Terms of Service

CleverReach (“Provider”) offers an independent web-based email marketing system on its website https://cleverreach.com/. This is operated by CleverReach GmbH & Co. KG, represented by CleverReach Verwaltungs GmbH, which in turn is represented by its managing directors Christian Schmidt and Jens Klibingat of Felix-Wankel-Str. 16, 26125 Oldenburg, Germany, who each have sole power of representation. This means that a contract is concluded directly between the customer (“User”) and CleverReach GmbH & Co. KG, the operator of the CleverReach email marketing system (“CleverReach“) according to the following provisions.

§ 1 Scope of application

  1. The General Terms and Conditions in their current version apply to all present and future legal relationships between the Provider and the User utilizing CleverReach.
  2. These terms may not be extended or restricted by the User.
  3. The use of CleverReach requires acceptance of these General Terms and Conditions by the User. The User may not bypass the corresponding acceptance mechanisms provided on the Provider’s website.
  4. The Provider grants all registered users of CleverReach a non-exclusive right to use its email marketing software. By registering, the User explicitly agrees to these Terms. The User is informed of this in an appropriate place.
  5. The User does not acquire any copyrights to the email marketing software. Accordingly, the User may not decompile the email marketing software, whether in part or as a whole, nor decompile or reverse-engineer the underlying source code or make it readable or usable in any other way.

§ 2 Provider’s services

  1. The Provider operates the web-based email marketing system. The email marketing software is offered as an ASP service.
  2. ASP means that the Provider provides the User with the technical platform for carrying out email marketing activities. While CleverReach attempts to deliver all emails, the Provider cannot guarantee successful delivery. CleverReach is only the transmitter of the emails and the Provider does not examine their content based on legal, technical or other criteria. The Provider therefore cannot be held responsible for the content of the emails dispatched via CleverReach.

§ 3 Registration

  1. The User must have registered in order to use the Provider’s services.
  2. The User must fill out all fields of the registration form truthfully and correctly. Successful registration is only possible when all mandatory fields have been completed.
  3. Only persons with full legal capacity or those acting with the consent of their legal guardians are entitled to use CleverReach.
  4. Users must keep their passwords confidential. They may not disclose them to third parties. If the User becomes aware that a third party has found out or uses his/her password, he/she will inform the Provider immediately.

§ 4 Fees

  1. The charges for the use of the email marketing software are based on the current price list.
  2. The charges specified in the current price list are net prices. Taxes may apply.
  3. Custom services provided by CleverReach which are not specified in the price list are charged on the basis of a separate agreement with the user.
  4. The Provider is entitled to adjust the respective price list once a quarter to accommodate changing market conditions, significant changes in measures to increase security and privacy, services and support, provider fees, personnel costs, changes in tax or increases in the cost of improving, adapting and developing the software. 
  5. The Provider will invoice the User for the services provided. The invoice will become due immediately after receipt. If the User’s payments are late, the Provider will suspend services immediately. Default interest of 3% above the applicable discount rate shall accrue immediately.

§ 5 Participation rules

  1. With his/her acceptance, the User makes a binding commitment to use the email marketing software. However, the Provider expressly declares that the User does not acquire a general right of use with respect to the email marketing software. The Provider reserves the right to accept or decline registration for the use of the email marketing software. A contract is concluded once the Provider has accepted the registration, the User has selected a plan and the Provider has activated the User’s account.
  2. The Provider reserves the right to use the name and/or the logo of the registered User on its website as a reference and include a link to the registered User’s website.
  3. The User bindingly declares that emails will only be mailed to recipients who have previously agreed to receive these emails (double opt-in procedure).
  4. At the Provider’s request, the User must submit a written description of the method used to collect the email addresses.
  5. The User must accept the privacy policy for the contract to enter into force.
  6. The User must specify in the email why the recipient is receiving it.
  7. Vendors of internet offerings including content of an illegal (e.g. offers of software cracks, links to such offers or illegal MP3 files), radical, racist, pornographic, violent, libelous or similar nature may not use the email marketing software. Furthermore, the use of the email marketing software is prohibited for users with verifiably improper business practices. Moreover, the Provider reserves the right to delete or close accounts at any time without giving reasons and to take criminal or civil action against the User, particularly if the Provider has reason to assume that the content of the emails is grossly offensive, illegal or inadmissible. This includes, but is not limited to, the following:
    a) mailings with content that violates the laws of the Federal Republic of Germany and/or European Union law
    b) mailings infringing the rights of third parties, such as industrial property rights (trademark rights, copyrights, etc.) or general personal rights (including the right to informational self-determination)
    c) mailings with pornographic content, including, but not limited to, messages violating youth protection legislation.
    d) Mailings with racist, slanderous, libelous, violent and/or discriminating content.
  8. The Provider reserves the right to perform random checks of the content of the mailings dispatched via the email marketing software.
  9. The Provider may save the User’s IP address for each mailing.
  10. Users of the email marketing software must be clearly recognizable as senders of a commercial message. They must specify their name/company name along with the complete address in the mailing. In addition, all recipients of emails sent by the User must be able to remove themselves from the database from within the email. The User must point this out explicitly in each email. Unsubscribing must always be possible for the recipient without requiring credentials such as logins and passwords. Any violation of these obligations is considered to be improper business practice within the meaning of Section 5.7 of these Terms of Use and will lead to the deletion of the account.
  11. The User acknowledges that the Provider is legally obligated to remove email addresses from the database and to put these on a black list if an email sent to a specific email address bounces three consecutive times (hard bounce) or if complaints are received from recipients.
  12. The User acknowledges that mailings may be subject to the laws of the respective recipient countries and undertakes to observe the applicable laws or other regulations in these countries with regard to the mailings.
  13. The User undertakes not to use the email marketing software to dispatch emails with content that is prohibited by law in a country in which recipients have their place of residence or registered office.
  14. The User must specify a contact to the Provider with a telephone number and an email address for complaints. The response time on business days may not exceed 24 hours.

§ 6 Liability

  1. The Provider assumes no liability for the operational readiness of the systems provided. The Provider and the User agree that it is not possible to develop computer programs in such a way that they are error-free under all conditions. Specifically, no liability is assumed for the transmission, completeness of the transmission and/or timeliness of the transmission of mailings.
  2. The Provider is under no obligation to maintain, prevent interruptions to, or change existing information, data or services. The Provider will, however, use its best efforts to inform the User in good time of the cancellation or suspension of an electronic service.
  3. The User is fully responsible for all consequences caused by the content and dispatch of a mailing. The Provider cannot be held responsible.
  4. It is the responsibility of the User to save the information, data and other messages forwarded by the Provider immediately. The Provider assumes no liability for a loss of data caused by a violation of this obligation.

§7 Data security

  1. User data is hosted on the Provider’s servers in dedicated data containers to ensure that neither other customers of the Provider nor third parties can gain access.
  2. The Provider uses state-of-the-art technologies to maintain data security. The Provider undertakes to maintain this technological standard with regard to the ongoing advances of information technology and the internet. The same shall apply to any subcontractors used by the Provider.
  3. The Provider is able to monitor the operation of the system around the clock and respond to any incidents immediately. User data stored on the Provider’s servers is backed up every 24 hours.
  4. The User acknowledges that confidentiality of the data hosted by the Provider can only be guaranteed if the User treats the provided access credentials as confidential. If the credentials are lost or if there is the possibility that an unauthorized person has obtained them, the User must inform the Provider immediately in writing (by fax or email) so that the Provider can block access.
  5. The User is fully responsible for all consequences caused by the content and dispatch of a mailing. The Provider cannot be held responsible.

§8 Termination of the right of use

  1. The User can terminate his/her account at any time at the end of a month without stating any reasons. There is no minimum term.
  2. The Provider explicitly reserves the right to exclude specific users from the use of the email marketing software and all other services connected with it at a later date without giving reasons.

§9 Severability clause

  1. If any of the provisions of these General Terms and Conditions should be or become partially or completely invalid or unenforceable, the validity of the other provisions shall remain unaffected. The ineffective provision shall be replaced by a provision which comes closest to the intended purpose.

§10 General

  1. The parties agree that the place of jurisdiction shall be the seat of the Provider, provided this is permitted by law.
  2. Upon the Provider’s first request, the User shall hold the Provider harmless with respect to all claims asserted against the Provider in connection with actions caused by the User. Specifically, this applies to all claims asserted in connection with emails with illegal content sent or forwarded by the user.
  3. The User warrants that the information provided when registering for an account is accurate. The User shall immediately notify the Provider of any changes.
  4. These Terms of Use are subject to the laws of the Federal Republic of Germany.

§11 Data protection
The parties intend that the Provider’s email marketing software will regularly carry out mailings on behalf of the User. The User shall make customer data available to the Provider for this purpose. The Provider shall carry out mailings using IT systems and databases provided by subcontractors. The purpose of this undertaking is to ensure that the Provider protects the User’s data to the full extent of the German Federal Data Protection Act.

  1. The Provider undertakes to keep strictly confidential all of the user’s business information it is or may become aware of during the period of cooperation and beyond.
  2. According to Section 5 of the German Federal Data Protection Act, the Provider is not allowed to collect, process or use personal information without authorization. The Provider is also obliged to maintain data secrecy even after termination of activities for the User.
  3. Violations of the German data secrecy regulations according to Sections 44 and 43 para. of the German Federal Data Protection Act and other regulations are punishable by imprisonment or fines.

§12 User declaration

  1. After termination of the cooperation within the meaning of the note above, the User can request the Provider to delete the data stored in the database during the cooperation immediately.
  2. The User confirms that, by complying with the declarations above, the Provider meets the User’s data protection requirements .
  3. The User declares that he/she has acquired the email addresses by legitimate means and has the permission of the respective recipients to write to them.