Please note: the English version of this document is provided for informational purpose only. In doubt, only the German version is legally binding due to German law. The German version of this document can be found here.
§ 1 Validity of the provisions
The company Clever Elements GmbH (hereinafter „Provider“) provides, under the website address www.cleverelements.com / www.mailmops.com / www.sendcockpit.com a web-based e-mail marketing system in accordance with the following provisions. Possibly conflicting conditions, restrictions or extensions by the user is hereby expressly excluded, they are not part of the contract.
The use of the e-mail marketing system without acknowledging these terms and conditions as well as the use permitted by bypassing the space provided access routes is forbidden. The user does not acquire any copyright of the software. The user is therefore not entitled to decompile them or parts of its underlying source code.
§ 2 contract, term fee
The use of the e-mail marketing software requires a unique registration (see also Section § 3).
After successful registration, users can send e-mails. The registration alone is still not constitute a contract, the provider offers the following mailing options:
a) Pay As You Go: The user gives the order for a mailing. The price is calculated on the number of recipients specified by the user for the mailing. The contract starts with sending the mailing. It requires no cancellation, because it directly ends after the mailing has been sent. Sending out mailings to less then 11 recipients is free of charged.
b) Monthly Plans: the user acquires the right to send e-mails for 31 days with no sending limit at a fixed price. The price depends on the number of subscribers managed within the account and can be found in the price list. You can store up to 250 subscribers and send up to 1,000 mails per month. These e-mails will then show a „Powered by Clever Elements“. At the end of the 31 days period the contract will automatically be extended for another 31 days. The contract can be canceled or changed at any time.
The exact price for the service can be found in the price list of the provider.
§ 3 Participation Rules & exclusions
The decision to grant access to the use of the e-mail marketing system remains with the provider.
The provider reserves the right to use the name and logos of registered users as a reference to its websites and thus making them publicly accessible, and create links to the users’ website. If a user does not or no longer accepts that, he has to inform the provider in writing.
E-mail may be sent only to recipients that have given their consent to do so within the meaning of § 7 Para 2, No. 3 UWG (opt-in) or if they are in an client relationship to the user and the conditions of Art 13 Para 2 of the Directive on privacy and electronic communications 2002/58/EC of the European Parliament and the Council of 12 July 2002 have been complied with. In this connection, the user is strongly recommended to implement the collection of user data over the Internet, preferably via the so-called double opt-in procedure. The double opt-in process confirmation e-mail may not contain any advertising content.
The consent to the sending of advertising through e-mails must be done separately. The addressee must be either tick a check box / or otherwise deliver a similarly clear statement of his consent to the advertising via e-mail. This declaration cannot be part of other explanations (e.g., consent to the terms and conditions of validity).
Users must give their consent by an active conscious act. Pre-checked checkboxes must not be used.
Evidence of the possibility of revoking the permission should be included in every message sent. Unsubscribe from the e-mails must always be possible by the receiver without knowledge of access (such as login and password). Cancellations will be handled promptly.
The provider must remove e-mail-addresses from the mailing list if these addresses have caused three or more hard bounces.
The header and subject line of the e-mail, neither the sender nor the commercial nature of the message is to be obscured or concealed.
When using e-mail addresses that the user has purchased from third parties, the user is obliged to ensure, before the making of promotional activities that actually only those recipients will be enrolled who have declared a consent for the purposes of these Terms and Conditions which is not limited to a dispatch by a third party, but also by the user himself.
Upon request, the user must explain in writing the provider in which way the e-mail addresses were collected. Furthermore, the provider may require the user to provide informed consent by the recipient.
Operators of Internet sites with legally prohibited (Warez-/Cracks- offers, such offers or links to illegal MP3 files), radical, racist, pornographic, violent, abusive or other not legal content are excluded from the e-mail marketing system. In addition, the provider reserves the right to delete accounts even without giving any reason at any time.
The provider reserves the right to spot check of content sent over its network e-mailings.
The IP address of the user is saved automatically at every login. Using the IP address is used only in accordance with the Data Protection Act.
The dispatch of the e-mails is provider selected by the e-mail address as the sender address. The user can specify a different address.
The identity of the user must be clear in sending an infomercial. Each sent e-mail must contain an easily recognizable imprint, either in text or via a direct link available. The imprint must contain the following information:
- The name and address at which the sender is established, with legal entities in addition to legal status, authorized representatives and the trade register, register of associations, cooperative or partnership registration register in which they are registered and the relevant registration number;
- Contact information, at least one valid phone number or an electronic contact and
- An e-mail address and
- In cases where a sales tax identification number according to § 27a of the Sales Tax Act or a business identification number according to § 139c of the tax code is present, this number.
For further information according to § 5 Para 1 of the Telemedia Act (TMG) remain unaffected.
A violation is a dubious business practice as defined § 3 Para. 7 of these Terms and will equate to account deletion.
The user does not send content to receivers - in a state in which the recipient has his residence or office - which is subject to legal prohibitions.
§ 4 Liability
The supplier’s liability for damages regardless of legal grounds (in particular breach of contractual obligations, delay, and claim for damages for tort or expenditure) is excluded.
This does not apply if an essential contractual obligation (cardinal obligation) has been violated or if the vendor or his legal representatives or agents with intent or gross negligence. The disclaimer does not apply with a culpable violation of life, limb or health or when taking over a guarantee or the guarantee of the properties, especially if triggered by the subject of the guarantee or the assurance of the liability.
In the case of a liability for the infringement of cardinal duties of damages is not excluded, but limited to the foreseeable damage.
The limitation of liability shall neither apply to claims under product liability law. A guarantee or warranty for the purposes of liability or the assumption of a special obligation apply only made‚ if the terms „guarantee“ or „assurance“ are expressly excluded.
§ 5 Data security
The user’s data are hosted on the provider’s servers in a specially reserved for the user data container, so that other users of the e-mail marketing system cannot access the user’s data.
The supplier uses for maintaining data security exclusively to the current professional speaking developed technologies. He will maintain this level of technology with regard to the ongoing development of information technology on the one hand and the Internet, on the other. In addition, all services purchased from him by the said competent and able to be provided the appropriate technology subcontracts.
All the provider’s server located at a safe means of firewalls, secure hosting facility on the cutting edge of technology with a full-time management and redundancy, backup generators, etc. assurance personnel and surveillance cameras around the clock service to ensure the physical security of the server rooms. The room where the servers are located is locked and accessible only to authorized personnel. The provider can be observed due to the situation shown in a position to operate the system around the clock accurately and respond promptly to disruptions. The data stored on the provider’s servers are backed up every 24 hours.
For access to his data the user is communicated a username and a user password. The user acknowledges that the confidentiality of the provider of hosted data can only be guaranteed if the user has the access he has given treated appropriately confidential. If it should therefore come to a compromise of credentials, the user should notify the supplier without delay to have a lock / change the password, because otherwise no exclusive access to the user’s data can be guaranteed.
For the products resulting from the content and delivery of e-mailing only the user is liable, in no case the provider.
§ 6 end the right of use
The user can terminate his account at any time without notice for any reason. There is no minimum contract period.
§ 7 Cancellation clause
If any provision of this Agreement in whole or in part, be or become invalid, this shall not affect the validity of the remaining provisions. Rather, the parties undertake to replace the invalid provision a provision which comes closest to the intended purpose.
§ 8 General
As a jurisdiction, the parties agree, if legally permissible, the principal office of the provider. The user indemnifies the provider harmless from all claims made against the provider in connection with acts arising from the user. This particularly applies to all claims that may arise in connection with an e-mail infringing content, which were sent by the user or forwarded.
The user warrants that by him in connection with the registration for his or her account statements made applicable. Changes it will notify the supplier immediately.
Exclusively are eligible contractor within the meaning of § 14 BGB. All prices are net plus VAT.
These terms and conditions are subject to the laws of the Federal Republic of Germany.
