Subscription Term”). Unless otherwise stated in an Order Form, (i) the subscriptions automatically renew for periods equal to the initial Subscription Term, unless the Client notifies AutoRetouch of its intention not to renew for the following year, in writing and thirty (30) calendar days before the end of the then-current Subscription Term in accordance with the termination procedure provided in article 15.3; and (ii) the price of the renewed Subscription Plan shall be the price in effect at the time of renewal, provided that it has been publicly communicated.
Article 5. Client Essential Obligations - Responsibilities
5.1 Upon AutoRetouch’s request, the Client shall provide AutoRetouch with the necessary brand information and guidelines so that AutoRetouch can create the relevant Workflows for the Client.
5.2 The Client shall ensure that it has the necessary rights, licenses, and permissions needed to provide and process the Input Images through the AutoRetouch Services and grant AutoRetouch the license rights defined in article 8.3.
5.3 The Client irrevocably undertakes to pay the total amount of the Commitment in accordance with article 5.
5.4 The Client shall use the AutoRetouch Services in accordance with the Agreement (in particular, article 8) and the applicable statutory provisions, laws and regulations and shall ensure that the End Users use the AutoRetouch Services in accordance with the Agreement and the applicable statutory provisions, laws and regulations.
5.5 The Client is responsible for using the AutoRetouch Services in accordance with its business strategy and requirements, pursuant to article 7.4.
5.6 As part of its duty to cooperate (article 23.4), the Client shall immediately notify AutoRetouch of (i) any obviously illegal Output Images generated by the AutoRetouch Services, (ii) any bug or error that may affect the AutoRetouch Services and ensure the availability of Client resources for troubleshooting, (iii) a risk or suspicion of risk for the compliance of data protection or data security which occurs within the scope of the AutoRetouch Services and (iv) a risk or a suspicion of a risk for the service provided by AutoRetouch.
5.7 The Client shall ensure that all passwords and any other login identifiers for the AutoRetouch Services are kept strictly confidential and not shared with unauthorized persons. The Client must immediately inform AutoRetouch of any security breach or unauthorized use of its Accounts.
5.8 The Client shall be responsible for the storage and backing up of its data, including but not limited to, Input Images and Output Images. The Client must perform regular backups of its data, including but not limited to, Input Images and Output Images. 5.9
The Client is responsible for assuring the suitability of the AutoRetouch Services for its business and use cases, based on the information provided by AutoRetouch.
5.10 The Client is responsible for
creating the necessary environment (hardware, software, internet connection in adequate bandwidth and latency) for the use of the AutoRetouch Services.
5.11
The Client is responsible for its compliance with the rules governing its business sector and commercial activity, notably by adding any legal disclaimer/notice to the Output Images published, whenever necessary.
5.12 The Client is responsible for generating the Output Images, their exploitation and publishing. In particular, the Client must evaluate the Output Images for accuracy and appropriateness for its use case, including using human review as appropriate before exploiting the Output Images. As between the Client and AutoRetouch, Client shall be fully responsible for the Output Images and the consequences of submitting, posting, or otherwise making it available publicly.
Article 6. Fees and Payment:
6.1 Non-Recurring Fees. Non-Recurring Fees include, but are not limited to, the setup fees, as defined in the Order Form. The Non-Recurring Fees shall be invoiced to the Client at the outset, upon signature of the Agreement.
6.2 Recurring Fees.
The Subscription Plans are made available to the Client in consideration of the payment of subscription fees as calculated in the Order Form. Additional service fees may include but are not limited to Classification fees should AutoRetouch be in charge of Classification in accordance with article 7.2 below. These Recurring-Fees shall be invoiced in accordance with article 6.3 below.
6.3 Invoicing Method. The Client shall either be invoiced (i) upfront for the total amount of the Commitment, upon signature (“
Upfront Invoicing”) or, (ii) monthly based on the Client’s actual usage, and once at the end of the Subscription Term to reflect the difference between the Client’s actual usage and the total amount of the Commitment, should the actual usage be lower (“
Monthly Invoicing”).
6.4 Commitment.
The Recurring Fees defined in a given Order Form constitute the Client’s total commitment (“
Commitment”). Regardless of the Client’s actual consumption of the AutoRetouch Services and the Credits, the Client is liable to the payment of the Commitment in full. If the Client unilaterally terminates the Agreement on grounds other than those provided under article 15.2, the Client remains liable to the payment of the amount provided in the Order Form in full.
6.5 Credit Consumption - No Refunds
6.5.1 The Client may use the totality of its Credits throughout the Subscription Term. Any outstanding Credits at the end of the Subscription Term will be canceled and non-refundable.
6.5.2 If the Client consumes the entirety of its Credits before the end of the Subscription Term but still wants to use the AutoRetouch Services, the Client will have to renew its Subscription Plan for another year.
6.5.3 All the amounts paid and payable to AutoRetouch under the Agreement are non-refundable.
6.6 Payment Terms.
Any invoice issued under the Agreement shall be paid within thirty (30) days from the date of the invoice. Any delay in the payment of the invoice shall give rise to the application of an interest rate calculated on the basis of the rate applied on the due date by the European Central Bank plus ten (10) percentage points. This interest will be applicable automatically and without the need for a prior formal notice. In case of non-payment and without prejudice to any action for damages, AutoRetouch reserves the right, without any liability, to suspend the access to the AutoRetouch Services or to terminate the Agreement, if the Client fails to pay the invoice thirty (30) calendar days after the receipt of an unsuccessful notice to pay. In the event the Client fails to pay any invoice after multiple attempts from AutoRetouch to collect payment from the Client, without prejudice to the default interests and any claim or recourse AutoRetouch may have against the Client, AutoRetouch shall have the discretionary choice to (i) terminate the Agreement in accordance with article 15.3 or (ii) suspend the AutoRetouch Services - the AutoRetouch Services shall be reactivated as soon as the full payment of the outstanding invoices are made in full.
Should AutoRetouch decide to suspend the AutoRetouch Services pursuant to the above, the Client acknowledges that the duration of the Agreement shall not be extended by the amount of time the AutoRetouch Services were suspended and that any amounts due under the Agreement remain payable in full, without any deduction prorated to the amount of time the Services were suspended. AutoRetouch will not be responsible for any loss, damage, costs, expenses or other claims of the Client, any End User or any third party resulting from the suspension of access to the AutoRetouch Services.
6.7 Taxes. All amounts due under this Agreement are payable in full, without deduction for taxes or duties of any kind. In the event the Client is required by law to make any deduction or withholding from any sum payable under this Agreement, the sum in respect of which the deduction or withholding is required to be made shall be increased to the extent necessary to ensure that AutoRetouch receives and retains a net sum equal to the amount it would have received in the event no such deduction or withholding had been required.
Article 7. Performance of the Services:
7.1 Workflow Creation.
Based on the Client’s guidelines and instructions provided in accordance with article 5.1 hereinabove, AutoRetouch shall create the Client Workflows.
The Client’s subscription includes two (2) change requests per Subscription Term. Any additional request shall be charged in accordance with the then-current pricing.
7.2 Classification.
By default, the Input Images need to be classified and assigned to the relevant Workflows by the Client. However, should the Client require AutoRetouch to provide Classification Services, they shall be provided as an additional service and charged in accordance with the then-current pricing.
7.3 Output Images Delivery.
AutoRetouch shall use Commercially Reasonable Efforts to deliver the Output Images within the turnaround times defined below.
7.3.1 Default delivery turnaround times shall apply under the following conditions: (i) Classification of Input Images is done by the Client, and (ii) Input Images and Output Images are uploaded and delivered without AutoRetouch’s intervention, via the user interface at the Client’s disposal or the API.
Under said conditions, default delivery turnaround times shall be:
Starter Pack: up to 10.000 Input Images, Output Images shall be delivered within (1) hour from upload.
Pro Pack: up to 2000 Input Images: Approved Output Images shall be delivered within five (5) hours from upload, Rejected Output Images shall be delivered within twelve (12) hours from upload.
Enterprise Pack: up to 500 Input Images: Approved Output Images shall be delivered within five (5) hours from upload, Rejected Output Images shall be delivered within twelve (12) hours from upload.
Beyond the Input Image limits set out herein, the Output Images delivery turnaround times defined above shall not apply. For specific requests, the Client shall contact AutoRetouch.
7.3.2 Custom delivery turnaround times shall apply to all Subscription Plans under the following conditions:
if Classification Services are provided by AutoRetouch five (5) hours shall be added to the default delivery turnaround times defined in article 7.3.1,
if the Input Images are uploaded on, and Output Images delivered through, an FTP Server, twelve (12) hours shall be added to the default delivery turnaround times defined in article 7.3.1,
if the Input Images are uploaded and Output Images delivered through a Customer Relationship Management System or a Digital Asset Management System twenty-four (24) hours shall be added to the default delivery turnaround times defined in article 7.3.1.
You are required to access and use our Services responsibly, in a professional manner and always in accordance with all applicable laws and regulations. You must not misuse our Services in any way. For instance, you must not:upload or share any Content that violates any third-party rights (e.g., patent, copyright, trademark, trade dress, trade secret, right of privacy, or any other proprietary rights);upload or share any Content that is unlawful, harmful, threatening, abusive, tortious, defamatory, libelous, vulgar, lewd, pornographic, profane, invasive of another’s privacy, or hateful;upload or share any Content that contains viruses, malicious code, malware, or any parts or components designed to harm or limit the functionality of the Services;attempt to disable, impair, delay or destroy the Services;access or use our Services for any illegal or abusive purposes.7.2 You acknowledge and agree that you are solely responsible for any further usage of the processed images that you receive after accessing and using the Services.
7.4. Revisions (Enterprise Pack). The Enterprise Pack grants the Client one (1) revision per Output Image, free of charge, should the Output Image not satisfy the quality standard mutually validated by the Parties at the outset of the Agreement. The Client must reject the non-compliant Output Image within three (3) working days of delivery. Should the Client not reject the Output Image within the specified time period, the Output Image will be deemed accepted and may no longer be re-edited. AutoRetouch shall re-edit the Output Images only to the extent they do not comply with the applicable guidelines. AutoRetouch shall use Commercially Reasonable Efforts to swiftly re-edit the Output Images based on the volume of re-edits and the nature of the editing tasks requested. Under no circumstances shall the Client be relieved of any payment obligation associated with the AutoRetouch Services and the Output Images and/or be entitled to a refund of any Credits.
7.4 The AutoRetouch Services are performed at the Client’s sole risk and expense. In particular, the Client is responsible for the Input Images it submits to the AutoRetouch Services and the Output Images it generates through the AutoRetouch Services.
As a result:
any Input Image (i.e. one image) submitted shall be processed by the AutoRetouch and charged to the Client, regardless of whether the image is submitted by mistake and/or in multiple copies or has already been processed by the AutoRetouch Services. AutoRetouch does not operate with external business logics and therefore will not flag multiple uploads of the same Input Image:
any defective Input Image submitted or an Input Image submitted in a format which cannot be processed properly by the AutoRetouch Services shall be charged to the Client.
The Client further agrees not to submit any Input Images and generate Output Images that:
may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, or to any animal;
may create a risk of any other loss or damage to any person or property;
seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise;
may constitute or contribute to a crime or tort;
contains any information or content that AutoRetouch deems to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, obscene, or otherwise objectionable;
contains any information or content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another party’s trade secrets);
contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships;
contains any information or content that you know is not correct and current; or
to the extent applicable, violates any school or other applicable policy, including those related to cheating or ethics.
7.5 Media Storage.
The Input Images and the Output Images will be available to the Client via the AutoRetouch Services for three (3) months from upload and delivery respectively. AutoRetouch has no obligation to store or keep a backup of the Input Images and the Output Images beyond three (3) months.
8. Ownership and Intellectual Property:
8.1 Ownership and Intellectual Property Rights in the AutoRetouch Services
AutoRetouch retains all rights, title, and interest in and to the AutoRetouch Services.
The AutoRetouch Services, their Updates and all associated items, including the algorithms, technologies and artificial intelligence used by AutoRetouch, are original works of authorship protected by copyright and/or are protected as trade secrets.
AutoRetouch is the exclusive owner of any intellectual property rights and trade secrets related to the AutoRetouch Services, their Updates, all associated elements, algorithms, technologies and artificial intelligence used in the AutoRetouch Services, their features and any update or modification thereof.
Further, the Client acknowledges and agrees that AutoRetouch may collect data relating to the Client’s and its End Users’ usage of the AutoRetouch Services, including but not limited to their interaction with the AutoRetouch Services, email addresses, services analytics, and other information as indicated in the AutoRetouch Privacy Policy (“
Usage Data”) and collect, analyze, and use data derived from Output Images that has been aggregated and/or anonymized such that it does not identify the Client or any identifiable individual person (“
Derivative Data” and, collectively with Usage Data, “
Company Data”). All Company Data will be owned solely and exclusively by AutoRetouch and, for purposes of clarity, the Client hereby agrees that AutoRetouch may use the Company Data in perpetuity for any purpose permitted by applicable law.
8.2 Rights Granted by AutoRetouch and Usage Restrictions
8.2.1 Rights Granted.
If any software, content or other materials owned or controlled by AutoRetouch is distributed or made available to the Client as part of its use of the AutoRetouch Services, AutoRetouch hereby grants the Client, a personal, non-assignable, non-sublicensable, non-transferrable, revocable, and non-exclusive right and license to access, use, and to permit its End Users to access and use, such software, content and materials provided as part of the AutoRetouch Services, in each case for the sole purpose of enabling the Client to use the AutoRetouch Services as permitted by the Agreement in accordance with the Agreement and for the Client’s business purposes.
From time to time AutoRetouch may make documentation for the Services available (“
Documentation”) via a method of its choosing. During the Subscription Term, AutoRetouch grants to Client a non-sublicensable, non-transferable, non-exclusive, limited license for Client and its End Users to use the Documentation to support Client’s and its End Users’ use of the AutoRetouch Services.
8.2.2 Acceptable Use Policy
The Client shall not:
use the AutoRetouch Services in a way that violates these General Terms and/or applicable laws and regulations;
use the AutoRetouch Services in a way that infringes, misappropriates or otherwise violates AutoRetouch’s right or that of any third parties;
send us any personal information of children under the age of 18 or the applicable age of digital consent or allow minors to use the AutoRetouch Services without consent from their parent or guardian;
remove or alter any copyright, trademark, confidentiality or other proprietary notices, designations, or marks accessible through the AutoRetouch Services;
access (or attempt to access) any non-public areas of the AutoRetouch Services
interfere with any access or use restrictions, or prevent (or attempt to prevent) another user from accessing or using the AutoRetouch Services, or disrupt AutoRetouch Services
use any robot, spider, or other automated means to access or scan the Website, Platform and/or the Services, frame or mirror any part of the AutoRetouch Services, or create a competitive business to the AutoRetouch Services
use any data mining or data gathering or extraction methods, or otherwise collect information about the AutoRetouch Services, and/or its visitors and/or users
collect or store personal information about any person or entity
send viruses, worms, malware, ransomware, junk email, spam, chain letters, phishing emails, unsolicited messages, promotions or advertisements of any kind and for any purpose
attempt to probe, scan, compromise or test the vulnerability of the AutoRetouch Services, system or network or breach any security or authentication
reverse engineer or decompile any (part) of the AutoRetouch Services, specifically in view of creating a similar service
broadcast, distribute, resell, sublicence, rent, lease, offer for free or otherwise commercialize any the AutoRetouch Services, offering, product and/or feature
use the AutoRetouch Services for any illegal or unauthorized purpose
Access, upload or distribute offensive threatening or harmful content
use the Output Images to develop any artificial intelligence models that compete with AutoRetouch products and services
make any interfacing or integration with other services or software
adapt or modify the AutoRetouch Services.
To ensure that the behavior of some does not disadvantage the majority of our clients, the Client undertakes to use the AutoRetouch Services reasonably and not to overload AutoRetouch’s servers.
8.2.3
All rights and licenses granted herein are subject to the Client’s and End Users’ full compliance with all of the terms and conditions of the Agreement.
The Client expressly acknowledges that the Agreement does not grant the Client, its Affiliates and End Users any of AutoRetouch’s intellectual property rights or any trade secret relating to the AutoRetouch Services.
The Client refrains from infringing any of AutoRetouch’s intellectual property and trade secrets covered in this Agreement, in any way whatsoever.
Any rights not expressly granted under the Agreement are reserved by AutoRetouch
Articles 8.1 and 8.2 apply directly to the End Users of the AutoRetouch Services.
Article 8.3 Ownership and Intellectual Property Rights in the Input Images and the Output Images
8.3.1 AutoRetouch claims no ownership rights over the Input Images and Output Images. As between AutoRetouch on the one hand and the Client and any End User on the other hand, the Input Images, the Output Images and all associated intellectual property rights are the property of the Client.
8.3.2 The Client hereby grants AutoRetouch, for the duration of legal protection of the intellectual property rights it holds in the Input Images and the Output Images in all the relevant jurisdictions, the irrevocable, worldwide and royalty-free right to use, host, store, copy, reproduce, adapt, modify and make derivative works of the Input Images and the Output Images, and the likeness contained in the Input Image and Output Images in part or in full, and in any form, media, or technology, (i) for use in connection with the provision of the AutoRetouch Services as described in the Agreement and Documentation, (ii) for the purpose of its external communication (such as marketing on its websites and other Internet/social media platforms, or publishing of its research on its own media or third party media, printed or online) and (iii) the improvement, training and development of its products and services, including for machine learning and research and development purposes.
Article 9. Publicity Rights:
The Client grants AutoRetouch the right to use the trade name and logo of its company, as well as a general description of its relationship with AutoRetouch, for commercial reference purposes on its websites, in press releases, and any other communication and marketing documents that it may share from time to time, on any medium and media. This right is granted free of charge, worldwide, for the entire duration of the Agreement and for two (2) years after the end of the Agreement.
Article 10. Reserved Rights
The Parties reserve all rights not expressly granted in this Agreement.
Article 11. Availability, Maintenance and Updates
11.1 Availability SLA. AutoRetouch will use Commercially Reasonable Efforts (i.e the same degree of priority and diligence with which AutoRetouch meets the support needs of its other similar clients) to ensure a 98% availability of the AutoRetouch Services throughout the calendar month.
The AutoRetouch Services shall be deemed “available” when they are accessible and usable.
Therefore, only business critical failures shall be considered against the availability SLA. Business critical failures are errors that (i) prevent access to the AutoRetouch Services, (ii) diables major functions of the AutoRetouch Services from being performed, or (iii) materially impacts the operations of the Client’s business.
Minor errors that (i) do not significantly affect the functionality of the AutoRetouch Services, (ii) disable only certain non essential functions or (iii) do not materially impact the operations of the Client’s business, shall not be considered against the availability SLA.
Times in which the AutoRetouch Services are not available due to technical problems beyond the control of AutoRetouch (i.e. force majeure) are excluded.
11.2 Maintenance Services.
Whenever possible, AutoRetouch shall inform the Client of the necessary maintenance services and their duration with at least seventy-two (72) hours notice (“
Scheduled Downtime”). Scheduled Downtime shall not count against the availability SLA.
11.3 Updates.
AutoRetouch may, from time to time in its sole discretion, develop and provide updates to the AutoRetouch Services, which may include upgrades, bug fixes, patches and other error corrections and/or new features that AutoRetouch deems beneficial to the Client and/or reasonably necessary for the security and functioning of the Services (together “
Updates”).
The Client shall be informed of any Update that may interrupt the AutoRetouch Services. In any case, the necessary downtime for Updates shall not count against the availability SLA (“
Update Downtime”).
11.4
The Client hereby acknowledges and agrees that the default and custom delivery turnaround times defined in article 8.3 shall not apply during the contractual downtimes defined herein:
Force majeure event,
0-2% downtime,
Scheduled Downtime,
Update Downtime.
Article 12. Feedback:
During the course of this Agreement, AutoRetouch will requests the Client and its End Users’ input regarding the Services, including, without limitation, comments or suggestions in relation to the possible creation of new features/functionalities, modification, correction, improvement or enhancement of the Services and all associated offerings, or input as to whether the Client believes AutoRetouch’s development direction is consistent with their commercial business and needs, the technology and marketplace industries in general, and the like (collectively “
Feedback”).
If the Client and/or and End User submits Feedback, the Client and/or End User grants AutoRetouch a non-exclusive, worldwide, royalty-free, irrevocable and transferable license to use, commercialize, import, reproduce, incorporate, publicly display, distribute, modify, or otherwise fully exploit the Feedback internally and externally, without any obligation or restriction based on intellectual property rights or otherwise.
Article 13: Disclaimers
By accepting this Agreement and using the AutoRetouch Services, the Client understands and acknowledges that the AutoRetouch Services and all related components and information are provided on an “as is” basis without any warranties of any kind.
The Client’s access to, downloading from and use of the AutoRetouch Services is at its sole risk. To the maximum extent permitted by applicable law, AutoRetouch does not make any warranty of any kind, whether express, implied, statutory or otherwise (including, without limitation, warranties of merchantability, fitness for a particular use, and noninfringement).
AutoRetouch does not warrant that the operation of the AutoRetouch Services will be uninterrupted, timely, secure, or error free.
Article 14: Representation and Warranties
14.1. Each Party represents and warrants the (i) it is duly organized and validly existing under the laws of its jurisdiction of incorporation or formation ; (ii) It has the capacity and right to enter into this Agreement, to perform its obligations hereunder, and to carry out the transactions contemplated herein; and (iii) the signatory of the Agreement is duly authorized to sign the Agreement.
14.2 The Client represents and warrants that:
14.2.1 it has received the necessary information in relation to the AutoRetouch Services (including but not limited to a product and service description) in order to ensure the suitability of the AutoRetouch Services to its business requirements and needs.
14.2.2 it will use the AutoRetouch Services and the Output Images in accordance with their purpose, the Agreement and any applicable statutory provisions, laws and/or regulations and refrain from using the AutoRetouch Services and the Output Images in a way that would infringe AutoRetouch’s rights or that of third parties.
14.2.3 it has all necessary rights, licenses, and permissions (including without limitation any necessary consents and authorizations from individual persons identified and licenses from third-parties whose content is included in Input Images) needed to provide the Input Images to AutoRetouch Services and generate the Output Images, so that they do not, and will not, violate third-party rights of any kind, including without limitation any rights of privacy; particularly, the Client warrants that the Input Images will not contain material which is subject to copyright or other proprietary right, unless it has the necessary permission or is otherwise legally entitled to use the Input, in particular to create the Output Images from such Input Images, and grant AutoRetouch the license described in article 8.3.
14.2.4
it is responsible for the conduct of its End Users and their compliance with this Agreement
Article 15. TERMINATION
15.1 Termination for Convenience (No).
A Subscription Plan and this Agreement cannot be terminated for convenience.
15.2 Termination for Cause.
Either Party may terminate the agreement upon notice to the other party if the other party materially breaches the Agreement and such breach is not remedied within fifteen (15) calendar days following written notice.The Client is responsible for its End Users, including for any breaches of the Agreement caused by its End Users. AutoRetouch may terminate the Agreement immediately on notice to Client in the conditions mentioned above if AutoRetouch reasonably believes that the AutoRetouch Services are being used by Client or its End Users in violation of applicable law.
15.3 Termination Procedure. Termination and non-renewal shall be by express written request by contacting AutoRetouch’s legal department at
legal@meero.com.
For non-renewal notices, the termination request will be considered on the day the Client contacts the legal team and termination shall be effective at the end of the then-current Subscription Term.
15.4 Consequences of Termination
15.4.1 The Accounts will be closed on the effective date of termination. The Client shall be responsible for retrieving all data and Output Images before the closure of the Accounts.
15.4.2 Termination or expiration will not affect any rights or obligations, including the payment of amounts due, which have accrued under this Agreement up to the date of termination or expiry.
As a matter of consequence, should AutoRetouch be compelled to terminate the Agreement on the basis of the Client’s breach of the Agreement, the Commitment shall remain due and payable in full to AutoRetouch.
Upon termination or expiration of this Agreement, the provisions that are intended by their nature to survive termination or expiry will survive and continue in full force and effect in accordance with their terms, including confidentiality obligations, limitations of liability, and disclaimers
Article 16. Force Majeure:
Neither Party shall have any liability for any failure or delay in performing its obligations under this Agreement resulting from a force majeure event and from any event beyond the reasonable control of that Party including, without limitation fire, flood, typhoon, earthquake, insurrection, war, terrorism, power failure, civil unrest, explosion, embargo, pandemic, national strike.
Article 17: AUTORETOUCH Responsibilities
AutoRetouch shall not be responsible towards the Client for:
17.1 any difficulties linked to the Internet network, and more generally, any technical disruption likely to occur on AutoRetouch Services and whose fault would not be attributable to AutoRetouch;
17.2 any difficulties or disruption likely to occur on the the AutoRetouch Services which are attributable to the Client and/the End Users use of theAutoRetouch Services;
17.3 the interruption of the AutoRetouch Services in accordance with with Agreement;
17.4
the
Output Images hosted by the AutoRetouch Services and the use made of such Output Images by the Client and/or End Users. As between the Client and AutoRetouch, Client shall be fully responsible for the Output Images and the consequences of submitting, posting, or otherwise making it available publicly.
Article 18. Indemnification:
18.1 Indemnification.
The Client agrees to defend, indemnify and hold AutoRetouch, affiliates, licensors, and our and their respective employees, contractors, agents, officers and directors, harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorney fees) incurred by AutoRetouch, arising out of (i) the Client’s and any End User’s use of and access to the AutoRetouch Services, including any Input Image or Output Images or other content transmitted or received from Client or any End User; (ii) the violation of the Agreement, including without limitation any breach of Client’s representations and warranties above; (iii) the Client’s or any End User’s violation of any third-party right, including without limitation any right of privacy or intellectual property rights; (iv) the Client's or any End User’s violation of any applicable law, rule or regulation; (v) the Input Image or any content that is submitted via the Client’s or any End User’s account, including without limitation misleading, false, or inaccurate information; (vi) the Client’s or any End User’s gross negligence, fraud, or willful misconduct; or (vii) any other party’s access and use of the AutoRetouch Services with the Client’s or any End User’s credentials or other appropriate security code.
In general and subject to Article 15, each Party shall indemnify, hold harmless, and, at the request of the other Party, defend the other Party, its Affiliates, subcontractors, service providers, agents, and employees against any claim or action (including attorney's fees) suffered or incurred as a result of or in connection with any material breach of the Agreement.
18.2 Indemnification Procedure.
A party seeking indemnity will provide the indemnifying party with prompt written notice upon becoming aware of any claim, reasonable cooperation in the defense of or investigation of the claim, and allow the indemnifying party sole control of defense and settlement of the claim, provided that the party seeking indemnity is entitled to participate in its own defense at its sole expense. The indemnifying party cannot enter into any settlement or compromise of any claim without prior written consent of the other party, which will not be unreasonably withheld, except that the indemnifying party may without consent enter into any settlement of a claim that resolves the claim without liability to the other party, impairment to any of the other party’s rights, or requiring the other party to make any admission of liability.
Article 19. Exclusions and Limitation of Liability
19.1 General Exclusion of Liability for Indirect Damages.
To the maximum extent permitted by the applicable law, in no event will either Party or its Affiliates or suppliers be liable in relation to this Agreement for special, consequential, incidental, or other indirect damages, including, but not limited to, loss of data, loss of profits, anticipated savings, business opportunity, goodwill or reputation, loss of revenue, or costs of cover, however caused and under any theory of liability (including contract, tort, negligence or otherwise), even if it has been advised of the possibility of such damages.
Each Party hereby releases the other Party (and such other Party's Affiliate and their respective officers, directors, employees, and agents) from any such claim.
19.2 Limitation of Liability to Direct Damages.
Each of the Parties shall only be liable to the other for the direct and foreseeable damage arising out of or relating to its performance or failure to perform under this Agreement, whether based on an action or claim in contract, tort or otherwise.
19.3 Exclusion of Liability for Simple Negligence.
In any case, damages resulting from a Party’s simple negligence shall be excluded to the extent that the breaching Party does not violate a cardinal obligation. Should such a cardinal obligation be violated by simple negligence, the liability of the breaching Party shall be limited to the typically foreseeable damage.
19.4 Exclusion of Strict Liability for Initial Defects.
The strict liability of the lessor for breaches of warranty upon commencement of the lease (verschuldenunsabhängige Haftung für anfängliche Mietmängel) in accordance with Section 536a (1) Alt. 1 of the German Civil Code shall be excluded.
19.5 Limitation of Compensation for Damages.
In no event shall the aggregate liability of each Party and its Affiliates arising out of or related to this Agreement exceed the total amount of fees payable by the Client in the twelve (12) months preceding the last event giving rise to the liability
19.6 No Limitations for Specific Claims
. No provision of this article 19 shall exclude or limit the liability of either Party to the other Party for (i) intentional, willful misconduct, including gross negligence (grobe Fahrlässigkeit), (ii) bodily injury, death, or damage to tangible real property or tangible personal property, (iii) fraud or fraudulent misrepresentation, (iv) the violation by a Party of the other’s proprietary rights or, (v) liability pursuant to the Product Liability Act (Produkthaftungsgesetz).
19.7 Time Limitation.
All contractual and non-contractual claims for damages or vain expenditures against AutoRetouch shall be time-barred after a period of one (1) year. The period of limitation shall commence in accordance with Section 199 (1) German Civil Code. The period of limitation shall, at the latest, be deemed completed five (5) years after the claim arose. This article 19.5 shall not apply in the case of willful misconduct, gross negligence or in view of personal damages under the Product Liability Act.
Article 20. Confidentiality:
The Agreement and any information relating to the negotiation, discussions and/or talks as well as any information, documents or data in particular commercial, technical, contractual and/or financial, communicated or disclosed, communicated or disclosed concerning AutoRetouch, the AutoRetouch Services and any nonpublic product, service, or technology developed by AutoRetouch, are confidential and constitute a trade secret (the “
Confidential Information”).
During the entire duration of the Agreement and for a period of one (1) year after the expiration or termination of the Agreement, the Client agrees to (i) not disclose said Confidential Information to any third party unless prior written approval is obtained from AutoRetouch, and (ii) take necessary measures to prevent the disclosure or unauthorized use of Confidential Information.
Article 21. Data Privacy
For the subscription, access and the use of the AutoRetouch Services, AutoRetouch may collect and process personal data provided to it. The processing of this personal data by AutoRetouch will be carried out in accordance with the Data Protection Addendum attached hereto as Appendix 1 and the AutoRetouch Privacy Policy.
The Client represents and warrants that it is responsible towards AutoRetouch for obtaining consents from its End Users for the collection, use, and processing of their personal data by AutoRetouch for the purpose of executing the Agreement.
The Client undertakes, and shall ensure that its End Users undertake, not to submit any personal data that includes a social security number, passport number, driver’s license number, or similar identifier, credit card or debit card number, or any other information which may be subject to specific data privacy and security laws or any other data which is considered to be sensitive or which could give rise to notification obligations under data breach notification laws.
By entering into this Agreement, the Client acknowledges that the personal information it, or its End Users, provide will be collected, used and disclosed as set forth in the Data Protection Addendum attached hereto as Appendix 1 and the AutoRetouch Privacy Policy.
AutoRetouch cannot guarantee that unauthorized third parties will never be able to defeat AutoRetouch security measures or use personal information for improper purposes. The Client acknowledges that it, and its End Users, provide personal information at their own risk.
Article 22: Ethics and Anti Bribery
22.1 Each Party commits to operate in an environment that respects, supports, and promotes corporate social responsibility (including with its own suppliers). Each Party therefore declares that in the course of its activity, it operates in an environment complying with standards of the International Labor Organization, with the OECD guidelines for multinational enterprises, and with the United Nations Global Compact.
22.2 Compliance with Anti-Corruption Laws. Each Party also declares that it operates in an environment free of all form of corruption, including extortion, bribery, influence peddling and that it complies with Part I of the ICC Rules on Combating Corruption 2011 and with the applicable anti-corruption laws and regulations, including those having an extraterritorial reach, such as Sapin II (France), the Foreign Corrupt Practices Act (United States of America), the UK Bribery Act (United Kingdom). Without limiting the foregoing, each Party represents and warrants that itself and/or its Affiliates shall not, directly or indirectly, offer, promise, solicit, authorize, pay, or accept any gift, benefit, undue pecuniary, or other advantage of any kind (or imply that they will) to or from any person in any way connected with its agreement with the other Party (and that it has taken reasonable measures to prevent its subcontractors, agents or any other third parties, from doing so) and which is intended to induce or encourage, or which has the effect of inducing or encouraging, to breach any duties or obligations of that person.
22.3 Sanctioned Countries. In the course of its activity and when performing this Agreement, each Party also declares that it complies with the restrictive measures regarding sanctioned countries as provided by the laws and regulations of the European Union and the United States (including the US Department of the Treasury’s Office of Foreign Assets Control (OFAC)). As such, Each Party commits not to enter into contact with persons and/or entities subject to international sanctions and not to, directly or indirectly, trade with sanctioned countries (including by exporting or importing goods, AutoRetouch Services or other resources) to the extent such trade activity fall within the scope of the sanctions.
Article 23: Miscellaneous
23.1 Notices. All notices hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, or (ii) two (2) business days after sending by email. Emails to AutoRetouch shall be directed to Legal Department (legal@meero.com), and e-mails to the Client shall be addressed to the administrative contact designated in the Order Form. Notices relating to a Party’s indemnity obligations must be sent by registered mail and email.
23.2 No assignment.
The Parties shall refrain, without the prior written consent of the other Party from assigning, contributing or transferring, in any form whatsoever, all or part of the Agreement, in particular by way of assignment or lease management of its business, merger, demerger or partial contribution of assets.
23.3 Succession.
The Agreement binds in its entirety the heirs and assigns of the Parties.
23.4 Cooperation and Good Faith Obligations. The Parties have an essential duty to cooperate at all times to ensure the mutually beneficial outcome of the Agreement. The Parties undertake to behave at all times towards each other as loyal co-contractors and to perform their obligations and exercise their rights in good faith
23.5 Severability. If one or more of the provisions of the Agreement appear to be invalid or inapplicable to the Parties, they shall, as part of their obligation of good faith, replace them with others that correspond to the spirit and purpose of the Agreement, without affecting its economy. In the event of judicial annulment of one or more provisions of the Agreement for any reason whatsoever, the court shall substitute a clause of equivalent effect within the scope of its power of interpretation. In any event, the other provisions shall retain their full force and scope.
23.6 Non-Waiver. The failure of either Party to enforce any provision of the Agreement shall not be construed as a waiver of its rights under such provision. Waiver by either Party of any provision of the Agreement shall be effective only when Notified. Waiver of a particular provision in a particular situation shall not constitute a general waiver of such provision, nor a waiver of other provisions in any other situation.
23.7 Changes. No variation of this Agreement shall be effective unless it is in writing, states which provision it is varying and is signed by the Parties’ authorized representatives
23.8 Contractual Structure. The General Terms and the corresponding Order Form constitute the contractual relationship between the Parties. If a provision of the Order Form conflicts with a provision of these General General Terms, the provision of the Order Form shall prevail over the General General Terms to the extent of such conflict.
23.9 Electronic Signature.
Each Party agrees that this Agreement and any other related documents to be delivered in connection herewith may be electronically signed signed, and that, any electronic signatures appearing on this Agreement or such other documents shall have the same force and effect as handwritten signatures for the purposes of validity, enforceability and admissibility. Electronic signatures include, but are not limited to, the use of specialized electronic signature platforms.
23.10 Applicable Law & Competent Jurisdiction. The Agreement is governed exclusively by the substantive laws (excluding its conflict of laws rules and the UN Convention on Contracts for the International Sale of Goods) of Germany. Any dispute relating to the interpretation, the performance and/or the termination of the agreement as well as any document or act which constitutes its accessory, will fall under the exclusive jurisdiction of Stuttgart - Germany, both for proceedings on the merits or summary proceedings and including in case of multiple defendants.
23.11 Language.
Regardless of any language into which this Agreement may be translated, the official, controlling and governing version of this Agreement shall be exclusively the English language version.
Appendix 1: AutoRetouch Data Processing Addendum (DPA)
As of May 15
th, 2024
Article 1. DEFINITIONS
Whenever used in this DPA, words beginning with a capital letter have, unless the context otherwise requires, the meanings defined below, without distinction as to whether they are used in the singular, plural, infinitive or conjugated form:
Applicable Regulations means all applicable laws, including the applicable Regulation (EU) 2016/679 of 27 April 2016 on the protection of individuals with regard to the processing of Personal Data (the "GDPR") and the law n°78-17 known as “
Informatique et Libertés”;
AutoRetouch has the meaning given to it in the General Terms;
Client has the meaning given to it in the General Terms;
Controller means the Client;
DPA means this Data Protection Addendum;
DPO means the Data Protection Officer;
End User has the meaning given to it in the General Terms;
Data Subjects means the natural persons whose Personal Data will be processed by the Processor under the instructions of the Controller, in particular the End Users;
Personal Data means any information relating to an identified or identifiable natural person, directly or indirectly, in particular by reference to an identifier, such as a name, an identification number, location data, an online identifier, or to one or more factors specific to his or her physical, physiological, genetic, psychological, economic, cultural or social identity;
Processor means AutoRetouch;
Processing Operations means, within the meaning of the GDPR all the operations applied to the Personal Data of the Data Subjects and which may be carried out by the Processor on behalf of the Controller within the framework of the Services;
Services means the services provided by the Processor to the Controller in the context of the Agreement;
Article 2. Description of the Processing Operations
The Controller instructs the Processor to process Personal Data on behalf of the Controller only to the extent necessary for the provision of the Services. By default, the performance of the Agreement, as well as the use of the Services constitute the documented instructions by the Controller.
Any additional instruction concerning the processing by the Processor shall be given by the Controller in written form. The Controller’s documented additional instructions shall be at the Controller’s expense and shall be processed subject to their technical and organizational feasibility.
Therefore, the Processor is authorized to process the Personal Data of the Data Subjects necessary to provide the Services, on behalf of the Controller.
The Processing Operations will be performed under the following conditions:
Purpose: Account creation, access, use of the Services, communication (support services, transactional, promotional, marketing)
Collected Data: Email address, phone number, first and last names, images
Data Subjects: Client including but not limited to representatives employees, contractors, partners, agents; End Users (any third party the Client authorizes to use the Services);Recognizable third parties on images (models).
Nature of the Processing Operations: Collection, storage, translation, modification, adaptation
In the framework of their Agreement, the Parties may have to change some parameters of the Processing Operations defined above. These modifications shall be the subject of a written amendment to this DPA.
Article 3. Parties' Obligations
The Processor undertakes to:
process the Personal Data of the Data Subjects:
only for the purposes described in article 2 of this DPA;
in accordance with the instructions of the Data Controller. These instructions may be updated throughout the duration of the Agreement. If the Processor considers that an instruction constitutes a violation of the Applicable Regulations, it shall inform the Controller by any means; and,
and, where applicable, only to the extent necessary to comply with a legal obligation applicable to the Processor.
guarantee the confidentiality of the Personal Data of Data Subjects processed under the DPA and ensure that persons authorized to process the Personal Data of Data Subjects for the performance of the Services (i) undertake to respect confidentiality or are subject to an appropriate legal obligation of confidentiality and (ii) receive the necessary training in Personal Data Protection;
take into account, with regard to its tools, products, applications or services necessary for the performance of the Services, the principles of data protection by design and data protection by default;
make available to the Controller the documentation necessary to demonstrate compliance with its obligations;
Support the Controller in preparing and updating the records of processing activities with regard to data processing performed by the Processor on behalf of the Client;
if the Client is subject to inspection by a supervisory authority the Processor undertakes to support the Controller to the extent necessary insofar as the Data processed on behalf of the Client is affected.
provide contact information for its DPO.
3.2 Controller's Obligations
The Controller undertakes to:
disclose all Data it needs to fulfill its obligations under the Agreement to the Processor, in accordance with the Applicable Regulations;
promptly inform the Processor if it discovers that it has transmitted Data that is outside the scope of the Agreement or that is not compliant or otherwise compromised;
not transmit to the Processor any sensitive Personal Data, as defined by the GDPR, unless the Parties have expressly consented to the processing of such data;
ensure that the Processing Operations entrusted to the Processor have a legal basis;
Safeguard the rights of the Data Subjects;
document in writing any instructions regarding the Processor’s Processing Operations of Data Subjects' Personal Data;
provide contact information for its DPO.
Article 4. INFORMATION AND RIGHTS OF THE DATA SUBJECTS
At the time of collection, the Processor must provide the Data Subjects of the Processing Operations with the information as provided for by the Applicable Regulations and related to the processing of Personal Data that it carries out. The wording and format of the information shall be agreed with the Controller prior to the collection of Personal Data, and will be provided in the privacy policy published on the Application.
To the extent possible, the Processor will assist the Controller in fulfilling its obligation to respond to requests from the Data Subjects to the exercise of their rights in relation to the Processing Operations it carries out in the framework of the Services.
Where applicable, the Controller undertakes to forward the request to the Processor’s DPO as soon as possible after receipt of the request. The Processor will take all relevant measures to respond to such a request and to justify them in writing to the Controller’s DPO within ten (10) days of receipt of such request.
Article 5. NOTIFICATION OF BREACH
The Processor will notify the Controller of any breach of Personal Data of the Data Subjects as soon as possible after becoming aware of it and by sending an email to the Controller's DPO. The Controller will then inform the relevant data protection administrative body and the Data Subjects, if necessary.
This notification shall:
be accompanied by any useful documentation to enable the Data Controller, if necessary, to notify this violation to the relevant data protection administrative body;
include:
a description of the nature of the Personal Data breach including, if possible, the approximate number of Data Subjects affected by the breach and the approximate number of records of Personal Data affected;
a description of the consequences of the Personal Data breach and the measures taken to remedy the breach, including, if applicable, measures to mitigate any negative consequences.
Article 6. SECURITY MEASURES TO PROTECT PERSONAL DATA OF THE DATA SUBJECTS
To ensure the protection of Data Subjects' Personal Data, the Processor agrees to implement appropriate security measures, including:
means to ensure the continued confidentiality, integrity, availability and resilience of processing systems and services;
means to restore the availability of Personal Data and access to them within appropriate timeframes in the event of a physical or technical incident;
a procedure to regularly test, analyze and evaluate the effectiveness of technical and organizational measures to ensure the security of processing.
Upon request of the Controller, the Processor shall provide the Controller with the list of technical and organizational measures in written form.
Article 7. SUB PROCESSING BY THE PROCESSOR
The Controller gives its general authorization to the Processor for it to engage with subprocessors to carry out specific Processing Operations. In this case, the Processor shall ensure that the subprocessor presents sufficient guarantees regarding the implementation of appropriate technical and organizational measures so that the processing meets the requirements of the Applicable Regulations.
Services which the Contractor uses with third parties as a pure ancillary service in order to carry out its business activities shall not be considered sub-processing in the context of this DPA. This includes, for example, cleaning services, pure telecommunications services without concrete reference to services provided by the Contractor for the Customer, postal and courier services, transport services and security services.
Article 8. LOCATION -TRANSFERS
In relation to the Services, the Processor informs the Controller that the Personal Data of the Data Subjects will be hosted on servers located in the following countries:
European Union,
United States.
The Processor shall provide the Controller with all useful information concerning the recipients of the Personal Data of the Data Subjects, so that the latter may inform the Data Subjects and respond to their requests for access in accordance with the regulations and legislation.
In the event of a change in the recipient countries by the Processor, the Processor shall inform the Controller and provide the Controller with an updated list of recipient countries.
All transfers of the Controller’s Data made under the Agreement from the European Union, the European Economic Area (EEA), their Member States and Switzerland to other countries shall only be made in accordance with the Standard Contractual Clauses and/or appropriate safeguards. In the case of a transfer to a Subprocessor such transfer will only be made if the Processor has (i) verified that the Subprocessor has appropriate safeguards in place and/or (ii) signed Standard Contractual Clauses with the receiving entity on behalf of the Processor.
Article 9. WARRANTIES AND LIABILITY
The Processor undertakes to perform the Services in accordance with the state of the art and shall be liable in the event of non-compliance with the instructions of the Data Controller on the Processing Operations of the Data Subjects.
The Controller shall (i) ensure that it provides all Controller Data to Processor in compliance with the GDPR and all applicable national legislation and regulations (ii) notify Processor promptly if it discovers that it has transmitted data that exceeds the scope of the Agreement or is otherwise not in compliance or compromised; (iii) not transmit to Processor Sensitive Personal Data, as defined by the GDPR, except where the Parties have explicitly agreed to the processing of such data. As such, the Controller warrants the Processor against any recourse, complaint or claim from a natural person, whose Personal Data would be processed under the Agreement and which would result from a breach by the Controller or a third party of any of the obligations under the Applicable Regulations.
Article 10. LIMITATION OF LIABILITY
The Parties’ liability is limited to direct and certain damage that is caused to the other by the defaulting Party’s non-compliance with the Applicable Regulations.
The total liability of each party under or with respect to this DPA, whether in contract, tort or any other theory of liability, shall not exceed the total amounts paid by Partner under the Agreement in the twelve (12) months preceding the claim giving rise to the liability.
