3D4 Fashion

General Terms and Conditions for Digital Assets

1. DEFINITIONS 

”3D4FASHION” means the FittingBox Group business or legal entity that provides the Services under the Agreement. 

”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 (50%) of the voting shares or similar interest in said company, or the power to direct or cause the direction of the management and policies of the relevant company, including without limitation a party’s joint venture partners. 

”Agreement” means, these General Terms and Conditions supplemented by the Order Form. Unless overruled in the Order Form and expressly agreed by 3D4FASHION, in the event of any conflict or inconsistency between these documents, the General Terms and Conditions shall prevail in any circumstances. Any other document or information that may be provided by 3D4FASHION is for information purposes only and shall not bind 3D4FASHION or FittingBox Group.  

“Assets” means the 3D images that may be accessed via the Platform and readable via the Viewer. 

“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 analyzed throughout the performance of the Services. As aggregated or anonymized data, BigData are not considered as personal identifiable information (PII). 

"CLIENT" means the subscriber of the Services, as designated in the Order Form. 

"Confidential Information" means any non-public 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 a Party in connection with the Agreement.  The Agreement and the content of the Database are also considered as Confidential Information by nature. 

“Derivative Work” means any new creation that has been conceived and produced from one or more pre-existing works. 

“Database” means the digital assets database developed and enriched by FittingBox Group. The access and/or use of any part of Database under the Agreement is possible only via the Viewer. 

“FittingBox Group” means FITTINGBOX, a limited liability company incorporated in France, and its Affiliates. 

“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, as usually retained by the case law in France.  

“General Terms and Conditions” or “GTC” means this document – and its further updates or modifications – that governs the access to and use of the Assets, exclusively. The CLIENT is aware and irrevocably accepts that other products and services that may be provided by FittingBox Group, and in particular any digitization and/or assets creation services are governed by dedicated terms and conditions. The GTC may be modified from time to time by 3D4FASHION, at its sole discretion. The last version of the applicable General Terms and Conditions may be found at www.fittingbox.com/en/3d4fashion/legal-information/general-terms-and-conditions. In the event of any inconsistency with a translated version of these GTC, and with exception to the French version, the English version of the GTC shall prevail in any circumstance; any version of the GTC other than French and English is for reference purposes only.  

“Intellectual Property” means, notably but not exhaustively, any patent, copyright, trademark, trade dress, trade name or trade secret right and any other intellectual property or proprietary right of a Party and/or its Affiliates, anywhere around the world, including know-how and methods, whether such rights are registered or unregistered and including the goodwill attaching to such rights and the right to apply for any such rights. 

“Order Form” means the document that details the specific conditions of the Agreement, and in particular the designation of the CLIENT, the Services subscribed and the related subscription fee, the effective date of the Agreement, the maximum volume if any, etc.  

“Party” or “Parties” means, in the singular, 3D4FASHION or the CLIENT and, in the plural, 3D4FASHION and the CLIENT. 

“Platform” shall mean the Shopify platform or app, allowing the CLIENT to access to the Services. 

“Selection” means the Assets selected by the CLIENT within the performance of the Agreement, organized by brand or by reference.  

“Services” shall mean the services subscribed by the CLIENT through the Platform, related to the access and use of the Assets. It is stressed that the Services do not induce the provision of any license of the Platform or the Viewer; as the case may be, the right to use such elements shall be governed by the terms and conditions edited and/or amended from time to time by their respective licensors.  

“Third Party” means any natural person and/or legal entity other than the Parties. 

“Viewer” means the Third-Party 3D viewer, as embedded in the Services. 

2. SCOPE 

By signing the Order Form and/or by accessing to the Services, the CLIENT expressly and unreservedly and irrevocably agrees to the entire terms and conditions contained in the Agreement (and in particular the GTC), and their full enforcement. Similarly, the CLIENT continued use of the Services after posting an updated version of the GTC will constitute a formal acceptance of the CLIENT of the related changes, in their entirety. These terms constitute binding and enforceable obligation on the CLIENT.  

No services other than those expressly mentioned the Order Form are provided to the CLIENT. Any subscription to an additional service shall be expressly done and accepted and set forth in the corresponding signed order form. 3D4FASHION reserves the right to refuse to perform such additional or specific services, at its sole discretion and without having to justify its decision. 

3D4FASHION determines on its own all the means that it wishes to use or assign to the Services. Under no circumstance can the CLIENT have authority, in any manner and/or importance whatsoever, on a FittingBox Group’s employee or resource. 

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. 

Unless otherwise stated in the Order Form, the Agreement shall be tacitly extended by successive periods of twelve (12) months, unless if a three (3) months’ notice of termination is given by one of the Parties prior to the extension date, notified by registered letter with acknowledgement or receipt; and (iii) upon renewal of the Agreement, the Services will be invoiced at 3D4FASHION catalog rate, excluding the initial discount stipulated for the initial Agreement period as it appears on the Order Form, as the case may be. Renewal periods shall not be considered as a novation of the Agreement. Any contractual period (initial or renewed) is firm and definitive. 

4. EARLY TERMINATION -  BREACH 

The 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 fifteen (15) days following receipt by the said defaulting Party of a formal notice asking it to remedy the default – or immediately in case of a serious breach or if the breach cannot be remedied or repaired. Shall be notably considered as serious breaches from the CLIENT: failure to comply with (i) the payment obligations, (ii) the confidentiality obligations, and (iii) the respect of Intellectual Property rights. 

Neither Party shall be liable for non-performance of the Agreement 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, the CLIENT shall remain liable, as first compensation, of all the amount mentioned in the Order Form until the regular term of the Agreement (whether for the initial period or its renewals), without prejudice to all other damages or penalties 3D4FASHION or FittingBox Group may claim. It is clearly stressed that the change of (i) address and / or (ii) social / legal form and / or (iii) identification number shall never be considered as a case of Force Majeure or a case of legitimate termination. Similarly, the legal liquidation, the dissolution or the ceasing of activity or assignment of its business by the CLIENT entails the termination of the Agreement and leads to the immediate payability of the entire contractual fees, according to the conditions mentioned in this article.  

3D4FASHION also reserves the right to terminate the Agreement immediately ipso jure and without compensation, by notification, in the event of a change of control or takeover or investment equity of the CLIENT by a direct or indirect competitor of FittingBox Group or its Affiliates, without any compensation. 

Under no circumstances, the expiration or the termination of the Agreement, for any reason whatsoever, in all or part, may induce a reimbursement of the fees paid by the CLIENT.  

On termination of the Agreement, for any reason whatsoever, the CLIENT shall stop using the Services.  

On termination of the Agreement, for any reason whatsoever, the provisions relating to Intellectual Property, CLIENT’s warranties, liability, confidentiality, and litigation rules, notably, will survive. 

5. NO WARRANTIES 

The Services are performed 3D4FASHION as a technical intermediary party, and under on obligation of mean, solely. 3D4FASHION only provides raw data or files under the performance of the Services.  

The Services are provided “AS IS”, without any warranty or guaranty of any kind as to their potential quality, performances or results.  

The CLIENT acknowledges that the Services are a standard offer of 3D4FASHION that are NOT designed to meet particular needs. The CLIENT declares having received full and accurate information about the Services that it has subscribed to the Agreement, and in particular about the characteristics of the Assets and the functionalities of the Platform and/or the Viewer, with full background knowledge. 

The CLIENT is aware and irrevocably accepts that the Services may implement or be interfaced with third-party technology, including open-source software. 3D4FASHION reserves the right to remove or replace any third-party technology implemented or interfaced with its own technology, from time to time, at its sole discretion. 

In view of the technical uncertainties intrinsic to the Internet, or from any incompatibility stemming from the web browsers, or technologies and/or technical operation inherent to the Platform or the Viewer, 3D4FASHION does not give any warranty or guaranty of any kind that the Services will meet the requirements of the CLIENT or will be accessible or run without interruption or without errors. It is also reminded that the Platform and the Viewer are Third-Party technologies. Therefore, as 3D4FASHION is not the licensor or the technical provider of such technologies, 3D4FASHION does not give any warranty or guaranty of (i) compatibility or (ii) update or upgrade or (iii) non-regression or (iv) defects, non-conformities or bugs affecting or related to such third-party technologies, viewer or engines. Consequently, 3D4FASHION shall not be deemed responsible for defects of the Services nor the Assets accessible and displayed under the Agreement for the mere fact that such defects exist. Similarly, 3D4FASHION does not give any warranty or guaranty of any kind regarding the compliancy of each Third Party provider – and including the Intellectual Property rights holders of the Platform and/or the Viewer – with any applicable data privacy laws and regulations, and in particular with the European Regulation 2016/679 of 27 April 2016 (GDPR), the California Privacy Right Act (CPRA) , the US Health Insurance Portability and Accountability Act (HIPAA), the Illinois' Biometric Information Privacy Act (BIPA), the US Health Information Technology for Economic and Clinical Health (HITECH), and/or any similar laws and regulations, as applicable, as amended.  

The CLIENT is aware and irrevocably accepts that Third Parties’ terms and conditions may be modified from time to time by such Third Parties, at their sole discretion, without 3D4FASHION incurring liability as a result; 3D4FASHION encourages therefore the CLIENT to regularly refer or consult such terms and conditions. 

The CLIENT agrees that access to the access to the Services may be suspended without 3D4FASHION incurring liability as a result, 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.  

3D4FASHION does not provide any warranty – and will refuse any warranty and liability – for the damages resulting, in whole or part from malfunctions, defects, non-conformities or bugs affecting any computer program or other equipment used in conjunction with the Assets – including but not limited to the Platform, the Viewer and/or any device, computer or smartphone were may be displayed the Assets – or the defects, non-conformities of bugs which, as a consequence, may affect any hardware or software, and more generally on any system or device not licensed and provided by FITTTINGBOX. Consequently, 3D4FASHION shall not be deemed responsible for related defects for the mere fact that such defects exist; under no circumstances 3D4FASHION will be liable for any related direct or indirect consequence. 

3D4FASHION reserves the right to suspend or revoke the access to Services and/or the Assets if the CLIENT is in breach of any of its obligations, with immediate effect and without indemnity, and in particular if the Selection infringes – or constitutes a risk to infringe - the rights of Third Parties, with immediate effect and without incurring any liability, without prejudice of its right to terminate the Agreement, according to the conditions mentioned in article 4. 

Save as expressly provided in the Agreement, and in particular in this section 5, 3D4FASHION 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. 3D4FASHION will refuse any other guaranty or warranty, whatever it is, expressed by third parties. 

6. OBLIGATIONS OF THE CLIENT  

The CLIENT undertakes to provide 3D4FASHION with all relevant information and/or documents relating to the performance of the Agreement and the Services. 

The CLIENT undertakes to use the Services accordingly the instructions or directives of 3D4FASHION.  

The CLIENT guarantees the respect by its employees and / or subcontractors and / or partners, whoever they are, of the main provisions of the Agreement and must make sure to prevent any unauthorized use of the Assets. In particular, and unless otherwise expressly authorized by 3D4FASHION, on a case-by-case basis, the CLIENT undertakes not to directly or indirectly: 

• extract or try to extract all or material parts of the Database, in any manner and/or importance whatsoever; 
• use or reuse the Assets and/or any elements for which FittingBox Group holds the Intellectual Property rights, in order to create Derivative Works and / or a direct or indirect competing product or service, including in order to create or enrich a competitive database, and a fortiori for distribution and/or commercial purposes; 
• use the Services and/or the Assets in order to interfere or compete or parasite, directly or indirectly, with any product and / or service distributed and/or marketed by 3D4FASHION or FittingBox Group, their Affiliates and/or authorized partners; 

• reverse or attempt to decompile or reverse engineer the Services, irrespective of the cause; 
• encourage any Third Party and / or allow any Third Party to access and/or extract any part of the Database. 

Any unauthorized or accessory usage or misuse of the Services is strictly forbidden and shall be considered to constitute a counterfeiting act. 

The CLIENT expressly undertakes not to denigrate the 3D4FASHION or to any of the goods and / or services provided or marketed by FittingBox Group in any way and / or importance whatsoever. 

The undertakings described in this entire section 6 are cumulative and substantial obligations of the CLIENT; they shall survive the termination of the Agreement, for any reason whatsoever.  

In the event the CLIENT breaches any of the obligations contained this section 6, including by negligence, (i) 3D4FASHION shall be entitled to immediately terminate the Agreement, with no need for any authorization whatsoever from a court and without incurring liability, and without prejudice to any direct and/or indirect damages, and (ii) the CLIENT will defend, indemnify and hold 3D4FASHION and its officers, directors, employees, contractors, Affiliates and agents harmless from any and all claims, suits, demands, costs, liabilities, expenses, damages (including reasonable attorneys' costs and fees) and judgments (or settlements to which the CLIENT already consents) related to any default or breach or alleged default or breach of the Agreement or any other act or omission or negligence by the CLIENT relating to its obligations under the Agreement, and (iii) the CLIENT undertakes to reimburse any profit and/or savings eventually earned by breaching this obligation, without prejudice to any additional damages or remedies 3D4FASHION may claim as a result of such breach or failure. 3D4FASHION shall also be discharged for any liability in case of failure from the CLIENT to any provision here above. 

7. PRICES AND CONDITIONS OF PAYMENT 

7.1. Price 

The subscription fees are those indicated in the Order Form, depending on the plan subscribed, excluding value added tax and other taxes, which shall be invoiced in addition according to the rate applicable at the date of invoicing. 3D4FASHION may offer a limited 1-month trial period at its sole discretion but cannot be constrained to do so. 

A master subscription is valid for one (1) country only (by default, the country where the CLIENT has its main office or its main business activity); every additional territory that would be subscribed will be considered as a secondary license and charged as well (+30% per secondary license, for indicative purposes only). 

The number of products of a plan is computed on calendar months, with the first and last subscription months prorated.  

Once the monthly number of products is reached or exceeded, the CLIENT irrevocably undertakes to subscribe to the upper plan within one (1) month following such excess. 3D4FASHIONmay send prior reminders to the CLIENT but cannot be constrained to do so, in any manner or importance whatsoever. 

On renewal, and unless otherwise expressly mentioned in the Order Form, the Services shall be invoiced at the standard prices of 3D4FASHION, and/or without the initial rebate granted for the initial term of the Agreement as stated on the Order Form, if any.  

7.2. Payment 

The subscription fees are payable upfront in the currency and at the frequency set forth in the Order Form. No discount or rebate will be made in case of advance payment. 

In no event shall 3D4FASHION 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 and/or to upgrade its plan when due 3D4FASHION reserves the rightto suspend the access to the Services, immediately, without 3D4FASHION incurring liability as a result, and until the situation has been entirely resolved, including additional payment fees as applicable, without prejudice to its right to terminate the Agreement in the manner provided for in Article 4 of these General Terms and Conditions. 

If the CLIENT fails to pay when due and/or in case of a deterioration or downgrading of the CLIENT’s solvency (creditworthiness), 3D4FASHION 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, by sending a simple notification to the CLIENT. 

If the CLIENT fails to pay when due, 3D4FASHION 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 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 3D4FASHION in recovering its claim (judicial and extrajudicial). 

7.3. Price revision 

Unless otherwise specified in the Order Form, 3D4FASHION reserves the right to revise the prices set forth in the Order Form on each anniversary date of the Agreement, and/or at least once a year, by applying the formula R = Ro x S / So, wherein (i) R means the revised fee, (ii) Ro means the fee 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. LIABILITY & INSURANCE 

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. 

Each Party will make its personal affaire to take out and maintain a professional indemnity insurance for as is necessary to cover its liabilities. 

The CLIENT is and shall be solely responsible of (i) its activities, (ii) its strategies, including business and communication, (iii) its Selection, (iv) the backup of all and any of its information, documents and/or data, either such elements have been provided to 3D4FASHION on not under the performance of the Agreement, and in particular in consideration of any cyber risk, (v) the full observance and compliance of the terms and conditions that may be applicable to the Platform and/or the Viewer.  

3D4FASHION is only held by a best-effort obligation under the performance of the Agreement. The liability of 3D4FASHION may only be established in case of proof of gross negligence or gross misconduct in performance of the Services. 

3D4FASHION shall not be responsible for loss of time or inconveniences caused to production caused by or resulting from a breakdown of all or part of the Services. 3D4FASHION will not be liable for any liability due to the existence - or the possibility of existence - of malfunctions - or possible malfunctions – that may affect the Services. 3D4FASHION is not liable for any deterioration or destruction of the information, programs, files, databases etc. which may occur subsequently to the use of the Services. The CLIENT must take all appropriate security measures beforehand and set up all the procedures required for the protection of its own information, programs, files, databases etc., notably in terms of viruses, worms, Trojan horses and other kinds of cyber / computer attacks. 

3D4FASHION shall be relieved of any responsibility and/or liability for any damages occurred, directly or indirectly, in all or in part, from a breach or a failure or an inertia or a negligence of the CLIENT. 

To the maximum extent permitted by law, in no event shall 3D4FASHION – or any if its agents, affiliates, licensors or suppliers – be liable for (i) any special, punitive incidental, indirect or consequential damages or cost or procurement of substitute goods, services or technology  whatsoever (including without limitations damages for loss of revenu, lost of business profits, business interruption, loss of business information, or any other pecuniary loss) arising out or or in any way connected with the use of the Services or the performance of the Agreement, (ii) the delay or inability to use the Services or anything provided in connection with the Agreement or otherwise arising from the Agreement, (iii) any matter beyond 3D4FASHION’s reasonnable control. 

Under no circumstances, the aggregate liability of 3D4FASHION, for any reason whatsoever, wheter based in contrat, tort (including negligence, strict laibility or on the grounds of counterfeiting acts) or otherwise, will exceed 50%  of the feesactually paid by the CLIENT to 3D4FASHION, during the six (6) months preceding the applicable claim or damage and in direct relation with the Services provided. 

The Parties expressly agree that should any limitation or provision of this Section 8 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. 

9. 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 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 immediately upon written notice to the other Party, i.e. without the need for judicial determination. 

10. PROPERTY RIGHTS 

FittingBox Group holds and retains all Intellectual Property rights directly or indirectly related to the performance of the Agreement, and in particular related to the Assets, and/or any related Derivative Works, including their underlying technology and/or their architecture, structure or content, be they registered or not, whether or not organized within a database. The same goes with any technique, methodology, know how, update, tool, material and/or other Intellectual Property right created by FittingBox Group and/or its Affiliates and/or enriched and/or held in full title by FittingBox Group or any of its affiliates during the Agreement. Under no circumstances these rights might be transferred to the CLIENT and/or any Third Party because of the execution or the termination of the Agreement. The CLIENT acknowledges and irrevocably accepts that these elements are significant items of FittingBox Group’s assets; any disclose of any of these elements may significantly damage FittingBox Group.  

The CLIENT undertakes not to modify and/or the notices related to the physical and/or the intellectual property of FittingBox Group, whatsoever. Similarly, the CLIENT may not use the name or logo of 3D4FASHION, FittingBox Group and/or their Affiliates, for marketing or advertising purposes without FFittingBox Group's prior written consent which can be withheld in the sole discretion of FittingBox Group. The CLIENT is aware that it could be prosecuted under the law in case of failure or breach of this obligation, including by negligence. 

Subject to the CLIENT’s observing and performing all of its obligations under (i) the performance of this Agreement, (ii) 3D4FASHION’s instructions or directives and (iii) ancillary terms and conditions that may be applicable to the Platform and/or the Viewer, 3D4FASHION grants the CLIENT a limited, temporary, non-exclusive, non-assignable, non-transferable, revocable license to access and use the Assets, through the Viewer and for the duration of the Agreement solely. Any unauthorized use is strictly forbidden and shall be considered constituting a counterfeiting act and the CLIENT shall indemnify 3D4FASHION accordingly for any direct and indirect damage or remedies. 

11. CONFIDENTIALITY  

Each Party agrees and undertakes to keep as confidential all the  Confidential Information concerning the other Party, the Products and Services, the 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 receiveing Party agrees not to use this Confidential Information for any purpose other than those provided in the Agreement.  

The  receiving Party shall provide the same care for the protection of such confidential information as for its own confidential information. 

The  receiving Party shall not communicate, reproduce, publish or disclose such Confidential Information, in any manner whatsoever, in all or part, to any unauthorized Third Party, directly or indirectly, any Confidential Information of the disclosing Party, in whole or in part, provided during this Agreement, without the prior express written agreement of the disclosing Party.  

The receiving Party 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 receiving Party shall (i) immediately notify the disclosing Party so that the disclosing Party may apply for a protection order or take action (ii) take all necessary measures to maintain the highest possible level of protection. 

Upon termination of the Agreement and for any reason whatsoever, the receiving Party shall return all information and documents relating to the receiving Party 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 receiving Party acknowledges that  any breach of  his Section 11 shall  constitute a  major breach of the Agreement. In this case, the disclosing Party shall be entitled to immediately terminate the Agreement without any indemnity and without prejudice to any damages the disclosing Party may claim, upon written notice to the defaulting Party. 

12.GENERAL PROVISIONS 

12.1. Entire agreement 

The Agreement expresses the entire contractual obligations of the Parties with regard to its purpose; it supersedes and replaces any previous agreement, letter, offer or other document having the same purpose. No modification may be made to the Agreement without a written additional clause being signed by both Parties. Under no circumstances may the CLIENT’s purchase order or general terms and conditions be enforced on 3D4FASHION. 

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. 

12.2. Validity 

If any provision of the 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 the Agreement and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect.  The Parties hereby agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the economic legal and commercial objectives of the invalid or unenforceable provision, whereby the substitution is subject to the consent of both Parties. 

12.3. No-waiver

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 the Agreement by the other Party shall not be construed as a waiver of any succeeding breach of the same or other provisions nor shall any delay or omission on the part of either Party to exercise or avail itself of any right power or privilege that it has or may have hereunder operate as a waiver of any breach or default by the other Party. 

12.4. Independence 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 contractors 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. 

12.5. Transfer / Subcontracting 

The CLIENT 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 3D4FASHION. 3D4FASHION may, freely and without consent (i) transfer and assign any of its rights and obligations under the Agreement, including by a change of control or of change of shareholding within 3D4FASHIONt, and/or (ii) subcontract all or part of the Services.  

12.6. Communication & Commercial indexing 

For the duration of the Agreement, 3D4FASHION shall be authorized to issue press prelease or make public communication, provided however that 3D4FASHION does not misrepresent or embellish its relationship with the CLIENT; to such end, 3D4FASHION 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: 3D4FASHION’s website and/or blog and/or newsletter, social networks (i.e. LinkedIn, Meta, etc.), professional seminars and/or conferences and/or exhibitions and/or meetings, marketing, promotional, prospective and advertising activities towards 3D4FASHION’s prospective customers and/or clients and/or partners. 

12.7. Data Protection, Privacy and Security 

Each Party undertakes to comply with all the applicable data protection, privacy and security laws and regulations.  

As the case may be, the collection and processing of personal data of consumers / end users, directly or indirectly, shall be performed under the sole responsibility of the CLIENT, as a data controller.  

The CLIENT is aware and irrevocably accepts that 3D4FASHION reserves the right to collect Big Data (i.e. aggregated and anonymous data) within the performance of the Agreement. 3D4FASHION is entitled to use and exploit such Big Data, for or without consideration, notably for statistics and/or analysis purposes.   

12.8. Electronic evidence 

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

The CLIENT is aware and irrevocably accepts that 3D4FASHION’s invoices may be established electronically. The e-invoice will have the same legal value as a paper invoice and will be enforceable against the CLIENT. 

The CLIENT is aware and irrevocably accepts that notification and information provided from 3D4FASHION to the CLIENT by email or similar electronic communication medium are valid and represent evidence between the Parties.  

12.9. Non-solicitation 

Unless otherwise expressively agreed by 3D4FASHION, during the term of the Agreement and for a period of two (2) years following the expiration or termination of the Agreement, the CLIENT shall not, directly or indirectly, solicit for employment any person employed by or under contract with 3D4FASHION or its Affiliates, and even if the initial solicitation comes from such person and either he/she has already terminated his/her employment or services agreement with 3D4FASHION or not. In case of a breach of this section, the CLIENT shall pay to 3D4FASHION a lump sum equal to 2 years of the fully loaded salary of the person hired by the CLIENT, and without prejudice to any other damages or remedies that 3D4FASHION may claim. 

13. ELECTION OF DOMICILE - NOTIFICATIONS 

The Parties shall elect domicile at their respective registered 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. 

14. GOVERNING LAW / JURISDICTION 

The Agreement shall be governed by and construed in accordance with the laws of France. 

All disputes or claims arising out of or relating to the Agreement, or any operation contemplated thereby, shall be subject, in the first instance, to the jurisdiction of the international commercial chamber of the Commercial Court of Paris, and, on appeal, to the jurisdiction of the international commercial chamber of the Paris Court of Appeal. The afore-provision shall not be an obstacle to the submission of a judgement of the Commercial Court (Tribunal de Commerce) of Paris to another court for enforcement purposes. 

Any proceeding to resolve or litigate any dispute in any forum, whether in arbitration or court, will be conducted solely on an individual basis. Neither Party will seek to have any dispute heard as a class or representative or a named or unnamed member in a class, consolidated, representative or private attorney general legal action or in any other proceeding in which either party acts or proposes to act in a representative capacity. No proceeding will be combined with another without the prior written consent of all parties to all affected proceedings. The CLIENT also agrees not to participate in claims brought in a private attorney general or representative capacity, or any consolidated claims involving another person's account, if 3D4FASHION is a party to the proceeding. The CLIENT is giving up its right to participate as a class representative or class member on any class claim it may have against 3D4FASHION or FittingBox Group, including any right to class arbitration or any consolidation of individual arbitrations.