Acceptance of Terms
(a) Sizekick GmbH (“Sizekick”, "the company", "we", “us” or “our”) provides its Services (as defined in paragraph 2) to you subject to this Terms and Conditions agreement ("TOC"). By accepting these TOC or by accessing or using the Service or Site, you acknowledge that you have read, understood, and agree to be bound by the TOC. If you are entering into these TOC on behalf of a business or other legal entity, you represent that you have the authority to bind such entity and its affiliates to these TOC, in which case the terms "you" or "your" shall refer to such entity and its affiliates. If you do not have such authority, or if you do not agree with these TOC, you must not accept this TOC and may not use the Service.
(b) Sizekick may modify the TOC at any time. While we will make efforts to notify you as to when any changes have occurred, you shall assume all responsibility in reviewing the TOC periodically so you are apprised of any changes. If you continue to use any Service or Site after changes to TOC are posted, you are signifying your acceptance of these terms. If any change to this TOC is not acceptable to you, your only remedy is to terminate services per Section 8 of these TOC.
(c) These TOC contain an arbitration agreement, which will, with limited exception, require you to submit claims you have against us to binding and final arbitration. Under the arbitration agreement, (1) you will only be permitted to pursue claims against Sizekick on an individual basis, not as a plaintiff or class member in any class or representative action or proceeding, and (2) you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.
Scope of Services
Sizekick offers a mobile AI-based size recommendation solution. It can be used, for example, but not exclusively, by fashion online shops that use our solution to give size advice to their customers while shopping apparel online. Another application of Sizekick’s size recommendation solution can be the digitalisation of remote body measuring and/or size detection process for apparel manufacturers or retailers. Our size recommendation solution is offered as Software-as-a-Service (SaaS) to businesses (Business-to-Business). The use of the sizekick size recommendation solution is free of charge for shop visitors or end users. The shops, brands, manufacturers or retailers pay a SaaS fee for Sizekick’s Service.
Subject to your compliance with these terms and conditions, Sizekick grants you a limited, non-exclusive, non-transferable license to access and use our size recommendation solution. The license granted by Sizekick under this agreement is revocable at any time at Sizekick’s sole discretion. Sizekick reserves the right to revoke this license if it determines, in its sole judgment, that the licensee has breached any term of this agreement or is using the licensed material in a manner that is not authorized by this agreement.
Fees and Payment
You will be required to pay a recurring SaaS fee for use of the Sizekick size recommendation solution. In addition to recurring SaaS fees, we may also charge usage-based fees depending on your usage of the services. Sizekick also reserves the right to charge for development hours incurred for customization or development requests made by you. The details of such charges will be communicated to you and agreed upon before any customization or development work begins. Fees are non-refundable and non-transferable. Sizekick reserves the right to change the recurring SaaS fee and will provide online shops with reasonable notice of any changes.
All intellectual property rights, including trademarks and copyrights, in and to the Sizekick size recommendation solution are owned by Sizekick. You agree not to use any of our intellectual property without our prior written consent. Sizekick retains all proprietary rights in and to the Service, including but not limited to all software, data, technology, methodologies, techniques, and algorithms used in connection with the Service. You agree not to reverse engineer, decompile, or disassemble the Service or any part thereof.
Sizekick's liability is excluded, except in cases of simple negligence.
This agreement is for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless you request termination at least two (2) months prior to the end of the then-current term. Any additions made to the contract will take effect immediately and remain as a permanent amendment to the initial contract unless otherwise agreed to on the date of renewal. In addition to any other remedies Sizekick may have, we may terminate this agreement for your Sizekick Service and these TOC by providing fourteen (14) days prior notice to the administrative email address associated with your company in the case of nonpayment (seven (7) days, in case of breach of any of the terms or conditions of this TOC). If this Agreement is terminated early by Sizekick, any fees paid by you to Sizekick upfront and in advance for the Services will be refunded pro-rata by Sizekick, based on the number of days remaining in the current billing cycle. Sizekick reserves the right to modify or discontinue, temporarily or permanently, the Service (or any part thereof).
(a) Each party agrees that it will not disclose to any third party any Confidential Information of the other party, except as provided in this Agreement.
(b) For purposes of this Agreement, "Confidential Information" means any non-public information that is disclosed by one party ("Disclosing Party") to the other party ("Receiving Party") in connection with this Agreement, including, but not limited to, trade secrets, customer information, financial information, technical information, and any other information that is marked as confidential or that should be reasonably understood to be confidential. Confidential Information shall not include any information that (i) is or becomes publicly known through no fault of the Receiving Party, (ii) was known by the Receiving Party prior to disclosure by the Disclosing Party, (iii) is rightfully obtained by the Receiving Party from a third party without breach of any obligation owed to the Disclosing Party, or (iv) is independently developed by the Receiving Party without reference to the Disclosing Party's Confidential Information.
(c) The Receiving Party agrees to use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its affiliates' employees and contractors who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
(d) The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure.
(e) The obligations of confidentiality under this Agreement shall survive the termination or expiration of this Agreement.
Governing Law and Jurisdiction
These terms and conditions shall be governed by and construed in accordance with the laws of Germany. Any disputes arising out of or in connection with this agreement shall be subject to the exclusive jurisdiction of the courts of Germany.
Disclaimer of Warranties
The Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Sizekick or by third-party providers, or because of other causes beyond our reasonable control. The size recommendation solution, including the site, service, API, and any data provided in connection therewith, and all server and network components, are provided on an "as is" and "as available" basis without any warranties of any kind, and Sizekick expressly disclaims any and all warranties, whether express or implied, including but not limited to the implied warranties of merchantability, title, fitness for a particular purpose, and non-infringement. You acknowledge that Sizekick does not warrant that the service will be uninterrupted, timely, secure, error-free, or virus-free, nor does it make any warranty as to the data or results that may be obtained from use of the service. No information, advice, or services obtained by you from Sizekick or through the service shall create any warranty not expressly stated in these terms and conditions. Furthermore, Sizekick does not warrant or make any representations regarding third-party content or services, including, but not limited to, the accuracy, completeness, timeliness, validity, legality, decency, quality, or any other aspect thereof. Your use of any such third-party content or services is solely at your own risk and subject to the terms and conditions of use of such third-party content or services. Sizekick GmbH expressly disclaims any liability related to such third-party content or services.
to understand how Sizekick collects and uses user information. Sizekick takes data privacy and security seriously and follows industry-standard practices to protect this data.Machine Learning
You assign Sizekick to continuously develop the services provided to you and your customers, e.g. by anonymizing and analyzing the information by the customer (hereinafter "customer data") or by analyzing the customer data with the help of algorithms. For this purpose, you grant Sizekick GmbH a right to use the customer data.
This agreement constitutes the entire agreement between Sizekick and you and supersedes all prior agreements and understandings. If any provision of this agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. Any failure by Sizekick to enforce any right or provision of this agreement shall not constitute a waiver of such right or provision. Contact information for Sizekick can be found on our website. These terms and conditions govern your use of the service, which is provided by Sizekick. By using the service, you agree to be bound by these terms and conditions.