General Terms & Conditions (T&C's)

Preamble
 

P.1 SCOPE 
These Terms and Conditions apply for all legal transactions, which mySHOEFITTER GmbH, An der Windmühle 3a, 59069 Hamm, Germany, (hereinafter referred to as” mySHOEFITTER”) will conclude with the partner, using a standardised  partner-contract. These Terms and Conditions also apply for other legal transactions if it is agreed between the contractual parties. If any individual agreements have been made in writing between the contracting parties, those individual
agreements have priority over these general agreements on a case-by-case basis. The partner’s contractual conditions shall not apply. We hereby expressly object to any counter provisions by the partner, referring to his own Terms and Conditions.
 

P.2 SOFTWARE
The Software / The Application is provided as a SaaS solution. The scope of functions of the ordered software / application is described in the respective product description section of this document (I.). The partner notes with approval that the scope of functions as well as the requirements for the user’s device can change due to the constant technical development. The partner is able to use the software, which is stored and hosted on the provider’s servers or on servers of contracted providers commissioned by mySHOEFITTER, for his own purposes and to process by using the software, via an internet connection, for the duration of this contract.

P.3 MODIFICATION: mySHOEFITTER is entitled, through simple notification, to change or supplement these terms and conditions if the changes or supplements are necessary and if the changes or supplements will not inflict a substantial disadvantage on the partner. A change is necessary if it is necessary to comply with the legal requirements. The partner notes this with approval. The currently valid version of this document is available online under https://www.myshoefitter.com/terms-conditions.
 

I.Administrative

I.1. CONTRACTUAL OBJECT
 

The subject of this contract is the use of the software of y the partner. The operation of those SaaS-Services is based on this contact. mySHOEFITTER grants to partner and partner accepts from mySHOEFITTER and for the duration of the term, a limited, non- exclusive, non-transferable, right to access and use and permit authorized users to access and use the services solely for partner’s internal business use. The partner may allow authorized users to use the services for this purpose and is responsible for authorized users’ compliance with the agreement.

 

I.2 PRODUCT DESCRIPTION
 

The technology of mySHOEFITTER includes the following details:

- Algorithm for biometric, digital 2D-foot measurement via cameras of smartphones and tablets.

- Compatible with Android (from version X) and IOS (from version Y) operating systems

- Plug-in for integration into online stores

- Database-modul with shoe measurements (inner shoe measurements (length, width), shoe lasts, volume, etc.)

- Foot-shoe matching (database transactions)

- Data dashboard (transaction tracking)
 

I.3 TERM (DURATION, CANCELLATION)
 

If nothing else has been agreed in the partner-contract, the contract shall enter into force on the day on which the order form has been received by mySHOEFITTER. The contract ends because of cancellation. The contract can be terminated by complying with a notice period of 90 days respective at the end of each contract period, this cancellation can be made by either Party.
 

I.4 ACCOUNTING
 

  1. Invoice recipient. The invoice recipient is the partner. (All services are invoiced to the partner directly).
     

  2. Accounting period: If nothing else has been agreed in the partner-contract (for example: if a monthly or yearly accounting period was agreed on), the accounting period of the first settlement starts with the day of the contract start, but at the earliest after the agreed free-trial expires and ends on the last day of the contractual phase. If the contracting parties agreed on a monthly accounting, the accounting period ends on the last day of the month. The invoices are due for payment subsequently.
     

  3. Setup-Fee: In case a Setup-Fee was agreed the following applies: Accounts are rendered after the setup process is completed and after the agreed training. The monthly costs will be due for payment after the installation has been performed.
     

  4. If services are remunerated on a time and material basis, mySHOEFITTER shall document the nature and duration of the activities and submit this documentation with the invoice.
     

  5. Payment terms: 14 days from invoice date.
     

  6. Sales Taxes: The partner declares to be a company, which will be evidenced by a tax number. The contract will only be concluded if the partner discloses such tax number. If the partner is located in Germany, the invoice will include the statutory sales tax. If the partner is located in another European Union country, the invoice will be raised net of tax as intra community service provision and will be marked as reverse charge. If the partner is located in a non- EU country and if the service is not tax-relevant in Germany, the invoice will not include VAT, however it will be marked as reverse charge, provided that the legal requirements are met, and partner has submitted a “Certificate of Business-Registration” to mySHOEFITTER. The partner is obligated to pay VAT if a tax inspection proves that the transaction is taxable. If the partner has not submitted a valid “Certificate of Business-Registration” and/or a valid VAT-number, the statutory sales tax will be included to the invoice.
     

  7. Withholding Taxes: National Withholding Taxes, also called retention taxes, will be borne by the partner in addition to the invoice amount. The partner is not entitled to deduct the Withholding Tax from the invoice amount. For example: The invoice amount is EUR 100. In accordance with the national tax regulations which are applicable for the partner, a Withholding Tax in the amount of 10% has to be paid. The partner has to pay the full invoice amount (EUR 100) to mySHOEFITTER and the Withholding tax in the amount of EUR 10 to the relevant tax authority.
     

  8. Currency: The agreed invoicing currency is in Euro (EUR).
     

II.Data Protection, Secrecy
 

II.1 DATA PROTECTION LAW(S) 


Both contract parties are committed to complying with the data protection clause which applies in each case. Both contract parties know that the EU-GDPR and the use of the national data protection laws are to be complied to. Storage and processing of personal data will take place under applicable law. Furthermore, both contract parties agree on safety standards to prevent unauthorized users from accessing data.
 

The contracting parties note with approval that they have to comply with the provisions of the General Data Protection Regulation (Directive 95/46/EC). The partner expressly agrees that the EU-GDPR will be applied. The privacy policy of mySHOEFITTER at https://de.myshoefitter.com/privacy is the basis.

 

II.2 SECRECY
 

Both contracting parties agree on not passing on any business information or technical information concerning the other party to third parties. Information which is generally known or available is excluded from this contract. The transmission of information to affiliated companies or subcontractors is permitted, provided that the transmission is necessary for the proper provision of the performances agreed on and provided that the transmission is permitted by law.
 

III.Specific obligations of mySHOEFITTER
 

III.1 Services, Support
 

  1. mySHOEFITTER points out to the partner that the functionality of the SaaS-Services can be affected by factor that are beyond mySHOEFITTER sphere of influence. mySHOEFITTER will neither be liable for lack of availability of its services nor for other restrictions or errors which arise from such factors. The following factors are beyond mySHOEFITTER ’s sphere of influence:

    • any actions of third parties who do not act by order of mySHOEFITTER

    • a fault or failure of the internet or any public telecommunications network

    • denial of service attacks or similar attacks

    • a fault or failure of the partner's computer systems or networks

    • any unforeseen cause beyond mySHOEFITTER reasonable control or any force majeure events set forth in this Agreement.
       

  2. The partner is obligated to report functional failure and other technical problems of the system immediately and as precisely as possible.
     

  3. mySHOEFITTER expressly agrees to provide a support for application questions and for technical problems of the partner: Business Days 09:00 - 14:00 (CET).

III.2 Updates, Warranty and binding commitments
 

  1. mySHOEFITTER shall use commercially reasonable efforts to make his app or content available to the partner on a 24/7 (twenty-four hours per day/seven days per week) basis, excluding downtime due to any of the following (collectively Excusable Downtime):

    • Scheduled network, hardware, software, or service maintenance

    • A failure of the internet or other telecommunications networks.
       

  2. mySHOEFITTER shall maintain the Software and/or Services and provide all patches and fixes to the Software and/or Services at no additional cost, as long as it is not caused by the partner. Provided, however, said maintenance shall not include any major releases of new versions of the Software, additional functionality, or custom programming, which mySHOEFITTER, at its discretion, may provide at an additional cost.
     

  3. mySHOEFITTER warrants that the software has the complete functionality as described. Any changes concerning the scope of service caused by software releases will be announced in advance by e-mail.
     

  4. The partner acknowledges that complex software is never wholly free from defects, errors and bugs, security vulnerabilities and subject to the other provisions of this Agreement, mySHOEFITTER gives no warranty or representation that the services will be wholly free from defects, errors and bugs or uninterrupted and will be entirely secure. Partner acknowledges that mySHOEFITTER does not control the transfer of data over communications facilities, including the internet, and that the service may be subject to limitations, delays, and other problems inherent in the use of such communications facilities. mySHOEFITTER is not responsible for any delays, delivery failures, or other damage resulting from such problems. Neither party shall be liable to the other party in respect of any loss of profits or anticipated savings or any loss of revenue or income or any loss of use or production, or any loss of business, contracts or opportunities or any losses arising out of a force majeure event or in respect of any special, indirect or consequential loss or damage.
     

  5. Neither party shall be liable to the other party for any lost profits or anticipated savings, or for any loss of revenue or income, or for any loss of use or production, or for any loss of business, contract or opportunity, or for any loss arising out of any Force Majeure Event, or for any special, indirect or consequential damages or losses.
     

  6. In no event shall mySHOEFITTER be liable for any damages in excess of the total amount paid and payable by the partner to mySHOEFITTER under this Agreement in the 12-month-period preceding the commencement of the event or events.
     

  7. mySHOEFITTER is not liable or responsible for correcting:
    - Errors or problems resulting from negligence or improper use of the App or the Content or any part thereof
    - Problems caused by data, network, database, software (other than the App or Content), hardware, or other operational
      environmental factors that are not within the direct control of mySHOEFITTER.
     

  8. mySHOEFITTER is not allowed to pass on partner data or stored data to third parties.
     

IV.Specific obligations of the partner
 

IV.1 Obligations of the partner
 

  1. The partner is responsible for punctual payment. If the partner is in full or partial default of payment for more than 30 days, mySHOEFITTER is entitled to discontinue its services.
     

  2. The partner is obligated to comply with applicable legislation during the use of the software. It is not allowed to use the software to store sensitive personal data as meant in the data protection law in particular. mySHOEFITTER is allowed to cancel the contract if the partner violates legal requirements during the use of the software.
     

  3. The Partner undertakes to design the order process in such a way that the order can be completed by the customer even in the event of any failure of the mySHOEFITTER technology.
     

  4. The Partner shall report defects in writing without delay in a comprehensible and detailed form, stating all information useful for the detection and analysis of the defect. In particular, the work steps that led to the occurrence of the defect, the manifestation and the effects of the defect shall be stated.
     

  5. The partner is liable for the misuse of usernames and passwords. The partner shall use reasonable endeavors, including reasonable security measures relating to account access details, to ensure that no unauthorized person may gain access to the services.
     

  6. The partner undertakes to use the provided usernames and passwords responsibly and to prevent abuse by employees.
     

IV.2 Intellectual Property Rights (IPR)
 

  1. Partner acknowledges that all rights, title and interest in and to the services and the Software, together with its codes, derivative works, organization, structure, interfaces, any documentation, data, trade names, trademarks, trade secrets, proprietary information or other related materials is, and at all times shall remain, the sole and exclusive property of mySHOEFITTER. Except the right to use the software, as expressly provided herein, this Agreement does not grant to partner any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered) or any other rights or licenses with respect to the services or the Software.
     

  2. The partner shall not remove or modify any program markings or any notice of mySHOEFITTER or its licensors’ proprietary rights. Partner shall not attempt, or directly or indirectly allow any authorized user or other third party to attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, reverse compile, disassemble, reverse engineer, download, transmit or distribute all or any portion of the Services and/or Software in any form or media or by any means.
     

  3. The provisions of this paragraph IV.2 shall survive termination of this Agreement.

V. Miscellaneous
 

V.1 mySHOEFITTER shall be entitled to transfer this contract to associated companies.
 

V.2 As long as the applicability of the partner’s rights is not mandatory, German law shall apply.
 

V.3 Alterations and additions to this contract agreed by the parties must be made in writing.
 

V.4 If any provision of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of this Agreement will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).
 

V.5 mySHOEFITTER is entitled to advertise with the fact that the partner is using the software, if the partner concludes a contract with mySHOEFITTER. In this context, mySHOEFITTER is entitled to use the partner’s logo in an appropriate way. All uses beyond this must be coordinated with the partner. It is permissible that mySHOEFITTER advertises online with the partner using its software.
 

V.6 mySHOEFITTER guarantees that mySHOEFITTER is the owner of the software and that the allocation of the software does not infringe the rights of use of a third party.
 

V.7 The contracting parties mutually waive the right to set-off their claim against the claim of the other party.
 

V.8 German Law shall apply for legal disputes which may arise from or in connection with this Agreement, unless the application of national law is mandatory.
 

V.9 The application of the “UN-purchase Law” is excluded. Place of jurisdiction is the court Hamm, regardless of the height of the amount in dispute.

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