IMPORTANT: PLEASE CAREFULY READ THESE CURRENT TERMS AND CONDITIONS (THE “AGREEEMENT”) GOVERNING YOUR USE OF NFINITE’S DOCUMENTATION, PROPRIETARY SOFTWARE AND SERVICES USED TO PRODUCE PRODUCT CONTENT USING ARTIFICIAL INTELLIGENCE (THE “SCENEMAGIC AI SERVICES”) OR VIA THE CREATION OF 3D MODELS (THE “3D SERVICES”) FOR MARKETING AND PRODUCT PROMOTION PURPOSES (“COLLECTIVELY, SERVICES”). PLEASE NOTE THAT THE AGREEMENT DOES NOT COVER OTHER NFINITE SERVICES. THIS IS A LEGAL AGREEMENT BETWEEN YOU AND THE LEGAL ENTITY YOU REPRESENT (“CUSTOMER”) AND NFINITE AND ITS SUBSIDIARIES AND AFFILIATES, AS APPLICABLE (“NFINITE”). BY CLICKING THE "I ACCEPT" BUTTON, CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS REVIEWED, UNDERSTANDS, AND ACCEPTS THIS AGREEMENT. YOU WARRANT AND REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND YOUR LEGAL ENTITY AND “CUSTOMER” REFERS TO THAT ENTITY. IF CUSTOMER DOES NOT AGREE WITH ALL OF THE TERMS AND CONDITIONS IN THIS AGREEMENT, DO NOT ACCESS OR OTHERWISE USE THE NFINITE SERVICES. MAY MAKE CHANGES TO THE NFINITE SERVICES OR MODIFY THE TERMS AND CONDITIONS HEREIN AT ANY TIME. CUSTOMER’S CONTINUED USE OF THE NFINITE SERVICES AFTER MODIFICATIONS HAVE BEEN POSTED TO NFINITE’S WEBSITE AND THE EXPIRY OF 15 DAYS' NOTICE WILL SIGNIFY CUSTOMER’S ASSENT TO AND ACCEPTANCE OF THE REVISED TERMS. TO THE EXTENT ANY TERMS OF THIS AGREEMENT DIRECTLY CONFLICT WITH THE TERMS OF ANY FULLY EXECUTED WRITTEN AGREEMENT BETWEEN NFINITE AND CUSTOMER (“SUPPLEMENTAL AGREEMENT”), THE SUPPLEMENTAL AGREEMENT SHALL APPLY.

1.0 Order(s).

1.1. This Agreement includes any current or future purchase order for Services for 3D Services or SceneMagic AI Services, which may include specifications (collectively, the ‘Order’), submitted online or in written or electronic form between the parties. This Agreement also includes the Glossary as made available online by Nfinite. This Agreement shall be effective from the Effective Date until the last expired Order or until this Agreement is terminated in accordance with the t

2.0 Use of the Nfinite Services 

2.1 Subject to compliance with this Agreement, Nfinite will provide the Services in accordance with this Agreement, written guides and guidelines that describe the Services, the operating instructions, getting started guides, user manuals, and help files, in written or electronic form, made available to Customer (‘Documentation’). The Services will be provided in accordance with their own specifications as indicated in the corresponding Order and in this Agreement. For the avoidance of doubt, the SceneMagic AI Services do not include any access to a platform, nor any generation of a 3D model of the Customer's products. On the contrary, the 3D Services require the prior digitization of the Customer's products, which may include 3D modeling or other multimedia elements representing the Customer's products (‘Digital Twin’). None of Nfinite's Services consist of the generation of images directly by the Customer through the insertion of prompts.

3.0 License to Supporting Visuals and Digital Twins.
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3.1. As agreed in any Order, Nfinite will provide multimedia elements (lifestyle image, video, film, augmented or virtual reality image) representing the Customer's products in various contextual settings, such as staged with furniture, in furnished rooms, with decoration, in particular in order to show examples of product use (‘Supporting Visual(s)’). In the case of the provision of 3D Services, Nfinite will also create a Digital Twin of each product, which is a prerequisite for producing the Supporting Visuals. Subject to all terms and conditions of this Agreement, Nfinite hereby grants to Customer a limited, revocable, non-exclusive, non-transferable limited license including the right to host, copy, transmit, use, reproduce and display the Supporting Visuals and if applicable the Digital Twins as strictly limited to Customer’s lawful business purposes. Any such grant of license shall be without prejudice to Nfinite's proprietary rights, including but not limited to the ability to use the Supporting Visual and Digital Twins to enhance or promote the Services, or any of Nfinite's other services, or to resell or distribute the Supporting Visuals or Digital Twins to third parties. This Agreement does not grant the Customer any rights in the software and source code that Nfinite uses or incorporates to create the Supporting Visual or Digital Twins and/or to provide the Services (’ Nfinite Technology ’). For all intents and purposes, it is specified that the Nfinite Technology does not include the Supporting Visual, the Digital Twins or any training data. It is expressly stated that the Supporting Visual may be created either as part of the provision of 3D Services or as part of the provision of SceneMagic AI Services. The same license to the Supporting Visual is granted for both Services. In the context of the provision of SceneMagic AI Services, the Supporting Visuals correspond solely to 2-dimensional photo-realistic images. 

4.0 Creation of Supporting Visuals.

4.1. Services. As part of the Services, Nfinite will provide Supporting Visuals which the Customer may use to promote its products and services. All Supporting Visual is provided in accordance with the applicable Documentation and the Customer's Expectations. Nfinite will supply the number of Supporting Visual determined by the Customer for each product, by the method of transmission determined between the parties in the Order or by any other means of written exchange and depending on the Service chosen (3D or SceneMagic AI).

4.2. SceneMagic AI Services. The provisions of this paragraph apply solely to the SceneMagic AI Service. The Customer shall provide an image of its Product and the dimensions of that Product for the creation of the related Supporting Visual. Supporting Visual may only represent the Customer's Product from a single angle. Supporting Visuals are generated directly by Nfinite at the written request of the Customer as set out in an Order or any other means of exchange agreed between the parties. The Customer is free to provide information on its branding or inspirational elements to guide Nfinite's creation of the Supporting Visuals. Nfinite makes no binding commitment as to the timescale for the supply of the Supporting Visual, nor as to compliance with any instructions concerning the Supporting Visual not provided for in the Agreement or in the Order.

4.3. 3D Services. The stipulations of this paragraph apply solely to the 3D Service. The Customer must provide specific instructions for any creation of a new Supporting Visual. The 3D Services include access to the Nfinite platform, which enables the Customer to create Supporting Visual directly. 

5.0 Customer Data.

5.1. Customer Data refers to all data provided by the Customer to Nfinite.  Customer Data notably includes, but is not limited to, all information, products, images of the products, instructions or suggestions related to creation of the Digital Twins or Supporting Visuals.  Customer Data may include software programming codes created or provided by the Customer in Customer’s use of the Services.  However, Customer Data specifically excludes Supporting Visuals Nfinite Technology.  Customer represents and warrants that Customer has or will procure all rights necessary for its use of any Customer Data in conjunction with the Services.  Customer will have sole discretion as to which Customer Data it will utilize in connection with Customer’s use of the Nfinite Services and shall provide any and all necessary disclosures.  Customer owns all right and title and is solely responsible for any use of Customer Data used during the Term of this Agreement. Customer hereby grants to Nfinite a non-exclusive, royalty-free, worldwide license during the Term extended by a further 20 years, to access, reproduce, de-identify or to otherwise use Customer Data solely for providing, supporting or improving the Services or any other Nfinite services, including to provide other services to third-party or fulfilling other obligations to Customer under this Agreement.

5.2. Customer and Nfinite acknowledge that Customer Data should not include any third party personally identifiable information (“Personal Data”).  However, to the extent Customer provides Personal Data to the Nfinite Customer agrees that it will comply with all applicable data protection, laws, regulations, including without limitation the GDPR (EU 2016/679). 

6.0 Data & Feedback.

6.1. Customer grants to Nfinite a non-exclusive, non-transferable, worldwide, commercial, perpetual, irrevocable, royalty-free license to use data from Customer’s use of the Service to: (i) provide and maintain Services; (ii) improve or offer new Services; (iii) measure performance of Services; or (iv) for any other lawful business purpose.  To the extent that any Customer provides any suggestions, enhancement request, correction, ideas or other feedback regarding the Services (“Feedback”), Customer grants Nfinite a non-exclusive, worldwide, irrevocable, royalty-free license to reproduce, modify, create derivative works of, license, distribute and otherwise commercialize the Feedback as part of any of Services. 

7.0 Restrictions of Use for Nfinite Services.

7.1. Customer agrees not to attempt to, nor allow any third party to: (i) copy or make derivative works of the Services, expand the rights of access or use beyond the Order, or make the Services available to any third party via sublicense, rent service bureau or time sharing basis, (ii) decompile, reverse engineer, or disassemble the Services or otherwise attempt to reconstruct or discover any source code, underlying ideas or algorithms of the Services; (iii) disclose or publish, without Nfinite’s express prior written consent, performance or capacity statistics or the results of any benchmark test performed on the Services; (iv) use the Services to develop a competitive product offering promote or support any product or service that is competitive with the Services; (v) attempt to gain unauthorized access to the Services, including access to other Nfinite customer’s data; (vi)use the Services to store or transmit Customer Data in violation of the intellectual property rights of third parties or any racist, hateful, abusive, defamatory, obscene or discriminatory content ; (vii) interfere with or disrupt the integrity or performance of the Services, or unreasonably burden the infrastructure utilized by Nfinite to deliver the Services; (viii) use the Services including the transmission of Customer Data, in any manner that violates any law, rule, regulation or any other legal or regulatory requirement imposed by any regulatory or government agency or political subdivision, whether federal, state, local, or foreign; or (ix) use, reproduce, distribute, or permit others to use, reproduce, or distribute any harmful code. 

8.0 Additional Customer Obligations & Suspension.

8.1. Customer is solely responsible for any use of Digital Twins or Supporting Visuals, including but not limited to, any commercial or business use.  To the extent that Customer requires any right or license to use Digital Twins or Supporting Visuals, Customer shall strictly comply with any such rights or licenses. 

8.2. Customer is solely responsible for all activities required by or otherwise related to the development, production, delivery, updating and promotion of any technology outside of the Services, including but not limited to, the Customer’s websites, applications, or other technology used to interface with the Service (“Customer Services”). Customer is solely responsible for all Customer Services issues, including but not limited to, functionality, warranty, and technical and end user support.

8.3. Customer shall comply with all applicable laws in the performance of its obligations hereunder and shall promptly notify Nfinite if it reasonably believes that any use of the Services (i) violates law or the terms of this Agreement, or (ii) if Customer becomes aware of any actual or suspected unauthorized use of its account, usernames or passwords, or any other breach or suspected breach of security related to the Services.

8.4. Customer shall promptly fix any bugs in Customer Service or Customer Data that causes the Services to be accessed in a way that is not consistent with the Documentation or is otherwise detrimental to the performance of the Services.

8.5. Customer shall maintain and adhere to all commercially reasonable security measures to protect from unauthorized control, tampering, or any other unauthorized access, including, without limitation, compliance with applicable laws. The Customer must comply with any prerequisites indicated by Nfinite in the Documentation, the Order or in writing.

8.6. Customer shall ensure that at all times during the term of this Agreement, Customer’s authorized users use of Services shall (i) conform to specifications set forth in the applicable Documentation and (ii) comply with all the terms and conditions of this Agreement and of the Order.

8.7. Customer shall regularly back up their Customer Data on a medium separate from the Services. Nfinite may limit the storage capacities offered by the Services, 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 Customer no longer exceeds the storage space limit associated with Customer access of the Services.

8.8. If Customer becomes aware of any reason wherein Customer is unable or likely unable to meet its obligations under this Agreement, Customer will promptly notify Nfinite at legal@nfinite.app.  Nfinite reserves the right to block any Customer Data or suspend the access to the Platform or to stop the provision of the Services if the Customer violates the terms of this Agreement, violates applicable law or, due to a security risk, or uses the Services in a way that significantly and negatively impacts their ability to operate in Nfinite’s reasonable discretion is necessary to mitigate liability or damages or reasonably necessary protect the interests of either party to this Agreement.

9.0 Limited Warranties and Disclaimers.

9.1. The Services are provided to enable the Customer to create visuals of its products for the purposes of promoting, advertising, marketing and selling the latter (the ‘Purpose’). The Services must be consistent with the pursuit of this Purpose.

9.2. The preceding obligation will not apply if: (i) the Services provided are used inconsistent with this Agreement or the Documentation; (ii) if the Services or any part thereof, including the Supporting Visuals and the Digital Twins, have been modified without the prior written consent of Nfinite; or (iii) a defect in Services provided hereunder has been caused by any of Customer Data, Customer Services, or Customer’s written instructions. 

9.3. In the event Customer discovers that the Services provided by Nfinite hereunder, as applicable, are not in conformance with the obligations set forth in this Section and reports, in writing, such non-conformity to Nfinite, Nfinite will, at Nfinite’s sole discretion, (i) exercise commercially reasonable efforts to correct the non-conformity at no additional charge to Customer, or (ii) terminate the Order(s) or portion thereof covering the non-conformity and/or the Agreement and refund Customer any prepaid, unused fees covering the remainder of the then-current term dating from the Nfinite’s receipt of written notice of such non-conformance. THE REMEDY STATED IN THIS PARAGRAPH CONSTITUTES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND NFINITE’S ENTIRE LIABILITY UNDER THIS SECTION OF THIS AGREEMENT.

10.0 Intellectual Property & Trademarks.

10.1 The Services, Nfinite Technology and Documentation, embodied in or used in connection with the implementation, operation, improvement, maintenance, or hosting of the Services including all associated software (whether in source code, object code, or other form), databases, indexing, search, and retrieval methods and routines, HTML, active server pages, intranet pages, and similar materials) and all intellectual property and other rights, title, and interest therein (including copyrights, trade secrets, and all rights in patents, custom reports, compilations, algorithms, inventions, improvements, modifications, extensions, enhancements, configurations, derivative works, discoveries, processes, methods, designs and know-how (regardless of whether copyrightable or patentable) pertaining to any of the foregoing (all of which shall be deemed part of the Nfinite Proprietary Materials), whether conceived by Nfinite alone or in conjunction with others constitute Confidential Information and the valuable intellectual property, proprietary material, and trade secrets of Nfinite and are protected by applicable intellectual property laws of France and in the European Union.  Customer acknowledges and agrees that except for the rights of access expressly granted to Customer in this Agreement, Nfinite shall retain all right, title and interest in and to the foregoing, inclusive of any derivatives, modifications or improvements and nothing contained in this Agreement shall be construed as conferring upon Customer by implication, operation of law, estoppel, or otherwise, any other license or right to Nfinite Proprietary Materials

10.2. The Customer grants Nfinite the right to mention the corporate name, the commercial name, the sign, the logo and the trademarks of the Customer, as a commercial reference on any medium and on any occasion during the entire Term of this Agreement and for a period of five (5) years from the expiry of this Agreement. The Customer undertakes to send a testimonial of its experience with Nfinite twice every twelve (12) months and agrees that these testimonials may be published on the Nfinite website or any other commercial documentation. The Customer also undertakes to communicate to Nfinite, once every twelve (12) months, all the data relating to his use of the Services enabling the performance of the latter to be assessed.

11.0  Confidentiality.

11.1 Confidential Information means any data or information disclosed to one party, oral or written, wherein a reasonable person with general industry knowledge would likely understand such information is non-public, sensitive, proprietary or confidential.  Such information includes, but is not limited to, Nfinite Proprietary Materials (in whatever form or media provided), inventions, internal processes, plans, financial information, transaction volume, forecasts, projections, pricing and the terms and conditions of this Agreement. Notwithstanding the foregoing, Confidential Information shall not include information that the receiving party may reasonably demonstrate: (i) is in or has entered the public domain through no breach of this Agreement; (ii) it has been rightfully received by the receiving party from a third party and without breach of any obligation of confidentiality of such third party to the owner of the Confidential Information; (iii) it has been approved for release by written authorization of the owner of the Confidential Information; or (iv) was independently developed by a party without use of or access to the Confidential Information of the other party.

11.2. Each party acknowledges and agrees that, from time to time, it may receive Confidential Information from the other party. The party that receives Confidential Information (the Receiving Party) hereby agrees (i) to hold the other party’s (the Disclosing Party) Confidential Information in confidence and to take commercially reasonable precautions to protect such Confidential Information from unauthorized disclosure (including, without limitation, all precautions the Receiving Party employs with respect to its own confidential materials), (ii) not to make any use whatsoever at any time of such Confidential Information except in furtherance of this Agreement, (iv) not to copy or reverse engineer any such Confidential Information, and (v) that any employee, subcontractor, or agent given access to any such Confidential Information must have a legitimate need to know and shall be bound in writing to comply with confidentiality obligations at least as restrictive as the Receiving Party's confidentiality obligations in this Agreement.

11.3. Notwithstanding the above, the Receiving Party may disclose Confidential Information only to the extent legally compelled by a court or other government authority, provided, however, that the Receiving Party will, to the extent legally permissible, give prompt written notice to the Disclosing Party of such legal process upon receipt so that the Disclosing Party may seek an appropriate protective order, or pursue such other legal action, as the Disclosing Party may deem appropriate. 

11.4. Each party’s confidentiality obligations will survive for the longer of three (3) years after termination, or as applicable for each Receiving Party, one (1) year after such Receiving Party no longer holds any of Disclosing Party’s Confidentiality Information in its possession, custody or control. 

12.0 Fees & Payment.

12.1. Customer shall pay to Nfinite the amounts set forth in an Order Form, which such fees may include any applicable support fees.  Service fees are calculated on the basis of a price per Supporting Visual for Services. All fees are non-refundable and non-cancelable. Fees listed do not include any applicable sales, use, withholding, excise or VAT taxes. Customer shall be responsible for payment of all such taxes, fees, duties and charges, and any related penalties and interest, arising from the payment of such fees or the delivery or use of the Services.

12.2. In the event of a good faith dispute as to the calculation of a charge, Customer shall promptly give written notice to Nfinite stating the details of any such dispute and shall promptly pay any undisputed amount. The acceptance by Nfinite of such partial payment shall not constitute a waiver of payment in full by Nfinite of the disputed amount. Customer agrees to pay all costs and expenses of whatever nature, including reasonable attorneys’ fees, incurred by or on behalf of Nfinite in connection with the collection of any unpaid amounts due to Nfinite hereunder.

12.3. Any Order’s that renew may be subject to an increase of fee’s.  Any increase will be communicated to Customer within forty-five day(s) of renewal (email shall suffice). 

12.4. In the event of late payment of service charges, late payment penalties equal to 3 (three) times the legal interest rate in force, increased by 10 points, as well as a fixed indemnity for collection costs of €40 will be payable.

12.5. Notwithstanding anything to the contrary contained in this Agreement, failure to make timely payments of undisputed amounts shall constitute a default hereunder and shall entitle Nfinite to suspend the provision of the Services to the Customer without notice at Nfinite’s sole discretion.

13.0  Indemnification.

13.1. Customer will defend, indemnify and hold harmless Nfinite its officers, directors, employees, subsidiaries, affiliates, successors and assigns from all claims, demands, actions, proceedings, liabilities, judgments, settlements, damages, costs and expenses (including reasonable attorneys' fees) arising from, directly or indirectly: (i) facts that, if true would constitute a breach of this Agreement by Customer, (ii) Customer’s or its users access to  misuse or illegal use of the Nfinite Service or (iii) the Customer Data, including but not limited to, use of Customer Data for Digital Twins and Supporting Visuals, or Customer Service’s violation or infringement of any intellectual property rights.  

13.2. Nfinite will defend, indemnify and hold harmless Customer against any damages paid to unaffiliated third parties awarded by a final decision of justice or by a transaction within the meaning of the French Civil Code arising from any arising out of any claim that the Nfinite Technology, during the Term, infringe any intellectual property rights of a third-party (“Claim”); provided that: (i) Customer promptly notifies Nfinite in writing after Customer’s receipt of notification of a potential Claim; (ii) Nfinite shall have the right to assume sole control of the defense of such Claim and all related settlement negotiations; and (iii) Customer provides Nfinite, at Nfinite’s request and expense, with the assistance, information and authority necessary to perform Nfinite’s obligations under this Section.  Notwithstanding the foregoing, Nfinite shall have no liability for any Claim to the extent it is based on (i) Customer’s written specifications or direction, or (ii) Customer’s or any agent of Customer’s modification of the Services or of the Supporting Visuals. Customer reserves the right to retain counsel at its own expense to participate in the defense and settlement of any such Claim. If, due to a Claim, (i) the Services are held by a court of competent jurisdiction to be or are believed by Nfinite to infringe, or (ii) Customer receives a valid court order enjoining Customer from using the Services, Nfinite may at its expense, (i) replace or modify the Services to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, or (ii) obtain for Customer a license to continue using the Services or (iii) terminate the applicable Order and its indemnity obligation for further activity by requesting that Customer cease use of the offending Service and then refunding to Customer the unused fees for those Services at issue hereunder.  THE FOREGOING STATES THE ENTIRE LIABILITY OF NFINITE WITH RESPECT TO THE INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT BY THE NFINITE TECHNOLOGY, AND CUSTOMER HEREBY EXPRESSLY WAIVES ANY OTHER LIABILITIES OR OBLIGATIONS WITH RESPECT THERETO.

14.0 Limitation of Liability.

14.1. EXCEPT FOR PAYMENT OBLIGATIONS AND CLAIMS ARISING DUE TO A PARTY’S WILFULL MISCONDUCT OR GROSS NEGLIGENCE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT FOR BREACH OF CONTRACTOR ANY OTHER LEGAL THEORY FOR: (I) ANY INDIRECT NON-PREDICTABLE, NON-PERSONAL OR UNCERTAIN DAMAGES, OR (II) ANY AMOUNTS IN EXCESS, IN THE AGGREGATE, OF THE FEES PAID OR PAYABLE TO NFINITE HEREUNDER DURING THE SIX MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE THE CAUSE OF ACTION AROSE.

15.0 Term and Termination. 

15.1 Nfinite may terminate this Agreement, if the Customer breaches this Agreement and Customer is unable to cure such breach within thirty (30) days after receipt of written notice. Notwithstanding the foregoing, Nfinite may terminate this Agreement or any Order(s) for any reason in its sole and absolute discretion by giving thirty (30) days prior written notice.  If Nfinite terminates this Agreement or any Order for any reason other than Customer’s breach, Nfinite shall, upon termination, refund any prepaid, unused fees that represent the remainder of the then-current term.    

15.2 The Term of the Orders shall be expressly set out in each Order and shall constitute the Term of the Agreement. Unless otherwise specified in the Order, the Orders shall automatically renew for one (1) year on the anniversary date of their signature, unless either party terminates this Order by giving sixty (60) days' written notice prior to the end of the current contractual period.

15.3. Upon expiration or termination of this Agreement, all right to access the Services and the Documentation shall expire. Nfinite shall discontinue the provision of the Services, and Customer shall immediately pay any outstanding invoices for services rendered through the date of termination.  The Customer is solely responsible for downloading all Customer Data that the Customer has stored in the Services before termination. Customer understands and acknowledges that thirty (30) days after termination, Nfinite reserves the right to delete Customer Data without any liability and Customer shall hold Nfinite harmless from any such action. 

15.4. Any provision of this Agreement that contemplates performance or observance subsequent to any termination or expiration of this Agreement, including, without limitation, all provisions with respect to Intellectual Property, limitation of liabilities, indemnification, governing law and arbitration shall survive any termination or expiration of this Agreement and continue in full force and effect in perpetuity.

16.0 General Terms.

16.1. The Services and Nfinite Proprietary Materials are subject to the trade laws and regulations of the United States and other countries, including the Export Administration Regulations (EAR, 15 CFR Part 730 et seq.) and the sanctions programs administered by the Office of Foreign Assets Control (OFAC, 31 CFR Part 500). Customer agrees that it will not import, export, re-export, transfer or otherwise use Nfinite Proprietary Materials in violation of these laws and regulations, including by engaging in any unauthorized dealing involving (i) a U.S. embargoed country (currently Cuba, Iran, North Korea, Sudan and Syria), (ii) a party included on any restricted person list, such as the OFAC Specially Designated Nationals List, or the Commerce Department’s Denied Persons List or Entity List, or (iii) the design, development, manufacture, or production of nuclear, missile, or chemical or biological weapons. By using Nfinite Proprietary Materials, Customer represents and warrants that Customer is not located in any such country or on any such list. Customer will not engage in activity that would cause Nfinite to be violation of these laws and regulations, and will indemnify Nfinite for any fines, penalties or other liabilities incurred by Nfinite for Customer’s failure to comply with this provision.

16.2. The parties shall perform all of their duties under this Agreement as independent contractors, and nothing in this Agreement shall be construed to give either party the power to direct or control the activities of the other party, or to constitute the parties as principal and agent, employer and employee, franchiser and franchisee, partners, joint venturers, co-owners, or otherwise as participants in a joint undertaking. The parties understand and agree that neither party grants the other party the power or authority to make or give any agreement, statement, representation, warranty, or other commitment on behalf of the other party, or to enter into any contract or otherwise incur any liability or obligation, express or implied, on behalf of the other party, or to transfer, release, or waive any right, title or interest of such other party.

16.3. Neither this Agreement nor any rights hereunder may be transferred or assigned by either party without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed.  Notwithstanding the foregoing, either party may assign or transfer this Agreement or any rights or obligations hereunder without the other’s consent to (i) any related entity wherein the party owns an interest of at least twenty five percent (25%) or (ii) a third party acquirer of all, or substantially all, of the assets or business of a party, whether by sale, merger, or otherwise. Except as provided in this section, any attempts by either party to assign any of its rights or delegate any of its duties hereunder without the prior written consent of the other party shall be null and void.

16.4. Neither party hereto shall be responsible for any failure to perform its obligations under this Agreement if such failure is caused by force majeure as defined and recognized by the French Civil Code and applicable case law. Obligations hereunder, however, shall be suspended only until the cessation of any cause of such failure. In the event that such force majeure should obstruct performance of this Agreement for more than ten (10) days, the parties hereto shall consult with each other to determine whether this Agreement should be modified or terminated.

16.5. This Agreement shall be governed by and construed in accordance with French law, without regard to conflict of laws provisions and without regard to the United Nations Convention on Contracts for the International Sale of Goods, and the parties consent to the exclusive jurisdiction of the French courts based on Nfinite's registered office. 

16.6. This Agreement, and any other references, appendices, exhibits or attachments, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes any and all written or oral prior agreements and understandings between the parties concerning such subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment, or waiver is to be asserted. Additionally, terms, provisions or conditions on any purchase order, acknowledgement, or other business form or writing (aside from an Order Form) that Customer may provide to Nfinite or use in connection with the procurement of Nfinite Services will have no effect on the rights, duties or obligations of the parties hereunder, regardless of any failure of Nfinite to object to such terms, provisions or conditions. In the event of any conflict or inconsistency among the following documents, the order of preference shall be: (1) the applicable Order Form, (2) this Agreement, (3) Documentation. In the event that any provision of this Agreement shall be determined to be illegal or unenforceable, a modified provision shall be substituted which carries out as nearly as possible the original intent of the parties, and the validity, legality and enforceability of any of the remaining provisions shall not in any way be affected or impaired thereby.

16.7. The waiver by either party of a breach of any provision contained herein shall be in writing and shall in no way be construed as a waiver of any subsequent breach of such provision or the waiver of the provision itself. Failure or delay by either party in exercising any right hereunder shall not operate as a waiver of such right.

16.8. Any notice required or permitted to be given hereunder will be deemed to have been delivered and given for all purposes: (i) on the delivery date, if delivered by hand courier to the party to whom such notice is directed; (ii) two (2) Business Days after deposit with a commercial overnight carrier; (iii) five (5) Business Days when mailed by French mail; (iv) acknowledgement of receipt after sending by email (provided email shall not be sufficient for notices of an indemnifiable claim).