Welcome to our website. Clever Messenger is an online platform that allows developers, individuals, companies, and agencies to easily build, host, and manage chatbots for Messenger. Please read on to learn the rules and restrictions that govern your use of our website(s), products, services and applications (the “Service”). The Service on Clever Messenger (“CM”) is owned and provided by Marketing Released B.V. (“MR”), located at Westerdijk 4-0602, 3513EW, Utrecht, Utrecht, The Netherlands. CM is a sub-brand of MR. MR is registered at the Chamber of Commerce in The Netherlands under number 62865668.
By agreeing to this Agreement, you acknowledge that You have read this Agreement, understood it, and agree to be bound by its terms and conditions. We may amend this Agreement from time to time. We will provide You with advance notice of the modifications via email to the email associated to Your account and by posting a written notice on Our Site and You hereby agree that this shall constitute adequate notice in this regard. All amended terms automatically take effect on the sooner of the day You use the Site and/or Services, or 30 calendar days after they are initially posted on the Site. Your use of the Site and/or Services following the effective date of any modifications to this Agreement will constitute Your acceptance of the Agreement, as modified.
If you have any questions, comments, or concerns regarding these terms or the Service, please contact us via our support desk or send an email to [email protected]
PLEASE READ THE FOLLOWING IN ITS ENTIRETY BEFORE PURCHASING AND/OR USING ANY INFORMATION CONTAINED ON OUR SITE.
These Terms & Conditions (the “Terms”) are a binding contract between you and MR and CM. Your use of the Service is also governed by and subject to the Facebook Platform Policies and Facebook Commerce Product Merchant Agreement, which are hereby incorporated by reference and are a part of these Terms. You are solely responsible and liable for complying with the Facebook Platform Policies and Facebook Commerce Product Merchant Agreement. You must agree to and accept all of the Terms, or you don’t have the right to use the Service. Your using of the Service in any way means that you agree to all of these Terms, and these Terms will remain in effect while you use the Service.
Will these Terms & Conditions ever change?
CM is constantly trying to improve the Service, so theseTerms & Conditions may need to change along with the Service. We reserve the right to change the Terms & Conditions at any time, if we do, we will bring it to your attention by placing a notice on the CleverMessenger.com website, by sending you an email, and/or by some other means. If you don’t agree with the new Terms & Conditions, you are free to reject them; unfortunately, that means you will no longer be able to use the Service. If you use the Service in any way after a change to the Terms & Conditions is effective, that means you agree to all of the changes.
What are the basics of using Clever Messenger?
In order to use the Service you are required to sign up for an account and log-in to Clever Messenger — in order to make use of the Service, you need to connect through your Facebook account in order for CM to collect your Facebook fan pages which are required to run your Messenger Chatbot(s). You’re required to specify a password and username (“Clever Messenger User ID”). You promise to provide us with accurate, complete, and updated registration information about yourself. You may not transfer your account to anyone else without our prior written permission. You represent and warrant that you are of legal age to form a binding contract (or if not, you’ve received your parent’s or guardian’s permission to use the Services and gotten your parent or guardian to agree to these Terms on your behalf). If you’re agreeing to these Terms on behalf of an organization or entity, you represent and warrant that you are authorized to agree to these Terms on that organization or entity’s behalf and bind them to these Terms (in which case, the references to “you” and “your” in these Terms, except for in this sentence, refer to that organization or entity). You will only use the Service for your own internal use, and only in a manner that complies with all laws that apply to you, except that you may build chatbots using the Service and sell and/or otherwise exploit and commercialize the chatbots you have built. If your use of the Service is prohibited by applicable laws, then you aren’t authorized to use the Services. We can’t and won’t be responsible for your using the Service in a way that breaks the law. You will not share your account or password with anyone, and you must protect the security of your account and your password. You’re responsible for any activity associated with your account.
“Account” shall mean an account with CM to use the Services;
“Agreement” shall mean these Terms & Conditions, including any annexes thereto which form an integral part thereof and which in their totality, govern Your relationship with CM;
“Applicable Law” shall mean the Laws of The Netherlands;
“Confidential Information” shall mean all information provided by You or Us (the “Disclosing Party”), to the other party (the “Receiving Party”), whether orally or in writing, which information is designated as being confidential. Provided that for all intents and purposes, Confidential Information shall not be construed to include any information that is (a) publicly known at the time of disclosure or subsequently becomes publicly known through no fault of the Receiving Party; (b) discovered or created by the Receiving Party before disclosure by the Disclosing Party; (c) learned by the Receiving Party through legitimate means other than from the Disclosing Party or Disclosing Party’s representatives; or (d) is disclosed by the Receiving Party with the Disclosing Party’s prior written approval;
“Data” shall mean content, data, information, Know-How and Confidential Information relating to Your business, some of which may not be publicly available, including but not limited to technical and commercial information concerning Your, or any of Your parent company’s or subsidiaries” business, systems, processes, software and services, as the case may be;
“Intellectual Property Rights” shall mean the copyright, including the moral and related rights, rights to use, musical works, literary works, designs, databases or any other copyright protected works, trade names, protected business identifiers, patents, utility models and trademarks, and all other industrial and intellectual property rights, in each case whether registered or unregistered, which currently subsist, or will subsist, now or in the future, in any part of the world;
“Know-How” shall mean unpatented information, knowledge, experience, formula, research, processes, studies, reports, data and designs developed by and/or in Your possession;
“Service’s” shall mean the software as a service (SaaS) offered by CM and having a variety of resources including but not limited to Chatbot Building Features, Chatbot Capture Features, Chatbot Engagement Features and Chatbot Management Features and other functionalities as developed and introduced by CM from time to time and as further described on the Site;
“Site’s” shall mean the website CleverMessenger.com, in addition to any sub-pages that are integrated within this website;
“Subscription Plan” shall mean one of the different subscription packages through which You can use the Services as further described on our pages;
“Subscription Term” shall mean the period of time for which subscription to the Services shall be made available by CM to You, subject to Your adherence to the obligations undertaken by virtue of this Agreement;
“Third Party/ies” shall mean any persons, whether legal or natural, which are neither You nor CM;
“Trial Period” shall mean free access provided to You by CM for a limited and established period of time, to part the Services, which shall be granted at the sole discretion of CM, which access may be revoked by CM at any time without need of any prior notice;
“You” / “Your” shall mean a person, whether natural or legal, acting in the course of a trade or business, and who agrees to be bound by the terms contained in this Agreement.
2. Account Registration, Access and Disclosure
2.1. To use the Site and benefit from Our Services, You must create an Account by completing a registration form, by providing Us with all required information and activating the “I accept the Terms of Service” check-box and clicking on the “Start Using CM” button. You agree to provide Us with complete and accurate information upon registration and to keep such information accurate and up-to-date during Your course of use of Our Service. You are advised to keep Your login credentials strictly confidential and to refrain from disclosing these to anyone. We shall not be held responsible for unauthorized access to Your account arising from Your failure to keep Your login credentials safe and secure.
2.2. If You are using the Site or Services for and on behalf of a legal entity You may do so by creating a separate Account with CM or by adding a new Client to Your existing Agency Account (if purchased access to). Any such separate Account or new Client to Your existing Account shall be governed by the terms and conditions set forth in this Agreement and as further detailed in clause 2.6 hereunder. If You are using the Site or Service for and on behalf of a legal entity,You shall be, and shall be presumed to be empowered by and/or properly authorised for and on behalf of that legal entity and You and the legal entity shall be jointly and severally subject to this Agreement. If You no longer remain a duly authorised representative of the legal entity, You shall be responsible to immediately inform CM, in which case the legal entity shall remain subject to the Agreement, and the legal entity shall contemporaneously proceed to inform CM of the new authorized representative. Until a new authorized representative has been notified to CM, You shall remain responsible as aforesaid. CM shall not be held liable should a person without the necessary power / non properly authorised person enter into this Agreement for and on behalf of a legal entity.
2.3. We reserve the right for Us, Our contractors or Our employees, after obtaining Your prior consent, to access Your Account and the information that You have provided for support, maintenance and servicing purposes or for any security-related, technical or billing reasons.
2.4. It is Your responsibility to protect Your personal data and maintain the confidentiality of Your user information and passwords. You are also responsible for promptly notifying CM of any unauthorized use of Your account, or breach of Your account information or password. To the extent that such loss has not been caused due to gross negligence, willful misconduct, fraud or bad faith by CM, CM will not be liable for any loss that You may incur as a result of someone else using Your username or password, either with or without Your knowledge. To the extent allowable by the Applicable Law, You shall be liable for any expenses, including usage charges and fines, fees, civil judgments, and reasonable attorney’s fees for Your intentional or negligent failure to safeguard user and password information and/or promptly notifying CM about any unauthorized use of Your account or breach of Your account information or password.
2.5. If You are: a parent company owning a majority shareholding (51% or higher) in a subsidiary company or other legal entity; or a subsidiary company or other legal entity, owned by a parent company owning a majority shareholding (51% or higher); and wish to extend this Agreement to either Your parent company or Your subsidiaries, as the case may be, You may do so by creating a separate Account with CM or by adding a new organization site to Your existing Account. Any such separate Account or new organization site to Your existing Account shall be governed by the terms and conditions set forth in this Agreement.
2.6. Your parent company or subsidiary(ies), as the case may be, shall be deemed to be a third-party beneficiary of this Agreement with the same rights and obligations attributed to You and CM under this Agreement and shall take on all responsibilities and obligations as if such parent company or subsidiary, as the case may be, were You.
3. Extent of Services
3.1. The extent of the Service(s) to which You may have access to may be dependent on the relevant Subscription Plan, Subscription Term and respective and timely payment of Service fees to CM.
4.1. We offer several different Subscription Plans for Our Services. The applicable Subscription Term Plan depends on Your choice. Your Subscription Plan is selected during Your Account registration and You can choose to change Your plan at any time. Information about Our standard plans can be found on Our Pricing page. All fees quoted on Our site are exclusive of VAT or any other taxes that may be applicable in Your jurisdiction. For additional information on Our Subscription Plans, please Contact Us. You may upgrade or downgrade Your Subscription at any time during Your Subscription Term, upon which We will apply the respective fees on a pro-rata basis.
4.2. Following Your current Subscription Term, We reserve the right to amend the Subscription Plans and/or Subscription Term at any time or introduce new fees and/or subscription levels or charges. We will provide You with thirty (30) calendar days’ written notice in advance during which You will have the right to unsubscribe from, or change Your current Subscription Plan, should You not agree with these amendments.
5. Subscription Term and Renewal
5.1. Trial Period. The duration of the trial period is specified during the Account creation process. At the end of the trial period, You will be prompted to enter Your payment details if You have not already done so. If You’ve already updated Your payment details, Your credit card or PayPal account will be automatically charged on the displayed billing date on the billing section associated to Your Account on Our Site.
5.2. Renewal Term. Unless CM is notified in writing at least three business (3) days before the end of the conclusion of Your current Subscription Term (or any subsequent Renewal Term) that You do not intend to renew Your subscription, You will be enrolled into an automatic renewing cycle for the same term at the conclusion of the Subscription Term (the “Renewal Term”). This applies to all Subscription Plans involving payment, and works the same for both monthly and annual renewals. Any written notice of Your intention not to renew shall be provided to the following email address: [email protected]. The email must come from the registered CM account owner.
6.1. Either You or We may terminate this Agreement for cause as a result a material breach by the other party of the terms hereof in this Agreement, if the defaulting party fails to cure such material breach within fifteen (15) calendar days of its receipt of written notice of the breach from the non-defaulting party. In addition, We may immediately terminate this Agreement if You: (i) terminate Your business activities or become insolvent; (ii) admit in writing to the inability to pay Your debts as they mature; (iii) make an assignment for the benefit of creditors; (iv) become subject to direct control of a trustee, receiver or similar authority; or (v) do not pay the fees when due in accordance with Your Subscription Plan. In the event this Agreement is terminated for cause due to Your uncured material breach, You agree, without limiting any of Our other rights or remedies, to pay all remaining fees payable through the remainder of Your Term.
6.2. In the event this Agreement is terminated for cause by You due to Our uncured material breach, You shall be entitled to a pro rata refund of all fees previously advanced to Us from the date of the termination through the end of the Subscription Term.
6.3. You may terminate this Agreement by requesting Your account to be deactivated and deleted while logged into the Service. CM may also terminate Your right to use the Site and/or Services with or without cause at any time. CM shall notify You via email to Your registered email account if We terminate Your Account. Your obligation to pay accrued charges and fees accrued up to the date of termination, shall survive any termination of this Agreement. In the event of any termination of this Agreement, the limitations on Your use of the Services as set forth in Clause 7 and Our warranties as set forth in Clause 10 shall survive such termination.
6.4. Upon expiration of the Subscription Term, or termination, howsoever occasioned, Your Subscription Plan shall immediately terminate and consequently, You may make use of the free version of the Service.
7. Limited Licences
7.1. Subject to this Agreement, CM grants You a limited, revocable, non-exclusive, non-transferable and non-assignable licence to use the Site and/or access the Services as a software as a service (SaaS) solution for enterprise, and commercial use subject to the other terms of this Agreement. You hereby agree not to resell any part of the Services. You shall not transfer, lease, sub-license, modify, reverse engineer, decompile or disassemble the Site and/or any part of the Services. You shall not copy, adapt, alter, modify, translate, or create derivative works of the Site and/or Services without prior written authorization of CM. You represent and warrant that You shall not use the Services for illegal purposes or for the transmission of information that may be classified as unlawful, libellous, abusive, obscene or that infringes any rights, including Intellectual Property Rights of others. You shall not permit Third Parties to use the Services, with the exception of clauses 2.5 and 2.6 above, including but not limited to shared use via a network connection, except under the terms of this Agreement. In order to protect the Intellectual Property Rights to the Services, You shall not circumvent or disable any technological features or measures in the Services. You shall not use the Services, including in conjunction with, any device, program, or service designed to circumvent any deployed technological measures, in an attempt to control access to, or the rights in, a content file or other work protected by intellectual property laws. Any such forbidden use shall constitute a material breach of this Agreement and shall prompt Us, at Our own discretion, to immediately terminate Your right to access the Service. Any breach of this Clause shall make You liable for damages suffered by CM.
8. Proprietary Rights
8.1. Except as otherwise stated herein, all rights, titles and interest in the Site and/or the Services and any content contained therein is the exclusive property of CM, except as otherwise stated herein. Unless otherwise specified, the Services are for Your limited use only and if You copy or download any information from this Site and/or Service, You agree that You shall not remove or obscure any copyright or other notices or legends contained in any such information.
8.2. You may not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, frame, create derivative works from, transfer, or otherwise use in any other way for commercial or public purposes, in whole or in part, any information, software, products or Services obtained from the Site and/or the Services, except for the purposes expressly provided herein, without CM’s prior written approval.
8.3. Except for those Intellectual Property Rights that are already owned, registered or vested in Your name, or those Intellectual Property Rights that are created by or for You during the duration of this Agreement, all CM trademarks, trade names, Service marks, logos and other Intellectual Property Rights in and to the Site and Services are proprietary to CM. Your use of any marks on the Site and Services in any manner other than as authorized in this Agreement, or as authorized in writing by CM, shall be strictly prohibited.
8.4. All Your trademarks, trade names, service marks and logos are proprietary to You. CM’s use of any of Your marks in any manner other than as authorized in this Agreement, or as authorized in writing by You, is strictly prohibited.
8.5. In the course of performing the Services, CM will have access to some of Your Data. All rights, title and interest in the Data is Your exclusive property, except as otherwise provided for herein throughout this Agreement.
8.6. CM shall not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, frame, create derivative works from, transfer, or otherwise use in any other way for commercial or public purposes, in whole or in part, any of Your Data belonging to You, except for the purposes of the provision of performing the Services expressly provided for herein, without any further prior need of approval or consent from You.
8.8. You acknowledge and agree that CM may disclose any Data if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce this Agreement; (c) respond to claims that any of Your content and/or Data violates the rights of Third Parties; or (d) protect the rights, property, or personal safety of CM, the Site, the Services, its users, and the public.
8.9. In the event that You provide CM with any feedback, suggestions, comments or improvements with respect to the Site and/or Services, You hereby grant CM with a non-revocable, sub-licensable and royalty free right and licence to make use of, copy, disclose, licence, and distribute such feedback, suggestions, comments or improvements in any manner without any obligations, of whatever kind, towards You. Nothing in this Agreement shall be construed as a limitation on CM to make use, develop and market any Services incorporating the feedback, suggestions, comments or improvements that You have provided.
8.10. For the avoidance of doubt, all such rights to CM to use Your Data shall be granted solely for the duration of this Agreement.
9. Confidential Information
9.1. The person in receipt of Confidential Information (the “Receiving Party”) shall hold and maintain the Confidential Information in strictest confidence for the sole and exclusive benefit of the other party (for the purposes of this section, the “Disclosing Party”). Receiving Party shall ensure restriction of access to Confidential Information to its employees, contractors and Third Parties as is commercially and reasonably required and shall require those persons to sign and abide by nondisclosure restrictions at least as protective as those contained within this Agreement. The Receiving Party shall not, without the prior written approval from the Disclosing Party, use for Receiving Party’s own benefit, publish, copy, or otherwise disclose to others, or permit the use by others for their benefit or to the detriment of the Disclosing Party, any Confidential Information. The Receiving Party shall return to the Disclosing Party any Confidential Information and all records, notes, and other written, printed, or tangible materials in its possession pertaining to Confidential Information immediately where the Disclosing Party so requests in writing.
10.1. CM warrants and represents to You that:
- The Service is provided in accordance with the Applicable Law;
- The Intellectual Property Rights (including without limitation all copyright, trademarks, design rights, Service marks, whether registered or unregistered) in any material provided by CM as part of the Site and/or the Services do not, to the best of CM knowledge, infringe any Third Party Intellectual Property Rights when used in accordance with this Agreement;
- CM will only use Your Data in accordance with this Agreement, including its annexes; and
- CM represents and warrants to You that it has all necessary rights and authority to enter into the Principal Agreement and any Addendum to perform the Services.
11.1. In no event shall CM, its owners, suppliers or any of their respective owners, directors, employees, contractors and/or agents be liable to You or any Third Party for any direct, indirect, special, exemplary, punitive or other consequential or incidental damages (including but not limited to any lost profits or revenue, interruption, loss of programs or other information, or any other pecuniary loss) arising directly or indirectly from (i) Your use of or access to the Site and/or Services, or any content, products or services distributed on or provided through the Site and/or Services, (ii) for any failure or interruption of the Site and/or Services; whether arising out of errors, omissions, loss of data, defects, viruses, interruptions or delays in operations or transmission or any other cause, whether based on warranty, contract, tort (including negligence) or any other legal theory, even if CM or its suppliers have been expressly advised of the possibility of such damages.
11.2. In any event, and without prejudice to the above, CM’s total maximum aggregate liability under this Agreement, including any annexes herewith, or in respect of the use or exploitation of any part or all of the Site or Services, the content or user material in any manner whatsoever shall not exceed Your monthly subscription fee.
12. Data Retention
12.1. CM commits to securely storing data on behalf of Our customers in accordance with their Subscription Plan and timeframes corresponding to each Subscription Plan. All data exceeding the stated timeframe will be routinely and permanently deleted from Our systems.
12.2. You expressly acknowledge and accept that CM does not provide any archiving or backup services, and may delete Data that is no longer in use and exceeds the timeframes stipulated in the applicable Subscription Plan. CM expressly disclaims all obligations with respect to archiving, storage and backup of Data.
13. Assumption of Risk
13.1. You use the Internet solely at Your own risk and subject to all applicable local, state, national, and international laws and regulations. While CM has endeavoured to create secure and reliable Site and Services, CM is not responsible for the security of any information outside of its control. CM shall have no liability for interruptions or omissions in Internet, network or hosting services. You assume the sole and complete risk of using the Site and the Services.
13.2. You hereby declare that You are aware that as a result of the global nature of the Internet and World Wide Web, the Site and/or Services are available online and may generally be accessible from anywhere in the world at any time. Access to the Site and/or Services may not be legal by certain persons or in certain jurisdictions. Access to and use of the Site and/or the Services are at Your own risk and You shall be responsible for compliance with the laws of Your jurisdiction and any jurisdiction in respect of which You use the Site and/or Services. You agree to comply with all local rules regarding online conduct and acceptable content in any generated content.
14.1. The Site and/or Services may include links to certain websites, materials, or content developed by Third Parties. CM has not reviewed all of the sites linked to its Site and/or Services and shall not be responsible for the contents of any such linked material. The inclusion of any link does not imply endorsement by CM of such material and CM shall not be held liable in respect of any links contained therein. Use of any such linked material shall be at Your own risk. CM reserves the right, in its sole and absolute discretion, to discontinue links to any other material at any time and for any reason.
15.1. Unless You specifically withdraw Your consent to this clause by sending an email at [email protected], You hereby acknowledge and consent to CM making use of any of Your marks, logos and trade names to identify You as CM’s customer on CM’s Site and/or Services, in addition to any other marketing material.
16. Enforcing Security
16.1. Actual or attempted unauthorized use of any of the Site and/or Services may result in the institution by Us of criminal and/or civil prosecution. For Your protection, we reserve the right to view, monitor, and record activity on the Site and/or Services without notice or further permission from You, to the fullest extent permitted by the Applicable Law, and only in accordance with this Agreement. This right extends to Our review of tracking activity and details pertaining to claimed violations by You. Any information obtained by monitoring, reviewing, or recording is subject to review by law enforcement organizations in connection with the investigation or prosecution of possible criminal activity on any of the Site and/or Services.
17.1. If any provision of this Agreement is found, by any court having competent jurisdiction, to be unenforceable, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect to the maximum extent possible.
18.1. Our Indemnification Obligations: We agree to indemnify, defend, and hold You harmless from and against any claims brought by Third Parties arising from or relating to Our violation of a Third Party’s Intellectual Property Rights directly arising out of Your use of the Services in accordance with the terms of this Agreement. Notwithstanding the foregoing, We shall have no indemnification obligation with respect to any claims (i) arising out of or related to Your Data (ii) to Your violation of any applicable laws; (iii) Your violation, whether alleged or actual, of any Third Party rights, including but not limited to data protection and privacy rights.
18.2. Your Indemnification Obligations: You shall indemnify, hold harmless and defend CM, including any of its subsidiaries, officers, owners, partners, directors, employees, contractors, agents, subsidiaries, shareholders, licensors, suppliers and other partners (“CM Indemnified Parties”), to the maximum extent permitted, in full and in perpetuity, and at Your own cost, from any third party liabilities, claims, costs, expenses, obligations, losses or damages, excluding indirect damages and consequential loss that may arise from (i) Your unauthorised use of any material obtained through the Site and Services; (ii) Your use and access to the Site and Services which is not in accordance with this Agreement; and (iv) Your violation, whether alleged or actual, of any Third Party rights.
18.3. Indemnification Procedures: The parties’ respective indemnification obligations above are conditioned on: (a) the indemnified parties giving the indemnifying party prompt written notice of the claim, except that the failure to provide prompt notice will only limit the indemnification obligations to the extent the indemnifying party is prejudiced by the delay or failure; (b) the indemnifying party has full and complete control over the defense and settlement of the claim; (c) the relevant indemnified parties providing assistance in connection with the defense and settlement of the claim (as long as the settlement does not include any payment of any amounts by or any admissions of liability, whether civil or criminal, on the part of any of the indemnified parties), as the indemnifying party may reasonably request; and (d) the indemnified parties’ compliance with any settlement or court order made in connection with the claim. The indemnifying party will indemnify the indemnified parties against: (i) all damages, costs, and attorneys’ fees finally awarded against any of them with respect to any claim; (ii) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by any of them in connection with the defense of the claim (other than attorneys’ fees and costs incurred without the indemnifying party’s consent after it has accepted defense of such claim); and (iii) all amounts that the indemnifying party agreed to pay to any third party in settlement of any claims arising under this Clause and settled by the indemnifying party or with its approval.
18.4. Infringement Remedy: If You are enjoined or otherwise prohibited from using any of the Services or a portion thereof based on a Third Party Intellectual Property infringement claim covered by Our indemnification obligations under this Clause above, then We will, at Our sole expense and option, either: (a) obtain for You the right to use the allegedly infringing portions of the Services; (b) modify the allegedly infringing portions of the Services so as to render them non-infringing without substantially diminishing or impairing their functionality; or (c) replace the allegedly infringing portions of the Services with non-infringing items of substantially similar functionality. If We determine that the foregoing remedies are not commercially reasonable, then We will promptly provide a prorated refund to You for any prepaid fees received by Us under this Agreement that correspond to the unused portion of the Term. The remedy set out in this Clause is Your sole and exclusive remedy for any actual or alleged infringement by Us of any Third Party Intellectual Property Rights in the event that You are enjoined or otherwise prohibited from using any of the Services or a portion thereof based on a claim covered by Our indemnification obligations under this Clause.
18.5. You shall be solely responsible with respect to defending any such claims, and for the payment of losses, costs, damages or expenses resulting from the foregoing to both a Third Party and to CM in connection therewith. You shall not, without the prior express written approval of CM, attempt to, or settle, dispose or enter into any proposed settlement or resolution of any claim (whether having been finally adjudicated or otherwise) brought against You, if such settlement or resolution results in any obligation or liability for CM. Provided that this clause shall survive termination of this Agreement, howsoever occurred, and termination of Your access and/or use of the Site or Services.
19. Governing Law and Dispute Resolution
19.1. This Agreement is governed by, and construed in accordance with the laws of The Netherlands. The parties agree that any dispute or claim arising out of or in connection with this Agreement or its subject-matter, shall be subject to the exclusive jurisdiction of the Dutch Arbitration Centre in accordance with the Dutch Arbitration Act (Dutch Code of Civil Procedure “DCCP” — Articles 1020-1076 DCCP of the Laws of the Netherlands) and the arbitration rules of the Dutch Arbitration Centre in force at the time of the dispute. CM shall retain the right, at its option and for its exclusive benefit, to institute proceedings regarding or relating to Your use of the Site and Services in the Courts of law of the country in which You reside.
20. Waiver of Jury Trial
20.1. You and CM waive their rights (if applicable) to a trial by jury relating to all claims and causes of action (including counterclaims) related to or arising out of this Agreement. This waiver shall also apply to any subsequent amendments or modifications to this Agreement.
21. No Class Actions
21.1. All claims between the parties, including parent companies and subsidiaries mentioned in clauses 2.5 and 2.6 above, related to this Agreement will be litigated individually and you will not consolidate or seek class treatment for any claim with respect to the Services.
22. Waiver of Compliance of this Agreement
22.1. Our failure to enforce, at any time, any of the provisions, conditions or requirements of the Agreement, or the failure to require, at any time, performance by You of any of the provisions of the Agreement, shall in no way waive Your obligation to comply with any of the provisions of the Agreement or Our ability to enforce each and every such provision as written.
22.2. Any and all waivers by either party hereto of any provision, condition or requirement of the Agreement will only be effective against the other Party if it is in writing and signed by an authorized officer of that Party, and any such written waiver will not constitute a waiver of any future obligation to comply with such provision, condition or requirement.
23. Assignment and Delegation
23.1. Subject to the obtaining of Our prior consent in writing, You may assign or delegate any of the rights or obligations arising under the Agreement. Any purported assignment and delegation shall be ineffective if Our prior written consent has not been obtained. We may freely assign or delegate all rights and obligations under the Agreement, fully or partially without notice to You.
24. Relationship of the Parties
24.1. Subject to the contrary set forth herein, nothing contained in these Terms shall be interpreted or construed to create a partnership, agency, single employer, joint employer or any other type of employment relationship between the parties hereto, or to impose liability attributable to such relationship upon either party. Neither party will have any right, power or authority to enter into any agreement on behalf of, to incur any obligation or liability of, or to otherwise bind the other party.”
25.1. Rights and obligations under this Agreement which by their nature are intended to survive termination, including without limitation the indemnification and liability limitations provisions set forth in this Agreement, shall remain in full effect after termination or expiration of the Agreement.
26. Privacy / Data Protection
26.2. By accepting the terms contained within this Agreement, including its annexes, You acknowledge represent and warrant that You shall comply with all applicable laws, including but not limited to data protection and privacy laws and that you shall indemnify CM Indemnified Parties against any Third Party claims related to violation of such applicable laws in the use of the Service.
The materials contained on the cm site and services are provided “as is”. Other than for the express warranties contained in clause 10 of this agreement, CM hereby makes no further warranties, whether expressed or implied, and hereby disclaims and negates all other warranties, including without limitation, implied warranties or conditions of merchantability, fitness for a particular purpose, or other violation of rights infringement. Further, CM does not warrant or make any representations concerning the accuracy, likely results, or reliability of the use of the materials on its site or services, or otherwise relating to such materials or on any third party sites or services linked to within the site or services or that the services will be error-free or provide certain results. Please see our Disclaimer as well.
28. Earnings & Testimonials
28.1. Every effort has been made to accurately represent this product and it’s potential. You agree and understand there is no guarantee that you will earn any money using the Service, techniques and ideas on Our Site. Examples on Our Site are not to be interpreted as a promise or guarantee of earnings. Earning potential is entirely dependent on the person using our product, their ideas and techniques. We do not purport this as a “get rich scheme”, any claims made of actual earnings or examples of actual results are not typical. Your level of success in attaining the results claimed in our materials depends on the time you devote to the program, ideas and techniques mentioned, your finances, knowledge and various skills. Since these factors differ according to individuals, we cannot guarantee your success or income level. Nor are we responsible for any of your actions.
28.2. Our product and our website may contain information that includes or is based upon forward-looking statements within the meaning of the securities litigation reform act of 1995. Forward-looking statements give our expectations or forecasts of future events. You can identify these statements by the fact that they do not relate strictly to historical or current facts. They use words such as “anticipate,” “estimate,” “expect,” “project,” “intend,” “plan,” “believe,” and other words and terms of similar meaning in connection with a description of potential earnings or financial performance. Any and all forward looking statements here or on any of our sales material are intended to express our opinion of earnings potential.
28.3. Many factors will be important in determining your actual results and no guarantees are made that you will achieve results similar to ours or anybody else’s, in fact no guarantees are made that you will achieve any results from our ideas and techniques in our material.As with any business, your results may vary, and will be based on your background, dedication, desire and motivation. We make no guarantees regarding the level of success you may experience. Any testimonials and examples used are exceptional results, which do not apply to the average purchaser, and are not intended to represent or guarantee that anyone will achieve the same or similar results. You may also experience unknown or unforeseeable risks which can reduce results. We are not responsible for your actions.
29. Refund Policy
29.1. Since CM is offering non-tangible irrevocable goods, a digital product, a software, CM does not issue refunds once the order is accomplished, completed and the product is sent. As a customer, you are responsible for understanding this upon purchasing any item on our site. By purchasing, and getting access to, CM (the “Service”), you agree and understand that you are bound, and only bound, by our 30 day money-back guarantee. Meaning, you as a customer can get a full refund on your initial purchase (to clarify, the first purchase of a particular item only) if the request has been made within 30 days of the initial sale. You agree that if the request is made outside of this period we don’t issue a refund. You agree that any payments, whether one-time or subscription based, outside of this 30-day period are non-refundable. However, you have the right to cancel subscription at any time, you’re not locked into any contract, and there are no long-term commitments.
29.2. We realize that exceptional circumstance can take place with regard to the character of the product we supply. If any of the reasons below apply to you, you may discontinue with the Service. This part of the Refund Policy only applies to initial purchases of our product(s). Meaning, you as a customer can get a full refund on your initial purchase (to clarify, the first purchase of a particular item only) if the request has been made within 30 days of the initial sale. You agree that any payments, whether one-time or subscription based, outside of this initial 30-day period are non-refundable;
- non-delivery of the product: due to mailing issues of your e-mail provider or our own mail server you might not receive a delivery email from us. In this case we recommend contacting us over at our Support Desk for assistance. Claims for non-delivery must be submitted in writing within 30 days from the order placing date. Otherwise the product will be considered received and downloaded. If you reached out to us within 30 days of the order placing date and we fail to give you access within 30 days of the order placing date you receive a refund;
- download and unzipping issues: it may happen so that you are having problems while downloading the product or its unzipping. Claims regarding such issues must be submitted to our Support Desk. If you do not properly contact us during this 30 day period, you agree that we may construe silence as a successful download of the product with no further right of redress or refund for a “download issue” reason. Failure to receive assistance for downloading or unzipping by CM within 30 days will result in a refund;
- major defects: although all the products are thoroughly tested before release, unexpected errors may occur. Such issues must be submitted for our Support Team’s approval. We keep the right to rectify the error or defect within 90 days of making CM aware of the error. If any deficiency is approved and we fail to correct it within 90 days from the date of the initial complaint letter, support ticket, or any other notification provided by a Customer, the refund will be issued to the customer in full without any compensations or reimbursements. OR, at customer’s choice, replacement of the product of the same or around the same value can be offered; Please be advised that temporary access to your server can be requested by our technicians in order to identify and fix the possible issues with our Products. Failure to provide such access in a timely manner may result in a delayed resolution of the issue. Refusal to provide details, hampering our probable solution, will result in your inability to qualify for a refund.
- product not-as-described: such issues should be reported to our Support Desk. Clear evidence must be provided proving that the purchased product is ‘not as it is described’ on the website. Complaints which are based merely on the customer’s false expectations, ‘buyers remorse’ or wishes are not honoured.
29.3. Please note that we do not carry any responsibility and therefore we do not satisfy any refund/return/exchange requests based on incompatibility of our products with some third-party software (plug-ins, add-ons, modules, search engines, scripts, extensions etc) other than those which are specified as compatible in a description available on the preview page of each product. We don’t guarantee that our products are fully compatible with any third-party programs and we do not provide support for third-party applications.
30. Affiliate Program Terms
30.1. You are NOT permitted to conduct e-mail promotions in a 3rd party system – all email contacts MUST be your OWN opt-in email list. This means; you cannot buy solo ads, use safe lists, use spam or anything similar. Commission(s) made through this may be nullified, voided, or held back.
30.2. You must NOT run “negative” PPC or iframe domain campaigns such as “Product name / author name scam” or any other method to attract controversial click through rates that an ordinary person would deem to portray a negative view of the product. This creates a bad image for our company, brands, and the individuals featured in the products and you will be terminated from the program instantly. Commission(s) made through this may be nullified, voided, or held back.
30.3. You cannot earn commission on your own purchase. Any ‘self’ purchase commission(s) may be nullified, voided, or held back.
30.4. iFrames, review sites and cloaked domains are permitted as long as they do not contain offensive or negative domain URLs.
30.5. Affiliate payments will be set as delayed for all affiliates we don’t have an existing business relationship with. For all other affiliates, basically if we ‘know’ you, the commissions will be set to instant. All affiliates need to describe briefly how you will be promoting.
30.6. We run a legitimate business, which means that we always correctly illustrate and represent our products and their features and benefits to the customer. Please make sure you do the same. Anyone found using misleading claims, inaccurate information or false testimonials (or anything that does not comply with FTC guidelines) will have their affiliate account revoked immediately. Any commission(s) made while not abiding by this may be nullified, voided, or held back.
YOU HEREBY ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTOOD IT, AND AGREE TO BE BOUND BY ITS TERMS.
Attention: Clever Messenger
Marketing Released B.V.
Westerdijk 4-0602, 3513EW
Utrecht, The Netherlands