Nfinite General Terms and Conditions

Version 2.0

Last version dated 30 June 2023

These General Terms and Conditions of Use are concluded between NFINITE SAS, registered in the Bordeaux Trade and Companies Register under number 818 935 421, whose registered office is located at 13, rue Jean-Paul Alaux, 33100 Bordeaux, represented by Mr Alexandre de Vigan (JACAMA company), acting in his capacity as Chairman and the company or organization as identified for this purpose in the Purchase Order, hereinafter referred to as the "User".

NFINITE and the User are collectively referred to as the "Parties" or individually as a "Party".

These General Conditions are concluded by ticking the box "I have read and accept the General Conditions" (or any equivalent wording) when registering on the Solution.

Please note: before ticking the box "I have read and accept the General Terms and Conditions" (or any equivalent wording), the User must carefully read it in its entirety and guarantees that he/she has the legal capacity to legally bind the entity identified in the Account and to enter into the General Terms and Conditions.

NFINITE specializes in the publishing of software dedicated to visual merchandising based on 3D technology, including the modelling and creation of product visuals, as well as the operation of an online multi-service solution enabling its clients and their authorized end-users to create visuals for their websites and/or for their catalogues and off-line printing.

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1. DEFINITIONS

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 General 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. 
• Purchase Order(s) refers to the quote that NFINITE sends User identifying the Services that the User 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 User can use to place their Product in order to create a Scene. The Set may be either:
  

• 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. 
• User Data refers to all data provided or sent by the User in the context of the use of the Service. User Data notably includes Products, all information related to the Products or instructions for creating a Product Visual. User Data includes potential programming codes created by the User and using the Services. User Data specifically excludes Product Visuals. 
• NFINITE Data refers to all data, content, or information that NFINITE provides the User within the scope of providing Services and according to the Purchase Order. 
• Subscription Duration refers to the duration during which the User has subscribed to the Services. This duration is indicated on the Purchase Order.
• Subscription Fees refers to the price that the User pays for the Service provision. Subscription Fees are indicated at the time of the subscription to the Services in the Purchase Order. 
• 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: 

They are classified into two categories:

• 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 User to connect to the Solution and use the Services listed in the Documentation. 
• Products or “SKU”  refers to the products that the User 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 are those selected by the User  when creating their Account or in their Account settings. The Services may be provided on a trial basis or for a fee. The Services are described in the Section entitled "Description of Services" and, where applicable, in the Documentation.
  

• 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.
• Final User(s) refer to the User’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 at the time of the subscription to the Services. This User only has the right to access and use the Services that the User has subscribed to. 
• Product Visual(s) refer to the Product’s final visual following the use of Services that can be used by the User 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.

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2. CONTRACTUAL DOCUMENTS

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 these General Terms and Conditions will lead to an additional clause or supplementary Annex being finalized and duly signed by both Parties in order to make them enforceable.

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3. DURATION OF THE GENERAL TERMS AND CONDITIONS

3.1 Free trial 

In the event of a free trial, NFINITE will make the Services available free of charge on a trial basis until the earlier of (a) the end of the free trial period for which the User has registered to use the Services; (b) the date of commencement of any subscription to the Services by the User. All User Data and any configurations or customisations made to the Services during the free trial will be permanently lost, unless a paid subscription is taken out.

3.2 Duration of the General Terms and Conditions

These General Terms and Conditions are entered into for a duration of one (1) month, renewable by tacit agreement for successive same periods, except if one Party notifies the other Party by registered letter with acknowledgement of receipt fifteen (15) days prior to the current contractual term’s expiration.

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4. TERMINATION OF GENERAL TERMS AND CONDITIONS

4.1 Termination 

Each of the Parties may terminate the General Terms and Conditions as of right, subject to compliance with a notice period notified in writing at least fifteen (15) days before each contractual expiry date, sent by registered letter with acknowledgement of receipt.

4.2 Consequences of terminating of these General Terms and Conditions

These General Terms and Conditions’ termination, expiration, or end for whatever reason, it is understood that the provisions of the following Sections of these General Terms and Conditions “Intellectual Property”, “Liability”, “Compensation” “Applicable law and Competent Courts” , will survive such termination or expiration regardless of the reason therefore.

4.3 Reversibility

The User is therefore solely responsible for downloading all User Data that the User has stored in the Services before the General Terms and Conditions ends.

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5. SUSPENSION OF SERVICES

NFINITE reserves the right to limit Services or partially or fully suspend access to the Solution in the following cases:  

1. if the User has breached the obligations stipulated in the “Prohibited Uses” and “User Obligations” Sections of these Terms and Conditions.
2. if NFINITE detects or has objective elements establishing that User’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.
3. the User's use of Services threatens Services’ security, integrity, or availability. 
4. 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 User of such Services suspension in advance and give the User the opportunity to remedy its cause, it being specified that such a suspension will not entitle the User to any compensation. 

Subscription Fees will remain owed by the User throughout the period during which the Services are suspended. 

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6. USE OF SERVICES 

6.1 Purpose of Services

Services are solely provided to allow the User to create visuals of their Products for the purposes of promoting, advertising, marketing, and selling their Products (hereinafter the Purpose.) 

6.2 Services description

According to the subscription of the User, NFINITE may provide the User with the following Services: 

• Solution Services include:

The following are conditions of use for the Solution Services: 

• The Solution allows for the creation of Product Visuals in two cases:
  

• 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 User 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.

6.3 Account Usage

The User is responsible for: 

• their Final Users complying with these General Terms and Conditions and applicable laws and regulations;
• all jobs produced on their Account;
• ensuring their Account’s security and confidentiality.

6.4 Rights of Audit

The User 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 General Terms and Conditions. 

If non-compliance with the use of Services is detected from such verification, the User must immediately pay the applicable surcharges on the Subscription Fees. If the unpaid fees exceed 5% of the Subscription Fee value, the User will also pay the reasonable cost of verification.

6.5 Storage

NFINITE recommends that the User regularly back up their User 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 User respect the storage space limit associated with User Account. 

6.6 Prohibited uses

The User commits to use the Services and the Solution in compliance with these General Terms and Conditions and Purpose. The User will refrain from using the Services or Solution in an abusive manner. In particular, the User 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 Final 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 User 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 General Terms and Conditions.

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7. THE PARTIES' OBLIGATIONS 

7.1 NFINITE Obligations

Within the scope of these Terms and Conditions, NFINITE commits to: 

• provide the Services according to the terms of the General Terms and Conditions,
• carry out Professional Services, and where required, with the required diligence and professionalism 

7.2 User Obligations

The User:

a) will be responsible for and guarantees that its Final Users will comply with the General Terms and Conditions, 

b) will pay NFINITE the Subscription Fees,

c) 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;

d) will only use Services, NFINITE Data, and Product Visuals in compliance with the General Terms and Conditions and applicable law and regulations; 

e) 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; 

f) guarantees that User 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 General Terms and Conditions's execution.

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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”. 

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9. INTELLECTUAL PROPERTY 

9.1 Solution and NFINITE Data User License

NFINITE grants the User 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 User’s compliance with the General Terms and Conditions. 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 User 3D Models and User Data

The User is and will remain the owner of the User 3D Models and User Data. 

The User grants NFINITE a free, non-exclusive, worldwide license on all User 3D Models and User Data to carry out the Services for the Subscription Duration 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.

The User will manage and deal with claims, and all lawsuits filed by a third party that involve User 3D Models and User Data.

Consequently, the User will pay for:

1. all damages to which NFINITE may be condemned by a court decision having res judicata
2. all damages payable by NFINITE under a transaction signed according to the French Civil Code 
3. 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 User 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 User 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 User 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 General Terms and Conditions. Consequently, NFINITE will defend and indemnify the User from all claims or lawsuits from third parties alleging that the User's use of the Solution infringes on their Intellectual Property rights (“Claims”), except under the following cumulative conditions: 

1. The User 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. 
2. 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.
3. The User 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 User at their own expense against such Claim and pay for (i) the damages and legal fees (including the attorney fees) to which the User 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 User 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 User 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 User’s breach of the General Terms and Conditions. 

The preceding provisions limit NFINITE’s liability to the User regarding Intellectual Property right infringement. Therefore, NFINITE does not provide any guarantee other than that described in this section. 

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10. PRICE AND PAYMENT FOR SERVICES

10.1 Subscription Fees

Subscription Fees are automatically debited annually. Non-payment on the due date automatically results in suspension of the Services. The amount of the Subscription Fee is that indicated on the Solution at the time of subscription to the Services.

The User may ask to increase its subscription to the Services during the Subscription Term. Such a new subscription will result in an increase in the Subscription Fee.

Subscription Fees are quoted exclusive of tax. Payment of Subscription Fees may only be made by credit card or bank transfer. Invoices for Subscription Fees will be available in the Account.

10.2 Non-payment

In the event of delayed payment, in addition to measures stipulated according to Section “Suspension of Services”, late fees equal to (3) three times the applicable legal interest rate subject to 10 points and a €40 flat fee for collection charges will be payable.  

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11. LIABILITY AND COMPENSATION 

11.1 Liability of Parties

Each Party is liable to the other Party for damages suffered in relation to these General Terms and Conditions 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 according to the case law of French jurisdictions. 

11.3 Limitation of liability

A Party's total liability per calendar year pursuant to the General Terms and Conditions will not exceed an amount equal to 100% of the Subscription Fees paid by the User during the contract year of the event incurring the liability. 

The Parties acknowledge that this limitation of liability has been thought out in an equitable manner considering the compensation provided by NFINITE pursuant to the General Terms and Conditions, including all commitments and guarantees binding NFINITE according to the User’s own commitments. 

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12. PERSONAL DATA

In order to execute these Terms and Conditions, 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 these General Terms and Conditions 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 User (managing orders, delivery, executing Services or providing the goods, invoices, and payments, etc.)

The User is the Data Controller for the following data processing: 

• Processing regarding the Personal Data that User collects and processes to benefit the Service Final Users 
• Managing the contractual relationship with NFINITE (payment management, etc..)

The Parties agree to fulfill their respective obligations in accordance with GDPR. 

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13. FORCE MAJEURE 

Neither Party will be held liable for a breach or delay in the execution of their obligations resulting from an event of force majeure as stipulated by the French Civil Code and French legal precedent, including if such event happens to a subcontractor or third-party trading partner (hereinafter Force Majeure.) 

If an event of Force Majeure affecting the execution of part or all of the General Terms and Conditions occurs, the affected Party will inform the other Party of the event’s occurrence by registered letter with acknowledgement of receipt. The Parties’ execution of their obligations will therefore be suspended for the entire duration of said case of Force Majeure.

In this case, the Parties agree to discuss, and, if possible, use all means in their possession in order to mitigate the effects of the force majeure event.

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14. COMMERCIAL REFERENCES 

The User grants NFINITE the right to mention the User’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 User also agrees to send NFINITE all of its data pertaining to the Solution and Services once every twelve (12) months for performance assessment purposes.  

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15. GENERAL PROVISIONS 

Legal capacity. Each Party declares to have validly entered into these General Terms and Conditions and to legally have the power to do so. 

Subcontracting. Within the scope of these Terms and Conditions, the User 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 these General Terms and Conditions remain under NFINITE’s sole hierarchical and disciplinary authority under all circumstances, and NFINITE is solely responsible for the administrative and human resource management of the employees.

Invalid provision. If a provision of the General Terms and Conditions is deemed null and void according to a law or other rule of law that is in force and applicable to it, 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 these General Terms and Conditions 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 these General Terms and Conditions are non-exclusive and that, without limiting the generality of the foregoing, nothing in these General Terms and Conditions will be deemed nor interpreted as prohibiting one Party or the other from participating in business agreements similar to those described in these Terms and Conditions. 

Relationship between the Parties. The Parties are independent contractors. 

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16. APPLICABLE LAW AND COMPETENT COURTS 

The interpretation and execution of the General Terms and Conditions is subject to French law and the competent courts of NFINITE’s headquarters’ jurisdiction. It is specified for all practical purposes that the Vienna Convention on Contracts for the International Sale of Goods will not apply to these Terms and Conditions.