Terms of Use

Welcome to SizeWize! We have put together some detailed terms and conditions herein to clarify expectations and to set out our respective rights and obligations relating to your use of our services. These terms (“Terms of Use” or “Terms”) along with our privacy policy (“Privacy Policy”) are resources for you to gain a deeper understanding of how we use information and data we collect, and what your rights and our obligations are with respect to that information.

Please carefully read both these Terms and our Privacy Policy before using our services.

DISCLAIMER

BEFORE USING OR ACCESSING OUR SERVICES, AS DEFINED BELOW, PLEASE READ THESE TERMS CAREFULLY. BY USING OR ACCESSING OUR SERVICES, YOU ARE AGREEING TO BE BOUND BY, AND ARE BECOMING A PARTY, TO THESE TERMS. YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THESE TERMS ON YOUR OWN OR ON BEHALF OF ANY GROUP OR ENTITY YOU REPRESENT. IF APPLICABLE, YOU HEREBY COVENANT TO ENSURE THAT ALL FUTURE USERS THAT GAIN ACCESS TO OUR SERVICES FROM YOU ARE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO ALL OF THESE TERMS, YOU WILL NOT BE PERMITTED TO ACCESS AND/OR USE OUR SERVICES.

If you, or the entity for which you are representing, have a separate binding, written or click through agreement in place with 12922631 Canada Inc. with respect to the Services, these Terms shall take precedence over other Agreements unless otherwise indicated by that Agreement.

For clarity, by using or accessing SizeWize sites, applications, and/or extensions for online size and fit recommendation through Application Programming Interface (“API”) (our “Services”) you or the organization you represent agree that you have read, understood and accepted all the terms and conditions set forth in the Terms of Use below and that customer agrees to be legally bound by them as of the first date of customer’s access and use of the SizeWize Service(s) (the “Effective Date”).

IN CONSIDERATION OF the mutual covenants and promises in these Terms, the receipt and sufficiency of which is hereby acknowledged, SizeWize provides its service(s) to the customer on the following terms:

1: DEFINITIONS:

Please familiarize yourself with the following key definitions:

“App Store” means any marketplace where the customer has accessed, subscribed to, and/or downloaded our Services.

“Activation Date” means the date on which the Service(s) are made available to the customer.



“Confidential Information” means all non-public information provided by you or us (“Discloser”) to the other (“Recipient”), whether orally, in writing, or electronic form or otherwise learned over the course of this Agreement regardless of whether such information was provided before or after the date of this Agreement, or how it was provided to the Recipient. Confidential information will include Customer Data and information about the Discloser’s business plans, technical data, proprietary code, Intellectual Property, and the terms of the order. Confidential information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser or (ii) was known to the Recipient before receipt from the Discloser. “Service(s)” may be defined as the software or Service(s) provided to customer and End Users by SizeWize.

“End User” means an individual that accesses our Service(s) through a Retail Partner.

“End User Data” means all information that is collected or processed via the Service(s) about the End User.

“End User Sessions” means any Session where the End User has used the service.

“Enrichment Data” means the data we make available to Retail Partners as part of the Service(s). Enrichment Data does not include personally identifiable information. We may obtain Enrichment Data from public or third-party sources and our internal data processes provided from End User Data or Retail Partner Data.


“Prediction” is defined as an event where an End User fills out the intake form to the point where the service offers a body prediction.

“Recommendation” is defined as an event where an End User has previously filled out the intake form, and a size is recommended to the End User.

“Retail Partner” means any Customer that uses and subscribes to our Services for the purpose of providing size, style, and fit recommendations of their products to the End User through their website, mobile application, or other e-commerce method.

“Retail Partner Data” means all information that is collected or processed via the Service(s), or any Retail Partner Intellectual Property that SizeWize may gain access to as a result of this Agreement.


“Service Fees” means the fees charged to the Customer by SizeWize for the service(s). Service Fees are as listed in the applicable App Store and attached hereto as Schedule A.‍

“Subscription Term” means the month-to-month term of your subscription to our Service(s), and each subsequent renewal term (if any), until such time that the Customer cancels or otherwise terminates their Subscription through the applicable App Store and in accordance with these Terms. Customers who subscribe to our Services will do so in accordance with the terms and conditions of the applicable App Store through which they initially accessed and subscribed to our services.

“SizeWize,” “[12922631 Canada Inc]” “we,” “us,” or “our” means the applicable contracting entity as specified in the ‘Contracting Entity and Applicable Law Section.

“Retail Partner” means the person or entity using the Service(s) to provide style, sizing, and/or fit recommendations to the End User or receiving and identified in the applicable App Store account record, billing statement, online subscription process, as the customer.

“You” or “your” means the End User, Retail partner, or anyone accessing the Services either directly or through a Retail Partner.

2: GENERAL COMMERCIAL TERMS

2.1. Access. During the Subscription Term, we will provide Retail Partners access to use the service(s) as described in this Agreement and as described in the applicable App Store description of our Services. We might provide some or all elements of the Service(s) through third-party service providers.

2.3. Fees and Payments

2.3.1. Fees and Billing. The Service(s) Fees and Billing will be defined in the applicable App Store listing associated with this agreement, and as listed in Schedule A attached hereto.

2.3.2. Fee Adjustments During a Term. During the term, fees may be adjusted from time to time at our sole discretion. Retail Partners shall be provided with reasonable notice to any adjustments to the Fees.

2.3.3. Payment by credit card. If paying by credit card, Retail Partners authorize us to charge the applicable credit card or bank account for all fees payable during the Subscription Term. Retail Partners further authorize us to use a third-party to process payments and consent to the disclosure of payment information to such a third-party.

2.3.4 Payment Information. Retail Partners will keep your contact information, billing information, and credit card information (where applicable) up to date. Changes may be made to Retail Partner billing information through the applicable App Store or by contacting us at admin@sizewize.ca. Retail Partners may cancel their subscription at any time, and all amounts paid are non-refundable, except as specifically provided for in this agreement. All fees are due and payable throughout the term, in accordance with the customers applicable month-to-month subscription schedule, and the relevant terms and conditions of the applicable App Store.

2.3.5 Sales Tax. All fees are exclusive of taxes, which we will charge as applicable specific to Retail Partners region, province, or country. You agree to pay any taxes applicable to your use of the service(s).

2.4. Service(s) Term, Termination, Suspension

2.4.1. Term and Renewal. Retail Partners may cancel their month-to-month subscription at any time through the applicable App Store. Unless the Retail Partner has cancelled their subscription through the applicable App Store, the subscription shall automatically renew each month. In the event the Retail Partner cancels their subscription, any amounts paid are non-refundable, and the Services and Subscription Term shall be Terminated the day prior to the next renewal term. (the “Expiration Date”). The Retail Partner may continue to access the Services for the entirety of the Subscription Term in which they have canceled, and the Services will be discontinued commencing the following Subscription Term.

2.4.2. Notice of Non-Renewal. Service(s) will automatically renew according to the ‘Term and Renewal’ and in accordance with your applicable App Store subscription. To prevent renewal of your subscription, Retail Partners must cancel their subscription within the applicable App Store. Should Retail Partners have any questions or encounter any problems with regard to cancellation please contact the App Store used to subscribed to our Services or email us at [admin@sizewize.ca].

2.4.3 Suspension for Prohibited Acts. We may suspend any Retail Partner’s access to our Service(s) without notice for (i) use of the service(s) in a way that violates applicable local, provincial, federal, or foreign laws or regulations or the terms of this agreement.

2.4.4. Suspension for Non-Payment. We will provide Retail Partners with notice of non-payment of any amount due. Unless the full amount has been paid, we may suspend access to any or all of the service(s) ten (10) days after such notice. We will not suspend the Service(s) while Retail Partners are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute. If a Service(s) is suspended for non-payment, we may charge a reactivation fee to reinstate the Service(s).

2.4.5. Suspension for Present Harm. If a Retail Partner’s website, or use of, the Service(s): (i) is being subjected to denial of service attacks or other disruptive activity, (ii) is being used to engage in denial of service attacks or other disruptive activity, (iii) is creating a security vulnerability for the Service(s) or others, (iv) is consuming excessive bandwidth, or (v) is causing harm to us or others, then we may, with electronic or telephonic notice to Retail Partner, suspend all or any access to the Service(s). We will try to limit the suspension to the affected portion of the Service(s) and promptly resolve the issues causing the suspension of Service(s). Nothing in this clause limits our right to terminate for cause as outlined above if we determine that Retail Partners are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers.

2.4.6. Effect of Termination or Expiration. Retail Partners will continue to be subject to this agreement for as long as they have access to our Services. Upon the Expiration Date, Retail Partners will stop all use of the  Service(s).

3. MODIFICATIONS

3.1. We modify the Service(s) from time to time, including by adding or deleting features and functions in an effort to improve your experience. We will not make changes to the service(s) that materially reduce the functionality provided to you during the term.

4. CUSTOMER SUPPORT

4.1. Phone, email, and in-app support are generally available from 9 am – 5 PM Monday to Friday (Eastern Standard Time)

5. GENERAL LEGAL TERMS

5.1. Retail Partner Data

5.1.1. Aggregate Data. We may monitor the use of the Service(s)of Retail Partners and End Users and use the information gathered in an aggregate and anonymous manner. You agree that we may use and publish such information, provided that such information does not identify you. We may, however, use End User and Retail Partner Data as part of internal data processes to develop and improve Enrichment Data. For clarity, any data provided to other Retail Partners, End Users, or third-parties will only be in an aggregated and anonymous manner. For more information on how we used the data we collect, please refer to our Privacy Policy.

5.1.2. Safeguards. We will maintain commercially appropriate administrative, physical, and technical safeguards to protect Retail Partner Data. By using our Service(s), you consent to the processing of End User and Retail Partner Data in the United States and Canada.


5.2. Privacy Policy. SizeWize has taken commercially reasonable steps to ensure that data and personal information are protected in accordance with the Personal Information and Electronic Documents Act (“PIPEDA”). Access to, and the use of End Users’ personal information are governed by the terms and conditions of SizeWize’s Privacy Policy, which is deemed an integral part of these Terms of Use. Please review the Privacy Policy at the following link address [10 Dundas Street East, Floor 6, Toronto, Ontario].


5.3. SizeWize’s Proprietary Rights. This is an Agreement for access to and use of the Service(s). The Service(s) are protected by intellectual property laws; they belong to and are the property of us or our licensors (if any), and we retain all ownership rights to them. Subject to your compliance with this Agreement, SizeWize hereby grants you a non-exclusive, non-assignable, non-transferable license to use the service(s). You shall have no right and specifically agree not to: (i) transfer, assign or sublicense any of the license rights granted herein to any other person, or use the Service(s) except as expressly permitted by this agreement, and any such attempted transfer, assignment, sublicense or use shall be void; (ii) make error corrections to or otherwise modify or adapt the service(s) or create derivative works based upon the Service(s), or to permit third-parties to do the same; or (iii) decompile, decrypt, reverse engineer, disassemble or otherwise reduce the service(s) to a human-readable form. You shall not remove any proprietary notices or markings included in the Service(s). Except as otherwise expressly granted in this agreement, all rights to the Service(s) and all intellectual property rights embodied in the Service(s) are reserved to SizeWize. You may not use any of our trademarks without prior written permission. If we make Enrichment Data available to you, then you may only use that Enrichment Data in connection with your use of the Service(s) (unless, of course, you have a source other than the Service(s) for such Enrichment Data.) Enrichment Data may be made available to you based on Retail Partner and End User Data, but we will not use your Retail Partner and End User Data to enrich data for other parties. The Enrichment Data we provide may be provided from or through third-party service providers or public sources. We encourage all customers to comment on the Service(s), provide suggestions for improving it, and vote on suggestions they like. You agree that all such comments and suggestions will be non-confidential and that we own all rights to use and incorporate them into the Service(s) without payment or attribution to you.

5.4. Retail Partner Data. Retail Partner’s own and retain all rights to the Retail Partner Data. This agreement does not grant us any ownership rights to Retail Partner Data. Retail Partner’s grant SizeWize and our licensors a limited, non-exclusive, non-transferable, non-sublicensable license to use the Retail Partner  Data, including without limitation transaction data, only as necessary to provide the Service(s) to Retail Partners and End Users and as permitted by this agreement. 

5.5. Confidentiality. The Recipient will: (i) protect the confidentiality of the Confidential Information using the same degree of care that it uses with its own confidential information of similar nature, but with no less than reasonable care, and (ii) not use any Confidential Information for any purpose outside the scope of the Service(s), (iii) not disclose Confidential Information to any third-party (except our third-party service providers), and (iv) limit access to Confidential Information to its employees, contractors, advisors, and agents. Upon notice to the Discloser, the Recipient may disclose Confidential Information if required to do so under any federal, province, or local law, statute, rule or regulation, subpoena, or legal process.

5.6. Publicity. Retail Partners grant us the right to use their name, company logo, testimonials, and other distributed information in a non-defamatory way. We grant Retail Partners the right to use our name, company logo, testimonials, and other distributed information in a non-defamatory way. Either party will remove public materials showing the other Party’s name, company logo, testimonials, and other distributed information at the Party’s request.

5.7. Indemnification. You will indemnify, defend and hold us harmless, against any third-party claim, suit, action, or proceeding (each, an “Action”) brought against us (and our officers, directors, employees, agents, service providers, licensors, and affiliates) by a third-party not affiliated with us to the extent that such action is based upon or arises out of (a) unauthorized or illegal use of the service(s) by you, (b) your noncompliance with or breach of this agreement, (c) your use of third-party Products, or (d) the unauthorized use of the Service(s) by any other person using your user information. We will: notify you in writing within thirty (30) days of our becoming aware of any such claim; give you sole control of the defense or settlement of such a claim; and provide you (at your expense) with any and all information and assistance reasonably requested by you to handle the defense or settlement of the claim. You shall not accept any settlement that (i) imposes an obligation on us; (ii) requires us to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on us without our prior written consent.

5.8. Disclaimers; Limitations of Liability

5.8.1. Disclaimer of Warranties. We and our affiliates, agents, or third-parties upon which we rely to offer the Service(s), make no representations or warranties about the suitability, reliability, availability, timeliness, security, or accuracy of the service(s) or data made available from the service(s). API’s may not be always available. To the extent permitted by law, the Service(s) are provided “AS IS” without warranty or condition of any kind. We disclaim all warranties and conditions of any kind, whether express, implied, or statutory, with regard to the Service(s), including all implied warranties or conditions of merchantability, fitness for a particular purpose, title, and non-infringement.

5.8.2. No Indirect Damages. To the extent permitted by law, in no event shall any party to this Agreement be liable for any indirect, incidental, punitive, or consequential damages, or loss of profits, revenue, data, or business opportunities.

5.8.3. Limitation of Liability. Except for your liability for payment of fees, your liability arising from your obligations under the ‘Indemnification’ section, and your liability for violation of our intellectual property rights, if, notwithstanding the other terms of this agreement, any  party is determined to have any liability to the other parties or any third-party, the parties agree that the aggregate liability of a party will be limited to the lesser of $10,000 CAD or the total amounts you have paid for the service in the twelve-month period preceding the event giving rise to a claim.

5.8.4. Third-Party Products. We disclaim all liability with respect to third-party products that you use. We and our licensors have no liability of any kind under this agreement.

5.9 Non-Canadian Users. We make no representation that information on our Services is appropriate or available for use outside Canada. Those who choose to access our Services from outside Canada do so on their own initiative and at their own risk and are responsible for compliance with applicable local laws. By using our Services, you consent to having any End User and Retail Partner Data you provide, and any personal information that you provide as part of the account creation process transferred to, and processed in, Canada subject to the restrictions on such data as provided in our Privacy Policy posted through our Site from time to time.

5.10 Notice. We may provide you notice to the email address you provide to SizeWize or through the account used to subscribe to our Services through the applicable App Store. Notice shall be deemed given 24 hours after email is sent.

6. Dispute Resolution.

Any controversy or dispute between SizeWize and you arising out of, or related to, these Terms of Use and/or your use of the Services that cannot be settled by mutual agreement shall be exclusively and finally settled by arbitration under the Rules of the Canadian Arbitration Association. The following provisions shall govern any arbitration hereunder:

  • The legal seat of arbitration shall be Toronto, Ontario, Canada.
  • There shall be one arbitrator agreed to by the Parties within twenty (20) days of receipt by the respondent of the request for arbitration or in default thereof appointed by the Canadian Arbitration Association in accordance with the Canadian Arbitration Association Rules.
  • The language of the arbitration, including the hearings, documentation and award shall be English.
  • The parties shall each bear their own legal costs and expenses of the arbitration.
  • Any decision of the arbitrator shall be final and binding on the parties and their respective successors and assigns, and there shall be no right to appeal such decision, whether on a question of law, a question of fact or a mixed question of fact and law.
  • The governing law of the arbitration shall be the law of the province of Ontario.
  • The arbitration procedures, hearings, documents, and award shall remain strictly confidential between the parties.

You and we agree that each of us may bring claims against the other only in yours and our individual capacity, and not as a plaintiff or class members in any purported class or representative proceeding, thereby waiving the right to participate as a class representative or class members in a class action relating in any way to a dispute hereunder.

7. Miscellaneous.

You may not assign or transfer your rights or obligations under these Terms in whole or in part to any third party without our prior written consent. SizeWize may transfer, assign, or delegate these Terms and its rights and obligations without restriction.

These Terms shall bind and enure to the benefit of the parties to these Terms and their respective successors, permitted transferees and permitted assigns.

We and you are independent contractors and are not partners, joint venturers, agents, employees, or representatives of the other party. You do not have any authority to bind SizeWize. in any respect whatsoever.

These Terms contain the entire understanding of the parties with respect to the transactions and matters contemplated herein, supersede all previous communications, understandings and agreements (whether oral or written) other than any click-through or end user license agreement provided by us, and cannot be amended except in writing signed by both parties or by our posting of an amended version of these Terms on our Site.

The headings and captions used in these Terms are used for convenience only and are not to be considered in construing or interpreting these Terms.

If any part of these Terms is held to be unlawful, void, or unenforceable, that part will be deemed severable and shall not affect the validity and enforceability of the remaining provisions.

The failure of SizeWize to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision.

These Terms are governed by, and construed in accordance with, the laws of the Province of Ontario.