CleverReach GmbH & Co. KG, a company registered with the commercial register of the local court of Oldenburg (registration number HRA 4020), Germany (for further information, see the Imprint), provides a web-based autonomous direct communication software at the website address https://cleverreach.com as well as associated services (“CleverReach”). CleverReach is operated by CleverReach GmbH & Co. KG. This means that agreements regarding CleverReach and the services are concluded directly between the customer (hereinafter referred to as “User”) and CleverReach GmbH & Co. KG, the operator of CleverReach (hereinafter referred to as “Provider”), based on the following General Terms of Service (hereinafter referred to as “Terms”).
1 Scope of application
- The version of the Terms that is current at the time the agreement is entered into shall apply to all current and future legal relationships between the Provider and the User, subject to any changes.
- Amendments to Terms already agreed on shall be proposed to the User in writing at least two months before the proposed effective date. If the User has used an electronic communication channel for the business relationship, the changes can also be proposed in this way. The User shall be deemed to have given his consent if he has not communicated his refusal before the proposed date on which the changes take effect. The Provider will specifically draw the User’s attention to this approval procedure in his offerings. These terms may not be extended or restricted by the User.
- The use of CleverReach requires acceptance of these Terms by the User. The User may not bypass the corresponding acceptance mechanisms provided on the Provider’s website.
- By using CleverReach, the User explicitly agrees to these Terms. The User will be informed of this at an appropriate place.
- The user does not acquire any intellectual property rights to CleverReach. Accordingly, the User may not decompile CleverReach, 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 Services provided by CleverReach
- The operator operates CleverReach and offers CleverReach as software as a service (SaaS).
- The Provider enables the User to prepare, dispatch and analyse direct marketing messages using this SaaS solution. While the Provider attempts to deliver all messages, it cannot guarantee successful delivery. The Provider is merely responsible for transmitting the messages and is under no obligation to check their contents under legal, technical or other aspects. This means the Provider is not responsible for the contents of the messages.
- The Provider grants all users a simple, non-exclusive, non-sublicensable and non-transferable right to use the current version of CleverReach for the duration of the Agreement under the condition that they comply with the antispam rules specified on the website. The scope of services can be derived from the description provided on www.cleverreach.com and its subpages.
- The Provider provides e-mail support to help with technical problems when using the service. Chargeable added services are also offered.
- The connection of the User to the Internet is not a subject of this agreement, but rather it is the responsibility of the User within the scope of the conditions for use.
- The Provider is not obliged to ensure that the service is available and fully operational at all times. The Provider and the User agree that it is not possible to develop SaaS solutions in such a way that they are error-free under all conditions. Specifically, the Provider is not obliged to ensure that messages are transmitted without limitation, completely and/or in a timely manner.
- 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 a timely manner of the cancellation or suspension of an electronic service.
- Successful registration is only possible when all fields marked as mandatory have been completed. The User is obliged to fill out all fields he uses in the registration form truthfully and correctly.
- Only users with full legal capacity or users with full legal capacity authorised by the User or users acting with the consent of their legal representatives are entitled to use the services.
- Users are obliged to keep their credentials secret and not to pass them on to third parties. If Users become aware that a third party has found out or uses his/her login credentials, he/she will change the credentials and/or inform the Provider without delay. The same obligation applies to other users authorised by the User. The User must inform and oblige such other users accordingly.
- The charges for using CleverReach are based on the current price list.
- The charges specified in the current price list are net prices unless expressly stated otherwise. They do not include statutory value added tax.
- Custom services provided by the Provider which are not specified in the price list are charged on the basis of a separate agreement with the User.
- The Provider may adjust the agreed monthly rates no more than once a quarter to accommodate changing market conditions, significant changes in measures to increase security and privacy, services and support, provider fees, personnel costs, or increases in the cost of improving, adapting and developing the software. In the event of price increases exceeding the regular increase in the cost of living according to the general consumer price index, the User is entitled to terminate the contract. In these cases, the User will be informed by the Provider in writing.
- The Provider will invoice the User for the services provided. The invoice will become due immediately after receipt. If the User defaults on payment, the Provider shall be entitled to suspend the services seven days after a fruitless payment reminder. Default interest of 9% above the applicable base rate shall accrue immediately. The user agrees that invoices will be delivered electronically. At the express wish of the user, invoices can be sent as a hard copy instead.
5 Participation rules
- CleverReach is designed solely for use by businesses. By accepting the terms, the User expresses a binding intent to use CleverReach. However, there is no general right to use CleverReach. The Provider reserves the right to accept or decline registration for the use of the CleverReach. A contract is concluded once the Provider has accepted the registration and the User has selected a plan.
- The User warrants and represents that messages are sent to the User’s recipients in compliance with applicable regulations (e.g. after application of the double opt-in process).
- Upon the Provider’s request, the User must describe in writing how contact information was collected.
- The User may not cause reputation problems (neither IP- nor domain-based) for CleverReach with participating ISPs and technological partners (for example based on spamtrap hits, content scanners or high spam rates). Server problems like these cause economic damage 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 User may not violate legal regulations, good conduct and the rights of third parties (brand-, name-, or copyright, data privacy etc.). Over the course of his usage of the services of CleverReach, the User agrees to
– not display pornographic content, i.e. content that violates §§ 184 – 184e of the German Criminal Code,
– not distribute hate speech, i.e. content that violates § 130 of the German Criminal Code,
– not depict physical violence, i.e. content that violates § 131 of the German Criminal Code and
– not incite people to commit criminal acts nor to provide instructions for such acts.For every case of offense against the preceding obligations, the User commits to paying a contractual penalty at the rate of 5,010.00 EUR (in words: five thousand and ten euros) in view of a continued relationship. This does not exclude the assertion of further compensation for damages by CleverReach.
The Provider may store the User’s IP address for each message sent.
- The User acknowledges that the Provider is legally obligated to remove contact information from the database and to place it on a black list if a message sent to a specific contact address is returned as undeliverable three consecutive times (hard bounce) or if complaints are received from recipients.
- The User acknowledges that the transmission of messages 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 messages.
- The User must specify a contact with a telephone number and an e-mail address to the Provider for complaints.
- It is the responsibility of the User to save the information, data and other messages made accessible by the Provider without delay.
- The User is fully responsible for all consequences caused by the content and dispatch of messages. In no event can the Provider be held responsible.
- If a user suffers a data loss, the extent of the provider’s liability shall be limited to the effort required to restore the lost data on the user’s system using existing backup copies.
- In cases of simple negligence, the Provider shall only be liable for damages where these damages were caused by a culpable violation of material contractual obligations whose violation may prevent the purpose of the contract from being fulfilled and/or with which compliance is required in order for the contract to be executed properly and where users may expect compliance, regardless of the legal reason. The same applies if the User is entitled to damages instead of performance. In case of a violation of material contractual obligations, depending on the type of the service, the Provider’s liability shall be limited to the foreseeable immediate typical average damage which the Provider had to account for at the time of conclusion of the contract due to the circumstances known to him at that time.
- Any further liability of the provider is excluded irrespective of the legal nature of the claim asserted; this also applies in particular to claims in tort or claims for reimbursement of wasted expenses instead of performance.
- Where 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 (1 to 5) do not apply to claims of the User arising from product liability. Furthermore, the limitations of liability do not apply to harm to life, to the body or to health attributable to the Provider or to damage based on intentional or grossly negligent breaches of contract or malice on the part of the Provider, its legal representatives or its vicarious agents.
- The Provider shall be obliged to comply with the current version of the minimum wage law. The Provider shall hold its Users harmless of any claims by third parties resulting from a violation of the Provider’s obligations under the minimum wage legislation.
7 Termination of the right of use
- The User may cancel his account without giving reasons at the end of a month or at the end of the agreed term in the case of a plan with a longer term.
- Any case of violation of § 5 entitles the Provider to an extraordinary cancelation within 14 days of acquiring knowledge of said violation. If CleverReach issues the termination, unusable credit caused by the termination will be paid out.
- After termination of the cooperation covered by this agreement, the User can request that the Provider immediately delete the order data stored in the database during the cooperation.
- If any of the provisions of these Terms 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 that comes closest to the intended purpose. In cases of doubt, the Parties to this agreement shall undertake to agree on such an arrangement.
- The parties agree that the place of jurisdiction shall be the seat of the Provider, provided this is permitted by law.
- 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 messages with illegal content sent or forwarded by the User.
- These Terms of Service are subject to the laws of the Federal Republic of Germany. The provisions of the UN Convention on Contracts for the International Sale of Goods shall not apply.
10 Data protection
- The Provider and the User are bound by the relevant data privacy regulations and will comply with them.
- The user is responsible within the meaning of the privacy regulations. The Provider is the Processor.
- The User undertakes to enter into the data processing agreement proposed by the Provider without delay once the requirements for such a data processing agreement are met.
- The User releases the provider from (co-)liability according to the privacy regulations to the extent that the Provider is not liable for a claim for damages according to his fault and the degree of his co-responsibility.
- The Provider uses an appropriate security system to maintain data security.
Additional General Terms and Privacy Notice of RatePAY GmbH
- In order to offer you attractive payment methods, we use RatePAY GmbH, of Schlüterstraße 39, 10629 Berlin (hereinafter referred to as “RatePAY”). If an effective purchase agreement is concluded between you and ourselves when using a RatePAY payment method, we will assign our payment claim to RatePAY. If payment in installments is selected, we assign our payment claim to the RatePAY GmbH’s partner bank.
- By selecting one of the RatePAY payment methods offered here, you agree that your personal information and the order information is passed on to RatePAY for identity and credit checks and for contract management purposes. For details, refer to the additional General Terms and Conditions and the privacy notice for RatePAY payment methods which are part of these Terms of Service and which apply when you select a RatePAY payment method.