1. Scope and Applicability
Genius Flip Inc. (“Amz2go”) 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 Amz2go (“Customers”) to make business decisions on the Amazon Marketplace. Amz2go offers Customers access to its web platform (“Platform”), which allows Customers to access and use the Software as a service.
Amz2go provides its services exclusively on the basis of these general terms and conditions (“GTC”) and the individual contracts concluded with the Customers over Amz2go’ website or directly between the parties.
These GTC shall also apply to any future contracts between the parties, even if they are not expressly agreed upon again.
Amz2go 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 Amz2go expressly agrees to them in writing. Deviating terms and conditions shall not apply even if Amz2go provides access to the Platform or other services with knowledge of deviating terms and conditions of the Customer without making any reservations.
Insofar as Amz2go 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 GTC, 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 GTC. In case of contradictions between the individual contract and the GTC, the provisions of the individual contract take precedence.
The general service descriptions, the current descriptions and specifications of the Software and the Tools and the applicable price list can be found on Amz2go’ website. Other promises, performance promises or collateral agreements are only valid if they are confirmed in writing by Amz2go.
Access to the Platform, the Software, and the Tools is provided by Amz2go 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 Amz2go, are only provided as accompanying services after prior agreement. As a general rule, Amz2go 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 Amz2go is obliged to provide such services by law.
Each Customer may create its own user account for the use of the Platform (“Customer Account”). Amz2go will grant the Customer through the Customer Account the contractually agreed access to the use of the Software and the Tools.
Amz2go is entitled to extend the scope of the Software functions at any time, to adapt them to technical progress and/or to make improvements. Amz2go is also entitled to introduce additional security measures or similar changes at any time.
If Amz2go 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 Amz2go is entitled to discontinue, change or offer such additional services only against additional payment. In such a case, Amz2go 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 analyzed by Amz2go. Therefore, under certain circumstances, Amz2go 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 the 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 Amz2go immediately of any changes in the contact data communicated to Amz2go as well as in any other data required for the proper execution of the contract.
Amz2go will inform the Customer of the technical requirements for the use of the Platform or other provided services. Such information is generally available in the product description and specification of the Software available on Amz2go’ website. 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, Amz2go can advise the Customer with regard to the required hardware and software environment. Amz2go 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 Amz2go shall be reported to Amz2go 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 Amz2go, which must not be stored on Amz2go’ 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 minimize 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 Amz2go immediately if it becomes aware that unauthorized third parties have obtained access data to the Platform. Amz2go 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 Amz2go. 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 Amz2go 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 Amz2go 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 Amz2go 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 Amz2go 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 Amz2go may not be used for unlawful or third party infringing purposes. In the event of a violation, Amz2go may suspend the provision of the services owed with immediate effect or block the Customer’s access to the Platform. The Customer indemnifies Amz2go from any damage resulting from a violation of sentence 1 or 2, including any lawyer’s fees incurred.
The Customer grants Amz2go the required right to use the data for the purpose of analyzing the delivered data in accordance with the contract.
Due to the nature of the required analysis of data, Amz2go may use the linked Amazon Account to also collect and analyze data that is not directly related to the Customer, such as data concerning products that are not sold by the Customer. Customer allows Amz2go to analyze such data as well.
In order to ensure the proper functioning of the Platform and the services offered, Amz2go 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 utilization.
Amz2go 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 Amz2go control (e. g. force majeure or downtimes of required Amazon services). Times during which Routine Maintenance Work is carried out are also excluded.
Amz2go 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.
Amz2go 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.
Amz2go liability for non-availability of the Platform due to the intent and gross negligence by Amz2go 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 Amz2go 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, Amz2go 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, Amz2go shall grant the Customer a reasonable period of time to secure and backup such data.
7. Payment Terms
The use of Amz2go’ services is subject to continuous charges as agreed in the individual contract or – if no such agreement has been made – according to the price list on Amz2go’ website.
Amz2go’ price lists are always subject to change, confirmation by Amz2go and non-binding. Orders shall only be deemed accepted if they have been confirmed by Amz2go in writing or if their execution has begun.
Amz2go may adjust the pricing at its reasonable discretion with effect for the future beginning with the first day of the extension of the contract to the extent necessary to fully off-set sustained increases of costs that are relevant for Amz2go’ cost calculation. For example, Amz2go may increase or reduce the pricing, if changes in the legal framework or requirements imposed by Amazon result in a change to the costs for Amz2go’ Services, such as license fees for the Amazon API. Amz2go may increase the price due to increases in a specific cost type only if and insofar as there is no compensation by a reduction in costs in other areas. For clarification, such price changes will have no effect during the respective current term of already concluded agreements. § 315 BGB (“German Civil Code”) remains unaffected.
All prices stated in the contract or in the price list are net prices and do not include the applicable statutory value added tax as well as any other taxes and levies that may be incurred.
Fixed fees are due and payable in advance for the respective contract term, unless a different payment period has been agreed.
Fees which according to the applicable price list 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 two months prior to the accounting period. A different duration of the observation period may be agreed in the individual contract or applicable according to the referenced price list.
As soon as the Platform will be linked with an Amazon Account, it will be able to calculate the applicable fees based on the revenue made by Customer with this linked Amazon Account during the last observation period and report the appropriate fee amount to Amz2go for the purpose of creating the respective invoice. Such fees are payable in advance for the subsequent accounting period. By choosing a price model that is dependent on the revenue of the Customer, Customer agrees that Amz2go and the Platform will use the revenue data available on the Amazon Account that has been linked to the Customer’s Account for the determination of applicable subscription fees for the access to the Platform.
Amz2go 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. Amz2go reserves the right to assert further claims, in particular, further damages caused by delay.
Amz2go offers the possibility to make payments by SEPA direct debit. If Customer wants to use SEPA direct debit, the Customer shall grant Amz2go a mandate for the SEPA basic direct debit procedure to collect all fees incurred by Amz2go under the contractual relationship for the bank details communicated by the Customer. The Customer will be informed in advance about the date of the debit, if necessary already together with the invoice. The period for advance SPEA direct debit information shall be shortened to at least three days prior to debiting. The Customer must ensure that the account is adequately covered.
Customer may only set-off with undisputed or legally binding counterclaims against Amz2go. 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 Amz2go 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, Amz2go 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. Amz2go 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 Amz2go’ Software or Tools is prohibited. The rights under §§ 69d, 69e UrhG (German Copyright Act) remain unaffected.
§ 9. Warranty and natural and technical limits of the Platform
The Customer shall notify Amz2go immediately of any errors or other faults affecting proper use of the Platform and shall provide Amz2go with reasonable support if such support is required for the rectification of a reported error or fault.
Amz2go, 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 Amz2go 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 analyzed by the Software in accordance with the settings of the Customers. An analysis of existing data alone cannot always reliably predict actual future behavior 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. Amz2go 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.
Amz2go 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. Amz2go 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 analyzed 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. Amz2go only warrants that the hardware and software used and provided by Amz2go are suitable for the Intended Use as described on Amz2go’ website.
Amz2go 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 Amz2go 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. Limitation of Liability
In the case of slight negligence, Amz2go shall only be liable for the violation of an essential contractual obligation. These are obligations, the fulfillment of which enables the proper execution of the contract and on whose observance the Customer may regularly rely. In such cases, Amz2go 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 Amz2go’ 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 Amz2go or its employees and representatives or in the event of Amz2go’ liability under the German Product Liability Act (Produkthaftungsgesetz) or as a result of a guarantee.
Amz2go 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. Amz2go 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. Amz2go is not liable for any misunderstanding or misapplication of the Tools and algorithms by the Customer.
Amz2go is also not liable if the Customer disregarded the disclosed technical and natural limits in the 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 Amz2go 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 Amz2go with the execution of the contract are bound to secrecy and data confidentiality.
Customer entrusts Amz2go with access to and analysis of significant and sensitive business data, such as sales and product data. Amz2go’ staff may access and analyze the data, in particular, to provide support for Customer. Amz2go 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 fulfillment of its obligations under this contract. Amz2go 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 Amz2go’ 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 Amz2go, Amz2go has the right to conduct statistical evaluations and analysis of all business data provided to Amz2go, but only after such data has been aggregated and anonymized. Amz2go 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
Amz2go provides the services by way of contract data processing, as far as personal data is concerned. In this respect, the Customer is the client. Amz2go shall perform the services as instructed by the Customer. The Customer undertakes to conclude with Amz2go 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.
Amz2go 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 Amz2go 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.
Amz2go 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.
14. Final provisions
The contractual relations between Amz2go 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 Amz2go.
The place of jurisdiction is Colorado, 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.