Terms of Use
TRYME IPDmeasurement tool and the TRYME SizeAdvisor tool
1. INTRODUCTION
1.1 Definitions
”Affiliate” shall mean any company that directly or indirectly controls or is controlled by or is under common control with a party hereto by means of ownership of more than fifty per cent (50%) of the voting shares or similar interest in said company, or the power to direct or cause the direction of the management and policies of the relevant company, including without limitation a party’s joint venture partners.
“BigData” or “Metadata” means a voluminous set of qualitative or quantitative data of any format, structured or unstructured, used, collected, processed and / or analysed through the use of the Solutions and or TRYME CUSTOMER PORTAL and/or TRYME Database.
“CLIENT” means the optical-eyewear professional (independent, retail chain, pure player, distributor, manufacturer, etc.) of optical products and related products and/or services, as mentioned in the Order Form.
“End-user” means the website visitor which uses one of the TRYME solutions on tryme.solutions website or a CLIENT website which runs one or more TRYME solutions.
“Confidential Information” means all information disclosed by a Party to the other Party in writing or by oral communication which is designated as confidential or for which the receiving Party cannot reasonably be unaware of the confidentiality of the information or the conditions under which they are disclosed. The Agreement, the structure of the Solutions and / or TRYME CUSTOMER PORTAL, the content of TRYME Database, the documentation relating to the Solutions are also considered as Confidential Information.
“Content” means any element or information (such as a text on the technical or aesthetic characteristics of the brand concerned), in any kind and/or form whatsoever, placed by the CLIENT on a subscribed Smart Solution, including the Selection.
“End User License Agreement” or “EULA” means the using terms and conditions of the Solutions enforceable to the end users, whenever applicable. The EULA may be modified from time to time by TRYME, at its sole discretion.
“TRYME” means TRY ME TECHNOLOGIES B.V. , a limited liability company, and/or its Affiliates that supplies and hosts software solutions for optic and eyewear professionals, directly or through an agreed partner or distributor or reseller.
“Force Majeure” means any external event, unpredictable, irresistible and outside the will of the Parties.
“General Terms and Conditions” or “GTLU”: means this document that governs the terms and conditions of use of the Solutions and TRYME Database. These GTLU only apply for the Solutions provided by TRYME and/or its agreed partners, as expressively mentioned in the Order Form, throughout the performance of the Agreement. Unless otherwise expressively mentioned in the Order Form, the CLIENT is aware and irrevocably accepts that other TRYME products and services, and in particular the digitalization or data or development services, are governed by dedicated general terms and conditions. Any other document than these GTLU is for information purpose only and shall not bind TRYME in any manner whatsoever. These GTLU may be modified from time to time by TRYME, at its sole discretion. As the case may be, and provided that it is consistent with the Solutions for which the CLIENT has a regular License, a pop-up message informing of such modification could appear when the related Solution is updated; in such case, and in order to continue to use the related Solution, the CLIENT shall accept the last version of the General Terms and Conditions.
”Hardware” means all of the physical elements compatible with the Solutions, that may be provided by TRYME and/or its agreed partners under the performance of the Agreement, and that are strictly mentioned in the Order Form.
“Intellectual Property” means any patent, copyright, trademark, DNS, trade dress, trade name or trade secret right and any other intellectual property or proprietary right of TRYME and/or its Affiliates, anywhere around the world, whether such rights are registered or unregistered and including the know-how and goodwill attached to such rights and the right to apply for any such rights.
”License” means the personal, temporary, non-exclusive and non-transferable right to use the Solutions and/or TRYME CUSTOMER PORTAL and/or TRYME Database, as the case may be, granted to the CLIENT under the Agreement.
“Site” means the URL or the delivery address indicated in the Order Form, as set forth in the Order Form, where the Client is allowed to use the Solution with the exclusion to any other location and/or declension and/or extension.
“Solutions” means the Inter Pupillary Distance (IPD) solution and Size Advisor (SA) solution designed and licensed by TRYME, as well as the services associated therewith and/or TRYME CUSTOMER PORTAL and/or TRYME Database, as the case may be.
“Third Party” means any natural person and/or legal entity other than TRYME and the CLIENT.
“IPD Distance” means the inter pupillary distance of the end user.
“Temple width” means the distance between the temples of the end user
“Indicator of usage” means the terms under which you may or can use the tools of TRYME
2. ENTRY INTO FORCE AND INDICATORS OF USAGE
By using our service(s) you acknowledge that you have read and understood our terms of use, including the terms of our “Privacy Policy” (https://tryme.solutions/privacy-policy/). And you agree to comply with all applicabale laws and regulations regarding the Service and you acknowledge that these Terms constitute a legally binding and enforceable agreement between TRYME and yourself.
IF YOU DO NOT AGREE TO THESE TERMS, PLEASE DO NOT USE OUR SERVICE IN ANY MANNER.
The TRYME solutions are available only to individuals who meet all the following Indicators:
INDICATOR 1:
The IPDmeasurement tool and the SizeAdvisor may only be used by people of 18 years and older. For children between the ages 6 (six) and 17 (seventeen), measuring the Inter Pupillary Distance or Temple size must be done only through the device of an adult.
INDICATOR 2:
You must be able to use both hands simultaneously in order to perform the tests as part of the services. For people with need for assistance require a second person to help them perform the measurement.
BY ACCEPTING THE TERMS, YOU AGREE WITH THE FACT THAT YOU PROVIDE US TRUE AND ACCURATE INFORMATION WHICH MEET ALL CRITERIA LISTED IN (2). IT IS STRICTLY PROHIBITED TO PROVIDE ANY FALSE OR FRAUDULENT INFORMATION, INCLUDING BY STATING YOU MEET THE CRITERIA WHEN YOU ARE NOT.
3. SERVICES
TRYME IPDmeasurement tool and or SizeAdvisor tool are online web app solutions created for the optometry branch with which Users can measure their Pupillary distance and Temple width.
TRYME DOES NOT PROVIDE MEDICAL ADVICE. THE SERVICES DO NOT PROVIDE MEDICAL ADVICE AND DO NOT CONSTITUTE THE PRACTICE OF MEDICINE. THE WEB APP AND ANY INFORMATION PROVIDED TO YOU BY TRYME AS A RESULT OF YOUR USE OF THE SERVICES ARE BEING PROVIDED TO YOU SOLELY FOR YOUR EDUCATIONAL AND INFORMATIONAL BENEFIT AND SHOULD NOT BE CONSIDERED MEDICAL ADVICE, DIAGNOSIS, TREATMENT OR A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE. TRYME ENCOURAGES YOU TO SHARE ANY INFORMATION GENERATED BY USE OF THE SITE AND APPS WITH YOUR TREATING HEALTH CARE PROVIDER.
The PD parameter is provided. (PD means the Pupillary Distance, i.e. the required distance between the two lenses’ optical centers (rounded to 0.1 mm))
A. IPDmeasurement tool
TRYME IPD (“IPD distance”) is used to measure the distance between a person’s pupils.
TRYME IPD determines the distance of the camera from the eyes using a known size object, determines the distance between the eye while looking at the phone’s / laptop or tablet’s camera at that determined distance and provides the distance between the eyes.
TRYME IPD provides the PD measurement for the User, in millimeters (rounded to 0.1mm).
TRYME IPD – Special Terms:
TRYME IPD may fail to provide results under certain lighting conditions.
Minimal mobile OS requirements: Android 5.0 and above; iOS 10 and above.
TRYME IPD requires minimal mobile front camera resolution of 5 megapixels.
TRYME IPD requires well-functioning iOS or Android devices, with the following components operating properly: (front camera, touch screen, gyro)
B. SizeAdvisor tool
TRYME SizeAdvisor is used to measure the distance between a person’s temples.
TRYME SizeAdvisor determines the distance of the camera from the temples using a known size object, determines the distance between the temples while looking at the phone’s / laptop or tablet’s camera at that determined distance and provides the distance between the temples.
TRYME SizeAdvisor provides the Temple width measurement for the User, in millimeters (rounded to 0.1mm) or in a specific size range of the optical-eyewear professional. For example: Kids, Small, Medium, Wide, Extra Wide.
TRYME SizeAdvisor – Special Terms:
TRYME SizeAdvisor may fail to provide results under certain lighting conditions.
Minimal mobile OS requirements: Android 5.0 and above; iOS 10 and above.
TRYME SizeAdvisor requires minimal mobile front camera resolution of 5 megapixels.
TRYME SizeAdvisor requires well-functioning iOS or Android devices, with the following components operating properly: (front camera, touch screen, gyro)
4. USER REPRESENTATIONS AND UNDERTAKINGS
Your use of the Service (or any part thereof) is dependent on the fact that you hereby represent and warrant that;
you possess the knowledge and judgment necessary to decide whether to use the Service or otherwise rely on any information available therein;
you acknowledge that there are risks in using the Service, and that TRYME cannot and does not guarantee any specific outcomes from such use, and you hereby assume all such risks, liabilities and/or harm of any kind arising in connection with and/or resulting from such use;
you possess all necessary rights (including ownership rights), either through yourself or through receipt of necessary consent or permission, to use the Service;
you possess the legal authority to enter into these Terms and to form a binding agreement under any applicable law, to use the Service in accordance with these Terms, and to fully perform your obligations hereunder;
if you connect to, access or use the Service on behalf of any third party, family member or dependent, you represent and warrant that you are duly authorized under any applicable law to represent such third party, family member or dependent in connection with these Terms and to commit it to be bound by these Terms, and hereby make all representations and warranties herein on both your and its behalf;
the execution of the Terms does not and will not violate any other agreement to which you are bound or any law, rule, regulation, order or judgment to which you are subject and you are not located in a country that is subject to a Dutch Government embargo, or that has been designated by the Dutch Government as a “terrorist supporting” country; and you are not listed on any Dutch Government list of prohibited or restricted parties;
you acknowledge that you are solely responsible for complying with applicable laws regarding your use of the Service; and
you will not infringe or violate any of the Terms.
5. USE RESTRICTIONS
There are certain behaviors that are strictly prohibited within the framework of Service. Please read carefully the restrictions listed below. Failure by you to follow the provisions that are listed below may (at the sole discretion of the Company) result in termination of your access to the Service and may also expose you to civil and/or criminal liability. You may not (either by yourself or by anyone on your behalf ):
modify, copy, adapt, translate, reverse engineering, reverse-compile, disassemble, publicly display or distribute in any way, the content of our Service, including any information, material or data available on the Service other than your subscription or any personal information (collectively, the “Content”) and/or the Service (or any part thereof);
Use of Content on any other website or networked computer environment for any purpose, or replicate or copy Content without Company’s prior written authorization;
recreate a browser environment or other demarcation of the information around TRYME’s Content (no frames or inline linking);
violation of the rights of privacy or any other rights of another User or to gather personally identifiable information and users without their explicit consent, including – Using the “Robot”, ”spider” editing application , or other manual or automatic device or process to retrieve, index, or data-mine;
slander, defame, abuse, stalk, harass, threaten, or otherwise harm the lawful legal rights of others;
create or transfer any other way in connection with the Service, any computer virus, ”worm”, ”Trojan horse”, bug, spyware, malware, or any other computer code, file or programs that may damage, or are intended to damage the activity of any hardware, software or telecommunications equipment or component or code, damaging, have the potential to cause damage, interfering or intrusive;
Demolish the operation of the WebApp or Site or disturb the WebApps/(s) or Site or to impair or interfere with the servers or networks that host the Service or allow the availability, or disobey any requirements, procedures, policies or regulations of these servers or networks;
License, sell or exploit for any commercial purpose any use or access to the Service (or any content therein) without TRYME’s express consent;
assign (e.g. frame) or a copy (e.g. mirror) any part of the Service without TRYME’s prior express written consent;
create a database – by systematically downloading and storing all or any part of the Service;
Make use of the Service for any purpose that is unlawful, immoral or unauthorized,
use the Service and/or the Content for commercial or non- private purpose without TRYME’s express written consent;
Use and/or Install the Service on a simulator or an emulator.
6. PRIVACY POLICY
TRYME respects your privacy and is committed to protecting the personal information you share with it. Our policy and practices and the type of information collected are described in our Privacy Policy available at: https://tryme.solutions/privacy-policy/. If you intend to connect to, access or use our Service you must first read and agree to the Privacy Policy.
Each Party undertakes to comply with all the applicable Data Protection, Privacy and Security laws and regulations, and in particular with the European Regulation 2016/679 of 27 April 2016 (GDPR) and/or with the EU-U.S. and the Swiss-U.S. Privacy Shield, as amended, and take any administrative measures required of.
The collection and processing of personal data of the clients of the CLIENT through the Products & Services shall be performed under the responsibility of the Client, as data processor.
The CLIENT is aware and irrevocably accepts that TRYME reserves the rights to collect Big Data within the performance of the Agreement through the use by the CLIENT and/or the end users of the Products & Services. TRYME is entitled to use and exploit such Big Data (aggregated anonymous data), for or without consideration, notably for purposes of geo-localisation and/or statistics and/or analysis.
According to the applicable Data Protection Regulations, the CLIENT and the end users of the Products & Services may exercise their right of access to and rectification of all of their personal data, by sending an email at info@tryme.solutions or by mail at the following mailing address: TRYME – Hettenheuvelweg 1101BN Amsterdam – The Netherlands.
7. INTELLECTUAL PROPERTY RIGHTS
TRYME holds and retains all Intellectual Property rights directly or indirectly related to the performance of this Agreement. The same goes with any technique, methodology, know how, update, tool, material and/or other Intellectual Property right created by TRYME and/or enriched and/or held in full title by TRYME or any of its Affiliates during this Agreement. In particular, all the Intellectual property rights to the Solutions and/or TRYME CUSTOMER PORTAL and/or TRYME Database, including the underlying technology and architecture and/or content, are and shall remain the exclusive property of TRYME or the Third Party who granted all or part of the rights to TRYME. Under no circumstances these rights might be transferred to the Client and/or any Third Party.
The Client acknowledges that these elements are significant items of TRYME’S assets; any disclose of any of these elements may critically damage TRYME. Therefore, the Client shall respect all Intellectual Property rights belonging to TRYME or its Affiliates during the legal protection term of these rights. The Client undertakes not to modify and/or the notices related to the physical and/or the intellectual property of TRYME, whatsoever. Similarly, the Client may not use the name or logo of TRYME and/or its Affiliate, for marketing or advertising purposes without TRYME’S prior written consent which can be withheld in the sole discretion of TRYME. The CLIENT is aware that it could be prosecuted under the law in case of failure or breach of this obligation, including by negligence.
Subject to the CLIENT’s observing and performing all of its obligations under the performance of this Agreement, TRYME grants the CLIENT a License. The License granted allows the CLIENT to access and use Solutions and/or TRYME CUSTOMER PORTAL and/or the content of TRYME Database, in their standard version as existing at the signature date of the Order Form. The License also includes the standard corrective, adaptive and/or progressive maintenance of the Solutions and TRYME CUSTOMER PORTAL, as long the Agreement is not terminated or the License is not revoked. The License is granted in object code format only. Unless otherwise expressly mentioned in the Order Form, the License is granted for the duration of the Agreement, for the Site and/or within the limited territory set forth in the Order Form, solely. This Agreement, because its execution and/or termination, for any reason whatsoever, does not grant the Client and/or any Third Party any other Intellectual Property rights.
In the event that TRYME expressively authorizes a Third Party to use and/or access the Solutions and/or TRYME CUSTOMER PORTAL and/or TRYME Database, the Client shall have this Third Party priory entering into a confidentiality agreement with TRYME, exclusively in accordance with the terms and conditions set forth in the Agreement and in particular in compliance with the provisions set forth in these GTLU. This confidentiality agreement shall indicate that the Third Party shall only intervene in the name and on the behalf of the Client in accordance with the Agreement. The Client shall also have the Third Party respecting the confidentiality and Intellectual Property clauses of this Agreement. The Client shall be fully liable for the compliance by the Third Party with this provision and undertake to indemnify TRYME against any damage that could result from it.
TRYME represents and warrants that it is fully vested with the Intellectual Property rights required for the performance of the Agreement. In particular, TRYME warrants that it has the full power and authority to grant Licences under the performance of the Agreement.
Therefore, TRYME warrants that, in case it is sued by a Third Party for a breach of copyright which would be allegedly attributable to the Solutions and/or TRYME CUSTOMER PORTAL, TRYME shall defend the Client against such claims, provided that (i) the Client informs immediately TRYME in written of the alleged breach; and (ii) the claim does not result from software and/or hardware and/or other equipment not provided by TRYME and used in conjunction with the Solutions and/or TRYME CUSTOMER PORTAL; and (iii) such claim is not related to a breach by the Client of this Agreement or an unauthorized access or modification of the Solutions and/or TRYME CUSTOMER PORTAL and/or TRYME Database; and (iv) TRYME has the sole control of the defence and all related settlement negotiations; and (v) the Client accepts the intervention of TRYME and co-operates to the resolution or settlement, if applicable, of an possible dispute. TRYME shall only bear the proceedings costs or payments that it has expressly agreed to in written. TRYME shall not be liable for any claim or action for infringement resulting from: (a) any unauthorized modification or access to the Software and / or TRYME CUSTOMER PORTAL, or (b) breach or negligence on the part of the Client or any Third Party which had contributed to the damage or the claim or the action.
Any unauthorized or non-compliant use of the Solutions and/or TRYME CUSTOMER PORTAL and/or the content of TRYME Database shall be considered as a counterfeit act and the CLIENT shall be solely responsible for any damages it may occur or cause in relation thereto, including any damages or remedies in the aggregate caused by any Third Party claim or action related hereto, and without prejudice to any remedies, damages and/or other rights that may be claimed by TRYME. The CLIENT shall hold TRYME harmless of any claims or damage, including from Third Parties, resulting from the breach of this warranty. TRYME shall also be discharged from all related liability.
8. AVAILABILITY
The Service availability and functionality depends on various factors, such as communication networks software, hardware, and TRYME service providers and contractors. TRYME does not warrant or guarantee that the Service will operate and/or be available at all times without disruption or interruption, or that it will be immune from unauthorized access error-free.
9. CHANGES OF THE SERVICE
TRYME reserves the right to modify, correct, amend, enhance, improve, make any other changes to, or discontinue, temporarily or permanently the Service (or any part thereof, including but not limited to the Content) without notice, at any time and at its sole discretion. In addition, you hereby acknowledge that the content provided under the Service may be changed, extended in terms of content and form or removed at any time without any notice to you. You agree that TRYME shall not be liable to you or to any third party for any modification, suspension, or discontinuance of our Services or the Content included in the Service.
10. DISCLAIMER AND WARRANTIES
6.1 Warranties of TRYME.
The Solutions, the Hardware if any, as well as any component thereof, are provided “as is” without any representation or warranty of any kind, express or implied, statutory, or otherwise, including but not limited to its continued operation, performance, merchantability or fitness for a particular purpose particular. TRYME makes no commitment to the evolution of the Solutions and / or TRYME CUSTOMER PORTAL, not to any adaptation of these to the current or future requirements of the Client. TRYME cannot guarantee that the Solutions will be error free or will work continuously.
TRYME does not warrant that the Solutions and/or TRYME CUSTOMER PORTAL and/or the Hardware shall operate without interruption or error or that it shall meet the expectations or requirements of the Client or that they shall operate with any combination of elements selected by the Client. For the avoidance of doubt, TRYME does not provide any training or maintenance services under this Agreement, unless expressly mentioned in the Order Form. The Client acknowledges and agrees that the Solutions and TRYME CUSTOMER PORTAL are standard solutions that are not intended to meet the specific needs or requirements the of Client. The Client declares having received full and accurate information about the functionality of the Solutions and that it has subscribed under the Agreement with full background knowledge.
TRYME does not provide any warranty for the defects, non-conformities or bugs affecting any computer programme or other equipment used in conjunction with the Solutions or TRYME CUSTOMER PORTAL or the Hardware, or the defects, non-conformities of bugs which, as a consequence, may affect the Solutions and/or TRYME CUSTOMER PORTAL and/or the Hardware or any other hardware or software, and more generally on any system; under no circumstances TRYME will be liable for any related direct or indirect consequence.
The CLIENT is aware of the material and environmental configuration requirements (compatible hardware and peripheral devices, Internet network, Wi-Fi etc.) to have the Solutions and/or TRYME CUSTOMER PORTAL and/or the Hardware as the case may be function properly and undertakes to set up and maintain them at his cost throughout the entire term of this Agreement and the renewal periods thereof, including in the event of the evolution of these requirements which he will be informed of by TRYME and/or any network operator and/or supplier of the Level 1 support, as the case may be.
The CLIENT is aware and irrevocably accepts that the efficient access and use of the Solutions are intrinsically linked to the Address. Consequently, any move or relocation of Solutions. TRYME reserves the right to discretionary refuse its authorization to such move or relocation. As the case may be, the removal or relocation of the Solutions shall be borne by the CLIENT, at its own costs and risks.
The CLIENT is aware and irrevocably accepts that the efficient access and use of the Solutions and TRYME CUSTOMER PORTAL and TRYME Database requires a non-restricted access to the Internet. Therefore, the Solutions and/or TRYME CUSTOMER PORTAL shall not operate in countries limiting or restricting or preventing access to the Internet, and in particular – but not limited to – China, Cuba, Eritrea, Ethiopia, Iran, North Korea, Saudi Arabia, Syria.
The CLIENT is aware and accepts that any disrespect of such requirements may result in degraded operation or malfunction of the Solutions and/or TRYME CUSTOMER PORTAL; in no event will TRYME be liable for such disrespect and their consequences.
All the guaranties or warranties granted by TRYME are expressively set forth in these GTLU. Save as expressly provided in this section 6.1 hereunder, TRYME does not make or give any representations, conditions, warranties or other terms, whether express or implied, arising by statute or otherwise, including but not limited to any implied representations, conditions, warranties or other terms of satisfactory quality or fitness for a particular purpose. TRYME refuses all guarantees, of whatever document, to which it has not expressly agreed, or which would be required by a Third Party. TRYME will refuse any warranty in case of malfunctions or damages resulting, in whole or part, directly or indirectly from any tangible or intangible element used in conjunction and/or in addition with the Solutions, and more generally from any system not provided by TRYME and/or installed by the CLIENT or a Third Party without prior express authorization and instructions from TRYME.
6.2 Warranties of the CLIENT
The Client warrants and represents that (i) it has the full power and authority to enter into this Agreement and perform its obligations under this Agreement; (ii) it will respect any and all TRYME’S Intellectual Property rights; (iii) it will comply with all laws, statutes and regulations applicable to its activities; (iii) it shall take all necessary measures to prevent any unauthorized use of the Solutions and/or TRYME CUSTOMER PORTAL and/or TRYME Database and/or any use that may interfere with or disrupt their integrity or performance; and (iv) it will not bash or denigrate TRYME and/or its Affiliates and/or any TRYME’S product and service, including the Solutions and/or TRYME Database and/or TRYME CUSTOMER PORTAL, in any manner whatsoever, throughout the performance of the Agreement and after its termination for any reason whatsoever.
The CLIENT is and remains solely liable for determining the Content, i.e. any element, in any form whatsoever, placed by the CLIENT on a Solution, and in particular the Selection which it has chosen to display through the Smart Solutions. The CLIENT notably warrants to TRYME that:
- the creation, dissemination, use and operation of the Content is lawful, in compliance with public policy and good moral standards, and compliant with current regulations;
- the Selection and the Content do not infringe the intellectual and/or industrial rights of Third Parties, in particular to the brands and models and authors’ rights to the frames selected in the Selection and displayed through the Solutions;
- it has procured any authorisation required from the legitimate holders to display, promote and/or market the brands and frames issued from the Selection, and shall maintain such authorisation up to date throughout the entire term of the Agreement;
- If the CLIENT is a member of a network of opticians, that the Content and the name of the website comply with the terms of conditions of membership and the policies of the network (including the logo).
TRYME may block access to the Selection or the Content immediately, without affecting the performance of the Agreement and without incurring any liability, in case such Content or Selection Content infringes – or constitutes a risk to infringe – the Intellectual Property rights of Third Parties.
The Client shall indemnify and save harmless TRYME, its affiliates, directors, officers and/or employees, from and against any and all claims, actions, damages or indemnities of any kind whatsoever, that may be brought by a Third Party as a result of a breach or negligence of the Client to its warranties under this section 6.2, or the Agreement. Therefore, the Client shall bear any direct and indirect damages or indemnities (including legal and/or procedural, expertise costs and fees) incurred by TRYME as a result of such breach or negligence. If TRYME employs attorneys to enforce any rights arising out of or relating to this Agreement, TRYME may be entitled to recover its reasonable attorneys’ fees, costs and other expenses, including the costs and fees incurred on appeal or in a bankruptcy or similar action.
11. LIMITATION OF LIABILITY
Each Party shall be responsible for the proper performance of its required actions and its own obligations under the Agreement.
TRYME is only held by a best-effort obligation under the performance of the Agreement.
TRYME will not be liable for any liability due to the existence – or the possibility of existence – of malfunctions – or possible malfunctions – that may affect the Solutions. TRYME is not liable for any deterioration or destruction of the information, programmes, files, databases etc. which may occur subsequently to the use of the Solutions. The CLIENT must take all appropriate security measures beforehand and set up all the procedures required for the protection of its own information, programmes, files, databases etc., notably in terms of viruses, worms, Trojan horses and other kinds of computer attacks.
The liability of TRYME can only be engaged in the event of serious and proven fault. The burden of proof is borne by the CLIENT.
The CLIENT is solely responsible for the adequacy of the Smart Solutions subscribed to its requirements and professional needs.
It is reminded that the CLIENT is solely liable for the Content and the Selection and discharges TRYME from all liability and shall hold TRYME harmless from any claims, including from Third Parties, due to the Content or the Client Selection. The Client shall hold TRYME harmless from any claims, including from Third Parties, due to the content of the Content and/or the Selection and undertakes therefore to indemnify TRYME for any loss which it may suffer and all the expenses it may incur for any claim and/or sanction as a result of in connection with the content and/or the Selection.
Each Party shall take out insurance with a leading insurance company to cover any liability which it may incur in relation to its own business activities and the Agreement.
TRYME shall be relieved of any responsibility and/or liability for any damages occurred, directly or indirectly, in all or in part, from a breach or a failure or an inertia or a negligence of the CLIENT.
To the maximum extent permitted by law, in no event shall TRYME be responsible for any special, incidental, indirect or consequential damages whatsoever (including without limitations damages for loss of business, loss of data, loss of profits, business interruption, loss of business information, or any other pecuniary loss) arising out the performance of this Agreement and/or the delivery or the activation or the use of Solutions and their related services.
If the liability of TRYME is incurred for any reason whatsoever in relation to the Agreement, including on the grounds of Clause 8 hereunder, it is expressly limited to the direct loss incurred by the CLIENT and the maximum amount of compensation for all causes together shall not exceed the amount actually paid in the last six months by CLIENT, VAT excluded, for the Solution or the service or the Additional service that caused the damage and provided that there is a clear and direct link between such Product or Service and the occurred damage.
The Parties expressly agree that should any limitation or provision of this Section 7 be held to be invalid under any applicable statute or rule of law it shall to that extent be deemed omitted but if any Party thereby becomes liable for loss or damage which would otherwise have been excluded, such liability shall be subject to the other limitations and provisions set out herein.
11. Indemnification
You agree to defend, indemnify and hold harmless TRYME and any TRYME’s Affiliates from and against any and all claims, damages, obligations, losses, liabilities, costs, debts, fines, late fees, cancellation fees and expenses (including attorney’s fees) arising directly or indirectly from: (i) your use of the Service (or any part thereof); (ii) breach of any term of these Terms by you; (iii) any damage of any sort, whether direct, indirect, special or consequential, you may cause to any third party which relates to your use of (or inability to use) the Service; (iv) your violation of any third party intellectual property rights, privacy rights or other rights through your use of the Service or provision of information to the Service; and (v) your violation of any applicable law or regulation.
12. DISPUTES
THE AGREEMENT IS GOVERNED BY DUTCH LAW.
ANY DISPUTE WHICH MAY ARISE BETWEEN THE PARTIES RELATING TO THE FORMATION, PERFORMANCE OR CONSTRUCTION OF THE AGREEMENT SHALL BE UNDER THE JURISDICTION OF THE COMPETENT COURTS OF THE HAGUE (THE NETHERLANDS).
ANY PROCEEDING TO RESOLVE OR LITIGATE ANY DISPUTE IN ANY FORUM WILL BE CONDUCTED SOLELY ON AN INDIVIDUAL BASIS. NEITHER PARTY WILL SEEK TO HAVE ANY DISPUTE HEARD AS A CLASS ACTION OR IN ANY OTHER PROCEEDING IN WHICH EITHER PARTY ACTS OR PROPOSES TO ACT IN A REPRESENTATIVE CAPACITY. NO PROCEEDING WILL BE COMBINED WITH ANOTHER WITHOUT THE PRIOR WRITTEN CONSENT OF ALL PARTIES TO ALL AFFECTED PROCEEDINGS. THE CLIENT ALSO AGREES NOT TO PARTICIPATE IN CLAIMS BROUGHT IN A PRIVATE ATTORNEY GENERAL OR REPRESENTATIVE CAPACITY, OR ANY CONSOLIDATED CLAIMS INVOLVING ANOTHER PERSON’S ACCOUNT, IF TRYME IS A PARTY TO THE PROCEEDING. THE CLIENT HEREBY GIVES UP ITS RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM IT MAY HAVE AGAINST TRYME INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS.
12. CONTACT
If you have any questions (or comments) concerning the Terms or the Service, you are welcome to send us an email to the following address, and we will make an effort to reply within a reasonable timeframe: info@tryme.solutions By contacting us, you represent that you are free to do so and that you will not knowingly provide TRYME with information that infringes upon third parties’ rights, including any intellectual property rights. You further acknowledge that notwithstanding anything herein to the contrary, any and all rights, including intellectual property rights in such information provided, shall belong exclusively to TRYME, and TRYME may use or refrain from using any such information at its sole discretion.