GENERAL TERMS OF LICENSE AND USE FOR FITPHOTO/FITLIVE/FITMIX – OWIZ APP – OWIZ PLUGIN – OWIZ WEB
”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 of the voting shares or similar interest in said company, or the power to direct or cause the direction of the management and policies of the relevant company, including without limitation a party’s joint venture partners.
”Agreement” means these General Terms and Conditions, the Order Form and the Exhibits, if any. By signing the Order Form and/or by using the Products and Services, the CLIENT expressly and unreservedly and irrevocably agrees to the terms and conditions contains in these documents, and their full enforcement. In the event of any conflict or inconsistency between these documents, the General Terms and Conditions shall prevail in any circumstances. In the event of conflict between contractual documents relating to the same object, the contractual documents shall have the following increasing priority:
- The Order Form of the CLIENT,
- The last version of the GTLU,
- The specific terms, if relevant.
“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 Products and Services and or MyFittingBox and/or FBxData.
“CLIENT” means the optical-eyewear professional (independent, retail chain, pure player, distributor, manufacturer, etc.) of optical products and related products, as mentioned in the Order Form.
“Confidential Information” means all information disclosed by a Party to the other Party in writing or by oral communication which is designated as confidential or for which the receiving Party cannot reasonably be unaware of the confidentiality of the information or the conditions under which they are disclosed. The Agreement, the structure of the Products and Services and / or MyFittingBox, the content of FBxData, the documentation relating to the Products and Services are also considered as Confidential Information.
“Content” means any element, in any form whatsoever, placed by the CLIENT on the corresponding Product, including the Customer Selection.
“FBxData” means the database of digital frames developed and enriched by FITTINGBOX; FBxData contains, in particular, 2D or 360 images ((ht “Photographs”), 3D images or files (the “VTO frames”), and related Metadata. It is clearly stated that the CLIENT is authorized to access to FBxData in accordance only with the License granted under the Agreement and to the exclusion of any other use, only by using the Products and Services and / or MyFittingBox if applicable.
“FITTINGBOX” means FITTINGBOX, a limited liability company, and/or its Affiliates, directly or through an agreed partner or distributor or reseller, that supplies and hosts software solutions for optic and eyewear professionals; FITTINGBOX provides the CLIENT the Products and Services, with a setup fee (hereinafter, the “Setup”) and a subscription fee, as described on the Order Form.
“Force Majeure” means any external event, unpredictable, irresistible and outside the will of the Parties.
“General Terms and Conditions” or “GTLU”: means this document. The CLIENT is aware and irrevocably accepts that others FITTINGBOX’s products and services, and in particular the solutions referred to as OWIZ APP, OWIZ PLUGIN and OWIZ WEB and digitalization services, are governed by dedicated terms and conditions. These GTLU may be modified from time to time by FITTINGBOX, at its sole discretion. The last version of the applicable General Terms and Conditions may be found at http://www.fittingbox.com/legal. As the case may be, and provided that it is consistent with the Products and Services for which the CLIENT has a regular License, a pop-up message informing of such modification could appear when the related software is updated; in such case, and in order to continue to use the related software, the CLIENT shall accept the last version of the General Terms and Conditions. These GTLU may be modified from time to time by FITTINGBOX, at its sole discretion. The last version of the GTLU may be found at http://www.fittingbox.com/legal.
“Intellectual Property” means any patent, copyright, trademark, trade dress, trade name or trade secret right and any other intellectual property or proprietary right of FITTINGBOX and/or its Affiliates, anywhere around the world, whether such rights are registered or unregistered and including the goodwill attaching to such rights and the right to apply for any such rights.
”License” means the granting of rights to use the Products and Services and/or MyFittingBox and/or FBxData made by FITTINGBOX to the CLIENT according to the terms of section 5. The License granted under the performance of the Agreement allows the CLIENT to access and use the Products and Services and/or MyFittingBox and/or the content of FBxData, in their standard version as existing at the signature date of the Specific Terms and Conditions. The License also includes the standard corrective, adaptive and/or progressive maintenance of the Products and Services as long the Subscription is not revoked by the CLIENT.
“MyFittingBox” means the interface developed by FITTINGBOX, allowing the CLIENT to access the back office of the Products and Services and in which the CLIENT can make its selection of frames, by brand or by reference, to present them on the Products And Subscribed Services (hereinafter “Client Selection”), up to a number of frames as specified by the Order Form; The ability to associate to each brand and / or each frame reference composing its Client Selection, a text on the technical or aesthetic characteristics of the brand concerned.
“Order Form” means the document supplementing the present GTLUand constituting an order form. The Order Form specifies in particular the identity of the CLIENT, the commercial offer of FITTINGBOX and the effective date of the Agreement. The signature of the Order Form and / or the use of the Products and Services involve the express and irrevocable acceptance of the CLIENT to the present General Conditions.
“Products and Services” means FitPhoto / FitLive / FitMetrix and/or OWIZ PLUGIN and/or OWIZ WEB and/or OWIZ APP and/or FBxData designed and licensed by FittingBox, as well as the services associated therewith. The Products and Services constitute a standard offer which is not tailored to suit the specific requirements of the CLIENT. The CLIENT recognises that he has received full and precise information on the Products and Services for the purpose of entering into these undertakings in an informed manner.
“Setup” means the installation, configuration, parametering, activation and training costs for the Products and Services. The Setup fee includes access to the Products and Services and to MyFittingBox, as the case may be, in their standard version as of the Contract signing date. The Setup is due only once by the CLIENT, at the signature of the Agreement and independently of the License fees.
“Support” means a hardware support that is compatible with OWIZ APP, as well as any hardware accessories.
“Third Party” means any natural person and/or legal entity other than the CLIENT.
These GTLU only apply for FITTINGBOX’s Products and Services, provided by FITTINGBOX and/or its agreed partner throughout the performance of the Agreement. Unless otherwise expressively mentioned in the Order Form, CLIENT is aware and irrevocably accepts that others FITTINGBOX’s products and services, and in particular stores solutions referred to as OWIZ MIRROR and OWIZ STREET and digitalization services, are governed by dedicated general terms and conditions.
The signature of the Order Form and / or the use of the Products and Services involve the express and irrevocable acceptance of the CLIENT to the present General Conditions of Use.
In the event of any inconsistency, and with exception to the French version, the English version of the GTLU shall prevail in any circumstance; any translation of the GTLU and with exception to the French version is for reference purposes only.
2. DESCRIPTION OF THE SERVICES
2.1 Products and Services
The Products and Services subscribed to by the CLIENT, in a pack or not, are listed and broken down in the Order Form and their characteristics and functionalities are explained in the specific terms and/or the description provided by FITTINGBOX. The CLIENT may subscribe Products and Services pack of a higher level during the term of the Agreement. In such case, it shall commit to a new term of subscription, of the same term as the initial term, at the catalogue price in force which FITTINGBOX will have communicated to him beforehand, subject to the rebates applied (if any).
The Services may notably include:
- the supply of virtual wear technology developed by FittingBox, which enables users of the CLIENT to try on virtually the frames which have been selected and, as the case may be, marketed by the CLIENT; 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 FBxData, organized by brands in which the CLIENT can make the Client Selection; and or
- the hosting of the Products and Services by FITTINGBOX; and/or
- the supply of remote support and assistance services, and in particular via webinars and/or MOOC; and/or
- the provision of corrective, adaptive and/or progressive maintenance of the Products and Services, in their regular version and with exception for until a certain number of frames as stated on the Order Form; the option of adding a text to accompany each brand composing the Client Selection stating the technical or aesthetic characteristics of that brand; the CLIENT is solely liable for the Content of his text; and/or billable new functionalities, features or modules; and/or
- the provision of any Support, whether leased or not, and in accordance with the terms and conditions set out in the Order Form.
FITTINGBOX does not give any undertaking or warranty of an automatic and/or effective referencing of the CLIENT in the results of the directory on http://www.allolunettes.com/ or any other website that might substitute to it.
The Products and Services, and the Hardware as the case may be, as well as any component thereof, are provided “as is” with no representation or warranty of any kind, express or implied, statutory, or otherwise, as to their quality, performances, usage of trade or results. FittingBox cannot guarantee that the Products and Services will be error free or will work continuously. All the guaranties or warranties granted by FITTINGBOX are expressively set forth in these GTLU; FITTINGBOX will refuse any other guaranty or warranty, whatever it is, it does not have priory agreed in written and/or expressed by Third Parties. FITTINGBOX will refuse any warranty of any kind in case a failure of the Products and Services results, in all or part, directly or indirectly, from a software of hardware used in conjunction and/or in addition with the Products and Services, and more generally from any system not provided by FITTINGBOX and/or installed by the CLIENT or a Third Party without prior express authorization and instructions from FITTINGBOX.
FittingBox does not give any undertaking as to the evolution of the Products and Services 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 separately; FITTINGBOX reserves the right to incorporate them into its standard offering and/or to offer them to the CLIENT, at its sole discretion.
2.2 Specific conditions for the Support (if applicable)
When the Support is not provided by FITTINGBOX, it is the CLIENT’s responsibility to acquire, at its own expense, from an exhaustive list of compatible references provided by FITTINGBOX. FITTINGBOX gives no guarantee or assurance of compatibility apart from these limiting material references.
Where the Support is provided by FITTINGBOX under the Agreement, and subject to compliance by the CLIENT (i) with its obligations under the Agreement and (ii) recommendations for use of FITTINGBOX and / or the manufacturers of the Support, The CLIENT benefits from the same guarantees as those granted by the manufacturer of the Support. FITTINGBOX does not provide any substitute or supplementary warranty to that provided by the manufacturer of the Support. As FITTINGBOX is not the manufacturer of the Support, it does not guarantee the availability or proper functioning of the Support. . This warranty will not apply in case of a failure of the Support resulting, in all or part, directly or indirectly, from a software of hardware used in conjunction and/or in addition with the Support, and more generally from any system not provided by FITTINGBOX and/or installed by the CLIENT or a Third Party without prior express authorization and instructions from FITTINGBOX.
In the event of a supply problem (out of stock, withdrawn reference from the market, etc.), FITTINGBOX will make its best efforts to provide an equivalent and compatible Product Support within a reasonable period of time. In the event that the Supplied Support is found to be defective, FITTINGBOX will make its best efforts to replace such Support within a reasonable period of time following notification of failure by CLIENT to FITTINGBOX within the manufacturer’s warranty on said Support and provided that such notification takes place within a maximum period of thirty (30) calendar days following the failure in question.
In the event that, under this warranty, replacement hardware is provided by FITTINGBOX to the CLIENT, the CLIENT expressly and irrevocably agrees to uninstall the old Support and install the new Support 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 Support will be re-invoiced identically to the CLIENT.
In order to facilitate return management and transport in the best conditions, the Support shall be returned in its original packaging. FITTINGBOX cannot guarantee the application of this warranty if the Support is returned without its original packaging.
2.3 Specific conditions for FitPhoto / FitLive / FitMix or Owiz Plugin (if applicable)
In case a License for FitPhoto / FitLive / FitMetrix or Owiz Plugin has been subscribed and granted, as mentioned in the Order Form, the related License is granted in object code format only, for the Client’s own use, for the website’s) specified in the Specific Conditions and for the duration of the Agreement solely. It is stressed that these VTO solutions can be displayed on the URL address(es) strictly mentioned in the Specific Condition and with exclusion to any declension and/or extension. This Agreement, because its execution and/or termination, for any reason whatsoever, does not grant the Client and/or any Third Party any other Intellectual Property rights to these VTO solutions.
2.4 Specific conditions for Owiz Web (if applicable)
Unless otherwise expressively mentioned in the Order Form, OWIZ Web is necessarily provided as an additional service to OWIZ PlugIn. The OWIZ Web solution consists in the provision of a tool enabling the CLIENT to compose the website of his optical store himself with several tabs (e.g. home, news, store, our brands, virtual mirror, your eyesight, our differences and plan & contact). OWIZ Web shall, in particular, enable the creation of printable promotional coupons (without restriction on the number of impressions). The CLIENT is responsible for the legal notices associated with its business activity and in particular with the promotional offers.
- FITTINGBOX undertakes to reserve the domain name chosen by the CLIENT, provided it is available and that the CLIENT warrants its lawfulness, except where the structure of the domain name or subdomain name is already defined in the terms and conditions of membership to a network (including a logo) or its policy, of which the CLIENT is a member or if the reservation is in breach thereof.
- If the CLIENT is no longer a member of the network (including the commercial sign of such network) during the term of the Agreement, FITTINGBOX may change the domain name in order to comply with the rights of the network (including the logo and/or the commercial sign) and in particular with regard of the intellectual property rights of such network.
- If the CLIENT already has an existing domain name and, as the case may be, an existing website with this domain name, and he wishes to have OWIZ Web available on this domain name in replacement of his former website, FITTINGBOX undertakes to transfer the domain name in consideration for a lump sum of eighty (80) Euros excluding tax, notably covering the administrative costs, except where the structure of the domain name has already been defined in the terms and conditions of membership to a network (including a logo and/or commercial sign) and/or defined in its policy, to which the CLIENT adheres, or if the reservation is in breach thereof.
- FITTINGBOX shall not make any backup of the former website of the CLIENT. Consequently, the CLIENT shall not be able to recover his former website through FITTINGBOX. Optionally, a backup may be requested by the CLIENT at FITTINGBOX. If so, this service will be invoiced in addition to any other billing issued by FITTINGBOX.
Characteristics and functionalities:
The CLIENT undertakes to create the Optician’s Website using and in compliance with the instructions of FITTINGBOX and/or provided by the creation module available on-line.
The following elements form an integral part of the Content defined in these GTLU:
- The presentation texts which the CLIENT has put on-line on the Website to promote his sales outlet and, as the case may be, in the results of the directory on http://www.allolunettes.com/ or any other website that might substitute to it, as well as any additional information;
- The elements composing the Customisable Optician Page;
- The Website, including the comments and remarks which the CLIENT may associate with the brands composing the Client Selection and the choice of domain name of the ECP Website; and
- The advertisements and/or sales animation.
The CLIENT may offer to the Website’s users the virtual on-line service based on the technology developed by FITTINGBOX, by using a photograph and/or in real time, as the case may be and depending of the browser and/or the operating system used by the end user, to try on spectacles. The CLIENT may, under his full liability, choose its Client Selection. For each brand composing the Client Selection, the CLIENT may associate a text on the technical or aesthetic characteristics of the relevant brand. The CLIENT shall be solely liable for the content of its Client Selection and/or of its website (the “Content”).
Visuals of spectacles of the brands which the CLIENT has declared available for purchase at his store may be placed in various locations of OWIZ Web. These visuals shall be taken from FBxData. End users of OWIZ Web shall be required to contact the CLIENT to check the availability of the products with the CLIENT. FITTINGBOX shall not be liable for the lack of availability of a product which happens to be displayed on the ECP Website.
The CLIENT expressly authorises FITTINGBOX to geo-localise the store of the CLIENT.
The referencing service of OWIZ Web consists of having the website indexed by the main search engines (Google, Yahoo and Bing). FITTINGBOX undertakes to take the actions required for the Website to be indexed by search tools and shall apply reasonable efforts in this respect. Nevertheless, FITTINGBOX cannot warrant that the Website shall be taken into account by all search engines as a result of their current developments, reactivity or offers of referencing for financial consideration.
Considering the constant evolution of search engines, FITTINGBOX cannot give any undertaking as to the positioning of the Website in search engines for a given enquiry.
Termination of the Agreement:
The CLIENT is not the owner of the OWIZ Web website. The hosting service of the website shall terminate on expiry of the Agreement. The website shall no longer be available on-line and FITTINGBOX shall not renew or keep the domain name given to the ECP website.
If the CLIENT wishes, the domain name may be sold to him in consideration for a flat rate payment of 80 Euro (on the USD equivalent, depending on the currency mentioned in the order form) excluding tax, which in particular covers the administrative costs of transferring the domain name. Upon termination date, FITTINGBOX shall be entitled to delete the Content(s).
FITTINGBOX shall not make any backup of the Optician’s Website and its Content, or the statistical data, and does not warrant any reversibility of the website and its Content. Consequently, the CLIENT shall not be able to recover the website and its Content on termination of the Agreement.
3. OBLIGATIONS OF THE PARTIES
3.1 Obligations of FITTINGBOX
Access to Products, Services and hosting:
FITTINGBOX undertakes to supply the Products and Services to the CLIENT under the terms set out in the Agreement, until the expiry of the Agreement. When applicable, it is stressed that CLIENT is solely liable of the choice of its Internet provider and of payment of the related service.
FITTINGBOX shall ensure the delivery of and access to the Products and Services by:
- The supply of the url address, if necessary and subject to its availability, which will be communicated to him by the CLIENT, and the integration code, if required,
- The communication of the appropriate codes to access the Services and/or the administration interface of the related Product (Login or password) or allocated to the CLIENT by FITTINGBOX (hereinafter the “Identification Code”).
FITTINGBOX or the Third Party in charge of the hosting service, as the case may be, shall make reasonable efforts to keep the Products and Services accessible.
FITTINGBOX commits itself to an obligation of means only in providing the Products and Services under the terms set out in the Agreement; the CLIENT agrees that access to the Products and Services may be suspended without FITTINGBOX incurring liability as a result, in particular in the event of malfunctioning or the temporary suspension of access to the Services, in particular due to the suspension of the supply of electricity or telecommunications, suspensions required for updating or maintenance, breakdown or malfunctioning of the Internet network in the transmission of messages or documents.
Support and assistance:
FITTINGBOX undertakes to provide support as soon as possible following a request from the CLIENT in the use of the Products and Services, by telephone, at no extra cost, during business hours of FITTINGBOX (from Monday to Friday from 9 a.m. to 6 p.m., GMT+1, excluding the holidays), or to the e-mail address firstname.lastname@example.org, subject to the undertakings given by the supplier of Support(s), if any, who provides level 1 support to the CLIENT.
3.2 Obligations of the CLIENT
The CLIENT undertakes not to use the Products and Services 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 Products and Services are complying the terms and conditions resulting from these General Terms and Conditions.
The CLIENT shall take all necessary measures to prevent any unauthorized use of the Products and Services and/or any use that may interfere with or disrupt the integrity or performance of the Products and Services.
The CLIENT undertakes not to reverse engineer, decompile or disassemble the Products and Services, reconstitute or attempt to reconstitute the source code of the Products and Services, or to enable any unauthorized Third Party to gain access thereto, in any manner whatsoever directly or indirectly, and irrespective of the cause.
The CLIENT undertakes not to extract all or material parts of FBxData or to extract on a regular basis parts of such database and its contents which are not material other than as may be necessary to benefit from the Services. Under no circumstances the CLIENT may be allowed to use or re-use the Photographs and/or the VTO frames, directly or indirectly, in any manner whatsoever, in order to create or enrich a competitive database, and in particular for distribution and/or commercial purposes.
The CLIENT shall take immediate steps to prevent and/or confine such actions and shall immediately notify in written FITTINGBOX of them.
FITTINGBOX reserves the exclusive right to intervene on the Products and Services, including for maintenance or interoperability operations. The CLIENT undertakes to install any update or patch provided by FITTINGBOX in relation with the Products and Services. The CLIENT shall never have more than 1 gap with the last update or patch provided by FITTINGBOX.
The Identification Code is under the sole responsibility of the CLIENT. It constitutes a means of authentication of the CLIENT and proof of identity. It enables his access to be approved and proves his consent to the operations performed. 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 Products and Services due to any use by members of its staff or by any other person to whom the CLIENT may have provided his Identification Code.
The CLIENT is aware of the material configuration requirements (compatible hardware and peripheral devices, Internet network, Wi-Fi etc.) for the Products and Services to function properly and undertakes to set up and maintain them at his cost throughout the entire term of this Agreement and the renewal periods thereof, including in the event of the evolution of these requirements which he will be informed of by FITTINGBOX and/or any network operator and/or supplier of the Support(s)).
The CLIENT is aware and accepts that any disrespect of such requirements may result in degraded operation or malfunction of the Products and Services; in no event will FITTINGBOX be liable for such disrespect and their consequences.
Warranty on the Content:
The CLIENT is solely liable for determining the Content, i.e. any element, in any form whatsoever, placed by the CLIENT on the related Product.
The CLIENT notably warrants to FITTINGBOX that:
- the creation, dissemination, use and operation of the Content is lawful, in compliance with public policy and good moral standards, and compliant with current regulations;
- the Client Selection and the Content do 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 used on his Website or Medium which are accessible using the Services;
- he has procured any authorisation required from the holders to use and market the Client Selection derived from FBxData, and shall maintain such authorisation up-to-date throughout the entire term of the Agreement;
- If the CLIENT is a member of a network of opticians, that the Content and the name of the website comply with the terms of conditions of membership and the policies of the network (including the logo).
The CLIENT shall take all measures required to back up the Content. FITTINGBOX does not provide any backup or reversibility of the Content.
Each Party undertakes to comply with all the applicable Data Protection, Privacy and Security laws and regulations, and in particular with the European Regulation 2016/679 of 27 April 2016 and/or with the US Health Insurance Portability and Accountability Act of 1996 (Pub.L. 104–191, 110 Stat. 1936, enacted August 21, 1996), as amended, and take any administrative measures required of.
According to the applicable Data Protection Regulations, the CLIENT may exercise its right of access to and rectification of all of its personal data, by sending an email at email@example.com or ta mail at o the following mailing address: FITTINGBOX – Bat Arizona A – 644 l’Occitane – 31670 Labege – France.
The collection and processing of personal data of the clients of the CLIENT through the Products and Services shall be performed under the responsibility of the CLIENT, as data processor. In particular, it is the CLIENT’s responsibility to ensure that the selfies or wish list performed by the end users through the Products and Services, and any other data or information entered by using the Products and Services as well, are personal data that might be used for the purposes of the Owiz services and/or for commercial display.
The CLIENT is aware and irrevocably accepts that FITTINGBOX reserves the rights to collect Big Data within the performance of the Agreement through the use by the CLIENT and/or users of the Products and Services. FITTINGBOX is entitled to use and exploit such Big Data (aggregated and anonymous data), for or without consideration, notably for purposes of geo-localisation and/or statistics and/or analysis.
4. LIABILITIES – LIMITATION
Each Party shall be responsible for the proper performance of its required actions and its own obligations under the Agreement.
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 Products and Services, or the defects, non-conformities of bugs which, as a consequence, may affect the Product or any other hardware or software, and more generally on any system, and in particular all direct or indirect consequences.
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 Products and Services.
The CLIENT must take all appropriate security measures beforehand and set up all the procedures required for the protection of the information, programmes, files, databases etc., notably in terms of viruses, worms, Trojan horses and other kinds of computer attacks.
The CLIENT is solely liable for the Content and the Client Selection and discharges FITTINGBOX from all liability and shall hold FITTINGBOX harmless from any claims, including from Third Parties, due to the Content or the Client Selection.
The CLIENT 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 access to the Products and Services if the Content or Client Selection 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 CLIENT shall take out insurance with a leading insurance company to cover any liability which it may incur in relation to the Agreement.
To the maximum extent permitted by law, in no event shall FITTINGBOX be responsible for any special, incidental, indirect or consequential damages whatsoever (including without limitations damages for loss of business profits, business interruption, loss of business information, or any other pecuniary loss) arising out the performance of this Agreement and/or the delivery of the Products and their related services.
If the liability of FITTINGBOX is incurred for any reason whatsoever in relation to the Agreement, including on the grounds of Clause 5 hereunder, it is expressly limited to the direct loss incurred by the CLIENT and the maximum amount of compensation for all causes together shall not exceed the amount paid in the last six months, by CLIENT, VAT excluded, for the Product or Service that caused the damage and provided that there is a clear and direct link between such Product or Service and the occurred damage.
5. INTELLECTUAL PROPERTY
All the Intellectual property rights to the Products and Services and/or MyFittingBox and/or FBxData, including the underlying technology and architecture and/or content, are and shall remain the exclusive property of FITTINGBOX or the Third Party who granted all or part of the rights to FITTINGBOX. The CLIENT shall not acquire any right to these elements.
Subject to the CLIENT’s observing and performing all of its obligations under the performance of this Agreement, FITTINGBOX hereby grants the CLIENT a License to use the Products and Services mentioned in the order form, in object code format only.
This License is granted for the duration of the Agreement and for the territory set forth in the order form (unless otherwise specified in the order form, the territory is the place where the CLIENT has its main business).
The CLIENT undertakes not to modify and/or alter the notices related to the physical and/or the intellectual property of FITTINGBOX, whatsoever.
The CLIENT undertakes not to 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 termination of the Agreement for any reason whatsoever, does not grant the CLIENT and/or any Third Party any other Intellectual Property rights to the Products and Services.
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.
It is stressed that the CLIENT is and remains solely responsible for the frames images that it has chosen to use and display on the Products and Services, and in particular with respect to the right to use, reproduce, and display such frames images as well as the right to disclose, distribute, market and/or advertise for the related physical frames. Client discharges FITTINGBOX from all liability and shall hold FITTINGBOX harmless of any claims or damage, including from Third Parties, resulting from the breach of this warranty.
Any unauthorized or non-compliant use of the Products and Services shall be considered as a counterfeit act and the CLIENT shall be solely responsible for any damages it may occur or cause in relation thereto, including any damages or remedies in the aggregate caused by any Third Party claim or action related hereto, and without prejudice to any remedies, damages and/or other rights that may be claimed by FITTINGBOX. The Client shall hold FITTINGBOX harmless of any claims or damage, including from Third Parties, resulting from the breach of this warranty. FITTINGBOX shall also be discharged from all related liability.
In the event of the breach of any provision of this article 5 FITTINGBOX shall be authorized to immediately, with no need for any authorization whatsoever from a court and without incurring liability, suspend the access to the Products and Services and remove immediately any concerned frames images or related data, without prejudice to its right to terminate this Agreement according to the procedures set out in Clause 8.
6. PRICE AND TERMS OF PAYMENT
The CLIENT is aware that the invoices may be established electronically. The e-invoice will have the same legal value as a paper invoice and will be enforceable against the CLIENT and any third person.
The CLIENT is aware and irrevocably accepts that this Section 6 may supersede to the invoicing sections of the general terms of sale of the Distributor of the Support, in case of failure of such Distributor.
If the CLIENT is a member of a network, the CLIENT gives his authorisation to FITTINGBOX to send the invoices of the CLIENT in relation to this Agreement to such network (including the commercial brand). The CLIENT remains solely responsible for the payment of its invoices towards FITTINGBOX.
The prices and terms of payment for the Products and Services 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.
Under no circumstances, FITTINGBOX could be requested to repay any payment made by the CLIENT under the Agreement.
The CLIENT recognises that only membership of a network enables him to enjoy the preferential terms and/or tariffs applicable to the aforesaid network. If the CLIENT ceases to be a member of such network during the performance of the Agreement, for any reason, the standard terms and/or prices of FITTINGBOX shall apply automatically for the remaining term of the Agreement. Loss of membership shall not entitle the CLIENT to terminate the Agreement.
The CLIENT may request specific services from FITTINGBOX. A separate quotation and Order Form shall be issued for any request of this kind. FITTINGBOX reserves the right to refuse to perform such specific services requested by the CLIENT, at its sole discretion and without having to justify its decision. if any, the FITTINGBOX agreement, will result in the issuance of a quote and a separate Order Form.
6.2 Price on renewal of the Agreement
In cases of tacit renewal, the price of the Products and Services for the term of commitment shall not include Setup costs.
The Products and Services shall be invoiced at catalogue prices – with a discount for membership of a network, if applicable – but without the initial rebate provided for the initial term of the Agreement as stated on the Order Form.
FITTINGBOX reserves the right to review the price of Products and Services up to a maximum of the variation in the SYNTEC index at the anniversary date of the Agreement, on its successive renewals.
Unless otherwise provided in the Order Form:
- The Products and Services shall be paid according to the terms set out in the Order Form, by SEPA direct debit or by credit/debit card. Unless otherwise provided in the Order form, the Setup is invoiced at the signature date of the Agreement and invoicing for the Products and Services shall begin on the 1st of the month following the communication of the Identification Code.
- The Setup and the Hardware provided by FITTINGBOX, if any, are paid cash at the signature of the Order Form.
- Except the Setup and Support, the payment of the invoices should be made within 30 days of invoice date. The invoicing of the License shall begin at the provision of the Identification Code.
No rebate shall be applied in the event of early payment.
If the CLIENT fails to pay when due and/or in case of a deterioration or downgrading of the CLIENT’ solvency (creditworthiness), FITTINGBOX shall be entitled to modify the payment terms set forth in the Order Form, and in particular turn any payment in arrears into payment in advance, unilaterally and without notice, simply by sending a written notification to the CLIENT.
If the CLIENT fails to pay when due, FITTINGBOX shall invoice a 8% late interests penalty of the overdue invoice(s), or the maximum permitted by the applicable law – even at a State level, from the first day of delay and without a prior reminder. The aforementioned penalty is capitalized each year on the total overdue amounts, and will be applicable each year until complete payment.
A flat rate indemnity of 40 Euro or $50 – depending on the currency mentioned in the Order Form – shall also be due automatically as a result of any delay in payment, for the costs of recovery, in addition to interest for late payment.
The CLIENT shall also bear the cost of the definitive amount of any costs incurred by FITTINGBOX for the recovery of his debt (judicial and extrajudicial).
In the event of failure to pay when due, FITTINGBOX reserves the right to suspend access to the Products and Services simply by sending a written notification to the CLIENT and until complete payment , without prejudice to its right to terminate this Agreement according to the procedures set out in Clause 8.
7. ENTRY INTO FORCE AND TERM OF THE AGREEMENT
The Agreement shall enter into force on the date of signature of the Order Form until the expiry of its term, which constitutes a firm and definitive subscription period.
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 or, if applicable, the date of installation of the Hardware by the Distributor.
By signing this document, CLIENT hereby acknowledges and irrevocably accepts the GTLU hereto.
The CLIENT is aware that the contractual documents may be signed electronically. The digital signing will have the same legal value as a handwritten signing and will be enforceable against the CLIENT and any Third Persons.
Unless the Agreement is terminated according to the procedures set out below, it shall then be tacitly renewed for successive periods of the term provided in the Order Form, under the terms and conditions set out herein.
Any new period of contractual commitment 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.
If the CLIENT does not wish to renew his Agreement at its term, the CLIENT must send a letter at least three months prior the term of the Agreement by registered letter with confirmation of receipt to: FITTINGBOX – 644 Voie l’Occitane, Bat Arizona A, 31670 LABEGE (France).
The License granted will cease once the Agreement terminated, for any reason whatsoever.
8. TERMINATION BEFORE THE TERM
The Agreement may be terminated by either Party in the event of serious breach by the other party of one of its legal obligations within fifteen (15) calendar days of the dispatch of a formal demand to remedy this breach which has remained without effect.
Are considered as serious breaches: failure to pay an invoice when due, non-compliance with Confidential Information obligations, non-compliance of the CLIENT regarding its obligations pursuant to the warranties in the Content and the Client Selection, non-compliance of the CLIENT regarding the Intellectual Property rights of FITTINGBOX and/or its Affiliates and/or its agreed partners.
Except a justified Force Majeure event, in the event of early termination by the CLIENT or due to the CLIENT, for any reason whatsoever – including the assignment or the termination of his lease or business – the CLIENT shall remain liable, as first compensation, for all the amounts set forth in the related Order Form, and including all the License fees which shall become due over the remaining term of the Agreement (irrespective of whether such term is the initial term or a renewal), without prejudice to any other damages or penalties. For the avoidance of doubt, it is stressed that an address modification and/or the conversion from one corporate form to another and/or a registration number modification shall not be considered as a legitimate reason to terminate the Agreement, not a Force Majeure Event.
Notwithstanding the foregoing, and subject to (i) the CLIENT being up-to-date with its payment obligations and (ii) the transferee or the substitute owner subscribes to a new Agreement with FITTINGBOX on at least an equivalent contractual scope of Products and Services, early termination penalties mentioned in Article 8 shall not apply.
Also, FITTINGBOX reserves the right to terminate the Agreement, with immediate effect, in case of a change of control of the shareholder structure of the CLIENT or a taking-over of the CLIENT by a direct or indirect competitor of FITTINGBOX or its Affiliates.
9. CONFIDENTIALITY AND NON-DISCLOSURE UNDERTAKING
The CLIENT agrees and undertakes to keep as confidential all the Confidential Information concerning FITTINGBOX, the Products and Services, 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.The CLIENT agrees not to use this Confidential Information for any purpose other than those provided in the Agreement.
The CLIENT shall provide the same care for the protection of such confidential information as for its own confidential information.
The CLIENT 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 FITTINGBOX, in whole or in part, provided during this Agreement, without the prior express written agreement of FITTINGBOX.
The CLIENT 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 CLIENT shall (i) immediately notify FITTINGBOX so that FITTINGBOX may apply for a protection order or take action (Ii) take all necessary measures to maintain the highest possible level of protection.
Upon termination of the Agreement, and for any reason whatsoever, the CLIENT shall return all information and documents relating to FITTINGBOX and transmitted to it within the framework of the Agreement, without keeping a copy thereof, except in compliance with legal and regulatory obligations, as soon as possible.
The CLIENT acknowledges that any breach of this Section 9 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.
At its effective date, the Agreement expresses the full agreement of the Parties with regard to its purpose; it cancels and replaces any previous agreement, letter, offer or other document having the same purpose. Under no circumstances may the CLIENT’s Order Form or general terms and conditions be enforced on FITTINGBOX.
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.
The Agreement may only be modified by means of an amendment duly signed by the Parties’ authorized representatives. Any request for a modification must be sent to the address of the Party concerned by recorded delivery letter with advice of receipt.
A valid waiver is in writing and signed by the party waiving its rights. The waiver by either Party of a breach or default of any of the provisions of this Agreement by the other Party shall not be construed as a waiver of any succeeding breach of the same or other provisions nor shall any delay or omission on the part of either Party to exercise or avail itself of any right power or privilege that it has or may have hereunder operate as a waiver of any breach or default by the other Party.
The relations instituted between the Parties by the Agreement are those of independent contra-parties and the Agreement intends to institute no other relationship between them. Neither party is an employee, agent, partner or joint venture of the other.
10.6 Assignment/ Subcontract
The CLIENT may not transfer the Agreement in whole or in party, or its rights and obligations, without the prior written consent of FITTINGBOX, except for the mechanisms of the assignment of debt and factoring, and leasing.
The totality of the CLIENT contribution fees to FITTINGBOX, prior to the assignment of the Agreement, remains the responsibility of the CLIENT. In the event of subcontracting, FITTINGBOX will remain solely liable to the CLIENT for the proper performance of the services.
By way of derogation from the foregoing paragraph, 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.
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 article 8.
For the duration of this Agreement, FITTINGBOX shall be authorized to issue press prelease or make public communication, provided however that FITTINGBOX does not misrepresent or embellish its relationship with CLIENT ; to such end, FITTINGBOX shall be authorized to use and reproduce the distinctive brands of the CLIENT, including its name, logo(s) brands, trade names, in its marketing and/or promotional materials and/or solutions, including but not limited on the following medias or event: FITTINGBOX’s website and/or blog and/or newsletter, social networks (i.e. LinkedIn, Facebook; etc.), professional seminars and/or conferences and/or exhibitions and/or meetings, marketing, promotional, prospective and advertising activities towards FITTINGBOX’s prospective customers and/or clients and/or partners.
In case of difficulties relating to the execution of this Agreement, and before any judicial proceeding, the Parties agree to designate two representatives among their “Executive Officers”. These persons will have to meet, on the initiative of the most diligent Party, within 8 days from the receipt of the letter requesting the conciliation meeting. The agenda is determined by the party which takes the initiative of the conciliation. The decisions, if agreed by mutual consent, shall be deemed to have a contractual value.
THE AGREEMENT IS GOVERNED BY FRENCH LAW. UNLESS OTHERWISE PROVIDED BY STATUTE, ANY DISPUTE WHICH MAY ARISE BETWEEN THE PARTIES RELATING TO THE FORMATION, PERFORMANCE OR CONSTRUCTION OF THE AGREEMENT SHALL BE UNDER THE JURISDICTION OF THE COMPETENT COURTS OF TOULOUSE (FRANCE).
Last Change : January, 2018