Terms & Conditions
1.1 These Conditions shall apply to all Braindriven Marketing Optimizer services and licenses of any kind (henceforth Braindriven Marketing Services) by Clever Communications GmbH (henceforth Clever Communications).
1.2 Clever Communications does not accept any terms and conditions which deviate from these Conditions, except if such terms and conditions have been expressly accepted by Clever Communications.
1.3 Clever Communications services are available exclusively to businesses in the sense of the regulations of §14 (1) of the German Civil Code (BGB).
2. Subject of Contract
The subject matter of the contract is determined by these general terms and conditions, the service descriptions, and respective price lists.
3.1 Clever Communications grants the client, for use solely by the client and the client’s users, a limited, non-exclusive and non-transferable right and license, limited to the duration of this contract, to access Braindriven Marketing Services via Internet and use the associated services as described in this contract. The client does not acquire any further rights, titles or interests, especially in or to Braindriven Marketing, Braindriven Marketing Technology, the software application or operating software.
3.2 The client is not allowed to a) use Braindriven Marketing Services beyond the specifications of this contract, b) allow such use by a third party, c) grant access to Braindriven Marketing Services to a third party. Specifically, the client is not allowed to copy, sell, rent, or lease Braindriven Marketing Services in total or in part.
3.3 If the contractual usage of Braindriven Marketing is compromised by a third party’s copyright and related rights without Clever Communications’s fault, Clever Communications is entitled to deny access to all affected services. Clever Communications shall inform the client thereof immediately. The client is not commited to payment in this case. Other rights of the client remain unaffected.
4. Data Protection and Data Security
4.1 Both parties shall comply with all applicable legal provisions regarding data protection (German Data Protection Law BDSG). Employees involved in the processing of personal data will be obligated to observe data secrecy, as provided in §5 BDSG.
4.2 If the client collects, processes or uses personal data either directly or through Clever Communications, compliance with all applicable regulations, particularly data protection related regulations, is the client’s sole responsibility. The client exempts Clever Communications from any third party claims resulting from violation of regulations.
4.3 It is clarified, that the client remains “sole proprietor of the data” in the contractual relationship as well as in the data protection sense (§11 BDSG). The client is granted sole disposition and ownership of all client-specific data (data entered, processed, stored, output). Clever Communications does not verify in any way the data and content stored by the client with respect to legal admissibility of collecting, processing and using said data; this is the responsibility of the client. Clever Communications is only authorized to use the client-specific data exclusively per instruction by the client (e.g. to comply with obligations to delete or lock data) and to process/use it according to this contract; in particular, Clever Communications is prohibited to grant any third party access of any kind to the client’s data without the client’s prior written consent. However, Clever Communications is allowed to process and use client-specific data (e.g. billing data for billing the client for services) to the extent permissable by data protection regulations during the duration of the contract.
4.4 The software application, server and operating software as well as other system components of Braindriven Marketing are operated in a computing center by third parties. Clever Communications can employ sub-contractors, but must impose any obligation defined in the preceding paragraph upon the sub-contractors.
4.5 Clever Communications employs technical and organizational security provisions and measures according to the Appendix of §9 BDSG. The client is generally not authorized to access the premises containing the software application, server and operating software as well as other system components of Braindriven Marketing Services. The rights of the client’s data protection officer to access the premises, per request in writing, to audit compliance with requirements per the Appendix of §9 BDSG, as well as law and contract compliant handling of personal data by Clever Communications in the course of Braindriven Marketing operation, remain unaffected.
5. Obligations of the Client
The client will comply with all contractual duties. In particular, the client will
5.1 pay invoices in due time; for any failed direct debit collection, the client will reimburse Clever Communications the cost incurred;
5.2 protect the usage and access authorization as well as identification and authentication safety measures from access by third parties and will not provide those to third parties;
5.3 insure that (e.g. when transferring third party text and data to Clever Communications servers) any commercial rights are respected;
5.4 obtain consent from all affected individuals, insofar as the client is collecting, processing or using the individuals’ personal data;
5.5 not mis-use Braindriven Marketing Services or permit others to mis-use Braindriven Marketing Services, in particular the client shall not transmit or refer to any unlawful or immoral material that contains race baiting, violence-gloryfying or pornographic information, or any other information that could negatively affect the reputation of Clever Communications;
5.6 not access information or data, or interfere with programs run by Clever Communications, or intrude in data networks of Clever Communications, or allow any unauthorized third party perform any of the aforementioned;
5.7 idemnify and keep idemnified Clever Communications from all liabilities that arise from a client’s illegal usage or approval of such illegal usage of Braindriven Marketing, with particular respect to the infringement of data protection, copyright and related rights. If the client recognizes such infringement the client is obliged to inform Clever Communications immediately;
6.1 Clever Communications is entitled to restrict the client’s access to Braindriven Marketing Services and to the client’s data if the client infringes on one of the essential obligations of this contract. Access to Braindriven Marketing will be restored only once the infringement is entirely resolved and the client has entered into a written commitment subject to criminal sanction to forbear further infringement. The client remains obliged to pay monthly or yearly fees.
6.2 In case of violation of 5.3 – 5.5 Clever Communications is entitled to delete the affected data.
6.3 In case of non-accidental violation of 6.1 and 6.2 Clever Communications is entitled to claim damages. Compensations shall be set, depending if Clever Communications can substantiate a damage or if the client can substantiate a lower damage, respectively. The client might also substantiate that no damage was caused. Clever Communications reserves the right to claim further damages.
7. Terms of Payment
7.1 Usage-independent fees are payable in advance, beginning with the day of the provision of the service. Prices that are payable for parts of a month are calculated per day, with each day amounting to 1/30 of the monthly price. Usage-dependent fees are payable upon invoice.
7.2 All other fees shall be paid after provision of services.
7.3 All invoiced amounts are due no later than 14 days after reciept of the invoice.
8. Service Interruptions
Service disruptions and outages shall be cleared by Clever Communications promptly within its technical and operational means. If the fault is not cleared within a reasonable timeframe, the client shall grant Clever Communications an appropriate grace period. The grace period shall amount to at least two weeks.
9. Default of Payment
9.1 If the client defaults significantly, Clever Communications is allowed to block the client’s access to Braindriven Marketing Services. The client is still obliged to pay fees.
9.2 If the client defaults for two consecutive months on the monthly fees or a significant amount of the monthly fees, or for a timespan longer than two months on an amount that equals the fees for two months, Clever Communications can terminate the contract without notice and claim a lump sum damage payment, due immediately, at one third of the sum of all monthly prices due until the regular termination of the contract.
9.3 Compensations shall be set higher or lower, if Clever Communications can substantiate a higher damage or if the client can substantiate a lower damage, respectively.
9.4 In case of delayed payment Clever Communications reserves the right to enforce further claims.
9.5 If Clever Communications defaults on the operational deployment of its services liability shall be limited as defined in 11.. The client’s right to terminate the contract shall only be granted if Clever Communications fails to comply with a grace period set by the client. The grace period shall amount to at least two weeks.
Clever Communications is allowed to identify the client in advertising, on the Clever Communications web site and other publications. Clever Communications is allowed to use the client’s logo for this purpose.
11.1 Clever Communications shall be liable for damages only to the extent that the damage was caused by gross negligence or willful misconduct imputable to Clever Communications.
11.2 In the event of death of a natural person or personal injury to the latter, Clever Communications shall be liable also for slight negligence. In addition, Clever Communications shall also be liable for a slightly negligent violation of a fundamental duty under the contract, but such liability shall be limited to such damage as Clever Communications could have reasonably foreseen. For a single incident, liability shall be limited to the total contract value, or, for contracts with recurring payment, to the amount of the monthly payment.
11.3 Strict liability in accordance with §536 (1) of the German Civil Code (BGB) shall be excluded. 11.1 and 11.2 shall remain unaffected. 11.4 Any mandatory liability under the Product Liability Act shall remain unaffected.
12. Force Majeure
12.1 Clever Communications shall not be liable for any and all losses (including loss of data), damages, costs, claims and other liabilities which arise as a result of an event of force majeure.
12.2 Events of force majeure for example include war, strike, disorder, expropriation, major change of law, storm, flood and other natural disasters, as well as all other circumstances beyond Clever Communications’s control, especially water ingress, power outage, and interruption or destruction of data cables.
13.1 Where Clever Communications provides documents in different language versions, only the English version is legally binding.
13.2 The client will not directly or indirectly transfer or assign any rights under this contract, in whole or part, without the prior written consent of Clever Communications. Clever Communications can transfer or assign any rights under this contract to a Clever Communications group company.
13.3 Place of performance shall be Hamburg, Germany.
13.4 The contract and these Conditions shall be subject to the laws of the Federal Republic of Germany. All disputes arising shall be submitted exclusively to the courts of Hamburg.
13.5 Any modifications of, amendments to, or abrogation of these Conditions must be in writing.
13.6 Should one or more of the provisions of these Conditions be or become invalid or unenforceable, the validity and enforceability of the other provisions hereof shall not be affected.