Marketparts – Terms of Service
For clarity and comprehension, we have defined certain words used in these Terms of Service. Additional definitions might be included elsewhere in the Terms of Service.
- “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with a party.
- “Brand features” means the trade names, trademarks, service marks, logos, domain names, and other distinctive brand features of each party, respectively, as secured by such party from time to time.
- “Indemnified liabilities” means (i) any settlement amounts approved by the indemnifying party; and (ii) damages and costs finally awarded against the indemnified party and its affiliates by a court of competent jurisdiction.
- “Intellectual property rights” means current and future worldwide rights under patent law, copyright law, trade secret law, trademark law, moral rights law, and other similar rights.
- “Legal process” means a data disclosure request made under law, governmental regulation, court order, subpoena, warrant, governmental regulatory or agency request, or other valid legal authority, legal procedure, or similar process.
- “Third-party legal proceeding” means any formal legal proceeding filed by an unaffiliated third party before a court or government tribunal (including any appellate proceeding).
Enrolment to the Services
To begin the enrolment process, you must become a registered user on marketparts.com and request the activation of the Services. By requesting the activation of or using the Services, you confirm that you chose the Services based on your own due diligence and consideration. Use of the Services is limited to parties that can lawfully enter into and form contracts under applicable law. As part of the application, you must provide us with your name, email address, phone number, country and job title, and the legal name of your organisation.
Modifications of the Services
We may make changes to the Services from time to time. In case of a material change to the Services, we will inform you by sending an email to the email address you provided upon enrolment to the Services.
Discontinuance of the Services
At our sole discretion, we may discontinue the Services for any reason at any time without liability to you. In such a case, you will be entitled to receive a prorated refund of the paid subscription fees (cf. section “Fees”).
Access to, and use of, the Services is contingent upon payment of subscription fees. Subscription fees will be invoiced in advance according to the schedule specified in your Specific Terms of Service. Subscription fees are not refundable unless otherwise indicated in your Specific Terms of Service or these Terms of Service.
Delinquent fees may bear interest at the rate of one-and-one-half percent (1.5 %) per month (or the highest rate permitted by law, if less) from the payment due date until paid in full. You will be responsible for all reasonable expenses (including attorneys’ fees) incurred by Marketparts in collecting such delinquent amounts, except where such delinquent amounts are due to our billing inaccuracies.
Any invoice disputes must be submitted before the invoice due date. If both parties determine that certain billing inaccuracies are attributable to Marketparts, we will not issue a corrected invoice, but will instead issue a credit memo specifying the incorrect amount in the affected invoice. If the disputed invoice has not yet been paid, we will apply the credit memo amount to the disputed invoice and you will be responsible for paying the resulting net balance due on that invoice.
You are responsible for any taxes, and you will pay us for the Services without any reduction for taxes. If we are obligated to collect or remit taxes imposed on you, the taxes will be invoiced to you, unless you provide us with a timely and valid tax exemption certificate (or other documentation as required for the exemption) authorised by the appropriate taxing authority. In some jurisdictions, the sales tax is due on the total purchase price at the time of sale and must be invoiced and collected at the time of the sale.
Suspension of the Agreement
Suspension for violation of the Agreement
If you do not comply with the Agreement (or if we have reasonable grounds to suspect or are investigating suspected non-compliance), we may suspend your use of the Services or take any other steps we consider appropriate. The duration of any suspension for violation will be until you have cured the breach that caused the suspension.
Suspension to comply with applicable laws
At our sole discretion, we may suspend the provision of the Services at any time if required to comply with any applicable law. In such a case, you will be entitled to receive a prorated refund of the paid subscription fees (cf. section “Fees”).
During the course of your use of the Services, each party may receive information relating to the other party that is marked as confidential or would normally be considered confidential information under the circumstances (hereinafter “Confidential Information”).
Unless otherwise indicated in this section, the recipient will not disclose the discloser’s Confidential Information, except to employees, affiliates, agents, or professional advisors (hereinafter the “Delegates”) who need to know it and who have a legal obligation to keep it confidential. The recipient will use the Confidential Information only to exercise rights and fulfil obligations under the Agreement, while using reasonable care. The recipient will ensure that its Delegates are also subject to the same non-disclosure and use obligations.
Disclosure of Confidential Information
The recipient may disclose the discloser’s Confidential Information:
- In accordance with a legal process; or
- With the discloser’s written consent.
Before the recipient discloses the discloser’s Confidential Information in accordance with a legal process, the recipient will use commercially reasonable efforts to promptly notify the discloser (for example, we will inform you by sending an email to the email address you provided upon enrolment to the Services). The recipient does not need to provide notice before disclosure if the recipient is informed that:
- It is legally prohibited from giving notice; or
- The legal process relates to exceptional circumstances involving danger of death or serious physical injury to any person.
The recipient will comply with the other party’s reasonable requests opposing disclosure of its Confidential Information.
Intellectual property rights & brand features
Intellectual property rights
Except as expressly stated, the Agreement does not grant either party any rights, implied or otherwise, to the other’s content or any of the other’s intellectual property. As between the parties, you own all intellectual property rights in your data and we own all intellectual property rights in the Services.
Display of brand features
We may display only those brand features of yours authorised by you (such authorisation is provided by you uploading your brand features into the Services) within designated areas of the webpages displaying the Services. We may also display our brand features on the webpages displaying the Services to indicate that the Services are provided by Marketparts. Neither party may display or use the other party’s brand features beyond what is allowed in the Agreement without the other party’s prior written consent.
Brand features limitation
Any use of a party’s brand features will inure to the benefit of the party holding intellectual property rights in those brand features. A party may revoke the other party’s right to use its brand features under the Agreement with written notice to the other and a reasonable period to stop the use.
In connection with your use of the Services:
- You may state publicly that you are a Marketparts customer; and
- We may orally state that you are a Marketparts customer and we may include your name or brand features in a list of Marketparts customers in our online or offline promotional materials. Neither party needs approval if it is using the other party’s name or brand features in a manner that is substantially similar to a previously approved manner.
Representations, warranties and disclaimers
Representations and Warranties
Each party represents that:
- It has full power and authority to enter into the Agreement; and
- It will comply with all laws and regulations applicable to its provision, or use, of the Services, as applicable.
EXCEPT AS EXPRESSLY PROVIDED FOR IN THE AGREEMENT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW:
- NEITHER PARTY NOR ITS SERVICE PROVIDERS MAKES ANY OTHER WARRANTY AND THERE ARE NO CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE AND NONINFRINGEMENT; AND
- NEITHER MARKETPARTS NOR ITS SERVICE PROVIDERS WARRANTS THAT OPERATION OF THE SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED. EXCEPT AS EXPRESSLY PROVIDED FOR IN THE AGREEMENT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, MARKETPARTS MAKES NO REPRESENTATIONS ABOUT ANY CONTENT OR INFORMATION MADE ACCESSIBLE BY OR THROUGH THE SERVICES.
Term of the Agreement
The term of the Agreement depends on the type of plan you subscribe to.
A short-term plan remains in effect for a set period of time, defined in your Specific Terms of Service. You can subscribe to a short-term plan only if you were not a Marketparts client in the twelve (12) months preceding the activation date of your plan.
A short-term plan cannot be extended or renewed. To keep using the Services after the expiration date of your short-term plan, you must subscribe to an auto-renewal plan.
An auto-renewal plan remains in effect for the initial term specified in your Specific Terms of Service. At the end of the initial term, the Agreement will automatically renew for consecutive renewal terms as specified in your Specific Terms of Service, and subscription fees will be due.
You can unsubscribe at any time by providing us with written notice of your decision not to renew at least ninety (90) days prior to the termination date.
We may revise our rates at any time. In such a case, we will provide you written notice (which may be by email) at least one hundred and twenty (120) days before the revised rates apply.
Termination of the Agreement
Termination for Cause
Either party may suspend performance or terminate the Agreement if:
- The other party is in material breach of the Agreement and fails to cure that breach within thirty (30) days after receipt of written notice;
- The other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety (90) days; or
- The other party is in material breach of the Agreement more than two times notwithstanding any cure of such breaches.
Effects of Termination
If the Agreement terminates or expires, then:
- The rights granted by one party to the other will cease immediately (except as stated otherwise in these Terms of Service);
- We will provide you with access to, or the ability to export, your data for a commercially reasonable period of time after the effective date of termination or expiry of the Agreement;
- All fees owed by you to us are immediately due upon receipt of the final invoice;
- We will delete your data in accordance with the terms of the Agreement; and
- Upon request, each party will promptly use reasonable efforts to return or destroy any remaining Confidential Information of the other party.
Defence and indemnity
Our indemnification obligations
We will defend and indemnify you against indemnified liabilities in any third-party legal proceeding to the extent arising from an allegation that your use in accordance with the Agreement of the technology used to provide the Services (excluding any open source software) or of our brand features infringes the third party's intellectual property rights.
Your indemnification obligations
You will defend and indemnify us against indemnified liabilities in any third-party legal proceeding to the extent arising from:
- Your data or brand features; or
This section will not apply to the extent the underlying allegation arises from:
- Modifications to the indemnifying party’s technology or brand features by anyone other than the indemnifying party; or
- Combination of the indemnifying party’s technology or brand features with materials not provided by the indemnifying party.
Obligations under this section are conditioned on the following:
- The indemnified party has promptly notified the indemnifying party in writing of any allegation(s) that preceded third-party legal proceeding and cooperates reasonably with the indemnifying party to resolve the allegation(s) and third-party legal proceeding. If breach of this notification obligation prejudices the defence of the third-party legal proceeding, the indemnifying party’s obligations under this section will be reduced in proportion to the prejudice; and
- The indemnified party tenders sole control of the indemnified portion of the third-party legal proceeding to the indemnifying party, subject to the following: (i) the indemnified party may appoint its own non-controlling counsel, at its own expense; and (ii) any settlement requiring the indemnified party to admit liability, pay money, or take (or refrain from taking) any action, will require the indemnified party’s prior written consent, not to be unreasonably withheld, conditioned, or delayed.
If Marketparts reasonably believes the Services might infringe a third party’s intellectual property rights, then we may, at our sole option and expense:
- Procure the right for you to continue using the Services;
- Modify the Services to make them non-infringing without materially reducing their functionality; or
- Replace the Services with a non-infringing, functionally equivalent alternative.
If we do not believe the remedies in this section are commercially reasonable, then we may suspend or terminate your use of the impacted Services. In such a case, you will be entitled to receive a prorated refund of the paid subscription fees (cf. section “Fees”).
Sole rights and obligations
Without affecting either party’s termination rights, this section states the parties’ only rights and obligations under the Agreement for any third party's intellectual property rights allegations and third-party legal proceedings.
Limitation of liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND SUBJECT TO SECTION “EXCEPTIONS TO LIMITATIONS”:
- NEITHER PARTY WILL HAVE ANY LIABILITY ARISING OUT OF OR RELATING TO THE AGREEMENT FOR: (i) THE OTHER PARTY’S LOST REVENUES OR PROFITS; (ii) INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL LOSSES (WHETHER OR NOT FORESEEABLE OR CONTEMPLATED BY THE PARTIES AT THE EFFECTIVE DATE); OR (iii) EXEMPLARY OR PUNITIVE DAMAGES; AND
- EACH PARTY'S TOTAL LIABILITY FOR DIRECT DAMAGES ARISING OUT OF OR RELATING TO THE AGREEMENT IS LIMITED TO THE AMOUNT PAID BY YOU DURING THE TWELVE MONTHS BEFORE THE EVENT GIVING RISE TO LIABILITY.
Exceptions to limitations
NOTHING IN THE AGREEMENT EXCLUDES OR LIMITS EITHER PARTY’S LIABILITY FOR:
- DEATH OR PERSONAL INJURY RESULTING FROM ITS NEGLIGENCE OR THE NEGLIGENCE OF ITS EMPLOYEES OR AGENTS;
- FRAUD OR FRAUDULENT MISREPRESENTATION;
- INFRINGEMENT OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS;
- PAYMENT OBLIGATIONS;
- OBLIGATIONS UNDER SECTION “DEFENSE AND INDEMNITY”; OR
- MATTERS FOR WHICH LIABILITY CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
Other legal provisions
The Terms of Service are current as of November 7th, 2018.
We reserve the right to make commercially reasonable changes to the Terms of Service from time to time. If we make a material change to the Terms of Service, we will inform you by sending an email to the email address you provided upon enrolment to the Services. If the change has a material adverse impact on you and the change is not a result of Marketparts complying with a court order or applicable law, you may notify us within thirty (30) days after being informed of the change that you do not agree with the change. If you notify us as required, then you will remain governed by the terms in effect immediately before the change until the end of the then-current term, unless the modification to the Terms of Service is in response to a court order or to comply with applicable law. If the Agreement renews, it will do so under the updated Terms of Service.
You acknowledge that you have read the Privacy statement, as it may be updated from time to time. You further acknowledge that, to the extent required under applicable law, by using the Services you consent to the collection, use, and disclosure by us of your personal information (whether previously collected or to be collected) for the purposes identified therein.
In these Terms of Service:
- the captions and headings are for convenience only and do not constitute substantive matter and are not to be construed as interpreting the contents of these Terms of Service;
- the word "including", the word "includes" and the phrase "such as", when following a general statement or term (whether or not non-limiting language such as "without limitation" or "but not limited to" or other words of similar import are used with reference thereto), is not to be construed as limiting, and the word "or" between two or more listed matters does not imply an exclusive relationship between the matters being connected; and
- all references to websites addresses or URLs will also include any successor or replacement websites containing substantially similar information as the referenced websites.
No implied waiver
If you do not comply with these Terms of Service, and we do not take action immediately, this does not mean we are giving up any rights that we may have (such as taking action in the future).
Unless specified otherwise herein, any notice, consent, waiver, approval, authorisation or other communication to be delivered in connection with the Agreement:
- by us to you will be deemed to have been effectively and validly given if sent to the email address you provided upon enrolment to the Services;
- by you to us will be deemed to have been effectively and validly given only if in writing and delivered or submitted via the email address firstname.lastname@example.org.
Neither party may assign or transfer any part of the Agreement without the written consent of the other party, except to an affiliate, but only if:
- The assignee agrees in writing to be bound by the terms of the Agreement; and
- The assigning party remains liable for obligations incurred under the Agreement before the assignment.
Any other attempt to transfer or assign is void.
You agree that no joint venture, partnership, fiduciary, employment or agency relationship exists between you and us because of these Terms of Service.
Change of control
Upon a change of control (for example, through a stock purchase or sale, merger, or other form of corporate transaction):
- The party experiencing the change of control will provide written notice to the other party within thirty (30) days after the change of control; and
- The other party may immediately terminate the Agreement any time between the change of control and thirty (30) days after it receives the above-mentioned written notice.
No third-party beneficiaries
There are no third-party beneficiaries to the Agreement.
Nothing in the Agreement will limit either party’s ability to seek equitable relief.
The Agreement is governed by French law. FOR ANY DISPUTE ARISING OUT OF OR RELATING TO THE AGREEMENT, THE PARTIES CONSENT TO PERSONAL JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, THE COURTS IN FRANCE.
The following sections will survive expiration or termination of the Agreement: section “Definitions”, section “Fees”, section “Confidentiality” sub-section “Intellectual property rights” of section “Intellectual property rights & brand features”, sub-section “Effects of termination” of section “Termination of the Agreement”, section “Defence and indemnity, section “Limitation of liability” and section “Other legal provisions”.
Neither party will be responsible for a failure to fulfil its obligations under the Agreement or for delay in doing so if such failure or delay is due to circumstances beyond its reasonable control, such as acts of nature, acts of government, war, riots, strikes and accidents in transportation, but excluding a lack of financing, cash or credit.
If a particular term is found to be unenforceable, this will not affect any other terms.