”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.
”Agreement” means the Order Form and these General Terms and Conditions and the Specific Conditions. In the event of any conflict or inconsistency between these documents, the General Terms and Conditions shall prevail in any circumstances. By signing the Order Form and/or by entrusting Digitization services to FITTINGBOX, the CLIENT expressly and unreservedly and irrevocably agrees to the terms and conditions contains in the Agreement (and in particular the GTC), 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 Fittingbox’s solutions andor services.
“Classification” means the classification of brands and/or SKUs wihtin FBxData (Tier 1, 2 or 3). The Classification may be modified from time to time by FITTINGBOX, at its sole discretion.
“Client” means the professional frames manufacturer or retailer or resseler mentioned in the Order Form, who has ordered Digitization services to FITTINGBOX.
“Confidential Information” means any data, software, hardware, drawings, designs, processes, specifications, works, methodologies or other information (whether electronic or otherwise and whether commercial, financial or technical in nature) relating to the business or affairs of each Party other or its Affiliates and which are acquired from the other Party under the Agreement and/or provided to Clients in connection with this Agreement. The Agreement and the content of FBxData are also considered as Confidential Information.
“Derivative Work” means any new creation that has been conceived and produced from one or more pre-existing works.
“Digitization” means the process consisting of the numerical modelizing of SKUs and / or Lenses for the creation of Photographs and / or VTO frames. In extenso, “Digitization” refers to the SKUs and / or Lenses digitalized by FITTINGBOX and/or its partners.
“FBxData” means the digital frames database developed and enriched by FITTINGBOX. FBXData contains, in particular: Photographs and VTO Frames Digitization, as well as any related data and Metadata. It is clearly stated that the CLIENT is authorized to access to the digitalized frames of FBxData only in accordance with the terms and conditions of the related regular license granted by FITTINGBOX and/or its authorized partners, and to the exclusion of any other use.
“Force Majeure” means any circumstances or event beyond the reasonable control of a party, including an external unforeseeable and irresistible event, making it impossible to fulfill an obligation.
“General Terms and Conditions” or “GTC” means this document set up by FITTINGBOX for it Photo Studio offer, exclusively. The CLIENT is aware and irrevocably accepts that others FITTINGBOX’s products and services are governed by dedicated terms and conditions. The GTC 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.
“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.
“Lenses” means the lenses modelized and integrated within FBXData, allowing to simulate the lenses of SKUs through the FITTINGBOX Solutions.
“Order Form” means the document supplementing these General Terms and Conditions, that detail the specific conditions of the Agreement such as the designation of the Client, the commercial and financial proposal of FITTINGBOX, the effective date of the Agreement, the minimum annual volume comitment, etc.
“Party” or “Parties” means FittingBox or the CLIENT and, in the plural, FittingBox and the CLIENT.
“Photograph(s)” means the high definition digitized SKUs in front view and / or ¾ and / or interactive 360 °, integrated within FBXData.
“SKUs” means eyeglass frames and / or sunglasses with a unique style combined with a unique color. For the avoidance of doubt, it is stressed that there is only one SKU per frame with its specific features and details (i.e. a frame model with 5 possible color variations will be turned into as many SKUs).
“Solution(s)” means the FittingBox virtual try-on solutions for eyeglasses (FitPhoto / Fitlive / FitMetrix and / or Owiz PlugIn and / or Owiz Web and / or Owiz App and / or Owiz Mirror and / or Owiz Street), as the case may be, of which FITTINGBOX holds exclusive property rights, and that are subject to dedicated general terms of licence and use.
“Third Party” means any natural person and/or legal entity other than the Parties, and excepted to FittingBox’s Afffiliates and/or authorized partners.
“VTO frames” means the SKUs modelized by FittingBox and/or its authorised partners, considered as derivative works and incorporated into FBxData for virtual try-on purposes through FITTINGBOX Solutions.
“Working Hours / Days” means business hours or days applicable in Metropolitan France, from Monday to Friday, from 9 am to 6 pm, excluding public holidays.
The purpose of the Agreement is to define the terms and conditions under which:
– the CLIENT provides the SKUs to FITTINGBOX for their Digitization;
– FITTINGBOX proceeds to the Digitization of the SKUs and/or Lenses and returns them to the CLIENT;
– FITTINGBOX provides the Photographs and/or the VTO Frames to the CLIENT.
As the case may be, FITTINGBOX may provide the CLIENT a license to use a Solution, allowing access to the VTO frames modelized under the Agreement. Any license granted on one or more Solutions is subject to strict compliance with the associated general terms of license and use that may be found at http://www.fittingbox.com/legal.
Throughout the term of the Agreement, and unless otherwise expressly mentioned in the Order Form, it is clearly understood between the Parties that FITTINGBOX will be the exclusive partner of the Client for the Digitization services and/or the provision of VTO frames and/or 3D images of frames and/or, as the case may be, the provision of VTO solutions. The Photographs and/or VTO Frames incorporated into FBxData are the sole 2D/3D images whose quality and homogeneity are validated by FITTINGBOX.
3. ENTRY IN FORCE – DURATION
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.
The CLIENT is expressly informed and agrees that the Agreement documents can be signed electronically. The Parties consider that the electronic signature will have the same probative value as a handwritten signature and will be binding on each Party and any Third Party.
Unless otherwise stated in the Order Form, the Agreement is concluded for a period of one (1) year. At the end of this initial period, the Agreement shall be tacitly extended by successive periods of twelve (12) months, unless if a two (2) months’ notice of termination is given by one of the Parties prior to the extension date, notified by registered letter with acknowledgement or receipt. Upon renewal of the Agreement, the Digitization services will be invoiced at the FITTNGBOX catalog rate, excluding the initial discount stipulated for the initial Agreement period as it appears on the Order Form, as the case may be. Any contractual period (initial or renewed) is firm and definitive.
On termination of the Agreement, for any reason whatsoever, the provisions relating to Intellectual Property (Article 8), Guarantees (Article 9), Liability (Article 10) , Confidentiality (Article 12), and the method of dispute settlement (Article 15 & 16), notably, will survive to such termination.
4. BREACH – TERMINATION
This Agreement shall terminate before its regular term if a Party fails to fulfill any of its obligations hereunder and does not remedy the default within a period of thirty (30) days following receipt by the said defaulting Party of a formal notice asking it to remedy the default – or within a shorter period as is provided for in this Agreement. Shall be considered as a legitimate right for FITTINGBOX to terminate the Agreement, ipso jure and without indemnity, any failure of the Client to comply with any or all its obligations as per in sections 5.2, 7, 8, 9 and 12.
The liability of either Party shall not be sought if the non-performance of its obligations is delayed or prevented by reason of an event of Force Majeure. For the avoidance of doubt, an obligation to make payment shall never be subject to Force Majeure.
In the event of an early termination by the CLIENT or caused by the CLIENT, for any reason whatsoever – including in the event of the sale of his lease or goodwill or termination of business – the CLIENT shall remain liable, to first damages of all the amount mentioned in the Order Form until the regular term of the Agreement (whether for the initial term or its renewals), without prejudice to all other damages or penalties. It is clearly stressed that the change of (i) address and / or (ii) social / legal form and / or (iii) identification number shall noever be considered as a case of Force Majeure or a case of legitimate termination.
FITTINGBOX also reserves the right to terminatel the Agreement immediately ipso jure and without compensation, by notification, in the event of a change of control or takeover of the CLIENT by a direct or indirect competitor of FITTINGBOX or its Affiliates.
5. OBLIGATIONS OF THE PARTIES
5.1 Reciprocal obligations
The Parties agree to cooperate closely and in good faith in their relations relating to the implementation and performance of the Agreement.
The Parties undertake to disclose any information they deem useful for the successful implementation of the Agreement and any difficulties which they may have, and which may have an impact on the performance of the Agreement, as and when the execution of the Agreement and will reflect together on the most appropriate way to overcome it.
To this end, each Party shall designate a referent person having the capacity and power to take or cause to be taken the decisions necessary for the proper performance of the Digitization services.
Similarly, each Party expressly undertakes not to denigrate the other Party to any Third Party or to any of the goods and / or services provided or marketed by the other Party in any way and / or importance whasoever.
5.2 Specific obligations of the CLIENT
Throughout the term of this Agreement, the CLIENT undertakes to sent its SKUS and/or Lenses for Digitization purposes, at least for the minimum volume commitment mentioned in the Order Form (if any). The batches shall be sent to FITTINGBOX’s HQ, or to any other address indicated by FITTINGBOX, by courier and/or transportation services (such as UPS), at the Client’s own cost and expense and unless otherwise expressly mentioned in the Order Form.
The CLIENT undertakes to provide FITTINGBOX with all relevant information relating to the SKUs entrusted to FITTINGBOX for their Digitization; In particular, the CLIENT agrees to use and complete the eGlasses Order provided by FITTINGBOX, to the exclusion of any other document, duly completed for the considered batch.
The CLIENT guarantees the respect by its employees and / or subcontractors and / or partners, whoever they are, of the main provisions of this Agreement and must make sure to prevent any unauthorized use of the Photographs and / or VTO Frames present in FBxData, by substantial or repeated extractions of data. In particular, the CLIENT undertakes not to:
– use the FBxData and / or the Photographs and / or the VTO Frames in order to create Derivative works and / or a direct or indirect competing product or service, unless otherwise expressly agreed by FITTINGBOX, in written;
– use FBxData and / or the Photographs and / or VTO Frames in order to interfere or compete or parasite, directly or indirectly, with any product and / or service distributed and/or marketed by FittingBox, its Affiliates and/or its authorized partners;
– encourage any Third Party and / or allow any Third Party to access and/or extract; any part of FBXData and / or the Photographs and / or VTO Frames otherwise than to access to the Solutions under a regular license granted by FITTINGBOX.
5.3 Specific obligations of FITTINGBOX
FITTINGBOX undertakes to carry out the Photographs and / or the VTO frames, according to the option chosen by the CLIENT in the Order Form, within the time agreed between the Parties, from the date of receipt of the lot concerned and provided that the CLIENT has duly fullfilled and provided to FITTINGBOX the corresponding eGlasses Order.
Throughout the duration of the Agreement, FITTINGBOX agrees to use the SKUs sent to it by the CLIENT under the best conditions of use in order not to damage them. FITTINGBOX agrees to verify the proper condition of the SKUs or Lenses within forty-eight (48) Working hours of their receipt and to notify the CLIENT any anomaly or damage within the same period. FITTINGBOX will promptly notify the CLIENT of any deterioration or damage it may have identified. FITTINGBOX will not be obliged to repair any damage caused by a transport defect or the normal use of the SKUs / Lenses. FITTINGBOX agrees to return the SKUs and /or the Lenses on the date agreed between the Parties in good working order. It is expressly agreed between the Parties that the cost of returning the SKUs and / or Lenses shall be borne by the CLIENT.
FITTINGBOX does not give any undertaking or warranty of any kind about an automatic and/or effective referencing of the CLIENT in the results of the directory http://www.allolunettes.com or any other website that might substitute to it.
6. SPECIAL CONDITIONS FOR DIGITIZATION
The CLIENT is and remains solely responsible for the choice of the SKUs and/or Lenses entrusted to FITTINGBOX with a purpose to their Digitization and the use of the Photographs and / or VTO frames, and in particular with regard to rights of use, reproduction and display / communication to the public as well as the right to market and advertise for the related Skus and/or Lenses.
It is reminded between the Parties that the SKUs and/or Lenses entrusted to FITTINGBOX by the CLIENT are provided for free, with the intent of Digitization and to the exclusion of any other purpose. The SKUs and/or Lenses received by FITTINGBOX shall not, in any circumstances, be lent or sold or leased or given, in any manner whatsoever, to any Third party, unless otherwise agreed by the Client.
The Digitization provided by FITTINGBOX under the Agreement shall comply with the following characteristics:
- JPG and PNG files;
- Resolution in 300 DPI minimum for JPG files (the size of the images is adaptable within a limit of 2500×1400 pixels);
- Cut-out image placed on white or transparent background;
- Replacement of optical lenses with standard color and transparency;
- Retouch of the sunglasses to remove reflections visible in the lenses. The iridescence / shimmer effect of certain sunglasses (such as ski masks) may not be completely visible on the retouched image;
- Cleaning of dust or micro-scratches on the frames when shooting and then (if necessary) in retouching;
- Standard Standard for shooting:
- Front view: Horizontal angle 0 °, Vertical angle 25 °
- View ¾: Horizontal angle 36 °, Vertical angle 25 °
Color control: The color in the modelized image is controlled by an automatic process in order to guarantee fidelity of rendering with respect to the frames and / or the physical lenses.
The Digitization is carried out in a standard luminous environment aiming to reduce the reflections visible in the image. However, some parts of the luminous environment may remain in the final image (such as reflections from the camera lens).
The lighting environment is standardized and is not suitable for each frame or lenses. Highly reflective materials may appear less reflective than they really are in the image obtained by Digitization.
The quality and consistency of the Digitization are verified by FITTINGBOX; The Digitization shall have the level of quality agreed between the Parties before and after any retouching.
Any discrepancies in denomination or quality (reproduction of colors, reflections, etc.) that do not correspond to the contractually foreseen finish will be reported to FITTINGBOX who will endeavor to correct them within seventy-two (72) Working hours of receipt a written and detailed notification from the CLIENT. In the absence of a return of the CLIENT within ten (10) calendar days following the transmission by FITTINGBOX of the Digitization performed under the Agreement, the quality of the said Digitization will be deemed to have been accepted by the CLIENT.
7. PRICES AND CONDITIONS OF PAYMENT
The prices and terms of payment for the Digitization services and, where applicable, the cost of the license relating to the Solutions are indicated in the Order Form. It is reminded that prices may be subject to the Classification and that Classification may be modified from time to time by FITTINGBOX, at its sole discretion. Prices are quoted in the currency specified on the Order Form, excluding value added tax (VAT excluded) and excluding other taxes which will be invoiced in addition at the rate applicable on the day of invoicing. The prices shown in the Order Form do not include SKUs / Lenses transportation costs; these costs shall be borne by the CLIENT, exclusively, unless otherwise expressly specified in the Order Form.
The Digitization services are invoiced up to 100% of the value of the corresponding batch, upon its reception by FITTINGBOX.
The Parties agree that electronical invoices shall have the same legal value as a paper invoice and shall be binding on each Party and any Third Party.
Unless otherwise stated in the Order Form, FITTINGBOX invoices are payable within thirty (30) days of the date of issue. No discount or rebate will be made in case of advance 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.
In no event shall FITTINGBOX be obliged to reimburse any payment made by the CLIENT.
Under no circumstances will the CLIENT have the right to suspend, delay or reduce the payment of invoices for any reason whatsoever.
If the CLIENT fails to pay when due, 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 costs incurred by FITTINGBOX in recovering its claim (judicial and extrajudicial).
FITTINGBOX reserves the right, in the event of default payment at maturity, to suspend its services, including access to the Solutions, from the due date and until complete payment by simple email and without prejudice to its right to terminate this Agreement in the manner provided for in Article 4 of these General Terms and Conditions.
Unless otherwise specified in the Order Form, FITTINGBOX reserves the right to revise the prices set forth in the Order Form once a year on each anniversary date of the Agreement and/or at ach renewal by applying the formula R = Ro x S / So, wherein (i) R means the revised fee, (ii) Ro means the royalty in effect on the date of revision, (iii) S means the latest French SYNTEC index published on the revision date, and (iv) So means the value of the same index on the date of the previous revision or on the date of signature of the Agreement for the first revision.
8. PROPERTY RIGHTS
8.1 Intellectual Property rights of FITTINGBOX
All Intellectual Property rights relating to the Solutions and / or FBxData, including the underlying technologies and architecture of their content and / or documentation, as well as copyrights, trademarks, Designs and models of FITTINGBOX, whether or not registered or deposited, are and remain the exclusive property of FITTINGBOX or the Third Party having granted all or part of the rights to FITTINGBOX.
The Client acknowledges that these elements are significant items of FITTINGBOX’s assets; any disclose of any of these elements may significantly damage FITTNGBOX and/or its Affilitates.
These rights shall not be transferred the Client because of the performance or the termination of this Agreement.
Any unauthorized or non-compliant use of FBxData and/or the VTO frames and/or the Metadata, or any other Intellectual Property rights of FITTINGBOX, shall be considered as a counterfeit act and the CLIENT shall be solely responsible for any damages it may occur or cause in relation thereto, including any damages or remedies in the aggregate caused by any Third Party claim or action related hereto, 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.
8.2 Intellectual / Industrial Property rights of the SKUs / Lenses
All proprerty rights related to the SKUs and/or Lenses, including copyrights and trademarks reproduced on or used to designate such SKUs / Lenses, remain the exclusive property of the CLIENT or the Third Party which has granted to the CLIENT all or part of the related rights of use and/or operate and/or commercialize such SKUs / Lenses. FITTINGBOX does not acquire any ownership of these elements, except the right to use them for its Digitization purposes and without prejudice to the guarantees set out in section 9 hereunder.
8.3 Intellectual Property rights related to the Photographs and VTO Frames
The 3D images and/or VTO Frames created and/or incorporated into FBxData, including the underlying Digitization technology and their architecture remains the entire and exclusive property of FITTINGBOX. This Agreement, because its execution and/or termination, does not grant the Client any Intellectual Property rights to any of these elements.
The Intellectual Property rights related to the 2D Photographs created by FITTINGBOX directly under the performance of this Agreement might be transfered to the CLIENT,in particular for a Tier3 Classification, provided however that the CLIENT owns the trademarks and/or the exclusive Intellectual Property rights of the related physical frames or lenses. Subject that the CLIENT has observed and performed all of its obligations under the performance of this Agreement and with respect to all FITTINGBOX’s Intellectual Property Rights, FITTINGBOX shall assign to the CLIENT, free of charge, to the maximum extent permitted by the applicable law, all the Intellectual Property Rights over such 2D Photographs.
In case the paragraph above should apply, the CLIENT grants FITTINGBOX a free-of-charge, non-exclusively, worldwide and for the duration of the copyright, right to use, adapt, represent, publish, distribute and/or commercialize such Photographs, in their current condition or as VTO Frames. As a consequence, FITTINGBOX shall be fully invested with the right to exploit such Photographs, in the widest possible way, including the right to use, exploit, reproduce, represent, modify, commercialize, transfer, by any means and processes, on any medium and formats, in an unlimited number, in whole or in part, for free or for a fee, for all activities of FITTINGBOX, and worldwide. The CLIENT shall not be entitled to receive any remuneration of any nature arising from the integration of the Digitization within FBxData and / or FITTINGBOX Solutions or, in general, their past or future operation by FITTINGBOX. For sake of clarity, the CLIENT is hereby informed and acknowledges that the images (Photographs and/or VTO Frames) directly or indirectly produced by using the StudioBox System, either the Client holds the related Intellectual property rights or not, may be incorporated into FBxData and/or FITTINGBOX’s try-on solutions, represented, published, distributed and/or commercialized by FITTINGBOX to its customers and/or partners, either free-of-charge or in exchange for remuneration, leaving it to such customers and/or partners to have obtained the right to use these images and/or retail the corresponding SKUs from the corresponding frame manufacturer, without any financial compensation of any kind for the Client and/or any Third Party.
The Client shall maintain also the full ownership over the trademarks and the exclusive Intellectual Property rights of the related SKUs / Lenses.
Each Party represents and warrants that it has the full rights required to enter into this Agreement and perform its obligations in accordance with the terms of this Agreement and the entry into this Agreement does not constitute a breach of any obligation (including any statutory, contractual or fiduciary obligation) or default under any agreement or undertaking, by which that Party is bound. Each Party shall, as far as it is concerned, indemnify the other against any recourse, action, damages or indemnity which any natural or legal person may invoke or claim, including intellectual property rights, acts of unfair competition and / or parasitism subject to (i) having been notified by the written party as soon as the party becomes aware of the complaint; (ii) having been notified by written as soon as the other Party became aware of the complaint; (iii) having received from the other Party any and all relevant information and / or assistance for the defense of the action; (iv) the complaint does not result from changes made by the CLIENT or an unauthorized Third Party on the Photographs and/or VTO Frames.
In particular, the CLIENT represents and warrants that:
- It is and will be the legitimate holder of all the rights associated with the SKUs and/or Lenses (including for the reproduced brands or trademarks) incorporated into FBxData and/or it entrusts to FITTINGBOX for Digitization purposes;
- FITTINGBOX is and will be duly authorized to photograph and/or digitalize such SKUs and/or Lenses, in order to create Photographs and/or VTO Frames, without having to obtain authorizations or pay royalties to any Third Party whatsoever; and
- FITTINGBOX is and will be duly authorized to incorporate the digitalized SKUs and/or Lenses into FBxData and/or into its on-line or in-store solutions, without having to obtain authorizations or pay royalties to any Third Party whatsoever; and
- FITTINGBOX is and will be duly authorized to perform broadcast / demonstrations at trade shows / public or private meetings; and
- FITTINGBOX is and will be duly authorized to use, exploit, market, promote, sell, display, promote and distribute the SKUs and/or Lenses incorporated into FBxData, as Photographs or as VTO Frames, via its on-line or in-store solutions, for free or for consideration, worldwide, without conditions or restrictions and/or without having to obtain authorizations or pay royalties to any Third Party whatsoever;
- It will keep all relevant authorizations valids and in force.It is and will be duly authorized to provide SKUs and/or Lenses to FITTINGBOX for Digitization purposes; and
The provisions of this Section 9 apply valid cumulatively and shall survive to the termination of this Agreement, for any reason whatsoever, for the duration of the applicable Intellectual Property rights. The CLIENT shall defend and indemnify FITTINGBOX against any claim and any damages claimed arising from a violation of these provisions. FITTINGBOX shall also be discharged for any liability in case of failure from the CLIENT to any provision of this Section 9
10. LIMITED LIABILITY & INSURANCE
Save as expressly provided in this Agreement 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.
To the maximum extent permitted by law, in no event shall FITTINGBOX be liable 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.
Under no circumstances, the aggregate liability of FITTINGBOX, for any reason whatsoever and including on the grounds of Section 9 hereunder, will exceed the limited amount paid by the Client to FITTINGBOX, during the six (6) months preceding the damage and in direct relation with the Digitization services.
The Parties expressly agree that should any limitation or provision of this clause 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.
Throughout this Agreement, each Party will make its personal affaire to take out and maintain a professional indemnity insurance for as is necessary to cover its liabilities.
11. FORCE MAJEURE
Neither Party shall be liable for any failure or breach of its obligations arising out of Force Majeure. The Party that avails itself of an event of Force Majeure shall to declare it and to prove its existence as soon as possible after the occurrence of the event.
The Party concerned by the Force Majeure shall do its utmost to resolve or attempt to limit its consequences with a view to resuming its contractual obligations as soon as possible. The Parties shall meet to determine the manner in which performance of the obligations under the Agreement would be continued. The obligations suspended shall be re-executed as soon as the effects of the cause (s) of non-executed have ceased.
In the event, the Force Majeure event take effect for a period exceeding forty-five (45) days, the Agreement may be terminated ipso jure without the need for judicial determination by either Party without notice.
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 Contrat, without the prior express written agreement of FITTINGBOX.
The CLIENT also undertakes to take any required steps which are necessary for reservation 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 appli cation 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 his 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.
13. GENERAL PROVISIONS
13.1 Entire agreement
The Agreement shall expresses the entire contractual obligations of the Partieswith regard to its purpose; it cancels and replaces any previous agreement, letter, offer or other document having the same purpose. No modification may be made to this Agreement without a written additional clause being signed. Under no circumstances may the Client’s purchase order or general terms and conditions be enforced on FITTINGBOX.
Any modification, waiver or amendment of the Agreement or any of its terms and / or conditions shall be valid only if it is the subject of an endorsement duly signed by both Parties.
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.
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.
13.4 Independance of the Parties
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. 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. Within the framework of its activity, each Party shall act independently and shall deal personally with all legal, social and fiscal provisions. Neither party is an employee, agent, partner or joint venturer of the other Party.
As the Agreement is concluded intuitu personae, neither Party may not assign or transfer the benefit of the Agreement to any Third Party, in whole or in part, and in duration and / or importance, without the express and written consent of the other Party. By way of derogation from the foregoing:
- The change of control or of shareholders within FITTINGBOX, or the transfer of all or part of FITTINGBOX to a Third Party, will take place without the CLIENT’s consent being required. This Agreement will automatically continue with the new legal entity substituting for FITTINGBOX without possibility to the CLIENT to terminate the Agreement
- FITTINGBOX may subcontract all or part of its services. In the event of subcontracting, FITTINGBOX shall remain liable to the CLIENT for the proper performance of the services.
- The assignment of the Agreement by the CLIENT (assignor) will be valid only if it is the subject of an addendum or a new agreement signed between FITTINGBOX and the assignee. In the event of agreement, and unless specifically waived by FITTINGBOX, the transferor will remain jointly and severally liable for its assignee. Failing this, the transfer of the business of the CLIENT will result in the termination of the Agreement and the immediate exigibility of the entirety of the contractual fees, under the conditions mentioned in Article 4
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 CLIENT; to such end, FITTINGBOX shall be authorized to use and reproduce the name, logo(s) brands, trade names of the CLIENT 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.
13.7 Data Protection
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 by mail sent at FITTINGBOX – Bat Arizona A – 644 l’Occitane – 31670 Labege – France.
The CLIENT is aware and irrevocably accepts that FITTINGBOX reserves the rights to collect Big Data within the performance of the Agreement. FITTINGBOX is entitled to use and exploit such Big Data (aggregated and anonymous data), for or without consideration, notably for purposes of geo-localisation and/or statistics and/or analysis.
14. ELECTION OF DOMICILE – NOTIFICATIONS
The Parties shall elect domicile at their respective registerd or principal offices, as indicated in the Agreement. Any change of domicile by one of the Parties shall be binding on the other only on the expiry of fifteen (15) days from the receipt of the notification by registered letter with Acknowledgment of receipt.
15. GOVERNING LAW / JURISDICTION
This Agreement is governed by French law to the exclusion of all other legislation. Unless otherwise provided by a mandatory law or regulation, any dispute born of the interpretation or the performance of 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 fifteen (15) calendar days of written notification by one of the parties to the other of the implementation of these amicable settlement proceedings, any litigation that may arise between the Parties relating to the formation, performance, interpretation termination or cancellation of the present Agreement shall be the exclusive competence of the competent courts of toulouse, france, including in the event of summary proceedings, motion or plurality of defending parties.