The following End User License Agreement / General Terms and Conditions
(“EULA” or
“GTC”) apply to the use of the mobile
applications and browser extension “Aiuta” (hereinafter
“App”) of Aiuta USA, Inc, 850 New Burton
Road, Suite 201, Dover, DE, 19904 (hereinafter
“Aiuta”).
Any conflicting or deviating terms and conditions of the user shall not
be binding unless we expressly agree to them in writing.
0. Beta Services
This Section governs your use of services or features that Aiuta offers
on an alpha, preview, early access, or beta basis (“Beta
Services”). Beta Services are offered “as-is” to allow
testing and evaluation.
Aiuta makes no representations or warranties for Beta Services,
including any warranty that Beta Services will be generally available,
uninterrupted or error-free, or that Content will be secure or not lost
or damaged. Except to the extent prohibited by law, Aiuta expressly
disclaims all warranties for Beta Services, including any implied
warranties of merchantability, satisfactory quality, fitness for a
particular purpose, non-infringement, or quiet enjoyment, and any
warranties arising out of any course of dealing or usage of trade.
1. Our App
1.1 The App allows you to virtually try-on
various styles and trends, request styling advice, upload individual
photos, save outfits in personal lists and explore items for purchase
(“Services”). As a fashion community, Aiuta offers a
platform to exchange ideas about fashion with other users, to follow
them, to share and discuss outfits and individual pieces with them, to
follow one's favorite brands and bloggers, and to create and
consume various media fashion messages in a simple and uncomplicated
way.
1.2 The basic offer of the app is free of
charge.
1.3 The App is provided for mobile devices
(smartphone or tablet) with a current iOS or Android operating system in
English (“Mobile App”). An internet
connection is required to use the App, for which the telecommunications
provider selected by the user may charge a separate fee. The App is also
accessible to a limited extent via a web browser extension
(“Extension”).
1.4 The Mobile App may be downloaded to the
user's end device via the Apple App Store or Google Play
distribution platforms. Prior registration may be required for the use
of these distribution platforms and the terms and conditions of the
respective platform provider apply.
2. Term, Registration and Termination
2.1 These Terms take effect when you first
use the Services and remain in effect until terminated. You may
terminate these Terms at any time for any reason by discontinuing the
use of the Beta Services and/or the Services and Content. We may
terminate these Terms immediately upon notice to you if you materially
breach any portion of the Terms, if there are changes in relationships
with third party technology providers outside of our control, or to
comply with law or government requests. We may suspend your access to
the Services if you do not comply with these Terms, if your use poses a
security risk to us or any third party, or if we suspect that your use
is fraudulent or could subject us or any third party to liability.
2.2 Upon termination, you will stop using
the Beta Services and/or the Services and you will promptly return or,
if instructed by us, destroy any Confidential Information.
2.3 When using the App you may be required
to register. If you have not already used the App, the Beta Services,
and/or the Services, registering will create a contract of use between
you and Aiuta as soon as you click on the “Register”or
“Sign-up”button and thereby complete the registration. These
GTC will govern that contract, along with our Privacy Policy, and other
policies or amendments we make thereto from time to time. The App, the
Beta Services, and/or the Services of Aiuta are aimed exclusively at
users over the age of 13. Users under the age of 18 require the consent
of their parents or legal guardians.
2.4 Aiuta offers various registration
options from which you can choose. You may register either by using your
email address or by using a third party login service, e.g. Apple or
Google, using your account there. By registering using a login service,
you allow us access to certain contents of your account. You can set the
scope of this access in individual cases during registration and in the
settings of your account. You will find further information in the
respective terms of use and privacy policy of your registration service.
2.5 Any data you provide must be truthful,
complete, and your data to share. You may not share the confidential or
personal information of others with the App, the Beta Services, and/or
the Services. These rules apply at any point during your interaction
with the App, the Beta Services, and/or the Services, including upon
registration and use. In the case of information marked as voluntary,
you are free to decide whether you wish to provide this information. You
need to choose a user name and a valid e-mail address.
2.6 You may not create more than one
account to benefit from the Beta Services and/or the Services provided
in the free tier of the App. If we believe you are not using the free
tier in good faith, we may charge you standard fees or stop providing
access to the Beta Services and/or the Services.
3. Availability and Warranty
3.1 Aiuta endeavors to keep the App
available without interruption as much as possible and will make
commercially reasonable efforts to do so. However, it is technically
impossible to guarantee uninterrupted accessibility. In particular,
Aiuta is not responsible for internet/network downtimes and especially
not for downtimes in which the App is not available due to technical or
other problems beyond Aiuta's control (e.g. force majeure, third
parties, etc.). Except with respect to the Beta Services, if possible,
you will be informed in advance about planned maintenance work that
restricts availability. Once again, with respect to the Beta Services,
Aiuta expressly disclaims all warranties for Beta Services, including
any implied warranties of merchantability, satisfactory quality, fitness
for a particular purpose, non-infringement, or quiet enjoyment, and any
warranties arising out of any course of dealing or usage of trade.
3.2 Aiuta reserves the right to expand or
modify the App, in particular if this serves technical progress, appears
necessary for legal reasons or to prevent misuse. Except with respect to
the Beta Services, in the event of significant changes that restrict the
scope of functions or the discontinuation of functions, we will inform
you in advance with a reasonable period of notice, unless the change is
urgently required to prevent misuse, to respond to legal changes,
official or court orders or to ensure the security and functionality of
the App.
3.3 Aiuta assumes no responsibility for the
accuracy, legality, completeness and timeliness of third party content
(including other users), in particular for the content and information
on third party websites referred to via links from the App.
3.4 It is technically impossible for Aiuta
to verify the identity of its users. Therefore, Aiuta does not assume
any liability for the correct identity of its users.
3.5 Aiuta, the App, the Beta Services,
and/or the Services may refer you via a link or deep link to third party
websites or apps where you may be asked to make purchases, share
information, or otherwise interact with the third party. You are
responsible, and Aiuta specifically disclaims any liability for your
relationship or interactions with such third parties. You may be subject
to additional terms and conditions, privacy policies, or other policies,
and you are solely responsible for any obligations or liabilities that
may arise from your interaction with such third parties. Please only
utilize such links at your own discretion.
3.6 Aiuta is not required to improve or
update the App or to provide certain content and features in the
relevant App, except to the extent required by statutory law.
4. Content
4.1 You are granted a simple, revocable
license, limited to the term of the contract, to the App and the content
provided within the App by Aiuta or third parties exclusively for the
contractual use of the App and for the use of this content within the
framework of the App and its functionalities, including the sharing
function. You will comply with these Terms and all applicable laws when
using the Beta Services and/or the Services. We and our affiliates own
all rights, title, and interest in and to the Beta Services and/or the
Services. This license does not cover any further use.
4.2 You may provide input to the Beta
Services and/or the Services (“Input”), and receive output
generated and returned by the Beta Services and/or the Services based on
the Input (“Output”). Input and Output are collectively
“Content.” As between the parties and to the extent
permitted by applicable law, you own all Input. Subject to your
compliance with these Terms, Aiuta hereby owns all Output. This means
you are not allowed to use Output for any purpose, including commercial
purposes such as sale or publication. Aiuta may use Content to provide
and maintain the Beta Services and/or the Services, comply with
applicable law, and enforce our policies.
4.3 Artificial intelligence and machine
learning are rapidly evolving fields of study. We are constantly working
to improve the Beta Services and/or the Services to make them more
accurate, reliable, safe and beneficial. Given the probabilistic nature
of machine learning, use of the Beta Services and/or the Services may in
some situations result in incorrect Output that does not accurately
reflect real clothes items, faces, or body proportions. You should
evaluate the accuracy of any Output as appropriate for your use case,
including by using human review of the Output.
4.4 You grant Aiuta a non-exclusive,
transferable, sub-licensable and worldwide license to reproduce,
publicly reproduce and make available the content uploaded by you,
including any Input, via the App and to edit it as necessary. With
regard to individual parts posted by you, the license is unlimited in
time. This license is limited to the purpose of providing the App and
its functionalities and promoting Aiuta and the App through our website
and social media presence, such as Facebook, Instagram, TikTok or in
online advertisements.
4.5 For all content uploaded by you,
including any Input, via the App, you are responsible for ensuring that
you are sufficiently authorized to use and license it to Aiuta and that
no third party rights prevent the use of the Content.
4.6 Output generated by generation features
of the App may be subject to third party licenses, including, without
limitation, open source licenses.
4.7 We appreciate feedback, comments,
ideas, proposals and suggestions for improvements. If you provide any of
these things, we may use it or them without restriction or compensation
to you. For the avoidance of doubt, any feedback, comments, ideas,
proposals and suggestions you make regarding the App, the Services or
the Beta Services will be treated as property of Aiuta.
4.8 You may not (i) use the Beta Services
and/or the Services in a way that infringes, misappropriates or violates
any person's rights; (ii) reverse assemble, reverse compile,
decompile, translate or otherwise attempt to discover the source code or
underlying components of models, algorithms, and systems of the Beta
Services and/or the Services (except to the extent such restrictions are
contrary to applicable law); (iii) use output from the Beta Services
and/or the Services to develop models that compete with Aiuta; or (iv),
send us any personal information of children under 13 or the applicable
age of digital consent. You will comply with any rate limits and other
requirements in our documentation. You may use the Beta Services and/or
the Services only in geographies currently supported by Aiuta.
4.9 Any third party software, the Beta
Services and/or the Services, or other products you use in connection
with the Beta Services and/or the Services are subject to their own
terms, and we are not responsible for third party products.
5. Community Standards
5.1 You shall behave respectfully towards
other users at all times when using the App. This App maintains a
zero-tolerance policy towards objectionable content and abusive
behavior. In particular, it is prohibited to:
-
distribute or upload pornographic, obscene, immoral, politically
radical, racist, violent, defamatory or offensive or any other illegal
content via the App;
-
threaten, harass, insult, defame, or engage in any form of verbal or
physical abuse towards other users;
-
disseminate images of persons without their consent or otherwise
infringe upon the personal rights of third parties;
- distribute content that infringes the rights of third parties;
- use the App to prepare, arrange, or carry out illegal acts;
-
conduct attacks on the functionality of the App, such as mass emailing
(SPAM), hacking attempts, brute force attacks, the use or sending of
spyware, viruses and worms;
-
use the App for network marketing, multi-level marketing (MLM),
referral marketing, structural distribution or other commercial
purposes.
Users found engaging in any of the above activities are subject to
immediate account suspension or termination, at the sole discretion of
the App administrators, in addition to any legal consequences that may
result from such actions.
5.2 In the event of violations of the GTC,
Aiuta may, in its sole discretion, temporarily or permanently block you
and/or delete individual content uploaded by you. Further claims of
Aiuta remain unaffected by this.
6. Indemnification
6.1 You will defend, indemnify, and hold
harmless us, our affiliates, and our personnel, from and against any
claims, losses, and expenses (including attorneys' fees) arising
from or relating to your use of the Beta Services and/or the Services,
including your Content, products or services you develop or offer in
connection with the Beta Services and/or the Services, and your breach
of these Terms or violation of applicable law.
7. Liability of Aiuta
7.1 Disclaimer. THE BETA SERVICES AND/OR
SERVICES ARE PROVIDED “AS IS.” EXCEPT TO THE EXTENT
PROHIBITED BY LAW, WE AND OUR AFFILIATES AND LICENSORS MAKE NO
WARRANTIES (EXPRESS, IMPLIED, STATUTORY OR OTHERWISE) WITH RESPECT TO
THE BETA SERVICES AND/OR SERVICES, AND DISCLAIM ALL WARRANTIES INCLUDING
BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, SATISFACTORY QUALITY, NON-INFRINGEMENT, AND QUIET
ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR
TRADE USAGE. WE DO NOT WARRANT THAT THE BETA SERVICES AND/OR THE
SERVICES WILL BE UNINTERRUPTED, ACCURATE OR ERROR FREE, OR THAT ANY
CONTENT WILL BE SECURE OR NOT LOST OR ALTERED.
7.2 Limitations of Liability. NEITHER WE
NOR ANY OF OUR AFFILIATES OR LICENSORS WILL BE LIABLE FOR ANY INDIRECT,
INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING
DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, OR DATA OR OTHER LOSSES,
EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OUR
AGGREGATE LIABILITY UNDER THESE TERMS SHALL NOT EXCEED THE GREATER OF
THE AMOUNT YOU PAID FOR THE SERVICE THAT GAVE RISE TO THE CLAIM DURING
THE 12 MONTHS BEFORE THE LIABILITY AROSE OR ONE HUNDRED DOLLARS ($100).
THE LIMITATIONS IN THIS SECTION APPLY ONLY TO THE MAXIMUM EXTENT
PERMITTED BY APPLICABLE LAW.
8. Confidentiality & Data Protection
8.1 You may be given access to Confidential
Information of Aiuta, its affiliates and other third parties. You may
use Confidential Information only as needed to use the Beta Services
and/or the Services as permitted under these Terms. You may not disclose
Confidential Information to any third party, and you will protect
Confidential Information in the same manner that you protect your own
confidential information of a similar nature, using at least reasonable
care. Confidential Information means nonpublic information that Aiuta or
its affiliates or third parties designate as confidential or should
reasonably be considered confidential under the circumstances, including
software, specifications, and other nonpublic business information.
Confidential Information does not include information that: (i) is or
becomes generally available to the public through no fault of yours;
(ii) you already possess without any confidentiality obligations when
you received it under these Terms; (iii) is rightfully disclosed to you
by a third party without any confidentiality obligations; or (iv) you
independently developed without using Confidential Information. You may
disclose Confidential Information when required by law or the valid
order of a court or other governmental authority if you give reasonable
prior written notice to Aiuta and use reasonable efforts to limit the
scope of disclosure, including assisting us with challenging the
disclosure requirement, in each case where possible.
8.2 You must implement reasonable and
appropriate measures designed to help secure your access to and use of
the Beta Services and/or the Services. If you discover any
vulnerabilities or breaches related to your use of the Beta Services
and/or the Services, you must promptly contact Aiuta at
support@aiuta.com and provide
details of the vulnerability or breach.
8.3 If you use the Beta Services and/or the
Services to process personal data, you must provide legally adequate
privacy notices and obtain necessary consents for the processing of such
data, and you represent to us that you are processing such data in
accordance with applicable law.
8.4 Information on the collection and
processing of personal data can be found in the App settings and under
Privacy Policy.
9. Withdrawal Right
9.1 As a consumer, you are entitled to a
right of withdrawal from your contract for the free version of the App.
You will find the corresponding instructions of withdrawal in the
Annex.
10. Final Provisions
10.1 We may amend these Terms from time to
time by posting a revised version on the website, or if an update
materially adversely affects your rights or obligations under these
Terms we will provide notice to you either by emailing the email
associated with your account or providing an in-product notification.
Those changes will become effective no sooner than 30 days after we
notify you. All other changes will be effective immediately. Your
continued use of the Beta Services and/or the Services after any change
means you agree to such change.
10.2 If you are a merchant, a legal entity
under public law or a special fund under public law, the place of
jurisdiction for all disputes arising from contractual relationships
between you and us is the registered office of Aiuta USA, Inc (Dover,
DE, US).
10.3 These Terms do not create a
partnership, joint venture or agency relationship between you and Aiuta
or any of Aiuta's affiliates. Aiuta and you are independent
contractors and neither party will have the power to bind the other or
to incur obligations on the other's behalf without the other
party's prior written consent.
10.4 You may not use Aiuta's or any of
its affiliates' names, logos, or trademarks, without our prior
written consent.
10.5 The Beta Services and/or the Services
were developed solely at private expense and are commercial computer
software and related documentation within the meaning of the applicable
U.S. Federal Acquisition Regulation and agency supplements thereto.
10.6 You may not assign or delegate any
rights or obligations under these Terms, including in connection with a
change of control. Any purported assignment and delegation shall be null
and void. We may assign these Terms in connection with a merger,
acquisition or sale of all or substantially all of our assets, or to any
affiliate or as part of a corporate reorganization.
10.7 All notices will be in writing,
including by email. We may notify you using the registration information
you provided or the email address associated with your use of the Beta
Services and/or the Services. Service will be deemed given on the date
of receipt if delivered by email or on the date sent via courier if
delivered by post. Aiuta accepts service of process at this address:
Aiuta USA, Inc., DOVER, DE, 19904, 850 NEW BURTON ROAD, SUITE 201, Attn:
legal@aiuta.com.
10.8 If you do not comply with these Terms,
and Aiuta does not take action right away, this does not mean Aiuta is
giving up any of our rights. Except as provided in the “Liability of Aiuta” section, if any part of these Terms is determined to be invalid
or unenforceable by a court of competent jurisdiction, that term will be
enforced to the maximum extent permissible and it will not affect the
enforceability of any other terms.
10.9 The Beta Services and/or the Services
may not be used in or for the benefit of, exported, or re-exported (a)
into any U.S. embargoed countries (collectively, the “Embargoed
Countries”) or (b) to anyone on the U.S. Treasury
Department's list of Specially Designated Nationals, any other
restricted party lists (existing now or in the future) identified by the
Office of Foreign Asset Control, or the U.S. Department of Commerce
Denied Persons List or Entity List, or any other restricted party lists
(collectively, “Restricted Party Lists”). You represent and
warrant that you are not located in any Embargoed Countries and not on
any such restricted party lists. You must comply with all applicable
laws related to Embargoed Countries or Restricted Party Lists, including
any requirements or obligations to know your end users directly.
10.10 You acknowledge that if you violate
or breach these Terms, it may cause irreparable harm to Aiuta and its
affiliates, and Aiuta shall have the right to seek injunctive relief
against you in addition to any other legal remedies.
10.11 These Terms and any policies
incorporated in these Terms contain the entire agreement between you and
Aiuta regarding the use of the Beta Services and/or the Services and,
other than any Service specific terms of use or any applicable
enterprise agreements, supersedes any prior or contemporaneous
agreements, communications, or understandings between you and Aiuta on
that subject.
10.12 These Terms will be governed by the
laws of New York, excluding New York's conflicts of law rules or
principles. Except as provided in the “Dispute Resolution” section, all claims arising out of or relating to these Terms
will be brought exclusively in the federal or state courts of San
Francisco County, California, USA.
11. Complaint Management
11.1 If you believe that third party
content or the conduct of any other user infringes your rights, you may
send us a notice to
feedback@aiuta.com.
11.2 If an unlawful act or information
becomes evident from your complaint, Aiuta will make your complaint
available to the third party/user and ask the third party/user for a
statement. If the third party/user does not refute your complaint, Aiuta
will remove the content within the scope of its technical possibilities
or take measures against the user.
12. Dispute Resolution
YOU AGREE TO THE FOLLOWING MANDATORY ARBITRATION AND CLASS ACTION WAIVER
PROVISIONS:
(a) MANDATORY ARBITRATION. You and Aiuta agree to resolve any past or
present claims relating to these Terms or our the Beta Services and/or
the Services through final and binding arbitration, except that you have
the right to opt out of these arbitration terms, and future changes to
these arbitration terms, by filling out this form within 30 days of
agreeing to these arbitration terms or the relevant changes.
(b) Informal Dispute Resolution. We would like to understand and try to
address your concerns prior to formal legal action. Before filing a
claim against Aiuta, you agree to try to resolve the dispute informally
by sending us notice at
legal@aiuta.com of your name, a
description of the dispute, and the relief you seek. If we are unable to
resolve a dispute within 60 days, you may bring a formal proceeding. Any
statute of limitations will be tolled during the 60-day resolution
process. If you reside in the EU, the European Commission provides for
an online dispute resolution platform, which you can access at
https://ec.europa.eu/consumers/odr.
(c) Arbitration Forum. Either party may commence binding arbitration
through ADR the Beta Services and/or the Services, an alternative
dispute resolution provider. The parties will pay equal shares of the
arbitration fees. If the arbitrator finds that you cannot afford to pay
the arbitration fees and cannot obtain a waiver, Aiuta will pay them for
you. Aiuta will not seek its attorneys' fees and costs in
arbitration unless the arbitrator determines that your claim is
frivolous.
(d) Arbitration Procedures. The arbitration will be conducted by
telephone, based on written submissions, video conference, or in person
in New York or at another mutually agreed location. The arbitration will
be conducted by a sole arbitrator by ADR the Beta Services and/or the
Services under its then-prevailing rules. All issues are for the
arbitrator to decide. The amount of any settlement offer will not be
disclosed to the arbitrator by either party until after the arbitrator
determines the final award, if any.
(e) Exceptions. This arbitration Section does not require arbitration of
the following claims: (i) individual claims brought in small claims
court; and (ii) injunctive or other equitable relief to stop
unauthorized use or abuse of the Beta Services and/or the Services or
intellectual property infringement.
(f) NO CLASS ACTIONS. Disputes must be brought on an individual basis
only, and may not be brought as a plaintiff or class member in any
purported class, consolidated, or representative proceeding. Class
arbitrations, class actions, private attorney general actions, and
consolidation with other arbitrations are not allowed. If for any reason
a dispute proceeds in court rather than through arbitration, each party
knowingly and irrevocably waives any right to trial by jury in any
action, proceeding, or counterclaim. This does not prevent either party
from participating in a class-wide settlement of claims.
(g) Mass Filings. If, at any time, 30 or more similar demands for
arbitration are asserted against Aiuta or related parties by the same or
coordinated counsel or entities (“Mass Filing”), ADR the
Beta Services and/or the Services will randomly assign sequential
numbers to each of the Mass Filings. Claims numbered 1-10 will be the
“Initial Test Cases” and will proceed to arbitration first.
The arbitrators will render a final award for the Initial Test Cases
within 120 days of the initial pre-hearing conference, unless the claims
are resolved in advance or the parties agree to extend the deadline. The
parties will then have 90 days (the “Mediation Period”) to
resolve the remaining cases in mediation based on the awards from the
Initial Test Cases. If the parties are unable to resolve the outstanding
claims during this time, the parties may choose to opt out of the
arbitration process and proceed in court by providing written notice to
the other party within 60 days after the Mediation Period. Otherwise,
the remaining cases will be arbitrated in their assigned order. Any
statute of limitations will be tolled from the time the Initial Test
Cases are chosen until your case is chosen as described above.
(h) Severability. If any part of this Section is found to be illegal or
unenforceable, the remainder will remain in effect, except that if a
finding of partial illegality or unenforceability would allow Mass
Filing or class or representative arbitration, this Section will be
unenforceable in its entirety. Nothing in this Section will be deemed to
waive or otherwise limit the right to seek public injunctive relief or
any other non-waivable right, pending a ruling on the substance of such
claim from the arbitrator.
Annex
Instructions on withdrawal
Right of withdrawal
You have the right to withdraw from this contract within 14 days without
giving any reason.
The withdrawal period will expire after 14 days from the day of the
conclusion of the contract.
To exercise the right of withdrawal, you must inform us (Aiuta USA,
Inc., DOVER, DE, 19904, 850 NEW BURTON ROAD, SUITE 201, Email:
legal@aiuta.com) of your decision
to withdraw from this contract by an unequivocal statement (e.g. a
letter sent by post, fax or e-mail). You may use the attached model
withdrawal form, but it is not obligatory.
To meet the withdrawal deadline, it is sufficient for you to send your
communication concerning your exercise of the right of withdrawal before
the withdrawal period has expired.
Effects of withdrawal
If you withdraw from this contract, we shall reimburse to you all
payments received from you, without undue delay and in any event not
later than 14 days from the day on which we are informed about your
decision to withdraw from this contract. We will carry out such
reimbursement using the same means of payment as you used for the
initial transaction, unless you have expressly agreed otherwise; in any
event, you will not incur any fees as a result of such reimbursement.