1 | Introduction
These Terms and Conditions govern the use of the merchant solution ("Solution") provided by GoKarla GmbH, located at Gormannstrasse 19a, 10119 Berlin, Germany ("Karla"), by customers ("Customer") as set out in the Order Form, as separately agreed. Hereinafter, Karla and Customer are collectively referred to as the "Parties" and individually as a "Party".
2.1 These general terms and conditions ("Terms") form an integral part of any agreement, including but limited to the Order Form (altogether the "Agreement") between Customers and Karla, governing the use of the Solution, Products, and/or Services. By accessing the Solutions, Products and/or Services, Customers confirm their acknowledgment, understanding, and agreement to these Terms, unless otherwise specified in a separate written agreement.
2.2 Customers are responsible for ensuring that their Authorized Users comply with these Terms. Any breach of these Terms by an Authorized User shall be considered a default by the Customer.
3 | Interpretation
In these Terms, the following words and expressions have the following meanings unless stated otherwise:
“Affiliate” refers to an individual or entity that has entered into a partnership with Karla for the purpose of promoting and directing traffic to the online shop of a Customer.
“Carriers” means such service providers that are directly or indirectly in the shipment delivery process and are supported by the Solution;
“Content” means any data, text, software, music, sound, photographs, graphics, video, messages or other materials, including but without limitation to, company logos, trademarks, copyrighted materials and Third Party Resources, displayed, published or made available through the Site, Solution, Products and/or Services, whether by Karla or Customers.
“Customer’s Content” means any data, text, software, music, sound, photographs, graphics, video, messages or other materials, including, but without limitation to, company logos, trademarks and copyrighted materials, that a Customer posts, uploads, transmits or otherwise makes available through the Site, Solution, Products and/or Services.
“Intellectual Property Rights” means all intellectual property rights (whether registered or not) including, but not limited to, copyright (including copyright in computer software), patents, logos, trademarks or business names, design rights, database rights, know-how, trade secrets and rights of confidence in connection with the Site, Solution, Products, Services and/or Content.
“Subscription” means the chosen subscription plan which includes access to the Services in accordance with these Terms.
“Subscription Fee” means such fee(s) payable by a Customer for the use of the Services in accordance with the chosen type of subscription plan, applicable rate(s) and applicable currency as agreed alongside the acceptance of these Terms and/ or the Order Form.
"Subscription Period" refers to the agreed-upon term of product usage, set at twelve (12) months starting from the Start Date. However, the duration of the Subscription Period may vary if otherwise mutually agreed upon during the acceptance of these Terms.
"Order Form" refers to the separate document as duly completed, signed, and exchanged between the Parties, and which refers to these Terms. It outlines the specific details of the products or services to be provided.
“Karla’s Technology” or “Technology” means Karla’s or its affiliates’ proprietary technology underlying the website, Solution, products and/or services including internet operations design, content, software tools, hardware designs, algorithms, software (in source and object forms), source codes, user interface designs, architecture, class libraries, objects and documentation (both printed and electronic), know-how, trade secrets and any related intellectual property rights throughout the world (whether owned by Karla or its licensors) in connection with the Solution and/or services, and also including any derivatives, improvements, enhancements or extensions of the Technology conceived, reduced to practice, or developed by Karla from time to time that are not uniquely applicable to Customers or that have general applicability in the art.
“Personal Data” means data that may enable Karla to identify individuals personally, including data about a person who can be identified (i) from that data, or (ii) from that data and other information to which Karla has or is likely to have access.
“Qualified Sale" refers to a completed and verified sale of a single order, originating from a User who accessed the online shop through the Affiliate's unique affiliate link or referral code. The determination of a Qualified Sale and associated commission calculation shall be based on Karla’s standard tracking and reporting mechanisms.
"User" refers to an individual who engages with the Solution offered by Karla. This platform enables Customers to furnish tracking/delivery updates, product details, and promotional information to their respective Users, who are collectively referred to as Users. These Users access the Solution through various interfaces such as emails, websites, and apps, each featuring online-shop-specific, branded sections. The Solution not only facilitates the dissemination of promotional campaigns from online shops but also offers information and links to third-party services. The entire Solution is delivered to the Customer as a Software as a Service (SaaS) platform, forming the technological foundation for the diverse products and services provided by Karla.
References to Clauses are to the clauses of these Terms.
The headings are for convenience only and shall not affect the interpretation of these Terms.
Unless the context otherwise requires or permits, references to the singular number shall include references to the plural number and vice versa; references to natural persons shall include bodies corporate and vice versa; and words denoting any gender shall include all genders.
4 | Product, Services, Customer Obligations
4.1 The Solution provides Customers with a platform through which they can provide tracking/ delivery, product and promotional informations to their Users.
4.2 The Solution provides additionally online-shop-specific, branded sections across all interfaces (including but not limited to E-Mails, Websites and Apps) and may include promotional campaigns from online shops.
4.3 The Solution provides information about and links to 3rd party services.
4.4 The Solution is provided in direction to Customer via a SaaS platform, which serves as the underlying Technology for the products and services offered by Karla.
4.5 The range of products and services provided by Karla, encompassing various modules with distinct features and pricing, is collectively determined and specified in the Order Form through mutual agreement.
4.6 Karla will provide a suitable style guide that details the design options for the purpose of the best possible visual integration of Customer’s requirements into Karla’s Solution (“look & feel”) and Customer shall inform Karla about preferred design options within 10 calendar days prior to a requested implementation. Customer agrees to support Karla with necessary Content creation (text, translations or pictures) if needed and especially when local customization is required (e.g. for a specific country or region). Content e.g. language copies to be provided in a timely manner by Customer.
4.7 The Solution is exclusively available for End-customers in specific regions or countries (“Regional Scope”) as set out in the Order Form. The access and usage of the Solution are limited to individuals residing within the borders of the Regional Scope. The App is only available to End-customers with access to the Apple App-Store or Google Playstore in German language. End Customers located outside of the Regional Scope are not eligible to access or utilize the App. Karla ensures that the Solution meets the specific needs and regulations of the Regional Scope.
4.8 The Customer is obliged to provide Karla with access to its shopsystem via a standard API in order to get access to data points that are necessary for the tracking experience. The scope of the API access may include, but is not limited to, the following data sets: End-customer email address, Order ID, order basket, product details, payment details/ processing method, delivery method, delivery price, discounts applied and fulfilment data (e.g. End-customer address).
4.9 In order to ensure the optimal tracking experience and provide continuously updated tracking data to the End-customer, the Customer hereby agrees to register for carrier tracking API’s (if applicable) through the prescribed application process, as per the instructions provided by Karla. The corresponding API keys obtained through this registration shall be promptly shared with Karla. The Customer further commits not to use this dedicated API key throughout the entirety of this contractual agreement for different purposes without consulting Karla upfront.
4.10 Customer shall ensure that any Content provided in the course of the tracking experience does not contain, promote or have links to any sexually explicit materials, obscene language, hate material, defamatory material, materials promoting violence, the use of firearms or discrimination based on race, sex, religion, nationality, political opinion, disability, sexual orientation, age, or family status. All actions or omissions of Customer related to these Terms shall further not infringe, misappropriate, or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party.
5 | Registration of a Customer Account or Manual Onboarding
5.1 In order to use the Solution, all Customers are required to register whether through the Site or submission to Karla (each a “Registration”) by creating and maintaining a Customer account on the platform (each a “Customer Account”). The Registration process provides different modules and commercial models. By registering, the Customer accepts these Terms and Conditions. Completion of the Registration forms a contract between Karla and the respective Customer for the use of the Solution (each a “Agreement”).
5.2 By registering an Account, Customers authorize Karla to collect, store, retain, process and use personal data provided to Karla in accordance with Karla’s Privacy and Cookies Policy (https://www.gokarla.io/data-privacy) and Data Processing Agreement (https://assets-global.website-files.com/6357cf5c8d4c022fa1bff265/6570457507df81470a7f6096_GoKarla_GmbH_Data_Processing_Agreement_V.11.2023.pdf) (as applicable). Customers’ failure to provide, maintain accurate, complete and up-to-date personal data to enable Karla to properly perform the Services may result in Customers being unable to access and use the Solution and/or Services. In any event, Karla reserves the right, in its sole discretion, to approve or refuse registration of an Account.
5.3 Customers registering for an Account agree to provide and maintain true, accurate, current and complete information about themselves as prompted by the relevant registration form or when required to verify the same before Account activation.
Customers may not assign or otherwise transfer their Accounts to any party without the prior written authorization by Karla.
Customers are responsible for designating any other individuals who have the right or authority to access, use or administer their Accounts for and on behalf of Customers (“Authorized Users”).
5.4 Whilst Customers may permit such Authorized Users access to administer their Accounts (e.g. to renew Licenses, to pay license Fee, to manage Customer’s Content, etc), Customers remain fully liable under these Terms for all acts and omissions of their Authorized Users, whether or not such Authorized Users have acted in accordance with Customers’ instructions.
Customers are solely responsible for maintaining the confidentiality of their username, password and other information relating to their Accounts, and for any and all activities that occur under their Accounts. Customers agree to (i) immediately notify Karla of any unauthorized use of their Accounts, password, or any other breach of security, and (ii) ensure that Customers or Authorized Users exit from their Accounts at the end of each session. Karla will not be liable for any loss or damage arising from Customers’ failure to comply with this provision and from the use, management and administration of any Customer Account by an Authorized User.
6 | Subscription
6.1 Customers may subscribe for the Services through the Site or through a separate agreement with Karla. The features available to each Subscription and associated terms and conditions vary depending on the chosen type of Subscription plan. For the sake of clarity any Subscription regardless of its type or way of coming into effect is subject to these Terms.
6.2 The commencement date of the relevant Subscription Period (the "Start Date") shall be the date of the signature on the Acceptance of Commercial Offer & Order Form, unless otherwise mutually agreed upon by the Parties.
6.3 Any unused volume of a Subscription during a Subscription Period shall be considered forfeited and will not be carried over the next Subscription Period.
7 | Fees & Payment
7.1 Customer will pay Karla subscription fees for the provision of the selected module of the Solution (the “Subscription Fees”). The Subscription Fees are set out in the mutually agreed Order Form.
7.2 All invoices shall be sent to an address provided by the Customer. All invoiced amounts payable shall be in EUR and VAT will be separately and specifically stated (VAT to be paid by Customer).
7.3 Unless agreed otherwise, all payments by commercial Customers in respect of the Services shall be paid within thirty (30) days after Customer’s receipt of the invoice pertaining thereto by transferring the invoiced amount to Karla’s bank account designated on the invoice. Failing which late payment interest shall be chargeable on any overdue invoice at the rate of nine percentage points (9 %) above the applicable base interest rate per annum (or at the highest interest rate permissible where the 9 percentage points are not permissible under applicable law), calculated from the date when the payment of the invoice becomes due for payment up to and including the date of actual payment, but in any case no less than 50 EUR. Karla reserves the right to claim further damages.
7.4 Additional payment terms and invoicing procedures shall be outlined in the Order Form on an individual basis.
8 | Access / Availability
8.1 Karla shall make the Solution available on servers for use at the access point of Karla’s computing center (“Transfer Point of the Service”). To use the Solution, it is necessary for the Customer to have his or her own access to the internet and, via this access, to access the Solution at the Transfer Point of the Service.
9 | Intellectual Property
9.1 Except as otherwise expressly set forth in these Terms or by mandatory copyright law (in particular §§ 69d, 69e of the German Copyright Act (Urheberrechtsgesetz) Customer will not, and will not permit third parties to: (i) decompile, reverse engineer, disassemble or otherwise attempt to derive, analyze or use any source code or underlying ideas or algorithms related to the Solution by any means whatsoever, except and only to the minimal extent the provisions of this subsection (i) are expressly prohibited by applicable statutory law; (ii) remove any product identification or Karla Marks, copyright or other notices; (iii) encumber, provide, lease, lend, use for timesharing or service bureau purposes or otherwise use the Solution to or for the benefit of third parties (other than End-customers as set forth herein); (iv) disseminate performance or analysis (including information benchmarks) from any source relating to the Solution; (v) sell, sublicense, or distribute the Solution, except as expressly permitted in these Terms; (vi) adapt, translate, localize, port, modify the Solution or create derivative works based on the Solution; or (vii) use the Solution in a manner that violates any applicable laws.
9.2 Karla retains all ownership rights, title, and interest in the Solution, including all Intellectual Property Rights associated with it. Customer acknowledges that it does not acquire any ownership rights, title, or interest in the Solution, except for the limited right to use it in accordance with these Terms.
10 | Confidentiality/ Data Protection
10.1 Both parties agree to execute a Non-Disclosure Agreement (NDA) and a Data Processing Agreement (DPA), available here https://www.gokarla.io/dpa before the Start Date of the Subscription Period. Until these agreements are signed, the confidentiality and data protection provisions outlined in these Terms shall remain in effect.
10.2 Karla und Customer each warrant that they duly observe all their obligations under the relevant data protection legislation, in particular under the General Data Protection Regulation 2016/679 (“GDPR”, as may be amended, extended or re-enacted from time to time) and any similar legislation in relation to privacy, data protection, e-privacy and/ or marketing that is applicable.
10.3 In connection with the Agreement each Party (as the "Disclosing Party") may disclose or make available Confidential Information to the other Party (as the "Receiving Party"). "Confidential Information" means, with respect to a Disclosing Party, all non-public confidential information pertaining to such party's business.
10.4 Confidential Information will be designated and/or marked as confidential when disclosed. However, any information that the Receiving Party knew or reasonably should have known, under the circumstances, was considered confidential or proprietary by the Disclosing Party, will be considered Confidential Information of the Disclosing Party even if not designated or marked as such. With regard to Karla, Confidential Information is in particular the source code of the Solution, Karla’s business strategies, pricing models and fees. The Receiving Party shall preserve the confidentiality of the Disclosing Party's Confidential Information and treat such Confidential Information with at least the same degree of care that the Receiving Party uses to protect its own Confidential Information, but not less than a reasonable standard of care. The Receiving Party will use the Confidential Information of the Disclosing Party only to exercise rights and perform obligations under these Terms.
10.5 Confidential Information of the Disclosing Party will be disclosed only to those employees and contractors of the Receiving Party with a need to know such information and who agree to comply with the confidentiality and security provisions of these Terms with respect to the handling of such Confidential Information. Confidential Information does not include information that: (i) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information being disclosed or made available to the Receiving Party in connection with the Agreement; (ii) was or becomes generally known by the public other than by the Receiving Party's or any of its representatives' noncompliance with these Terms; (iii) was or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; (iv) was or is independently developed by the Receiving Party without reference to or use of any Confidential Information; or (v) if the Receiving Party is compelled by applicable law, court order or governmental order to disclose any Confidential Information.
11 | Warranties
11.1 Karla warrants that (a) the Solution will perform materially in accordance with the applicable documentation, (b) Karla will not materially decrease the overall security of the Solution during the term of the Subscription Period, (c) Karla will not materially decrease the functionality of the Solution during the term of the Subscription Period, and (d) Karla will not knowingly and intentionally introduce malicious code into Customer’s systems.
11.2 Karla shall not be liable to the extent that any breach of the foregoing warranties are caused in whole or in part by (i) acts or omissions of or on behalf of Customer, (ii) any third party applications, or (iii) any modifications of the Solution by, for or on behalf of Customer any third party not acting on behalf of Karla.
11.3 In the event of any breach of the warranties above, Karla shall, as its sole liability and Customer's sole remedy, diligently remedy any deficiencies promptly after its receipt of written notice from Customer of such deficiencies and a description thereof (notice via e-mail is deemed sufficient for such purpose). In the event Karla is not able to remedy any such deficiencies within a reasonable period, then Customer may, as Customer’s sole right and remedy terminate the Agreement with immediate effect and claim refund of the Subscription Fees. These warranty limitations shall not apply in case (i) Karla, Karla’s representatives or Karla’s agents did act intentionally, (ii) Karla is in breach of a guarantee or (iii) Karla is liable according to the German Product Liability Act.
12 | Limitation of Liability
12.1 Karla is liable without limitation for damages caused (i) intentionally by Karla, Karla’s representatives or Karla’s agents, (ii) which result from the absence of a quality which was guaranteed by Karla, or (iii) according to the German Product Liability Act.
12.2 With respect to all other damages (including indemnification obligations) Karla’s liability is limited to twenty-five (25) percent of the total amount of the Subscription Fees actually paid to Karla by Customer under this Agreement during the one (1) year period prior to the date that such liability first arises.
12.3 Provided that Karla is not liable according to Section 7.1, the limitation period for damage compensation claims against Karla expires after one (1) year following the damaging incident.
13 | Term and Termination
13.1 Karla will provide the Solution subject to the terms and conditions of this Agreement from the Start Date as defined in the Order Form. On the Start Date the Subscription Period of the Agreement shall commence.
13.2 If specified in the Order Form, the Parties recognize that the Subscription Period's initial portion will serve as a one-time Trial Period. During this Trial Period, either party retains the option to terminate the Agreement or any associated products/ services. In case of termination within the Trial Period, the Agreement will remain effective for a minimum of an additional four weeks or until the conclusion of the Trial Period, whichever occurs later.
13.3 The Agreement may be terminated (in case of an agreed Trial Period, following the Trial Period) by either party with effect of the end of the Subscription Period by giving notice to the other party at least two months before the end of the Subscription Period.
13.4 Both Parties’ statutory rights to terminate the Agreement for good cause remain unaffected.
13.5 Any termination declarations shall require the written form (Schriftform) and be addressed to the other party's designated contact person. A termination of a separable product/ service shall be without prejudice to the term and effectiveness of the remaining Agreement.
14 | Renewal
14.1 The Agreement will automatically and continuously renew for further terms of 12 months following the expiration of the Subscription Period (each subsequent term a “Renewal Period”). Customers acknowledge and agree that Karla is authorised by the Customer to charge the applicable Subscription Fee at the beginning of the Renewal Period unless the Subscription is terminated pursuant to clause 8 of this Agreement.
14.2 A Subscription Fee is fixed for each Subscription Period. However, the Subscription Fee for each Renewal Period is automatically increased by five percent (5 %) of the total annual current Subscription Fee for the term of the consecutive Renewal Period, unless Karla notifies the Customer of a different Subscription Fee. Notwithstanding the aforesaid, Karla reserves the right to revise the amount and/or rate of Subscription Fee proportionately, taking into account any increase and decrease of the relevant cost elements. The revision is possible, among other things, in the event of a service expansion or cost increase. If the Subscription Fee is to be increased more than the automatical increase described above for the next Renewal Period, Karla will notify the Customer at least 2 months before the Renewal Period commences. By continuing to use the Services for a subsequent Renewal Period after such notification, Customers will be deemed to have accepted the revised Subscription Fee. If Customers do not agree to such revision, Customers may choose to terminate their Subscriptions pursuant to clause 8 of these Terms prior to commencement of the Renewal Period.
15 | Relationship of Parties
15.1 Nothing contained herein shall be read as constituting a joint venture, partnership or agency between a Customer and Karla. None of the Parties hereunder may make or purport to make any representations, warranties or undertakings for the other Party.
16 | Notices
16.1 Any notice or other communication in connection with these Terms shall be in writing in English and shall be sufficiently given or served if delivered or sent to:
In the case of Karla to:
In the case of a Customer:
to the contact as set out in the Order Form
or (in either case) to such other address or electronic mail address as the relevant Party may have notified the other Party through the Platform and/or relevant Customers’ Accounts.
17 | Changes to the Terms
17.1 Karla reserves the right at any time to modify these Terms and to add new or additional terms or conditions. Such changes and additional terms will be announced in writing in due time, but at least two months before the date on which they are to come into force. If the Customer does not object to changes in writing at the latest before the proposed date of entry into force, the changes shall be deemed to have been accepted. In the notification, Karla informs the Customer of this and the date of the intended entry into force of the changes, as well as of the right to terminate without notice and free of charge. If the Customer declines to accept such changes, Karla has the right to terminate the Agreement.
18 | Entire Agreement
18.1 The Agreement and all claims and rights arising out of or in connection with these Terms shall be exclusively governed by German law. The application of international private law and of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded. The exclusive place of jurisdiction is Berlin, Germany, or, at the option of Karla, the court competent for Customer's registered office.
18.2 Neither party shall assign, transfer, or delegate its rights or obligations under these Terms (in whole or in part) without the prior written consent of the non-assigning party.
18.3 The Customer must not set off counter-claims or withhold payments on account of such claims unless its counter-claims are undisputed or have been effectively established.
18.4 In the event that any provision of these Terms or any Order Form conflicts with governing law or if any provision is held to be null, void, or otherwise ineffective or invalid by a court of competent jurisdiction, the remaining terms, provisions, covenants, and restrictions of these Terms and the relevant Order Form shall remain in full force and effect.
18.5 The Agreement constitutes the complete agreement between the Parties and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement. The Agreement may not be modified or amended except in writing signed by a duly authorized representative of each Party; no other act, document, usage or custom shall be deemed to amend or modify this Agreement. The written form requirement shall not apply to agreements made directly between the Parties after the conclusion of the Agreement (priority of the individual agreement pursuant to § 305b BGB). In case of conflict between the Order Form and the Terms, the Order Form shall prevail.