Terms and Conditions

General Terms and Conditions of Business of Markight GmbH

  • Scope

1.1- These General Terms and Conditions of Business are the exclusive legal agreement between Markight and the Customer (as defined below) and govern the use of the Markight platform and of any other services, software, data, and other materials made available through the Markight Internet homepage, namely www.Markight.com, all of which may be updated from time to time at Markight ’s own discretion (from now on collectively referred to as the “Customer Analytics Platform”).

 

1.2- For the purposes of these General Terms, “Customer” (from now on also referred to as “you” or “your(s)”) means the company, organization, or trader who purchases a subscription to the Customer Analytics Platform. General Terms and Conditions of the Customer of the Customer Analytics Platform shall not become part of the contract between the Parties, even if they are part of an order form of other communication from the Customer to Markight or any business partner of Markight. In the event of conflicts between these General Terms and a written offer from Markight signed by an authorized signatory for Markight, the provisions of the request shall prevail.

 

1.3- In the event that you enter into an agreement within the scope of these General Terms on behalf of your company or any other organization, you at this moment represent and warrant that you are authorized to enter into such an agreement on behalf of that company or other organization. Markight has the right to request evidence of your authority at its own discretion at any time. Suppose the person acting on behalf of the company or any other company employee does not furnish the necessary evidence of authority to register, make bookings or use the Customer Analytics Platform within one (1) week of receipt of such request. In that case, Markight shall have the right to block the account and the company profile at any time.

 

1.4- Formation of contract for chargeable access: A contract for chargeable access to the Customer Analytics Platform is formed by the Customer accepting a corresponding offer. Such an offer may comprise a wider scope of services than a trial account. In the event that the Customer, when setting up the trial account, has accepted General Terms other than those of the offer, the General Terms from the offer shall prevail at all times.

 

1.5- The information of the Customer required for the formation of a contract must be truthfully disclosed and must be promptly updated by the Customer if any changes occur to be able to ensure smooth use.

  • Subject matter of the contract

2.1- The subject matter of the contract is the use of the Customer Analytics Platform by the Customer and the performance obligations of  Markight and the Customer. On the Website,  Markight offers its Customers the possibility to use the Customer Analytics Platform. The contractual scope of services and the fees payable for this can be understood from the offer. 

 

2.2 – Markight shall make all reasonable efforts to ensure that the Customer can use the Customer Analytics Platform via the Internet. However, the platform’s permanent availability cannot be guaranteed. In particular, downtime can be caused by maintenance and software updates. There may be times when the Customer Analytics Platform is unavailable due to technical or other problems outside Markight’s sphere of influence. (including, without limitation, negligence of third parties, etc.)

  • Grant of rights

3.1- Under these General Terms and subject to payment of the remuneration according to clause 6,  Markight grants the Customer a non-transferable, non-exclusive license, excluding the right to sublicense, to access and use the Customer Analytics Platform online for internal business purposes of the Customer throughout the term of the contract (as defined below in section 9.2). This license shall be subject to the contract’s restrictions and, if applicable, such restrictions on use as may be specified during the online registration process for a subscription to the Customer Analytics Platform or in a written contract. This license shall not include the right to store or run a copy of the Customer Analytics Platform on systems to which the Customer has access for whatever legal reason.

 

3.2- The Customer shall not (and shall not allow any third party to):

  • 3.2.1- to reverse engineer or decompile the source code of any software included in the Customer Analytics Platform. If the Customer needs any information to allow interoperability of the Customer Analytics Platform with other software,  Datadigest Shall disclose the interface information to the Customer, provided, however, that  Datadigest Shall have the right to do so only in return for a separate confidentiality agreement signed by an authorized signatory of the Customer.
  • 3.2.2- to copy, modify, adapt, translate or otherwise use, resell, distribute or sublicense the Customer Analytics Platform beyond the limits expressly permitted under these General Terms or a written contract between the Customer and Markight.
  • 3.2.3- alter any proprietary and/or copyright or other notices appearing on the Customer Analytics Platform.

3.3- As between  Markight and the Customer,  Datadigest is the owner of the Customer Analytics Platform and any derivative works of the same, including all copyrights and other proprietary rights attached to them. The Customer does not hold any rights to the Customer Analytics Platform or any derivative works of it other than those expressly granted under these General Terms and those created by the Customer itself, provided, however, that such derivative works created by the Customer may not be published without the prior written consent of Markight.

 

3.4- The Customer Analytics Platform may include software or information from suppliers of Markight. Such software or information may be subject to terms specified by the respective suppliers, which apply exclusively to that software or information and are also used in relation to the Customer, provided that  Markight must inform the Customer of those terms and of the software or information they apply to.

  • Management and ownership of data 

4.1- In using the Customer Analytics Platform and the contract services, the Customer shall comply with applicable law. Illegal content or data infringing the rights of third parties may not be uploaded to the Customer Analytics Platform and/or made available to others or distributed through the Customer Analytics Platform.

 

4.2 – Markight shall have the right to delete data without prior notice if they violate the law or infringe any third-party rights. In this context, the Customer shall be under an obligation to perform all acts of cooperation without undue delay, particularly at the request of  Markight. The Customer shall bear the costs of its actions of collaboration.

 

4.3- The Customer itself shall be responsible for the data and content made available to it.  Markight does not check whether data and content are accurate or free from, or susceptible to viruses.

 

4.4- The Customer agrees that:

  • 4.4.1- The Customer Analytics Platform may copy data the Customer stores in the Customer Analytics Platform (“User-Stored Data”)
  • 4.4.2- The Customer Analytics Platform may copy data the Customer stored on its systems or on the systems of a third-party provider to which the Customer allows the Customer Analytics Platform access via an application programming interface called “AP” or by other means “Data stored on Third-Party System” and that it may change and return such data. In this case, the Customer shall ensure that any third-party terms of use do not constitute an obstacle to these activities.

 

4.5- As between the Customer and Markight, the Customer is the owner of the User-Stored Data and the Data stored on Third-Party Systems (from now on collectively referred to as “Customer Data”). The Customer grants  Markight the unrestricted right to use the Customer Data for the purpose of processing in the Customer Analytics Platform (from now on referred to as the “Generated Data”).

 

4.6- The Customer grants Markight the unrestricted right to use the Customer Data to prepare anonymized and consolidated statistics for Markight’s customer base (from now on referred to as “Consolidated Data”).

  • Confidentiality of confidential information and passwords

5.1- The Customer shall be responsible for maintaining the confidentiality of the passwords of its users. The Customer shall instruct its users to keep their passwords confidential and not to disclose or allow them to be disclosed to any third parties and shall take the necessary precautions to maintain the confidentiality of passwords. In the event of any actual or suspected breach or loss of such data, the Customer shall notify  Markight without undue delay by email to “[email protected]

 

5.2- “Confidential Information” means any information disclosed whether orally or in writing by one Party (the Disclosing Party) to the respective other Party (the Receiving Party) that is expressed to be confidential or should reasonably be considered to be confidential given its nature and the circumstances of its disclosure:

  • 5.2.1- Confidential Information of the Customer shall include Customer Data, and Confidential Information of  Markight shall include the Customer Platform Analytics and Consolidated Data, and Confidential Information of each Party shall include the terms and conditions of this Agreement and all order forms (including prices), business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such Party. However, Confidential Information shall not include information that is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, known to the Receiving Party before its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, received from a third party without breach of any obligation owed to the Disclosing Party, or the Receiving Party independently developed without breach of any obligation owed to the Disclosing Party.

 

5.3- The Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its confidential information of like kind (but in no event less than reasonable care):

  • 5.3.1- Not to use Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and except as otherwise permitted in writing by the Disclosing Party, the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees and contractors who need such access for the purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
  • 5.3.2- Neither Party shall disclose any terms or conditions of this Agreement or any other contractual agreements, e.g., order forms, to third parties other than its affiliates, legal advisors, and accountants without the prior written consent of the respective other Party.
  • 5.3.3- In the event of disclosure by a Receiving Party, the Receiving Party shall remain liable to the Disclosing Party for ensuring that the confidentiality of Confidential Information is maintained, including by third parties to whom the Receiving Party disclosed such Confidential Information. Exceptions to this rule are set out in clause 12.
  • 5.3.4- The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided that the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. Suppose the Receiving Party is compelled by law to disclose the disclosing Party’s Confidential Information as part of a civil proceeding. The Disclosing Party is a party, and the Disclosing Party does not contest the disclosure. In that case, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing access to such Confidential Information.
  • Fees

6.1- The Customer shall pay  Markight the applicable fees for using the Customer Analytics Platform as detailed in the order form. Suppose the term of this Agreement is extended. In that case, Markight shall have the right to adjust the fee for the use of the Customer Analytics Platform based on the size of the Customer’s business according to the scale agreed on the order form or, in the absence of such an agreement, according to the scale published by Markight on its Website, if applicable.

 

6.2- The fee shall be calculated monthly and shall be paid quarterly in advance. The payment shall be due and payable immediately on the date of issue of the invoice and must be paid without discount within 15 calendar days of the date of the invoice.

 

6.3- All fees, other remuneration, and prices stated above exclusive VAT at the applicable rate. VAT at the appropriate rate shall be charged separately.

 

6.4- The Customer shall have a right of set-off or retention only if a claim is uncontested or determined by final and non-appealable judgment. The Customer may assign claims arising from this Agreement to third parties only with the prior written consent of  Markight.

 

6.5- If the Customer defaults on payment,  Markight shall have the right to deny the Customer access to the Customer Analytics Platform for as long as the default continues. In this case, the Customer shall continue to be obliged to pay the remuneration. Once payment has been made, the Customer shall again be given access.  Markight reserves the right to make further claims based on default of payments.

  • Warranty 

7.1- Chargeable use of the Customer Analytics Platform and other chargeable services of Markight:

  • 7.1.1  Markight accepts liability only for defects of the services of  Markight or its vicarious agents.
  • 7.1.2 A defect shall be deemed to exist if the suitability of the services for the use agreed by contract is affected or significantly reduced. Suppose a defect makes the services entirely unsuitable for the use agreed by contract. In that case, the Customer shall be released from its obligation to pay the fees for the contractual service concerned until the defect has been remedied. If they are rendered partially unsuitable, the remuneration shall be reduced to an appropriate amount until the fault has been fixed. The obligation to pay for contractual services not affected by the defect shall continue to apply.
  • 7.1.3 The Customer shall notify Markight without undue delay of any defects of the contractual services. In doing so, the Customer shall specify how and in what circumstances the error or defect occurred and shall actively assist   Markight, without charge, in remedying the defect and shall, in particular, make available all necessary documents, data, etc.  Markight requires analyzing and fixing the flaws.
  • 7.1.4 If analysis of an error message reveals that the error occurred within the Customer’s sphere of influence,  Markight shall have the right to charge the cost of analysis of the error message to the Customer at Markight’s then applicable rates. This shall not apply if the Customer, despite the exercise of due care, was unable to recognize that the error occurred within its own sphere of influence.
  • 7.1.5 The Customer cannot claim damages for defects of the services of Markight or its vicarious agents which occur before or after the formation of the contract and for which  Markight or its vicarious agents are not responsible.

7.2 Any other claims and rights of the Customer based on defects of the contractual services not expressly conferred on the Customer by this clause 7 – Warranty are at this moment contracted out unless the Customer is entitled to them under mandatory law.

 

  • Liability

8.1- Chargeable use of the Customer Analytics Platform and other chargeable services of Markight:

  • 8.1.1- Any claims of the Customer are excluded unless expressly stated otherwise from now on. The Customer shall be entitled to claims for damages arising from injury to life, limb, or health or breach of material contractual obligations (cardinal obligations) and liability for any other damage resulting from an intentional or negligent breach of duty caused by  Markight or its legal representatives or vicarious agents. For the purposes of this Agreement, cardinal obligations are obligations the very discharge of which is a prerequisite for the proper performance of the contract and the achievement of its purpose, and on the discharge of which the Customer can, as a rule, rely.
  • 8.1.2- In case of breach of a material contractual obligation,  Markight shall only be liable for typical and foreseeable damage if such damage was caused by gross negligence, unless the Customer makes claims for damages based on injury to life, limb, or health.
  • 8.1.3- This shall be without prejudice to any liability for claims based on the German Product Liability Act [Produkthaftungsgesetz – ProdHaftG] and on guarantees, provided, however, that such a guarantee must be designated as a “guarantee” [Garantie] to be legally considered a guarantee.
  • 8.1.4- Markight’s liability for data loss shall be limited to such amount as would have been incurred for restoring the data from proper and regular backups taken.
  • 8.1.5- Markight does not accept any further liability. In particular,  Markight shall not be liable for initial defects if the conditions set out in clauses 8.1.1 and 8.1.2 are not met, or the defect was caused by customization of the Customer Analytics Platform agreed by individual contract.
  • 8.1.6- If claims are made directly against  Markight’s legal representatives and vicarious agents, the limitations on liability under these General Terms shall also apply in their favor.
  • 8.1.7- Liability for damage arising from injury to the Customer’s life, limb, or health and claims under the German Product Liability Act shall be subject to statutory limitation periods. In all other cases, claims shall fall under the statute of limitations one year after the date when the claim arose.
  • Term and termination

9.1- This Agreement is made effective by the formation of a contract according to clause 1.

 

9.2- The term of contracts for chargeable use of the Customer Analytics Platform shall be as specified in the order form, i.e., 12 months, unless otherwise stipulated in the offer (from now on referred to as the “Initial Term”). The Initial Term shall automatically be extended by an equal period, at least, however, by 12 months, if neither party objects to the extension of the contract at least three (3) months before the expiry of the Initial Term or three (3) months before the expiry of the extended term, respectively.

 

9.3- If the contract was entered into for an indefinite term, either party might terminate it on three (3) months’ notice to expire at the end of a calendar year.

 

9.4- Either Party may terminate the contract for a good cause. For instance,  Markight shall have the right to terminate the contract if the Customer violates these General Terms, e.g., by using the Customer Analytics Platform beyond the scope agreed by contract and not ceasing to do so within a reasonable time limit set by Markight.

 

9.5 Notice of termination must be given in writing.

  • Effects of termination of the contract; surviving provisions 

10.1- If the contract is terminated,  Markight shall disable the accounts of the Customer’s users. The Customer shall be under an obligation to cease to use the Customer Analytics Platform.

 

10.2- When the contract is terminated, all rights and licenses granted to the Customer under these General Terms, including, without limitation, any rights to use the Customer Analytics Platform, shall cease without undue delay.

  • Miscellaneous 

11.1- The relationship between the Parties is that of independent contractors. This agreement represents the entire agreement between the Parties and supersedes all prior agreements, discussions, representations, and promises relating to its subject matter.

11.2- No disclaimer under this agreement shall be effective unless it is in writing and signed by an authorized representative of the party making the waiver.

11.3- The courts competent for Markight’s registered office in Hamburg (Germany) shall have jurisdiction to adjudicate any dispute arising out of this agreement.

11.4- This Agreement shall be governed by and construed following the laws of the Federal Republic of Germany, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).

11.5- These General Terms may be amended by agreement between the Customer and  Markight as follows:  Markight shall submit the amended terms in text form before they take effect, specifying which provisions are to be amended and the date when the proposed amendments are to take effect. At the same time,  Markight shall allow the Customer a reasonable time, at least two months, to advise whether or not it accepts the amended terms of use for its further use of the services. If no statement to the contrary is made within this time limit, which begins to run upon receipt of the notice in text form, the amended terms shall be deemed agreed. When the time limit begins to run,  Markight shall expressly inform the Customer of this legal consequence, i.e., the right to object, the time limit for objections, and the effects of remaining silent. If the Customer accepts the amended General Terms, they shall take effect without undue delay after the customer expresses acceptance or after the expiry of the time limit referred to above. Once the two-month time limit has expired, the Customer will no longer be able to log in to the Customer Analytics Platform without accepting the amended terms. If the Customer objects to the new General Terms by giving written notice to this effect to Markight, the General Terms hitherto agreed shall continue to apply to its contract. In this case,  Markight reserves the right to terminate the contract by extraordinary notice.

  • Contracts with the involvement of partner companies of Markight

12.1- The following clauses shall prevail and apply, if applicable, in deviation from the other provisions of these General Terms, concerning contracts entered into with the involvement of (e.g., through referrals from) partner companies or resellers (from now on collectively referred to as “Partner Companies”) of Markight.

 

12.2- Unless otherwise stipulated in this clause 12, Contracts with the involvement of partner companies, the other provisions of these General Terms shall apply.

 

12.3- If a Partner Company is involved, these General Terms shall stand as an independent contract between the Customer and Markight.

12.4- These General Terms shall likewise apply if the Customer Analytics Platform is used through the service of a Partner Company, e.g., through that Partner Company’s website or app store.

 

12.5- As an alternative to the way described in clause 1.5, a contract for chargeable services of  Markight can be entered into by the Customer’s acceptance of the offer the Partner Company submitted, provided that the request is also signed by an authorized signatory of the Partner Company and these General Terms governing the provision of Markight’s services are included.

 

12.6- If expressly stipulated in the offer, the Customer shall pay the fees to the Partner Company with discharging effect. In this case, payments shall not be made to  Markight directly, and no such charges shall have a discharging effect.

 

12.7- Markight shall have the right to make the various data (as defined in clause four above) available to the Partner Company for processing and use at its discretion. The Partner Company may transfer the data stored by the Customer at the Partner Company or the data calculated by the Partner Company for the Customer to  Markight for processing and use at its discretion, e.g., as part of Consolidated Data.

 

12.8- In deviation from clause 5.3.4 above,  Markight does not accept responsibility for breach of confidentiality by the Partner Company. The Customer shall itself be responsible for entering into agreements to this effect with the Partner Company.

 

12.9- The limitations on liability under these General Terms shall also apply in the Customer’s relationship to either Partner Company or the Reseller to the extent that claims of the Customer based on the services of Markight arise in this relationship.  Markight declines all liability or warranty for acts or omissions of third parties, including, without limitation, of Partner Companies or Resellers, unless their services are expressly part of Markight’s contractual services to the Customer.