Terms and Conditions - TANITA APP UNIVERSE

TERMS AND CONDITIONS

TANITA App Universe

1. INTRODUCTION AND DEFINITIONS

1.1 In these general terms and conditions (the “T&Cs”), the following terms shall have the meanings set out below:

Agreement:	any agreement regarding provision and use of the TANITA App Universe entered into between TANITA and the Institute, any amendment to or addition thereto, as well as all (legal) acts carried out in preparation for and in performance of that Agreement;
Institute:	any natural or legal person mentioned in the subscription form (in our outside the TANITA App Universe) with whom TANITA enters into an Agreement, negotiates the conclusion thereof or in respect of whom TANITA performs any related (legal) act, or the holder of the holder of the Apple or Google account used to subscribe to the paid version of the TANITA App Universe if the person mentioned in the subscription form is incorrect and/or not legally bound by the Agreement;
Offer:	any quotation, offer or proposal made by TANITA for the provision of the TANITA App Universe;
TANITA:	TANITA Europe B.V., a company incorporated under the laws of the Netherlands, having its registered office in Amsterdam and its principle place of business at Hoogoorddreef 56 E, 1101 BE Amsterdam;
TANITA App Universe:	a software application that TANITA makes available via the Apple App Store and Google Play Store and that allows Institutes to connect professional TANITA devices (not available for all devices) to mobile devices owned and/or used by the Institute. The TANITA App Universe enables Institutes to carry out measurements, records the resulting measurement data, and monitors and visualises progress towards defined goals (if any set). TANITA provides the TANITA App Universe on a subscription basis. The functionalities that the Institute can use depend on the type of subscription the Institute takes out;
Terms of Use	the current version of terms of use applicable to the use of the TANITA App Universe.

1.2 These T&Cs apply to every Offer and form an integral part of every Agreement, unless the parties have expressly agreed otherwise in writing.

1.3 Any deviation from or addition to any provision of an Agreement and/or the T&Cs shall only be valid if confirmed in writing by TANITA. Such deviation or addition shall apply solely to the relevant Agreement.

2. OFFERS

2.1 All Offers are without obligation, including where an Offer states that it is valid for a specific period. TANITA may therefore even withdraw an Offer directly after acceptance by the Institute.

2.2 TANITA shall not be bound by the contents of its Offers if the Institute could reasonably understand that the Offer, or any part thereof, contains an obvious mistake or clerical error.

2.3 The prices stated in Offers and in the Apple App Store and the Google Play Store are inclusive of VAT.

3. AGREEMENT AND INSTALLATION

3.1 The Agreement can enter into force:

a. via an in-app subscription: in that case the Agreement enters into force at the moment the Institute downloads the TANITA App Universe in the Apple App Store or Google Play Store, creates an account in the TANITA App Universe and subscribes to a subscription tier; or

b. outside the TANITA App Universe: in that case, the Agreement enters into force upon signature of the Agreement by the Institute and TANITA. To start using the TANITA App Universe on the basis of the subscription tier taken out, the Institute must download the TANITA App Universe from the Apple App Store or Google Play Store, accept the verification link sent by TANITA, and complete the creation of its account.

3.2 The term of the Agreement depends on the type of subscription chosen by the Institute. The various types of subscriptions are set out in the TANITA App Universe. The subscription’s price, duration and specific features/functionalities will be set out in the chosen subscription tier as mentioned in the Agreement.

3.3 The Institute is responsible for properly installing and configuring the TANITA App Universe and for connecting the TANITA App Universe to its professional TANITA device. [Optional: TANITA can provide advice on this upon request and for a fee.]

3.4 The Institute accepts the TANITA App Universe in the condition in which it is at the time of installation by the Institute (“as is, where is”), thus with all possible visible and latent errors and defects, without prejudice to TANITA’s obligations as referred to in article 9 of these T&Cs. Upon completion of the installation the Institute is deemed to have accepted the TANITA App Universe.

3.5 Where these T&Cs refer to “errors”, this shall mean the substantial failure of the TANITA App Universe to comply with the functional or technical specifications of the TANITA App Universe expressly communicated in writing by TANITA. An error shall only exist if the Institute can demonstrate it and if it is moreover reproducible. The Institute is obliged to report errors without delay. TANITA has no obligation whatsoever in respect of other imperfections in or to the TANITA App Universe than errors within the meaning of these T&Cs.

4. RIGHT OF USE AND RESTRICTIONS

4.1 TANITA shall make the agreed version of the TANITA App Universe available to the Institute for use for the term of the Agreement under a license to use. The right to use the TANITA App Universe is non-exclusive, non-transferable, not capable of being pledged as security, and non-sublicensable.

4.2 TANITA's obligation to make the TANITA App Universe available and the Institute's right to use the TANITA App Universe extend exclusively to the TANITA App Universe itself. The Institute is under no circumstance entitled to use the source code of the TANITA App Universe, which shall therefore not be made available to the Institute.

4.3 The Institute shall strictly comply with the Terms of Use and with the restrictions applicable to the agreed version of the TANITA App Universe, such as but not limited to number of users, accounts, profiles, connected professional TANITA devices. The Institute will instruct its personnel and other affiliated persons involved with the TANITA App Universe to also comply with the Terms of use and restrictions.

4.4 The Institute may only use the TANITA App Universe within and for the benefit of its own organisation, and only to the extent necessary for the use intended by TANITA and/or its licensor.

4.5 Reverse engineering or further distribution of the TANITA App Universe is not permitted.

4.6 Save for mandatory statutory exceptions provided by law, the Institute is not entitled to modify the TANITA App Universe, in whole or in part, without TANITA’s prior written consent. TANITA is entitled to refuse such consent without cause or to attach conditions to it.

4.7 Upon request, the Institute shall immediately cooperate with any investigation to be carried out by or on behalf of TANITA into compliance with the agreed restrictions on use of the TANITA App Universe. The Institute shall grant access to its premises and systems at TANITA’s first request. TANITA, and a third party engaged by TANITA in this respect, shall treat all confidential business information obtained from or at the Institute in the course of an investigation as confidential, insofar as such information does not relate to the use of the TANITA App Universe itself.

5. ACCOUNT MANAGEMENT

5.1 The Institute manages the use of the TANITA App Universe via the admin account(s) allocated to it. Depending on the subscription tier of the TANITA App Universe agreed upon, an administrator (deemed to be) appointed by the Institute (an “Admin”) may create accounts in the “professional profile” section of the TANITA App Universe for other professionals affiliated with the Institute. These accounts may be additional Admin accounts or staff member accounts.

5.2 It is prohibited to create accounts for third parties who are not Members, employed by or otherwise working for the Institute. It is also prohibited for Admins or staff members to use their accounts for other (professional) activities outside the organisation of the Institute.

5.3 The Institute shall include a profile in the TANITA App Universe for each person at the request of whom it carries out a measurement (a “Member”). Depending on the subscription tier of the TANITA App Universe agreed upon, the Institute may invite the Member to create an account in the TANITA App Universe, enabling the Member to view his/her measurements via his/her own account. It is prohibited to create accounts for third parties who do not receive services from the Institute.

5.4 The Institute shall ensure that strong passwords are selected for all accounts and that such passwords are changed on a regular basis. TANITA shall technically enforce that the passwords comply with the latest requirements regarding quality and security.

5.5 All actions performed after logging in with an Admin or staff member account are deemed to take place under the responsibility and supervision of the Institute. In the event of a suspicion of misuse or unauthorised use any account, the Institute shall inform TANITA as soon as possible, after which TANITA may take appropriate measures.

6. USE OF THE TANITA APP UNIVERSE

6.1 The TANITA App Universe enables Institutes to carry out measurements, records the resulting measurement data, and monitors and visualises progress towards defined goals (if any set). The Institute solely determines the goals for a Member and solely determines how the TANITA App Universe and its outputs are used by the Institute, its Admin and its staff members. The Institute uses the TANITA App Universe, the connected professional TANITA device and the information/outputs generated during its use at its own cost and risk.

6.2 The Institute is responsible for taking all necessary precautions to avoid any misconceptions by its Members that the TANITA App Universe would provide (medical) advice or that it would to any extent be a substitution for (medical) advice, including but not limited to referring a Member to seek advice from (other) appropriate (medical) professionals or medical advice.

6.3 The Institute shall indemnify and compensate TANITA for all damages that TANITA suffers as a consequence of actual or alleged claims of third parties relating to the use of the TANITA App Universe by the Institute, except to the extent that the damages are caused by i) intent or gross negligence of TANITA or its managerial personnel or ii) a data breach within the meaning of article 4 GDPR solely in relation to the cloud storage provided by TANITA or solely as a result of an act or omission of TANITA.

7. AVAILABILITY OF THE TANITA APP UNIVERSE AND UPDATES

7.1 The Institute downloads and installs the TANITA App Universe on its own mobile devices (for example: tablet or mobile phone). The Institute subsequently connects its mobile devices to the professional TANITA devices in its possession. The Institute is solely responsible for the availability of the TANITA App Universe on its own mobile devices and thus for its availability for use.

7.2 The Institute is obliged to keep the mobile devices used by it up-to-date and secured in accordance with the state of the art, which shall in any event include the installation of the latest version of the operating system used by the Institute and the latest version of the TANITA App Universe at all times.

7.3 If the Institute repeatedly experiences disruptions in the TANITA App Universe, it is requested to notify TANITA via the designated support contact details.

7.4 If the Institute’s connected mobile devices are connected to the internet, TANITA shall synchronise the data generated by the Institute using the TANITA App Universe with, and store such data in, TANITA’s cloud. TANITA shall use reasonable endeavours to keep the cloud storage used by it up to date, in any event as far as security aspects are concerned.

7.5 TANITA shall use its best efforts to keep the TANITA App Universe up to date, in any event as far as security aspects are concerned.

7.6 TANITA may from time to time release updates that correct errors in the TANITA App Universe and/or may include minor improvements in functionality and/or may include new functionalities. TANITA may, through an update, also modify or remove certain functionalities of the TANITA App Universe. These updates shall be made available via the Apple App Store and the Google Play Store.

8. INTELLECTUAL PROPERTY RIGHTS

8.1 All intellectual property rights relating to the TANITA App Universe, documentation, content, (data) outputs, reports, designs and other materials made available under the Agreement remain vested exclusively in TANITA or its licensors.

8.2 If a third party claims to the Institute or if the Institute otherwise becomes aware of such claim that the TANITA App Universe infringes its intellectual property rights, the Institute must inform TANITA without delay. The Institute must fully cooperate with any investigation and must allow TANITA to handle the matter. If a final court decision determines that the relevant intellectual property rights are owned by a third party, TANITA has the option to either terminate the Agreement with immediate effect or to ensure that the Institute can continue to use (an amended version of) the TANITA App Universe or, at TANITA’s discretion, provide an equivalent app.

8.3 Without TANITA’s prior written consent, the Institute shall not make any part of the TANITA App Universe or related materials available to third parties, reproduce them, or otherwise use them outside the scope of the Agreement. The Institute is entitled to use the reports and other ready available output of the TANITA App Universe in the provision of its services. Any right of use granted to the Institute is non‑exclusive, non‑transferable, not capable of being pledged as security and non‑sublicensable.

8.4 The Institute acquires no rights in respect of the intellectual property rights other than those rights which are expressly granted to the Institute in writing under this Agreement or otherwise expressly granted in writing.

8.5 The Institute is not permitted to make any modifications to the output generate with the use of the TANITA App Universe, nor to use it for AI‑training purposes, or to apply scraping, mining or comparable techniques.

8.6 Depending on the subscription tier of the TANITA App Universe agreed upon, the Institute may include its trademark or logo in the TANITA App Universe and/or in the reports that may be generated through the use of the TANITA App Universe. Exclusively for these purposes, the Institute hereby grants TANITA a non-exclusive right to use its trademark or logo as incorporated into the TANITA App Universe. The Institute represents that the intellectual property rights in respect of its trademark or logo vest in the Institute itself or in its licensor. If the trademark or logo infringes or is alleged to infringe the rights of any third party, TANITA shall be entitled to remove the trademark or logo from the TANITA App Universe and/or its outputs.

9. WARRANTIES

9.1 TANITA shall use its best efforts to remedy errors within the meaning of 3.5 of these T&Cs within a reasonable period, provided that the Institutes reports such errors to TANITA in writing and in detail within a period of thirty (30) days after having downloaded the TANITA App Universe. The aforementioned obligation of TANITA to (try to) remedy shall lapse if the Institute makes or has made modifications to the TANITA App Universe without TANITA’s prior written consent. TANITA does not warrant that the TANITA App Universe is suitable for the actual and/or intended use. TANITA likewise does not warrant that the TANITA App Universe will operate without interruption and/or that all errors will always be corrected. The remedy shall be carried out free of charge, unless TANITA has developed a version of the TANITA App Universe based on specific instructions of the Institute otherwise than for a fixed price, in which case TANITA may charge the costs of remedy in accordance with its usual rates.

9.2 In all other circumstances than described in article 9.1, TANITA may – at its sole discretion – use its best efforts to remedy the concerned errors and charge the costs of those efforts in accordance with its usual rates.

9.3 Errors shall be remedied at a location and in a manner to be determined by TANITA. TANITA is entitled to implement temporary solutions, workarounds or problem‑avoiding limitations in the TANITA App Universe.

9.4 TANITA is not obliged to restore corrupted or lost data other than, where possible, by reinstating the last available back‑up of the relevant data. If no data segmentation or other mechanism for data separation has been agreed upon, the Institute accepts that reinstating an Institute‑specific back‑up may not be possible. Unless agreed upon otherwise, it is therefore an obligation of the Institute to arrange for sufficient back-ups of the data accumulated in/by the TANITA App Universe.

9.5 TANITA has no obligation whatsoever, of any nature or content, in respect of errors reported after the expiry of the warranty period referred to in article 6.1 of these T&Cs.

10. DATA ACT

10.1 [TO BE INCLUDED AFTER INPUT BY TANITA].

11. JOINT CONTROLLERSHIP

11.1 TANITA and the Institute each qualify as (joint) data controllers within the meaning of Article 26 GDPR with respect to the processing of personal data, including health data, through the TANITA App Universe. Any processing of personal data by the Institute outside the TANITA App Universe, including, without limitation, the local storage of personal data from the TANITA App Universe on the Institute’s mobile devices, is carried out solely under the Institute’s own responsibility and liability.

11.2 TANITA and the Institute jointly determine the purposes and essential means of processing through the TANITA App Universe, whereby:

a. the Institute determines the professional use of the personal data for its services to Members, which also includes determining which Members personal data will be included and which professionals affiliated with the Institute may have access to the personal data; and

b. TANITA determines the technical architecture, storage, security, data visualization and further development of the TANITA App Universe.

11.3 The parties agree that:

a. the Institute shall be primarily responsible for providing information to Members, Admins and staff members pursuant to Articles 13 and 14 GDPR, whereas TANITA will also provide the aforementioned information when an account is created or verified;

b. TANITA shall implement appropriate technical and organizational security measures pursuant to article 32 GDPR in relation to the TANITA App Universe as such and the processing of personal data in the cloud if offered by TANITA;

c. the Institute is responsible for handling the personal data included by it in the TANITA App Universe with due care and accuracy and shall implement appropriate technical and organisational measures pursuant to article 32 GDPR in relation to its use of the TANITA App Universe and the mobile devices owned and/or used by the Institute on which the TANITA App Universe is installed;

d. TANITA shall act as the primary point of contact for requests from data subjects relating to their rights under the GDPR. Where the Institute receives a request from a data subject to exercise his/her rights under the GDPR, the Institute must forward such request to TANITA without undue delay by sending an email to: info@tanita.eu. If the Institute fails to do so and TANITA is therefore no longer able to comply with the data subject’s request in a timely manner as required by the GDPR, any damage arising therefrom shall be borne by the Institute;

e. the Institute shall ensure that the mobile devices on which the TANITA App Universe is installed are connected to the internet at least once per week, enabling the synchronisation of personal data so that data subject requests that have been complied with can also be processed in respect of the personal data stored on the mobile devices. If the Institute fails to comply with the provisions of this article, any damage arising as a result thereof shall be borne by the Institute.

f. in the event of a personal data breach as referred to in article 4 GDPR relating to the processing of personal data through the TANITA App Universe, the party with whom the breach occurs shall assess whether the breach must be notified to the competent supervisory authority and to the data subjects. Where this is the case, the relevant party shall inform the other party thereof and shall provide that other party with all information that it provides to the supervisory authority and the data subjects, as well as any additional information reasonably required by the other party to determine its own position.

11.4 The essence of the arrangements in this article shall be made available to Members in a transparent manner.

11.5 Nothing in the Agreement between TANITA and the Institute or these T&Cs shall limit or exclude the liability of either party towards data subjects under Article 82 GDPR. Any allocation of liability between TANITA and the Institute applies only in their internal relationship.

12. FORCE MAJEURE

12.1 TANITA is prevented from performing any obligation due to force majeure, it shall not be obliged to perform such obligation, including any statutory or agreed warranty obligation.

12.2 In these T&Cs, force majeure is understood to mean, in addition to what is understood in the law and jurisprudence, all external causes, foreseen or unforeseen, over which a party has no influence, but as a result of which TANITA is unable to fulfil its obligations. Force majeure on the part of TANITA includes, but is not limited to: force majeure of suppliers, government measures, fire, power failure, failure of digital infrastructure or telecommunications facilities, strikes or a pandemic, (cyber)crime, (cyber)vandalism, war or terrorism, and general transport problems. TANITA also has the right to invoke force majeure if the circumstance that prevents (further) performance of the Agreement occurs after TANITA should have fulfilled its obligation.

12.3 If the force majeure situation lasts sixty (60) days or more, TANITA may terminate the Agreement in whole or in part by written notice. In such an event, what has already been performed shall be settled proportionally, and neither party shall be obliged to provide further compensation to the other.

12.4 TANITA will inform each other as soon as possible of a (possible) situation of force majeure.

13. COMPLAINTS

13.1 Complaints about shortcomings in the performance of the Agreement must be reported to TANITA in writing within 10 days after the errors have been discovered by the Institute.

13.2 If the Institute complains in a timely, correct and justified manner about shortcomings attributable to TANITA in the provision of the TANITA App Universe in accordance with the Agreement and/or these T&Cs, TANITA will remedy these shortcomings to the extent possible. In all cases, the liability arising therefrom or otherwise for TANITA is limited in accordance with the provisions of article 14 of these T&Cs.

14. LIABILITY

14.1 If TANITA is liable – either for an attributable failure (toerekenbare tekortkoming) to perform the Agreement or on whatever legal basis, including any failure to comply with warranties or indemnities provided by TANITA – the total liability of TANITA is limited to what is provided for in this provision.

14.2 TANITA shall not be liable for any damage arising from errors that are resolved in updates of the TANITA App Universe which have not been installed by the Institute, irrespective of the reason and/or for any damage that cannot be attributed to TANITA, amongst others but not limited to damages arising from modifications to or noncompliant use of the TANITA App Universe.

14.3 TANITA is not liable for so-called indirect damage that the Institute or a third party may suffer. Indirect damage also includes trading loss, consequential damage, loss of profit, damage caused by (possible) claims or actions of third parties.

14.4 Any liability of TANITA is limited to compensation for direct damages suffered by the Institute and is limited to the total subscription fees paid under the Agreement during the twelve (12) months preceding the event giving rise to the damage.

14.5 TANITA may not invoke the limitations of liability as referred to in articles 14.2 and 14.3 of these T&Cs or the indemnification obligation as referred to in article 6.3 of these T&Cs, if the damage in question is caused by intent or gross negligence on the part of TANITA or its managerial personnel.

14.6 Contrary to the statutory limitation periods, the limitation period for all claims and defences against TANITA is one year.

15. PRICES AND PAYMENT

15.1 The Institute may only use the payment methods made available by TANITA for payment under the Agreement. Where payment is processed via the Apple App Store or the Google Play Store, TANITA has no influence over such payment.

15.2 Payment of the subscription fee is due immediately upon conclusion of the Agreement. Recurring payments shall thereafter be made via the method of payment agreed upon.

15.3 TANITA issues invoices and payment reminders exclusively in electronic form.

15.4 If the Institute fails to make payment after a payment reminder and after having been given a reasonable period to comply, TANITA is entitled to suspend or terminate access to the TANITA App Universe with immediate effect, without prejudice to its right to recover outstanding amounts and statutory collection costs.

15.5 The agreed prices remain fixed for a period of six (6) months after the Agreement is concluded. TANITA may increase its prices after this period. If a price increase exceeds ten per cent (10%), the Institute is entitled to terminate the Agreement within fourteen (14) days after notification of the increase.

16. TERMINATION OF THE AGREEMENT

16.1 Either party may terminate (opzeggen) the Agreement at the end of the initial term by giving notice via the TANITA App Universe ultimately one (1) month before the end date of that term. If none of the parties terminate the Agreement in due time, the Agreement shall automatically renew for an additional period equal to the initial subscription term.

16.2 If the Agreement has been automatically renewed for an additional subscription term, the notice period shall be one (1) month.

16.3 TANITA is entitled to suspend the fulfilment of its obligations under the Agreement (which includes suspending the access to the TANITA App Universe) or to rescind (ontbinden) the Agreement, if the Institute does not fulfil its obligations under the Agreement or if its Admin or staff members do not comply with the Terms of Use of the TANITA App Universe, or does not do so in full or on time. If TANITA proceeds to suspend or rescind the Agreement, it is in no way obligated to compensate for damage and costs incurred by the Institute in any way as a result.

16.4 In the event of liquidation, (application for) suspension of payment or bankruptcy, attachment - if and insofar as the attachment has not been lifted within 1 month - at the expense of the Institute, debt restructuring or any other circumstance as a result of which the Institute can no longer freely dispose of its assets, TANITA is free to suspend or terminate the Agreement immediately and with immediate effect, without any obligation on its part to pay any compensation or indemnity. In that case, TANITA’s claims against the Institute are immediately due and payable.

16.5 In the events of termination of the Agreement as mentioned in article 16.3 and 16.4 TANITA is entitled to claim all damages from the Institute resulting from the premature termination of the Agreement.

16.6 Once the Agreement has been fully terminated, the Institute nor its Members will no longer have access to the concerned version of the TANITA App Universe and the associated data will be deleted.

17. ASSIGNMENT OF RIGHTS

17.1 The Institute may not sell, assign or pledge its rights or obligations under the Agreement to a third party without TANITA’s prior written consent.

17.2 TANITA is entitled to sell, assign or pledge its rights and obligations under the Agreement to a third party.

18. GOVERNING LAW AND DISPUTES

18.1 The Agreement between TANITA and the Institute shall be governed by Dutch law. The applicability of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.

18.2 All disputes that arise as a result of the Agreement, will be solved as much as possible in mutual consultation between the Parties. If the Parties are unable to reach agreement, the dispute will be submitted to the competent court in the district of Amsterdam, the Netherlands.

19. MODIFICATION OF TERMS AND CONDITIONS

19.1 TANITA is entitled to change the content of the T&Cs at any time. These changes will take effect 2 months after TANITA has notified the Institute of these changes in writing. If the Institute does not agree to any proposed material changes, it has the option of terminating the Agreement in writing up to 1 week prior to the date on which the changes take effect, subject to a notice period of 1 month.

19.2 If any provision of these T&Cs is held to be invalid or unenforceable, the remaining provisions shall remain in full force. The invalid provision shall be replaced by a provision that most closely reflects its original purpose.