peekd Terms of Service

Effective: March 3, 2021

Please read the following carefully before accepting these Terms of service and accessing, using and/or registering for the peekd website, platform or services.

These Terms of service govern the “Customer”’s use of the peekd Service operated by Cross Platform Solutions GmbH (“peekd”).

By creating a Customer account on peekd and/or by accessing and using the peekd platform or website, www.peekd.ai (the “Website”), you accept these Terms of service (the “Terms”), and you acknowledge that you, on your own behalf as an individual and on behalf of your employer or another legal entity (collectively, “you” or “your”), have read and understood and agree to comply with these Terms, and are entering into a binding legal agreement with peekd (“us”, “we” or “our”). If you are creating an account, you are entering into these Terms on behalf of your team, company, organization or any other entity that you either represent or belong to (the “Organization”), and you represent and warrant that you have or you were granted full authority to bind your Organization to these Terms. If you do not agree to comply with and be bound by these Terms or do not have authority to bind your Organization, please do not accept these Terms or access or use the peekd platform.

1 THE PEEKD SERVICE AND ITS PREREQUISITES

1.1 peekd is the owner of the peekd platform (“peekd Service”), an ecommerce intelligence solution that enables analytics and insights on traffic and usage data for websites, which is made available to the Customer on a software as a service (SaaS) basis through a web application on the peekd Website, and includes:

(1) The software that the Customer accesses via the Website;

(2) any other applications, extensions and features, if any, made available or provided to the Customer by peekd in connection with the Website or Service; 

(3) the trademarks and logos, content, text, documents, descriptions, products, graphics, photos, sounds, videos, interactive features, contained in or made available through the Website or Service.

1.2 To provide the peekd Services, peekd will at least need access to

(1) Customer’s Google Search Console API, and

(2) Customer’s Google Analytics Core Reporting API, with edit rights (“Reporting”), and

(3) Customer‘s Google Analytics Management API,

all containing the data on all websites Customer wishes to analyze with the peekd Services and hereinafter jointly referred to as the “Data Sources”.

Customer explicitly states that they have the requisite authority and rights to enter into this Agreement and provide access to the Data Sources they will be providing under this Agreement.

1.3 The match rate of the analytics to their corresponding sessions heavily depends on the data and other circumstances peekd cannot influence. peekd most probably will never be able to provide information on all Google Analytics sessions, and the success rate may differ extremely. Therefore, peekd only promises to use its best efforts to match the data. peekd does not guarantee success.

1.4 The matched data (“Results”) are pushed into peekd’s Service (the “Data Target”) that will be opened for Customer.

1.5 peekd strives to provide updated Results usually once per day, at least every 48 hours, provided that all Data Sources and the Data Target are available at all times. If peekd does not provide any updated Results during a 48 hour period, the Customer may, as exclusive remedy, demand a refund of a 1/720th of the monthly fee paid by Customer per hour of non-provision of updated Results exceeding 48 hours from the preceding update, provided that there were new data in the Data Sources and processing of said new data would have generated updated Results other than just data peekd cannot match. Data Sources and Data Target are deemed available when (1) properly accessible and working (including, but not limited to, providing correct data at usual data rates) when contacted from a suitable access point (2) Customer has granted peekd all necessary access rights.

1.6 Customer permits peekd to access, copy, retain, and use for analyses of any kind, and pass on or license to any third party for purposes independent of Customer’s relationship with peekd, all and any data contained in the Data Sources and to store all and any Results in the Data Target. Furthermore, if Personal Data is contained in the Data Sources, Customer permits peekd to anonymize or pseudonymize such Personal Data; this permission does not affect Customer’s obligation to ensure that the Data Sources do not contain Personal Data, as set forth in Section 3.1, and/or Customer’s liability for breaches of said obligation, as set forth in Section 3.2, and peekd shall not be obliged to anonymize or pseudonymize such Personal Data.

1.7 If Customer withdraws peekd’s access rights to Data Sources and/or Data Target and/or peekd’s edit rights to Reporting, peekd is exempted from providing the peekd Services to the extent affected by such an access and/or edit rights withdrawal until all necessary rights are granted again. The withdrawal of access and/or edit rights shall not be considered a cancellation of the contract, so that Customer shall be obliged to pay the agreed fees even if peekd is exempted from providing its services, until actual termination of the contract.

1.8 peekd does not provide any consulting, support, training or the like for the peekd Services. It is exclusively Customer’s responsibility to assess whether the peekd Services meet Customer’s needs.

1.9 peekd may subcontract all or some of its obligations under the contract to any third party.



2 FEES AND PAYMENT

2.1 Fees depend on the subscription type (plan) Customer has chosen.

2.2 Fees shall be billed per month and are due in advance. The “Invoice Month” starts on the day (GMT/UCT) that Customer’s subscription order is accepted by peekd and ends on the day (GMT/UTC) before the day with the same number (day of month) in the next month or, if the day with the same number does not exist in the next month, the last day of the next month.

2.3 peekd shall be exempted from performing the peekd Services as long as Customer has not paid all due fees.

2.4 Customer shall effect all payments via the payment methods offered on peekd’s Website. peekd may restrict payment methods to payments via a payment provider.



3 CUSTOMER’S OBLIGATIONS, INDEMNIFICATION

3.1 Customer shall not make available any Personal Data to peekd, which means that Data Sources must not contain any Personal Data (such as IP addresses). “Personal Data” means any information relating to an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.

3.2 Customer shall be liable to peekd for all damages and expenses that arise out of any violation of Customer’s obligations governed under Section 3.1 and that peekd may consider necessary under the circumstances, and shall indemnify peekd against all claims of any third party that such third party may raise based on a violation of Customer’s aforesaid obligations. This shall not apply if Customer proves that they are not responsible for the violation.

3.3 Customer shall be liable to peekd for third parties who, with or without authorization, use or have used peekd Services, including ordered subscriptions, through their peekd account, including the fees that accrue for this. This shall not apply if Customer proves that they are not responsible for the unauthorized use.

3.4 Customer shall, under their account, exclusively use peekd Services for their own websites, unless they have obtained specific authorization from peekd to use the peekd Services for other websites. peekd in particular may grant such authorization to agencies but in no case shall be obliged to do so. In case Customer asks for authorization to use the peekd Services for other websites than their own, they (1) will remain the Customer for all websites and (2) explicitly confirm that they have received specific authorization from the website owner to: agree to the terms of this Agreement (including, but not limited to those in Section 1.6), use the peekd Service and provide the data in the Data Sources.

3.5 peekd may (see Section 1.6), but shall not be obliged to, store data retrieved from Data Sources. Therefore, in order to rule out the loss of data and secure that retrospective analyses are possible, Customer is responsible for ensuring that the Data Sources and Data Target and all data stored therein remain available.

3.6 If Customer severely violates their obligations arising from Sections 3.1,  3.4 and 3.5, or if facts justify a substantial suspicion that this has happened, peekd shall be entitled to block access to the peekd account and/or suspend provision of peekd Services, in whole or in part, with or without prior notice; in such event, Customer shall remain obligated to pay the monthly fees, unless the suspicion proves to be unfounded. The right to termination for good cause shall remain unaffected. If a block is justified solely by a violation or a suspicion of a violation of Section 3.1, the provision of Results shall not be blocked.

3.7 In the event that the access is blocked, peekd shall inform Customer about the block via email to the email address of Customer’s peekd account.



4 LIABILITY

4.1 peekd shall be liable according to the statutory provisions, without any limitation, in cases of intentional acts or gross negligence imputable to peekd or upon the absence of a guaranteed characteristic, as well as in cases of an injury to life, body or health through slight negligence imputable to peekd.

4.2 In addition, peekd shall be liable in accordance with the statutory provisions for the violation of any obligation, the fulfillment of which is an absolute condition for the proper execution of the contract and the adherence to which Customer may regularly rely on, for any impossibility of the service incumbent on peekd and if peekd is in delay with its service through slight negligence; however, in such cases, total liability shall be limited to the financial losses that peekd, when concluding the contract, ought to have foreseen as a possible consequence of the violation of the contract.

4.3 Customer explicitly confirms that financial losses arising out of the contract under no circumstance can be foreseen to exceed 1.000 Euros, so that peekd’s aggregate liability in cases of Section 4.2 is restricted to 1.000 Euros.

4.4 Except for liability under Section 4.1, peekd shall not in any event be liable (or in any way legally responsible) for third party claims, lost profits, loss of business, loss of reputation or good will, and/or any other indirect or consequential damages.

4.5 For the loss or corruption of data, peekd’s liability shall be restricted to such damages that would have arisen if Customer had backed up their data in a suitable form at intervals adequate for the application, so that such data can be recovered with reasonable effort. Customer is referred to the fact that failure of Customer to perform their own data backups may lead to claims for damages against peekd based on data losses being excluded, in whole or in part (Section 254 of the German Civil Code BGB).

4.6 Liability for any other damages shall be excluded; whereas liability under the German Product Liability Act (Produkthaftungsgesetz) shall remain unaffected.

4.7 peekd’s liability limitations shall also apply to any personal liability of peekd’s officers, agents, employees and assistants.

4.8 peekd’s liability in damages in connection with the contract, except for liability under Section 4.1, shall be subject to a limitation period of 12 months from accrual of the claim, irrespective of knowledge of underlying facts.



5 TERM AND TERMINATION

5.1 The contract is made for an undefined period of time.

5.2 A termination on the part of either party is possible at any time with effect to the end of the current Invoice month.

5.3 Customer may only terminate the contract through the customer menu on peekd’s Website.

5.4 peekd may terminate the contract by sending an email to the email address of Customer’s peekd account.

5.5 The right of either party to terminate the contract for good cause remains unaffected. For peekd, good cause shall be particularly present if Customer violates their obligations under Sections 3.1, 3.4, 3.5 or if any provider of Data Sources or Data Target modifies the data provided or accepted (e.g. structure, data fields) or limits peekd’s access to Data Sources or Data Target in a manner that impedes or substantially obstructs provision of the peekd Services or any other change outside peekd’s sphere of influence that impedes or substantially obstructs provision of the peekd Services.

 

6 AMENDMENTS TO THE TERMS OF SERVICE AND FEES

6.1 Amendments to these Terms of service shall be offered to Customer no later than two months prior to the proposed date of their effectiveness, by means of an email to the email address of Customer’s peekd account.

6.2 peekd may change the peekd Services if such changes are necessary to take into account amended or new technical standards or changes in the data provided or accepted by Data Sources and/or Data Target that are relevant to the respective service, and if the amendments are not unreasonable for Customer under consideration of the interests of both parties. Such amendments shall be offered to Customer no later than two months prior to the proposed date of their effectiveness, by means of an email to the email address of Customer’s peekd account. If the necessity of amendments is outside the sphere of influence of peekd, no announcement period has to be observed but peekd shall announce the necessary changes as soon as reasonably possible.

6.3 peekd may change fees for paid peekd Services at its reasonable discretion (Section 315 of the German Civil Code BGB). Such amendments shall be offered to Customer no later than two months prior to the proposed date of their effectiveness, by means of an email to the email address of Customer’s peekd account.

6.4 Customer’s consent to the amendments communicated under Sections 6.1, 6.2 or 6.3 shall be deemed to have been issued if (1) peekd would be entitled to terminate the contract (ordinary termination) at or before the proposed date of the effectiveness of the amendments and (2) Customer has not objected to the amendments in writing or via email prior to the proposed date of their effectiveness. In their offer, peekd shall make particular reference to the effect of not reporting objections to amendments. If amendments are offered to Customer, they may terminate the contract affected by the amendment with immediate effect and at no cost at any time prior to the proposed date of the effectiveness of the amendments; in such case, paid fees shall be reimbursed on a pro rata basis. In their offer, peekd shall also make particular reference to Customer’s right to terminate the contract. If Customer terminates the contract or objects to an amendment prior to the proposed date of their effectiveness, the amended Terms of service and fees shall not be applied to the contract.



7 FINAL PROVISIONS

7.1 The contract shall be governed by and construed in accordance with the laws of the Federal Republic of Germany without giving effect to conflict of laws provisions. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply. If Customer is a consumer, this choice of law shall be without prejudice to the application of rules of the law of the country where Customer has their habitual residence, which cannot be derogated from by contract.

7.2 All disputes arising under or in connection with the contract shall be submitted exclusively to the district court of Berlin, Germany (Landgericht Berlin) if Customer is a merchant, legal entity of public law or of special fund under public law or does not have a place of general jurisdiction in Germany or for the event that, following the conclusion of the contract, the party to whom claim is to be laid relocated their place of residence or habitual place of abode to a location outside Germany, or for the event that the party’s place of residence or habitual place of abode is not known at the time the proceedings are brought in the courts. The right of either party to claim injunctive relief before any competent court remains unaffected.

7.3 Except for payment claims, Customer may not assign any rights and obligations arising from this contract or the contract as a whole to any third party, without the prior written consent of peekd.

7.4 peekd may assign any rights arising from this contract or the contract as a whole to any third party without Customer’s consent. If peekd announces an assignment of the contract as a whole – namely not in cases of assignment of payment claims –, Customer may terminate the contract affected by the assignment, without any notice period or cost, prior to the point in time of the effectiveness of the assignment or, if communicated after the effectiveness of the assignment, within two weeks.

7.5 Other Terms of service of either party shall not apply. The contract including these Terms of service constitutes the entire agreement between the parties with regard to the subject matter hereof. There are no side agreements.

7.6 Should one or more of the provisions of these Terms of service be or become invalid or unenforceable, the validity and enforceability of the other provisions thereof shall not be affected.