1. Introduction
1.1. These general terms and conditions ("GTCs") govern the use and provision of the Services provided by Markin AI, S.L. ("Markin", "we", "us"), a company incorporated under the laws of Spain, with registered office in Barcelona, to the subscriber ("Subscriber") and form part of the Agreement between the Parties.
1.2. Capitalized terms used but not defined herein shall have the meaning set out in the applicable Order Form.
2. The Services
2.1. General. Subject to the terms of the Agreement and to Markin's Acceptable Use Policy, the Subscriber subscribes to, and Markin shall supply, the Services: the Markin agentic growth platform, websites, APIs and related services that identify revenue opportunities, generate candidate actions, run experiments and return next best actions across the Subscriber's B2C customer base.
2.2. Accounts and access credentials. Personnel designated by the Subscriber will be provided with administrative privileges to manage the Subscriber's workspace and end users. The Subscriber is responsible for its users, for keeping credentials secure and for all activity that occurs under its account, and shall promptly notify Markin of any suspected unauthorized access.
2.3. Usage restrictions. The Subscriber agrees not to (i) use the Services in a way that infringes any third party's rights, (ii) sub-license, resell or transfer access to the Services, (iii) attempt to reverse engineer or derive the source code of the Services, (iv) use automated methods to extract data or Output other than those provided by Markin, (v) build a competing product using access to the Services, (vi) access the Services from sanctioned jurisdictions, (vii) provide payment card data, genetic or biometric data to the Services, or (viii) interfere with the proper working of the Services.
2.4. Beta features. Any features offered on a preview, beta or early-access basis are provided as-is and as-available. Markin may modify or discontinue Beta Features at any time. Confidentiality, security and data-protection commitments continue to apply.
3. Fees and payment
3.1. The Subscriber shall pay the fees set out in the Order Form. Fees are exclusive of VAT and any other applicable taxes.
3.2. Invoices are due net 30 days from the date of receipt. Overdue amounts accrue interest at the statutory late-payment rate applicable under Spanish Law 3/2004 on measures to combat late payment in commercial transactions.
3.3. Markin may update the fees for a Renewal Term on at least 45 days' prior notice. Fees already paid are non-refundable except as expressly stated in these GTCs.
4. Term and termination
4.1. Term. The Agreement is valid from the earlier of (i) the Effective Date and (ii) the date the Subscriber starts using the Services, and remains in force for the Initial Service Term set out in the Order Form. It renews automatically for equivalent Renewal Terms unless terminated by Markin on at least 90 days' notice or by the Subscriber on at least 30 days' notice before the end of the current term.
4.2. Termination for cause. Either Party may terminate the Agreement on 30 days' written notice of a material breach that remains uncured at the end of the notice period, or immediately if the other Party becomes insolvent or ceases operations.
4.3. Effects of termination. Upon termination the licences granted under the Agreement cease and all outstanding fees become due. Within 30 days of termination Markin will, on the Subscriber's reasonable request, assist the Subscriber in retrieving Subscriber Content in a standard machine-readable format, after which Markin will securely delete remaining Subscriber Content in accordance with the DPA.
5. Indemnification
5.1. By Markin. Markin will defend the Subscriber against any third-party claim alleging that the Subscriber's use of the Services in accordance with the Agreement infringes intellectual property rights of such third party, and will indemnify the Subscriber against damages, costs and reasonable attorney's fees awarded against it in such claim.
5.2. By Subscriber. The Subscriber will defend Markin against any third-party claim arising from Subscriber Content or from Input or Output that violates the Agreement, and will indemnify Markin against damages, costs and reasonable attorney's fees awarded against it in such claim.
6. Warranties and liability
6.1. AI limitations. Machine learning is a probabilistic technology. Use of the Services may in some situations produce incorrect Output. The Subscriber is responsible for evaluating the accuracy and quality of Output for its use case, including through human review before executing customer-facing actions.
6.2. Services warranty. Markin will endeavour to make the Services available 24/7 (excluding scheduled maintenance) and warrants that the Services will conform materially to the applicable documentation and be performed in a professional manner in accordance with generally accepted industry standards.
6.3. Limitation of liability. To the maximum extent permitted by law, neither Party will be liable for indirect, incidental, special, consequential or punitive damages, or for lost profits or revenue. Each Party's total aggregate liability arising out of or related to the Agreement will not exceed the fees paid by the Subscriber in the twelve (12) months preceding the event giving rise to the claim. This limitation does not apply to liability that cannot be limited under Spanish law, including gross negligence or wilful misconduct.
6.4. Disclaimer. Except for the warranties expressly set out in this Section, the Services are provided "as is" and Markin disclaims all other warranties, whether express, implied or statutory. Markin does not warrant any specific ARPU uplift or commercial result.
7. Confidentiality
7.1. Each Party will protect the other's Confidential Information with the same degree of care it uses for its own, and will use it only to perform under the Agreement.
7.2. Confidentiality obligations survive for the longer of (i) five (5) years from termination, (ii) the term of protection of any intellectual property right contained in the Confidential Information, and (iii) indefinitely in relation to Subscriber Content.
8. Intellectual property
8.1. Markin retains all right, title and interest in and to the Services, including models, architecture, dashboards and documentation. Nothing in the Agreement transfers ownership of the Services to the Subscriber.
8.2. The Subscriber retains all rights in Subscriber Content and grants Markin a limited licence to process Subscriber Content solely to provide, secure and improve the Services in accordance with the Data Processing Agreement. Markin does not sell Subscriber Content and does not train foundation models on Subscriber Content.
8.3. Feedback. Feedback provided by the Subscriber may be used by Markin without restriction to improve the Services.
9. Data protection
9.1. Where Markin processes personal data on behalf of the Subscriber, the Parties enter into the Data Processing Agreement, which forms part of the Agreement, together with the current list of Subprocessors.
9.2. Markin's processing of personal data as controller is described in the Privacy Policy.
10. Governing law and jurisdiction
10.1. The Agreement is governed by the laws of Spain, excluding its conflict-of-laws rules and the United Nations Convention on Contracts for the International Sale of Goods.
10.2. The Parties submit to the exclusive jurisdiction of the courts of the city of Barcelona (Spain) for any dispute arising out of or in connection with the Agreement, without prejudice to any mandatory consumer protection rules.
11. Miscellaneous
11.1. Changes. Markin may update these GTCs from time to time. Material changes will be notified with at least 30 days' notice, and continued use of the Services after the effective date constitutes acceptance.
11.2. Assignment. Neither Party may assign the Agreement without the other Party's prior written consent, except that either Party may assign to an Affiliate or in connection with a merger, acquisition or sale of substantially all of its assets.
11.3. Entire agreement. The Agreement constitutes the entire agreement between the Parties with respect to its subject matter and supersedes all prior or contemporaneous agreements.
12. Contact
Questions about these GTCs: legal@markin.ai.