Terms - ESENCA Sizing

Terms and Conditions

These terms and conditions are entered into by and between You and Esenca Digital Workwear SRL (“Company,”, “Esenca”, “we,” “our,” or “us”). The following terms and conditions, together with any documents they expressly incorporate by reference (collectively “Terms and Conditions”), govern your access to and use of https://www.esencasizing.com/ including any content, functionality, and services offered on or through https://www.esencasizing.com/ (the “Website”).

Please read the following Terms & Conditions carefully as they affect your legal rights. These are binding, refer to and supplement any other agreement you might have entered into with the Company. If You don’t have any other agreement in place with the Company, please refer to our EULA, available at https://www.esencasizing.com/eula.

We may revise and update these Terms of Service from time to time in our sole discretion. All changes are effective immediately when we post them and apply to all access to and use of the Website thereafter.

Continuing to use the Website following the posting of revised Terms of Service means that you accept and agree to the changes. You are expected to check this page each time you access this Website so you are aware of any changes, as they are binding on you.

Esenca is a company engaged in researching and developing great State-of-the-Art Artificial Intelligence, Machine Learning, and Computer Vision techniques that are used in measuring the human body from images. The Esenca solution is a B2B contactless sizing solution for e-commerce and on-site that can integrate with any platforms, creating an all-encompassing system to make the measurement process more comfortable for the user and reduce the required time for provision of reliable measurements.

1. Definitions

For the purposes of this Terms and Conditions, the capitalized terms below shall have the following meaning, provided that the singular includes the plural and vice-versa, and any gender shall include the other genders:

“Affiliate” or “Affiliates” of a Party shall mean any entity or person Controlling, or Controlled by, or under common Control with, such Party, whether directly or indirectly; “Control” (including, with correlative meanings, “Controlling”, “Controlled by”, and “under common Control with”) meaning the power to cause the direction of themanagement of such person or entity, directly or indirectly, whether through ownership of voting securities or otherwise.
“App” shall mean the customized version of the “Esenca App” as already developed by Esenca and as continued to be developed by Esenca, including but not limited to any changes to the App as part of providing Updates, Upgrades and Maintenance Services.
“Authorized Users” shall mean you and any and all of Your Affiliated entities and contractors.
“Confidential Information” means, collectively and indistinctly, all information regarding a Party and/or its activities, business or clients that are not generally known to the public or that constitutes a trade secret under any applicable law, regardless of how such information is disclosed to or learned by the recipient Party. “Confidential Information” will include, but not be limited to, data, technical information regarding a Party’s products, services, equipment, technical data, trade secrets, know-how, research, plans, software, inventions, patent applications, processes, techniques, hardware configuration information, agreements with third parties, lists of, or information relating to, employees, consultants, Esenca’s and customers of a Party, price lists, pricing methodologies, cost data, market share data, marketing plans, licenses, contract information, business plans, financial forecasts, historical financial data, budgets or other business information of a Party. This definition shall not limit any definition of confidential information or trade secrets or any equivalent terms under any applicable law.
“Default” shall have the meaning set forth in Section
“Documentation” shall mean user guides, support materials, data sheets, manuals, instructions and computer-readable files regarding the use, operations, functionality and incident and problem management of the services related to the App, as well as other technical information related thereto.
“Force Majeure Event” shall mean the occurrence of an event that is beyond a Party’s (the “Affected Party”) reasonable control, that the Affected Party could not reasonably foresee and to the extent that the Affected Party was unable to reasonably avoid orovercome such event or condition or its consequences, including but not limited to natural disasters, catastrophic events or similar events, such as nuclear accidents, fire, flood, typhoons or earthquakes, war, riots, acts of terrorism, sabotage or revolutions, or restriction measures taken by authorities resulting from or in connection with currency and trade restrictions, embargoes, sanctions, epidemics or pandemics, but not strikes, lockouts of Esenca’s or any of its subcontractors’ personnel.
“Intellectual Property Rights” shall mean any and all intellectual and industrial property rights and other similar proprietary rights in any jurisdiction, whether owned or held for use under license, whether registered or unregistered, including, but not limited to, such rights in and to trademarks, logos, trade names, designs, software (including data files, source code, object code, application programming interfaces, databases and other software-related specifications and documentation), copyrightable works, inventions, discoveries, improvements, know-how and tradesecrets, whether or not protected or protectable under law, via patent, utility model, copyright, trademark application or otherwise, as well as claims, causes of action and defenses relating to the enforcement of any of the foregoing. In each case above, “Intellectual Property Rights” include also any registrations of, applications to register, and renewals and extensions of, any of the foregoing with or by any governmental authority in any jurisdiction.
“Software” shall mean, collectively, any and all computer software and code, including assemblers, applets, compilers, source code, source code listings, object code, data (including image and sound data), design tools and user interfaces, in any form or format, however fixed. Data including image and sound data, shall not, in themselves, represent software. “Software” also includes any and all Documentation used in the development, Updates or Upgrades of the Software (including but not limited to, design or development specifications, error reports, and related correspondence and memoranda), as well as the end-user instruction manual that usually accompanies the Software instructing end users in the use thereof, in both printed and electronic form.
“Updates” shall mean any and all updates, fixes, patches, revisions, functional additions, modifications, enhancements, new versions and releases of the Services.
“Upgrades” shall mean a new release of the Services (including Software provided through the Services) leading to changed or improved functionality in addition to functionality defined in the related specifications and any previous release(s).
You/Your(s) means the contracting party, individual accessing or using the Application or the company, or other legal entity on behalf of which such individual is accessing or using the Application, as applicable.

The above Esenca entity and the above You(r) (entity) are hereinafter collectively referred to as the “Parties” or each individually as a “Party” to this Agreement.

2. Objectives of the App

The objective of the project is to provide the Beneficiary with an intuitive measuring process takes the users through an intelligent guidance-based tutorial, for the purpose of for the digitally assisted generation of body measurements, which ensures that measurements are taken in optimal circumstances, and that the results are as accurate as possible.

3. Intended Use of the App

The App’s intended use is for documentation (storage & archiving / filing), communication, simple search and data representation/ improvement and thus under this Agreement limited to providing information.
The App does not qualify as a medical device (any instrument, apparatus, implement, machine, appliance, implant, reagent for in vitro use, software, material or other similar or related article, intended by the manufacturer to be used, alone or in combination for a medical purpose) in the Territory due to its functionality, design and features or other services developed or provided by Esenca under the Agreement.

4. Use and processing of collected information

As a professional IT Company, Esenca is responsible for requesting, collecting and gathering all necessary information from the You, identifying and analyzing all the needs and recommending solutions which are relevant, efficient and consistent with the purpose of the App.
Esenca shall freely and independently arrange its activities, which it undertakes to pursue with all due diligence and in compliance with all laws and regulations applicable to these activities, including but not limited to the relevant legal and statutory provisions relating to labor laws and social legislation applicable to the personnel assigned to the performance of its services.
Esenca shall bear all costs occasioned by its activity and all social security and tax charges in relation to its business.
Unless otherwise agreed, Esenca shall provide all tools, supplies and any other means necessary to fulfil its obligations.
Esenca will perform the services related to the use of the App with its employees or, as the case may be, its subcontractors. Esenca shall ensure that all personnel involved in the performance of services related the App are sufficiently skilled, experienced and equipped to carry out the services in a professional manner. The staff assigned by Esenca, whether own employees or subcontractors, to perform the services related to the App, remains under Esenca’s sole responsibility.
It is expressly understood that Esenca and any beneficiary of its App are independent contractors. Neither party will have or represent that it has the right, power or authority to bind, contract or commit on behalf of the other party. In no event will the agreementor these Terms and Conditions be deemed to create any agency, partnership or joint venture between the Parties.

5. Service Levels and Support and Maintenance Services

Support and Maintenance Services include: advice and support for the App by e-mail or phone. The said services do not include the elimination of system errors for solutions integrated by the customer or third-parties, as well as installation services, configuration, system or application-related services of Esenca that exceed the scope defined herein.
The support service in Section 11.1 (ii) has the following coordinates: (i) response time for support requests within a maximum of 1 working day, for complete system breakdowns a maximum of 4 hours; (ii) support requests via email [email protected] or telephone are processed during working hours, Monday to Friday, from 09.00 to 18.00 (Eastern European Time, Bucharest time).

6. Intellectual Property Rights

With the exception of the provision in Section 6.2, Esenca holds and retains all and any title and interest in and to the App and the related Software and Documentation, as well as in and to any Intellectual Property Rights associated therewith and thereto that are originated from Esenca. Accordingly, nothing in this Agreement shall be interpreted as a transfer, in whole or in part, of any rights in the App (and/or in the related Software and Documentation) to the Beneficiary, to the Authorized Users or to any other third party. The preceding shall also apply to any improvement, development, adaptation, alteration, idea, discovery or any Intellectual Property Rights of the App (and/or the related Software or Documentation) that are in any way created, prepared, authored, edited, conceived or reduced to practice by Esenca individually or jointly with others relating in any way to the App (and/or to the related Software or Documentation).
The release of information and/or data by the You to Esenca that could constitute Intellectual Property Rights shall not be deemed to be an assignment of the Intellectual Property Rights held by You. The Intellectual Property Rights shall remain with You. Esenca is granted a non-exclusive right to use this information and/or data only for the purposes of the agreement between the parties.
For avoidance of any doubt:
1. Both parties own various Intellectual Property Rights that have been developed independently of the Esenca App and are not specifically designed for use in the Esenca App. These Intellectual Property Rights shall remain with the respective Party and nothing in this Agreement is to be construed as constituting transfer thereof to the other party;
2. any general know-how, methodology, processes and experience (“General Knowledge”) gained by either party prior or during the performance of this Agreement or experience gained by the same does not constitute Intellectual Property Rights of the other Party provided such general knowledge does not constitute Confidential Information of the other Party.
You retain ownership of any Intellectual Property Rights in content or logo (and any trademark relating to it) provided to the Esenca for the integration thereof into the App. To such purpose, Esenca is granted a limited right to access and use such content or logo for the performance under these Terms and Conditions.

These Terms and Conditions shall not limit You in any way to work on any other project, on your own and/or with any other third party for any service that is related to the subject matter your agreement with Esenca e.g. another app (“a Project“). Such collaborations shall not affect the rights or obligations of the parties under your agreement with Esenca. You shall be entitled to use the services or related to the App for a Project without, for the avoidance of doubt, violating Esenca’s pre-existing Intellectual Property Rights.

7. Intellectual Property and Data Protection Infringement

Esenca shall defend, indemnify and hold harmless the Authorized Users from and against any and all losses, damages, costs and expenses incurred as a result of any claim, suit or proceeding brought against an Authorized User arising out of a claim that the Services and/or Deliverables (or any use or other activity related thereto) infringe any Intellectual Property Rights of a third party or infringe Data Protection Laws.
You shall (i) notify Esenca without undue delay in writing of any such claim, suit or proceeding as indicated in Section 7.1, (ii) allow Esenca to control the defense of and potentially settle such claim, suit or proceeding and provide reasonable assistance (at Esenca’s expense) in connection thereto.
In the event that the services provided in relation to the use of the App or any part thereof is held to constitute an infringement of Intellectual Property Rights and/or its further use, distribution or other disposal is prohibited or restricted, Esenca shall promptly, at its own expense and at its option, either:
1. procure the licenses necessary for the Authorized Users to exercise the rights and licenses granted hereunder; or
2. replace the infringing services and/or deliverables related to the App with non-infringing services and/or deliverables of equivalent function and performance; or
3. modify the services and/or deliverables so that it becomes non-infringing, without detracting from their essential function or performance.

8. Confidentiality

Each Party (including the Parties and their respective Affiliates) agrees (i) not to disclose any other Party’s Confidential Information that they become aware of during the term of this Agreement to third parties without the other Party’s prior consent, (ii) nor to use such Confidential Information for purposes other than performance of its obligations under the Agreement. Disclosure of such Confidential Information shall be limited to those officers, employees, consultants and/or agents of the receiving Party who have a need to know and who are bound by confidentiality obligations no less stringent than those contained herein. These confidentiality and non-use obligations shall survive for a period of five (5) years from expiration or termination of the Agreement, except with respect to information that constitutes a trade secret or proprietary technical knowledge in which case such obligations shall survive for so long as such information is not publicly known.
Notwithstanding the above, Esenca will ensure Chinese Wall practices, barrier intended to block the exchange of information and Confidential Information with any of its investors, shareholders, agents which use the App or are in business sector similar Esenca’s other Party herein.
The obligations with respect to Confidential Information set forth in Section 8.1 above shall not include information which the receiving Party can demonstrate:
1. is in the public domain as at the date of the Terms and Conditions or subsequently enters the public domain other than as a result of a breach of law or agreement;
2. was known to the receiving Party prior to the date of disclosure of the information by the disclosing Party;
3. is acquired from a third party having the right to disclose the information to the receiving Party without any breach of obligation of confidence (provided that the receipt of information does not constitute a breach of an obligation of confidence or a breach of these Terms and Conditions);
4. is independently developed by the receiving Party without reliance on, use of, or strategic guidance derived from, any Confidential Information; or
5. the receiving Party is required to disclose by law or any stock exchange, regulatory body, court or governmental agency or authority, provided that, to the extent legally feasible, the receiving Party notifies the disclosing Party prior to such disclosure and co-operates with the disclosing Party in the event the disclosing Party choose to legally contest and avoid such disclosure or otherwise seek confidential treatment.

9. Warranties

Esenca warrants to You that:
1. Esenca has and will during the term of the Agreement maintain all the Intellectual Property Rights related to the App in order to provide the services related to the App and to grant sufficient rights and licenses to You as to allow You and your Authorized Users to use the App for Your business purposes;
2. The App does not and will not contain any malicious program code or instructions that have been constructed with the intent to damage or adversely affect any Software or the operation or business of any Authorized User;
3. Esenca shall comply with all applicable laws and regulations in the performance of its obligations under these Terms and Conditions;
4. Esenca further warrants to perform all of its undertakings with promptness, diligence and efficiency in a professional manner and that Esenca’s personnel has the requisite skills and experiences to provide the services related to the App. Esenca shall at all times have adequate personnel and Resources for the due fulfilment of all of its obligations under the Agreement.
You warrant to Esenca that:
1. You have and will during the term of the agreement concluded with Esenca to a reasonable extent maintain Intellectual Property Rights related to the trademarks, logos, content, data and any other information or materials provided to the Esenca in order to allow the latter to perform the obligations under this Agreement and to grant the same Esenca sufficient rights and licenses to such purpose;
2. You shall comply with all applicable laws and regulations in the performance of its obligations under these Terms and Conditions;
3. You further warrant to perform all of its undertakings with promptness, diligence and efficiency in a professional manner and that You shall at all times have adequate personnel and resources for the due fulfilment of all of your obligations under the agreement with Esenca.

10. Remedies for breach of warranty

Any deviation from any of the obligations under this Agreement, in particular Section 9 shall be deemed a “Default”. A defaulting Party shall have an obligation to at its own cost promptly, and no later than thirty (30) days from the other Party’s notice hereof (or such other time period agreed upon by the Parties in writing), remedy any Default.
If a defaulting Party fails to remedy any Default as set forth in Section 10.1, the other Party may set in writing a reasonable final deadline for rectification. If the Default has not been remedied when such deadline has expired, the non-defaulting Party shall be entitled to terminate the relevant agreement and claim damages. If a Default has a material negative impact on the services related to the App, a Party shall then also have the right to terminate this Agreement.
A Party shall not be liable for Defaults if (i) the Default solely results from an act of the other Party or any other Party’s Contractor and (ii) such defaulting Party without undue delay has notified the other Party thereof in writing and stated the reasons therefore. In any event, the defaulting Party shall always provide reasonable assistance in order to mitigate any adverse consequences of Defaults.

11. Liability

Either Party shall be liable for any and all losses and damages incurred by the other Party arising from or related to the non-fulfilment of any of its warranties or obligations under the Agreement. Neither Party shall be liable for any indirect, incidental, special, exemplary, punitive, or consequential damages (such as, loss of business, revenue, goodwill or anticipated savings).
No limitation or exclusion of liability shall have effect with respect to 7 (Intellectual Property Infringement), 8 (Confidentiality); (ii) claims related to death or bodily injury or damage; (iii) claims related to tangible property damage and (iv) losses or damages caused by gross negligence or willful misconduct.

12. Force Majeure

Neither You nor Esenca shall be held responsible for the non-performance of any obligation under these Terms and Conditions and/or any agreement to the extent that such non-performance results from a Force Majeure Event and provided that the Affected Party has promptly notified the other Party in writing of the occurrence of such Force Majeure Event. The Affected Party shall use every endeavor to minimize the impact and duration of such Force Majeure Event at its costs.

As soon as the Force Majeure Event ends, the Affected Party shall promptly notify the other Party thereof in writing and promptly resume the fulfilment of its obligations under the Agreement.

13. Reporting adverse effects

If Esenca receives complaints or other relevant post marketing surveillance data about Your products, Esenca shall forward the information You within one working day and shall provide any reasonable additional information and assistance upon request.

14. Assignment

Neither Party shall assign its rights or obligations under the Terms and Conditions or under any agreement between the Parties without the prior consent of the other Party. Notwithstanding the foregoing, You may assign your capacity under these Terms and Conditions or under any agreement between the Parties, entirely or partly, or delegate its obligations, upon written notice, to any of Your Affiliates. Similarly, the Esenca may change its corporate structure or ownership (including, without limitation, by sale of all or substantially all of its assets, by merger with another company, etc.), provided that such change does not affect the quality of the App to be provided according to these Terms and Conditions and does not negatively affect the solvency of the Esenca.

15. Severability

If any provision of these Terms and Conditions or of any agreement is, or should become entirely or partially invalid or unenforceable, this shall not affect the validity of any other provisions, which shall remain in full force and effect. To the extent permitted by law, any such invalid or unenforceable provision shall be replaced by a valid and enforceable provision which as most closely as possible reflects the intentions of the Parties while undertaking these Terms and Conditions or any agreement or, considering the meaning and purpose of these Terms and Conditions or of any Agreement, the potential intentions of the Parties had they considered the point at the time of concluding the Agreement or any Agreement. The foregoing shall also apply if the Agreement or any Agreement contains any regulatory gap.