Terms of Service
The purpose of these General Terms and Conditions (hereinafter “Terms and Conditions”) is to define the conditions of execution of any Purchase Order concluded between Nfinite, Inc., a Delaware Corporation, (“NFINITE” or the “Service Provider”), and any natural or legal person authorized to sign the Purchase Order either for its own benefit or for the benefit of a third party it represents and/or for which it works (hereinafter “Client”). Any acceptance of a Purchase Order by the Client irrevocably entails the acceptance of these General Terms and Conditions in their entirety, unless otherwise provided for in the Special Conditions of the Purchase Order.
The terms defined below can be used in either singular or plural form and have the meaning given to them below. Other terms can be defined in different sections of these Terms and Conditions and apply to the contractual relationship between the Parties as well.
- Internal Solution Improvement refers to all new feature developments, bug or malfunction corrections, improvements to existing features, and creation of new NFINITE 3D Models and Sets provided by NFINITE for their Solution. This also include the creation, operation, exploitation and distribution including to third party of a database of Product Visuals.
- Affiliate refers to any entity that directly or indirectly controls, is controlled by, or is under common control of with the relevant entity as defined by applicable regulations.
- Purchase Order(s) refers to the quote that NFINITE sends Client identifying the Services that the Client has subscribed to according to basis of the order placed by the latter and which is signed by both of the Parties’ authorized representatives. The Purchase Order specifies the possible specific conditions negotiated by the Parties. If the Purchase Order is made for an NFINITE Professional Service, the Purchase Order must describe the exact Professional Service in question.
- Account refers to any account created by Users and enabling them to access the Solution. An Account is protected by a username and password. Depending on the case, the Account may grant the user admin rights or standard access rights.
- Set refers to any 3D scene, built according to Nfinite specifications and integrated on the Platform, that the Client can use to place their Product in order to create a Scene. The Set may be either:
- public: in which case it is the property of Nfinite and can be used by any other NFINITE client;
- tailor-made / specific: in which case it is the property of Nfinite and can only be used by Users.
- Documentation refers to all written or electronic documentation related to the Services, including documentation that’s accessible online via the Solution. Documentation can include, for example, user guides or Prerequisite guides. Documentation may change at any time (see Annex 4).
- Client Data refers to all data provided or sent by the Client in the context of the use of the Service. Client Data notably includes Products, all information related to the Products or instructions for creating a Product Visual. Client Data includes potential programming codes created by the Client and using the Services. Client Data specifically excludes Product Visuals.
- NFINITE Data refers to all data, content, or information that NFINITE provides the Client within the scope of providing Services and according to the Purchase Order.
- Subscription Duration refers to the duration during which the Client has subscribed to the Services. This duration is indicated on the relevant Purchase Order and ends upon the termination of the Agreement.
- Subscription Fees refers to the price that the Client pays for the Service provision. Subscription Fees are established in the Purchase Order.
- Business Hours refers to the hours from 9:30 am to 6:00 pm, Monday through Friday, except for public holidays in Dover, Delaware.
- Confidential Information includes but is not limited to (i) all information communicated by one Party to another that should be reasonably considered confidential, notwithstanding the fact that they were identified as such upon disclosure, (ii) all information identified as confidential before or after the effective date that the other Party has access to in keeping with the purpose of the Purchase Order, and (iii) the Agreement, as well as the information disclosed as part of its execution that will be communicated or obtained by the other Party in any manner (written, verbal, graphic, digital, or otherwise) or on any mediums as part of this Agreement.
- 3D Model(s) refers to an object’s mathematical representation (or point cloud) based on the coordinates of its three-dimensional surface. 3D Models are used to create Product Visuals.
There are three types of Models:
- Basic 3D Model: defined by a geometry, a texture, a color and an accessory;
- 3D Model Variation: geometric variation (for example: open or closed furniture, or a table of varying sizes), texture variation (for example: the same sofa with a velvet or fabric texture) or color variation of a basic 3D Model.
- 3D Model accessorizing: creation of a version with accessories from a basic 3D Model - for example
- basic 3D Model is a table;
- accessorized 3D Model is this same table with plates and cutlery placed on the table.
- They are classified into two categories:
- Client 3D Model(s) refer to all 3D Models that the Client created and provided to NFINITE, and
- NFINITE 3D Model(s) refer to all 3D Models that NFINITE created, provided, or made accessible to the Client.
- Malware refers to all harmful computer code such as viruses, logic bombs, Trojan horses, or any other code or instruction infecting or impacting all programs, software, data, files, databases, computers, or other materials or elements and damaging, violating, compromising the integrity or confidentiality, partially or fully incapacitating, hijacking, or enabling partial or full diversion of an information system from its intended use.
- Prerequisite refers to the potential specifications required for a Client to connect to the Solution and use the Services listed in the Documentation.
- Products or “SKU” refers to the products that the Client wants to commercialize and has chosen to use the Services for in order to visually present them to their own clients.
- Services refers to both the Solution Services and Professional Services. Services ordered by the Client are identified in the Purchase Order. The Services are described in Annex 1 and potentially in the Documentation.
- Professional Service(s) refers to the specific services that can be ordered by the Client and provided by NFINITE. Professional Services include NFINITE’s 3D Model creation, creating specific Sets, as well as training and/or consulting services. Professional Services are inevitably described in the relevant Purchase Order.
- Solution Services refers to the Solution’s setup, access, and use within the limits established in the Purchase Order.
- Solution or Platform refers to the web platform that provides companies with an end-to-end merchandising photography creation solution. Named nfinite™, this Solution provides integrated product digitization and virtual setting creation Services in photo studios, self-service product photograph creation Services, and Services hosted for online publication.
- User(s) refer to the Client’s staff or agents, with the exception of all other third parties, that are granted access to the Solution in order to benefit from Services within the limits and exceptions that may be planned in the involved Purchase Order(s.) This User only has the right to access and use the Services that the Client has subscribed to as established in the corresponding Purchase Order.
- Product Visual(s) refer to the Product’s final visual following the use of Services that can be used by the Client to promote and sell their Product. The Product Visual is a visual representation of the Product in the Set which can be viewed in 3D. The Product Visual is different from a 3D Model, and the current definition does not include the 3D Model that could be subjacent to it.
In case of divergence between one or more provisions in this Agreement, the documents shall prevail in the following decreasing order of priority:
- These General Terms and Conditions ;
- The Exhibits of these General Terms and Conditions.
- Exhibit 1: Description of Services
- Exhibit 2: SLA
- Exhibit 3: Production Process
- Exhibit 4: Technical specifications and prerequisites
- All Purchase Orders
- The exhibits for all Purchase Orders.
In case of contradiction between one or more provisions in any of the documents above, the higher-ranking document will prevail. In case of divergence between one or more provisions listed in the same rank (or between successive versions of one of these documents,) the most recent document will prevail.
Together, the contractual documents listed above form the “Agreement”. The Agreement contains the entirety of the Parties’ obligations.
It supersedes all prior oral or written agreements, mails, financial proposals, and commitments agreed upon by the Parties. All modifications, supplements, or waivers within the framework of this Agreement will lead to an additional clause or supplementary exhibit being finalized and duly signed by both Parties in order to make them enforceable.
3. DURATION OF THE AGREEMENT
The duration of the Agreement is defined in Purchase Order.
Purchase Orders will automatically renew for one (1) year following the date on which they are signed, except in the case of one Party notifying the other Party by registered letter with acknowledgement of receipt three months prior to the expiration of the current contractual term.
4. TERMINATION OF AGREEMENT
4.1 Case of termination
4.1.1 Agreement Termination due to material breach
In case a Party commits a material breach of their obligations in the Agreement which cannot be remedied within 30 days of the non-defaulting Party sending the defaulting Party a registered letter with acknowledgement of receipt notifying them of the exact breach, said non-defaulting Party will be able to rightfully terminate this Agreement without further legal formality and without prejudice to any damages that they could claim.
Termination of the Agreement for material breach takes effect at the end of the month in which such termination is notified.
Without the list being exhaustive, Client's failure to fulfill their obligations stipulated in the following Sections: “Client Obligations” and “Prohibited uses” of these Terms and Conditions as well as a Subscription Fee payment that is delayed by more than 90 calendar days constitute a material breach by the Client, which the Client acknowledges and accepts.
4.1.2 Agreement Termination for convenience
At the end of the stipulated contractual term or the absence of renewal, each Party can terminate each Purchase Order subject to advance notice sent by registered letter with acknowledgement of receipt at least 90 days prior to this absence.
4.1.3 Termination in case of bankruptcy
Either Party may terminate any Purchase Order, without incurring any liability to the other Party, by written notice in the event of (i) the commencement of receivership or liquidation proceedings or any judicial decision having equivalent effect and, in the cases provided for by law, after silence or refusal to opt for the continuation of the Purchase Order by the administrator or liquidator; or (ii) cessation of activities regardless of the cause.
4.2 Consequences of terminating of these Terms and Conditions and Purchase Orders
Terminating a Purchase Order does not result in the partial or complete termination of these Terms and Conditions or other Purchase Orders.
Notwithstanding the Terms and Conditions’ termination, expiration, or end for whatever reason, it is understood that the provisions of the following Sections of these Terms and Conditions :“Reversibility” , “Intellectual Property”, “Liability”, “Compensation” “Confidentiality”, “Applicable law and Competent Courts” , will survive such termination or expiration regardless of the reason therefore.
Upon termination of these Terms and Conditions or a Purchase Order for whatever reason, NFINITE will deploy commercially reasonable efforts to send the Client a copy of Client Data upon request by the Client. The Client must request this transfer within 30 days of the Terms and Conditions or relevant Purchase Order termination.
Upon the expiration of this 30-day period, NFINITE reserves the right to delete Client Data without being held liable for it. The Client is therefore solely responsible for downloading all Client Data that the Client has stored in the Services before the Terms and Conditions or relevant Purchase Order ends.
5. SUSPENSION OF SERVICES
NFINITE reserves the right to limit Services or partially or fully suspend access to the Solution in the following cases:
- if the Client has breached the obligations stipulated in the “Prohibited Uses” and “Client Obligations” Sections of these Terms and Conditions.
- if NFINITE detects or has objective elements establishing that Client’s use of Services experienced an unusual and substantial peak or increase and that this traffic or use has a fraudulent nature or greatly and negatively impacts Services’ ability to function.
- the Client's use of Services threatens Services’ security, integrity, or availability.
- In case of an order or request by a governmental authority, legal authority, or all other competent administrative authorities.
Depending on the circumstances, NFINITE will makes its best efforts to notify the Client of such Services suspension in advance and give the Client the opportunity to remedy its cause, it being specified that such a suspension will not entitle the Client to any compensation.
Subscription Fees will remain owed by the Client throughout the period during which the Services are suspended.
6. USE OF SERVICES
6.1 Purpose of Services
Services are solely provided to allow the Client to create visuals of their Products for the purposes of promoting, advertising, marketing, and selling their Products (hereinafter the Purpose.)
6.2 Account Usage
The Client is responsible for:
- their Users complying with this Agreement and applicable laws and regulations;
- all jobs produced on their Account;
- ensuring their Account’s security and confidentiality.
6.3 Rights of Audit
The Client has the obligation upon request and without restriction to provide NFINITE with all documents and information requested by NFINITE within 30 days of their request so that NFINITE can verify that all Services’ installations and usage comply with the Agreement.
If non-compliance with the use of Services is detected from such verification, the Client must immediately pay the applicable surcharges on the Subscription Fees. If the unpaid fees exceed 5% of the Subscription Fee value, the Client will also pay the reasonable cost of verification.
NFINITE recommends that the Client regularly back up their Client Data on a second medium separate from the Solution. NFINITE may limit the storage capacities offered by the Solution, according to what can be reasonably expected from the provision of the Services, by technical measures such as imposing size limits on files, storage space, or processing capacity. NFINITE may suspend Services until the Client respect the storage space limit associated with Client Account.
6.5 Prohibited uses
The Client commits to use the Services and the Solution in compliance with this Agreement and Purpose. The Client will refrain from using the Services or Solution in an abusive manner. In particular, the Client commits to not:
a) grant a license, sublicense, sell, sign over, resell, rent, loan, lease, transfer, assign, distribute, or share the Services, particularly on a timeshare basis or in any other manner, commercially exploit Services, or provide them to third parties other than Users,
b) modify, adapt, or hack the Services or attempt to obtain unauthorized access to the Services, systems, or networks involved,
c) use the Services in violation of applicable law and regulations, including but not limited to violations of the applicable personal data law,
d) use the Services to store or send files, documents, data, text, audio recordings, videos, images, or all other content in violation of any applicable law and regulations, especially intellectual property law,
e) use the Services in any way whatsoever that interferes with or perturbs the integrity or performance of the Services and its components,
f) attempt to decode, decompile, reverse engineer, or uncover the source code of any software that forms the Services in any other way,
g) use the Services to intentionally post, forward, download, link, send, or store any illegal, racist, hateful, abusive, defamatory, obscene, or discriminatory content or any data violating applicable law and regulations,
h) use the Services to post, forward, download, link, send, or store any Malware or put malware on the Services,
i) use or launch any automated systems that access a Service (i.e a bot) to send more request messages to a Service server than a human being can reasonably produce in a given time period by using a conventional internet browser,
j) use the Services in any way whatsoever to create a competing service that would infringe on NFINITE’s rights;
k) publish any advertisements for any product or service in the Solution or Services, without prior written approval from NFINITE;
l) integrate Client Data into the Solution when it does not have the rights to do so, particularly with regards to Intellectual Property rights;
m) use NFINITE Data or Product Visuals in contradiction with the Agreement.
7. THE PARTIES' OBLIGATIONS
7.1 NFINITE Obligations
Within the scope of these General Terms and Conditions, NFINITE commits to:
- provide the Services according to the terms of the Agreement,
- carry out Professional Services, and where required, with the required diligence and professionalism.
NFINITE may provide Professional Services, such as implementation, development, design, testing, project management and consulting. NFINITE will provide Professional Services to the Client as agreed in the corresponding Purchase Order. Each Purchase Order will specify the terms applicable to the Professional Services ordered by Client, including their scope, milestones, fees, acceptance criteria and duration. Any modification of an Purchase Order must be the subject of a prior written and signed request for modification of the project.
7.2 Client Obligations
a) will be responsible for and guarantees that its Users will comply with the Agreement,
b) comply with the Production Process indicated in Annex 3 and the technical specifications and prerequisites indicated in Annex 4;
c) will pay NFINITE the Subscription Fees according to the terms of the Agreement
d) will immediately notify NFINITE in writing of all unauthorized access or use of the Services that they may be aware of, especially all unauthorized use of their Account;
e) will only use Services, NFINITE Data, and Product Visuals in conformity with the Agreement and applicable law and regulations;
f) will comply with all possible conditions and prerequisites communicated by NFINITE in advance or established in the Documentation to access and use the Services correctly;
g) guarantees that Client Data does not infringe on third-party rights, particularly Intellectual Property rights.
7.3 Collaboration of the Parties
The Parties undertake to work together closely in order for the Services to run as intended. For this purpose, the Parties agree to notify each other of any events that they may deem likely to impact the Services’ implementation as soon as they are aware of such event and, if possible, in a sufficiently documented manner, except in cases of confidentiality obligations toward a third party. The Parties also agree to provide each other with help and assistance in order to quickly mitigate all difficulties or incidents that may occur during the Agreement's execution.
8. LEVELS OF SERVICES
NFINITE will endeavor to provide the Solution 24 hours a day, seven days a week except in cases of (i) unavailability resulting from corrective or ongoing maintenance, (ii) Force Majeure event (iii) Service suspensions specifically listed in Section “Suspension of Services”. NFINITE’s commitments to the levels of service are described in Annex 2 SLA of these Terms and Conditions.
9. INTELLECTUAL PROPERTY
9.1 Solution and NFINITE Data User License
NFINITE retains all right, title, and interest to Nfinite Data, the Solution, and the Services.
NFINITE grants the Client a limited license to access and use the Solution and NFINITE Data in keeping with their Purpose for the Subscription Duration and subject to the Client’s compliance with the Agreement. This license is non-transferrable and is granted on a non-exclusive basis worldwide for the Subscription Duration.
NFINITE expressly reserves the exclusive right to intervene on the Solution (which includes maintenance and modification rights) and NFINITE Data in order to allow their use in accordance with their intended purpose.
9.2 Supplementary licenses
9.2.1 Client 3D Models and Client Data
The Client is and will remain the owner of the Client 3D Models and Client Data.
The Client grants NFINITE a free, non-exclusive, worldwide license on all Client 3D Models and Client Data to carry out the Services for the duration of the relevant Purchase Order and for Internal Solution Improvement for the duration of the copyright protection. This license includes a right to access, use, exploitation, distribution, temporary or permanent reproduction, and modification.
If the Client Data is code in connection with the Solution, Customer will, at NFINITE’s cost and request, cooperate with and assist NFINITE, in perfecting, maintaining, protecting, and enforcing NFINITE’s rights in such code and execute and deliver to NFINITE any documents deemed necessary or appropriate by NFINITE in its discretion to perfect, maintain, protect, or enforce NFINITE’s rights in such code.
The Client will manage and deal with claims, and all lawsuits filed by a third party that involve Client 3D Models and Client Data.
Consequently, the Client will pay for:
- all damages to which NFINITE may be condemned by a court decision having res judicata
- all damages payable by NFINITE under a transaction signed
- and reasonable legal defense fees incurred by NFINITE in the cases above (including attorney fees.)
9.2.2 NFINITE 3D Models
NFINITE is and will remain the owner of NFINITE 3D Models.
NFINITE grants the Client a worldwide non-exclusive, non-transferrable license for the access and use of the 3D Models NFINITE for the sole purpose of creating the Product Visuals for the Duration of the Subscription.
9.3 Licenses for the Product Visuals
NFINITE grants the Client a worldwide non-exclusive license for the duration of the copyright protection to host, copy, forward, use, reproduce, and display the Product Visuals for the purposes of promoting, advertising, and sell the Products.
However, this license does not grant any right to the 3D Model(s) below or any rights related to the Product Visuals. Consequently, if the Client can use the Product Visual in the conditions described below, they are strictly forbidden from modifying or adapting the 3D Models, subject to the provisions of the Section “Supplementary Licenses” below.
9.4 Guarantee of peaceful enjoyment
NFNITE guarantees that they possess the rights allowing them to grant a license for the Solution as stipulated in the Agreement. Consequently, NFINITE will defend and indemnify the Client from all claims or lawsuits from third parties alleging that the Client's use of the Solution infringes on their Intellectual Property rights (Claims), except under the following cumulative conditions:
- The Client must notify NFINITE in writing of this Claim and the existence of such lawsuit as soon as possible by registered letter with acknowledgement of receipt as well as sending NFINITE all information allowing them to defend their interests.
- Only NFINITE will have the exclusive authority and control to select the defense attorneys, conduct the civil and/or criminal defense, and settle the Claim amicably.
- The Client will fully cooperate with NFINITE within this framework and will not make any acknowledgement of any responsibility or liability by NFINITE for the allegations.
If these conditions are met, NFINITE will defend the Client at their own expense against such Claim and pay for (i) the damages and legal fees (including the attorney fees) to which the Client may be definitively condemned pursuant to a court ruling having res judiciata over the proceedings and, as a last resort, based on the demonstration of a counterfeit exclusively that is imputable to NFINITE or (ii) all damages payable by the Client under a transaction finalized in the aforementioned framework and provided that NFINITE is a signatory thereof or has given its written consent for the awarded claim amount and the terms of the transaction.
If a lawsuit as described above is initiated or seems on the verge of being initiated, NFINITE can modify or replace all or part of the Solution at their discretion.
NFINITE does not assume any responsibility, liability or obligation pursuant to this “Guarantee of peaceful enjoyment” section if the claim is partially or fully related to:
- the Client Data or instructions thereof,
- and/or the Solution or its Services’ modification by anyone other than NFINITE,
- and/or the association, exploitation, or use of the Solution or Services with other materials or services where that Solution or Service wouldn’t be a counterfeit in and of itself.
- and/or the Client’s breach of the Agreement.
The preceding provisions limit NFINITE’s liability to the Client regarding Intellectual Property right infringement. Therefore, NFINITE does not provide any guarantee other than that described in this section.
10. PRICE AND PAYMENT FOR SERVICES
10.1 Subscription Fees
Subscription Fees are payable and due in full within 30 days, at the end of the month in which NFINITE bills the client.
Subscription Fees are indicated in the relevant Purchase Order and are calculated based on the following:
- The costs of Solution Services: based on the number of products and settings that can be used.
- The costs of Professional Services:
- for modelling services: depending on the number of 3D Models and their features
- for Solution setup and startup services: depending on the size of the Client.
Throughout the Subscription Duration, the Client can ask to upgrade their subscription to the Solution Services or subscribe to supplementary Professional Services. Such new subscriptions will result in the issue of a new Purchase Order.
For every time that these Terms and Conditions are extended, Subscription Fees may be subject to an increase of no more than 10% compared to the current rate prior to the extension.
10.2 Purchase Orders
The Client’s purchase of Services will be systematically carried out using one or more Purchase Orders. NFINITE's invoices will refer to the Purchase Order and will not exceed the amount billed on it except when extra fees are charged for additional requests.
Unless explicitly noted otherwise, all amounts payable to NFINITE for Purchase Orders do not include taxes. The Client is responsible for paying all taxes for Services.
10.3 Billing and payment
NFINITE will bill the Client for Subscription Fees on the dates and at the address indicated in the corresponding Purchase Order. Except when otherwise noted in the Purchase Order, Subscription Fees are billed annually.
NFINITE will electronically submit invoices to the Client. The invoices will contain NFINITE’s name and address and will be written out in the currency specified in the Purchase Order.
In the event of delayed payment, in addition to measures stipulated according to Section “Suspension of Services”, late payment penalties will bear interest at the rate of one and one half percent (1.5%) per month, or the maximum legal rate if less, from the due date until paid.
11. LIABILITY AND COMPENSATION
11.1 Liability of Parties
Each Party is liable to the other Party for damages suffered in relation to this Agreement that have the cumulative characteristics of being direct, personal, certain, and foreseeable.
11.2 Exclusion of liability
In no case will the Parties be held liable for consequential loss.
11.3 Limitation of liability.
A Party's total liability per calendar year pursuant to the Agreement will not exceed an amount equal to 100% of the total expenses paid by the Client for the relevant Purchase Order during the contract year of the event incurring the liability.
NFNITE and Client each acknowledge that the limitations and exclusions contained in this Section and elsewhere in this Agreement represent the Parties’ agreement based upon the level of risk to each Party associated with their respective obligations under the Agreement and commensurate with the commercial relationship under this Agreement.
12. PERSONAL DATA
In order to execute this Agreement and solely to the extent any Personal Data is processed by NFINITE and such Personal Data is subject to the General Data Protection Regulation (GDPR), the Parties acknowledge that both will be led to collect and handle Personal Data according to EU Regulation 2016/679 relating to protecting physical persons (GDPR.) For the purposes of this section, the capitalized words not defined in the definition section of this Agreement will have the meaning given to them by the GDPR.
NFINITE is the Data Controller for the processing of Personal Data that it carries out as part of the provision of the Services, including:
- Ensuring the Services’ physical and logical security and particularly the Solution’s
- Improving the Service’s performance (audience measurements, etc..)
- User registration on the Solution
- Ticketing related to the Solution’s maintenance
- Conducting audits according to the “Right to Audit” Section
- Managing the contractual relationship with the Client (managing orders, delivery, executing Services or providing the goods, invoices, and payments, etc.)
The Client is the Data Controller for the following data processing:
- Processing regarding the Personal Data that the Client collects and processes to benefit the Service Users
- Managing the contractual relationship with NFINITE (payment management, etc..)
The Parties agree to fulfill their respective obligations in accordance with GDPR.
Regarding all Confidential Information belonging to or received by a Party (or by one of their affiliates) (the Disclosing Party), the other Party (the Receiving Party ) must:
- maintain the confidentiality of all Confidential Information that it has access to by using the same degree of precautions applied to to the protection of their own confidential information, and in any event no less than a reasonable degree of care to safeguard and prevent third-party disclosure of Confidential Information in any case
- only disclose this Confidential Information to their own personnel and subcontractors who need to know it in order to fulfill the Receiving Party's obligations pursuant to the Agreement, and on condition that the personnel are informed of the confidentiality of the Confidential Information. Personnel are subject to a confidentiality obligation to the Receiving Party, and the Receiving Party remains responsible for all actions or omissions committed by this personnel as if they were their own actions or omissions
- not disclose this Confidential Information to anyone, except when the Disclosing Party has given their prior written consent or according to all other provisions in this clause, and
- not use or make copies of the Confidential Information that, in the context of and as long as, is necessary for the purposes of executing the Agreement.
This clause does not apply to Confidential Information:
- that is or may become generally available to the public in a manner other than by breach of these Terms and Conditions
- that the Receiving Party can demonstrate through written records or others that they were legally in possession of the information before disclosure and that the information was not previously obtained from the Disclosing Party or a third party subject to confidentiality obligations toward the Disclosing Party
- obtained by a third party that is not subject to confidentiality obligations toward the Disclosing Party
- that, in accordance with applicable law, must be disclosed to a court, administrative authority, or another third party, provided that the Receiving Party, subject to applicable legal limitations, informs the Disclosing Party of this in writing as soon as possible before the disclosure.
The Receiving Party must quickly notify the Disclosing Party (without limiting a Party’s rights or remedies pursuant to the Agreement or applicable law) of all unauthorized possession or use of the Disclosing Party's Confidential Information by a third party of which they are aware.
The Parties' obligations pursuant to this section will remain in force notwithstanding the termination of part or all of the Agreement for whatever reason.
The Parties agree to respect these nondisclosure obligations for the entire duration of the Agreement and five (5) years following the expiration or termination date of this Agreement, provided that nothing herein is intended to limit or abridge the protection of trade secrets under applicable trade secrets law, and the protection of trade secrets of the Disclosing Party shall be maintained by the Receiving Party as such until they fall into the public domain.
14. FORCE MAJEURE
Any delay in the performance of any duties or obligations of either Party (except the payment of fees owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, pandemic or epidemic, or any other event beyond the control of such Party, provided that such Party uses reasonable efforts, under the circumstances, to notify the other Party of the cause of such delay and to resume performance as soon as possible.
Neither Party will assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other Party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either party may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without any consent of the other Party. The terms of this Agreement will be binding upon the Parties and their respective successors and permitted assigns.
16. COMMERCIAL REFERENCES
The Client grants NFINITE the right to mention the Client’s legal name, business name, emblems, logos, and brands as a commercial reference on all mediums at all times during the entire Subscription Duration and for a duration of five (5) years following the termination of these Terms and Conditions.
The Client agrees to send NFINITE a report of their experience with NFINITE twice in a twelve-month (12) period and acknowledges that these reports may be published on NFINITE's website or any other commercial documentation.
The Client also agrees to send NFINITE all of its data pertaining to the Solution and Services once every twelve (12) months for performance assessment purposes.
17. AGREEMENT ON PROOF
The Parties expressly agree that, except in case of obvious error made by NFINITE, the digital data saved on its information systems and Services and stored in reasonable security conditions will be considered to be demonstrating the Client’s use of all instructions, orders, payment, use, or level of consumption of a Service or all other exchanges (emails, logging into Services, etc.) between the Parties if they are provided in the context of litigation proceedings. These digital records are admissible in the same conditions and with the same probative force as all documents that may be prepared, received, or kept in writing and will be admissible between the Parties until proven otherwise.
18. GENERAL PROVISIONS
Legal capacity. Each Party declares to have validly entered into these Terms and Conditions and to legally have the power to do so.
Subcontracting. Within the scope of this Agreement, the Client acknowledges and accepts that NFINITE may contract Service Providers or subcontractors to carry out the Services, including Professional Services. NFINITE is responsible for Service Providers or subcontractors executing these Services.
Personnel. NFINITE is solely responsible for the selection of its team members. NFINITE personnel involved in the execution of this Agreement remain under NFINITE’s sole hierarchical and disciplinary authority under all circumstances, and NFINITE is solely respons for the administrative and human resource management of the employees.
Non-Solicitation. Each Party waives their right to engage or work directly or by proxy with all contributors, including all employees, Service Providers, or subcontractors of the other Party that have directly or indirectly participated in the Agreement’s execution even if the employee makes the initial solicitation. This waiver is valid for the entire duration of the Agreement, plus a twelve months duration after the end of the Agreement. If one of the Parties does not comply with this commitment, they agree to compensate the other Party by immediately paying them a lump sum equal to the collaborator's gross annual pay, or the gross annual price paid for the for the Service Provider/subcontractor’s services..
Invalid provision. If a provision of the Agreement is deemed null and void according to a law or other rule of law that is in force and applicable to the Agreement, it will be deemed null and void without affecting the validity of the other provisions. The Parties will negotiate in good faith to replace an invalid provision with a valid clause reflecting their initial intent.
Notifications. All notifications, questions, requests, releases, and other required or authorized communication pursuant to this Agreement must expressed in writing and are considered to be duly given (i) immediately when they are signed for on delivery, or (ii) three days after being sent by certified letter with acknowledgement of receipt.
Non-exclusivity. Each Party acknowledges and agrees that the rights granted to the other Party in this Agreement are non-exclusive and that, without limiting the generality of the foregoing, nothing in this Agreement will be deemed nor interpreted as prohibiting one Party or the other from participating in business agreements similar to those described in this Agreement.
Relationship between the Parties. The Parties are independent contractors.
19. APPLICABLE LAW AND COMPETENT COURTS
This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of Delaware, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. The Parties hereby expressly consent to the exclusive personal jurisdiction and venue in the state and federal courts of Delaware for any lawsuit, claim or dispute arising from or related to this Agreement.
Exhibit 1 - DESCRIPTION OF SERVICES
According to the provisions stipulated in the relevant Purchase Orders, NFINITE may provide the Client with the following Services:
- Solution Services include:
- Installing the Solution, which is limited to creating a Client Account for the Client in conformity with the Purchase Order;
- Access to the Solution called nfinite™ which, notably allows to:
- Create Product Visual for the Products
- Download Product Visuals
- Integrate Visuals on third-party websites.
- Professional Services for creating 3D Models of Products, customized Sets, training, consulting, account management, artistic direction, technology implementation, and analysis.
The following are conditions of use for the Solution Services:
- The Solution allows for the creation of Product Visuals in two cases:
- The Client can directly create Product Visuals from Client 3D Models, Products, and their own Sets: this option is only possible if these elements meet the prerequisites defined by NFINITE in its Documentation;
- Client may ask NFINITE as part of their Professional Services to create specific 3D Model(s) and Sets for them.
- Product Visuals are provided in a format established in the Documentation.
- Creating a 3D Model of the Product is an indispensable prerequisite for creating a Product Visual.
All elements of NFINITE’S Solution and Professional Services are defined in this contract as Services and can be modified from time to time at NFINITE’s the sole discretion provided that such modifications do not materially reduce the Solution’s functionality.
The Client acknowledges that the Services are in continuous development and evolution to adapt to the retail industry’s technology and needs. Therefore, the Services’ functional scope is not permanent but informative on the condition that no modifications materially reduce the Services’ functionality.
Exhibit 2 – SLA
Definition of incident types
As part of the Agreement, the term Incident refers to any of the Solution or Services’ malfunctions or anomalies regarding their functionality or availability. Incidents are classified according to two levels of severity, which are described below:
NFINITE is the only Party capable of determining an Incident’s level of severity.
Notification of Incidents
In case of an Incident, the Client commits to notifying NFINITE of its occurrence by using the ticketing tool provided to the Client by NFINITE as soon as the Incident is detected.
Incident Response and Resolution
Upon being notified of the Incident by the Client, NFINITE will confirm its receipt and open an Incident ticket with an assigned unique identification number that will be sent to the Client. For technical timestamping reasons, commitments to Incident responses are only valid for Incidents that NFINITE has been notified of and confirmed with a unique Incident ticket number. NFINITE will make commercially reasonable efforts to respond to their incident within the following timeframes for Incidents that the Client has notified NFINITE of:
The following are excluded from the calculation of timeframes:
- Client’s unavailability or lack of response regarding requests whose resolution require their participation.
- Client's failure to comply with the procedures (e.g. incomplete notifications, failure to comply with the notification procedure.)
The following are excluded from the calculation of timeframes:
- Timeframes defined in this contract as the Client’s infrastructure non-conformities
- Timeframes attributable to errors or negligence made by the Client, their staff, or their Users