§11 Refusal of performance, Blocking
(1) The Operator is entitled to limit the customer’s use of Newsletter2Go, especially to block the function of sending, if there is any indication that the Client acts in violation of any legal provisions, rights of Third parties or contractual obligations. The Client can avert such measures or the blocking by providing relevant proof of that the existing indication is false or by providing an adequate security.
(2) The right to terminate the contract of both contracting parties shall remain unaffected by the refusal of performance or the blocking.
§ 12 Warranty and Liability of the Operator
(1) The provisions of this § 12 in regards to liability and warranty of the Operator shall apply for all claims of the Client because of fault, to damages or any substitute claims resulting from or standing in connection with the execution of this contract and cases of liability, irrespective of their legal ground (e.g. warranty, default, impossibility, any breach of duty, impediment to performance, tort, etc.), apart from claims of the Client .
– because of damages resulting from loss of life, bodily injury or damage to health;
– in case of fraudulent concealment of a fault by the Operator or because a characteristic is missing for which the Operator has assumed a guarantee for a specified quality
– which result from wilful or grossly negligent behaviour of the Operator, any of his bodies or any of his leading staff as well as
– resulting from the German Product Liability Act.
For these exemptions, only the statutory regulations shall apply
(2) The Operator warrants technical availability of the services only in accordance with the regulation of § 6. The Operator does not assume any responsibility for any errors within external networks that the Operator is not culpable for. Possible warranty claims of the Client expire within 1 year of delivery or acceptance if an acceptance if legally required. § 377 of the German Commercial Code (Handelsgesetzbuch, HGB) applies to all services that include warranty, especially in regard to approval according to § 377 (2) and (3) HGB.
(3) The Operator is liable for property damage and financial loss caused by negligence only in case of breach of an essential obligation, i.e. an obligation whose fulfilment is vital for the proper execution of the contract and on whose fulfilment the costumer can regularly rely on, but limited to compensation of the typical damage that was foreseeable at the time of conclusion of the contract.
(4) In all remaining cases, the Operator accepts no liability for slight or normal negligence.
(5) Liability of the Operator regardless of fault for defects already existent at the time of conclusion of the contract, as provided for by statutory laws such as in respect to tenancy law and other usage situations (cp. § 536a Abs. 1 Alt. 1 BGB [German Civil Code]), are explicitly excluded.
(6) Subsections (1) to (5) shall also apply in case of liability of a legal representatives and / or vicarious agents of the Operator.
(7) Statutory regulations regarding the limitation of liability of the Operator (e.g. § 8 – 10 TMG) shall remain unaffected by this §12.
§ 13 Duration of contract, Termination
(1) The user contract shall be concluded for an unlimited amount of time as a framework agreement. Both parties can terminate the contract with a notice of one day to the end of the following day. The right to extraordinary termination for good cause shall remain unaffected. Termination of the user contract shall cause termination of additional agreements (e.g. subscriptions). The termination shall be declared in text form.
(2) Subscriptions of the Client and ongoing additional services (e.g. Client testing, recommendation engine) are agreed on for the respective billing period (contract month) bindingly. These can be cancelled or changed with notice of one day to the end of the billing period on Newsletter2Go or otherwise (e.g. via email); the user contract as framework agreement shall remain unaffected by such changes of subscription. If a subscription or an ongoing additional service is not cancelled in due time and manner, the subscription to this service shall be renewed for the same price for one more billing period (contract month).
§ 14 Process after termination
(1) The data provided by the Client and the Client profile or account will be deleted by the Operator upon termination of the user contract; in case of termination by the Operator, the Client will be given two weeks time to view and back up his Client data saved on Newsletter2Go (depending on his data as Excel, CSV or PDF files). In case the Operator is authorized to not delete data for legal or other reasons, he may alternatively block them; they will be deleted once this authorization ceases.
§ 15 Final provisions
(1) The Operator may use the name and / or the logo of the Client as a reference on Newsletter2Go and on other advertising material for the duration of the user contract. The Client can revoke this permission at any time with an appropriate notice period to allow for the adjustment.
(2) The Operator may change these GTC at any time with a notice period of two months by notification to the Client in text form. The Client can object to such change within one month of receipt of the notification according to sentence 1 by a notification in text form to the Operator. If no objection is made, the change will be taken as accepted by the Client. The Operator will inform the Client of the effect of approval according to sentence 2 with each notification according to sentence 1.
(3) In case the Client is a merchant, a legal person under public law, or a special asset (Sondervermögen) under public law, exclusive legal venue shall be Berlin (Charlottenburg).
(4) Berlin (Charlottenburg), Germany, shall further be exclusive legal venue wherever the Client has no general venue in Germany.
(5) The laws of the Federal Republic of Germany shall apply exclusively with exception of UN CISG (UN Convention on Contracts for the International Sale of Goods) of 11th April 1980.