Terms of Use

These Terms of Use form an integral part of the Agreement which governs the use of the Service provided by the Markaiter.com entity specified in the Order Form (or in case no entity is specified, Markaiter SAS) (“Markaiter.com”) to the customer defined in the Order Form or using the Service (the "Customer"). By signing an Order Form or by using the Service, the Customer acknowledges and agrees that the Customer is subject to these Terms of Use and that the Customer accepts these Terms of Use.

​

1. Definitions
As used in these Terms of Use, unless expressly otherwise stated or evident in the context, the following capitalized terms shall have the following meaning.
1.1 “Ad Account” means a predefined advertising account (i) registered with Markaiter.com and associated with the advertising account(s) on the Online Advertising Platform or (ii) to which the Service applies to as agreed between the Parties regardless of whether this advertising account is registered with Markaiter.com.
1.2 “Advertising Spend” means all charges payable by the Customer for all advertising conducted with respect to an Ad Account in the Online Advertising Platform and regardless of whether the Customer conducted advertising campaigns using the Service or not.
1.3 “Affiliate” means an entity which is a subsidiary or parent of, or under common control with, the Party. For these purposes, an entity shall be treated as being controlled by another if that other entity has fifty (50) per cent or more of the voting shares in such entity, or that other entity is able to direct the Party’s affairs or is able to appoint a majority of the members of the board of directors or an equivalent body.
1.4 “Agreement” means these Terms of Use together with the Order Form(s) and any appendices thereto which shall govern the provision of the Service by Markaiter.com and the use of the Service by the Customer.
1.5 “Customer Content” means any advertising content and/or materials and other information provided by Customer to Markaiter.com for the purpose of the Service, including without limitation any third party content licensed or acquired: (i) by the Customer, or (ii) by Markaiter.com on behalf of and with the authorization of the Customer.
1.6 “Online Advertising Platform” means any platform, website or social media channel accessible online where advertisements may be displayed or otherwise distributed by using the Service.
1.7 “Order Form” means each order form through which the Customer orders the Service and which, by reference, incorporates these Terms of Use.
1.8 “Party” means Markaiter.com or Customer separately. Customer and Markaiter.com together are referred to as the “Parties”.
1.9 “Personal Data” means any information relating to an identified or identifiable natural person.
1.10 “Service” means the provision of the services based on Customer’s active Subscription(s).
1.11 “Markaiter.com Software” means Markaiter.com’s proprietary advertising software, including any changes, updates, upgrades, modifications and enhancements made thereto, and any related Markaiter.com’s proprietary modules, add-ons, tools, browser plugins, scripts and applications as well as any documentation relating thereto all of the foregoing to the extent offered by Markaiter.com.
1.12 "Subscription” means the services described in each individual Order Form. In case there are multiple active Order Forms between Markaiter.com and Customer, the services provided under each Order Form are considered as a separate Subscription. In case the Subscription is not specified in an Order Form, Subscription means the provision of access to Markaiter.com’s Software-as-a-Service advertising tool and documentation that can be used by Customer via the Internet to create, manage and optimize advertising campaigns on supported Online Advertising Platform(s) and access to the Markaiter.com knowledge base.
1.13 “Terms of Use” means these terms and conditions applicable to the use of the Service. Markaiter.com may update and modify the Terms of Use from time to time and by continuing to use the Service after having been informed of the modification by written notice of Markaiter.com (email being sufficient), the Customer accepts the modification and the revised Terms of Use shall enter into force after thirty (30) days have elapsed from the written notice of revised Terms of Use.

​

2. General Service Terms
2.1 The Service consists of the Subscription(s) agreed between the Parties.
2.2 The Service is designed to help the Customer in creating, managing and/or optimizing its advertising campaigns but the Customer remains responsible for how the Customer uses the Service and for achieving the intended goals and results of Customer's advertising campaigns. Markaiter.com’s Service operates between the Customer and the Online Advertising Platform on which the advertising campaigns are being conducted, and it is the responsibility of the Customer to ensure that the output and results of the Service meet Customer's expectations and requirements.
2.3 Markaiter.com is entitled to produce the Service as it deems appropriate. The Service and the Online Advertising Platform are constantly evolving and, as a result, the features made available on the Service may change. In the event of any substantial or major change to the Service, Markaiter.com will inform the Customer on its website at http://Markaiter.com/ or via the Service (e.g., in the platform, via the knowledge base or by email to the email address on record with Markaiter.com).
2.4 Markaiter.com provides support as set forth in the Order Form. Customer requesting support must allow Markaiter.com to access the applicable ad accounts and provide any additional information as is reasonably necessary to provide the support. As reasonably necessary to address Customer’s support request, Markaiter.com's personnel may view Customer’s ad accounts, settings, and campaigns and access the specific user view of Customer’s user, to respond to the Customer's issue. Upon the Customer’s request or approval, Markaiter.com’s personnel may also modify Customer’s advertising campaigns and other settings in Customer’s Ad Accounts, but Customer shall remain responsible for these advertising campaigns and the goals and results thereof.
2.5 The Service does not include, and Markaiter.com does not offer, any telecommunication or networking services or equipment, security services or systems, or hardware or other equipment. If Customer requires any of the foregoing, Customer must obtain such systems, services and equipment at its own expense from third party vendors.
2.6 The Customer undertakes not to use the Service for any unlawful purpose. The Customer also undertakes to comply with Markaiter.com's reasonable directions and requests related to the Service.
2.7 The Customer is responsible for complying with all laws, rules and regulations applicable to Customer, including all laws, rules and regulations related to advertising and conducting advertising campaigns.

3. Registration
3.1 Unless otherwise agreed, the Customer shall register on https://app.markaiter.com/ before commencing the use of the Service. In connection with the registration, the Customer shall authorize Markaiter.com to access and use the Customer’s Online Advertising Platform accounts, ad accounts, and all the information therein as well as Online Advertising Platform accounts of Customer’s personnel using the Service to enable proper fulfillment of this Agreement. Customer shall register the Ad Accounts with the Service. Markaiter.com shall confirm Customer's registration in due course after having received the registration. Unless otherwise agreed, the Customer may add and remove its Ad Accounts in the Service at any time in its sole discretion. The Customer represents and warrants that it has full rights and authority to give the Markaiter.com the rights above and to register the ad accounts with the Service. For clarity, if the Customer uses the Service on behalf of a third party (e.g. its end customer), the Customer shall ensure that the aforementioned authorization and registration obligations are complied with also with respect to such third party.

4. Rights of Use and Proprietary Rights
4.1 Subject to the Customer’s compliance with all the terms of this Agreement, Markaiter.com grants the Customer a non-exclusive, non-transferable, limited right to access and use the Service, against due payment of the applicable fees, solely in connection with the Ad Accounts in the applicable Online Advertising Platform.
4.2 Customer shall not i) attempt to copy, modify, duplicate, create or prepare derivative works from or based upon, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Service or Markaiter.com Software in any form or media or by any means; ii) access all or any part of the Service in order to build, plan or develop a product or service or feature which competes with the Service, Markaiter.com Software or any other Markaiter.com’s service or offering; iii) attempt to obtain, or assist third parties in obtaining, unauthorised access to the Service or Markaiter.com Software; iv) license, sell, rent, lease, transfer, assign, distribute, display, disclose or otherwise make the Service available to any unauthorised third party; or v) reverse engineer, decompile, decode, decrypt, disassemble, or attempt to derive any source code from the Service or Markaiter.com Software (except and only to the extent any foregoing restriction is prohibited by applicable law) or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Service, Markaiter.com Software or any software, documentation or data related to the Service. If Customer grants any subcontractor, supplier, end-customer, Affiliate, or other third party any access to the Service, such subcontractor, supplier, end-customer, Affiliate, and third party shall be considered equivalent to the Customer for the purposes of these Terms of Use and the Customer shall be fully responsible and liable for all acts and omissions of and any damage caused in connection with the use of the Service to such subcontractor, supplier, end-customer, Affiliate, and third party as well for ensuring their compliance with this Agreement.
4.3 The Customer agrees and acknowledges that the title and all intellectual property rights in and to the Service and any data, documentation, code, images and/or Markaiter.com Software related thereto are owned and remain vested in Markaiter.com or a third party. No intellectual property rights of Markaiter.com shall be transferred pursuant to these Terms of Use. Customer (or Customer’s third party licensor) retains all of its rights in all Customer Content which the Customer provides to Markaiter.com for the performance of the Service (including without limitation material and content which the Customer has purchased or licensed from a third party). Customer hereby grants Markaiter.com a non-exclusive, worldwide, and limited right to use such Customer Content for purposes of delivering and performing the Service under this Agreement. In case there are some third party restrictions relating to the Customer Content, the Customer shall notify Markaiter.com of the same when providing Markaiter.com with the Customer Content and the Parties shall discuss and agree in good faith on how such restrictions are taken into account in the provision of the Service. This provision does not limit Markaiter.com’s rights under Section 8.2 below or rights to Feedback (as defined below).
4.4 If the Customer provides feedback, requests features, changes or tools, or otherwise provides comments relating to the Service or provides suggestions or ideas for improving the Service (all the aforementioned referred to as “Feedback”), notwithstanding anything stated to the contrary in this Agreement, the Customer agrees that such Feedback will be fully assigned to Markaiter.com without any obligation for Markaiter.com to pay separate compensation, and Markaiter.com shall have the title of, and own all rights to, such Feedback and may thus use and incorporate them into its product offerings.
4.5 For the avoidance of doubt, if the Customer uses or Service includes third-party solutions for which the Customer has a direct contractual relationship with the providers of these third-party solutions (such as mobile measurement providers and analytics providers) regardless of anything to the contrary stated herein, their use shall be exclusively governed by their provider's terms and conditions in their standard form, or as negotiated between the Customer and such third party, applicable to such solutions. This Agreement does not modify or amend, and is not in lieu of, any terms, policies or rules of an Online Advertising Platform or any other third-party provider used by Customer.

​

5. Fees
5.1 Unless expressly stated otherwise in the Order Form, if the Customer has multiple Subscriptions, Markaiter.com's fee percentage is based on Advertising Spend incurred under each Subscription separately and the Advertising Spend is not aggregated between Subscriptions. The fee shall be calculated and invoiced after each calendar month based on the Customer’s Advertising Spend. For the first calendar month of use (partial or not), at least a monthly minimum fee is charged. Unless otherwise expressly agreed in an Order Form, Markaiter.com’s fee is a defined percentage of Customer's Advertising Spend per Ad Account(s) and a required monthly minimum fee that are both set forth in the price list made publicly available at http://markaiter.com/pricing. The fee shall be calculated and invoiced after each calendar month based on the Customer’s Advertising Spend. For the first calendar month of use (partial or not), at least a monthly minimum fee is charged.
5.2 If the Agreement is terminated as described hereinafter in Section 9, for the last month of use, at least a monthly minimum fee is charged if the Agreement had terminated before the end of the calendar month.
5.3 Unless explicitly stated to the contrary in the Order Form, Markaiter.com may change the pricing from time to time upon thirty (30) days prior written notice (email being sufficient). The change shall not affect the fees for invoicing periods commenced before the effective date of the change. In case of a price change, the Customer shall be entitled to terminate this Agreement to end on the effective date of the price change by notifying Markaiter.com thereof in writing.
5.4 The fees for the Service are invoiced monthly in euros via credit card or invoice, depending on the payment method offered by Markaiter.com at the time and chosen by the Customer. Customer shall remit payment thirty (30) days net from the date of the invoice. Interest on delayed payments accrues at 12% per annum or the maximum legal interest rate for late payment, whichever is less. The Customer is liable to pay Markaiter.com’s reasonable expenses and fees relating to collection of late payments. Customer shall provide Markaiter.com with correct invoicing information (including without limitation any purchase order numbers) by the last business day before the end of the invoiced calendar month and must ensure that Customer’s invoicing information remains correct and up to date. If Customer in good faith believes that Markaiter.com has charged Customer incorrectly, Customer shall contact Markaiter.com in writing no later than ten (10) business days after the date of the first invoice in which the error appeared, in order to receive an adjustment or credit.
5.5 The fees are exclusive of VAT and any other governmental taxes and levies. However, to the extent that any US state sales tax is applicable, Markaiter.com shall add the applicable sales tax amount directly to the invoice. Except with respect to sales/use taxes in the US that Markaiter.com is lawfully obligated to charge, the Customer shall be solely responsible for VAT and other taxes and levies imposed on the Customer by applicable laws and authorities in relation to the fees. The Customer shall be solely responsible for VAT and other taxes and levies imposed on the Customer by applicable laws and authorities in relation to the fees and shall without undue delay after Markaiter.com’s request provide Smart with a tax certificate or any other such document, proof or certificate in order to process any refunds Markaiter.com is entitled to under applicable laws and the Customer shall carry all the costs and expenses incurred by Markaiter.com due to Customer failing to comply with this obligation.

​

6. Warranties
6.1 Markaiter.com makes commercially reasonable efforts to ensure that the Markaiter.com Software will be available for use on a 24/7 basis excluding temporary maintenance, updating and repairs. Markaiter.com does not assume any liability for usage interruptions, breaks or errors, but it endeavours to inform the Customer of any issues with the Markaiter.com Software whenever reasonably possible.
6.2 Markaiter.com will provide the Service in a good and workmanlike manner and in accordance with the applicable industry practices and standards. Markaiter.com does not warrant that the Service will be uninterrupted or error-free. However, Markaiter.com agrees to use commercially reasonable efforts to be available to support the Customer and to correct any material error or deficiency in the Service.
6.3 The warranty does not cover errors or deficiencies attributable to (a) changes to the Service made by the Customer which have not been approved by Markaiter.com in writing; (b) use of the Service contrary to these Terms of Use, or the written instructions given by Markaiter.com; (c) use of the Service contrary to the Online Advertising Platform terms and policies; (d) disturbances or interruptions in the Service due to data network; or (e) a service or product not supplied by Markaiter.com or other similar reason outside of the Service.
6.4 The Customer acknowledges that the use of the Service is dependent on the applicable Online Advertising Platform in which Customer's advertising campaigns are carried out and that the actions of the Customer and third-party solution providers may also affect the use of the Service. Customer is responsible for accepting and complying with any agreements, terms, policies and guidelines of Online Advertising Platforms and third-party solution providers it uses in connection with the Service. Markaiter.com does not accept any liability for the operation and function of any Customer or third-party products, services, actions or omissions, including but not limited to, those of third-party solution providers, the Online Advertising Platforms or any third party that operates in or with the applicable Online Advertising Platform.
6.5 TO THE EXTENT ALLOWED BY MANDATORY LAW, MARKAITER.COM  DOES NOT HAVE ANY OTHER RESPONSIBILITY OR LIABILITY FOR THE SERVICE. THE SERVICE IS PROVIDED "AS IS" AND "AS AVAILABLE" AND MARKAITER.COM EXPRESSLY DISCLAIMS ALL OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, CORRECTNESS AND FITNESS FOR A PARTICULAR PURPOSE.

​

7. IPR Indemnification and Limitation of Liability
7.1 Markaiter.com will defend or settle any third party claim made against the Customer alleging that the (i) Markaiter.com Software; (ii) Markaiter.com-owned part of the Deliverables prepared by Markaiter.com for the Customer under the Creative Service; or (iii) actions of Markaiter.com under the Managed Service for which Markaiter.io is responsible under the Agreement, infringes a third party intellectual property right. Customer agrees i) to promptly notify Markaiter.com in writing of any such claim, ii) to allow Markaiter.com to have sole control over the defence, litigation and/or settlement of any such claim and iii) to cooperate with Markaiter.com in the investigation, defence and settlement thereof. Markaiter.com shall indemnify Customer for such claim by paying the costs and reasonable attorneys’ fees Customer incurs as a result of such claim, including damages awarded to such third party in a judgment finally awarded against Customer or settlement approved by Markaiter.com. If such claim is made or, in Markaiter.com's opinion, is likely to be made, then Markaiter.com may, at its sole discretion, (i) modify the Service or if it’s not commercially reasonable for Markaiter.com to modify the Service, (ii) terminate the Service and/or the Agreement with immediate effect. Markaiter.com shall have no obligations under this Section 7.1 to the extent any infringement claim arises from: a) the Customer’s combination of the Service or Markaiter.io Software with other software or services or Customer’s modification to any part of the Service or Customer’s violation of Section 4.2 if such claim would not have been made but for Customer’s combination or modification or Customer’s violation of Section 4.2; or b) information or materials provided by the Customer and used by Markaiter.com for the performance of the Service in accordance with this Agreement or c) the Customer Content. In no event shall the termination of the Service or the Agreement due to infringement relieve Markaiter.com from its obligation to defend and indemnify Customer as set forth herein. Markaiter.com shall not settle any claim on behalf of Customer without Customer’s prior written consent if the settlement requires any admission of fault by Customer.
7.2 The Customer shall defend or settle any claim made against Markaiter.com, and if applicable, its licensors, and Affiliates, and each such party’s officers, directors, and employees, if such claim arises out of or in connection with: (a) Customer disrupting the Service in violation of applicable legislation or Customer’s breach of Section 4.2 of these Terms of Use; or (b) Customer’s infringement or alleged infringement of any third party’s intellectual property right or (c) the Customer Content. Markaiter.com agrees i) to promptly notify the Customer in writing of any such claim, ii) to allow the Customer to have sole control over the defence, litigation and/or settlement of any such claim and iii) to reasonably cooperate with the Customer in the investigation, defence and settlement thereof. The Customer shall indemnify Markaiter.com and if applicable, its licensors, and Affiliates, and each such party’s officers, directors, and employees for such claim by paying the costs and reasonable attorneys’ fees incurred by the foregoing persons or parties as a result of such claim, including damages awarded to such third party in a judgment finally awarded against Markaiter.com or settlement approved by the Customer. In no event shall the termination of the Service or the Agreement relating to circumstances in points (a) to (c) relieve Customer from its obligation to defend and indemnify Markaiter.com as set forth herein. Customer shall not settle any claim on behalf of Markaiter.com without Markaiter.com’s prior written consent if the settlement requires any admission of fault by Markaiter.com.
7.3 The foregoing remedies constitute Customer’s sole and exclusive remedies and Markaiter.com’s entire liability with respect to third party infringement claims.
7.4 NEITHER PARTY SHALL BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (INCLUDING ATTORNEYS' FEES RELATING TO SUCH EXCLUDED DAMAGES) IN ANY WAY ARISING IN CONNECTION WITH THE SERVICE OR THIS AGREEMENT, OR FOR ANY LOSS OF DATA, LOST BUSINESS OPPORTUNITIES OR LOST PROFITS, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7.5 EACH PARTY’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT WHETHER ARISING OUT OF OR IN CONNECTION WITH BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER THEORY OF LIABILITY MAY NOT IN ANY CALENDAR YEAR STARTING FROM THE EFFECTIVE DATE OF THE ORDER FORM OR FROM FIRST USE OF THE SERVICE, WHICHEVER IS EARLIER, EXCEED AN AMOUNT EQUAL TO THE AGGREGATE AMOUNT OF FEES RECEIVED BY MARKAITER.COM FROM THE CUSTOMER UNDER THE APPLICABLE SUBSCRIPTION DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
7.6 THE LIMITATIONS SET FORTH ABOVE IN SECTION 7.4 AND 7.5 SHALL NOT APPLY TO (i) A VIOLATION OF SECTION 4.2; OR (ii) THE INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTIONS 7.1 AND 7.2.

8. Confidentiality
8.1 Each Party (“Receiving Party”) shall keep in confidence all material and information received from the other Party (“Disclosing Party”) that is marked as confidential or which should be understood to be confidential (“Confidential Information”), and may not use Confidential Information of the Disclosing Party for any purpose other than for the proper fulfilment of the Agreement. The confidentiality and non-use obligations shall not, however, be applied to material and information: (a) which is generally available or otherwise public; or (b) which the Receiving Party has received from a third party without any obligation of confidentiality; or (c) which was in the possession of the Receiving Party prior to receipt of the same from the Disclosing Party without any obligation of confidentiality related thereto or breach of confidentiality obligations. Receiving Party may also disclose the Disclosing Party’s Confidential Information to the extent required by applicable law, regulation, court order or lawful request of a governmental body.
8.2 Notwithstanding the confidentiality provisions, Markaiter.com may collect, use and analyse the Customer’s advertising spend data, settings and trends but may only disclose this Customer data if the data is de-identified or if it is not attributable to any individual or company. In addition, Markaiter.com may collect, create, analyze, and use aggregated data, de-identified data and other information (such as product or feature usage, device metrics/metadata etc.) to facilitate market research and analysis, quality control, product and service development/improvement and to provide support and maintenance services. Markaiter.com may use, store, or disclose such information or material derived from such information, as long as it is in a de-identified form or is not attributable to any individual or company.
8.3 Receiving Party shall promptly upon termination of the Agreement cease using the Disclosing Party’s Confidential Information and has no longer an obligation to store Disclosing Party’s Confidential Information. Disclosing Party has the right at any time to request the Receiving Party to have the Disclosing Party’s Confidential Information deleted and the Receiving Party is obliged to comply with such request without undue delay. Each Party shall, however, be entitled to retain the copies required by law or regulations and Markaiter.com may continue the use of information as permitted under Section 8.2.
8.4 This Agreement will remain in force with respect to any Confidential Information disclosed during the term of this Agreement for five (5) years from the disclosure of each respective Confidential Information except that the foregoing time limit shall not apply to trade secrets for which the time limit shall continue as long as the information qualifies as trade secret under the governing law of this Agreement.

9. Term and Termination
9.1 After the Initial Term, Customer may terminate: (i) the Agreement and the use of the Service, or (ii) an independent Subscription under a specified Order Form, with immediate effect (except Managed Service or Creative Service that require thirty (30) days’ prior written notice) by a prior written notice (email being sufficient) to the account manager assigned to Customer or to maugis@markaiter.com, in which case Markaiter.com shall send the Customer a written confirmation (email being sufficient) regarding termination without undue delay. In case of termination of a Subscription under a specified Order Form, the rest of the Agreement and the use of the Service remains unaffected. Upon termination Markaiter.com shall end charging of the Customer for all the terminated Subscriptions. However, at least a monthly minimum fee is charged if the Subscription has been terminated before the end of the calendar month.
9.2 Markaiter.com may terminate: (i) the Agreement and the use of the Service, or (ii) an independent Subscription under a specified Order Form, for convenience upon thirty (30) days prior written notice (email being sufficient). In case of termination of a Subscription under a specified Order Form, the rest of the Agreement and the Service remains unaffected.
9.3 Either Party may terminate (i) this Agreement or (ii) an independent Subscription under a specified Order Form with immediate effect, if the other Party is in material breach of its obligations hereunder and fails to remedy such breach within fourteen (14) days after written notice (email being sufficient) is given by the non-breaching Party.
9.4 Upon full or partial expiration or termination of this Agreement, the Customer is obliged to cease the use of the affected parts of the Service and shall return or, upon Markaiter.com’s request, destroy Markaiter.com’s material in its possession to the extent said material relates to the affected parts of the Service, and upon Markaiter.com's request confirm in writing that it has complied with the aforesaid.
9.5 Upon termination for whatever reason, no paid fees will be returned by Markaiter.com, and the Customer is obliged to pay the fees past due at the effective date of such termination. In the event that fees are not fully paid when due or the obligations set out in this Agreement are not otherwise followed by the Customer, Markaiter.com reserves the right to terminate the Customer’s right to use the Service with immediate effect.

​

10. Processing of Personal Data
10.1 The Customer expressly acknowledges and agrees that it is Customer's obligation to observe and to comply with any and all privacy and data protection laws (including but not limited to the EU General Data Protection Regulation, GDPR), regulations and terms applicable to Personal Data contained in the materials provided by the Customer for the purposes of the Service regardless of the country/state in which the Customer is based. The above mentioned includes, but is not limited to, complying with the terms and restrictions related to Customer's use of customer/contact databases and complying with any applicable privacy policies and cookie opt-in policies.
10.2 In the event that (i) Markaiter.com in connection with the Service processes Personal Data as a processor on behalf of the Customer and (ii) the applicable legislation (such as the GDPR) requires Parties to put in place a data processing agreement (DPA) to govern such data processing, the DPA attached to these Terms of Use as Annex A shall apply. In such event, the DPA set forth in Annex A forms an integral part of the Agreement and shall be applied to the processing of Personal Data by Markaiter.com as a processor.
10.3 Markaiter.com may collect and process Personal Data regarding Customer’s personnel and/or other representatives of the Customer in connection with the Service. Such processing is described in Markaiter.com’s Privacy Policy, the current version of which is available via the Service and on Markaiter.com’s website. The Customer shall ensure that its employees and representatives are informed about the contents of Markaiter.com Privacy Policy.

​

11. Applicable Law and Dispute Resolution
The applicable law and the dispute resolution process shall be determined based on the contracting Markaiter.com entity as follows:
11.1 Markaiter SAS:
The Agreement will be governed by the laws of France excluding its provisions relating to the choice of law.
Any dispute, controversy or claim arising out of or relating to this Agreement, or the breach, termination or validity thereof, shall be finally settled by arbitration in accordance with the Arbitration Rules of the Essonne France Chamber of Commerce. The proceedings shall take place in the French language in Essonne Evry, France.
Existence of arbitral proceedings, the proceedings, any material presented or drafted in relation to the proceedings and the verdict shall be considered as Confidential Information under this Agreement.

​

12. General Provisions
12.1 Markaiter.com is entitled to change the working methods, hardware, data communication links, software, user interface or other system components used in the Service. Markaiter.com may also use subcontractors.
12.2 Markaiter.com is entitled to use Customer's name and logo as a reference for advertising purposes.
12.3 If Customer has agreed to provide Markaiter.com with a case study, testimonial or any similar co-marketing deliverable (hereinafter referred to as “Co-Marketing Deliverable”) in connection with this Agreement, the Customer hereby grants Markaiter.com an exclusive, transferable, sublicensable, irrevocable, fully paid up, royalty-free, world-wide right to use, copy and display any Co-Marketing Deliverables in any medium during and after the term of this Agreement for its business purposes including without limitation to use the Co-Marketing Deliverable in Markaiter.com’s website, events, ads, social media and marketing videos and to format the same to fit the medium(s) chosen by Markaiter.com.
12.4 Neither Party may assign this Agreement without the other Party’s prior written consent. Parties shall, however, be entitled to assign this Agreement in whole or in part to its Affiliates and in connection with a merger or acquisition process including but not limited to the transfer of business and/or any other corporate transaction or restructuring.
12.5 No provision or right under this Agreement shall be considered waived without an explicit written statement or agreement signed by the waiving Party in each specific case. A waiver of any term, provision or right under this Agreement shall not be construed as a waiver of any other term, provision or right hereunder.
12.6 Neither Party shall be liable to the other for any failure to perform any of its obligations (except payment obligations) under this Agreement during any period in which such performance is delayed by circumstances beyond its reasonable control, such as fire, flood, storm, volcanic eruption, war, embargo, strike, riot, terrorism, accident, breakdown of plant or machinery, malicious damage, order by government or authority or the intervention of any governmental authority or any other events or circumstances beyond the reasonable control of the party affected, whether similar or dissimilar to any of the foregoing (a “Force Majeure”). In such event, however, the delayed Party must promptly provide the other Party with written notice (email being sufficient) of the Force Majeure. The delayed Party’s time for performance will be excused for the duration of the Force Majeure.
12.7 This Agreement and the information submitted by the Customer during the registration process for the Service constitute the entire agreement with respect to its subject matter and replaces and supersedes any prior written and/or verbal communications. Any Customer terms and conditions, policies and other documents provided by the Customer to Markaiter.com shall not become part of this Agreement or be binding upon Markaiter.com without a written agreement signed by an authorized representative of Markaiter.com explicitly incorporating those terms into the Order Form. Nothing in this Agreement shall be deemed or implied to create a partnership, agency, partnership or joint venture of any kind between the Parties.
12.8 If any provision herein is held to be invalid or unenforceable to any extent, then such provision will be interpreted, construed and reformed to the extent reasonably required to render it valid, enforceable and consistent with its original intent.

​

​