Master Services Agreement

BETWEEN

FITTINGBOX, a “société anonyme à conseil de surveillance et Directoire” (French limited company) with a share capital of EUR 249,569.00, registered with the Registre du Commerce et des Sociétés of Toulouse under number 491 452 991, with its headquarters located at 644 L’Occitane – Bat A Arizona – 31670 Labège, France

Hereinafter “FittingBox”

AND

The CLIENT, as identified in STC hereafter,

Hereinafter “Client”

WHEREAS

Fittingbox develops and provides a set of solutions enabling its clients to let their end users to try on various models of glasses virtually. These real-time solutions are provided by subscription basis, through FittingBox Platform accessible to Users via Client’s Websites. It is emphasized that the Services consist for the main part in standard applications and that no program or data in connection with the Services, Specific Services and Platform shall be held or hosted by Client.

Client (in its professional capacity and for the needs of its online business) wishes to subscribe for Services and, where applicable, order Specific Services. Client had the opportunity to try the Services and acknowledges that it has received the information and advice necessary in relation to the Services and Specific Services as well as the Platform to review the FittingBox offer and to evaluate its suitability to its requirements.

1. CONTRACTUAL DOCUMENTS

The Agreement includes the following documents, in decreasing order of priority:

  1. These General Terms and Conditions (the Master Service Agreement);
  2. The Specific Terms and Conditions (STC) and any Purchase Order duly signed by both Parties;
  3. The Appendices, as the case may

For the purpose of the Agreement the Definitions are set below:

Admin Employee of Client appointed by Client as privileged interlocutor of FittingBox and the administrator of the Back Office, on its behalf. Roles and rights granted to such administrator are detailed in STC. It is specified that any notification to Client can be validly made through the Back Office to the Admin or any other written means of communication (email, fax, etc.), except as otherwise stated in the MSA.
Affiliate Any legal entity that controls or is controlled by a Party, either directly or indirectly, within the meaning of Article L.233-3 of the French Commercial Code.
API Means the application programming interface that can be provided by FittingBox to the Client for configuring and parameterizing the FitProducts. Such provision is set forth in the appropriate STC, as the case may be.
Back Office Set of functions of the Website, accessible only to FittingBox and the Admin.
Client As defined in the STC
Confidential Information All information disclosed by a party (” Disclosing Party”) to the other Party (” Receiving Party”), whether orally or in writing, that is designated as confidential or that  reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including but not limited to know how, roadmap, research, product plans, concept, inventions, algorithms, drawings, prototypes, formulae, engineering.
Contract                              or Agreement The MSA and each STC concluded in the framework of this MSA.
Documentation The user documentation relating to the Back Office, the PlugIn, FitProduct and Modules, in French and in electronic format only.
Effective Date Effective date mentioned on the STC.
FBxData Database containing all VTO Frame and HD picture as well as any VTO Frame related data and meta-data to be used in conjunction with the Services (where applicable).
FitProduct(s) FitPhoto and/or FitLive Start, Premium or Ultimate, as mentioned in the STC (previously called OANDO): Virtual Try-on application allowing a web user of any of the Websites to upload a photo from his computer or take a photo from his webcam or use the photo of a model and virtually try VTO frame.
FittingBox Means the FittingBox company, as detailed in the Agreement.
HD Picture Electronic pictures of glasses to be displayed in connection with the Services.
Intellectual Property rights Means all Intellectual property including (a) inventions, patents and patent applications,

(b) copyright, neighboring or sui generis rights (c) trade secrets, know-how and, (d) drawings, computer software, data and related documentation, flow charts, diagrams, descriptive texts and programs, computer printouts, databases and similar items, (e) trademarks, trade names, service marks and domain names.

Malicious Code Viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
Module(s) Standard application offering additional functions to FitProduct, as exhaustively listed in STC.
MSA The General Terms and Conditions contained in this document titled “Master Service Agreement – FittingBox”, its exhibits and any subsequent amendment thereto.
Party FittingBox or Client, individually.
Parties FittingBox and Client, together.
Platform All means used by FittingBox to provide the Services, including any API, Plugin, FitProduct and Modules as listed in the appropriate STC.
PlugIn Computer program (object code version only) to be loaded and/or installed on the User’s personal computer in order to display and use the Services.
Purchase Order Exhibit A to the STC.
Services Services (including Specific Services) described in STC. Services delivered mainly consisting in enabling Users to try on glasses from the range selected by the Client virtually, via a website and enabling Client to use the FitProducts. Services are delivered pursuant to a subscription mode.
Setup Means the installation/parameterizing/activating services provided by FittingBox under an Agreement. The Setup could be optional when the Client has subscribed an API from FittingBox.
SKU Stock Keeping Unit representing represents a frame with a unique style combined with a unique color.

For the avoidance of doubt, it is reminded that there is only one SKU per frame with its specific features and details (i.e. color, etc.).

Specific Services The Specific Services ordered by Client, for which specific STC have been have been issued and consisting, in particular, in the development, modification or adaptation of Modules or FitProducts. Digitization of glasses to produce HD pictures and VTO Frame are part of the Specific Services. Unless stipulated otherwise, the Intellectual Property rights arising from the Specific Services are and will remain the exclusive property of FittingBox.
STC The Specific Terms and Conditions and its exhibits entered into between the Parties and any subsequent amendment thereto.
Territories As defined in the STC.
User(s) Any natural person who uses the Services through a Website.
VTO Frame Digital modeling of glasses incorporated in FBxData and chosen by Client for its use solely in the framework of the Service.
Website Any website edited under the exclusive responsibility of Client and duly authorized by FittingBox. Websites are listed in STC.
Working Hours Working hours in France, from Monday to Friday, and from 9 AM to 6 PM.

 

2. PURPOSE

The purpose of this MSA is to set forth the main terms and conditions under which FittingBox shall provide, for consideration, the Services and the Specific Services, as well as other mutual obligations and warranties.

 

3. PROVISION OF SERVICES

Services – including where applicable Specific Services – shall be made available to Client pursuant to and for the term of the applicable STC.

Client agrees that entering into a Contract is neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by FittingBox regarding future functionality or features.

FittingBox warrants that the functionalities and features of the Services will not decrease during the term of a Contract. It is reminded that FittingBox remains fully and exclusively entitled to maintain, modify and develop the Services.

The PlugIn, the Services, the Products and the Specific Services as well as the Platform or 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 PlugIn, the Services, the Products and the Specific Services as well as the Platform or any component thereof will be error free or will work continuously. FittingBox undertakes to provide its best efforts to solve, including by workaround solutions, any error or malfunction that would materially impact the Services, within a reasonable timeframe.

Usage statistics of the Services by Client’s Users, as further detailed in the STC, are provided to Admin. Client authorizes FittingBox to use the logs and statistics above mentioned for surveys and statistic studies with respect to Services, including for enhancing the quality/relevancy of Services and for consulting services, for free or for consideration, provided that such data remains anonymous and are merged with data of other clients.

 

4. CLIENT’S OBLIGATIONS

4.1. Client shall collaborate in good faith with FittingBox, including by providing all useful or required documents and information and by giving a remote secure access to the server(s) and Website(s) notably for setup/diagnosis

It shall ensure that it meets the technical and knowledge requirements indicated by FittingBox in writing and specified, as the case may be, in Exhibit.

Client undertakes to use the Services (including Specific Services) only with and on its own Website(s). Any other use is subject to the prior written authorization of FittingBox.

It shall appoint an Admin that will be responsible for managing the Services on its behalf, including by choosing eGlasses to be used in connection with the Services. Any request or instruction given by Admin shall be deemed to have been given by Client.

Admin login/password is strictly confidential and Client shall take all reasonable steps to ensure its confidentiality.

4.2. Client shall be responsible for Users’ compliance with the main provisions of this MSA and shall endeavour to prevent any use of the Services by Users that would interfere with or disrupt or alter the integrity or performance of the Services, and in particular FBxData and VTO Frame, or attempt to gain unauthorized access to the Services, FBxData and VTO Frame (e.g. substantial or repetitive extracts of data). Client is informed and accepts that the Services can be temporarily suspended by FittingBox to investigate and remedy such

4.3. Client shall not:

  • make the Services available to anyone other than Users, Admin and FittingBox;
  • create derivative works based on the Services and/or the FitProducts and/or the Module and/or the API;
  • use the Services and/or the FitProducts and/or the Module and/or the API, directly or indirectly, in a way likely to parasite or compete with others products and/or services provided or commercialized by FittingBox;
  • be authorized 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;
  • use the API in any other way than configuring and parameterizing the FitProducts;
  • make the API accessible to any third party than the Admin;
  • copy, frame or mirror any part or content of the Services, other than displaying on the Website(s);
  • reverse engineer the Services;
  • sell, resell, rent or lease, whether for free or for consideration, the Services, in any way whatsoever, including through ASP/SaaS or service bureau models;
  • use the Services and/or the Plateform in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services;.
  • transmit any Malicious Code or illicit, illegal or harmful content; or
  • interfere with or disrupt the integrity or performance of the Services, and in particular FBxData and VTO Frame or attempt to gain unauthorized access to the Services or their related systems or networks;
  • encourage Users or allow them, directly or indirectly to access to the Services in any other way than by the PlugIn and/or the others products marketed by

It is stressed that Client is and remains solely responsible for the VTO Frame and related material (including ePhotos) which it has chosen to use with the Services and to display on its Website(s), and in particular with respect to the right to use, reproduce and display such VTO Frame and related material and to commercialize and market such models of glasses.

If Client orders the digital modeling of specific glasses models that are not already available in FBxData, it shall provide Fittingbox with all information and relevant data in this respect including shipping to FittingBox the number of models requested by FittingBox for modeling purposes.

 

5. TERM AND TERMINATION

5.1. This Agreement is entered into on the Effective Date and shall remain in force until the termination of all

Services are provided for the fixed duration specified in the STC. This duration constitutes an essential and determining requirement for Client under this Agreement.

Unless otherwise stated in STC, Services shall be provided for successive and automatically renewing for same duration periods, unless terminated by either Party by registered letter notified to the other Party with three (3) months prior notice before the anniversary date of the Contract(s). FittingBox shall have no obligation to inform Client of the incoming renewal.

The provisions of Articles 7, 8, 9, 10 and 12 shall survive the termination of each Contract for duration of 10 years from the effective termination of the concerned Contract unless duration is specifically provided in STC.

5.2. A Party may terminate a Contract for cause: (i) upon 30 days written notice to the other Party of a breach of a material obligation if such breach remains uncured at the expiration of such period, or (ii) to the maximum extent authorized by the law, if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of

5.3. The termination by FITTINGBOX under the section 5.3 above comes into effect without any legal or out of court proceedings being

As a result of earlier termination of the contract, and without prejudice to other rights and remedies claimed  by FittingBox, the remaining license fees up to the term specified in the STC or its renewal and the value of remaining digitalization commitment up to a certain quantity of HD pictures and VTO Frame as set in the STC, will be due by the Client.

 

6. FINANCIAL PROVISIONS

6.1. Financial provisions are detailed in each STC entered into between the Parties.

Unless otherwise provided in STC, FittingBox is entitled to review and modify all prices stated in each STC once per contractual year. Any raise decided by FittingBox in the list prices will not exceed 5% of the immediate previous applicable list prices (VAT and other taxes excluded). Any change in the pricing shall be notified by registered letter to Client’s representative with a 30 days prior notice.

Unless otherwise agreed between the Parties in each STC, all invoices must be paid quarterly in advance, within thirty (30) days of date of the invoice.

6.2.Unless otherwise stated, fees and prices do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). Client is responsible for paying all Taxes associated with invoiced fees and prices. Each Party shall provide to the other a valid tax exemption certificate authorized by the appropriate taxing authority (or any other document required by the applicable tax treaty) and to collaborate in order to benefit from the most favorable withholding tax rate.

6.3.Any late payment may automatically accrue late interest at the rate of 8% of the outstanding balance per month, or the maximum rate permitted by law, whichever is the lower, from the date such payment was due until the date

A flat rate indemnity of 40 Euro (or $50, depending on the currency mentioned in the STC) shall also be due automatically as a result of any delay in payment, for the costs of recovery, in addition to interest for late payment.

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)

6.4.Without prejudice to other rights and remedies, in the event of late payment exceeding thirty days, FittingBox shall be fully entitled, two Working Day after a prior notice and without any Court authorization, to suspend the Services until all remaining unpaid fees are paid in

 

7. NON INFRINGEMENT

7.1. FITTINGBOX represents and warrants that it has good title or is otherwise authorized to license the Services (including its components, namely the Software Module, the Digitization and the FBxData) to the Client as provided in the Contract.

FITTINGBOX, at its own expense, will indemnify, defend and cause to be defended or, at its option, settle any claim or action brought against the Client on the issue of infringement of any Intellectual property right by any third Party (“Claim”).

Subject to the other conditions of this clause, FITTINGBOX will pay any final award entered against the Client with respect to any Claim, provided that:

  • the Client notifies FITTINGBOX in writing of the Claim promptly on becoming aware of it;
  • the Client grants sole control of the defense of the Claim to FITTINGBOX;
  • the Client gives FITTINGBOX complete and accurate information and reasonable assistance to enable FITTINGBOX to settle or defend the Claim;
  • the Claim does not result from changes made to the Services by the Client or a third party and/or does not arise out of the Website and/or its technical environment in conjunction with the

If any part of the Services becomes the subject of any Claim or if a court judgment is made that the Services do infringe any third party intellectual property right, FITTINGBOX at its option and expense may:

  • obtain for the Client the right to continue to use the related Services; or
  • replace or modify the related Services so that any alleged or adjudged infringement is removed; or
  • if the use of the related Services is prevented by permanent injunction, terminate the Agreement with immediate effect and refund any unamortized portion of the Service Fee paid for the current contract year.

The above provisions of this article state the entire remedy of the Client in respect of any intellectual property right infringement related to the Services.

 

7.2 Whatever the typology of the Client (retailer, owner or licensee of a brand, etc.), the Client declares and warrants that it:

  • owns all Intellectual Property rights (including for reproduced brands or trademarks) and/or is duly authorized to photograph, to make frames photographed and/or to provide Digitization of the frames it selects for creating Digitization thereof and for posting such Digitization on the Website; and
  • is authorized to market, promote, sell, display and distribute the models of glasses selected and to promote them as HD pictures or VTO Frame and via the Services; and
  • will keep all these authorizations for the duration of the concerned Contracts;
  • gives its authorization to FittingBox, on a free and royalty free basis, to create electronic modeling of such glasses models and to use and exploit, for free or for consideration, resulting HD pictures or VTO Frame, as part of the Services to its clients, without conditions or restrictions, worldwide. This authorization shall survive the termination of any Contract and

In case the Client owns the brand on the digitized models of glasses, the corresponding VTO Frame will be provided to the Client for its internal use only; consequently, the Client shall not make these VTO Frame accessible to any third party, in any way whatsoever.

The Client, at its own expense, will defend or cause to be defended and hold FITTINGBOX harmless or, at its option, settle any claim or action brought against FITTINGBOX or any FITTINGBOX licensee, on the issue of infringement of any intellectual property right by any frames and/or Digitization provided by the Client and represented on a Digitization (“Client Claim”). In this respect the Client shall pay any award entered against FITTINGBOX or its licensee(s) with respect to such Client Claim and shall fully indemnify them in respect of all costs and expenses incurred in relation to said Claim.

In the event of the breach of any provision of this article 7.2, FittingBox shall be authorized to immediately, with no need for any authorization whatsoever from a court and without incurring liability, suspend  the Services and remove immediately any concerned VTO Frame from the scope of the Services.

 

8. LIMITATION OF LIABILITY AND INDEMNIFICATION

8.1. The Client declares that it has analyzed the suitability of the Services for the requirements of its business and it acknowledges that is has received from FITTINGBOX all information necessary to appreciate such suitability and to take all necessary precautions for the use of the FitProducts and the Services. The Client acknowledges that it alone is responsible for the use it makes of the Services and for damages it may incur or cause in relation

8.2. In the event of a claim against FITTINGBOX, including Claim based on alleged infringement of intellectual property rights by the Services as mentioned in article 1, the damages and any other remedies in the aggregate that FITTINGBOX may be obligated to pay to the Client and/or any third-party in relation to the Agreement shall not exceed a total and cumulative amount of the last six (6) license monthly fees paid by the Client under the Agreement excluding VAT.

8.3. Notwithstanding any other provision in the Agreement, FITTINGBOX shall under no circumstances be liable for any indirect damages arising out of or in connection with the Agreement and/or for any damages incurred by the Client or any third party in relation to the use, the unavailability or a slowdown of all or part of the Services, irrespective of their duration, or to the impairment of the confidentiality of any Client

 

9. INTELLECTUAL PROPERTY

All Intellectual Property Rights in or arising out of, API, Plateforme, PlugIn, FitProduct, Modules, VTO Frame, FBxData (including sui generis rights), Documentation and any component thereof are and shall remain the exclusive Intellectual Property of FittingBox without restrictions or conditions. The MSA and any Contract do not intend nor can they be construed as assigning any Intellectual Property rights to the Client.

 

10. GENERAL PROVISIONS

10.1. Confidentiality

Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and to be bound by confidentiality obligations containing protections no less stringent than those herein.

10.2. Intuitu personae

Neither Party may assign any of its rights or obligations hereunder without the prior written consent of the other Party (with the exception of any debts that may have arisen as a result of the performance of a Contract).

Notwithstanding the foregoing, FittingBox may assign all Contracts then in force, in their entirety, without consent of Client, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.

10.3. Commercial reference

FittingBox shall be authorized to reproduce the name and logo(s) of Client in its marketing material, including on its website(s).

10.4. Relationship of the Parties

The Parties are independent contractors. This MSA and any further Contract does not create a partnership, franchise, joint venture, agency, and fiduciary or employment relationship between the parties.

10.5. Entire agreement / modification / waiver

A Contract, including all exhibits and addenda hereto, constitutes the entire agreement between the Parties with respect to its subject matter and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter.

In no event, the Client’s Purchase or General Terms shall apply: the Parties are bound only by the terms and conditions set forth in this Agreement.

No modification, amendment, or waiver of any provision of this MSA or any STC shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment  or waiver is to be asserted.

No failure or delay by either Party in exercising any right under a Contract shall constitute a waiver of that right. Waivers must be made in writing and signed by the waiving Party in order to be deemed valid and enforceable.

Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party.

If any provision of this MSA or any STC is held by a Court of competent jurisdiction to be contrary to applicable laws and with null effect, the provision shall be replaced by the Parties and interpreted so as best to  accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this MSA and any STC shall remain in full force and effect.

10.6. Personal Data

When EU data protection regulation applies, Client shall qualify as a data controller and FittingBox as a data processor, within the meaning ascribed by EU Directive n°95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, for any processing of personal data carried out by FittingBox on behalf of Client.

Client shall comply with all obligations borne by its data controller capacity, including prior notifications or authorizations to European commissioners, information to Users relating to their rights and the exercise of  User rights to access and/or rectify personal data, etc.

Client is aware and irrevocably accepts that FITTINGBOX reserves the rights to collect Big Data (aggregated and anonymous data) within the performance of the Agreement through the use by Client and/or Users of the Services. FITTINGBOX is entitled to use and exploit such Big Data, for or without consideration, notably for purposes of geo-localisation and/or statistics and/or analysis.

 

11. APPLICABLE LAW AND JURISDICTION

The Contract and this MSA shall be governed by French law, without regard to its conflict of law principles.

Any dispute arising out in relation to the Agreement shall be the subject of an attempt to reach an amicable settlement. Should an amicable solution not be reached between the parties within 15 (fifteen) days of a written notification by one of the parties to the other, such dispute shall fall within the exclusive jurisdiction of the courts of Toulouse (France), including in the event of summary proceedings or plurality of defendants.

 

EXHIBIT 1 – Minimum System Requirements and Architecture

The FitPhoto © technology enables web users to try glasses virtually on pictures. Users can upload pictures from their computer, from their Facebook account, take a picture with a webcam and use a model’s picture.

The FitLive © is an augmented reality-based application which transforms the user’s screen into a real time (video-based) virtual mirror. It enables web users to try glasses virtually in  real time with their webcam.

Minimum System Requirements:

Operating System (OS):

  • Mac OS X 6+
  • Windows XP, Vista, 7
  • Linux Red Hat 5.6+, OpenSuse 11.3+, Ubuntu 04+

Web browsers:

  • On Mac OS / Windows
  • Internet Explorer v10+
  • Chrome v35+
  • Mozilla Firefox v40+
  • Safari v8+

Hardware:

  • 2 GHz processor
  • 2 GB of RAM
  • 256 MB 3D graphic card compatible with Stage3D | http://helpx.adobe.com/x- productkb/multi/stage3dunsupported-chipsets-drivers-flash.html

Software:

Other additional hardware requirements:

A broadband Internet connection A 640*480 px compatible webcam

Architecture-FBX

EXHIBIT 2 – Service Level Agreement (SLA)

FittingBox shall ensure uptime and availability of 99.5% of the Services on an annual basis excluding scheduled downtime by FittingBox as described hereafter.

Prior to any planned System interventions that could have any potential material effect on the availability of the Services, including, without limitation, production change controls, schedules downtime, and any changes to FittingBox’s IP address(es), FittingBox shall provide to Client with a no less than five (5) business days advance written notice (email to administrator). Both parties will make all their best efforts to facilitate the required interventions.

Scheduled downtime by FittingBox shall not exceed four (4) hours per event and the frequency of scheduled downtime by FittingBox shall not exceed once every two (2) months. Furthermore, scheduled downtime by FittingBox shall not occur during Client’s typical business hours.

Fittingbox will provide an email address: support@fittingbox.com for Client Administrator to contact for all purposes regarding Services during Working hours.