AGB

1. General Information and Scope of Application

1.1

SuperX GmbH, Prenzlauer Allee 242-247, 10405 Berlin (hereinafter "SuperX") is the provider of the Superchat platform, which enables companies (hereinafter "Users") to communicate with their customers and other contacts (hereinafter "Customers") using a web interface via various communication channels (e.g. WhatsApp, Facebook Messenger, Google, email, SMS, Telegram) and to manage customer communication centrally (hereinafter "Platform").

1.2

These General Terms and Conditions (hereinafter referred to as "Terms of Use") apply to the use of the "Superchat" platform.

1.3

The offer of SuperX is directed exclusively at business users and not at consumers. A consumer within the meaning of these Terms of Use is any natural person who concludes a legal transaction for a purpose that cannot be predominantly attributed to their commercial or independent professional activity. By using the services, the user declares that he is an entrepreneur and not a consumer. The use of the platform by consumers is not permitted.

1.4

Agreements on special services or service areas shall become part of the contract with the users and shall take precedence in the event of a conflict with these Terms of Use.

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

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

2.1

The Platform enables the customer to centrally control and manage communication with end customers via various communication channels (email, SMS, various messenger platforms such as WhatsApp). Users can use the platform to send content to their customers as individual messages or bundled as part of a campaign in digital form via various communication channels.

2.2

The scope of use of the Platform agreed with the user, any agreed additional services (including "add-ons"), the start of the term of ongoing services, the remuneration and any further scope of services are set out in the order overview and the contract confirmation sent by SuperX.

2.3

SuperX makes the Platform available to the user as a technical infrastructure.

2.4

SuperX provides the Platform on servers for use at the access point of SuperX's data center ("Service Delivery Point"). In order to use the Platform, it is necessary that the user has its own access to the internet and accesses the Platform at the point of delivery of the service via this access.

2.5

To provide its services, SuperX uses the user's connection to messenger platforms and other communication services used by the user (hereinafter "third-party systems"). Contracts for the use of Third Party Systems are concluded between the user and the provider of the respective Third Party System on the user's own responsibility. SuperX has no influence whatsoever on the technical and contractual design or the scope of the services provided by third parties. The contractual partners of the connected third party systems can change or discontinue their scope of services at any time and thus also prevent the services of SuperX. SuperX is not liable to the user for service restrictions caused by changes to the third-party systems.

2.6

Communication via WhatsApp takes place via the WhatsApp Business API. Access to the WhatsApp Business API is provided to the user by SuperX to the agreed extent. SuperX may use a service partner to provide access.

2.7

The Platform offers access to the chatbot functions of OpenAI, which are provided by OpenAI LLC ("OpenAI") via an API (together "AI Features"), to the extent agreed in each case. The platform transmits requests from the user ("Prompt/s") to OpenAI and the responses generated by OpenAI ("Output") to the user. In addition, the user can configure a virtual assistant for communication with customers ("Virtual Assistant"). AI features can be deactivated by the workspace administrator at any time.

The OpenAI API is operated under the sole responsibility of OpenAI. SuperX has no influence on the technical design or the scope of the services provided by OpenAI and does not guarantee a specific range of functions. OpenAI may change or discontinue the scope of its services at any time and thus also prevent SuperX from providing its services. SuperX is not liable to the user for service restrictions caused by changes made by OpenAI.

2.8

The other functionalities and system requirements of the Platform are set out in the description valid at the time of the order or the current status of the Self-Service offers.

3. Registration and Creation of a User Account

3.1

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

3.2

The user warrants that all data provided by him/her 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 data, must always be kept up to date.

4. Free Test Phase

The user can use the platform free of charge for a period of 14 days with a limited range of functions ("test phase"). At the end of the test phase, the possibility of use ends automatically without the need for termination if the user does not conclude a contract for the paid use of the platform.

5 Conclusion of Contract

5.1

In the context of self-service: The service description of the products on the SuperX website does not constitute a binding offer. If the user wishes to conclude a paid subscription at the end of the free trial period, he/she submits a binding contractual offer for the selected service package by clicking on the "Order with obligation to pay" button at the end of the order process.

Via an order link: Following a conversation with the SuperX sales team, SuperX will send the user a summary of the agreed conditions and services by email, as well as an order link, which the user can use to access the electronic ordering process. There the user can check his order again for possible input errors and correct them if necessary. By clicking on the button ("Order with obligation to pay") at the end of the order process, the user submits a binding contractual offer.

5.2

SuperX can accept the user's offer within 48 hours by sending the user a contract confirmation by email. The contract confirmation also contains a summary of the agreed services and the applicable terms of use. Upon receipt of the contract confirmation to the e-mail address provided by the user, the contract is concluded.

5.3

The user can book additional extensions ("add-ons" such as an analytics feature) in their user account during the term of the contract. In this case, the service description of the add-ons on the SuperX website constitutes a binding offer. By clicking on the button ("Upgrade") that concludes the order process, the user declares acceptance of the offer and the contract is concluded. SuperX will confirm the order of the add-on to the user by e-mail within 48 hours at the latest.

6 Availability of the Platform, troubleshooting

6.1

The Platform is available 99% of the time during the calendar month.

6.2

Unavailability exists if the Platform is completely unavailable due to circumstances for which SuperX is responsible. Unavailability does not exist if the Platform is unavailable due to circumstances for which SuperX is not responsible, in particular due to force majeure (in particular war and war-like conditions, natural disasters, epidemics and pandemics, including the COVID-19 pandemic), incorrect operation by the user or use by the user in breach of contract or due to scheduled maintenance times in accordance with section 6.3.

6.3

SuperX may temporarily restrict access to the Platform in order to carry out maintenance work. SuperX will notify the customer of planned maintenance times at least 7 days in advance. Scheduled maintenance times, which are not taken into account when determining availability, may be carried out on Saturdays and Sundays from 0:00 to 7:00. The total duration of planned maintenance times may not exceed 24 hours per month.

6.4

Should the Platform exhibit an error or malfunction, the user must inform SuperX immediately in writing, providing a detailed description of the circumstances and all information useful for rectifying the error ("error and malfunction reports"). SuperX will respond within one working day (the "response time") to proper error and fault reports from the user with qualified feedback on the causes of the error and the measures taken and to be taken to rectify the error. The response time does not apply to insignificant errors and faults.

6.5

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

6.6

This clause 6 does not apply to the availability of the OpenAI API. SuperX does not guarantee a certain availability of the services of OpenAI and assumes no liability in this respect.

7 Rights of use for the Platform

7.1

SuperX grants the user the temporary, revocable, non-exclusive and non-transferable right to use the Platform to the extent agreed in the contract. The right of use expires at the latest upon termination of the contract.

7.2

The user may only use the platform for its own business activities. Use may only be made by the number of persons described in the scope of services at the same time.

7.3

The customer is not entitled to rent, lease, lend, reproduce, resell or otherwise distribute or pass on the Platform or access to the Platform; to use the Platform to develop its own services that have the same or essentially the same functionalities; to activate and/or use functionalities of the Platform for which it has not been granted rights of use; to transfer the rights of use to the Platform to third parties or to grant third parties access to the Platform without SuperX's consent; modify, translate, reproduce, decompile or examine the source code of the Platform, algorithms or other program components, except to the extent permitted by law pursuant to § 69d or § 69e UrhG; remove, circumvent, decrypt or otherwise modify the digital rights management or copy protection functions associated with the Platform or other technologies used to control access to the Platform; remove, obscure or modify legal notices, in particular those relating to SuperX's intellectual property rights.

8 Support

8.1

SuperX provides the user with support services, the scope of which is set out in the summary of services in the contract confirmation or which the parties agree in writing after conclusion of the contract.

8.2

Additional support services, in particular consulting services or technical support services (with the exception of the legally or contractually owed elimination of defects) are to be paid separately and will be invoiced to the user on a time and material basis. The user shall be informed of the amount of the remuneration before these services are commissioned.

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 signs, texts, together "user content") during the term of the contract to the extent necessary for the fulfillment of the contract, in particular to reproduce, edit and transmit. The user assures to be able to dispose of these rights in favor of SuperX.

9.2

The user may only store or have stored on the Platform or transmit via the Platform such User Content (i) which the user is entitled to use to the extent necessary for the performance of the contract, (ii) which does not infringe the rights of third parties (in particular trademark rights, copyrights and other industrial property rights as well as personal rights) and (iii) which does not contain any illegal, violent, 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 details) are fulfilled. SuperX does not check the legality of user content and customer communication.

9.4

Only templates approved by WhatsApp may be used for sending promotional messages, in particular newsletters, via the WhatsApp Business API. The use of unauthorized templates may result in the WhatsApp number used for sending being permanently blocked. The user is responsible for compliance with these provisions as well as compliance with the WhatsApp Business Policy in accordance with section 9.5. Any liability of Superchat is excluded.

9.5

For individual third-party systems, additional terms of use of the respective provider may apply (WhatsApp Business Policy, Facebook Commerce Policies (also valid for Instagram), Telegram Terms of Service, Google Business Messaging, Twilio Messaging Policy (for SMS sending)). The user is responsible for compliance with these terms of use. SuperX points out that violations of the Terms of Use may lead to exclusion from or restriction of the use of the third-party systems. SuperX is not liable for any limitations of SuperX's services resulting from the user's violation of the terms of use of the third party system.

9.6

The use of the AI Features is additionally subject to the OpenAI Terms of Use. The user is responsible for compliance with these terms and conditions. SuperX points out that violations of these terms may lead to exclusion from or restriction of the use of the OpenAI API. SuperX is not liable for any limitations of SuperX's services resulting from the user's breach of the OpenAI Terms of Use.

9.7

The user indemnifies SuperX on first demand against all claims asserted by third parties against SuperX due to (i) the use of the User Content by SuperX or the user and (ii) the use of the Platform by the user, unless these claims are based on intentional or grossly negligent behavior by SuperX. This also includes the costs of a reasonable legal defense in accordance with the RVG.

9.8

It is the user's responsibility to make backup copies of the user content.

10 Remuneration and terms of payment

10.1

The amount of remuneration for the services booked by the user (including add-ons and AI features) and the payment frequency are set out in the content agreed in the sales meeting and/or the contract confirmation. The first debit is made 48 hours after the onboarding appointment with the user.

10.2

The amount of the remuneration and the payment frequency for add-ons and/or AI features additionally booked during the usage phase can be found in the service description of the add-ons and/or AI features on the SuperX website valid at the time of booking. The first debit will be made within 48 hours of the order.

10.3

When using the WhatsApp Business on-premise API or cloud API via 360dialog, the user is entitled to a monthly WhatsApp bonus for outgoing conversations, the amount of which depends on the package booked. The costs for outgoing WhatsApp conversations are included in the price of the booked package up to the amount of the respective WhatsApp bonus. All WhatsApp conversations in excess of the WhatsApp bonus will be charged to the user in addition to the cost of the package in accordance with the selected payment frequency. The costs for outgoing WhatsApp conversations are based on the price list valid at the time the respective message is sent and are based on the prices charged by WhatsApp for the respective type of conversation. SuperX reserves the right to adjust the price list for outgoing WhatsApp conversations if and to the extent that WhatsApp changes its prices. The user will be notified in advance by email of any changes to the price list. In this case, the user has the right to terminate the user contract extraordinarily with a notice period of two weeks.

The use of the WhatsApp Cloud API (direct cloud) is billed directly between the User and Meta. SuperX does not grant a WhatsApp bonus for this product.

10.4

All amounts are in EUR and net.

10.5

Invoices to the User shall be issued in electronic form (e.g. by e-mail), unless otherwise agreed.

10.6

The User may only offset undisputed or legally established claims, unless the claims are reciprocal.

10.7

SuperX is entitled to adjust the agreed remuneration at its reasonable discretion to the development of costs at SuperX which are relevant for the price calculation. Such an adjustment of the remuneration may lead to a price increase or price reduction. In particular, administrative costs, costs for the maintenance and operation of SuperX's IT infrastructure, general costs (sales and marketing costs, personnel costs, rent, external service providers) as well as financing costs, taxes, fees and other charges are decisive for the calculation of SuperX's total costs. Cost increases and cost reductions are to be taken into account by SuperX with equal effect on the price. All price changes will be communicated to the user by email and will come into effect at the earliest 30 days after such notification by SuperX. If SuperX increases the fee by more than 10%, the user is entitled to terminate the user contract extraordinarily with a notice period of four weeks from receipt of the request for increase.

11 Warranty

11.1

Sections 536 et seq. of the German Civil Code (BGB) apply to defects in the Platform. Strict liability is excluded for initial defects.

11.2

Defects will be remedied at SuperX's discretion either by repair or replacement free of charge.

11.3

Termination by the customer in accordance with § 543 para. 2 sentence 1 no. 1 BGB (German Civil Code) due to failure to grant contractual use is only permissible if SuperX has been given sufficient opportunity to rectify the defect and this has failed.

11.4

SuperX assumes no warranty for the internet access of the user and/or his end customers, in particular for the availability and dimensioning of the internet access. The user himself is responsible for his internet access to the point of delivery of the service.

11.5

SuperX has no influence on the completeness and correctness of the outputs generated by OpenAI and assumes no warranty for this. SuperX expressly points out that the user should not rely on the correctness of the content of the Outputs without having checked them. Even Outputs that appear correct due to their level of detail or specificity may contain significant inaccuracies. Similarly, outputs may not contain the most current or complete information. Events or changes to the underlying facts that occurred after the underlying language model was trained are not taken into account and may not be included in the output.

12 Liability and compensation

12.1

In all cases of contractual and non-contractual liability, SuperX is liable for damages or compensation for futile expenses in cases of intent and gross negligence in accordance with the statutory provisions.

12.2

In other cases, SuperX is only liable - unless otherwise stipulated in clause 12.3 - in the event of a breach of a contractual obligation, the fulfillment of which is essential for the proper execution of the contract and on the observance of which the user may regularly rely (so-called cardinal obligation), limited to compensation for foreseeable and typical damage. In all other cases, liability is excluded subject to the provision in section 12.3

12.3

SuperX's liability for damages resulting from injury to life, body or health and under the Product Liability Act remains unaffected by the above limitations and exclusions of liability.

12.4

Insofar as liability is excluded under these provisions, this also applies to the liability of SuperX's organs and vicarious agents, in particular employees.

12.5

The limitation period for claims for damages by the user against SuperX is one year, except in the cases of clauses 12.1 and 12.3.

12.6

In the event of damages incurred by the user as a result of OpenAI's conduct, SuperX's liability is limited to the assignment of SuperX's claims against OpenAI, insofar as OpenAI's terms and conditions of contract and use permit such assignment.

13 Blocking of access to the Platform, deletion of content

13.1

SuperX may, at its own discretion, temporarily or permanently block the user's access to the Platform as a whole or to individual sub-areas if there are concrete indications that the user is violating or has violated these Terms of Use and/or applicable law, or if SuperX has another legitimate interest in blocking access. When deciding whether to block a user, the legitimate interests of the user will be given due consideration. If the user repeatedly violates these terms of use despite being notified, SuperX reserves the right to block access permanently.

13.2

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

13.3

In the event of temporary blocking, the access authorization will be reactivated after the blocking period has expired or the reason for blocking no longer applies and the user will be notified of this by e-mail. Permanently blocked access authorization cannot be restored. Permanently blocked persons are permanently excluded from using the platform and may not register again. With the permanent blocking of the user, SuperX is entitled to terminate the user relationship extraordinarily.

13.4

SuperX is entitled to delete content that does not comply with the conditions of clause 9 if the user does not delete it within a reasonable period of time despite being requested to do so.

14 Term of contract; termination of access

14.1

The User shall be permitted to use the Platform for the duration of the agreed contractual term. The conclusion of the contract is initially followed by a free set-up phase, which ends after 30 days at the latest with the onboarding date. During the set-up phase, the user may not yet be able to use all of the platform's functions. SuperX will debit the agreed fee for the first time within 48 hours of the onboarding date at the latest. If, in individual cases, the onboarding appointment cannot take place until after the end of the set-up phase, the first debit will be made 30 days after conclusion of the contract. The chargeable usage phase and the agreed minimum term begin with this debit.

14.2

Unless otherwise agreed, the minimum contract term is 12 months, starting on the day of the first direct debit. After expiry of the minimum term, the contract of use shall be extended by the length of the payment cycle agreed upon conclusion of the contract if it is not terminated by either party no later than 30 days before expiry of the minimum term or during the extended term no later than 14 days before the end of the respective contract term. This minimum term or extended term applies in the same way to add-ons that the user has additionally booked during the usage phase. The right of both parties to terminate the contract without notice for good cause remains unaffected by this. The effective termination of the contract of use also automatically leads to the termination of any agreed additional services and extensions (in particular add-ons booked during the usage phase) without the need for a separate declaration by the parties.

14.3

Notwithstanding clause 14.2, the user is always entitled to terminate the user contract within 30 days from the date of the first debit by SuperX ("special right of termination").

14.4

In particular, SuperX has the right to terminate without notice for good cause in the following cases: (i) the user becomes insolvent or over-indebted; (ii) an application is made to open insolvency proceedings against the user's assets (whereby the provision of §112 InsO remains unaffected), or (iii) the user is in arrears with the payment of the agreed remuneration or a not insignificant part thereof for two consecutive months or is in arrears with the payment of the current remuneration for a period extending over more than two months in an amount equal to the current remuneration to be paid for two months.

14.5

Notice of termination must always be given in writing (by post or e-mail).

14.6

After expiry of the contract term, the user will no longer be able to access the platform and the user content - subject to a contract extension or the conclusion of a new user contract - and the content will be deleted from the platform.

15. Data Protection

15.1

Insofar as SuperX processes personal data on behalf of the user in order to provide the contractual services, SuperX is a processor within the meaning of Art. 28 of the General Data Protection Regulation (GDPR) and the parties conclude the additional agreement on order processing upon conclusion of the user contract, which can be accessed under this link and which, together with its annexes, becomes part of the contract.

15.2

The processing of the contract concluded with the user may require the use of the user's personal data. The details of the data collected and their respective use can be found in the privacy policy.

16. Amendment of the GTC

16.1

SuperX reserves the right to change the services offered as well as these terms of use. A change is possible insofar as the respective change is necessary in order to take into account changes that were not foreseeable at the time of conclusion of the contract, in particular technical or legal conditions, including the conditions for the use of third-party systems. SuperX will take into account the legitimate interests of the user in each case.

16.2

Changes will be communicated to the user in advance by email. If the user does not object to their validity within four weeks of receipt of the notification, the changes are deemed to have been accepted with effect for the future. If the customer objects to the changes, SuperX is entitled to terminate the contractual relationship extraordinarily with a notice period of two weeks, provided that SuperX has pointed out the effect of silence and the right of termination in the notification of change.

16.3

Excluded from the right to change is any change to the subject matter of the contract and the main performance obligations that would lead to a change in the contractual structure as a whole. In such cases, SuperX will inform the user of the intended changes and offer to continue the contractual relationship under the amended conditions.

17. Final Provisions

17.1

The agreements concluded between the parties, including these Terms of Use, are subject to the substantive law of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods and private international law.

17.2

The exclusive place of jurisdiction is Berlin, Germany. However, SuperX is also entitled to sue the user at his general place of jurisdiction. Mandatory statutory provisions on exclusive places of jurisdiction remain unaffected by this provision.

17.3

Should one or more provisions of these Terms of Use be or become invalid, this shall not affect the validity of the remaining provisions.