-level pack 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.
The Services may notably include:

• the supply of Solutions (in particular the 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 Digitization Services; 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.
The Services shall be performed according to the timeline agreed between the Parties. 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%.
FITTINGBOX does not give any undertaking or warranty as to the evolution of the Services or 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.
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 the Hardware as the case may be, function properly and undertakes to set up and maintain them at its own cost throughout the entire term of the Agreement and the renewal periods thereof, including in the event of the evolution of these requirements.
The CLIENT is aware and irrevocably accepts that the efficient access and use of the Solutions are intrinsically linked to the Site. Consequently, any move or relocation of the Solutions and/or Images may result in a lack or a loss of access of the related Solutions and/or Images. FITTINGBOX reserves the right to discretionary refuse its authorization to such move or relocation. As the case may be, and at all events, the removal or relocation of the Solutions or the Images 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 Fittingbox Database requires a non-restricted access to the Internet. Therefore, the Solutions might 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 or the Images; in no event will FITTINGBOX be liable for such disrespect and their consequences.

4.2. Specific conditions for Hardware (whenever 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 that may be provided by FITTINGBOX.
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 may 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. FITTINGBOX does not give any guaranty or warranty of any kind that the Hardware will operate normally with any 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 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 might be conveyed to the CLIENT solely 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 Fittingbox Database or their documentation, in any way whatsoever. The terms of delivery for the Hardware are Incoterm DAP ("Delivered At Place"), but 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 its return in good working order to FITTINBOX whenever applicable.
The CLIENT shall check the proper functioning of the Hardware at its delivery; 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 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 such malfunction occurred after the delivery date.
In the event that a 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 limited warranty if the Hardware provided by FITTINGBOX is returned without its original packaging.
The Hardware and the additional peripheral provided by FITTINGBOX, as the case may be, cannot be moved or removed or replaced without FITTINGBOX prior express authorization; As the case may be, the removal or relocation or replacement of the Hardware is borne by the CLIENT, at its own costs and risks.

4.3. Specific conditions for Fittingbox Visio (whenever applicable)

Fittingbox Visio (the “Platform”) is a videoconferencing web platform (i) enabling a connection between the CLIENT – of members of its network – and end customers, (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 a 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.
The Selection (i.e. visuals of spectacles) that the CLIENT has declared available for purchase at its 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 the related frames or product. FITTINGBOX shall not be liable for the lack of availability of a product that 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, and in particular in this case, the exchanges or discussions to intervene with the end customers; therefore, the CLIENT shall discharge FITTINGBOX from all liability and shall hold FITTINGBOX harmless from any claims from Third Parties, including from the end customer, in application of this warranty.

4.4. Specific conditions for Digitization Services (whenever applicable)

The Images issued from Fittingbox Database and/or provided by FITTINGBOX are the sole images whose quality and homogeneity are validated by FITTINGBOX.The quality and consistency of the Images are checked by FITTINGBOX. Any discrepancies in denomination or quality (reproduction of colours, reflections, etc.) that do not fit with the standard quality of FITTINGBOX – or the quality agreed between the Parties on the effective date of the Agreement – shall be reported by the CLIENT to FITTINGBOX within ten (10) calendar days following their delivery. In the absence of report or request by the CLIENT within such ten (10) calendar days, the quality of the said Images will be deemed to have been irrevocably accepted by the CLIENT; therefore, any post-production requested by the CLIENT beyond such period shall be considered as a new service and shall be invoiced consequently at the current rate services of FITTINGBOX.
FITTINGBOX reserves the exclusive right to intervene on the Images, including for maintenance or interoperability operations.
FITTINGBOX reserves the right to produce  or not an Image, and in particular for internal organization reason and/or if the related SKU or Lens presents a high degree of complexity and/or in the case of non-standard quality or format of FITTINGBOX. As the case may be, FITTINGBOX shall be entitled to apply the related tariff surcharge or price increase; on the contrary, if an Image is not produced  upon the sole decision of FITTINGBOX, it will not be charged.
The CLIENT is and remains solely responsible for the choice of the SKUs and/or Lenses it entrusts to FITTINGBOX with a purpose to their Digitization and the use of the Photographs and / or VTO frames, and in particular with regard to rights of use, reproduction and display / communication to the public as well as the right to market and advertise for the related SKUs and/or Lenses.
The CLIENT undertakes to provide FITTINGBOX with all relevant information relating to the SKUs entrusted to FITTINGBOX for their Digitization; In particular, the CLIENT agrees to use and complete the delivery slip provided by FITTINGBOX (the “eGlasses Order”), to the exclusion of any other document, duly completed for the considered batch. The batches shall be sent to any address indicated by FITTINGBOX, by courier and/or transportation services (such as UPS), at the CLIENT’s own cost and expense.
Throughout the duration of the Agreement, FITTINGBOX agrees to use the SKUs sent to it by the CLIENT under the best conditions of use. FITTINGBOX agrees to verify the proper condition of the SKUs or Lenses within forty-eight (48) Working hours of their receipt and to notify the CLIENT any anomaly or damage within the same period. FITTINGBOX will promptly notify the CLIENT of any deterioration or damage it may have identified. FITTINGBOX agrees to return the SKUs and /or the Lenses on the date agreed between the Parties in good working order. FITTINGBOX will not be obliged to repair any damage caused by a transport defect or the normal use of the SKUs / Lenses. It is expressly agreed between the Parties that the cost of returning the SKUs and / or Lenses shall be borne by the CLIENT. If the CLIENT does not collect back the SKUs / Lenses sent to FITTINGBOX in a three-months period following their Digitization, the CLIENT shall be deemed to have waived the rights, titles or interests it could have on such elements; therefore, FITTINGBOX shall be free to dispose of them at its convenience.
It is reminded between the Parties that the SKUs and/or Lenses entrusted by the CLIENT with the intent of Digitization are provided for free; in no circumstances may the provision of such SKUs and/or Lenses be invoiced to FITTINGBOX or be the subject for any credit note or an offset.

4.5. Specific conditions for Social Media (whenever applicable)

The Social Media Services are performed by FITTINGBOX as a technical intermediary party solely.

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

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

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

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

In view of the technical uncertainties intrinsic to the Internet, or from any incompatibility stemming from the web browsers, or technologies and/or technical operation inherent to the selected Social Network or Media, FITTINGBOX does not give any warranty or guaranty of any kind that the Artwork – or the Filter as the case may be – will meet the requirements of the CLIENT or will be accessible or run without interruption or without errors. It is also stressed the Artworks – either embedded in a Filter or not – will be displayed by the own virtual try-on engines of each selected Social Network or Media. As FITTINGBOX is not the licensor or the technical provider of such virtual try-on engines, FITTINGBOX does not give any warranty or guaranty of (i) compatibility or (ii) update or upgrade or (iii) non-regression or (iv) defects, non-conformities or bugs affecting or related to such third-party virtual try-on engines. Consequently, FITTINGBOX shall not be deemed responsible for defects of the Artworks provided under the Agreement for the mere fact that such defects exist. Similarly, FITTINGBOX does not give any warranty or guaranty of any kind regarding the compliancy of each selected Social Network or Media with any applicable data privacy laws and regulations, and in particular with the European Regulation 2016/679 of 27 April 2016 (GDPR), 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.

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

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

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

5. OBLIGATIONS 

5.1. Obligations of FITTINGBOX

FITTINGBOX is only held by a best-effort obligation under the performance of the Agreement, including regarding any maintenance services.
Access & hosting for Solutions:
FITTINGBOX will 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 the payment of the related services.
Whenever applicable, FITTINGBOX shall ensure the access to Solutions by:

• providing the URL links and/or the implementation codes;
• communicating of the appropriate access codes for the Solutions (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.
The CLIENT is aware and irrevocably accepts that access to the Solutions may be suspended without FITTINGBOX incurring liability as a result, in particular, of a 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 Services or the License, including the access to the Solutions and/or the Images, 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 and the Services in a timely manner following a request from the CLIENT, by telephone or to the e-mail address support@fittingbox.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, including for maintenance or interoperability operations.

5.2. Obligations of the CLIENT

The CLIENT undertakes to provide FITTINGBOX with all relevant information and/or documents relating to the proper performance of the Agreement and the Services.
The CLIENT undertakes to use the Solutions and the Images accordingly to their regular usage, their documentation, the instructions or directives of FITTINGBOX and/or its agreed partners and according to the terms and conditions of the Agreement. The Client shall be responsible for the use of the Solutions subscribed and/or the Images and/or the Hardware provided by FITTINGBOX.
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.
The CLIENT undertakes to install any update or patch provided by FITTINGBOX in relation with the Solutions. The CLIENT shall never have more than 1 gap with the last update or patch provided by FITTINGBOX.
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 or the Images 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 or the Images 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 Images and/or the Solutions, and/or any use that may interfere with or disrupt or diminish the integrity or performance of the Solutions or the Images, or any elements that may be provided by FITTINGBOX and/or its agreed partners.
In particular, and unless otherwise expressly authorized by FITTINGBOX, on a case-by-case basis, the CLIENT undertakes not to directly or indirectly:

• extract or try to extract all or parts of the Fittingbox Database, in any manner and/or importance whatsoever;
• extract or try to extract all or parts of the VTO frames, in any manner and/or importance whatsoever;
• use or reuse the Images and/or elements for which FITTINGBOX holds the Intellectual Property rights for any other use than their intended use or as expressly authorized by FITTINGBOX;
• use or reuse the Images and/or elements for which FITTINGBOX holds the Intellectual Property rights, in order to create Derivative Works and / or a direct or indirect competing product or service, including in order to create or enrich a competitive database, and a fortiori for distribution and/or commercial purposes;
• use the Services and/or the Images and/or the Solutions in order to interfere or compete or parasite or cannibalize with any product and / or service distributed and/or marketed by FITTINGBOX, its Affiliates and/or its authorized partners;
• use all or part of the Solutions or the Images in order to derive their source code, or to alter them or adapt them completely or partially;
• reverse or attempt to decompile or reverse engineer the Solutions, irrespective of the cause;
• encourage any Third Party and / or allow any Third Party to access and/or extract any part of Fittingbox Database.

The CLIENT shall take immediate steps to prevent and/or confine such actions and shall immediately notify in written FITTINGBOX of them.
Unless otherwise expressly and prior authorized by an executive officer of FITTINGBOX, any unauthorized use and/or exploitation of the Images and/or Fittingbox Database and/or the Solutions, and a fortiori when such use or exploitation may directly or indirectly interfere or compete or parasite or cannibalize with any product and / or service distributed and/or marketed by FITTINGBOX, its Affiliates and/or its authorized partners, is strictly forbidden and shall be considered constituting a counterfeiting act allowing FITTINGBOX to proceed to immediate termination of this Agreement as of right, and without prejudice to any damages FITTINGBOX may claim; in such case, the CLIENT shall also indemnify FITTINGBOX accordingly for any direct and indirect damage or remedies.
Access:
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.
Backup:
The CLIENT shall be personally and solely responsible for the backup of all and any of its information, documents and/or data, either such elements have been provided to FITTINGBOX or not under the performance of the Agreement, and in particular in consideration of any cyber risk. It is stressed that FITTINGBOX does not provide any backup or reversibility service to the CLIENT, including regarding the Content.
Substantial obligations:
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, 8, 10 and 11, are decisive and substantial conditions of the Agreement.
In the event the CLIENT breaches – or fails to comply with – any of the obligations contained those sections, including by negligence or inertia, (i) FITTINGBOX shall be entitled to immediately terminate the Agreement, with no need for any authorization whatsoever from a court and without incurring liability, and without prejudice to any direct and/or indirect damages and remedies it may claim, and (ii) the CLIENT will defend, indemnify and hold FITTINGBOX and its officers, directors, employees, contractors, Affiliates and agents harmless from any and all claims, suits, demands, costs, liabilities, expenses, damages (including reasonable attorneys' costs and fees) and judgments (or settlements to which the CLIENT already consents) related to any default or alleged default or failure or breach of the Agreement or any other act or omission or negligence by the CLIENT relating to its obligations under the Agreement, and (iii) the CLIENT undertakes to reimburse any profit and/or savings eventually earned by breaching these obligations, without prejudice to any additional damages or remedies FITTINGBOX may claim as a result of such breach or failure.

6. WARRANTIES

6.1. Warranties of FITTINGBOX

The CLIENT acknowledges that the Solutions and the Services are a standard offer of FITTINGBOX that are NOT designed to meet particular needs. The CLIENT declares having received full and accurate information about the Solutions and/or the Services that it has subscribed under the Agreement.
FITTINGBOX DISCLAIMS ANY WARRANTY OF ANY KIND WITH RESPECT TO ITS SOLUTIONS AND/OR THE SERVICES. FITTINGBOX REFUSES ALL GUARANTEES, OF WHATEVER DOCUMENT, TO WHICH IT HAS NOT EXPRESSLY AGREED, OR WHICH WOULD BE REQUIRED BY THE CLIENT OR A THIRD PARTY.
The Solutions, the Services, the Images, and the Hardware if any, as well as any component thereof, are provided "AS IS" without any representation or warranty or guaranty of any kind, express or implied, statutory, or otherwise, as to their potential quality, performances or results, including but not limited to their continued operation, performance, evolution, compatibility or interoperability, merchantability or fitness for a particular purpose particular. FITTINGBOX does not give any warranty or guaranty that the Solutions and/or the Services will meet the requirements of the CLIENT or will be accessible or run without interruption or without errors. Consequently, FITTINGBOX shall not be deemed responsible for defects of the Solutions or the Images for the mere fact that such defects exist. 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 the Images, or the defects, non-conformities of bugs which, as a consequence, may affect the Solutions or the Images 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.
It is reminded that the Solutions and the Services are provided to the CLIENT in their standard version as existing at the effective date of the Agreement; FITTINGBOX does not make or give any representations or warranties about update or upgrade or the adaptation thereof to the current or future requirements of the CLIENT. The License granted under the Agreement, as the case may be, does not include the provision of adaptations and/or new features of the Solutions; FITTINGBOX reserves the right to incorporate them into its standard offering and/or to offer them to the CLIENT, at its sole discretion.

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 the Images 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 the Images, in any manner or importance 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 and 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; and
- the Content do not infringe the intellectual and/or industrial rights of Third Parties;
- 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).
Similarly, it is reminded that the CLIENT is and remains solely responsible for the Selection, either regarding the selection of the SKUs and/or Lenses it entrusts to FITTINGBOX for Digitization purpose or the Images it chooses to display. In particular, the CLIENT represents and warrants that:
- It is and will be the legitimate holder of all the rights associated with the SKUs and/or Lenses (including for the reproduced brands or trademarks) it entrusts to FITTINGBOX for Digitization purposes;
- It is and will be the legitimate holder of all the rights associated with the SKUs and/or Lenses (including for the reproduced brands or trademarks) composing its Selection; and
- It is and will be duly authorized to provide SKUs and/or Lenses to FITTINGBOX for Digitization purposes;
- 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 that the Selection does not infringe the intellectual and/or industrial rights of Third Parties, in particular to the brands and models and authors' rights to the Images Selected and that may be displayed by the CLIENT, whatever the form or the medium;
- FITTINGBOX is and will be duly authorized to photograph and/or digitalize such SKUs and/or Lenses, in order to create Images, without having to obtain authorizations or pay royalties to any Third Party whatsoever;
- FITTINGBOX is and will be duly authorized to incorporate the digitalized SKUs and/or Lenses into Fittingbox Database and/or into its Solutions, without having to obtain authorizations or pay royalties to any Third Party whatsoever;
- FITTINGBOX is and will be duly authorized to perform broadcast / demonstrations at trade shows / public or private meetings;
- FITTINGBOX is and will be duly authorized to use, exploit, market, promote, sell, display, promote and distribute the Images incorporated into Fittingbox Database, as Frames Pics or as AR Frames, via its Solutions, for free or for consideration, worldwide, without conditions or restrictions and/or without having to obtain authorizations or pay royalties to the CLIENT or any Third Party whatsoever; and
- It will keep all relevant authorizations valid and in force as long as necessary.
FITTINGBOX reserves the right to suspend or revoke the access to the Selection or the Content immediately, without affecting the performance of the Agreement, with immediate effect and 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. LIMITED LIABILITY

IN NO EVENT WILL FITTINGBOX, ITS AFFILIATES OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS, BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT AND/OR THE USE – OR INABILITY TO USE – THE SOLUTIONS OR IMAGES OR SERVICES PROVIDED BY FITTINGBOX, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, INTELLECTUAL PROPERTY OR INFRINGEMENT CLAIM OR ACTION, LOSS OF BUSINESS, LOSS OF DATA, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS,
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 or the Images or the Services. 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 or the Images or the Services. The CLIENT must take all appropriate security measures beforehand and set up all the procedures required for the protection of its own information, programmes, files, databases etc., notably in terms of viruses, worms, Trojan horses and other kinds of computer attacks.
FITTINGBOX shall not be responsible for counterfeiting acts resulting from actions or omissions or negligence of the CLIENT and/or any Third Party, in any manner and for any reason whatsoever, whether it has modified the Solutions or the Images to suit its own expectations or specifications. Similarly, FITTINGBOX shall not be responsible for counterfeiting acts resulting from actions or omissions of CLIENT, whether the Solutions or the Images are being used in relation with other software, hardware or products not provided by FITTINGBOX.
FITTINGBOX shall be relieved of any responsibility and/or liability for any damages occurred, directly or indirectly, in all or in part, from a breach or a failure or inertia or negligence of the CLIENT.
The CLIENT is solely responsible for the adequacy of the 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 related liability; it shall hold FITTINGBOX harmless from any claims, including from Third Parties, due to the Content or the Selection, and undertakes therefore to indemnify FITTINGBOX for any direct and indirect damage or 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.
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

8.1. Intellectual Property Rights of FITTINGBOX

FITTINGBOX holds and retains all Intellectual Property rights directly or indirectly related to the performance of the Agreement, and in particular related to Fittingbox Database, the Images, the Solutions and/or any related Derivative Work, including their structure or content, be they copyrighted or not. The same goes with any technique, methodology, know-how, update, tool, material and/or other Intellectual Property right created by FITTINGBOX and/or enriched and/or held in full title by FITTINGBOX or any of its Affiliates or licensors during the Agreement. Under no circumstances these rights might be transferred to the CLIENT and/or any Third Party because of the execution or the termination of the Agreement. The CLIENT acknowledges and irrevocably accepts that these elements are significant items of FITTINGBOX’s assets; any disclosure of any of these elements may significantly damage FITTINGBOX.
The CLIENT undertakes not to modify and/or remove and/or alter 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 or inertia.
Whenever applicable, and subject to the CLIENT’s observing and performing all of its obligations under the performance of the Agreement, FITTINGBOX grants the CLIENT a License. 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.
Any unauthorized or non-compliant use of Fittingbox Database and/or the Images and/or the Solutions, or any other Intellectual Property rights of FITTINGBOX, shall be considered as a counterfeit act and the CLIENT shall be solely responsible for any damages it may occur or cause in relation thereto, including any damages or remedies in the aggregate caused by any Third-Party claim or action related hereto. In the event the CLIENT breaches this obligation, including by negligence, (i) FITTINGBOX shall be entitled to immediately terminate the Agreement, with no need for any authorization whatsoever from a court and without incurring liability, and without prejudice to any direct and/or indirect damages, and (ii) the CLIENT will defend, indemnify and hold FITTINGBOX and its officers, directors, employees, contractors, Affiliates and agents harmless from any and all claims, suits, demands, costs, liabilities, expenses, damages (including reasonable attorneys' costs and fees) and judgments (or settlements to which the CLIENT already consents) related to any default or breach or alleged default or breach of the Agreement or any other act or omission or negligence by the CLIENT relating to its obligations under the Agreement, , and (iii) the CLIENT undertakes to reimburse any profit and/or savings eventually earned by breaching this obligation, without prejudice to any additional damages or remedies FITTINGBOX may claim as a result of such breach or failure. FITTINGBOX shall also be discharged from all related liability.
In the event that FITTINGBOX expressively authorizes a Third Party to use and/or access Fittingbox Database and/or the Images and/or the Solutions, as the case may be, the CLIENT shall have this Third-Party priory entering into a confidentiality agreement with FITTINGBOX, exclusively in accordance with the terms and conditions set forth in the Agreement. 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 warranty, confidentiality, Intellectual Property and indemnification clauses of these GTCs. The CLIENT shall be fully liable for the compliance by the Third Party with those provisions and undertakes to indemnify FITTINGBOX against any damage that could result from it.

8.2. Intellectual / Industrial Property rights of the SKUs / Lenses

All property rights related to the SKUs and/or Lenses, including copyrights and trademarks reproduced on or used to designate such SKUs / Lenses, remain the exclusive property of the CLIENT or the Third Party which has granted to the CLIENT all or part of the related rights of use and/or operate and/or commercialize such SKUs / Lenses.
FITTINGBOX does not acquire any ownership of these elements, except the right to use them for its Digitization purposes and without prejudice to the guarantees set out in sections 6.2 and 8.1.

8.3. Intellectual Property rights related to Images

As the original creator of the Images, FITTINGBOX is and shall remain the exclusive owner of the Intellectual Property rights related to all and any Images created/or processed throughout the performance of the Agreement and/or incorporated into Fittingbox Database, including the underlying Digitization technology and their architecture. The Agreement, because its execution and/or termination, does not grant the CLIENT any Intellectual Property rights to any of these elements. Unless otherwise expressly mentioned in the Agreement, FITTINGBOX only grants the CLIENT a limited, temporary, non-exclusive, non-assignable, non-transferable, revocable License to use such Images, via a Solution solely; such rights granted for the duration of the Agreement and, as the case may be, the limited territory set forth in the Order Form, solely.
Under no circumstances the Intellectual Property rights related to the VTO Frames created/or processed under the performance of the Agreement may be conveyed to the CLIENT.
Notwithstanding the above, the Intellectual Property rights related to the Photographs created by FITTINGBOX directly under the performance of the Agreement might be transferred to the CLIENT, in particular for a Tier3 Classification, provided however that the CLIENT owns the trademarks and/or the exclusive Intellectual Property rights of the related physical SKUs or Lenses. Subject that the CLIENT has observed and performed all of its obligations under the performance of the Agreement and with respect to all FITTINGBOX’s Intellectual Property Rights, FITTINGBOX may assign to the CLIENT, to the maximum extent permitted by the applicable law, all the Intellectual Property Rights over such Photographs. In such case, the CLIENT shall grant FITTINGBOX a free-of-charge, non-exclusively, worldwide and for the duration of the copyright, right to use, adapt, represent, publish, distribute and/or commercialize such Photographs, in their current condition or as VTO Frames. As a consequence, FITTINGBOX shall be fully invested with the right to exploit such Photographs, in the widest possible way, including the right to use, exploit, reproduce, represent, modify, commercialize, transfer, by any means and processes, on any medium and formats, in an unlimited number, in whole or in part, for free or for a fee, for all activities of FITTINGBOX, and worldwide. The CLIENT shall not be entitled to receive any remuneration of any nature arising from the integration of the Digitization within Fittingbox Database and / or the Solutions or, in general, their past or future operation by FITTINGBOX. For sake of clarity, the CLIENT is hereby informed and acknowledges that the Images (either Photographs and/or VTO Frames) directly or indirectly produced by FITTINGBOX and/or its partner, either the CLIENT holds the related Intellectual property rights or not, may be incorporated into Fittingbox Database and/or the Solutions, represented, published, distributed and/or commercialized by FITTINGBOX to its customers and/or partners, either free-of-charge or in exchange for remuneration, leaving it to such customers and/or partners to have obtained the right to use these images and/or retail the corresponding SKUs from the corresponding frame manufacturer, without any financial compensation of any kind for the CLIENT and/or any Third Party.

9. PRICE AND TERMS OF PAYMENT

Whenever applicable, the CLIENT is aware and irrevocably accepts that this Section 9 may supersede to the invoicing sections of the terms and conditions 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 its 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 shall remain responsible for the effective payment of its invoices towards FITTINGBOX.

9.1. Price

The prices and terms of payment for the Setup, Solutions, Services – 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.
The prices and fees set forth in the Order Form do not include (i) the update and/or upgrade of the Solutions, (ii) the travel and accommodation expenses of FITTINGBOX, or (iii) the transportation costs of the SKUs / Lenses for Digitization purposes, that shall be borne or reimbursed by the CLIENT, exclusively.
It is reminded that the Digitization fees may be subject to the Classification and that Classification may be modified from time to time by FITTINGBOX, at its sole discretion.
The CLIENT recognises that only membership of a network might enable it 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 of the Agreement

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.
On renewal, and unless otherwise expressly mentioned in the Order Form, the Services shall be invoiced at the standard prices of FITTINGBOX, and/or without the initial rebate that might has been granted for the initial term of the Agreement as stated on the Order Form, if any. Unless Additional services subscribed by the CLIENT, no Setup fee shall be invoiced on renewal.
FITTINGBOX reserves the right to revise upward the applicable fees set forth in the Order Form, at each anniversary date of the Agreement, with a minimal increase of the latest applicable inflation rate or consumer price index.

9.3. Payment

Unless otherwise provided in the Order Form:
- The Setup and the Hardware fees (whenever applicable) are payable upfront at the signature of the Order Form;
- The invoicing of the License shall begin at the provision of the Identification Code;
- The Services fees are payable upfront once the order is placed;
- All invoices shall be paid within 30 days of the invoice date, by SEPA direct debit or by credit/debit card.
No discount or rebate shall be applied in the event of early payment.
Under no circumstances, FITTINGBOX could be requested to refund any payment made by the CLIENT under the Agreement.
Under no circumstances will the CLIENT have the right to suspend, delay or reduce the payment of invoices for any reason whatsoever.
If the CLIENT fails to pay when due 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.
In the event of failure to pay when due, FITTINGBOX reserves the right to suspend its Services, including the access to the Images and/or the Solutions, from the due date and until complete payment, by simple email, 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.
If the CLIENT fails to pay when due, FITTINGBOX shall invoice an 8% late interests penalty of the overdue invoice(s), or the maximum permitted by the applicable law – even at a State level, from the first day of delay and without a prior reminder. The aforementioned penalty is capitalized on the total overdue amounts and will be applicable until complete payment. A flat rate indemnity of $50 shall also be due automatically to each unpaid invoice, 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 its debt (judicial and extrajudicial).

10. CONFIDENTIALITY AND NON-DISCLOSURE UNDERTAKING

Each Party agrees and undertakes to keep as confidential all the Confidential Information related to the other Party, its business activity 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 the 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. PERSONAL DATA

Each Party undertakes to comply with all the applicable data protection, privacy and security laws and regulations, and in particular with 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.
The collection and processing of personal data of the CLIENT's end users or consumers, as the case may be, shall be performed under the responsibility of the CLIENT, as data controller.

FITTINGBOX strongly recommends the CLIENT to add and maintain a piece of information about the virtual try-on or measurement experience within its own privacy policy terms. FITTINGBOX may directly implement a pop-up information within the Solutions or provide a sample to the CLIENT. The CLIENT is and remains solely liable for the implementation of such disclaimer within its own privacy policy terms and/or for the modification or removal of the wording that might be provided by FITTINGBOX; therefore, the CLIENT shall hold FITTINGBOX harmless from any related claims, including from Third Parties and/or resulting of a class action, and undertakes to indemnify FITTINGBOX and its Affiliates for any direct and indirect loss and/or damage and/or expense that FITTINGBOX and/or its Affiliates may suffer as a result or in connection with any failure of this section 11.

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 contact@fittingbox.com for any question or enquiry related to any collection or process of personal data FITTINBPIX might be the data controller or data processor for.

12. MISCELLANEOUS

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 the Agreement.

12.2. Validity

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.

12.3. Modification

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.

12.4. No-waiver

A waiver is valid only in writing and if 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.

12.5. Independence

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 any of its rights and obligations, in whole or in part, whatever the duration and/or importance could be, without the prior express and written consent of FITTINGBOX.
FITTINGBOX reserves the right to refuse such approval 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 or the Services are provided, in order to preserve its intellectual property rights. Unless otherwise expressly agreed by FITTINGBOX (i) the CLIENT (here the transferor) and the transferee will jointly and severally be liable for the terms and conditions of the License; (ii) the CLIENT remains responsible of the payment of the entire contribution fees due to FITTINGBOX, prior to the assignment of the Agreement.
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 the 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 (e.g. LinkedIn, Facebook, Instagram, 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.

12.8. Electronic evidence

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

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

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

12.9. Non-solicitation

Unless otherwise expressively agreed by FITTINGBOX, during the term of the Agreement and for a period of two (2) years following the expiration or termination of this Agreement, the CLIENT shall not, directly or indirectly, solicit for employment any person employed by or under contract with FITTINGBOX or its Affiliates, and even if the initial solicitation comes from such person and either he/she has already terminated his/her employment or services agreement with FITTINGBOX or not. In case of a breach of this section, the CLIENT shall pay to FITTINGBOX a lump sum equal to 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.

13. CONCILIATION

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 executive officers 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 decisions, if agreed by mutual consent, shall be deemed to have a contractual value.

14. DISPUTES

THE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS WILL NOT APPLY TO THE AGREEMENT.
ANY DISPUTE ARISING UNDER, IN CONNECTION WITH, OR INCIDENT TO THIS AGREEMENT OR ABOUT ITS INTERPRETATION WILL BE RESOLVED EXCLUSIVELY THE COURTS OF NYC, NEW YORK, IRRESPECTIVE OF THE AGREEMENT’S EXECUTION LOCATION, THE RESIDENCE OF THE DEFENDANT OR THE ACCEPTED SETTLEMENT METHOD, EVEN IN CASE OF THE INTRODUCTION OF THIRD PARTIES OR MULTIPLE DEFENDANTS. THE CLIENT IRREVOCABLY SUBMITS TO THOSE COURTS’ VENUE AND JURISDICTION. THE CLIENT WAIVES ALL DEFENSES OF LACK OF PERSONAL JURISDICTION AND FORUM NON-CONVENIENS. A FINAL JUDGMENT IN ANY SUCH SUIT OR ACTION MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.
ANY PROCEEDING TO RESOLVE OR LITIGATE ANY DISPUTE IN ANY FORUM WILL BE CONDUCTED SOLELY ON AN INDIVIDUAL BASIS. NEITHER PARTY WILL SEEK TO HAVE ANY DISPUTE HEARD AS A CLASS 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