General Terms and Conditions of Business of Cleverbridge GmbH and Cleverbridge, Inc.
Please read these Terms and Conditions carefully as they constitute a binding agreement between you and Cleverbridge whenever you place an order on a Cleverbridge Online Store.
Subject Matter and Scope
These General Terms and Conditions ("Terms") apply to all activities on a Cleverbridge Online Store, including orders, offers, acceptances, and deliveries by Cleverbridge GmbH, Gereonstr. 43-65, 50670 Cologne (Germany) and Cleverbridge, Inc., 350 N Clark St Suite 700, Chicago, IL 60654, USA (both further referred to in brief as "Cleverbridge"). If You buy or receive a Supplier or other third party’s Product through a Cleverbridge Online Store, the third party's terms and conditions may also apply and you agree to abide by those terms and conditions accordingly.
Definitions
The following definitions apply in these Terms:
2.1 "Cleverbridge Online Store" ("Store") means any website that refers to these Terms and whose legal information identifies Cleverbridge as the operator of the website or the ordering process for the distribution of the Products. These Terms do not apply to websites of providers/third parties that are not controlled by Cleverbridge or that Cleverbridge does not support in the provision of the website or the Products. 2.2 "Customer" or "You" means any natural person or legal entity or partnership that places an order on a Cleverbridge Store. Customers include "Business" customers, who place orders in the Store in the course of its trade, business, or profession; and "Consumer" customers, who are natural persons who place an order in the Store for a purpose outside the course of its trade, business, or profession. 2.3 "Products" means any product or service sold in the Store, including (a) an authorization code or mechanism to access Software;
(b) the right to use Supplier's Software or services, including SaaS or XaaS services provided to Customers as a cloud based service;
(c) physical products, including backup media and electronic devices for the transmission of data;
(d) the digital goods or computer software programs of Supplier or other third parties marketed in the Store.
2.4 "Subscription" means Products with recurring payment obligations. The payments are due within the agreed Subscription Payment Interval(s). 2.5 "Subscription Payment Interval" means the agreed time frame after the expiry of which renewal payments of Subscriptions are due. 2.6 "Supplier" means any natural person or legal entity that provides, generates, manufactures, or delivers Products to Cleverbridge for the purpose of resale or distribution to You. Entry into a Contract (Offer, Confirmation and Acceptance)
3.1 Any order placed by You represents an offer to Cleverbridge for the purchase of Products under these Terms. Such orders are subject to subsequent acceptance by Cleverbridge. Your order is accepted either through express confirmation or the delivery or provision of the ordered Products. 3.2 Cleverbridge may, at its own discretion, use third parties to carry out its services. Customer Warranties
You warrant that all the information provided when placing the order (including, but not limited to, personal data and payment data) was up-to-date and accurate in all material respects. The costs arising in relation to any incorrect data submitted or amended by You after the order submission will be borne by You. To the extent that You have a customer account with Cleverbridge, You are responsible for maintaining and immediately updating the account details to ensure constant and continuous accuracy and completeness; and You shall not disclose the password used to access the account to third parties for any reason.
Permits, Export and Customs Duties
5.1 Permits and Licenses To the extent that a permit or license from the government or another authority is required for the acquisition, transportation, or use of Products, You must obtain such permit or license at Your own cost and provide Cleverbridge with evidence of the same upon request. The fact that You have yet to obtain a permit or license shall not entitle You to withhold or delay payment. All costs and expenses incurred to Cleverbridge on the basis of such a failure to obtain a permit or license or its being obtained erroneously will be charged to Your account. For Consumers, this shall not apply in relation to an approval or other permit for transportation.
5.2 Export Control The Products sold by Cleverbridge and made available to the Customer electronically or physically may give You access to technologies or Software which are subject to the export controls of the Federal Republic of Germany, the European Union Member States, the United States of America, the United Nations or the countries in which the Products are being marketed or used.
You agree to observe these export controls. Cleverbridge is entitled to withdraw from the Contract if You breach any export controls.
5.3 Customs Duties Importing goods into the European Economic Area may, where specific goods values are exceeded, lead to customs duties (e.g. where the value of the goods exceeds Your personal allowance). Upon the arrival of the goods at the place designated by You, You may incur customs duties, import duties, or taxes imposed by the relevant authorities. All such additional costs will be borne by You as those costs are beyond Cleverbridge's control and knowledge. More detailed information on customs regulations or duties can be obtained from the customs office responsible for Your jurisdiction.
Billing, Payment Conditions, and Default
6.1 Electronic Invoices You agree to the electronic transmission of invoices.
6.2 Method of Payment, Subscriptions, and Payment Date The payment of the purchase price is due immediately upon entry into the contract and shall take place in the manner specified in the Store. Cleverbridge reserves the right to change the method of payment to a purchase order.
With the exception of purchases orders and pay-per-use products, payments shall take place prior to delivery.
For pay-per-use products, Customer shall be billed automatically at the intervals indicated on the Cleverbridge Website.
For Subscriptions, the purchase price is due and may be charged up to 14 days before the expiration of the current Subscription payment interval.
6.3 Payments by Businesses In the event that the Customer is a Business, it shall identify itself as such when the order is placed. Cleverbridge may consider the address provided as place of business, unless indicated otherwise. If Business’s VAT ID is registered to another country, Cleverbridge may also employ that information for tax purposes. Cleverbridge will apply taxes to the extent required by law. Cleverbridge may apply and charge taxes after the Business has made the payment for the Products according to Clause 6.2. The Business is then obliged to subsequently pay the remaining amount of taxes to Cleverbridge. Additionally, as a recipient of the Products, the Business may have the obligation to remit VAT, sales taxes, or similar consumption taxes ("Reverse Charge Mechanism"). If the Business is required to pay or withhold any tax for payments made to Cleverbridge, Cleverbridge remains entitled to the amount due under Clause 6.2 in full and free of any deductions. The purchase price shall be increased by the amount of taxes paid or withheld by the Business (gross-up). The Business will provide documentation to Cleverbridge, which certifies that all applicable taxes have been paid to the relevant tax authority within 30 days after the date of payment of the purchase price. For purposes of this Clause, taxes mean any sales, use, gross receipts, business, occupation, and other taxes (other than taxes on the income of Cleverbridge) and similar charges imposed by any government or other authority, with the exception of VAT levied by a member of the European Union.
6.4 Foreign Transaction Fees charges/ International Credit Card Payments Your bank or credit card issuer may charge additional fees for international credit card payments for transactions in the Store. Such fees may be incurred, for example, if You make a payment in a currency other than the currency of Your account or to a merchant established in a different country from You. Cleverbridge has no insight into such agreements and cannot provide information on these foreign transaction fees or similar charges. YOU THEREFORE AGREE TO WAIVE ANY CLAIMS THAT AGAINST CLEVERBRIDGE FOR ANY FOREIGN TRANSACTION FEES CHARGED. YOU AGREE THAT YOU ARE SOLELY RESPONSIBLE FOR THE PAYMENT OF SUCH FOREIGN TRANSACTION FEES.
6.5 SEPA-Direct Debit Scheme If You chose SEPA direct debit as applicable payment method, You will be notified by means of a pre-notification directly after submitting the order. Your account will be charged the day after Pre- Notification.
Should the payment be declined or reversed and You are responsible, for example, due to incorrect account data or insufficient funds in Your account, then Cleverbridge is entitled to any resulting or related damages, including any amount invoiced to Cleverbridge by the bank(s) for the return debit.
6.6 Advance Deliveries In case of any advance deliveries (purchase order or purchase with grant of a direct debit authorization) payments shall be made in full irrespective of any claims for short deliveries or Product defects.
Cleverbridge reserves the right to cancel any order if payment has not been received within 14 days.
6.7 Bills of Exchange/Checks If Cleverbridge and You agree on using bills of exchange or checks as payment method, payment shall only be considered made once the bill or check has been redeemed or cashed. If any discount or collection charges apply, You shall be solely responsible for those charges and Cleverbridge shall have no obligation to collect them at the time of payment.
6.8 Card Refresher Services for American Express® and Other Credit Card Customers American Express and other credit card customers agree that Cleverbridge may receive information from the credit card issuer regarding the customer’s updated card account status, including cancellation of the credit card account, and changes to the credit card number or expiration date. It is the obligation of the customer to determine whether the customer's credit card issuer provides the Card Refresher Service.
6.9 Other Payment Methods If payment is made using any of the following payment methods, You have 14 days to complete his order by providing the corresponding amount: Boleto Bancário, Konbini, PayNearMe or wire transfer. Cleverbridge reserves the right to cancel any order if payment has not been received within 14 days.
6.10 Default of Payment If payment is insufficient to cover the full amount of a transaction, You will be in default. For direct debit payments, this shall only apply if Cleverbridge has sufficiently attempted to debit the amount from the bank account. If the invoice for a purchase order contains a payment deadline, You will be in default if the full purchase price payment has not been credited to an account of Cleverbridge or received by Cleverbridge by this deadline. In the event of default, Cleverbridge reserves the right to cancel the order and/or claim damages.
6.11 Default interest for Customers placing their order from the EU or EFTA Where a Consumer defaults, the Consumer shall pay Cleverbridge late payment interest of five percentage points (5%) over the Base Rate applicable at the time of the default. Where a Business defaults, the interest rate shall be nine percentage points (9%) over the Base Rate. The "Base Rate" means a variable interest rate set at half-yearly intervals by the German Central Bank ("Bundesbank") which, increased by a fixed margin, gives the late-payment interest rate (https://www.bundesbank.de/en/bundesbank/organisation/gtc-and-legal-basis/basic-rate-of-interest-616708).
6.12 Default interest for Customers placing their order from outside the EU and EFTA Without limiting any other remedies, Cleverbridge reserves the right to charge a late fee on all past due payments equivalent to the lesser of one and a half percent (1.5%) per month on the unpaid balance or the highest rate allowed by applicable law.
Prices and Price Adjustments
7.1 Prices The price for the Products consists of the margin of Cleverbridge, the procurement costs of Cleverbridge for the Products, and certain applicable taxes. The margin includes Cleverbridge’s costs for infrastructure, personnel, and transaction processing.
7.2 Price Adjustment for Subscription Products During the lifetime of a Subscription, the framework for the price calculation may change from one Subscription Payment Interval to the next.
Changes in the price due to usage-related adjustments are not price adjustments within the meaning of the Terms or this Clause 7.2.
Cleverbridge will adapt the prices for the Products to account for any changes in costs Cleverbridge incurs or prices Cleverbridge has to pay for Products at its reasonable discretion. The price may be increased or decreased if the procurement costs for Products rise or fall, or other changes in the economic and legal framework result in changed costs (e.g. through increased costs for the infrastructure or transaction processing). If costs of one type rise, e.g. procurement costs, Cleverbridge may increase the price only to the extent there are no falling costs of another type. If costs of one type fall, e.g. procurement costs, Cleverbridge will reduce the price to the extent this is not balanced out by rising prices of another type. Exercising reasonable discretion, Cleverbridge will define the time of price change in a way that cost reductions have at least the same effect on the price change as cost increases.
7.3 Taxes and Duties Any additional taxes and duties imposed on the sales of Product shall be borne You. This applies correspondingly to changes of the taxes and duties already billed to You Cleverbridge is also obliged to pass on abolitions and reductions of taxes and duties.
7.4 Information regarding Price Adjustments and Cancellation Cleverbridge will inform You in a timely manner about any price changes so that You are able to cancel the Subscription before the first billing of the changed price.
Delivery of Products and Transfer of Risk
8.1 Activation Mechanisms, Licenses, and Usage Rights Cleverbridge will deliver these Products without undue delay after successfully processing an order and payment, unless provided otherwise in the Store.
8.2 Physical Products 8.2.1 Delivery Information The delivery of the ordered Products will occur according to the delivery information in the Store and may be amended from time to time.
For Customers placing their order outside the EU and EFTA, the delivery dates are estimates only.
8.2.2 Delivery Delays Delivery delays caused by statutory or official arrangements (e.g. import and export restrictions) and that are not the fault of Cleverbridge shall extend the delivery period accordingly. If Cleverbridge reasonably expects the delay to be significant, Cleverbridge shall promptly notify You of their commencement and termination, to the extent Cleverbridge is aware.
8.2.3 Transfer of Risk and Partial Deliveries of Physical Products Transfer of Risk
To the extent You fail to accept the delivered physical Products, or to the extent the You reject the physical Products, then any risk of damage or loss of the Product shall pass to You without prejudice to all other rights to which Cleverbridge is entitled.
Cleverbridge shall be entitled, at Your risk and cost, to endeavor to have the physical Product delivered by such means it deems suitable and reasonable and/or to put the Product into storage at Your risk and cost.
Deviating provisions for Businesses: The risk of accidental destruction and accidental deterioration is assumed by Businesses as soon as the Product is received by the person carrying out transportation but no later than upon entering Your possession.
8.2.4 Partial Deliveries Cleverbridge shall be entitled to make partial deliveries of physical Products to the extent reasonable.
If Cleverbridge makes partial deliveries to Businesses, then each partial delivery shall represent a separate contract and Businesses shall, in case of defects in one or more partial deliveries, not be entitled to cancel or reject subsequent partial deliveries.
8.3 Retention of Title Title to the Product is retained until payment in full of all claims under the contract including secondary claims (e.g. costs of exchange, financing costs, interest etc.) is received. When You have paid in full, title shall be transferred to You by Cleverbridge or Supplier. You accept title from either party.
Usage Rights, License
9.1 If Your order results in access to a Product or Software, then You accept that Your use of the Product or Software is subject to acceptance of any relevant license conditions and terms of use ("EULA"). The EULA may be enclosed with the Product or Software or communicated to You before or during Your use. You agree that any Software, Saas, or XaaS may only be reproduced, adapted, transmitted, made available, marketed, altered, disassembled, decompiled, re-transmitted or combined with other Software or another service to the extent expressly permitted by the EULA or the applicable laws like Section 69e German Copyright Act that allows decompilation to create interoperability with other software. 9.2 Where You a) a) do not receive the EULA prior to purchase of the relevant Product or the EULA are not enclosed, and
b) You do not (i) use or have not used the Product or Software, or (ii) agree to the licensing conditions or terms of use and do not wish to use the Product or Software on the basis of these licensing conditions and terms of use, You may contact Cleverbridge and request the repayment of the amounts paid for the Product or Software. Cleverbridge may, in return, request the return of the Product or Software to Cleverbridge (where possible). In this case, however, Youshall have no rights whatsoever to use such Product or Software.
Privacy
When you visit the Store or Cleverbridge corporate website or order Products from Cleverbridge, Cleverbridge will process Your data including personal information in compliance with applicable data protection laws. Cleverbridge collects, stores, transmits, and processes Your personal information only in accordance with the principles laid out in its "Privacy Policy".
Defects and Exclusion of Liability
Cleverbridge is only legally responsible for the proper condition of Products.
Cleverbridge does not sell Software, therefore any liability for Software is waived.
The provisions of Clause 11.1 shall apply only to Customers who place an order from the EU or EFTA. Clause 11.2 shall apply to Customers who place an order from the USA and other countries outside the EU and EFTA.
11.1 Provisions for Customers who place an order from the EU or EFTA 11.1.1 All information on Products is solely by way of description and does not represent a guarantee. 11.1.2 Defective Products A Product is defective where it lacks the agreed quality, is not suitable for the agreed use or appropriate for the customary use, and does not demonstrate the quality usual for Products of the same type and which the purchaser can expect of this type of Product. A Product is also defective where it infringes industrial property rights, copyright or other third-party rights. The technical and legal regulations applicable in Germany shall apply unless explicitly agreed otherwise.
Services or the provision of services are defective to the extent they do not comply with the contractual agreements.
Because it is technically impossible to make SaaS or XaaS available without interruptions, reasonable times of interruptions of the availability of Saas or XaaS do not constitute a defect.
11.1.3 Duty of Inspection and Notification of Businesses Businesses shall be obliged to test the Products under normal operating conditions immediately after delivery and to make sure that they are in perfect condition, match the Product description and are complete. Claims may only be made with respect to rights based on Product defects or a short delivery if You notifies Cleverbridge in writing or by email of the Product defects or short delivery immediately and in any case no later than five days after receipt of the Products or in the case of a hidden defect, immediately after becoming aware of the respective hidden defect. Section 377 of the German Commercial Code [HGB] shall also apply.
11.1.4 Claims for Defects by Businesses Where Cleverbridge has carried out or delivered defective Products to a Business, Cleverbridge may choose either
a. to make good the defects by way of substitute performance or
b. to replace the defective Products with a new Product free of defects.
Where the substitute performance fails, the Business shall be able to bring a claim with respect to its statutory warranty rights under the following conditions:
a. The right to lower the relevant purchase price (price reduction) is excluded.
b. The right of cancellation shall be limited to the relevant Products.
Where the Business is entitled to claim damages in lieu of performance or to rescind the contract or to claim substitute performance, Cleverbridge may require the Business to exercise its rights within a reasonable period of time. The Business shall notify Cleverbridge of its decision in this regard. Where the Business fails to exercise its rights within a reasonable period of time, a claim may only be brought for damages in lieu of performance and a notice of rescission may only be given where an additional deadline of reasonable duration for substitute performance by Cleverbridge, to be specified by the Business, has expired unsuccessfully.
The limitation period for defects claims by Businesses according to Section 437 No. 1 and No. 2 BGB shall be twelve (12) months from delivery of the Product.
11.1.5 Claims for Defects by Consumers Where Cleverbridge has carried out or delivered defective Products , the Consumer may choose whether Cleverbridge should correct those defects by way of substitute performance or replace the defective Products with a new Product free of defects. Cleverbridge is, however, entitled to refuse the selected form of substitute performance where this is possible only at excessive cost and the other form of substitute performance is possible without material disadvantage to the Consumer.
Where the substitute performance fails, it shall generally be at the Consumer’s discretion to opt for a lowering of the purchase price (reduction) or to rescind the contract. The limitation period for defects claims by Consumers shall be twenty-four (24) months from delivery of the Product.
Consumers residing in France can find additional/deviating rights under the following link.
11.1.6 Legal Consequences of Rescission Where You exercise an existing right of rescission, the contractual parties shall return the Product received and surrender any use or enjoyment derived. At the same time, Your right to use the Products shall cease. In the case of Products previously purchased, You shall immediately remove this from all installations, storage media and other files and shall destroy the physical components of the Products or Software as well as any copies made of the Software. In addition, You must make a separate statement in text form (e.g. in writing, by fax or by email) that it will undertake the actions set out above.
11.1.7 Disclaimer (a) Any liability on the part of Cleverbridge for consequences that have arisen from alterations made to the Products by You or a third party or that have arisen through the mishandling or incorrect operation of the Products are excluded.
(b) Any liability on the part of Cleverbridge for the adequacy of the operation of Software or services provided by Suppliers for Your specific requirements or for the compatibility of these Software and services with components within the specific hardware configuration at the Your premises shall be excluded.
(c) Unless otherwise specified in this clause, liability on the part of Cleverbridge for acts or omissions, including strict liability under Section 536a BGB, shall be excluded.
(d) Where Cleverbridge negligently breaches a material contractual obligation, Cleverbridge's liability for damages shall be limited to foreseeable damage typically arising in such circumstances. Material contractual obligations are those that need to be complied with if the purpose of the contract is to be achieved.
(e) Where You bring damages claims based on Cleverbridge's deliberate or reckless breach or on the absence of a feature guaranteed by Cleverbridge, Cleverbridge shall bear liability within the statutory limits.
(f) This shall be without prejudice to Cleverbridge's liability for culpable loss of life, personal injury or damage to health. The same shall apply to liability under the German Product Liability Act.
(g) Where Cleverbridge's liability is excluded or limited, this shall also apply to the personal liability of Cleverbridge's workers, employees, co-workers, legal representatives and vicarious agents.
11.2 Disclaimer for Customers placing their order from the USA and other countries outside the EU and EFTA 11.2.1 The Supplier might offer certain warranties for their (or some of their) Software, but Cleverbridge does not offer any warranty on Software. UNLESS EXPLICITLY STATED IN THE TERMS, CLEVERBRIDGE MAKES NO WARRANTIES AND DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS WITH RESPECT TO PRODUCTS OR SOFTWARE, WHETHER EXPRESS OR IMPLIED, INCLUDING THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, SYSTEM INTEGRATION, QUIET ENJOYMENT, AVAILABILITY OF XAAS AND ACCURACY. 11.2.2 IN NO EVENT SHALL CLEVERBRIDGE BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, WHETHER OR NOT FORESEEABLE, EVEN IF CLEVERBRIDGE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING ANY LOSS OF REVENUE, LOSS OF CUSTOMERS, LOSS OF GOODWILL, OR LOSS OF PROFITS, ARISING OUT OF OR IN RELATION TO THESE TERMS, WHETHER ARISING UNDER CONTRACT, TORT OR ANY OTHER LEGAL OR EQUITABLE THEORY.
IN NO EVENT SHALL CLEVERBRIDGE'S TOTAL, CUMULATIVE LIABILITY HEREUNDER EXCEED THE PURCHASE PRICE FOR THE SPECIFIC PRODUCTS GIVING RISE TO THE CLAIM. MULTIPLE CLAIMS WILL NOT ENLARGE THIS LIMIT. THIS LIMITATION OF LIABILITY SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY EXCLUSIVE REMEDY HEREIN.
Cancellation Right for Consumers
The provisions of this Clause shall only apply to Consumers who place an order from a member state of the European Union or from Iceland, Liechtenstein, or Norway:
12.1 Cancellation 12.1.1 Consumers shall have the right to cancel this contract within fourteen (14) days without stating a reason. 12.1.2 In the case of a contract for services or a contract for the delivery of individually acquired or recurring digital content not installed on a physical data carrier, the cancellation period shall be fourteen days from the date the contract was concluded. In the case of a purchase contract for the delivery of goods (e.g. back-up CDs), the cancellation period shall be fourteen days from the date on which the Consumer - or a third party designated by the Consumer who is not a freight carrier - takes possession of the goods.
Under Section 312g (2) BGB, the cancellation right does not arise or exist
- with respect to contracts for the delivery of goods if they are not ready-made but were manufactured in accordance with an individual choice or determination of the Consumer or are clearly tailored to the personal needs of the Consumer (Section 312g (2) No. 1 BGB), and
- with respect to contracts for the delivery of audio and video recordings or computer software in a sealed package if the seal was broken after delivery (Section 312g (2) No. 6 BGB).
12.2 Waiver of the Cancellation Right The provisions of this clause 12.2 shall only apply to consumers who enter into a contract for the delivery of digital content not installed on a physical data carrier.
In accordance with section 356 (5) BGB, the Consumer
1) EXPRESSLY AGREES THAT CLEVERBRIDGE SHALL COMMENCE THE EXECUTION OF THIS CONTRACT BEFORE THE EXPIRATION OF THE REVOCATION PERIOD, AND
2) is aware that they will lose their cancellation right when the execution of this contract commences.
Any money-back-guarantee or other guarantee or warranty of similar content granted by Cleverbridge as regulated in Clause 13 shall not be affected by this Clause.
12.3 To exercise the cancellation right, the Consumer must inform Cleverbridge (Cleverbridge GmbH, Gereonstr. 43-65, 50670 Cologne, Germany, tel: +49 221 - 222 45 - 0, fax: +49 221 - 222 45 - 19, email: cs@cleverbridge.com) by making a clear declaration of his decision to cancel the contract (e.g. by letter sent by regular mail, fax, or email.) The Consumer can use the model cancellation form following these cancellation instructions for this purpose, but it is not a requirement. To meet the cancellation deadline, it is sufficient for the Consumer to send notice that they are exercising their cancellation right prior to the expiration of the cancellation period.
12.4 (a) If the Consumer cancels this contract, Cleverbridge must promptly refund all of the payments Cleverbridge received from the Consumer, including delivery costs, no later than fourteen days from the date on which the notice of revocation of the contract was received by Cleverbridge (with the exception of additional costs incurred because the Consumer has chosen a different mode of delivery than the most cost-effective one, i.e. the standard mode of delivery offered by Cleverbridge). For this refund, Cleverbridge shall use the same means of payment that was used by the Consumer in the original transaction, unless otherwise expressly agreed with the Consumer. In no case shall the Consumer be charged a fee for the refund.
(b) In the case of a contract for services, the following shall apply: If the Consumer requested that the services commence during the revocation period, the Consumer shall pay Cleverbridge a reasonable amount, which corresponds to the percentage of services provided by the time the Consumer informs Cleverbridge of the exercise of his right to cancel the contract, as compared to the total scope of the services contemplated by the contract.
(c) If there is a purchase contract for the delivery of goods, the following shall apply: Cleverbridge can refuse to make a refund until it has received the goods back or until the Consumer proves that he has sent the goods back, whichever is earlier. The Consumer shall promptly return or send the goods to Cleverbridge no later than fourteen days from the date on which the Consumer informed Cleverbridge of the revocation of the contract. The deadline is met if the Consumer sends the goods before the expiration of the fourteen-day period. The Consumer shall bear the direct costs of returning the goods.
The Consumer must pay for the diminished value of the goods if the diminished value is attributable to his treating the goods in an unnecessary manner to examine their quality, characteristics, and functionality.
End of the revocation instructions
Model cancellation form
(If you wish to cancel the contract, please fill out this form and send it back.)
To Cleverbridge GmbH, Gereonstr. 43-65, 50670 Cologne, Germany, Fax: +49 221 - 222 45 - 19, email: cs@cleverbridge.com
I/we hereby cancel (*) the contract for the purchase of the following goods (*) /the provision of the following services (*) concluded by me/us
Ordered on (*) /received on (*)
Name of the Consumer(s)
Address of the Consumer(s)
Signature of the Consumer(s) (only for notices in paper form)
Date
(*) Please delete what does not apply.
Money-Back-Guarantee
For certain Products, Cleverbridge may offer a money-back-guarantee but only as indicated in theStore. Under this guarantee, You can claim a refund of the purchase price in the same manner You can exercise the cancellation right according to Clause 12.3. The claim for refund is only valid if it has been received by Cleverbridge within the time period indicated in the Store.
Subscriptions
14.1 Auto-Renewal Customers may turn off auto-renewal of Subscriptions at any time, unless otherwise stated in the Store. Notice of termination may be given, inter alia, by e-mail to cs@cleverbridge.com or by the means specified in Cleverbridge's e-mails. Cancellation will only become effective at the end of the last day of the current subscription.
Cleverbridge may turn off auto-renewal under the same conditions as the Customer.
14.2 Shut Down The use of Products or Software may depend on online platforms maintained by the Supplier, data processed by the Supplier, and on the Supplier's ability to provide the services. If the Supplier fully or partially discontinues providing the respective online platform, stops processing the data, or stops providing the respective services ("Shut Down"), Cleverbridge shall be entitled to terminate the Subscription with effect from the date of Shut Down. Cleverbridge shall refund Youon a pro-rata basis for the time period of the then current Subscription term remaining after the Shut Down.
14.3 Violation of applicable laws Cleverbridge may terminate this contract with immediate effect if performance under this contract constitutes a breach of applicable laws.
14.4 Contract transfer of subscriptions Cleverbridge is free to transfer the subscriptions with the customer to its legal successor, affiliates, the provider and/or third parties who are equally able to perform the rights and obligations arising from the subscription by way of transferring the contract.
Place of Performance, Jurisdiction, and Applicable Law
You may contact Cleverbridge via email at cs@cleverbridge.com to resolve any disputes and/or claims.
15.1 Place of Performance, Jurisdiction and Applicable Law for Customers placing their order from the EU or EFTA 15.1.1 Place of Performance for Businesses In the case of contracts with Businesses, the place of delivery and payment shall be agreed as the place where Cleverbridge has its place of business (Cologne, Germany).
15.1.2 Jurisdiction and applicable law for Businesses In the case of contracts with Businesses, the exclusive venue for all legal proceedings and/or conflicts arising in relation to this contract is Cologne, Germany. This contract will be construed in accordance with and governed in all respects by the laws of Germany. The provisions of the UN Convention of 11 April 1980 on Contracts for the International Sale of Goods (the Vienna Convention) shall not apply.
15.1.3 Jurisdiction and applicable law for Consumers This contract will be construed in accordance with and governed in all respects by the laws of Germany. With orders placed by Consumers who have their habitual residence outside the Federal Republic of Germany, mandatory regulations and mandatory protections granted by judicial decision of the respective country of residence shall remain in effect and shall apply accordingly. The provisions of the UN Convention of 11 April 1980 on Contracts for the International Sale of Goods (the Vienna Convention) shall not apply.
Under the link http://ec.europa.eu/consumers/odr/, the EU Commission provides a platform for out-of-court dispute resolution. This gives consumers the opportunity to settle disputes in connection with their order in the first instance out of court.
Cleverbridge does not participate in dispute resolution proceedings before consumer arbitration bodies within the meaning of the German Consumer Dispute Settlement Act ("VSBG").
15.2 Jurisdiction and applicable law for Customers placing their order from the USA and other countries outside the EU and EFTA (Dispute Resolution by Binding Arbitration) 15.2.1 Cleverbridge and You agree to arbitrate all disputes and claims between . This contract to arbitrate is intended to be broadly interpreted. It includes, but is not limited to: - Claims arising out of or relating to any aspect of the relationship between the Parties, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory;
- Claims that arose before this or any prior agreement between the Parties (including, but not limited to, claims relating to advertising);
- Claims that are currently the subject of purported class action litigation in which Customer is not a member of a certified class; and
- Claims that may arise after the termination of any agreement between the Parties.
Notwithstanding the foregoing, either party may bring an individual action in small claims court. You agree that, by accepting these terms and conditions, You and Cleverbridge are each waiving the right to a trial by jury or to participate in a class action. The transaction between the Parties evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. This arbitration provision shall survive termination of the contract entered into by the Parties.
15.2.2 A party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute ("Notice"). The Notice to Cleverbridge should be addressed to: Cleverbridge GmbH, Gereonstr. 43-65, 50670 Cologne, Germany or to Cleverbridge, Inc. 350 N Clark Street, Suite 700, Chicago, Illinois, 60654, ("Notice Address"). The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought ("Demand"). If Cleverbridge and You do not reach an agreement to resolve the claim within thirty (30) days after the Notice is received, You or Cleverbridge may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Cleverbridge or You shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which You or Cleverbridge is entitled. You may download or copy a form Notice. 15.2.3 After Cleverbridge receives notice at the Notice Address that You have commenced arbitration, it will promptly reimburse You for Your payment of the filing fee. If Customer is unable to pay this fee, Cleverbridge will pay it directly upon receiving a written request at the Notice Address. The arbitration will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by these terms and conditions, and will be administered by the AAA. The AAA Rules are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by writing to the Notice Address. All issues are for the arbitrator to decide, including the scope of this arbitration provision, but the arbitrator is bound by the terms of these terms and conditions. Unless Cleverbridge and You agree otherwise, any arbitration hearings will take place in the county (or parish) of Your billing address. If Your claim is for Ten Thousand U.S Dollars (US$10,000) or less, Cleverbridge agrees that You may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If Your claim exceeds Ten Thousand U.S Dollars (US$10,000), the right to a hearing will be determined by the AAA Rules. Except as otherwise provided for herein, Cleverbridge will pay all AAA filing, administration, and arbitrator fees for any arbitration initiated in accordance with the notice requirements above. If, however, the arbitrator finds that the substance of Your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all such fees will be governed by the AAA Rules. In such case, You agrees to reimburse Cleverbridge for all monies previously disbursed by it that are otherwise Your obligation to pay under the AAA Rules. 15.2.4 If, after finding in Your favor in any respect on the merits of Your claim, the arbitrator issues Customer an award that is:: - Equal to or less than the greater of (a) Two Thousand U.S. Dollars (US$2,000) or (b) the maximum claim that may be brought in small claims court in the county of the Your billing address, and
- Greater than the value of Cleverbridge's last written settlement offer made before an arbitrator was selected, then Cleverbridge will:
- Pay You the greater of (a) Two Thousand U.S. Dollars (US$2,000) or (b) the maximum claim that may be brought in small claims court in the county of Your billing address ("the premium") instead of the arbitrator's award; and
- Pay Your attorney, if any, twice the amount of attorneys' fees, and reimburse any expenses that attorney reasonably accrues for investigating, preparing, and pursuing Yourclaim in arbitration ("the attorney premium").
If Cleverbridge did not make a written offer to settle the dispute before an arbitrator was selected, You and Your attorney will be entitled to receive the premium and the attorney premium, respectively, if the arbitrator awards You any relief on the merits. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees, expenses, and the premium and the attorney premium at any time during the proceedings and upon request form either party made within fourteen (14) days of the arbitrator's ruling on the merits.
15.2.5 The right to attorneys' fees and expenses set forth in Clause 15.2.4 supplements any right to attorneys' fees and expenses You may have under applicable law. Thus, if You would be entitled to a larger amount under the applicable law, this provision does not preclude the arbitrator from awarding Customer that amount. However, You may not recover duplicative awards of attorneys' fees or costs. Although under some laws Cleverbridge may have a right to an award of attorneys' fees and expenses if it prevails in arbitration, Cleverbridge agrees that it will not seek such an award. 15.2.6 The arbitrator may award injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. YOU AND CLEVERBRIDGE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN CUSTOMER'S OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both You and Cleverbridge agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void. 15.2.7 This contract will be construed in accordance with and governed in all respects by the laws of the State of Illinois, USA, without regard to any conflicts of law principles that would result in application of laws of any other jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this contract. Entire Agreement and Amendments
These Terms cover the entire contract between Cleverbridge and Yout in relation to the stated dealings and replace any previous or simultaneous agreements, communications and arrangements between Cleverbridge and You (whether oral or in writing) in relation to the present subject matter. Amendments and additions to these Terms shall be in writing. The written-form requirement may only be waived in writing.
Severability clause (Validity)
Should a provision of these Terms or a provision within the context of any other agreements be or become invalid then this shall not affect the validity of the other agreements or provisions. The applicable statutory law shall apply in place of the invalid provisions.
Cleverbridge GmbH and Cleverbridge, Inc.
Version: June 2019
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