BY CHECKING THE BOX OR CLICKING TO ACCEPT WHERE SUCH OPTION IS PRESENTED TO YOU, BY YOUR USE OF THE SERVICE (AS DEFINED BELOW) AT ANY TIME INCLUDING FOLLOWING OUR PUBLICATION OF A CHANGE NOTICE, REVISED TERMS AND CONDITIONS, OR REVISED DOCUMENTATION OR ANY POSTING OF SUCH ON THE WEBSITE LOCATED AT WWW.ACTONLYTICS.COM (“ACTONLYTICS WEBSITE”), OR BY SIGNING A SERVICE ORDER FOR THE USE OF THE SERVICE (A “SERVICE ORDER”), YOU HEREBY ACKNOWLEDGE AND AGREE THAT YOU HAVE READ, FULLY UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT (AS DEFINED BELOW).
Last modified: December 21, 2016
These Terms and Conditions of Service (the “Agreement”) are between you, or if accepting on behalf of an entity, such entity ("you", “your”, or “Service Provider”) and Actonlytics, a Service of Itembase GmbH, a German corporation (“Actonlytics”, “we”, “us” or "our") and constitutes a legal agreement governing the “Service,” which is described below in Section 1.
Services, Tools and APIs to understand your business optimization potential, to find and procure Solution- and Service Providers, compare offers including the communication with Solution- and Service Providers according to a variety of criteria and purchase and start using such Solution- and Service Providers.
Service of Alerts: automatic alerts on offers via e-mail regarding Solution- and Service Providers; newsletter Services or informative electronic communications about Solution- and Service Providers.
Other services that we may deem interesting for Users, such as advice, training, professional contact network, forums, access to news, surveys and research programs.
1.2 Solution-, Service Providers and Partners
Services, Tools and APIs with the possibility for publishing their Solutions and Services and enabling them to be searched, presented (in accordance to the selected criteria) across our web properties, and our network of partners.
Services, Tools and APIs to provide your merchants with the possibility to understand their business optimization potential, to find and procure Solution- and Service Providers, compare offers including the communication with Solution- and Service Providers according to a variety of criteria and purchase and start using such Solution- and Service Providers.
Advertising, lead generation (Pay-Per-Click and Pay-Per-Lead) and promotional opportunities for partners and Application Providers.
Service of Alerts: free automatic alerts on offers via e-mail regarding Solution- and Service Providers; newsletter Services or informative electronic communications about Solution- and Service Providers.
Other services that we may deem interesting for Users, such as advice, training, professional contact network, forums, access to news, surveys and research programs.
2.1 This Agreement constitutes a binding legal contract that governs your purchase and ongoing use of and access to the Service. If you are entering into this Agreement on behalf of a company or other entity, you represent and warrant that you have authority to bind such company or other entity to this Agreement. You must complete the service order and accept the terms of this Agreement before you may access or use the Service. You can accept the terms of this Agreement by either: (a) clicking to accept or agree where such option is made available to you; or (b) actually using or accessing the Service.
2.2 Your eligibility for use of and access to the Service and ongoing eligibility for such use or access is conditioned upon you meeting and continuing to meet the following minimum requirements (“Eligibility Requirements"), which you represent and warrant: (a) You have the legal capacity to be bound by this Agreement; (b) You have the necessary rights and authority to enter into and perform the obligations required of you under this Agreement; (c) All information which you provide to us, including but not limited to information provided during registration, information about your business, all relevant payment information, is yours or within your right to use, and is and will remain accurate, complete and current; (d) You are in compliance with and will only use the Service in compliance with all applicable laws, including but not limited to all applicable laws and regulations pertaining to data privacy and laws, the import or export of data or software or local laws and you shall ensure that you and each End Users are in compliance with all applicable laws in each End User Agreement; (f) All websites, associated sub-pages, domains and/or mobile applications in connection with your direct Service or Service Provider Services for which you seek to implement the Actonlytics Service are owned by you; (g) None of the data or Content will contain any unlawful, defamatory, offensive, libelous, harassing, abusive, fraudulent, pornographic or obscene content or material; (h) Neither you nor any of your direct or Service Provider Services are subject to any pending lawsuits, fines, or government or regulatory actions; and (i) You will provide us with any information, records, or materials that we request to verify your compliance with the Eligibility Requirements and the terms and conditions of this Agreement.
2.3 Only those Service Provider Services that have been approved by Actonlytics may access and use the Service. Actonlytics reserves the right to reject any Service Provider Services, for any reason, in its sole discretion, including but not limited to failing to meet the Eligibility Requirements identified in Section 2.2 above. If you do not agree with this Agreement, or you cannot abide by the representations set forth in Section 2.2 above and elsewhere in this Agreement, then you must not accept this Agreement and must not use the Service.
We reserve the right to amend or modify the terms of this Agreement at any time. You can find the most recent version of this Agreement at www.actonlytics.com with the date of last modification noted above. Such modifications shall become effective immediately upon the posting thereof. You are responsible for reviewing this Agreement on a regular basis to keep yourself apprised of any changes. If you do not agree to the revised terms and conditions, your sole recourse is to immediately cease all use of the Service. Your continued access or use of the Service will constitute your acceptance of the revised Agreement.
4.1 License. Subject to your strict compliance with the terms of this Agreement, you shall, during the Term, have a non-exclusive, personal, non-transferable, non-sublicensable right to access, implement, use, and make calls to the Actonlytics Service or APIs as permitted by this Agreement for purposes of providing your direct or Service Provider Services to End Users.
4.2 Restrictions. You agree that you will not (and will not permit any third party to) directly or indirectly: (a) resell, rent, lease, loan, sublicense or otherwise distribute, transfer or make available the Actonlytics Service or APIs or any part thereof to any third party; (b) create an Service or API client that functions substantially the same as the Actonlytics Service and APIs; (c) make any use of the Actonlytics Service and APIs for any purpose independent of your direct or Service Provider Services; (d) modify, adapt, alter, translate, or create derivative works of the Actonlytics Service and APIs; (e) reverse engineer, decompile, decode, or disassemble the Actonlytics Service and APIs; (f) misrepresent the source or ownership of the Actonlytics Service and APIs or remove, obscure, or alter any copyright, trademark or other proprietary rights notices, falsify or delete any author attributions, legal notices or other labels of the origin or source of the Actonlytics Service and APIs; (g) promote or facilitate unlawful online gambling or disruptive commercial messages or advertisements, (h) interfere with or disrupt the Actonlytics Service and APIs or the servers or networks providing the Actonlytics Service and APIs or (i) circumvent or seek to circumvent this Agreement by connecting directly with any End User at any time (i) during the term of any agreement for Services between You and such End User procured through Actonlytics’s marketing and/or sales channels (each, an “Actonlytics Procured Agreement”) or (ii) during the term any End User is a registered account holder with Actonlytics (an “Actonlytics Registered User”) or during the term of any agreement between an Actonlytics Registered User and Actonlytics with respect to any services provided by Actonlytics (each, an “Actonlytics Service Agreement”). Furthermore, you will ensure that your direct Services or Service Provider Services contain terms of service or use that are consistent with the terms of this Agreement.
4.3 Service and APIs Usage and Transaction Limits. In order to use the Actonlytics Service and APIs, you must obtain User credentials and/or API credentials (an “API Key”) via the registration process. You are solely responsible for all usage associated with your User Account and API Key, regardless of whether you have knowledge of such usage. You shall not share your User Account or API Key with any third party, shall keep such User Account and API Key secure and shall use it as your sole means of accessing the Actonlytics Service and APIs. We reserve the right to impose certain limits on your use of the Actonlytics Service and APIs, including but not limited to limitations on frequency of access or calls to the Actonlytics Service and APIs, which may be revised by us from time to time in our sole discretion (‘Transaction Limits”). You shall comply with the Transaction Limits at all times.
4.4 User Feedback. We desire to continue to improve the Service and to keep it up to date. For purposes of this Agreement, “User Feedback” means collectively, any comments, suggestions, recommendations, or proposed corrections related to the Service from an End User, visitor, or any individual that has access to the Actonlytics Service, directly or via the Service Provider Services. You agree that we will have the right to make any and all uses of the User Feedback, including but not limited to using and incorporating the User Feedback into the Service or with any of our other products and services.
4.5 Compliance. We reserve the sole right and discretion to determine whether your use of the Service is in compliance with this Agreement, including but not limited to, upon reasonable notice and during standard business hours, conducting an audit of your networks or systems connected to your use of the Service. Additionally, we reserve the right to remove any Content (as defined in Section 9 below) from the Actonlytics Website and/or the Services, and/or disclose Content or other information relating to your use of the Services (a) if required to do so by law or in the good faith belief that such action is necessary to conform to the edicts of the law or comply with legal process served on us or this web site; (b) to protect and defend the rights or property of Actonlytics; or (3) to act in urgent circumstances to protect the security or safety of any users of the Services, the Actonlytics Website or the public.
4.6 End User Registration. You acknowledge that, in order for you to use the Services and the API, each End User shall be required to register for an account with Actonlytics and become an Actonlytics Registered User. You will ensure that each End User Agreement shall require that such End User become an Actonlytics Registered User.
5.1 Subscription Plan. The Actonlytics Service and APIs are made available on a subscription basis. The fees applicable for the Actonlytics Service and APIs ("Fees") will include but not be limited to the subscription fees, and can be found at www.actonlytics.com (the “Fee Schedule”) You agree to pay all Fees incurred in connection with the Services and your Actonlytics account. You will be charged (i) a one (1) time connection fee, (ii) a monthly or annual connection and maintenance fee, as applicable and (iii) any applicable service and volume fees, in each case as set forth in the Fee Schedule or in your Service Order. Actonlytics will bill the monthly or yearly fees associated with your account to the credit card you provide to us during registration (or to a different credit card if you change your account information) or as otherwise agreed in the Service Order. All fees are exclusive of taxes, which we will charge as applicable, and are payable on the due date therefor. Any amounts not paid when due shall accrue interest at the rate of 1.5% per month or the highest amount permitted by law, whichever is lower.
5.2 No Refunds. All Fees are non-refundable. You understand and acknowledge that you will not be issued any credits, refunds or pro-rated discounts for unused amounts, even if prepaid via a subscription plan (whether monthly or annual).
5.3. Revenue Sharing Arrangements. You acknowledge and agree that you shall be liable to and shall pay Actonlytics for the fees and other revenue sharing arrangements relating to any Actonlytics Procured Agreement in accordance with the Actonlytics terms and conditions governing revenue sharing and/or in any Revenue Sharing Agreement between you (or your affiliates) and Actonlytics. You acknowledge and agree that all Actonlytics Revenue Share Agreements are created in accordance with and manage by the standard itembase Network Revenue Share Agreement.
We may, in our sole discretion, update or modify the Service for any and all reasons, including for purposes of improving the performance of the Actonlytics Service and APIs. You agree to the terms of the service level agreements governing the Services, which can be found at: www.actonlytics.com (the “Service Level Agreements”). Except as set forth in the Service Level Agreements relating to the Service, if you are dissatisfied with any aspect of the Actonlytics Service and APIs at any time, your sole and exclusive remedy is to cease using the Actonlytics Service and APIs and terminate this Agreement as set forth in Section 13 below.
All technical and non-technical information concerning or related to the Service or any part thereof, including any source code, documentation, product roadmaps, business and marketing plans, and any information related to the foregoing constitutes our confidential information and property (“Confidential Information”). You agree to (i) use the Confidential Information only in connection with fulfilling your rights and obligations under this Agreement; (ii) hold the Confidential Information in strict confidence and exercise due care with respect to its handling and protection, consistent with your protection of your own confidential information but not less than reasonable care, (iii) not disclose the Confidential Information except for disclosures to employees who have a bona fide need to know the Confidential Information and who have entered into written confidentiality obligations no less stringent than those contained in this Agreement. You agree that any unauthorized disclosure of the Confidential Information would cause us irreparable harm, and that in the event of any breach or threatened breach of the above confidentiality obligations, we shall be entitled to seek equitable relief in addition to any other remedy available to us at law or in equity.
We shall own and retain all right, title, and interest in and to the Service, Actonlytics APIs, and Confidential Information, including all intellectual
property rights contained therein. You shall not remove or destroy any copyright notices, proprietary markings or confidential legends placed upon or
contained within the Service or Actonlytics APIs, or any copies thereof. Except for the express licenses granted in Section 4.1, no other licenses are
granted by us hereunder whether by implication, estoppel or otherwise, and we hereby reserve all rights not expressly granted herein. You retain ownership
of all intellectual property rights in any content submitted by you in the course of using the Service ("Content"). Actonlytics does not claim ownership
over any of your Content. This Agreement does not grant us any licenses or rights to your Content except for the limited rights needed for us to provide the
Services to you. If you provide us with any ideas, suggestions or recommendations regarding the Service (“Input”), we shall be free to retain, use and
incorporate such Input in our products and/or services (including but not limited to the Service), without payment of royalties or other consideration to
you. Unless expressly permitted by the End User, content owner or by applicable law, you agree that you will not, and will not permit your end users to, do
the following with any Shop Data returned from the Service or API:
1. Scrape, build databases or otherwise create permanent copies of such content, or keep cached copies longer than permitted by the cache header;
2. Copy, translate, modify, create a derivative work of, sell, lease, lend, convey, distribute, publicly display or sublicense to any third party;
3. Misrepresent the source or ownership; or
4. Remove, obscure, or alter any copyright, trademark or other proprietary rights notices, falsify or delete any author attributions, legal notices or other labels of the origin or source of material.
You acknowledge that some of the software required by or included in the Actonlytics Service and APIs may be offered under an open source license. There may be provisions in the open source license that expressly override some of these terms, and in those cases, the overriding provisions apply. The Actonlytics Service and APIs may contain some third party content (such as text, images, videos, audio, or software). This content is the sole responsibility of the person that makes it available. We may sometimes review content to determine whether it is illegal or violates our policies, and we may remove or refuse to display such content.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. THE SERVICE IS PROVIDED “AS-IS,” AND “AS AVAILABLE” WITHOUT ANY WARRANTY OF ANY KIND. WE DO NOT WARRANT THE COMPREHENSIVENESS, CORRECTNESS, LEGALITY, OR ACCURACY OF THE SERVICE OR THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH OR FROM OUR SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SERVICE SHALL BE AT YOUR SOLE RISK.
You will indemnify, defend, and hold us, our affiliates, and each of our and their respective officers, directors, employees, agents, contractors, licensors, partners and suppliers (collectively the “Suppliers”) harmless from and against any and all liabilities, damages, losses, costs and expenses (including but not limited to reasonable attorneys’ fees) arising out of or related to:(a) your use of the Actonlytics Service; (b) Data or Content; (c) your Service Provider Services; or (d) any non-compliance with this Agreement by you. You will cooperate as reasonably required in the defense of any claim. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter subject to indemnification by you.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ACTONLYTICS AND ITS SUPPLIERS AND LICENSORS WILL NOT BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE USE OF THE ACTONLYTICS SERVICE OR APIS OR, INCLUDING ANY LOSS OF REVENUE, BUSINESS OPPORTUNITIES OR DATA, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING, BUT NOT BE LIMITED TO: CONTRACT, TORT, COMMON LAW, OR STATUTORY), WHETHER OR NOT ACTONLYTICS OR ITS SUPPLIERS HAVE BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES. IN NO EVENT WILL ACTONLYTICS’S MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE TOTAL AMOUNTS PAID BY YOU FOR THE SERVICE DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE CLAIM. NOTHING IN THESE TERMS LIMITS YOUR RESPONSIBILITY FOR INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. IN ALL CASES, ACTONLYTICS, AND ITS SUPPLIERS AND DISTRIBUTORS, WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE THAT IS NOT REASONABLY FORESEEABLE.
This Agreement will remain in effect until terminated by either you or us as set out below (“Term”). You may terminate this Agreement upon written notice to us with the number of days’ agreed as termination period to the end of the agreed upon and running contract period, provided, however, that, unless we otherwise expressly agree with you in writing, you may not terminate this Agreement (or the Fees payable hereunder) if you are providing any Service Provider Services to an Actonlytics Registered User during the term of any Actonlytics Service Agreement, regardless of whether you are using the API or Services to provide such Service Provider Services. We may terminate this Agreement and your rights to access and use the Service upon notice to you upon a failure to pay Fees owed or any other breach of this Agreement, without liability, in our sole discretion at any time. In addition, without limiting the foregoing termination rights, we reserve the right, at any time, with or without notice to you, and in our sole and absolute discretion, to temporarily suspend access to the Actonlytics Service and APIs or availability of the Service for: (a) scheduled or unscheduled maintenance; (b) purposes of maintaining the security and/or integrity of our network, hardware, or associated systems or those of our third party providers; (c) unplanned technical problems or outages; or (d) the actual or suspected violation of the terms of this Agreement by you or any of your End Users. Upon termination, you will immediately cease any and all use of the Service and Actonlytics Service and APIs. Sections 4.2, 4.3, 4.5, 5.3, and 7 through 14 will survive termination of this Agreement or any discontinuation of the offering of the Service or any part thereof.
14.1 Relationship of the Parties. You acknowledge and agree that you and Actonlytics are operating as independent contractors and not as partners, agents or joint ventures. Neither party will make any commitment, by contract or otherwise, binding upon the other or represent that it has any authority to do so. You understand that we reserve the right to provide the Service to other companies, partners, or individuals, in our sole discretion.
14.2 Publicity. During the Term, you may promote your use of the Service to your users, so long as you do so truthfully and without implying that your use is endorsed or supported by us. For example, you may factually state that yourdirect service or Service Provider Services use the Actonlytics Service and APIs. However, you may not use our name, logo or trademarks in any advertisement, marketing collateral or otherwise issue any public announcements or press releases regarding this Agreement or your use of the Service without our prior written consent in each instance.
14.3 Marketing and Promotional Use. In the course of promoting, marketing, or demonstrating the Actonlytics Service and APIs or our other products or services, we may publicize that you are using the Actonlytics Service and APIs, including but not limited to using your name or logo in presentations, marketing materials, or customer lists or creating marketing materials that show screenshots of the Actonlytics Service and APIs as used by your direct service or on your Service Provider Services. You grant us all necessary rights for the foregoing purposes.
14.4 Assignment. You may not assign this Agreement or any rights or obligations without our prior written consent and any attempt to do so will be null and void. We may assign this Agreement (in whole or in part) to any entity, for any reason, without notice and without your consent.
14.5 Force Majeure. You understand and agree that we will not be liable to you for any delay or failure to perform hereunder due to circumstances beyond our reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (excluding those involving such party's employees), Internet or other service disruptions involving hardware, software or power systems not within our possession or reasonable control, and denial of service attacks.
14.6 Governing Law. This Agreement will be governed and construed under the laws of Germany without regard to conflicts of law provisions. The parties agree that any suit or proceeding arising out of or relating to this Agreement will be brought in the federal and/or state courts, as applicable, in Berlin, Germany, and each party irrevocably submits to the jurisdiction and venue of such courts. Notwithstanding this, you agree that we will be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
14.7 Waiver. No provision of this Agreement will be waived by any act, omission or knowledge of ours or our agents or employees except specifically in a writing signed by us.
14.8 Severability. If any provision or part of a provision in the Agreement is held to be illegal, invalid, or unenforceable by a court or other decision making authority of competent jurisdiction, then the remainder of the provision will be enforced so as to effect the intention of the parties, and the validity and enforceability of all other provisions in the Agreement will not be affected or impaired.
14.9 Notices; Electronic Communications. By registering for the Service and accepting this Agreement, you consent to receiving and we reserve the right to send you communications or information regarding the Service, including but not limited to (i) notices about your use of the Service, including any notices concerning violations of use, (ii) updates, and (iii) promotional information and materials regarding our products and services, via electronic mail. In the event that we send such communications, you will have the opportunity to opt-out of receiving future messages.
14.10 Entire Agreement. This Agreement constitutes the whole legal agreement between the parties in connection with your use of the Service, and governs such use. This Agreement completely replaces and supersedes any prior agreements between the parties in relation to the Actonlytics Service, whether written or oral, in connection with the Actonlytics Service. Except pursuant to Section 3 (Modifications), any modification of or changes to this Agreement must be in a writing duly authorized by an authorized representative of ours.
If you have any questions about the Actonlytics Service or this Agreement, you may contact us at: [email protected]