Other services, such as support services by Simpletrics, are only provided as accompanying services after prior agreement. As a general rule, Simpletrics may but is not obliged to provide any support services to Customer, nor shall it be obliged to enter into contracts for such additional services. This does not apply as far as Simpletrics is obliged to provide such services by law.
It is the Customer’s responsibility to ensure that his employees are suitably qualified and trained to use the Platform.
The Customer is obliged to provide Simpletrics with all data necessary for the performance of the services as contractually agreed upon. The data will be delivered in the manner agreed in the contract, usually by linking the Amazon account of the Customer (“Amazon Account”) to the Customer Account on the Platform. This will grant the Software access to the data available on the Amazon Account and allow its analysis.
Customer must ensure that Simpletrics is granted all access rights required for this purpose.
The data supplied by the Customer for analysis may not violate legal regulations or infringe the rights of third parties. Services provided by Simpletrics may not be used for unlawful or third party infringing purposes. In the event of a violation, Simpletrics may suspend the provision of the services owed with immediate effect or block the Customer’s access to the Platform. The Customer indemnifies Simpletrics from any damage resulting from a violation of sentence 1 or 2, including any lawyer’s fees incurred.
The Customer grants Simpletrics the required right to use the data for the purpose of analysing the delivered data in accordance with the contract.
Due to the nature of the required analysis of data, Simpletrics may use the linked Amazon Account to also collect and analyse data that is not directly related to the Customer , such as data concerning products that are not sold by the Customer. Customer allows Simpletrics to analyse such data as well.
In order to ensure the proper functioning of the Platform and the services offered, Simpletrics carries out regular service, maintenance and updating work (“Routine Maintenance Work”) on the system on a regular basis. Such work is generally carried out at times of expected low utilisation.
Simpletrics warrants a 99% annual average availability of the Platform and other software-as-a-service services. Excluded from this are times in which the Platform or other provided services cannot be reached due to technical or other problems which are outside of Simpletrics control (e. g. force majeure or downtimes of required Amazon services). Times during which Routine Maintenance Work is carried out are also excluded.
Simpletrics may restrict access to the Platform and other provided services if the security and integrity of the Platform so require. These times are also not taken into account in the calculation of the average availability.
Simpletrics will inform the Customer in good time of upcoming maintenance dates, if the availability of the services cannot be warranted for a considerable period of time due to such maintenance work.
Simpletrics liability for non-availability of the Platform due to intent and gross negligence by Simpletrics remains unaffected.
The initial term of the agreement is agreed in the individual contract concluded between the parties. The contract shall be automatically extended for another term with the same duration as the initial term if no party terminates the agreement before the expiry of the then current term.
The right to extraordinary termination for good cause remains unaffected. An important reason for Simpletrics shall in particular be deemed to exist if the Customer defaults on payment of the fees by a not inconsiderable amount.
After termination of the contract, Simpletrics is not obliged to store any of the Customer’s data on the Platform and within the Customer Account and can delete such data and the Customer Account at any time without prior notice. It is the Customer’s responsibility to secure and backup such data in good time before the termination of the contract. In the event of an unexpected premature termination of the contractual relationship not caused by the Customer, Simpletrics shall grant the Customer a reasonable period of time to secure and backup such data.
Insofar the Customer pays the fees for the use of the Platform in full and in advance, Simpletrics grants the Customer a limited, revocable, non-exclusive, non-transferable, and non-sub-licensable right to use the Software, the Platform and the Tools within the scope of the contract and for the intended use of the Platform only. The intended use of the Platform is to support the Customer in making business decisions on the Amazon Marketplace with the analysis of available data (“Intended Use”). The right to use is limited in time to the respective accounting period the fee has been paid for. The granting of rights is subject to the condition of full and timely payment of the respective fees due.
Any transfer of the rights to third parties is not permitted.
The Platform may only be used for its Intended Use. Exploiting or spying out the database by means of other software is not permitted. It is also prohibited to copy, pass on, send or publish the available data on the Platform unless the Platform expressly provides such a function or if this is necessary for the Intended Use of the Platform. Simpletrics reserves the right to prohibit the Customer’s use of the Platform with immediate effect in the event of any signs of misuse.
Any form of decompilation, reverse engineering or other measures of decomposition of Simpletrics’ Software or Tools is prohibited.
The Customer shall notify Simpletrics immediately of any errors or other faults affecting proper use of the Platform and shall provide Simpletrics with reasonable support if such support is required for the rectification of a reported error or fault.
Simpletrics, the Platform, the Software and the Tools do not provide any tax or legal advice regarding the Customer’s business decisions. Accordingly, there are no claims against Simpletrics in this respect.
Any suggestions to improve Customer’s success on the Amazon Marketplace made by the Software are the result of technical algorithms solely based on the data analysed by the Software in accordance with the settings of the Customers. An analysis of existing data alone cannot always reliably predict actual future behaviour of Amazon customers. Suggestions based on algorithms and data analysis are also susceptible to from time to time contradict common sense or to not comply with existing legal requirements. For example, Software does not check if certain terms are ambiguous, suggestive or if their use is prohibited by law such as trademark law. Suggestions by the software do not warrant the achievement of the desired result and it is absolutely necessary that an experienced sales person or similar expert reviews such suggestions, which are solely based on data analysis, before making any business decisions. The data analysis by the software is only intended to support such decision by an experienced Amazon Marketplace user, not to replace them. The responsibility of making the right decisions lies with the Customer. Simpletrics assumes no responsibility for achieving specific results when implementing the suggestions and is not liable for failure to achieve a specific result or business success, especially not for any specific revenue or increase or decrease in sales of the Customer.
Simpletrics warrants that the Software is developed with the usual standard of care and is free of defects (bugs etc.) which preclude or affect the suitability for the customary or contractual use to a more than immaterial extent.
The quality and reliability of any suggestions made by the Software are also dependent on the amount of time between the collection and the analysis of the relevant data. Simpletrics gives its best effort to collect as recent data as possible, but a collection in real-time is not possible due to technical limitations of the collection process and the update intervals of the systems involved. Therefore, there is always the risk that the analysed data was already outdated and thus the suggestions based on such data not reliable anymore.
According to the current state of the art, it is not possible to create software and hardware in such a way that it works flawlessly in all application combinations, works with previously unknown third-party software and hardware and/or is protected against all kinds of manipulations by third parties. Simpletrics only warrants that the hardware and software used and provided by Simpletrics are suitable for the Intended Use as described on Simpletrics’ website.
Simpletrics does not warrant the achievement of the business purpose intended by the Customer and is not liable for the consequences of any business decisions made by Customers.
Any warranty claims become statute-barred within one year. This does not apply if the law prescribes mandatory longer periods. Any longer statutory limitation periods shall also apply if Simpletrics or its legal representatives or vicarious agents are guilty of intent or gross negligence or if the claim for damages is based on injury to life, limb or health.
In the case of slight negligence, Simpletrics shall only be liable for the violation of an essential contractual obligation. These are obligations, the fulfilment of which enables the proper execution of the contract and on whose observance the Customer may regularly rely. In such cases, Simpletrics shall only be liable for the foreseeable, contract-typical damage. For all other damages, liability for slight negligence is excluded.
The above exclusions and limitations of liability shall also apply with regard to the liability of Simpletrics’ employees, workers, staff, representatives and vicarious agents and in particular for the benefit of shareholders, employees, representatives, executive bodies and their members with regard to their personal liability.
The foregoing limitations shall not apply to damages or injury to life, limb or health, in the event of wilful intent or gross negligence by Simpletrics or its employees and representatives or in the event of Simpletrics’ liability or as a result of a guarantee.
Simpletrics is not liable for damages caused by unauthorized access of third parties to the Platform if such damages have been caused because the Customer has not sufficiently protected his login data against access.
The suggestions of the Software to improve Customer’s success on Amazon market Place do not warrant the achievement of a specific result or Customer’s business success. Simpletrics is not liable for any failure to achieve specific results or Customer’s business success when implementing the suggestions.
The Customer is solely responsible for the correct setting and use of the software, including, if necessary, the correct input of required data. Simpletrics is not liable for any misunderstanding or misapplication of the Tools and algorithms by the Customer.
Simpletrics is also not liable if the Customer disregarded the disclosed technical and natural limits in functionality of the Platform, the Software and the Tools, or any other instructions for use and warnings for use, in particular regarding the limitations and risks of Tools for automatic administration and bidding.
The Customer and Simpletrics work together in a spirit of trust. This already applies to pre-contractual contacts and negotiations. The parties shall in each case take the interests of the other party into account and undertake to maintain confidentiality.
The persons entrusted by Simpletrics with the execution of the contract are bound to secrecy and data confidentiality.
Customer entrusts Simpletrics with access to and analysis of significant and sensitive business data, such as sales and product data. Simpletrics’ staff may access and analyse the data, in particular to provide support for Customer. Simpletrics is fully aware of the sensitive nature of the data and undertakes to keep such data strictly confidential and to only use such confidential data for the execution of this contract and the fulfilment of its obligations under this contract. Simpletrics undertakes to keep all data and information received from the Customer confidential and not to transmit or otherwise disclose the data and information to third parties. All Simpletrics’ staff is explicitly bound to secrecy and, in case of a breach of secrecy, is obliged to pay large contractual penalties. All rights of the customer to the data remain unaffected.
As the sole exception to the general rule above and only for the purpose of improving the services provided by Simpletrics, Simpletrics has the right to conduct statistical evaluations and analysis of all business data provided to Simpletrics, but only after such data has been aggregated and anonymized. Simpletrics will ensure at all times, that it is impossible to draw any direct conclusions between such aggregated and anonymized data and the Customer’s business and that no business secrets of the Customer, such as in particular profit margins and revenue, will be disclosed by such evaluation, analysis or any other means to third parties
Simpletrics provides the services by way of contract data processing, as far as personal data is concerned. In this respect, the Customer is the client. Simpletrics shall perform the services as instructed by the Customer. The Customer undertakes to conclude with Simpletrics the agreement on order data processing contained in the respective individual contract, in which further details are regulated in accordance with the statutory requirements of data protection law.
Simpletrics reserves the right to change or extend these GTC at any time with effect for the future only, as far as this appears necessary and does not adversely affect the Customer against good faith. In particular, an amendment may be necessary in order to adapt to changes in the legal situation. Recent court rulings are also considered changes in the legal situation. Changes and further developments of the Platform or other services offered may also require a change or amendment of the GTC.
An amendment or addition (“Change”) shall be announced in text form at least six weeks prior to its entry into force in an appropriate manner. As a general rule, the reference to the Change of the GTC is made by notification by email or within the Platform, but at least during the next login of the Customer to the Platform.
The Customer has the right to object to any Change to the GTC within six weeks after publication of the upcoming Change and the possibility to notify Simpletrics about the objection. In the event of a timely objection, the present terms and conditions shall continue to apply. If the Customer does not object the Change within the objection period or if he continues to use the services and the Platform thereafter, the Change shall be deemed accepted and shall become an integral part of the contract.
Simpletrics will inform the Customer of the possibility of objection, the deadline and the legal consequences, in particular with regard to an omitted objection, when informing the Customer of the Changes to the GTC.
The contractual relations between Simpletrics and the Customer are subject to the laws of the Federal Republic of Germany, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG) and international conflict of laws rules.
The place of performance is the registered office of Simpletrics.
The place of jurisdiction is New York, USA.
In cases of force majeure, e. g. in the case of natural disasters, fire, war, terrorism or strikes, performance and delivery periods shall be extended for the duration of these events.
Any amendments and supplements to the contract as well as ancillary agreements must be made in writing. The same formal requirement applies if the contract provides for an express written agreement. The sending of signed documents by email or fax is sufficient for this form requirement, a simple email is not. This also applies to a change of the written form requirement. The written form requirement does not apply to changes of these GTC according to Sec. 13.
Should individual provisions of these GTC be or become invalid in whole or in part, the GTC shall remain valid in all other respects. In the event of such invalidity, the invalid provision shall be replaced by the legal provision.