General Terms and Conditions
Our general terms and conditions
CleverReach GmbH & Co. KG (registered in the Commercial Register at Oldenburg Local Court in Oldenburg (Oldb) under HRA 4020, Germany/Germany (for further details consult the legal information) offers and operates web-based services under the website address “https://www.cleverreach.com/“. The contracting parties are the Client and CleverReach GmbH & Co. KG (hereinafter referred to as “provider”).
§ 1 Scope
- The version of the General Terms and Conditions current at the time of conclusion of the contract shall apply to all present and future legal relationships between Provider and Client, subject to any amendments. Counter-confirmations, counter-offers or other references of the Client with reference to his terms and conditions are contradicted; deviating terms and conditions of the Client shall only apply ifconfirmed in writing.
- Amendments to already agreed General Terms and Conditions shall be offered to the Client in text form, highlighting the amendments, no later than two months before the proposed date of their entry into force. If the Client has used an electronic communication channel within the scope of the business relationship, the amendments may also be offered in this way. The Client shall be deemed to have given his consent if he has not indicated his refusal before the proposed date on which the changes are to take effect. The Provider shall specifically draw the Client´s attention to this effect of silence in its offer. Extensions or restrictions of the GTC by the Client are excluded.
§ 2 Services of the provider
- The Provider operates CleverReach and offers these Services as SaaS (Software as a Service).
- The Provider enables the Client to create, send and analyze direct marketing messages with this SaaS solution. The Provider carries out delivery attempts for all messages, but cannot guarantee successful delivery, as it does not control the recipient side. The Provider is merely the transmitter of the messages and is not obliged to check their content from a legal, factual or other point of view. The Provider is therefore not responsible for the content of the messages.
- The Provider may update and further develop the Services at any time and, in particular, adapt them due to a changed legal situation, technical developments or to improve IT security. In doing so, the Provider shall give due consideration to the legitimate interests of the Client and inform the Client in good time about necessary updates. In the event of a significant impairment of the Client´s legitimate interests, the Client shall have a special right of termination.
- The Provider grants a simple, non-exclusive, non-sublicensable and non-transferable right to use CleverReach to all Clients in the current version for the duration of the contract, provided they comply with the anti-spam rules communicated on the website.
- The connection of the Client to the Internet is not the subject of the contract but is the responsibility of the Client within the framework of the conditions of use.
- The Provider guarantees an overall availability of the Services of at least 99% per month at the point of delivery. The point of delivery is the router output of the Provider’s data center. Availability shall mean the Client´s ability to use all the main functions of the software. Maintenance times shall be considered as times of availability of the Software. The Provider´s measuring instruments in the data center are decisive for the proof of availability.
§ 3 Registration
- The conclusion of the contract and the right of use are conditioned on the complete filling in of the marked mandatory fields during registration. The Client is obliged to fill in all fields used by him in the registration form truthfully and correctly.
- Only Clients of full legal capacity or Users authorized by the Clients or Users acting with the consent of their legal representatives are entitled to use the Service. The Client is liable for all actions of his Users.
- CleverReach is intended exclusively for use by businesses, registration by consumers is not permitted. The decision to accept the registration for the use of the services is reserved for the Provider.A contract is concluded upon acceptance by the Provider and by the Client’s choice of a plan.
- The Client is obliged to keep his access data secret and not to pass it on to third parties. Should theClient become aware that third parties have gained knowledge of the access data or are using it, he shall immediately change the access data or inform the Provider without delay. The same obligation applies to Users authorized by the Client. The Client shall inform and oblige the Users accordingly.
§ 4 Remuneration
- For individual services of the Provider, which are not listed in the price list, a separate agreement on the remuneration shall be made.
- The Provider is entitled to adjust the respective agreed monthly rates a maximum of once a year to changing market conditions, for example in the event of significant changes in measures to increase security and data protection, service and support services, provider fees, personnel costs and increases in the costs of improving and further developing the software. In the event of price increases that exceed the regular increase in the cost of living according to the general consumer price index, the Client shall be entitled to terminate the agreement with two weeks´ notice. In such cases, the Provider shall notify the Client thereof in text form.
- The Provider shall issue the Client a legally compliant invoice for the Services to be provided. The fees listed in the current price list are net fees unless expressly stated otherwise. The respective statutory value added tax shall be added.
- If the Client is in default of payment, the Provider is entitled to discontinue the Services seven days after a fruitless payment reminder. At the same time, interest on arrears shall immediately accrue in the amount of 9% above the respective applicable base interest rate. The Client agrees to the sending of electronic invoices. At the express request of the Client, invoices will instead be sent on paper within the EU.
§ 5 Rules of participation
- The Client bindingly declares that the messages will only be sent to recipients of the Client in compliance with the law (e.g. after application of the double opt-in procedure).
- The Client declares that he will comply with all data protection regulations applicable to him. This is an essential contractual obligation.
- The Client must not cause CleverReach any reputation problems (IP or domain based) with participating ISP and technology partners (for example based on spamtrap hits, content scanners or high spam rates). Such server problems lead to economic damages for CleverReach. They threaten the business model and thus the economic existence at its core. CleverReach reserves the right to claim compensation for such damages. The Client may not violate legal prohibitions, morality or the rights of third parties (trademark, name, copyright, data protection rights, etc.) with the form, content or pursued purpose of his use of the CleverReach Services. In particular, the Client undertakes, within the scope of its use of the CleverReach Services,
- not to present pornographic content, i.e. content that violates §§ 184 – 184e of the German Criminal Code,
- not to present content that incites hatred, i.e. content that violates § 130 of the German Criminal Code,
- not to present any depictions of violence, i.e. content that violates § 131 of the German Criminal Code and
- not to incite criminal acts or to present instructions for such acts.
For each case of culpable infringement of the aforementioned obligations, taking into account the legal institution of the continuation, the Client undertakes to pay a contractual penalty in the amount of 5,010.00 (in words: five thousand and ten) euros. This does not preclude CleverReach from asserting claims for damages in excess thereof.
- The Provider makes use of its legal right to store the Client´s IP address for seven days whenever a message is sent, in order to be able to track actions and limit misuse.
- In order to maintain the functionality of the Service (see in this respect above § 5 No. 3 above), theProvider will remove contact data from the database and put it on a blacklist if a message to a specific and same contact address is returned as undeliverable three times in a row (so-called “hard bounces”) or if there are complaints from recipients.
- The Client is aware that the sending of messages may be subject to the legal systems of the respective recipient states. He undertakes to comply with the laws or other regulations applicable in these countries with regard to the messages sent.
- The Client shall name a contact person with telephone number and e-mail address for complaints to the Provider. The Provider and the Client are bound by the relevant data protection regulations and shall observe them. The responsible party in the sense of data protection law is the Client. The Provider is an order processor. A Data Processing Agreement (DPA) must be concluded separately between the Client and the Provider.
§ 6 Liability
- The Client is solely responsible for any consequences arising from the content and sending of messages and in no case shall the Provider.
- If the Client suffers a loss of data, any liability of the Provider shall be limited in amount to the value of the effort required to restore the lost data on the Client´s equipment using existing backup copies.
- In the event of simple negligence, the Provider shall only be liable, irrespective of the legal grounds, for damages insofar as these were caused by a culpable breach of a material contractual obligation, namely an obligation whose breach jeopardizes the achievement of the purpose of the contract and/or whose fulfillment makes the proper execution of the contract possible in the first place and on whose fulfillment the Client may regularly rely. The same shall apply if the Client is entitled to claims for damages instead of performance. In the event of a breach of material contractual obligations, liability shall be limited to the foreseeable, contract-typical, direct average damage, the occurrence of which the Provider had to expect at the time of conclusion of the contract based on the circumstances known to it at that time.
- Any further liability of the Provider is excluded regardless of the legal nature of the asserted claim; this applies in particular to tortious claims or claims for reimbursement of futile expenses instead of performance.
- Insofar as the liability of the Provider is excluded or limited, this shall also apply to the personal liability of its employees, workers, staff, representatives or vicarious agents.
- The above limitations of liability (clauses 1 – 5) do not apply to claims of the Client arising from product liability. Furthermore, these limitations of liability shall not apply in the event of injury to life, limb or health attributable to the Provider or for damages based on intentional or grossly negligent breaches of contract or fraudulent intent on the part of the Provider, its legal representatives or a vicarious agent.
- The Client warrants that the content and data stored on the Provider’s servers as well as use and provision by the Provider do not violate applicable law, official orders, third-party rights, or agreements with third parties. The Client shall indemnify the Provider against claims asserted by third parties due to a violation of this clause upon first request.
§ 7 End of the right of use
- Both parties may terminate the contract at any time without giving reasons by giving one week´s notice to the end of the agreed term.
- Any case of violation of § 5 entitles the Provider to extraordinary termination within 14 days after becoming aware of it. If the Provider gives notice of termination, any credit balance that can no longer be used will be paid out as a result of the termination.
- After termination of the cooperation in the sense of this contract, the Client may demand that the order data stored in the database during the cooperation be deleted by the Provider without delay. This must be done in writing.
§ 8 General
- The parties agree that the place of jurisdiction shall be the registered office of the Provider.
- These Terms and Conditions are subject to the law of the Federal Republic of Germany. The provisions of the UN Convention on Contracts for the International Sale of Goods shall not apply. In case of doubt the german version of these General Terms and Conditions shall prevail.
Additional General Terms and Conditions and Privacy Protection Notice of RatePAY GmbH
- In order to be able to offer the Client attractive payment methods, the Provider work together with RatePAY GmbH, Schlüterstraße 39, 10629 Berlin (hereinafter “RatePAY”). If an effective purchase contract is concluded between the Client and the Provider when using a RatePAY payment method, the Provider assign their payment claim to RatePAY. When using the RatePAY payment method installment payment, the Provider assign their payment claim to the partner bank of RatePAY GmbH.
- If the Client choose one of the RatePAY payment methods offered here, he consent in the context of his order to the transfer of his personal data and that of the order, for the purpose of identity and credit checks, as well as contract processing, to RatePAY GmbH. All details can be found in the additional General Terms and Conditions and the Data Protection Notice for RatePAY payment methods, which are part of these Terms and Conditions and always apply when the Client choose a RatePAY payment method.