GENERAL TERMS OF LICENSE AND USE FOR OWIZ STREET & OWIZ MIRROR
”Affiliate” means 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.
”Additional services” means the optional services that may be subscribed by the LICENSEE, in addition of the License and/or the Subscription. By way of example, the Additional services may target new functionalities, features or modules, and/or particular assistance or training services.
”Agreement” means the Order Form, the General Terms and Conditions and, if applicable (i) the Specifics Conditions, and/or (ii) the description of the Software and/or the General Terms and Conditions of Sales of the distributor of the Hardware. By signing the Order Form and/or by using the Software, the LICENSEE 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.
“BigData” or “Metadata” means a voluminous set of qualitative or quantitative data in any format, structured or unstructured, used, collected, formatted, processed, manipulated, stored, and/or analysed throughout the use of the Software and/or MyFittingBox and/or FBxData.
“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 Software(s) and/or MyFittingBox, the content of FBxData, the documentation relating to the Softwares is also considered as Confidential Information.
”Delivery Date” means the date of signature of the delivery note of the Equipment (or of any equivalent document), or the date of remittance of the activation soft-key or of any other activation system of the Software or the Equipment. A projected date of delivery is set forth in the Order Form.
”Documentation” means documentation provided by FITTINGBOX in relation with the Equipment, and in particular with the Software and MyFittingBox.
”Equipment” means collectively the Software and the Hardware provided by FITTINGBOX under the performance of the Agreement, as set forth in the Order Form.
“FBxData” means the Software and the database developed and enriched by FITTINGBOX; FBXData contains, in particular, Photographs (high definition images in 2D) and VTO Frames (digital modeling of glasses, in 3D and/or virtual try-on), as well as any related data and meta-data. It is clearly stated that the LICENSEE is authorized to access to the scanned frames of FBxData only by using the Software and/or MyFittingBox in accordance with the License granted under the Agreement and to the exclusion of any other use.
“FITTINGBOX” means FITTINGBOX, a limited liability company, and/or its Affiliates, directly or through an agreed 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 LICENSEE is aware and irrevocably accepts that others FITTINGBOX’s products and services, and in particular the solutions referred to as FitPhoto / FitLive / FitMetrix and/or OWIZ APP, OWIZ PLUGIN and OWIZ WEB and digitalization services, are governed by dedicated terms and conditions. The General Terms and Conditions may be modified from time to time by FITTINGBOX, at its sole discretion. The last version of the applicable General Terms and Conditions may be found at http://www.fittingbox.com/legal. As the case may be, and provided that it is consistent with the Software for which the LICENSEE 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 LICENSEE shall accept the last version of the General Terms and Conditions.
”Granted Site” means the delivery address indicated in the Order Form and where the premises of the LICENSEE, as set forth in the Order Form in which the LICENSEE is allowed to use the Software and the Hardware provided by FITTINGBOX.
”Hardware” mean all of the physical elements compatible with the Software, provided by FITTINGBOX and/or its agreed partners under the performance of the Agreement, and that are strictly mentioned in the Order Form. The Hardware provided by FITTINGBOX includes a minima an “Owiz Player”; it is completed by a display LCD screen that may be provided by FITTINGBOX or sourced by the LICENSEE amongst a limitative reference list provided by FITTINGBOX. FITTINGBOX does not give any compatibility guarantee, whatever it is, outside such reference list. The price of the Hardware provided by FITTINGBOX is set forth in the Order Form.
“Intellectual Property” means any patent, copyright, trademark, 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 Software and/or MyFittingBox and/or FBxData made by FITTINGBOX to the LICENSEE according to the terms of section 7.2. The License granted under the performance of the Agreement allows the LICENSEE to access and use the Software and/or MyFittingBox and/or the content of FBxData, in their standard version as existing at the signature date of the Order Form. The License also includes the standard corrective, adaptive and/or progressive maintenance of the Software as long the Subscription is not revoked by the LICENSEE.
“LICENSEE” means the sale professional of optical products as mentioned in the Order Form, excluding all Third Party. The LICENSEE warrants that is a State-qualified optician or optometrist or ophthalmologist.
“MyFittingBox” means the interface developed by FITTINGBOX, allowing the LICENSEE to access to the back office of the Software and FBxData and which the LICENSEE can make its selection of Frames, by brand or by reference, to present them on the Software subscribed (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 test on the technical or aesthetic characteristics of the brand concerned.
“Optional Services” means the optional services and/or services that may be subscribed by the LICENSEE in addition to the License and / or the Subscription. Optional Services may include functionalities and/or modules complementary to the Softwares, as well as specific services and/or assistance and training services.
“Order Form” means the document supplementing the present General Conditions and consulting an order form. The Order Form specifies in particular the identity of the LICENSEE, the commercial offer of FITTINGBOX, the Granted Site, the Territory 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 LICNSEE to the present General Conditions.
“Setup” means the installation, parametering, configuration, activation and/or training services related to the Equipment. The “Setup Fee” also includes an access to the Software and/or MyFittingBox, in their version existing at the effective date of the Agreement. The Setup is payable by the LICENSEE only once, from the signature of the Agreement and independently of the Subscription fees.
“Software(s)” means the solutions referred to as “Owiz Mirror” and/or “Owiz Street”, as the case may be, and a possible remote controller of Owiz Street, edited and licensed by FITTINGBOX and commercialized by FITTINGBOX and/or its authorized partners, with exclusion to any others products and/or services of FITTINGBOX. The Software is provided by FITTINGBOX to the LICENSEE under a proprietary license pursuant the terms and conditions of this Agreement.
“Subscription” means the revocable service related to the provision of the standard updates of the Software and/or FBxData and/or MyFittingBox. When the LICENSEE subscribes to this service, the related Subscription Fees are payable by the LICENSEE throughout the entire term of the Agreement (initial or renewed period, as the case may be).
“Territory” means the limited geographical area of use of the License, as mentioned on the Order Form. By default, the Territory refers to the national geographic area where the Granted Site is located.
“Third Party” means any natural person and/or legal entity other than the LICENSEE.
These GLU only apply only for the Software referred to as “Owiz Street” and “Owiz Mirror”. Unless otherwise expressively mentioned in the Order Form, the LICENSEE is aware and irrevocably accepts that others FITTINGBOX’s products and services, and in particular stores solutions referred to as OWIZ App and OWIZ PlugIn and Owiz Web and digitalization services, are governed by dedicated general terms and conditions.
The signature of the Order Form and/or the use of the Softwares involve the express and irrevocable acceptance of the LICENSEE 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 Specific conditions for the Hardware
When the Hardware, and in particular the LCD display screen, is not provided by FITTINGBOX, it is sourced by the LICENSEE, at its own costs, amongst a limitative reference list provided by FITTINGBOX. FITTINGBOX does not give any compatibility guarantee, whatever it is, outside such reference list.
When the Hardware is provided by FITTINGBOX under the performance of the Agreement, and provided that the LICENSEE 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 LICENSEE shall benefit of the manufacturer’s standard warranty or guaranty over the Hardware. FITTINGBOX does not provide any additional or substitutive warranty to that provided by the manufacturer of the Hardware. As FITTINGBOX is not the manufacturer of the Hardware, it does not guarantee the availability or proper functioning of the Hardware. This warranty will not apply in case of a failure of the Hardware resulting, in all or part, directly or indirectly, from a software of hardware used in conjunction and/or in addition with the Hardware, and more generally from any system not provided by FITTINGBOX and/or installed by the CLIENT or a Third Party without prior express authorization and instructions from FITTINGBOX.
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 LICENSEE to FITTINGBOX within the manufacturer’s warranty on such Hardware 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 LICENSEE, the LICENSEE 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 LICENSEE.
In order to facilitate return management and transport in the best conditions, the Hardware shall be returned in its original packaging. FITTINGBOX cannot guarantee the application of this warranty if the Hardware is return without its original packaging.
The Hardware is provided “as is” without any representation or warranty of any kind, express or implied, including but not limited to their continued operation, performance, merchantability or fitness for a particular purpose particular. FITTINGBOX makes no commitment to the evolution of the Software and / or MyFittingBox, not to any adaptation of these to the current or future requirements of the LICENSEE.
Save as expressly provided in section 9 hereunder, FITTINGBOX does not make or give any representations, conditions, warranties or other terms, whether express or implied, arising by statute or otherwise, including but not limited to any implied representations, conditions, warranties or other terms of satisfactory quality or fitness for a particular purpose. FITTINGBOX refuses all guarantees, of whatever document, to which it has not expressly consented or which would be required by a Third Party.
3. OBLIGATIONS OF THE PARTIES
3.1 OBLIGATIONS OF FITTINGBOX
Access to the Software(s): FITTINGBOX undertakes to supply the Software(s) to the LICENSEE under the terms set out in the Agreement. FITTINGBOX shall assure the delivery of an access to the Software(s) and/or the Hardware by the communication of the appropriate code to access and/or the administration interface of the related Software(s) and/or the Hardware (Login or password – hereinafter the “Identification Code”). The LICENSEE agrees that access to the Software 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 Equipment, 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 LICENSEE in the use of the Software(s), by telephone, at no extra cost, during business hours of FITTINGBOX (from Monday to Friday from 9.am to 6 p.m., GMT+1, excluding public holidays), or by e-mail at email@example.com, subject to the undertakings given by the supplier of Hardware, if any, who provides level 1 support to the LICENSEE.
3.2 OBLIGATIONS OF THE LICENSEE
The LICENSEE shall be responsible for the use of the Hardware, and/or the Software, according to their regular usage, their Documentation and according to the terms and conditions of this Agreement. As the case may be,
FITTINGBOX shall provide an identification code allowing the access of the Software and MyFittingBox; the Identification Code is under the sole responsibility of the LICENSEE. The Identification Code constitutes a means of authentication and a proof of identity. Any access using the Identifying Code is deemed to be made by the LICENSEE.
The LICENSEE undertakes to use the Equipment in accordance with the terms of this Agreement. It is stressed that the LICENSEE is and remains solely responsible for the digitalized frames (2D photographs and/or VTO Frames) which it has chosen to use with the Software, and in particular with respect to the right to use, reproduce and display such digitalized frames and related material and to commercialize and market such models of glasses.
The LICENSEE undertakes to install any update or patch provided by FITTINGBOX under the performance of the Agreement and in relation with the Software and/or MyFittingBox and/or Owiz Player. Under no circumstance THE LICENSEE can have more than 1 gap with the last update or patch provided by FITTINGBOX under the performance of the Agreement.
The LICENSEE undertakes to take any appropriate measures to ensure that its employees, and any other persons which are under its authority or having access to the Equipment, and in particular the Software and MyFittingBox, are complying the terms and conditions resulting from this Agreement. The LICENSEE undertakes, in particular, not to allow anybody to use all or part of the Software and/or MyFittingBox in order to derive its source code, or to alter it or adapt it completely or partially. The LICENSEE shall take immediate steps to prevent such uses and shall immediately notify in written FITTINGBOX of them. It is also stressed that FITTINGBOX reserves the exclusive right to intervene of the Software and/or MyFittingBox and/or Owiz Player, including for maintenance or interoperability operations.
Any use of the Software and/or MyFittingBox and/or FBxData by an unauthorized Third Party shall constitute a counterfeiting act, allowing FITTINGBOX to proceed to immediate termination of this Agreement as of right, and without prejudice to any damages FITTINGBOX may claim.
The LICENSEE shall check the proper functioning of the Hardware provided by FITTINGBOX at its delivery ; notwithstanding the warranty set forth in Section 2.2, any claim related to a Hardware provided by FITTINGBOX, either missing or defective, shall be reported to FITTINGBOX by written in a maximum of 10-days period following its delivery on the Granted Site.
4. DURATION & TERM
Unless otherwise expressly specified in the Order Form, the Agreement shall enter into force on the date of signature of the Order Form until the expiry of its term, which constitutes a firm and definitive subscription period. Unless otherwise expressly specified in the Order Form, the License into force on the date of the signature of the Order Form or on the date of the Delivery Date of the Identification Code of the Software. The License is granted for a duration which is equal to the legal duration of the copyright existing on the corresponding Software, in its standard version as existing at the effective date of the Agreement, provided that (i) the initial Hardware (whether provided or not by FITTINGBOX under this Agreement) is still functional and/or maintained by its manufacturer, and (ii) the LICENSEE complies with all of its obligations under the performance of this Agreement, and (iii) unless earlier termination as set forth in section 5.
The LICENSEE is expressly informed and agrees that the contractual documents may 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 of the Parties and any Third Party.
Notwithstanding the duration of the License, the Subscription is concluded for the duration specified in the Order Form. Unless the Agreement is terminated as set forth in section 5, the Subscription shall then be tacitly renewed for the successive periods mentioned 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 LICENSEE will result in the payment of all the fees provided for in the Agreement.
If the LICENSEE does not wish to renew his Agreement at its term, the LICENSEE must send a letter at least three (3) months prior the term by registered letter with confirmation of receipt to: FITTINGBOX – 644 Voie l’Occitane, Bat Arizona A, 31670 LABEGE (France).
The supply of the Subscription will cease at the termination or termination date of the Agreement.
5. BREACH – TERMINATION
Termination of the Agreement or the License granted to the LICENSEE shall occur in case of breach by the other Party of one of its core obligations under this Agreement within fifteen (15) calendar days of the dispatch of a formal demand to remedy this breach which has remained without effect.
Shall be notably considered as serious breaches: failure to comply with (i) the payment obligations, (ii) the non-divulgation of the Confidential Information, (iii) the respect of Intellectual Property rights, (iv) the warranties set forth in section 10, (v) the obligation and/or warranties related to the Client Selection.
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 LICENSEE or a taking-over of the LICENSEE by a direct or indirect competitor of FITTINGBOX or its Affiliates without any compensation.
In the event of a termination of this Agreement, the LICENSEE undertakes to return to FITTINGBOX the Hardware provided by the latter, without delay, and not to keep any copy of the Software and/or MyFittingBox and/or FBxData, whether total or partial, under judicial prosecution.
Unless otherwise agreed between the Parties, the Agreement could be terminate in a case of a Force Majeure event, real and justified, continues for a period exceeding three months, by registered letter with acknowledgment of receipt
Except a justified Force Majeure event, in the event of early termination by the LICENSEE or due to the LICENSEE, for any reason whatsoever – including the assignment or the termination of his lease or business – the LICENSEE 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 terms 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 conversation from one corporate form to another and/or a registration number modification shall not be considered as a legitimate reason to terminate the Agreement or a Force Majeure event.
Notwithstanding the foregoing, and subject to (i) the LICENSEE being up-to-date with its payment obligations and (ii) the transferee or the substitute owner subscribe to a new Agreement with FITTINGBOX on at least an equivalent contractual scope, early termination penalties mentioned in this Article 5 shall not apply.
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 LICENSEE.
The expiration or the termination of the Subscription does not necessary involve the termination of the Agreement and shall not permit the reimbursement of all or part of the rights of use acquired under the Setup or the License, and vice versa.
It is clearly stated that the Sections 1 (Definitions), 7 (Property), 8 (Limits), 9 and 10 (Warranties), 11 (Liability), 12 (Indemnification), 13 (Confidentiality), 14.4 (Conciliation) and 14.5 (Governing Law / Jurisdiction) will survive the expiration or termination of this Agreement.
6. PRICE AND TERMS OF PAYMENT
The LICENSEE 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 LICENSEE and any Third Party.
The LICENSEE 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 Hardware, in case of failure of such distributor.
If the LICENSEE is a member of a network, the LICENSEE gives his authorisation to FITTINGBOX to send the invoices of the LICENSEE in relation to this Agreement to such network (including the commercial brand). The LICENSEE remains solely responsible for the payment of his invoices towards FITTINGBOX.
The prices and terms of payment for the Equipment are those set out in the Order Form. The prices set out are stated in the currency of the Order Form, excluding value added tax and other taxes, which shall be invoiced in addition according to the rate applicable at the date of invoicing. It is stressed that the price of the Hardware and/or the Setup Fees and/or the Subscription Fees are independent one with each other but may be invoiced at the same time. It is stressed that the delivery of the Hardware and/or of the Identification Code will not be initiated until such fees are effectively paid by the LICENSEE.
In any circumstances, FITTINGBOX could be requested to refund any payment made by the LICENSEE.
The LICENSEE may request 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 specific services requested by the LICENSEE, 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.
If the LICENSEE fails to pay when due and/or in case of a deterioration or downgrading of the LICENSEE’ 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 LICENSEE.
In case of non-payment of a FITTINGBOX invoice, FITTINGBOX shall be allowed, without notice, to suspend access to the Software and/or MyFittingBox, without prejudice to any damages FITTINGBOX may claim and without prejudice to terminate this Agreement as per in Section 5.
6.2 Price on renewal of the Agreement
Unless leasing or financial renting expressly specified in the Order Form and agreed by FITTINGBOX, the fees related to the Setup and the Hardware provided by FITTINGBOX are payable by the LICENSEE only once, upfront at the signature of the Agreement and independently of the Subscription fees. Unless Additional services subscribed by the LICENSEE, only Subscription fees are payable at the renewal of the Agreement, but without the initial rebate provided for the initial term of the Agreement as stated on the Order Form, if any.
Unless otherwise provided in the Order Form:
- The Setup and the Hardware provided by FITTINGBOX, if any, are paid cash at the signature of the Order Form;
- All other invoices, and including the Subscription fees, should be payable within thirty (30) days of invoice date. No rebate will be applied in the event of early payment.
If the LICENSEE 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 LICENSEE shall also bear the cost of the definitive amount of any costs incurred by FITTINGBOX for the recovery of his debt (judicial and extrajudicial).
7.1 Intellectual Property Rights
FITTINGBOX holds and retains all Intellectual Property rights directly or indirectly related to the performance of this Agreement, and in particular related to the Software(s), MyFittingBox, FBxData, Owiz Player, their Documentation and their content, be they copyrighted or not, and all other Intellectual Property rights, including any patent, design, features, model or other property deed and any request for, claim on or extension of such rights, within the Territory and that of any other country worldwide. The same goes with any technique, methodology, know how, update, tool, material and/or other Intellectual Property right created by FITTINGBOX and/or enriched and/or held in full title by FITTINGBOX or any of its Affiliates during this Agreement. Under no circumstances these rights might be transferred to the LICENSEE and/or any Third Party.
The LICENSEE acknowledges that these elements are significant items of FITTINGBOX’s assets; any disclose of any of these elements may damage FITTINGBOX.
The LICENSEE shall respect all Intellectual Property rights belonging to FITTINGBOX or its Affiliates during the legal protection term of these rights.
The LICENSEE undertakes not to modify and/or the notices related to the physical and/or the intellectual property of FITTINGBOX, whatsoever.
The LICENSEE undertakes not to modify the notices concerning the Intellectual Property Rights of FITTINGBOX, whatsoever. The LICENSEE 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.
In the event of the LICENSEE breaches this obligation, including by negligence, regardless of any claim for damages and without prejudice to the provisions of section 10 hereunder, the LICENSEE undertakes to indemnify FITTINGBOX up to the incurred loss and reimburse any profit and/or savings eventually earned by breaching this obligation and without prejudice to any direct and/or indirect damages FITTINGBOX may claim in result of such breach.
7.2 License to use
Subject to the LICENSEE’s observing and performing all of its obligations under the performance of this Agreement, and in particular with the payment of the fees mentioned in section 6, FITTINGBOX hereby grants to the LICENSEE a personal, non-exclusive and non-transferable right to use the Software and MyFittingBox and FBxData, as the case may be, pursuant the terms and conditions of this Agreement. This License is granted in object code format only for the Granted Site and for the duration set forth in section 4, unless earlier termination as set forth in section 5.
This Agreement, because its execution and/or termination, for any reason whatsoever, does not grant the LICENSEE and/or any Third Party any other Intellectual Property rights to the Equipment and/or MyFittingBox. Likewise, the delivery of the Hardware and/or the activation code of the Software shall not give any property right on the Software and/or MyFittingBox and/or FBxData, in all or part, to the LICENSEE and/or any Third Party.
The LICENSEE irrevocably undertakes not to use the Software and/or MyFittingBox and/or Owiz Player in any manner not expressly authorized herein.
In particular, the LICENSEE expressly refrains from:
- sell, resell, rent or lease, whether for free or for consideration, the Softwares and/or MyFittingBox and/or Owiz Player, in any manner whatsoever;
- 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, any part of the Softwares and/or MyFittingBox, in any manner whatsoever;
- modify the Softwares and/or MyFittingBox and/or Owiz Player or have it modified by a Third Party;
- reverse or attempt to decompile or reverse engineer the Softwares and/or MyFittingBox and/or Owiz Player, irrespective of the cause, either directly or indirectly.
- copy the functions, structure, architecture, graphics and / or features of the Software and / or MyFittingBox and / or Owiz Player, directly or indirectly, in any manner whatsoever;
- interfere with or disrupt the integrity or performance of the Softwares and/or MyFittingBox and/or any A/V or computer system to which MyFittingBox and/or the Softwares might be connected or interfaced and including Owiz Player, or attempt to gain unauthorized access to the Software and/or MyFittingBox or its related systems or networks;
- 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.
In the event that FITTINGBOX expressively authorizes a Third Party to use and/or access the Software and/or MyFittingBox and/or Owiz Player and/or FBxData, the LICENSEE shall have this Third Party priory entering into a confidentiality agreement with FITTINGBOX, exclusively in accordance with the terms and conditions set forth in the Agreement and in particular in compliance with the provisions relating to Confidentiality and Intellectual Property, as set out in particular in Articles 7 and 13 of these General Terms and Conditions. This confidentiality agreement shall indicate that the Third Party shall only intervene in the name and on the behalf of the LICENSEE in accordance with this agreement. The LICENSEE shall also have the Third Party respecting the confidentiality and Intellectual Property clauses of this Agreement. The LICENSEE shall be fully liable for the compliance by the Third Party with this provision and undertake to indemnify FITTINGBOX against any damage that could result from it.
In case of any breach of this section 7.2: (i) FITTINGBOX shall be entitled to immediately terminate this Agreement, with no need for any authorization whatsoever from a court and without incurring liability, and without prejudice to any direct and/or indirect damages FITTINGBOX may claim in result of such breach; and (ii) the LICENSEE undertakes to fully indemnify FITTINGBOX against all direct and indirect loss, damage, costs and expenses which may be incurred by FITTINGBOX by reason of infringement of any copyright, trademarks, and other intellectual property rights subsisting in or used by the LICENSEE in connection with the Equipment, and in particular the Software and/or MyFittingBox.
7.3 Property of the Hardware
Without prejudice to the Intellectual Property rights of FITTINGBOX, and unless leasing or financial renting expressly specified in the Order Form and agreed by FITTINGBOX, the physical property of the Hardware is conveyed to the LICENSEE upon full payment of the fees mentioned in section 6. The conveyance of property over the Hardware shall not be construed as transferring to the LICENSEE any Intellectual Property rights on all or part of the Software or MyFittingBox or FBxData or the immaterial components of the Equipment or their Documentation, in any way whatsoever.
The terms of delivery for the Hardware are DAP (“Delivered At Place”), DAP is a 2011 Incoterm (international commerce term). The Parties may mutually agree to an alternative method of delivery. The transfer of risks relating to the Equipment shall take place at the delivery date of the Equipment to the LICENSEE.
The Equipment is provided, and in particular the License is granted, subject to the entire payment of the fees and transportation costs, if any, mentioned in the Order Form.
The License is granted for usage of the Software and MyFittingBox on the Granted Site within the Territory, with exclusion to any other geographical place. Notwithstanding the foregoing, the LICENSEE has the option to request FITTINGBOX to be allowed to transfer the Software to another site pertaining to the LICENSEE, at its own cost and liability, and provided that such site is located within the Territory. In case the new site would be outside of the Territory, this Agreement shall be immediately terminated without prior notice or any indemnity.
The LICENSEE is allowed to use the Software and MyFittingBox only for its own or internal professional needs. The Software and MyFittingBox are provided to the LICENSEE in object code only. This Agreement shall not be construed as transferring to the LICENSEE any Intellectual Property right on all or part of the Software or MyFittingBox or any immaterial part of the Equipment or their Documentation for the benefit of the LICENSEE or a Third Party.
The LICENSEE is not allowed to access to and/or use the 2D and/or 3D frames contained in FBxData independently of the Software and My FittingBox. Similarly, any transfer or implementation of the Software in another hardware not provided by FITTINGBOX is subject to the prior and written authorization of FITTINGBOX’s legal representative; if such authorization is granted to the LICENSEE, the related implementation will be realized by the LICENSEE, at its own risks and costs.
The LICENSEE is aware and irrevocably accepts that access to the Software and/or MyFittingBox 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 Hardware, suspension of electricity or telecommunications, suspensions required for updating or maintenance, breakdown or malfunctioning of the Internet network in the transmission of messages or documents, And also for the application of the non-performance exception, in particular in the event of delay in payment of the Licensee within the required deadlines. When applicable, it is stressed that the LICENSEE is solely liable of the choice of its Internet provider and of payment of the related service.
The LICENSEE is aware of the material configuration requirements to make the Software and/or MyFittingBox and/or the Hardware function properly and undertakes to set up and maintain them at his cost. The LICENSEE is aware and accepts that any disrespect of such requirements may result in degraded operation or malfunction of the Equipment; in no event will FITTINGBOX be liable for such disrespect and their consequences.
With no guarantee, warranty or obligation on what follows, FITTINGBOX may provide mutualized remote support and assistance services, and in particular via webinars and/or MOOC.
No services other than those expressly mentioned in the Order Form are provided to the LICENSEE. Any subscription to an Additional service shall be expressly done and accepted and set forth in the corresponding signed Order Form.
9. WARRANTIES BY FITTINGBOX
FITTINGBOX does not warrant that the Software and/or the Hardware shall operate without interruption or error or that it shall meet the requirements of the LICENSEE or that it shall operate with any combination of elements selected by the LICENSEE. For the avoidance of doubt, FITTINGBOX does not provide any training or maintenance services under this Agreement, unless expressly mentioned in the Order Form.
The LICENSEE acknowledges and agrees that the Software and MyFittingBox are standard solutions that are not intended to meet the specific needs of LICENSEE. The LICENSEE acknowledges having received full and accurate information about the functionality of the Softwareto subscribe to this Agreement.
FITTINGBOX does not enter into any commitment and does not undertake to any guarantee of indexing or referencing of the LICENSEE in the results of the directory http://www.allolunettes.com or any other website that would be substituted by FITTINGBOX.
FITTINGBOX represents and warrants that it is fully vested with the Intellectual Property rights required for the performance of the Agreement. In particular, FITTINGBOX warrants that it has the full power and authority to grant Licences under the performance of the Agreement.
Therefore, FITTINGBOX warrants that, in case it is sued by a Third Party for a breach of copyright which would be allegedly attributable to the Software and/or MyFittingBox, FITTINGBOX shall defend the LICENSEE against such claims, provided that (i) the LICENSEE informs immediately FITTINGBOX in written of the alleged breach; and (ii) the claim does not result from software and/or hardware and/or other equipment not provided by FITTINGBOX and used in conjunction with the Software and/or MyFittingBox; and (iii) such claim is not related to a breach by the LICENSEE of this Agreement or an unauthorized access or modification of the Software and/or MyFittingBox and/or FBxData and/or Owiz Player; and (iv) FITTINGBOX has the sole control of the defence and all related settlement negotiations; and (v) the LICENSEE accepts the intervention of FITTINGBOX and co-operates to the resolution or settlement, if applicable, of an possible dispute. FITTINGBOX shall only bear the proceedings costs or payments that it has expressly agreed to in written.
If, during a three (3) year period following the effective date of the Agreement, the Software and/or MyFittingBox is held or is believed by FITTINGBOX to infringe a Third Party’s intellectual property right, FITTINGBOX shall have the option, at its sole discretion and expense, to modify such element to be non-infringing or obtain for the LICENSEE a license to continue using it; If it is not technically feasible at a reasonable cost and/or deadline, then FITTINGBOX may terminate the License and refund the License fee paid, in a pro-rata basis taking in consideration the period of effective use. The indemnification of the LICENSEE is limited, in any case, to the sums paid by the LICENSEE for acquiring the License.
10. WARRANTIES BY THE LICENSEE
The LICENSEE 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 Software and/or MyFittingBox and/or FBxData 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 FITTINGBOX’s products and services, including the Softwares and/or FBxData and/or MyFittingBox, in any manner whatsoever, throughout the performance of the Agreement and after its termination for any reason whatsoever.
The LICENSEE 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 LICENSEE to its obligations under the Agreement. Therefore, the LICENSEE shall bear any damages or indemnities (including legal and/or procedural, expertise costs and fees) incurred by FITTINGBOX as a result of such breach or negligence.
The LICENSEE can make a selection of frames by brand and/or references through MyFittingBox (hereinafter, the “Client Selection”) to be displayed on the Software. The LICENSEE warrants to FITTINGBOX that: (i) the Client Selection does not infringe the rights of others, intellectual and industrial property rights held by a Third Party, including trademarks and copyrights of the media Marketed on the site; (Ii) have obtained the authorization of the operators to exploit and market the frames represented by the Client Selection and maintain this authorization up to date throughout the duration of the use of the Software. The LICENSEE is solely liable for the content of its Client Selection and discharges FITTINGBOX from all liability. The LICENSEE shall hold FITTINGBOX harmless from any claims, including from Third Parties, due to the content of the Client Selection and undertakes therefore to indemnify FITTINGBOX for any loss which it may suffer and all the expenses it may incur for any claim and/or sanction as a result of in connection with the content of its Client Selection.
Each Party shall be responsible for the proper performance of its required actions and its own obligations under the Agreement.
The responsibility of either Party may not be sought if the non-performance of its obligations is delayed or prevented by reason of an event of Force Majeure.
FITTINGBOX shall not be liable towards the LICENSEE or any Third Party for any indirect incidental, consequential, punitive, special or exemplary damages or any kind that may arise from, or in relation to, the use of the Equipment, including loss of data, revenue and/or profits. FITTINGBOX will refuse any other guaranty or warranty, whatever it is, expressed by Third Parties.
The LICENSEE shall be solely responsible and shall indemnify and have FITTINGBOX harmless from any and all actions, including any Third Party, by reason of the Selection and agrees to indemnify FITTINGBOX harmless from and against all claims and / or conviction in violation of Article 10.
FITTINGBOX shall not be liable for any claim or action for infringement resulting from: (a) any unauthorized modification or access to the Software and / or MyFittingBox, or (b) breach or negligence on the part of the LICENSEE or any Third Party which had contributed to damage.
FITTINGBOX shall not be liable for loss of time or inconveniences caused to production caused by the Equipment or by performance of its services under this Agreement or resulting from a breakdown of all or part of the Software or the Hardware.
If the liability of FITTINGBOX is incurred for any reason whatsoever in relation to the Agreement, including on the grounds of Clause 9 hereunder, such liability shall be strictly limited to refunding the price for the License for the relevant Software in case the generating fact of its responsibility originates in the Software or to refunding the price of the corresponding Hardware in case the generating fact of its responsibility originates in a Hardware. Only the sums which are actually paid to FITTINGBOX shall be taken into account.
The Parties expressly agree that should any limitation or provision of this Section 11 be held to be invalid under any applicable statute or rule of law it shall to that extent be deemed omitted but if any Party thereby becomes liable for loss or damage which would otherwise have been excluded, such liability shall be subject to the other limitations and provisions set out herein.
The LICENSEE 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 LICENSEE consents) related to any default or breach or alleged default or breach of this Agreement or any other act or omission by the LICENSEE relating to its obligations under this Agreement.
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.
For the duration of this Agreement as well as five (5) years after its termination and for any reasons whatsoever,, the LICENSEE (i) undertakes to keep as confidential all the Confidential Information concerning FITTINGBOX,and (ii) undertakes to use it only on the framework of the Agreement, and (iii) provide an equivalent protection as for its confidential information.
The LICENSEE shall not disclose to any unauthorized Third Party, directly or indirectly, any Confidential Information, in whole or in part, provided to them during this Agreement, without the prior express written Agreement of FITTINGBOX. The LICENSEE undertakes to take any required steps which are necessary for preservation of confidentiality towards its staff as well as towards any Third Party having access to the Confidential Information.
Each Party may disclose the other’s Confidential Information if required to comply with a court order or other government demand that has the force of law. Before doing so, the disclosing Party must seek the highest level of protection available and, when possible, give the other enough prior notice to provide a reasonable chance to seek a protective order or to take other actions.
Upon termination of the Agreement and for any cause whatsoever, the Parties shall return all information and documents relating to the other Party and transmitted to the latter under the Agreement, without Legal and regulatory requirements, as soon as possible. In addition, the Parties shall cease all activities in connection with such documents and information.
The LICENSEE acknowledges that any breach of the section Erreur ! Source du renvoi introuvable. shall constitute a major breach of this Agreement. In this case, FITTINGBOX shall be entitled to immediately terminate this Agreement without notice or any indemnity and without prejudice to any damages FITTINGBOX may claim.
14.1 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 LICENSEE’s Order Form or general terms and conditions, if any, be enforced on FITTINGBOX; the Parties are bound only by the terms and conditions set forth in this Agreement.
If any provision of this Agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable the invalidity or unenforceability of such provision shall not affect the other provisions of this Agreement and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect. The Parties hereby agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the economic legal and commercial objectives of the invalid or unenforceable provision, whereby the substitution is subject to the consent of both Parties.
This Agreement may not be modified or amended except by a written instrument that shall be effective after the authorized representative of each of the Parties have signed it.
A valid waiver is in writing and signed by the Party waiving its rights. The waiver by either Party of a breach or default of any of the provisions of this Agreement by the other Party shall not be construed as a waiver of any succeeding breach of the same or other provisions not 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 has a waiver of any breach of default by the other Party.
The relations instituted between the Parties by the Agreement are those of independent contra-parties and the Agreement intends to institute no other relationship between them. Neither Party is an employee, agent, partner or joint-venture of the other. Nothing in the Agreement may be assimilated or interpreted as contributing to the establishment of a subsidiary, a joint-venture, a subordination bond or an agency contract. Within the framework of its activity, each Party shall act independently and shall deal personally with all legal, social and fiscal provisions.
14.6 Personal Data
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 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 LICENSEE may exercise its right of access to and rectification of all of its personal data, by sending an email at firstname.lastname@example.org 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 LICENSEE through the Software(s) shall be performed under the responsibility of the LICENSEE, as data processor. In particular, it is the LICENSEE’s responsibility to ensure that the selfies or wish list performed by the end users through the Software(s), and any other data or information entered by using the Software(s) as well, are personal data that might be used for the purposes of the Owiz services and/or for commercial display.
The LICENSEE 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 LICENSEE and/or users of the Software(s). 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.
14.7 Assignment / Subcontracting
The contract is concluded intuitu personae, consequently the LICENSEE may not assign or transfer the benefit of the Agreement or License to any Third Party, in whole or in part, and in duration and / or importance, without the express Agreement and of FITTINGBOX. It is understood between the Parties that correspond to a valid agreement of the License, in particular with respect to the transferee who may be benefited from a transfer or geographical territory where the License may be transferred.
The Parties expressly acknowledge that FITTINGBOX reserves the right to delimit the geographical area, even within the territory, in which the License is granted, in order to preserve the intellectual property rights. The transferor (the LICENSEE) and the transferee are jointly and severally liable for the terms and conditions of the License.
FITTINGBOX reserves the right to refuse this agreement at its own discretion. In any event, the actual assignment of the Agreement will be valid only if it is the subject of an endorsement or a new agreement signed between FITTINGBOX and the transferee. In case of agreement, and unless FITTINGBOX no longer exists, be responsible for its assignee.
The transfer of the business by the LICENSEE will entail the termination of the Agreement and the immediate payability of all the contractual fees, under the conditions stipulated in article 6.
FITTINGBOX reserves the right to assign or transfer the Agreement to your Affiliates or any Third Party, provided that the transferee assumes all rights and obligations under 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 LICENSEE for the proper performance of the services.
For the duration of this Agreement, FITTINGBOX shall be authorized to issue press prelease or make public communication, provided however that FITTINGBOX does not misrepresent or embellish its relationship with the LICENSEE ; to such end, FITTINGBOX shall be authorized to use and reproduce the name, logo(s) brands, trade names of the LICENSEE 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 of performance of this Agreement, and before any judicial proceeding, the Parties agree to designate two representatives among their “Executive Officers”. These persons shall meet, on the initiative of the most diligent Party, within eight (8) days from the receipt of the letter requesting the conciliation meeting. The agenda is determined by the Party which takes the initiative of the conciliation. The decisions, if agreed by mutual consent, shall be deemed to have a contractual value.
15. GOVERNING LAW / JURISDICTION
This 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