§ 1 Validity of the provisions

For Clever Elements GmbH (hereinafter referred to as “Provider”) offers a web-based email marketing system under the website address www.cleverelements.com or www.mailmops.com or www.sendcockpit.com in accordance with the following provisions. Any conflicting conditions, extensions or restrictions on the part of the user are hereby expressly rejected; these do not become part of the contract. Use of the email marketing system without acknowledgment of these general terms and conditions is just as inadmissible as use that circumvents the access channels provided for this purpose. The user does not acquire any copyrights to the software of the email marketing system. The user is therefore not entitled to decompose it or parts of the source code on which it is based or to make it usable in any other way.

§ 2 Contract, term fee

The use of the email marketing system requires a one-time registration (see also Section 3). After successful registration, the user can send emails. Registration alone does not constitute a contract. The provider offers the following mailing options: a) Mailing based on effort (prepaid credits): The user orders a mailing. The remuneration is based on the number of recipients of the mailing specified by the user. The contract is concluded when the mailing is sent. It does not require termination because it ends immediately when the mailing is sent. Sending mailings to 10 or fewer recipients is free of charge. b) Mailing according to flat rates (monthly rates): The user acquires the right to send emails with an unlimited sending limit for 31 days at a fixed price. The price depends on the number of managed recipients in the account and can be found in the price list. The definition of a managed recipient is as follows: The recipient is currently in the user's account or a mailing was sent to the recipient during the term of 31 days. With a sending limit of a maximum of 1000 emails over a period of 31 days and a maximum number of 250 managed recipients in the account, the provider offers free sending, with this email then containing the advertising add-on “Powered by Clever Elements“ or similar can be provided. After the end of the 31 days, the contract is extended for a further 31 days. The contract can be terminated at any time at the end of the term. Furthermore, an upgrade within the flat rate can be chosen at any time. The exact fee for the e-mailings can be found in the provider's price list. The fee calculated in this way is due upon invoicing by the provider. If the user has chosen the payment method direct debit, credit card or Paypal, the calculated fee will be deducted from the user's corresponding account. If you choose the flat-rate tariff, the fee is due immediately at the beginning of the term and is to be paid in advance exclusively by credit card or direct debit.

§ 3 Participation Rules & Exclusions

The decision to approve an application to use the email marketing system generally remains with the provider. The provider reserves the right to list the names and logos of registered users as a reference on its websites and thus make them publicly accessible and to link to the respective user's website. If a user does not agree or no longer agrees with this publication or the link, he or she must notify the provider in writing. E-mailings may only be sent to recipients who have given their consent in accordance with Section 7 Para. 2 Nr. 3 UWG (opt-in) or are in existing client relationships with the advertiser and meet the requirements of Art. 13 para. 2 of the Electronic Communications Data Protection Directive 2002/58/EC of the European Parliament and of the Council of 12. July 2002 were complied with. In this context, the user is expressly recommended to collect user data via the Internet, preferably using the so-called double-old-in procedure. The confirmation email sent as part of the double-pt-in process must not contain any female content. Consent to the sending of advertising via email must be given separately. The addressee must either click/tick a box or otherwise make a similarly clear declaration of their consent to the advertising via email. This declaration may not be part of other declarations (e.g. Consent to the validity of general terms and conditions). The recipients must actively give their consent through a conscious act. No gate-clicked or gate-ticked boxes may be used. The possibility of revoking permission to send emails must be stated in every email. References to this possibility must be included in every message sent. In principle, it must be possible for the recipient to unsubscribe from emails without knowing access data (e.g. login and password). Exceptions to this may be permitted in individual cases if different handling is necessary due to the special features of the service offered. Cancellations must be processed immediately. The provider must remove email addresses of the participating Internet service providers from the mailing list if three hard bounces occurred after these addresses were sent. Neither the sender nor the commercial nature of the message may be disguised or hidden in the header and subject line of the email. Obfuscation or concealment occurs when the header and subject line are intentionally designed in such a way that the recipient receives no or misleading information about the actual identity of the sender or the commercial nature of the message before viewing the content of the communication. When using e-mail addresses that the user has acquired from third parties, the user is obliged, before carrying out any advertising, to ensure that only those recipients who have given their consent in accordance with these General Terms and Conditions are actually being contacted , which refers not only to shipping by a third party, but also by the user himself. Upon request, the user must explain to the provider in writing how the email addresses were collected. Furthermore, the provider can require the user to submit declarations of consent from the recipients. Operators of Internet offerings with legally prohibited content (warez/cracks offerings, links to such offerings or illegal MP3 files), radical, racist, pornographic, violent, offensive or other prohibited content are excluded from the email marketing system . In addition, the provider reserves the right to delete the account at any time without giving reasons. The provider reserves the right to randomly check the content of emails sent via its network. The user's IP address is saved automatically every time you log in. The IP address is used exclusively in accordance with data protection regulations. The email is sent using an email address chosen by the provider as the sender address. However, users can specify their own sender address The identity of the user must be clearly recognizable when sending an advertising mail. Every email sent must contain an easily recognizable legal notice, either in the text or accessible via an immediate link.

• the name and address at which the sender is established, in the case of legal entities, the legal form, the authorized representative and the commercial register, association register, partnership register or cooperative register in which they are entered and the corresponding registration number;
• Contact information, but at least a valid telephone number or an electronic contact form as well
• an email address and
• in cases where there is a sales tax identification number in accordance with Section 27a of the Sales Tax Act or a business identification number in accordance with Section 139c of the Tax Code, the indication of this number.

Further information obligations in accordance with Section 5 Paragraph 1 of the Telemedia Act (TMG) remain unaffected. A violation is a dubious business practice within the meaning of § 3 point. 7 of these terms of use and leads to the deletion of the account. The user also undertakes not to use the software provided by the provider to send any emails whose content is subject to legal prohibitions in a country in which the recipient is domiciled or based.

§ 4 Liability

The provider's liability for damages, regardless of the legal basis (in particular breach of contractual secondary obligations, delay, claim for damages due to unlawful acts or reimbursement of expenses) is excluded. This does not apply if an essential contractual obligation (cardinal obligation) has been violated or if the provider or one of its legal representatives or vicarious agents is guilty of intent or gross negligence. The exclusion of liability also does not apply in the event of culpable injury to life, body or health or in the case of the assumption of a guarantee or assurance of properties, provided that it is precisely the subject of the guarantee or assurance that triggers liability. In the event of liability for breach of cardinal obligations, compensation is not excluded, but is limited to the foreseeable damage that is typical for the contract. The limitation of liability also does not apply to claims arising from the Product Liability Act. A guarantee or assurance in the sense of a tightening of liability or the assumption of a special liability policy is only deemed to have been given if the terms “guarantee” or “assurance” are expressly mentioned.

§ 5 Data security

The user's data is hosted on the provider's servers in a data container reserved specifically for the user, so that other users of the email marketing system do not have access to the user's data. To maintain data security, the provider only uses state-of-the-art technologies. It will maintain this level of technology in view of the ongoing development of information technology on the one hand and the Internet on the other. In addition, all services purchased by him are provided by competent subcontracts that correspond to the aforementioned state of the art. All of the provider's servers are located in a secure, firewalled, state-of-the-art hosting facility with full-time operations management and redundancy features, backup generators, etc. Security personnel and surveillance cameras are on duty around the clock to ensure the physical security of the serving rooms guarantee. The room in which the servers are located is locked and only accessible to authorized personnel. Due to the situation presented, the provider is able to closely monitor the operation of the system around the clock and respond immediately to operational disruptions. The user data stored on the provider's servers is backed up every 24 hours. To access their data, the user is provided with a user name and a user password. The user acknowledges that the confidentiality of the data hoarded by the provider can only be guaranteed if the user treats the access data provided to him as appropriately confidential. If these access data are compromised, the user should inform the provider immediately and arrange for the access data to be blocked/changed, otherwise exclusive access to the user's data cannot be guaranteed. The user alone, and in no case the provider, is responsible for the consequences resulting from the content and sending of an email.

§ 6 End of the right of use

The user can terminate their account at any time without giving reasons. There is no minimum contract period.

§ 7 nullity clause

Should a provision of this contract be or become wholly or partially invalid, this will not affect the effectiveness of the remaining provisions. Rather, the parties undertake to replace the invalid provision with a regulation that comes closest to the intended purpose.

§ 8 General

The parties agree that the place of jurisdiction is the provider's registered office, if permitted by law. Upon first request, the user releases the provider from all claims made against the provider in connection with actions that originate from the user. This applies in particular to all claims that are raised in connection with an email with infringing content that was sent or forwarded by the user. The user warrants that the information provided by him in connection with registering for his account is correct. He will inform the provider immediately of any changes. Only entrepreneurs within the meaning of §14 BGB are eligible to participate. All prices quoted are net plus VAT. These terms of use are subject to the law of the Federal Republic of Germany.