Terms of service

As of May 2021

 

General information and conclusion of contract

  1. These terms and conditions apply to contracts for the use of CLEVERPUSH and the services and products we offer in connection with it (e.g. Nyws app, Facebook, Telegram and Twitter integrations). Our offer is aimed exclusively at entrepreneurs within the meaning of Section 14 of the German Civil Code, legal entities under public law or special funds under public law. We reject the conclusion of a contract with consumers within the meaning of Section 13 of the German Civil Code (BGB). If we have been deceived into the fact that our contractual partner is a consumer, we reserve the right to terminate the contract without notice for an important reason.
  2. Deviating, conflicting or supplementary terms and conditions of the customer are not part of the contract, even if we are aware of them, unless their validity is expressly agreed. These terms and conditions also apply if we carry out the service without reservation in the knowledge of conflicting or deviating or additional conditions of the customer.
  3. The presentation of our products for ordering on our website does not constitute a legally binding offer. When the customer places an order, he rather submits an offer to conclude a corresponding contract. The customer is bound to his offer for a period of two working days at our headquarters. We can declare acceptance or rejection of the offer within this period of time. Acceptance takes place through successful completion of the customer’s payment process, confirmation of the conclusion of the contract in text form by us or provision of the service. An email sent by us automatically confirming the receipt of the order is not an acceptance of the customer’s offer to conclude a contract.
  4. The customer must provide truthful and complete information when registering. Changes to the information must be made by the customer in the customer area immediately. He has no right to have invoices incorrectly issued due to the failure to update the data being corrected.
  5. Only the information provided by us when the contract was concluded is deemed to be the quality of CLEVERPUSH. Public statements, promotions or advertising that deviate from this do not constitute a contractual specification of properties.

Use of CLEVERPUSH

  1. The customer receives simple, non-sublicensable and non-transferable rights to CLEVERPUSH, limited to the term of this contract, for contractual use in accordance with the respective tariff selected (e.g. number of subscribers, number of channels, activated functions).
  2. Insofar as the customer enables other users to access his customer area (e.g. teams function), the customer is responsible for the corresponding uses and the actions taken by the users may be data protection instructions within the framework of the order processing contract concluded with the customer.
  3. Each party takes customary and reasonable precautions to protect user IDs and passwords from unauthorized third parties. The parties inform each other if they suspect that the user ID and / or the password may have become known to unauthorized third parties. In this case, they are to be protected by changes immediately by the party who discovered this. The customer will change the passwords of his users / team members if he wants to prevent access to these accounts in the future. He also has to revoke any access granted to a third party in the teams settings if this should no longer exist. Incidentally, he would be liable for any misuse of the access data by such persons in relation to CLEVERPUSH.
  4. The customer may not use CLEVERPUSH in violation of the rights of third parties or for illegal purposes. In particular, he will refrain from any use that could lead to a violation of applicable laws or the rights of third parties. He will hold us free from all corresponding claims by third parties, including reasonable costs of legal review and representation upon first request.
  5. If the customer violates the provisions of paragraph 4, we can block his access to CLEVERPUSH or the corresponding data to the extent necessary, if the violation can be remedied or reduced at our reasonable discretion. If it is reasonable for us, we will inform the customer about the violation of paragraph 3 by setting a reasonable period of time and request that the violation be remedied. The request or information about a completed measure is sent by email to the email address stored in the customer account. Instead of blocking, data can also be deleted if we are obliged to do so, blocking is not sufficient to stop the violation and the data processing contract concluded with the customer should not be violated.
  6. If the customer continues to violate or repeatedly violates the provisions of paragraph 4 despite a corresponding warning, we can extraordinarily terminate the contract without observing a notice period. We are also entitled to an extraordinary termination if a one-time violation of paragraph 3 was so serious that we cannot be expected to continue working with the customer.

Apps

  1. We provide customers who have commissioned a corresponding tariff with an app construction kit so that they can create and publish independently functioning apps for iOS and Android. The customer is the sole operator and person responsible for the respective app. The customer is therefore particularly responsible for ensuring that the app created by him complies with the statutory provisions and the requirements of the respective app store.
  2. The right to use an app only exists as long as a corresponding tariff has been concluded with us.
  3. The customer is only entitled to decompile an app if he is entitled to mandatory legal claims (in particular § 69e UrhG).
  4. For the open source software used in apps, the applicable license terms apply. The menu item and content generated by us may not be modified by the customer in violation of the specifications of the respective licensor.

Use of the API

We provide customers who have ordered a corresponding tariff, an API for the use of CLEVERPUSH, which can be addressed via the Internet. The information published by us applies to the use and range of functions of the API.

Availability of CLEVERPUSH

  1. We owe an availability of CLEVERPUSH at the transfer point (interface to the Internet in the data center in which CLEVERPUSH is operated by us) of 99% per contract month.
  2. The parties understand availability to mean the possibility of using CLEVERPUSH at the transfer point in accordance with the contract.
  3. CLEVERPUSH is also available at
    1. Unavailability for maintenance work on Sundays between 2 and 4 a.m. at our headquarters;
    2. Unavailability for maintenance work in the period from Monday to Friday between 8 p.m. and 6 a.m. at our headquarters as well as on weekends and national holidays, provided that we announce this at least one week in advance;
    3. in the event of unavailability to rectify errors that prevent the secure operation of CLEVERPUSH in accordance with the provisions of the GDPR or otherwise jeopardize IT security more than insignificantly, provided that we announce this with a period of at least 24 hours and the unavailability lasts for Does not exceed 4 hours.
  4. The customer is informed in accordance with paragraph 3 by email to the email address stored in his customer account.

Customer support

We provide a ticket system for customer support, which can be accessed from the customer area on our website. Customer inquiries are processed within a reasonable period.

Adjustment of the commissioned services by the customer

The customer can switch to a higher tariff at any time with his contract. The billing of the previous and the new tariff takes place exactly on the respective day. A change to a lower tariff is possible at the end of the current contract period.

Backup and recovery of data

  1. We make backup copies of the data stored in CLEVERPUSH every calendar day between 00:00 and 02:00. The data backup takes place on a rolling basis in such a way that the data backed up for a weekday is overwritten with the data backup made for the same day of the week following. A weekly data backup is carried out according to the same principle, in which the data is also overwritten on a rolling basis after four weeks.
  2. If we should discover a loss of data, we will restore the lost data from the data backup to the point in time of the data backup. We will inform the affected customers about the loss and the time at which the data was restored by email to the email address stored in the customer account.

Special regulations for free and free trial versions

  1. Insofar as we provide the customer with a free or free trial version of CLEVERPUSH, the following paragraphs apply, which take precedence over the other provisions of these terms and conditions in the event of contradictions.
  2. Free or free trial versions are left to the customer as they are for test purposes. We do not owe them that the services owed by us are always available and error-free during the period of use. We endeavor, at our discretion, to operate free or free trial versions with the same care as our paid offers. However, since we are not paid for this by the customer, we cannot enter into any further obligations.
  3. We are entitled to terminate a corresponding contract at any time.
  4. A free version may only be used for purposes in which deficiencies in the service, the lack of our service and the loss of data do not cause any damage to the customer or third parties. Trial versions may be used for production purposes.

Fees and billing, changes to agreed fees

  1. We invoice the fees agreed with the customer upon conclusion of a contract for the agreed term of the contract in advance. The special prices granted to the customer for contracts with a term of one year are consideration for the longer contract term that the customer enters into with us.
  2. All prices quoted by us are net prices and are in euros.
  3. If the customer has deposited a credit card as a means of payment, he is responsible for ensuring that it is made out to the contractual partner and that it can be used to collect the fees due to us. The customer must update the stored credit card in good time before it expires.
  4. Customers for whom sales tax is invoiced according to the reverse charge procedure must enter their sales tax ID in their customer profile, otherwise we are entitled to invoice the customer for German sales tax. The customer has no right to subsequent correction of corresponding invoices.
  5. We are entitled, in spite of the customer’s stipulations to the contrary, to offset payments against older debts. If we are already entitled to reimbursement of costs or interest, we are entitled to offset the payment first against the costs, then against the interest and finally against the main service. We will inform the customer about a different offsetting from his information.
  6. In the event that the customer is in default of payment, we are entitled to charge a flat rate for each corresponding invoice in accordance with Section 288 (5) of the German Civil Code. The possibility of asserting any further damage caused by default remains unaffected.
  7. Invoices can be issued in digital form and made available on our website in the customer area.
  8. We are entitled to adjust fees agreed with the customer. The information about the adjustment must be sent at least two weeks before the end of the notice period for the contract by email to the customer’s email address stored in the customer profile. The adjustment may come into force at the earliest after the time at which the customer terminates the contract after receiving the information.

Term and termination

  1. The contract is concluded for a month or a year after the customer’s selection when the contract is concluded. It can only be terminated for an important reason before the end of the fixed term. In addition, termination is possible up to the end of the last day of the agreed contract period. If there is no termination, the fixed term is extended by one month or one year depending on the term originally selected by the customer.
  2. The right to terminate for an important reason remains unaffected. The following reasons are particularly important if they exist for the other party:
    1. the breach of essential contractual obligations by the other party if the breach is not remedied despite a reminder and setting of a reasonable deadline with reference to the right of termination. Reminders and deadlines are not required in the event of unreasonableness;
    2. the refusal to open insolvency proceedings for lack of funds;
    3. the opening of the liquidation;
  3. We are entitled to terminate the contract without notice if the requirements of Section 543 (2) No. 3 BGB are met.
  4. A termination in accordance with Section 543, Paragraph 2, Clause 1, No. 1 of the German Civil Code (BGB) due to failure to use CLEVERPUSH in accordance with the contract is only permitted if we have been given a reasonable opportunity to remedy the defect and this has failed.
  5. Cancellations can be made by email. A cancellation by the customer must be sent to support@cleverpush.com. Alternatively, you can cancel in the customer area.

Consequences of the termination of the contract

The customer must exercise the right to issue instructions to export the data processed for him from the separately concluded order processing contract at least 14 days before the end of the contract period. In this case, the data is exported in the format in which we have saved it. The data is transferred to the customer using an encrypted download option. We are entitled to a net fee of 200 euros for providing the data. If the customer does not exercise his right to issue instructions accordingly, the data stored for him will be automatically deleted at the end of the contract. The deletion takes place in such a way that it is no longer possible to restore the data.

Future development of CLEVERPUSH

  1. With CLEVERPUSH the customer does not acquire a static product. Rather, we intend to further develop CLEVERPUSH in order to be able to offer new functions and offers that make CLEVERPUSH more attractive and safer. The scope of services of CLEVERPUSH is therefore subject to change. We will inform you about more than insignificant changes in the customer area of ​​our website under “Updates”.
  2. If changes to CLEVERPUSH are unreasonable for the customer, he has a special right of termination that must be exercised with a notice period of two weeks. The start of the period is the day on which the customer became aware of the change. This right of termination does not apply to changes or the discontinuation of functions that we have made available to the customer as part of a beta test. For these we reserve the right at any time not to offer them or only to offer them in a changed form.
  3. We look forward to every suggestion for improvement from a customer. For the sake of good order, however, we must state that the customer transfers all rights to his proposal free of charge that are necessary for its eventual implementation and any utilization. In good German: Any suggestion is welcome, but we do not provide anything in return.

Failure to fulfill our main performance obligations

  1. If we are in default with the initial provision of CLEVERPUSH, the customer is entitled to withdraw from the contract if a reasonable grace period set for us expires without result, i.e. we do not provide the agreed functionality of CLEVERPUSH for the first time within the grace period.
  2. If, after the operational provision of CLEVERPUSH, we fail to meet our obligations in whole or in part, or if the availability of CLEVERPUSH has fallen short of for a contract month, the agreed flat-rate usage fee is reduced proportionally for the time in which CLEVERPUSH does not offer the customer to the customer agreed scope was available.
  3. We have to state that we are not responsible for the reason for the delayed provision or the shortfall in availability. If the customer has not reported the lack of availability of CLEVERPUSH to us, he has to prove that we have gained knowledge of the lack of availability in some other way.

Claims for defects

  1. In the event of deficiencies in the service, the customer is entitled to statutory rights, whereby we decide whether we will remedy the deficiency by means of subsequent improvement or a new delivery
  2. Our no-fault liability for damages (§ 536a BGB) for defects existing at the time of conclusion of the contract is excluded, unless it is a property guaranteed by us (guarantee, § 276 paragraph 1 BGB).
  3. A limitation period of one year has been agreed for claims for defects. This period does not apply to claims for damages due to the violation of claims for defects, insofar the regulations on liability apply.
  4. If the customer complains about the existence of a defect and as a result of our activities resulting from this it emerges that there is no defect in our service, the customer has to reimburse our expenses incurred for this at the agreed, in the absence of an agreement, with reasonable hourly rates. This paragraph does not apply if the non-existence of the defect was not recognizable to the customer when applying the due care and knowledge.
  5. For functions, services, software or other offers that are expressly made available by us as a beta version, any claims for defects are excluded, unless we are accused of intent. The essence of such beta versions is that they are unfinished and may have defects. Such deficiencies can, for example, result in the loss of data or the functionality of CLEVERPUSH. The customer should therefore only use beta versions if the occurrence of such defects does not mean any disadvantage for him, in particular cannot result in any damage for which he would like to make us or a third party liable.
  6. The customer is obliged to notify us immediately of any defects in contractual services, in particular defects on the part of CLEVERPUSH. If we were unable to remedy the situation as a result of the failure to notify or the delay, the customer is not entitled to reduce the agreed remuneration in whole or in part for the corresponding period, to demand compensation for the damage caused by the defect, or to cancel the contract due to the defect To terminate extraordinarily in compliance with a deadline. The customer must demonstrate that he is not responsible for failing to report.

Infringement of property rights

  1. We guarantee that the contractual use of CLEVERPUSH does not violate copyrights or other property rights of third parties.
  2. Should this nevertheless be the case, we will, at our discretion, acquire the necessary rights at our expense or modify CLEVERPUSH at our own expense so that no third party rights are violated while maintaining the services owed to the customer

Liability

  1. The liability for intent and gross negligence is unlimited.
  2. In the event of a simple negligent breach of essential contractual obligations, the amount of liability is limited to foreseeable damage typical of the contract. Essential contractual obligations are those whose fulfillment makes the proper execution of the contract possible in the first place and on whose compliance the injured party can regularly rely. The limitation period for claims under this paragraph is one year.
  3. Paragraph 2 does not apply to claims arising from injury to body, health or life, in the event of fraudulent behavior, assumption of a guarantee, liability for initial inability or impossibility for which we are responsible, as well as for claims under the Product Liability Act.
  4. Otherwise liability – regardless of the legal reason – is excluded.

Confidentiality

  1. We undertake to keep the data stored by the customer in CLEVERPUSH confidential. These will only be processed by us for the purpose of fulfilling the contract with the customer and will only be disclosed to third parties to the extent that it is necessary for the fulfillment of the contract at our reasonable discretion.
  2. Data which (i) were generally known at the time of transmission or subsequently become generally known – through no fault of ours – are not subject to confidentiality, (ii) we were already lawfully known at the time of disclosure without an obligation to confidentiality, (iii ) are legally made known to us by third parties after the time of transmission without any obligation of confidentiality, without the third party being obliged to maintain confidentiality vis-à-vis the customer to our knowledge, (iv) have been developed by us independently without us having to provide confidential information from Customers have used, (v) become known to us through a permissible analysis of publicly available services or products of the customer or (vi) must be disclosed due to mandatory statutory, official or judicial regulations or orders.
  3. This non-disclosure agreement is not affected by the termination of the contract.

Data protection

  1. For the processing of personal data by the customer using CLEVERPUSH, the order processing contract concluded separately with the customer via our website in accordance with Art. 28 GDPR applies. We ask the customer to be able to make various individual adjustments to the order processing contract (e.g. specification of the services used, categories of personal data processed and those affected). The correctness and completeness of the adaptation is the responsibility of the customer. We are not obliged to review.
  2. We also undertake to process personal data that the customer leaves to us to fulfill the contract and that are not the subject of order processing in accordance with the applicable data protection regulations.
  3. With CLEVERPUSH we offer the customer the possibility of individual control, tracking and evaluation of interactions with or by users. For this purpose, personal data of his subscribers are processed within the scope of the order processing contract with the customer. It is the responsibility of the customer as the person responsible within the meaning of Art. 4 GDPR to use these functions of CLEVERPUSH in such a way that the data protection regulations and any other applicable laws are complied with. The actions taken with the customer’s access data in the customer area of ​​our website are instructions to us on how we should process personal data on behalf of the customer.

Offsetting and assignment

  1. A contracting party is only entitled to exercise a right of retention or set-off insofar as the underlying counterclaim has been legally established or is not disputed.
  2. The assignment of rights and obligations from this contract or the contract as a whole to a third party is only permitted with the prior consent of the other contracting party. Consent may not be withheld unreasonably.

Force majeure

  1. Each party is temporarily released from its obligation to perform as long as it is prevented from providing the service due to force majeure. This also applies in the event that the party is already in default.
  2. Force majeure are corresponding events within the meaning of § 206 BGB as well as an otherwise unusual and unforeseen event if the party who refers to it did not cause the event, do not anticipate the event, its occurrence, its consequence could not prevent despite the application of the necessary care and for the reason is prevented from providing the service. This applies in particular to war, terrorism, rioting, pandemics, storms, environmental disasters or if the prevention of performance is otherwise based on government orders.
  3. The party claiming the force majeure has occurred
    1. to inform the other party immediately in writing of the fact and the reasons for this;
    2. to take, with the diligence of a prudent businessman, the measures necessary to be able to resume the full performance of their obligations as soon as possible;
    3. to make reasonable efforts to minimize the negative effects on the performance of this contract;

Changes to these terms and conditions

  1. We are entitled to change these general terms and conditions at any time with a notice period of at least 6 weeks. The customer has a right of objection.
  2. We have to inform the customer in text form to the email address stored in his customer account about the intention of the change, the changed regulations and the existence as well as the exercise of his right of objection. Appropriate information and the option to object / consent can also be provided when the customer registers in his customer area.
  3. If the customer exercises his right of objection before the notice period has expired, the previous terms and conditions will apply unchanged, otherwise the new terms and conditions will apply at the end of the notice period. We are entitled to terminate the contract concluded with the customer in the event of his objection with the agreed period.

Final provisions

  1. This contract contains all agreements between the parties on the subject matter of the contract. Any deviating side agreements and earlier agreements on the subject matter of the contract are hereby ineffective.
  2. Changes and additions to this contract must be made in writing, unless a more stringent form is required by law. This also applies to any waiver of the formal requirement.
  3. General terms and conditions of the customer do not apply to this contract. This also applies if their inclusion in later documents relating to this contract is indicated without being contradicted.
  4. Should a provision of this contract be or become void, ineffective or unenforceable in whole or in part, or should a regulation that is necessary in itself not be included, the effectiveness and enforceability of all other provisions of this contract will not be affected
  5. The place of performance is at our headquarters.
  6. The contract is subject solely to the law of the Federal Republic of Germany. International private law does not apply insofar as it is indispensable.
  7. The sole place of jurisdiction for all disputes in connection with this agreement is our registered office. We are also entitled to bring claims against the customer at one of his legal places of jurisdiction.
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