AGBs

Zuletzt aktualisiert am {date}

1. General and Scope

1.1

SuperX GmbH, Schönhauser Allee 180, 10119 Berlin (hereinafter referred to as "SuperX") is the provider of the Superchat platform, which allows businesses (hereinafter "Users") to communicate with their customers and other contacts (hereinafter "Customers") through a web interface using various communication channels (such as WhatsApp, Facebook Messenger, Google, email, SMS, Telegram) and to centrally manage customer communication ("hereinafter Platform").

1.2

These General Terms and Conditions (AGB) apply to the use of the "Superchat" platform.

1.3

The offer from SuperX is exclusively aimed at commercially active users and not at consumers. Consumers within the meaning of these GTC are any natural person who enters into a legal transaction for a purpose that can predominantly not be attributed to their commercial or self-employed professional activity. By using the services, the user declares that they are an entrepreneur and not a consumer. The use of the platform by consumers is not permitted.

1.4

Agreements on specific services or service areas become part of the contract with the users and take precedence over these GTC in the event of a conflict.

1.5

The application of the user's general terms and conditions is excluded. Deviating, conflicting, or supplementary general terms and conditions of the user only become part of the contract to the extent that SuperX has expressly agreed to their validity in writing. This requirement for consent applies in any case, for example, even if SuperX accepts the user's payments without reservation or provides the service without reservation.

2. Subject of the Contract and Basic Functionalities of the Platform

2.1

Via the platform, the customer has the option to centrally control and manage communication with end customers through various communication channels (email, SMS, various messenger platforms such as WhatsApp). The user can send content to their customers in digital form as individual messages or bundled within a campaign through various communication channels via the platform.

2.2

The scope of use of the platform agreed with the user, if applicable, additional services agreed upon, the start of the term of ongoing services, the remuneration, and, if applicable, further scope of services are determined either by booking an offer on the website ("self-service offers") or in a separate order form to be concluded between SuperX and the customer.

2.3

SuperX provides the user with the platform as a technical infrastructure.

2.4

SuperX makes the platform available on servers for use at the access point of SuperX's data center ("point of transfer of service"). To use the platform, the user must have their own access to the internet and access the platform at the point of transfer of service via this access.

2.5

SuperX uses the user's connection to messenger platforms and other communication services ("third-party systems") to provide its services. Contracts for the use of third-party systems are concluded by the user and the provider of the respective third-party system at their own responsibility. SuperX has no influence on the technical and contractual design as well as the scope of the services provided by third parties. The contracting parties of the connected third-party systems can change or discontinue their scope of services at any time, thereby preventing SuperX's services. SuperX is not liable to the user for service limitations caused by changes in third-party systems.

2.6

Communication via WhatsApp is carried out using the WhatsApp Business API. The user is provided access to the WhatsApp Business API to the agreed extent by SuperX. SuperX may use a service partner to provide access.

2.7

The additional functionalities and system requirements of the platform are determined by the description valid at the time of placing the order or the current state of the self-service offers.

3. Registration and Creation of a User Account

3.1

In order to access the services of the platform, the user must first register and create a user account.

3.2

The user assures that all data provided by them during registration is correct and complete. In the event of subsequent changes, the data stored in the user account, in particular address, payment, and contact details, must always be kept up to date.

4. Free Trial Period

4.1

The user can use the platform with limited functionality for a period of 14 days free of charge ("trial period"). During the trial period, the user can only access the campaign features. After the trial period expires, the use automatically ends without the need for termination if the user does not enter into a contract for the paid use of the platform.

5. Conclusion of the Contract

5.1

The user can submit their offer via the online order form available on the platform. After placing the selected service package in the virtual shopping cart and completing the electronic ordering process, the user submits a legally binding offer by clicking the button that concludes the order.

5.2

SuperX can accept the user's offer within five days by sending an order confirmation or by providing the ordered services. The contract is concluded with the receipt of the order confirmation or provision of the services.

5.3

SuperX can accept the user's offer within five days by sending a confirmation of the order in text form by email. The user's receipt of the order confirmation is decisive in this regard, or by requesting payment from the user after the order has been placed.

5.4

If several of the above alternatives are available, the contract is concluded at the time when one of the above alternatives occurs first. The period for accepting the offer begins on the day after the offer is sent by the user and ends with the expiry of the fifth day following the sending of the offer. If SuperX does not accept the user's offer within the aforementioned period, this is considered a rejection of the offer, with the result that the user is no longer bound by it.

5.5

When submitting an offer via the online order form, the text of the contract is stored, and the user receives it by email in text form after submitting the order, along with these GTC. Additionally, the text of the contract is archived on the website and can be accessed free of charge by the customer via their password-protected user account using the corresponding login information.

5.6

Before bindingly submitting the order via the online order form, the user can recognize possible input errors by carefully reading the information displayed on the screen. The user can correct their entries within the scope of the electronic ordering process using the usual keyboard and mouse functions until they click the button to complete the ordering process.

5.7

All legally binding statements must be made in text form by email or by using the input masks and setting options available on the platform, unless these GTC or the law expressly require written form.

5.8

The contract is concluded in the German language. Even if the contract text is translated into another language, the German contract text remains binding.

6. Platform Availability, Error Correction

6.1

The platform is available on average 99% of the time in a calendar month.

6.2

Unavailability exists if the platform is not available at all due to circumstances that are the responsibility of SuperX. Unavailability does not exist if the platform is not accessible due to circumstances that SuperX is not responsible for, especially due to force majeure (including war and war-like conditions, natural disasters, epidemics and pandemics, including the COVID-19 pandemic), incorrect operation by the user, or the user's contractual use, or due to planned maintenance times according to Clause 6.3.

6.3

SuperX may temporarily restrict access to the platform to carry out maintenance work. SuperX will announce planned maintenance times to the customer at least 7 days in advance. Planned maintenance times that are not taken into account in terms of availability may be scheduled from Saturday and Sunday from 0:00 to 7:00. The total duration of planned maintenance times may not exceed 24 hours per month.

6.4

If the platform has an error or malfunction, the user must notify SuperX immediately in writing, providing a detailed description of the situation and attaching all information useful for error correction ("Error and Malfunction Reports"). SuperX will respond to proper error and malfunction reports from the user within one working day (the "Response Time") with a qualified feedback on the causes of the errors and malfunctions and the measures taken and to be taken to rectify the errors. The response time does not apply to insignificant errors and malfunctions.

6.5

An error or malfunction exists if the platform does not have the contractually agreed functionalities and this is within the responsibility of SuperX.

7. Usage Rights for the Platform

7.1

SuperX grants the user a limited, revocable, non-exclusive, and non-transferable right to use the platform to the extent contractually agreed. The right of use expires at the latest upon termination of the contract.

7.2

The user may only use the platform for their own business activities. Usage may only occur by the number of persons described in the scope of performance.

7.3

The customer is not entitled to rent, lease, lend, reproduce, resell, distribute, or otherwise distribute or pass on the platform or access to the platform; use the platform for the development of their own services that have the same or substantially the same functionalities; activate and/or use functionalities of the platform for which no usage rights have been granted to them; transfer usage rights to the platform to third parties or grant third parties access to the platform without SuperX's consent; modify, translate, reproduce, decompile, examine its functions, algorithms, or other program components of the platform, except to the extent permissible by law under § 69d or § 69e of the German Copyright Act (UrhG); remove, circumvent, decrypt, or otherwise modify legal notices, especially on industrial property rights, associated with the platform's functions for managing digital rights or copy protection or other technologies that control access to the platform.

8. Support

8.1

SuperX provides the user with support services, the scope of which is determined by the order.

8.2

Additional support services, particularly consulting services or technical support services (except for legally or contractually owed defect rectification), are subject to separate remuneration and will be invoiced to the user based on expenses. The user will be informed about the amount of the remuneration before commissioning these services.

9. Duties and Responsibilities of the User

9.1

The user grants SuperX the non-exclusive right to use the content provided by the user, in particular communication content (including photographs, graphics, videos, files, documents, logos and characters, texts, collectively "User Content"), during the term of the contract to the extent required for the fulfillment of the contract, in particular to reproduce, edit, and transmit it. The user assures that they have these rights in favor of SuperX.

9.2

The user may only store or have stored or transmit via the platform user content to which they are entitled to use to the extent necessary for fulfilling the contract, that do not violate the rights of third parties (in particular trademark rights, copyrights, and other industrial property rights, as well as personality rights), and that do not have illegal, glorifying violence, racist, discriminatory, or pornographic content.

9.3

The user is responsible for ensuring that the legal requirements for communication with customers are met, in particular that the respective customer has given any necessary consent and that all legal information obligations (e.g. imprint information) are fulfilled. SuperX does not check the user content and customer communication for their legality.

9.4

For sending advertising messages, in particular newsletters, via the WhatsApp Business API, only WhatsApp-approved templates may be used. The use of non-approved templates can lead to the WhatsApp number used for sending being permanently blocked. The user is responsible for compliance with these provisions and compliance with data protection regulations when sending advertising messages.

9.5

The user will provide all necessary cooperation in good time to enable the services owed by SuperX, in particular, the setup of the platform in the scope of the services ordered.

9.6

If a third party claims rights to user content stored on the SuperX platform, the user is obliged to immediately provide SuperX with truthful and complete information about the origin, content, and scope of the rights asserted, and to grant SuperX all necessary rights of use or to obtain the necessary rights.

9.7

The user indemnifies SuperX from all claims of third parties that assert rights due to the violation of their rights by the user or due to content placed by the user on the SuperX platform, in particular, claims due to violation of copyright, trademark rights, competition law, and data protection law. This also applies to the costs of legal defense.

9.8

If the user violates their duties under this Clause 9, SuperX is entitled to block access to the user content concerned until the violation has been remedied. If the violation is not remedied, SuperX is entitled to delete the user content.

10. Usage Restrictions

10.1

The user is prohibited from engaging in any activity that violates applicable law, infringes the rights of third parties or violates ethical principles. In particular, the user is prohibited from the following actions:

  1. Dissemination, offering and advertising of pornographic content, services, and/or products that violate youth protection laws, data protection laws and/or other laws and regulations; offer and dissemination of offensive, harassing or defamatory content and/or services;
  2. Use of content that is protected by law (e.g. by copyright, trademark, patent, design, utility model or other industrial property rights) without being expressly authorized to do so;
  3. Dissemination of unsolicited advertising or other unauthorized promotional materials (spam), sending of viruses, Trojans, and other harmful files;;
  4. Dissemination of offensive, sexually oriented, obscene or defamatory content or communication, as well as content that promotes racism, violence or hatred;
  5. Harassment of other users, e.g. by contacting them for commercial purposes without their consent, and/or use of contact data of other users for advertising purposes or passing it on to third parties;
  6. Request other users to disclose passwords or personal data for commercial or illegal purposes;
  7. Offer, sell, or rent out login data to third parties;
  8. Use, provide, or disseminate content, services, and/or products that are protected by law (e.g. by copyright, trademark, patent, design, utility model, or other industrial property rights) without being expressly authorized to do so, or to advertise, offer, or distribute such content, services, and/or products;
  9. Use or run "auto" software programs, "macro" software programs or other "cheat utility" software program, exploit any errors in the software used by SuperX in connection with the services and/or communicate them to third parties;
  10. Modify or hack the platform or modify another website in such a way that it falsely claims to be associated with the SuperX platform;
  11. Intentionally interfere with the platform or the services, or disobey any requirements, procedures, policies or regulations of networks connected to the platform;
  12. Violate any applicable laws or regulations in connection with the user's access or use of the platform;
  13. Offer, sell, or rent out the services of SuperX to third parties;
  14. Use the platform in such a way that the technical infrastructure used by SuperX, especially the servers of SuperX, is damaged or significantly impaired or the intended use of the platform is negatively affected.

10.2

The user must ensure that the data provided to SuperX are free of viruses, worms, Trojan horses, or other harmful components.

11. Changes to the Platform and Services

11.1

SuperX reserves the right to modify the platform and the services if the modification is reasonable for the user, taking into account the interests of SuperX.

11.2

SuperX may make changes to the platform at any time, which can lead to a change in the appearance and functionality of the platform. In this case, the user's interest in a uniform appearance of the platform adapted to their specific circumstances will be taken into account.

11.3

SuperX will consider the user's legitimate interests in avoiding changes to the platform and the services.

12. Fees, Invoicing, and Payment Terms

12.1

For the use of the platform, the user will pay the agreed fees, which are determined by the order.

12.2

All prices are exclusive of the respectively applicable statutory value-added tax.

12.3

SuperX will send the user invoices in electronic form to the email address specified by the user.

12.4

The user will pay the invoices from SuperX within 14 days of receipt of the invoice. The payment period begins on the date of receipt of the invoice. The payment is considered made on time if SuperX can dispose of the amount on the due date.

12.5

In case of default in payment, SuperX is entitled to claim default interest at a rate of 9 percentage points above the respective base interest rate p.a. as fixed by the European Central Bank. The assertion of further damages caused by default remains unaffected.

12.6

If the user is in default with a not inconsiderable part of the payment for two consecutive dates or with a total amount that corresponds to the payment for two months, SuperX is entitled to block the access of the user to the platform until payment has been made or to terminate the contract extraordinarily and without notice for good cause.

12.7

The user can only set off against claims of SuperX if the counterclaim of the user is undisputed or has been legally established.

12.8

If the user wishes to dispute an invoice, they will inform SuperX of the reasons for the dispute in text form (email is sufficient) within two weeks of receiving the invoice.

13. Blocking Access to the Platform, Deletion of Content

13.1

SuperX can temporarily or permanently block the user's access to the platform as a whole or to individual sections at its own discretion if there are specific indications that the user is violating these GTC and/or applicable law, or if SuperX has another legitimate interest in blocking. The legitimate interests of the user will be duly taken into account in the decision on blocking. If the user violates these GTC again despite a warning, SuperX reserves the right to permanently block access.

13.2

In the event of temporary or permanent blocking, the access authorization will be blocked, and the user will be notified of this by email.

13.3

In the event of temporary blocking, after the blocking period has expired or the blocking reason has been definitively eliminated, the access authorization will be reactivated, and the user will be notified of this by email. Access authorization that has been permanently blocked cannot be restored. Permanently blocked individuals are permanently excluded from using the platform and are not allowed to register again. With the permanent blocking of the user, SuperX is entitled to terminate the usage relationship extraordinarily.

13.4

SuperX is entitled to delete user content that violates applicable law or these GTC and/or is otherwise objectionable. The user's interest in the deletion of content that is objectionable due to a violation of these GTC or applicable law is taken into account.

13.5

The user can avert the blocking or deletion by eliminating the reasons for the blocking or deletion. In this case, the user will be informed of the objectionable content and/or the violation of the GTC and asked to eliminate the violation. The user's legitimate interests will be duly taken into account.

14. Data Protection

14.1

The collection, processing, and use of personal data by SuperX is carried out in compliance with the applicable data protection regulations and the data protection declaration provided on the platform.

14.2

The user will be informed about the nature, scope, location, and purpose of the collection, processing, and use of personal data required for the execution of orders via the platform.

15. Liability

15.1

SuperX shall be liable without limitation for damages caused intentionally or through gross negligence by SuperX, its legal representatives, or vicarious agents.

15.2

In the case of a slightly negligent breach of material contractual obligations, SuperX shall be liable limited to the foreseeable damage typical for the contract. Material contractual obligations are obligations that must be fulfilled to enable the proper execution of the contract and on the fulfillment of which the contractual partner regularly relies and may rely.

15.3

Liability for slightly negligent breaches of duties other than those mentioned in Clauses 15.1 and 15.2 is excluded.

15.4

The limitations of liability resulting from Clauses 15.2 and 15.3 do not apply in case of injury to life, body and health, for a defect after assumption of a guarantee for the quality of the product and for fraudulent concealment of defects. Liability under the Product Liability Act remains unaffected.

15.5

Insofar as liability for damages that are not based on injury to life, body, or health is excluded or limited, this also applies to the personal liability for damages of employees, representatives, and vicarious agents.

16. Term and Termination of the Contract

16.1

The contract term depends on the term specified in the order.

16.2

The right to terminate the contract for good cause remains unaffected.

16.3

The right to terminate the contract for good cause remains unaffected for both parties. A good cause for SuperX exists in particular if the user violates their obligations under Clause 9, in particular the prohibition of misuse according to Clause 10, in such a way that a continuation of the contract until the expiry of the notice period cannot be reasonably expected.

16.4

Termination must be in writing (text form, email is sufficient).

17. Final Provisions

17.1

The laws of the Federal Republic of Germany shall apply to the contractual relationship between SuperX and the user, excluding the UN Convention on Contracts for the International Sale of Goods and conflict of laws principles.

17.2

If the user is a merchant, a legal entity under public law, or a special fund under public law, the exclusive place of jurisdiction for all disputes arising from this contract is the registered office of SuperX.

17.3

SuperX reserves the right to amend these GTC at any time, provided this is necessary for good cause and does not disadvantage the user in bad faith. SuperX will inform the user in text form (email is sufficient) about the changes made. The changes will become effective if the user does not object to them in writing within 4 weeks of receipt of the notification of change. SuperX will separately inform the user of their right of objection and the significance of the objection period.

17.4

Should individual provisions of these GTC be or become invalid or unenforceable, the validity of the remaining provisions shall remain unaffected. In this case, the parties shall replace the invalid provision with a valid provision that comes as close as possible to the economic purpose of the invalid provision. The same applies in the event of a loophole in the provisions.