Terms of Use and End User License Agreement
We ask you to read carefully the following Terms of Use before accessing and/or using the Products and Services. The present Terms of Use govern your rights and obligations. Your purported or effective use of the Products and Services constitutes your express knowledge and acceptance of them. If you do not agree with any of these provisions, please refrain from using all or part of the Products and Services.
Definitions
For the purposes of these Terms of Use, the following words or groups of words have the meanings defined in this section. The definition of a word in the singular is valid when the word is used in the plural. When the defined words or groups of words are used in the Terms of Use, the first letter of the word (or each word) is capitalised. When the same word is used in the without capitalisation, it does not have the meaning given in this article, but that of the common language.
App:
Refers to the mobile application “FitsBest” / ”Fitsbest”;
Affiliate:
Means any natural person or legal entity to which the Company has granted license to make available and use the Products and Services for commercial purposes; which provides services to the Company; or with which the Company has otherwise contracted in relation to the Products and Services;
Body Scanner:
Refers to the scanner systems used to scan the morphology and biometrics of the User;
Company:
Refers to Treedy’s SA (“société anonyme”/”naamloze vennootschap”), a limited liability company under Belgian law, whose registered office is at 1050 Ixelles, avenue Georges Bergmann, 117, registered with the Belgian business register (“Banque Carrefour des Entreprises”/ ”Kruispuntbank van Ondernemingen”) under the number 0635.598.339 and with the Belgian VAT Administration under number BE 0635.598.339
Personal Data:
Means any information relating to an "identified" or "identifiable" natural person. A natural person is identifiable when it can be identified, directly or indirectly, in particular by reference to an identifier, such as name, age, gender, identification number, location data, online login, or through one or more elements specific to the physical, physiological, genetic, psychological, economic, cultural or social identity;
Products and Services:
Refers to :
· the App and its functionalities;
· the Websites;
· the Body Scanner; and/or
· any other Treedy’s System.
Terms of Use:
Refers to the present terms of use and end user license agreement;
Treedy’s System:
Refers to any software, solution, content, service and/or product offered via the App, the Body Scanner, and/or or the Websites;
User:
Means any natural or legal person that installs, downloads, accesses and/or uses, by any means (mobile device, computer and any other type of device) and for any purpose whatsoever, the Product and Services, regardless of whether he/she has created an account;
Websites:
Refers to the websites www.treedys.com and www.fitsbest.app.
2. General provisions and scope
2.1. Scope of application and legal information
1.1.1. These Terms of Use, in the version in force at the time of the creation of the account by the User and as they may be subsequently amended, apply to all relations between the Company and the User. The User who has an account is responsible for the respect of the Terms of Use by any person, natural or legal, who connects to the App through their account.
1.1.2. The User acknowledges that by accepting the Terms of Use, he/she is only granted a limited and temporary license for the sole purposes of his/her personal use the Products and Services, as described in article 3.
1.1.3. The Terms of Use and their acceptance, whether express or tacit (implicit), entail the exclusion of all other general conditions not issued by the Company. Unless expressly provided otherwise, in the event of contradiction with other terms or conditions which are declared or recognised as applicable notwithstanding the foregoing, these Terms of Use shall prevail.
2.2. Modification of the Terms of Use
2.2.1. The User expressly accepts that the Terms of Use may be reviewed, updated or otherwise modified at any time, in whole or in part, by the Company. Where required by law, the Company shall seek the User’s prior consent to the new Terms of Use.
2.2.2. Any modified version of these Terms of Use will take effect and enter into force, unless stated otherwise by the Company) upon their publication on the App and/or the Websites. The User should therefore regularly consult the latest available version of the Terms of Use prior to using the functionalities of the Products and Services.
2.2.3. The continued use of the Products and Services after notification under article 2.2.2. shall be deemed to constitute the User’s unconditional acceptance of the changes made to these Terms of Use. If the User does not agree nor accepts the changes made to the Terms of Use, in whole or in part, he/she shall immediately refrain from further use of the Products and Services.
2.3. Contact information of the Company
The User may contact the Company through the following means:
· Directly via the contact form on the App and/or Websites;
· Postal address : 1050 Ixelles, Avenue Louise, 251, 5th floor;
· Email : fitsbest@treedys.com.
3. Characteristics of the Products and Services – End User License
3.1. Characteristics of the Products and Services
3.1.1. The Products and Services shall strive to achieve the following functionalities, and the access and/or use thereof shall either require the creation of an account by the User or be made available in-store by Affiliates on an anonymous basis :
Full body scanning of morphology and biometrics, either via body scanners or other devices;
Registry and retention of size measurements, enabling the display of morphologic evolution;
Access to general or tailor-made size advice, product information and product recommendation;
Access to size charts (based on available information);
Access to in-store product availability;
Access to a map of the networks of store Affiliates where body scanners are available and where products can be purchased;
Visualising products;
Access to general or targeted commercial offers, discounts or any other sort of promotional communications from Affiliates and/or third parties;
Other functionalities that may be made available via the Products and Services.
As the offer of functionalities is ever-evolving, this list is non-exhaustive and provided for informative and illustrative purposes.
3.1.2. If properly used, in accordance to the instructions, the full body scanning of morphology and biometrics functionality shall yield results with an accuracy of between 0 and 5 %. The User acknowledges that these results are valid at the time the scan is made and subject to subsequent evolution of, or modification of the User’s morphology.
3.1.3. The Company shall not collect, process nor transfer the User’s Personal Data as a consideration for the Products and Services. Without prejudice to the Privacy Policy referred to under section 8 below, the Company shall only collect and process the User’s Personal Data in order to effectively make available and provide the Products and Services to the User, to the fullest extent of their functionalities, which may entail the transfer of anonymized data (i.e., data rendered anonymous in such a manner that the data subject is not or no longer identifiable), or in order to comply with applicable law. Any transfer of Personal Data to an in-store Affiliate or other third party to this effect shall be made in compliance with the Privacy Policy to which the User expressly consents (cf. section 8).
3.2. License grant
3.2.1. Subject to the Terms of Use, the Company grants to the User a limited, nonexclusive, and nontransferable license to download, install, access, stream and use the Products and Services.
3.2.2. The Users acknowledges and agrees that the Products and Services are provided under license, and not sold, or otherwise transferred to them. The User does not acquire any ownership right or interest in the Products and Services under the Terms of Use, nor any other rights of any nature thereto other than the right to personally use the Products and Services in accordance with the license granted, and subject to all terms, conditions, and restrictions, under the Terms of Use.
3.2.3. The Company and its Affiliates reserve and shall retain their entire right, title, and interest in and to the Products and Services, including all trademarks, copyrights, patents, service marks, trade or business names, registered and unregistered designs, know-how, trade secrets, rights in confidential information, any other intellectual property rights whatsoever irrespective of whether such intellectual property rights have been registered or not, or any proprietary rights notices, except as expressly granted to the User under these Terms of Use. Any purchase or transaction made with an Affiliate under or in relation to the license granted shall form a contract between the Affiliate and the User to which the Company shall remain a third party. As such, any rights or obligations born from and/or related to such contracts shall be unenforceable against the Company, unless the Company expressly provides otherwise.
3.3. License restrictions
Under the license granted, the User shall not :
copy the Products and Services, except as expressly permitted by this license as the case may be;
modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Products and Services;
reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Products of Services or any part thereof;
remove, delete, alter, or obscure any trademark or any copyright, patent, service mark, trade or business name, registered and unregistered design, know-how, trade secret, right in confidential information, any other intellectual property rights whatsoever irrespective of whether such intellectual property rights have been registered or not, or any proprietary rights notices from the Products and Services, including any copy thereof;
rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Products and Services, or any features or functionality thereof, to any third party for any reason, including by making the Products and Services available on a network where it is capable of being accessed by more than one device at any time;
remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Products and Services ; nor
use the Products and Services in, or in association with, the design, construction, maintenance, or operation of any hazardous environments or systems, including any power generation systems; aircraft navigation or communication systems, air traffic control systems, or any other transport management systems; safety-critical applications, including medical or life-support systems, vehicle operation applications or any police, fire, or other safety response systems; and military or aerospace applications, weapons systems, or environments;
or purport or attempt to do any of the deeds referred to hereabove.
4. Warranties and representations
4.1. Company’s warranties and representations
4.1.1. The Products and Services are provided "As Is", with all faults and defects without warranty of any kind, and subject to improvements or updates.
4.1.2. Unless by virtue of mandatory legal provisions (‘droit impératif ou d’ordre public’ / ‘dwingend recht’) the Company makes no warranty or representation, express or implied, that the Products and Services are free from errors and/or omissions; are exhaustive; shall meet all of the User’s requirements and/or expectations; shall be uninterrupted ; that defects will be corrected ; or that the Company’s software or the server that makes them available or any electronic communication sent by the Company are free of viruses or other harmful content. The Company neither makes representations regarding the Products and Services' functionality, accuracy and/or reliability.
4.1.3. If, and to the extent information provided via the Products and Services is issued by, or comes from Affiliates and/or third parties, the Company does not warrant nor represent the accuracy, completeness, reliability, up-to-datedness or faultlessness of this information and is therefore not liable for it. Furthermore, the Company does not warrant nor represent that this information (e.g., costumer promotions or discounts, brands’ size charts, etc.) complies with applicable legislation (including product conformity and/or consumer protection legislation) and therefore accept no liability for it.
4.2. User’s representations
By accessing or using the Products and Services, the User represents and warrants that :
He/she is fully able, capable (including by its age) and competent to enter into the terms, conditions, obligations, representations and warranties set forth in these Terms of Use and to use the Products and Services in a responsible manner;
All information he/she submits to the Company is true, correct, accurate and complete and that he/she will maintain the accuracy of such information and inform the Company of any changes and/or inaccuracy immediately upon such change or discovery thereof;
He/she will access and use the Products and Services in complete accordance with the Terms of Use, as amended from time to time;
His/her activities are lawful in every jurisdiction where he/she accesses or uses the Products and Services.
5. Termination
5.1. Termination without cause
The User and the Company may terminate the agreement contained in these Terms of Use, and consequently the use of the Products and Services and the license under section 3 above immediately and without cause:
If by the User, without notice, by removing or deleting his/her account, removing the App and any copy thereof from any mobile or computer device under his/her care and ceasing all use of the Products and Services;
If by the Company, upon a 3 business days prior notice, except in case of force majeure or if security reasons justify a shorter notice, by discontinuing to provide access to the Products and Services, either in general or specifically to the User.
Due to the nature of the Products and Services and the absence of monetary or other direct consideration to be paid by User, the User acknowledges that, for the purpose of the termination, a 3 business day notice from the Company is reasonable.
5.2. Termination with cause
The Company may terminate the agreement contained in the Terms of Use, and consequently the furniture of the Product and Services and the license under section 3 above immediately and without prior recourse to a judiciary procedure, if the User breaches any of the terms and conditions thereof.
The termination shall be effective as of the notification of the Company’s decision to terminate to the User, notified by email or one the means referred to in article 2.2.2.
5.3. Other consequences of the termination
5.3.1. Upon termination, all rights granted to the User under the Terms of Use shall also terminate.
5.3.2. The right to terminate under this article shall not prejudice any other right or remedy of the Company in respect of any breach of the Terms of Use, if any, by the User.
5.3.3. Upon termination, any Personal Data collected and processed for the purpose of accessing and using the Products and Services shall be stored and/or deleted/anonymised in accordance with the Privacy Policy referred to under section 8 below.
6. Liabilities
6.1. Compliance with Belgian legislation
The Products and Services comply with the Belgian legislation as in force. The Company shall not be held liable in the event of non-compliance with the laws or regulations of the country where the Products and Services are downloaded, accessed and/or used. Furthermore, if the User chooses to download, access and/or use the Products and Services from territories other than Belgium, he/she does so on his/her own initiative and at his/her own risk. It is the User's responsibility to comply with local legislation insofar as such legislation is applicable.
6.2. Limitation of liability
6.1.1. Except for the application of mandatory legal provisions or public policy (‘droit impératif ou d’ordre public’ / ‘dwingend recht’) provision, the Company is in no way liable for damages resulting from the use of the Products and Services by the User or third parties.
6.1.2. Except in the case of fraud or gross negligence, the Company's liability for any reparable direct damage caused by a fault of the Company or its employees is in all cases limited to compensation for foreseeable, direct and material damage actually suffered by the User and may not in any cases exceed a maximum amount of fifty euros (50.00 €). For the purposes of the above, indirect, and/or consequential, reputational, moral damages do not give rise to a right to claim compensation as against the Company, even if such damages were foreseeable, are deemed to constitute any loss of profit, turnover, data, databases or programmes, loss of savings and any additional costs, as well as any damage to image as well as any claims by third-parties.
6.1.3. The Company shall not be liable to the User for damages caused by (i) its own act, omission, negligence or fault; (ii) any force majeure event; (iii) any third-party not related to the Company (for example, in the event that problems arise from the performance, congestion or connection of telecommunications facilities or services, or the performance of the User’s mobile device and/or computer equipment); or (iv) any other event that neither the Company nor its employees could have reasonably foreseen or prevented even if the Company had taken all reasonable precautions.
The following shall be deemed to be the fault, omission or negligence of the User: any damage or loss resulting from the unsuitability or incompatibility of its mobile device and/or computer equipment (hardware and/or software) to all or part of the Products and Services and/or the failure to implement all reasonable and necessary protections against unauthorized use (or authorized used by a third-party) any malicious or damaging programs, devices or communications, as it is the sole responsibility of the User to (i) check or have checked that his mobile, computer and/or telecommunications equipment is suitable and compatible with the Products and Services, prior to any use and/or (ii) put in place and implement all reasonable and necessary protection against any harmful programs, devices or communications, in particular by means of anti-virus and firewall software.
6.3. Warranty against claims
The User warrants the Company against any claim caused by, or deriving from, directly or indirectly, the User’s breach of any of the terms and conditions set out in the Terms of Use, or any inappropriate, unsuitable or otherwise incorrect access or use of the Products and Services.
6.4. Other internet spaces
6.4.1. The Products and Services, as well as other internet spaces controlled by the Company (Facebook pages, Instagram, etc.), may contain links to other sites or pages on the internet. These other sites are not under the control of the Company and the User acknowledges and agrees that the Company is not responsible for the accuracy, copyright compliance, legality, decency or any other aspect of the content of these other sites or pages. The inclusion of such a link does not imply any endorsement or acceptance of responsibility by the Company or any form of association or partnership with its operators.
6.4.2. The Company cannot ensure that the User will be satisfied with any product or service purchased from an Affiliate or third party site that is hyperlinked to or from the Websites and/or the App, as the channels of other online businesses are owned and operated by independent merchants.
Unless expressly stated, the Company does not promote nor endorse any goods manufactured, produced or sold by any Affiliate or third party and has taken no steps to confirm the accuracy or reliability of any information contained on such Affiliate or third party sites. The User is advised to make whatever investigation it deems necessary or appropriate before engaging in any electronic transaction with any Affiliate or third party.
7. Complaints
7.1. Complaints to the Company
Any complaint to or about the Company and/or the Products and Services shall first and foremost be addressed to the Company via email, at the general email address referred in article 2.3.; any dedicated email address referred on the Websites or the App; or via the dedicated form on the Websites and/or the App, if available.
7.2. Complaints to third parties
If the User's complaint cannot be settled amicably between the User and the Company, the User may have recourse to an alternative dispute resolution procedure, such as the European Commission's online dispute resolution platform (http://ec.europa.eu/odr) or contact the Consumer Mediation Service (http://www. https://consumerombudsman.be/en). By following the above-mentioned links, the consumer will have access to all useful information concerning the characteristics and conditions of use of these dispute resolution procedures.
8. Privacy Policy and Cookie Policy
The Company has a policy for the collection, processing and protection of personal data (“Privacy Policy”) and a policy for the management and use of cookies (“Cookie Policy”) available at the following link:
Privacy Policy: https://www.fitsbest.app/privacy-policy;
Cookie Policy: https://www.treedys.com/cookiespolicy;
Those policies must be read, understood and agreed upon before any use of the Products and Services and before agreeing to these Terms of Use. By agreeing to the Terms of Use, the User also agrees to the Privacy Policy and the Cookie Policy.
9. Marketing, commercial offers and newsletters
9.1. The User acknowledge that the Company may send commercial offers by post, email, SMS, telephone or via all the web spaces (including but not limited to the Websites, the App and Treedy’s System) run by the Company or of its Affiliates on the social networks, subject to the User’s agreement.
9.2. The User may at any time opt-out from these commercial mailings, free of charge, by clicking on the "unsubscribe" link in each email/communication or by contacting the Company by using contact information provided in article 2.3. However, receiving in-App or in-Website commercial offers, discounts or other sort of promotional communications from Affiliates and/or third parties, cannot be opted-out, as such communications are an essential and intrinsic part of the Products and Services.
10. Miscellaneous
10.1. Entire agreement
These Terms of Use, the Privacy Policy and the Cookie Policy constitute the entire agreement between the User and Company with respect to the Products and Services and supersede all prior or contemporaneous understandings and agreements, whether written or oral, with respect to the Products and Services.
10.2. Severability
If any provision of these Terms of Use is declared illegal, null, void or unenforceable for any reason, the other provisions shall not be affected. In this case, the Company will offer the User the replacement of the problematic clause or provision with another valid and effective clause or provision that best preserves the object or purpose of the clause or provision in question, as well as the legal and economic balance of the Terms of Use. If it is not possible to make such a substitution, then this provision shall be deemed to be severable from the Terms of Use and shall not affect the validity and enforceability of the remaining provisions to the fullest extent possible under applicable law.
10.3. Waivers
Waivers by the Company can only be made on the basis of a clear and express statement to that effect by the Company. No failure to exercise, and no delay in exercising, on the part of the Company, any right or any power hereunder shall be construed as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder.
10.4. Transfer of rights and obligations
10.4.1. The Company reserves the right to transfer, assign, sublicense or pledge its rights and obligations under these Terms of Use, in whole or in part, at its discretion.
10.4.2. The User may not transfer, assign, sublicense or pledge in any manner whatsoever any of the rights or obligations under these Terms of Use.
10.5. Use as evidence
The Company may rely, in particular for the purposes of proof of any act, fact or omission, on programs, data, communications, files, recordings, operations and other elements (such as monitoring reports or other statements) of a computer or electronic nature or format, established, received or stored directly or indirectly by the Company, except in the case of abuse or obvious error. The User expressly acknowledges the possibility for the Company to take advantage of these elements of a computerised and/or electronic nature or format.
11. Applicable law and competent jurisdiction
11.1. Applicable law
The Terms of Use shall be governed and construed in accordance with the laws of Belgium.
11.2. Competent jurisdiction
Any dispute relating to the validity, interpretation or execution of the Terms of Use that cannot be settled amicably (including alternative modes of conflicts resolution) shall be referred to the exclusive jurisdiction of the Courts of the French judicial district of Brussels (Belgium).