1.1
Bitello Studio S.R.L. (hereinafter referred to as Bitello Studio) offers an app-based virtual wardrobe administration software (hereinafter referred to as DressUp Club).
1.2
The following General Terms and Conditions (hereinafter referred to as “GTC”) apply to all user contracts (hereinafter referred to as “contracts”) concluded between Bitello Studio S.R.L. and customers via the “DressUp Club” platform.
1.3
Deviating terms and conditions of the customer do not apply to contracts, unless Bitello Studio S.R.L. expressly agrees to their application in writing.
2.1
The offer provided on DressUp Club to use the designated and described web-based software does not represent a binding offer by Bitello Studio S.R.L.
2.2
The use of the software of DressUp Club requires the creation of a customer account (in the following: account). For the creation of the account, the required data must be specified. By confirming the creation of the account, the customer submits a binding offer to conclude a contract for the free of charge use of the software for trial purposes. DressUp Club can accept this offer by setting up and granting access to the account or by sending a notification to the indicated e-mail address with the login details for the account set up.
2.3
By concluding a contract for the free of charge use according to paragraph 2.2 DressUp Club grants the right to the customer to use the software after the granting of the access to the software or the notification of the login details by Dress Up Club exclusively with feature limitation subject to change any time. There is no time limit for the trial period.
2.4
The preparation of an offer and the conclusion of a fee-based contract with monthly billing, the contract is concluded in the account itself. For this purpose the customer must select the appropriate software version and confirm his selection. By confirming and sending this information, the customer concludes a contract with DressUp Club for the fee-based use of the software with monthly or annual billing.
3.1
For the duration of the concluded contract DressUp Club provides the customer access to the selected version of the software on a Software-as-a-Service (hereinafter: SaaS) basis via the internet. The scope of functionalities for the booked software version, including any additional functionalities, arises from the description provided on the DressUp Club website under the headings “Features”.
3.2
Additional functionalities under an unrestricted scope of use may only be used to an appropriate extent (“Fair Use”), in particular to ensure the functionality and effectiveness of providing service to all users. In cases of doubt, inappropriate use is deemed to exist when said use – depending on the maximum number of clothes and outfits that can be managed by a given software version – exceeds three times the monthly use of the additional functionality.
4.1
DressUp Club guarantees 99% availability of the software provided on a SaaS basis on an annual average. Excluded from this are times in which the server cannot be reached due to other technical problems beyond the control of DressUp Club (in particular force majeure, third party negligence). Also excluded are planned maintenance work (e. g. updates to the software) which either take place outside of the normal business hours from Monday to Friday between 9:00 am and 6:00 pm, or were announced in advance in accordance with section 4.2.
4.2
DressUp Club is entitled to interrupt the availability of the software for maintenance purposes and due to other technical requirements. Maintenance work will be carried out whenever possible outside of the normal business hours from Monday to Friday between 9:00 am and 6:00 pm. If a maintenance action results in an interruption of more than 30 minutes of use of the software during normal business hours from Monday to Friday between 9:00 am and 6:00 pm, DressUp Club will announce this maintenance work in the mobile app. The announcement will be made at least 24 hours in advance.
4.3
Any disruption of the system availability must be reported by the customer without undue delay after it has become known. In case of reports and disruptions of the system availability which lead to a total failure of the software and which are received within the support hours (Monday to Thursday between 9:00 am and 6:00 pm and Friday between 9:00 am and 5:00 pm, DressUp Club will attempt to ensure a reaction time of four hours from the beginning of the disruption. In case of minor errors that do not lead to a total failure of the software and that occur during ongoing operation, DressUp Club will attempt to respond no later than one working day after receipt of the error message.
4.4
In case of error reports, which are received outside the support hours, the fault elimination begins on the following working day. Delays of the fault elimination, that the customer is responsible for (e. g. due to unavailability of a contact person on the customer side or belated notification of the disruption), are not credited towards the fault elimination time.
5.1
The following participation services are major obligations of the customer and are not only to be classified as secondary obligations or duties.
5.2
During the trial period according to sections 2.2 and 2.3, the customer is obliged to review the functionalities and the general condition of the software and to notify DressUp Club about possible defects and other deviations from the requirements before concluding a fee-based contract for the use of the software. The customer cannot invoke defects and other deviations from the requirements, which were already known or present during the trial period, but were not reported before the conclusion of a fee-based contract for the use of the software.
5.3
The customer is obliged to provide a qualified contact person together with a deputy, who is entitled to make all necessary decisions, that are required for the contractually agreed performance of services or to immediately bring about such decisions without undue delay. The customer is obliged to inform about any changes of the contact person (including deputy) without undue delay.
5.4
The customer is solely responsible for the content and data processed within the software. The customer hereby undertakes to use DressUp Club’s software only in accordance with the contract and within the framework of the applicable statutory provisions and not to infringe any rights of third parties during use. The customer will inform DressUp Club immediately and without undue delay, preferably in writing, about: (i) the misuse or suspicion of misuse of the contractually agreed service; (ii) a danger or suspicion of a danger for the compliance of data protection or data security which occurs within the scope of the provision of the contractually agreed service; (iii) a danger or suspicion of a danger for the service provided by DressUp Club (e. g. by loss of login details or hacker attack).
5.5
The customer is obliged to ensure the technical requirements himself.
5.6
The customer is obliged to inform DressUp Club in text form about occurring service disruptions (defects in the services, lack of availability) without undue delay and to transmit comprehensible information about occuring service disruptions. In case of occuring service disruptions the customer will support DressUp Club to a reasonable extent in the identification and correction of errors. DressUp Club is entitled to show temporary error-avoiding-possibilities to the customer and to eliminate the actual cause later by adaptation of the DressUp Club software, provided that this is reasonable for the customer.
6.1
DressUp Club grants the customer a non-exclusive, simple, non-transferable and time-limited – to the term of the (fee-based) contract – usage right for the booked software.
6.2
The customer undertakes to use the software only in accordance with the contract and not to provide it to third parties to use.
7.1
The prices stated at the time of order as listed on the in-app purchase of DressUp Club will apply. The prices and durations displayed are regional for their exchange value in Euros. The amount of remuneration for the use of the Software may depend on the following factors (“Order Parameters”) and will be displayed accordingly during the ordering process:
7.2
The customer has the choice between monthly or annual billing. All payments are due in advance upon invoicing.
7.3
In case of monthly billing, the billing period begins on the day of the conclusion of a contract for the fee-based use of the software through the account and ends with the expiry of one month.
Payments for contracts for the fee-based use of the software with monthly billing shall be made monthly in advance by credit card. The credit card will be charged on the due date.
In case of monthly billing, an invoice in electronic form will be made available to the customer in his profile for retrieval by DressUp Club and sent by email.
7.4
In case of annual billing, the billing period begins with the day the account is activated and ends after the expiry of one year.
The invoice amount arises from the 12x monthly remuneration for the ordered software (section 7.1), minus the discount noted on the website of DressUp Club for annual advance payment. DressUp Club activates the customer’s access according to the performance period agreed with the customer and stated on the invoice initially for one year.
Payments for contracts for the fee-based use of the software with annually billing shall be made annually in advance by credit card. The credit card will be charged on the due date.
In case of annual billing, an invoice for 12 months will be sent to the customer in electronic form by email. The payment is due two weeks from the invoice date.
7.6
In the case of a return debit (in particular due to lack of necessary coverage of the account, due to account expiry, unauthorized objection by the account holder or incorrect entry of account data), the customer authorizes DressUp Club to submit the debit for the due payment obligation one more time. In such a case, the customer is obliged to pay the costs arising from the return debit. Further claims are reserved.
7.7
In case of a payment default of the customer, provided that no payment was made even after expiration of a set deadline of one calendar week after the due date to the customer, DressUp Club is entitled to block the customer’s access to the software immediately. DressUp Club will inform the customer of this blocking in advance, setting a further deadline of one calendar week. In this case the customer remains obliged to continue paying the agreed remuneration plus any default interest due. Any damage to the customer caused by blocking the customers access to the software cannot be claimed from DressUp Club. Beyond that DressUp Club has no right to block access to the software.
8.1
As soon as the customer receives his access data, a free limited use of the app begins.
8.2
In case of contracts for the fee-based use of the software with monthly billing, a minimum term of one month shall apply. After the expiry of the minimum term, the contract shall be extended by extension periods of one month in each case, unless the customer terminates the contract before the beginning of the extension period.
8.3
In case of contracts for the fee-based use of the software with annual billing, a minimum term of one year shall apply. After the expiry of the minimum term, the contract shall be extended by extension periods of one year in each case, unless the customer terminates the contract with a notice period of three months prior to the beginning of an extension period. For the extension of contracts on the fee-based use of the software with annual billing, DressUp Club will provide a new annual invoice to be transferred to the customer at the latest at the beginning of the new extension period.
8.4
DressUp Club has the right to terminate fee-based contracts for the use of the software with monthly billing within a period of two weeks and to terminate fee-based contracts for the use of the software with annual billing within a period of three months to the end of the respective billing period.
8.5
The right of both contracting parties to terminate the contract for good cause remains unaffected.
8.6
Notice of termination must be given in textual format. The account of the customer will be locked as soon as the termination comes into effect.
9.1
Statutory liability in the case of paid service provision. In the case of paid service provision DressUp Club is liable according to the statutory provisions for damages resulting from the injury of life, of the body or health and for other loss due to a breach of duty resulting from intent, gross negligence and fraudulent intent. In addition DressUp Club is liable according to the statutory provisions towards customers with a fee-based contracts for the use of the software for damages covered by liability under mandatory statutory provisions such as in the case of assumption of guarantees, fraudulent concealment of a defect or according to Product Liability Law. Guarantees by DressUp Club are only given in written form and in case of doubt are to be interpreted as such, only if they are referred to as “guarantee”.
9.2
Limitation of liability in the case of paid service provision. In case of slight negligence for paid service provisions, DressUp Club is only liable for damages caused by DressUp Club and which are due to such essential breaches of duty, which endanger achieving the purpose of this contract or to breaches of duties, whose fulfillment enables the proper execution of this contract in the first place and whose compliance the customer may rely on (so-called violation of cardinal obligations). In these cases the liability of DressUp Club is limited to typically contractual predictable damages. Liability for slight negligent violation of obligations that are not cardinal obligations (see Section 9.2 sentence 1) are excluded, except DressUp Club is liable by law (see Section 9.1 sentence 2).
9.3
Liability for free service provision. In the case of free service provision (e. g. within the test period) DressUp Club is responsible only for damage, which is based on wilful intent, or gross negligence as well as fraudulent intent. This limitation of liability does not apply to damages resulting from injury to life, body or health, for this DressUp Club is liable without limitation.
9.4
Claims against third parties. The limitations of liability in clauses 9.1 to 9.3 also apply to claims against executive employees, employees, other vicarious agents or subcontractors of DressUp Club.
10.1
DressUp Club collects and uses the personal data of the customer only within the framework of the respectively applicable statutory provisions. For this purpose the contracting parties shall enter into an agreement to the necessary extent of the respectively applicable provisions.
10.2
None of the contracting parties are entitled to transmit confidential information of the respective other contracting party to third parties without express consent (at least in textual form). This applies both to customers with contracts for free of charge use and contracts with a fee-based use. Any information, no matter whether written or oral, which (i) by its nature is confidential or subject to secrecy or (ii) which the contracting party, whom the information is transmitted to, must have recognised as confidential and a subject to secrecy because of exceptional circumstances. Confidential information includes, in particular, product descriptions and specifications as well as prices. Both contracting parties undertake to use confidential information only for contractually agreed purposes. Both contracting parties take at least the same precautions as they do in regards to their own confidential information. Such precautions shall at least be reasonable to prevent disclosure to unauthorized third parties. In addition both contracting parties are obliged to prevent the unauthorized disclosure or use of confidential information by their customers, employees, subcontractors or legal representatives. The contracting parties shall inform each other in writing of any misuse of confidential information. The aforementioned obligation does not apply to information that (i) was known to the other party prior to transmission and without an existing confidentiality agreement, (ii) is transmitted by a third party not subject to a similar confidentiality agreement, (iii) is otherwise publicly known, (iv) was independently developed without using confidential information, (v) is released for publication in writing, or (vi) is required to be transmitted due to a court order or authority provided that the contracting party affected by the transmission is informed in time in order to take legal protection actions. Furthermore, the confidentiality obligation applies beyond the duration of the contract until twelve months after the effective termination date of the contract.
11.1
DressUp Club has the right to change these general terms and conditions at any time or to amend regulations for the use of any newly introduced additional services or features of the software. Changes and amendments to the general terms and conditions shall be announced to the customer by email to the indicated email address not later than four weeks before the scheduled coming into force. The customer’s consent to the change of the general terms and conditions will be deemed granted if the customer does not object to the amendment in textual form (e. g. letter, fax, email) within a period of two weeks, beginning with the day following the day of the announcement of the amendment. DressUp Club undertakes to separately indicate in the announcement of the amendment the possibility of objection, the deadline for an objection, the textual form requirement and the meaning or consequences of omitting an objection.
11.2
DressUp Club reserves the right to modify the software or to offer deviating functionalities, unless changes or deviations are not reasonable for the customer. If significant change of the software supported workflow of the customer and/or limitations in usability of so far generated data go along with the provision of a modified version of the software or a change of functionality of the software, DressUp Club will announce this to the customer in textual form at the latest four weeks before the effective date of such a change. If the customer does not object to the change in textual form within a period of two weeks upon receipt of the notification of change, the change shall become part of the contract. DressUp Club will draw the customer’s attention to the aforementioned objection period and the legal consequences of its expiration in case of non-seizing of the possibility to object in every announcement of change.
11.3
DressUp Club further reserves the right to modify the software or to offer deviating functionalities, (i) to the extent necessary to make the services offered by DressUp Club compliant to the law applicable to such services, in particular if the legal situation changes; (ii) to the extent DressUp Club complies with a court order or authority decision addressed to DressUp Club; (iii) to the extent necessary to eliminate security vulnerabilities of the software; (iv) due to significant changes in the services or contractual conditions of third-party providers (e.g. Integration Partners) or subcontracting companies (e.g. in the case of additional functionalities), or (v) to the extent that this is predominantly beneficial for the customer. DressUp Club especially reserves the right to restrict or discontinue the provision of additional functionalities or Integrations if the technical partners for these additional functionalities or the providers of the Third-Party Systems significantly change or limit their services or terms of service and DressUp Club can therefore no longer reasonably be expected to continue providing the above, such as if the additional expense due to DressUp Club’s involvement would be disproportionately high. For the case of annual calculation, the customer will receive an appropriate pro rate reimbursement of fees paid in advance, provided that the additional functionality or Integration was billed separately.
11.4
DressUp Club is entitled to adjust the prices for the fee-based contractual services to compensate personnel cost or other cost increases annually in an appropriate amount. DressUp Club will announce these price adjustments and the time of effectiveness of the price adjustments to the customer in textual form. The price adjustments shall not apply to the periods the customer has already paid for. If the price increase is more than 5% of the previous price, the customer may object to this price increase within a period of two weeks from notification. A change in the price resulting from a change in the scope of features or the number of employees to be administered shall not be deemed a price adjustment within the meaning of this section 11.4.
11.5
If the customer objects to a change within the meaning of this section 11 in due form and due time, the contractual relationship continues under the previous conditions. In this case DressUp Club reserves the right to terminate the contractual relationship extraordinarily with a notice term of one month.
11.6
Amendments to these general terms and conditions must be made in textual form. This also applies to the waiver of the textual form itself.
12.1
If individual provisions of the general terms and conditions have not become an integral part of the contract as a whole or as a part or have become ineffective, the remaining contract stays effective. Insofar as provisions have not become an integral part of the contract or are ineffective, this part of the contract shall be governed by statutory provisions.
12.2
The contractual relationship existing between the contracting parties is exclusively subject to the law of the Romania with explicit exclusion of the UN Convention on Contracts for the International Sale of Goods. Exclusive place of jurisdiction for all disputes arising from and/or in connection with this contractual relationship between DressUp Club and the customer is, as far as legally permissible, the place of business of DressUp Club.
12.3
For the conclusion of the contract the customer has at his disposal the English language version, both available on the website of DressUp Club.
Version 11-2021