Volumental Online: Terms and Conditions

1. SUBJECT MATTER

The exact Subject Matter is specified in the Order Form.

1.2. The Order Form together with these Volumental Online: Terms and Conditions constitute an agreement (the “Agreement”) between the Customer (as defined in the Order Form) and Volumental AB, reg. No. 556912-4141, Medborgarplatsen 25, 118 72, Stockholm, Sweden, email sales@volumental.com. For any discrepancy between this Agreement and Order Form, the Order Form shall prevail.

1.3. Subject to the terms of this Agreement, Volumental shall provide Widget to Customer. Customer shall use Widget solely in accordance with Widget’s descriptions, documentation, and reasonable instructions provided by Volumental. Customer shall not manipulate, decompile, change, or reverse engineer Widget or otherwise create derivative products or services.

2. DEFINITIONS

2.1. “Customer Data” means Inventory Data, Product Catalog Data, Product Purchase Data, and Usage Data, as defined below. 

• (applicable to Recommendation flow only) “Inventory Data” means (1) Unique product identifier (e.g., Supplier UPC); and (2) on-hand quantity. 
• “Product Purchase Data” means product purchase data including (1) Timestamp of a purchase; (2) Unique product identifier (e.g., SupplierUPC); (3) Store id (if applicable); and (4) data linking the Purchase Data to a Shopper Identifier; (5) Sale price including currency (optional); (6) Order ID; (7) Product quantity; (8) Product returns; and (9) Product price. 
• (applicable to Recommendation flow only) “Product Catalog Data” means product information including (1) Product type i. Style - running, casual, fashion, etc. ii. Function - pronation, supination, etc.; (required); (2) Unique product identifier (e.g., SupplierUPC) (required); (3) Unique product identifier (e.g., SupplierUPC) (preferred); (4) Gender (men, women, unisex, children) (required); (5) Brand name (required); (6) Name (required); (7) URL to a product image (preferred); (8) SKU (optional); (9) Color name (optional); (10) Product link (optional); (11) Product description (optional); (12) Product size (required); (13)  Native sizing system (US, UK, EU, MP, etc.) – the sizing system in which the style was originally developed (required); (14) Width size (required for footwear with width sizes); (15) Categories (optional); (16) Size aliases (i.e. same sizes across different sizing systems) (optional); and (17) Specific e-commerce ID (if not included in Supplier SKU) (preferred).  
• “Usage Data” means conversion, average basket size, email bounce rate, average e-commerce page visits, average time spent on the e-commerce page, uplift data, and other similar data shared by Customer that is useful for evaluating the Widget's performance.  

2.2. “Testing Data” means any imagery, metadata, or other models or measurements that are used to perform application testing or development. Any Testing Data will not be counted towards the Widget Fees.

2.3. “Widget Data” means User data and Scan Data defined as follows:

• “User Data” means data collected about an end-user and may include name, email, and other similar categories of data about an end user.
• “Scan Data” means any (i) imagery taken during a scanning process, (ii) metadata, (iii) any resulting 3D models and measurements, (iv) and all other data collectible by Widget or other Volumental services.

2.4. “Fit Profile” refers to a unique dataset generated by Volumental based on a user’s interaction with any of Volumental’s services. Each Fit Profile is intended for the exclusive use of one individual. In cases where more than one individual makes use of a Fit Profile, Volumental reserves the right to apply separate charges per individual.

3. WIDGET USAGE RIGHTS AND BILLING

3.1. Unlimited Usage Rights. After Fit Profile’s first use on the Customer’s website, the Widget provides the Fit Profile with usage rights of the Widget throughout the Term at no additional charges. Volumental will distinguish Fit Profiles via a Unique Identifier. In cases where no Unique Identifier is associated with a Fit Profile, such Widget utilization will be considered a new Fit Profile.

3.2. Maintenance. Volumental shall maintain a count of Widget Usage by Fit Profiles for billing purposes, ensuring each is counted a maximum once per Term.

3.3. Customer’s In-store Fit Profiles. Fit Profiles may use the Widget free of charge with the 3D scan generated on a Volumental in-store scanner at a Customer’s branded physical store. For the avoidance of doubt, such usage shall not incur a Widget Usage Fee and shall not contribute to the calculation of Widget Usage thresholds. However, if such Fit Profiles use the Widget by any other means, including online scanning, they will be subject to standard Widget fees.

3.4. Billing. The Service Fee is non-refundable and non-transferable. It is invoiced in advance. Volumental’s preferred payment method is bank transfer. The first Service invoice(s) will be issued within 14 days following the Effective Date. Widget Usage fee is invoiced quarterly on an ex-post facto basis.  Invoices will have 30-day payment terms. Unless otherwise specified in the Order Form, the payment currency is USD. Volumental shall have the right to add a 10% penalty interest rate for late payments and prevent usage of the products/services mentioned in Section 1 hereof until payment has been received. The fees and charges are stated exclusive of value-added tax, which shall be borne by Customer. Customer shall pay invoices in full without deduction or withholding for or on account of any tax payable under any law.

4. DATA RIGHTS AND LICENSES

4.1. Except as may expressly be set forth in this Agreement, Customer owns and reserves all rights, title, and interest in and to Customer Data and all Intellectual Property Rights therein. Customer hereby grants Volumental a worldwide, non-exclusive, perpetual, irrevocable license to use, reproduce, and modify the Customer Data for the purpose of providing Widget and for research and development of Volumental products and services, including the development of its recommendation algorithms.

4.2. Volumental is the sole and exclusive owner of Widget Data. Volumental hereby grants to Customer for the duration of the Agreement a worldwide, non-exclusive, revocable, non-sublicensable license required to use the Widget.

5. PERSONAL DATA

5.1. Each Party may utilize personal data collected pursuant to this Agreement, in accordance with their respective privacy policies made available to data subjects at the time of collection. For the purposes of Regulation (EU) 2016/679 (“GDPR”) or other applicable privacy legislation, each Party is a separate controller of personal data that it processes. Notwithstanding anything else in this Agreement, each Party may take any action it deems reasonably necessary to comply with applicable privacy law.

5.2. Parties acknowledge the contemporary ongoing development of privacy law. Each Party shall take reasonably necessary steps, when requested, to assist the other Party in achieving compliance with laws applicable to Customer and Volumental relating to personal data protection.

6. CUSTOMER OBLIGATIONS

6.1. Customer shall:

• use all reasonable efforts to complete integrations necessary for the full functioning of the Widget, including all integrations described in the Volumental Widget Integration documentation available at: https://developer.volumental.com/docs/. Such integrations particularly including automated returns data, automated product feed, and order capture as described in the documentation; 
• provide Volumental with guest access to its google analytics system;
• only use Widget on its own branded websites and shall not lease, sublicense, rent, distribute, sell, or otherwise use Widget to, or with, third parties;
• only use Widget for their intended purposes and in a manner that does not alter its intended appearance. The aesthetic design and overall appearance of Widget are entirely at the discretion of Volumental, who reserves the exclusive right to determine its visual and technical aspects;

• not use Widget for any illegal, harmful, offensive, or in a way that violates applicable laws, or creates a material adverse effect on Volumental, or take any action that imposes or may impose an unreasonable or disproportionate burden on Volumental’s technical infrastructure or use Widget for any illegal, unethical, or injurious purpose.

• not modify, reverse engineer, or decompile, Widget or use Widget to violate the security or integrity of any network, computer or communication system, software, application, or network or computing device or infect or insert to Widget or any other material containing software with viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents, or programs;

• not interfere with, impede, or disrupt the integrity or performance of Widget or the data contained therein or part thereof;

• not falsify the origin of the Customer’s communications, or attempt to do any of the foregoing; or

• not access, use, or copy any portion of Widget, through the use of bots, spiders, web crawlers, indexing agents, or other automated devices or mechanisms;

• provide Volumental with such other assistance that Volumental may reasonably need to fulfill its obligations under this Agreement and comply with reasonable instructions from Volumental relating to the functioning of Widget; and

• use reasonable efforts to prevent and terminate unauthorized access to Widget and notify Volumental promptly of any such unauthorized use.

6.2. Without limiting any other rights or remedies for breach available to Volumental, Customer’s or its employees’/counteragents’ failure to abide by this Section provides Volumental the unfettered right to disable or diminish Widget's functioning until Customer has rectified its breach.

7. SUPPORT AND SERVICE

7.1. Volumental will provide support to Customer in accordance with SLA – Appendix 1.

8. INTELLECTUAL PROPERTY

8.1. Intellectual Property Right(s) (“IPRs”) means all patent rights, copyrights, trademark rights, rights in trade secrets (if any), design rights, database rights, domain name rights, moral rights, and any other intellectual property rights (registered or unregistered), throughout the world.

8.2. Volumental owns and retains all rights, title, and interest to all IPRs associated with Widget and any other products or services provided by Volumental, and nothing in this Agreement, save for specifically provided for herein, shall be deemed to grant, impliedly or otherwise, ownership of, or rights of use of, such IPRs to Customer. To avoid doubt, this Section applies equally to all future generated IPRs associated with Widget and any other products or services provided by Volumental.

8.3. The only intellectual property right granted by Volumental to Customer is the limited license to Widget (Section 4 of the Agreement).

8.4. Customer represents and warrants that any images, logos, trademarks, or other materials belonging to third parties that are shared with Volumental under this Agreement, including but not limited to pictures of shoes, are provided with full rights and authority. Customer guarantees that:

a. Customer has obtained all necessary permissions, licenses, and rights to share such third-party materials with Volumental.

b. The proper use of these materials by Volumental in accordance with this Agreement does not and will not infringe upon or violate any intellectual property rights, proprietary rights, or any other rights of any third party.

c. Customer has the legal right to pass on these materials to Volumental for use in connection with the Widget and other related services as described in this Agreement.

Customer agrees to indemnify, defend, and hold harmless Volumental, its officers, directors, employees, agents, and affiliates from and against any and all claims, damages, liabilities, costs, and expenses (including reasonable attorneys' fees) arising out of or related to any breach of the warranties, including any claims that Volumental’s use of the third-party materials in question infringes or violates any intellectual property rights or other rights of any third party. Customer shall promptly notify Volumental in writing of any claims, disputes, or allegations that may arise concerning the third-party materials provided under this Agreement.

9. LIMITATION OF LIABILITY

9.1. TO THE EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT FOR (A) AMOUNTS PAYABLE PURSUANT TO THE INDEMNITY OBLIGATIONS HEREIN; OR (B) DAMAGES ARISING FROM WILFUL MISCONDUCT OR GROSS NEGLIGENCE, OR (C) DAMAGES ARISING FROM A PARTY’S BREACH OF APPLICABLE LAW; OR (D) BREACH OF SECTION 8 (INTELLECTUAL PROPERTY), NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, MULTIPLE OR PUNITIVE DAMAGES OF ANY KIND, AND WITHOUT LIMITATIONS, LOST PROFITS, ARISING OUT OF THIS AGREEMENT.

9.2. VOLUMENTAL’S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER FOR BREACH OR IN TORT, WILL NOT EXCEED THE GREATER OF (1) $10,000; OR (2) THE AMOUNT PAID BY CUSTOMER IN THE TWELVE (12) MONTH PERIOD PRECEDING THE SUBJECT CLAIM.

9.3. NOTWITHSTANDING THIS SECTION, VOLUMENTAL’S AGGREGATE LIABILITY WITH RESPECT TO THE SERVICE LEVEL AS DESCRIBED IN THE SLA – APPENDIX 1 IS LIMITED TO THE LIMITATIONS SET FORTH IN SLA - APPENDIX 1.

10. TERM AND TERMINATION

10.1. This Agreement is subject to an initial term of 12 months that shall commence on the date mentioned in the Order From (in not mentioned, in the date of last signature of the Order Form) (the “Initial Term”). Upon the completion of Initial Term, this Agreement will be automatically extended by successive 12-month periods (each a “Renewal Term”) unless terminated in accordance with this Section 10. Initial Term and each of the Renewal Terms should be referred to (separately) as the “Term.”

10.2. Upon the completion of the Initial Term, each Party may terminate this Agreement with 4 months’ notice to the other Party. It is hereby stipulated that in the event of such termination, Customer shall not be entitled to any compensation or reimbursement, including, but not limited to, reimbursement for the Price set out in the Order Form.

10.3. This Agreement may be terminated with immediate effect by either Party:

(1) In the case of a material breach by the other Party of any of its material obligations under this Agreement which is not properly remedied within 20 days after the date of a written notice sent to the other Party specifying the nature of the breach; or

(2) If the other Party should declare its inability to pay its debts as they mature, be declared bankrupt, enter into liquidation or make compositions with its creditors, or have a receiver appointed.

10.4. Termination of this Agreement shall not affect any accrued rights or undischarged obligations that a Party may have at the time of such termination. The obligations and rights in Sections 3, 4, 8, 9, 12, 16, and 17 will survive the termination of this Agreement.

11. SEVERABILITY; OTHER PROVISIONS

11.1. Any provision in the Agreement that, to its nature, is intended to survive the termination of the Agreement will survive such termination and remain in force without limitation in time.

11.2. If any provision of this Agreement is or becomes invalid or unenforceable, this shall not affect the validity or enforceability of the remaining provisions of this Agreement. In such a case, the Parties shall endeavor to replace the invalid or unenforceable provision with a valid and enforceable provision that comes as close as possible to the purpose of the provision to be replaced. This shall apply mutatis mutandis to any supplement to this Agreement in the event of any gaps in this Agreement.

11.3. Any amendment, supplement, and cancellation of this Agreement shall be made in writing to be effective and shall be signed by both Parties. This shall also apply to any waiver of the requirement of the written form.

11.4. This Agreement and all documents and attachments referred to in this Agreement comprise the entire agreement between the Parties with respect to the subject matter hereof. Unless and to the extent otherwise provided in this Agreement, this Agreement supersedes all prior agreements (written, oral, or silent) between the Parties and all negotiations and other communications with respect to the subject matter of this Agreement.

12. CONFIDENTIALITY

12.1. Each Party shall keep in confidence all material and information received from the other Party and marked as confidential or which should be understood to be confidential (“Confidential Information”) and may not use such material or information for any purposes other than those set out in the Agreement. The confidentiality obligation shall, however, not apply to material or information,

• which is generally available to the public;
• which the receiving Party has received from a third party without any obligation of confidentiality;
• which was in the possession of the receiving Party prior to receipt of the same from the other Party without any obligation of confidentiality related thereto;
• which the receiving Party has independently developed without using material or information received from the other Party; or
• which the receiving Party is required to provide due to law or regulation by the authorities.

12.2. Each Party shall promptly, upon termination of the Agreement or when the Party no longer needs the material or information in question for the purpose set out in the Agreement, cease using Confidential Information received from the other Party and, upon request return or destroy the material including all copies thereof in a reliable manner. Each Party shall, however, be entitled to retain such material as is required by law or regulation by authorities.

12.3. The rights and responsibilities under this Section shall survive the Agreement's termination, expiration, or cancellation. Unless otherwise agreed in writing, these rights and obligations shall expire after one year from the termination, expiration, or cancellation of the Agreement. The Agreement's termination, expiration, or cancellation shall, however, not affect the rights and obligations related to this Section if applicable laws require a longer confidentiality obligation than the confidentiality period set out in this Section.

13. RELATIONSHIP OF PARTIES

13.1. Under this Agreement, both Parties agree to fully cooperate and collaborate with each other and provide the necessary support during the integration and usage of the Widget. Nothing herein, however, will be deemed or interpreted to create a partnership or joint venture among the Parties. Neither Party has the right, power, or authority to act on behalf of or to bind the other Party, contractually or otherwise.

13.2. Neither Party to this Agreement is granted any right or authority to assume or to create any obligation or responsibility, express or implied, on behalf of or in the name of the other, and neither Party shall represent itself to be the agent or legal representative of the other.

14. ATTRIBUTION AND PUBLIC RELATIONS

14.1. Customer shall attribute Volumental as the developer of Widget or features therein in all external communications, public relations, marketing material, or advertising which relate to or mention Widget or features therein. Customer shall incorporate the phrase similar to ‘powered by Volumental’ on the Widget landing page within the Customer’s website.

14.2. For the duration of this Agreement, both Parties permit the use of the other Party's name, logo, and other visual material as a reference case and may reference the other Party in the media.

15. ASSIGNMENT

15.1. Neither Party may assign or transfer any rights and/or obligations under this Agreement (wholly or partly) to a third party without the prior written consent of the other Party.

16. FORCE MAJEURE

16.1. For the purposes of this Agreement, “Force Majeure Event” means any event or circumstance beyond the reasonable control of a party, including but not limited to acts of God, natural disasters, fire, flood, earthquake, war, terrorism, civil unrest, pandemics, governmental actions, labor disputes, strikes, lockouts, shortages of materials or supplies, interruptions or failures of telecommunications or digital transmission links, internet failures, or power failures.

16.2. Neither Party shall be liable for any delay or failure to perform its obligations under this Agreement if and to the extent that such delay or failure is due to a Force Majeure Event. The affected Party shall be excused from performance for the duration of the Force Majeure Event and for a reasonable period thereafter to allow for the resumption of performance.

16.3. The Party affected by a Force Majeure Event shall: (a) Promptly notify the other party in writing of the occurrence of the Force Majeure Event, providing details of the nature, extent, and anticipated duration of the event; and (b) Use all reasonable efforts to mitigate the effects of the Force Majeure Event on the performance of its obligations under this Agreement.

16.4. Upon the cessation of the Force Majeure Event, the affected party shall promptly resume the performance of its obligations under this Agreement and shall notify the other Party of such resumption.

16.5. If a Force Majeure Event continues for a period of more than ninety (90) days and substantially prevents, hinders, or delays the performance of this Agreement, either party may terminate this Agreement by providing written notice to the other Party. In the event of such termination, neither party shall have any liability to the other except for obligations accrued prior to the occurrence of the Force Majeure Event.

By including this clause, the Parties acknowledge the potential impact of unforeseeable and uncontrollable events on their ability to perform their contractual obligations and establish procedures for handling such situations.

17. APPLICABLE LAW

17.1. This Agreement and any dispute or controversy relating to it shall be governed by and construed according to the laws of Sweden and without regard to its conflict of laws principles.

18. ARBITRATION

18.1. Any dispute, controversy, or claim arising out of or in connection with this contract, or the breach, termination, or invalidity thereof, shall be finally settled by arbitration in accordance with the Arbitration Rules of the SCC Arbitration Institute.

18.2. The seat of arbitration shall be Stockholm, Sweden.

18.3. The language of the arbitration shall be English.

18.4. The parties undertake and agree that all arbitral proceedings conducted with reference to this arbitration clause will be kept strictly confidential. This confidentiality undertaking shall cover all information disclosed in the course of such arbitral proceedings, as well as any decision or award that is made or declared during the proceedings. Information covered by this confidentiality undertaking may not, in any form, be disclosed to a third party without the written consent of the other Party. This notwithstanding, a Party shall not be prevented from disclosing such information in order to safeguard in the best possible way his rights vis-à-vis the other Party in connection with the dispute, or if the Party is obliged to so disclose pursuant to statute, regulation, a decision by an authority or similar.

Appendix 1 – Service Level Agreement (“SLA”)

Appendix 2 – EU Standard Contractual Clauses (if applicable)