Terms and conditions - PricingScan
1. Scope and Applicability
- PricingScan develops and operates comprehensive and sophisticated data analysis software (“Software”), which is intended to be used by sellers and vendors on the Amazon Marketplace. The Software combines a wide array of different tools (“Tools”) which shall help the customers of PricingScan (“Customers”) to make business decisions on the Amazon Marketplace. PricingScan offers Customers access to its web platform (“Platform”), which allows Customers to access and use the Software as a service.
- PricingScan provides its services exclusively on the basis of these terms and conditions (“TC”) and the individual contracts concluded with the Customers over PricingScan’ website or directly between the parties.
- These TC shall also apply to any future contracts between the parties, even if they are not expressly agreed upon again.
- PricingScan expressly contradicts any deviating terms and conditions of the Customer. Regulations of such deviating terms and conditions shall only apply if and to the extent that PricingScan expressly agrees to them in writing. Deviating terms and conditions shall not apply even if PricingScan provides access to the Platform or other services with knowledge of deviating terms and conditions of the Customer without making any reservations.
- Insofar as PricingScan maintains special terms and conditions for certain specific services or the use of specific Tools, the aforementioned paragraphs shall apply accordingly. In the event of contradictions between the special terms and conditions and the TC, the provisions of the special terms and conditions shall take precedence as more specific provisions.
- Details on the prices, the term of the agreement and the scope of the access to the Platform granted to Customer are agreed in the individual contract concluded between the parties. These terms apply in addition to these TC. In case of contradictions between the individual contract and the TC, the provisions of the individual contract take precedence.
- Access to the Platform, the Software and the Tools is provided by PricingScan as a software service via the Internet in the form of the so-called “software-as-a-service”.
- Other services, such as support services by PricingScan, are only provided as accompanying services after prior agreement. As a general rule, PricingScan 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 PricingScan is obliged to provide such services by law.
- Each Customer may create its own user account for the use of the Platform (“Customer Account”). PricingScan will grant the Customer through the Customer Account the contractually agreed access to the use of the Software and the Tools.
- PricingScan is entitled to extend the scope of the Software functions at any time, to adapt them to technical progress and/or to make improvements. PricingScan is also entitled to introduce additional security measures or similar changes at any time.
- If PricingScan voluntarily provides additional services or Software functions, such as new Tools, free of any additional charge and not contractually agreed upon, the Customer has no claim to be able to use such functions in the future. Such new functions are usually introduced for testing purposes and PricingScan is entitled to discontinue, change or offer such additional services only against additional payment. In such a case, PricingScan will inform the Customer at least two weeks prior to discontinuing or changing such services.
- Some functionalities of the Software are dependent on data provided by Amazon through APIs as well as data collected by other means. Only such data (“Available Data”) can be processed and analysed by PricingScan. Therefore, under certain circumstances, PricingScan might be forced to reduce the available functionality of the Software or certain Tools and is entitled to do so, as long as such a reduction in functionality is the consequence of changes to the Available Data made by Amazon. If such a reduction of functionality of the Software impairs the Customers interest in using the Software significantly, Customer has the right to extraordinary terminate its subscription of the Software.
3. Obligations of the Customer
- The Customer assures that the information provided by him/her during the creation of his account and its use is correct and complete. Customer shall inform PricingScan immediately of any changes in the contact data communicated to PricingScan as well as in any other data required for the proper execution of the contract.
- PricingScan will inform the Customer of the technical requirements for the use of the Platform or other provided services. It is the Customer’s responsibility to ensure that the technical requirements are met, including the availability of required hardware and software as well as a suitable telecommunications connection. On request, PricingScan can advise the Customer with regard to the required hardware and software environment. PricingScan shall, however, only be liable for such advice to the extent that it is provided against payment, as well as in the case of intent and fraudulent deception or the existence of other mandatory statutory liability circumstances.
- It is the Customer’s responsibility to ensure that his employees are suitably qualified and trained to use the Platform.
- Malfunctions, defects and other functional impairments that restrict the use of the Platform or other services provided by PricingScan shall be reported to PricingScan by the Customer immediately after their discovery. As far as possible, the impairments shall be described in text form, preferably by email in order to explain how the faults, defects or functional impairments can be reproduced. This is in most cases required to make an effective remedy possible.
- The Platform is not intended for the permanent backup and storage of data. For this reason, the Customer shall retain its own backup copies of all data it transmits to PricingScan, which must not be stored on PricingScan’ servers. In addition, the Customer shall regularly back up data created in connection with the use of the services in order to prevent permanent data loss and thus minimise the risk of damage.
- The Customer shall keep the login and password details for access to the Platforms secret and keep them safe and inaccessible to third parties. Persons to whom the Customer grants access authorization shall be instructed accordingly by the Customer and shall be obligated to the same extent. Passwords must be changed regularly, but at least once a quarter. The Customer shall inform PricingScan immediately if it becomes aware that unauthorised third parties have obtained access data to the Platform. PricingScan is entitled, but not obliged, to take measures to reduce the damage and, for example, to block the corresponding Customer Account or to change the access data. In such a case, the Customer has the right to request new access data from PricingScan. If a third party uses a Customer Account to receive access to the Platform after it has obtained the required access data because the Customer has not sufficiently secured it, the Customer will be accountable for such third party actions made with this Customer Account as if he had acted himself/herself. This does not apply if the Customer has previously informed PricingScan of the unauthorized possibility of access by a third party with sufficient lead time to take countermeasures.
- The Customer shall refrain from taking any measures that could impair or endanger the stability and safety of the Platform or any other PricingScan systems or services, unless such an impairment or endangerment is a technically necessary consequence of the contractual use of the Platform.
4. Data Access
- The Customer is obliged to provide PricingScan 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 PricingScan 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 PricingScan may not be used for unlawful or third party infringing purposes. In the event of a violation, PricingScan may suspend the provision of the services owed with immediate effect or block the Customer’s access to the Platform. The Customer indemnifies PricingScan from any damage resulting from a violation of sentence 1 or 2, including any lawyer’s fees incurred.
- The Customer grants PricingScan 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, PricingScan 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 PricingScan to analyse such data as well.
- In order to ensure the proper functioning of the Platform and the services offered, PricingScan 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.
- PricingScan 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 PricingScan control (e. g. force majeure or downtimes of required Amazon services). Times during which Routine Maintenance Work is carried out are also excluded.
- PricingScan 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.
- PricingScan 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.
- PricingScan liability for non-availability of the Platform due to intent and gross negligence by PricingScan remains unaffected.
6. Term and Termination
- 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 PricingScan 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, PricingScan 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, PricingScan shall grant the Customer a reasonable period of time to secure and backup such data.
7. Payment Terms
- There are no fixed fees just 1% applied on the Customer’s revenue on the Amazon Marketplace.
- Due amount depend on the Customer’s revenue on the Amazon Marketplace will be automatically determined and adjusted by the Platform based on the revenue in the previous observation period, usually the last month prior to the accounting period.
- As soon as the Platform will be linked with an Amazon Account, it will be able to begin calculate due amount based on the revenue made by Customer with this linked Amazon Account during the last observation period and report the appropriate amount to PricingScan for the purpose of creating the respective invoice.
- Customer is conscious that his credit or debit card will be charged possibly on a different amount each month based on the revenue made on his Amazon account.
- PricingScan can send invoices to Customer by mail or email or upload them to the Customer’s Account on the Platform as an electronic document.
- The Customer is in default without reminder if he does not settle the invoiced amount within 14 days after the receipt of the invoice. In the event of a delay in payment, the statutory default interest rate shall apply. PricingScan reserves the right to assert further claims, in particular further damages caused by delay.
- Customer may only set-off with undisputed or legally binding counterclaims against PricingScan. The Customer may only exercise a right of retention if his counterclaim is based on the same contractual relationship. An assignment of the Customer’s claims against PricingScan to third parties is excluded.
8. Copyright and License
- Insofar the Customer pays the fees for the use of the Platform in full and in advance, PricingScan 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. PricingScan 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 PricingScan’ Software or Tools is prohibited.
9. Warranty and Natural and Technical Limits of the Platform
- The Customer shall notify PricingScan immediately of any errors or other faults affecting proper use of the Platform and shall provide PricingScan with reasonable support if such support is required for the rectification of a reported error or fault.
- PricingScan, 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 PricingScan 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. PricingScan 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.
- PricingScan 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. PricingScan 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. PricingScan only warrants that the hardware and software used and provided by PricingScan are suitable for the Intended Use as described on PricingScan’ website.
- PricingScan 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 PricingScan 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.
10. Limitations of Liability
- In the case of slight negligence, PricingScan 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, PricingScan 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 PricingScan’ 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.
- PricingScan 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. PricingScan 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. PricingScan is not liable for any misunderstanding or misapplication of the Tools and algorithms by the Customer.
- PricingScan 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 PricingScan 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 PricingScan with the execution of the contract are bound to secrecy and data confidentiality.
- Customer entrusts PricingScan with access to and analysis of significant and sensitive business data, such as sales and product data. PricingScan’ staff may access and analyse the data, in particular to provide support for Customer. PricingScan 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. PricingScan 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 PricingScan’ 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 PricingScan, PricingScan has the right to conduct statistical evaluations and analysis of all business data provided to PricingScan, but only after such data has been aggregated and anonymized. PricingScan 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.
12. Data Protection
- PricingScan provides the services by way of contract data processing, as far as personal data is concerned. In this respect, the Customer is the client. PricingScan shall perform the services as instructed by the Customer. The Customer undertakes to conclude with PricingScan 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.
- PricingScan reserves the right to change or extend these TC 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 TC.
- 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 TC 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 TC within six weeks after publication of the upcoming Change and the possibility to notify PricingScan 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.
- PricingScan 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 TC.