Terms of Service

General Terms and Conditions of Pocket Agency GmbH

About us

Keaz is a digital messenger application offered by Pocket Agency GmbH, located at Hortensienstr. 9, 12203 Berlin (hereinafter referred to as 'Pocket Agency'). Keaz provides companies (hereinafter referred to as 'Users') with a cloud-based tool that allows Users to collect and manage contacts of their customers and prospects (hereinafter referred to as 'Customers'). Additionally, Keaz offers numerous opportunities for targeted marketing communication via messenger services, particularly WhatsApp.

§ 1 Scope of Application

These General Terms and Conditions (hereinafter referred to as "GTC") apply to all contracts with Pocket Agency and its users, even if not explicitly referred to. Contrary or deviating terms and conditions of users shall only apply to the extent that Pocket Agency expressly and in writing agrees to their application. This also applies if Pocket Agency does not expressly object to their inclusion. Oral collateral agreements do not exist. Pocket Agency's offer is exclusively directed at commercial or self-employed users (entrepreneurs within the meaning of § 14 BGB) and not at consumers within the meaning of § 13 BGB. By using our services or ordering one of our offers, the user confirms that they are an entrepreneur. The use of Keaz by consumers is expressly prohibited. Individually concluded agreements between the user and Pocket Agency become part of the contract between the user and Pocket Agency and take precedence over the provisions of these GTC in case of contradiction.

§ 2 Services

Keaz provides the user with the ability to manage customer communication via messenger services (especially WhatsApp) and customer contacts centrally through an intuitive dashboard. With Keaz, business accounts on social media platforms, such as the Meta Business Manager account, can also be linked. Keaz includes features such as a live chat function, automated communication templates, and the ability to send messages to multiple customers simultaneously, for example, for sending newsletters, promotions, or important updates. Additional services, such as consulting services or technical support services (excluding those legally or contractually required to remedy defects) ("Additional Services"), may be offered by Pocket Agency at its discretion and are subject to separate compensation, billed to the user based on the effort involved. The user will be informed of the amount of compensation before engaging these services. Pocket Agency does not provide any warranty for Additional Services provided free of charge. All products and services that the user orders from Pocket Agency as part of the designated ordering process according to § 5, as well as all Additional Services, collectively constitute the "Services" provided by Pocket Agency. Pocket Agency provides Keaz to the user as a Software-as-a-Service solution. This means that Pocket Agency operates Keaz in data centers of its specialized service providers and grants the user the opportunity to access and use Keaz as intended. The functionalities and other characteristics of Keaz are described by Pocket Agency and in any additional documentation. The provision of Keaz occurs at the delivery point. The delivery point is the interface between Pocket Agency's data center and the network through which the user accesses Keaz, such as the internet or a VPN connection ("Delivery Point").

§ 3 Changes to Service

From time to time, Pocket Agency may change features and functions of individual services ("Service Changes"). If Pocket Agency makes substantial changes, Pocket Agency will endeavor to inform the user in advance of such changes, for example, by publishing an announcement on the company website or by sending a notification within the application or via email. Pocket Agency will only make Service Changes to a reasonable extent. Service Changes are particularly reasonable if they are necessary for important reasons and if the originally agreed-upon service characteristics continue to be essentially fulfilled. Regardless of this, Pocket Agency is entitled at any time to change or supplement its range of services or parts thereof ("Change of Service Scope"). Pocket Agency will announce planned changes to the scope of services to the user at least six weeks before they become effective by publishing an announcement on the company website or by sending a notification within the application or via email. The user can object to the Change of Service Scope within a period of two weeks from receipt of the notification of change or supplement in writing or by email. If the user does not object within this period, the changes to the scope of services become part of the contract. Pocket Agency will inform the user of these consequences in the notification of change or supplement. If the user objects to the Change of Service Scope within the deadline, Pocket Agency may also terminate the contract on the day the changes to the scope of services are intended to take effect.

§ 4 Third Party Services

To utilize all functions of Keaz, the user's connection to the messenger services, social media accounts, or other platforms utilized by them (hereinafter "Third Party Services") is necessary. The user is responsible for entering into all necessary contracts for the use of Third Party Services. Pocket Agency may, at its discretion, assist the user in creating and managing user accounts. The contracts are entered into directly between the user and the provider of the respective Third Party Service. Pocket Agency is not a party to these agreements and has no influence over the technical and contractual terms or the scope of services offered by third parties. Providers of Third Party Services may change or terminate the scope of their services at any time. In particular, if users violate the terms of service or usage conditions of Third Party Service providers, this may lead to the termination of the provider's services. Limitations or discontinuation of functionalities within Third Party Services may also affect the functionality of Keaz. Pocket Agency is not liable to the user for any limitations or failures of Keaz resulting from changes or termination of services within a Third Party Service. To communicate via WhatsApp, integration with the WhatsApp Business API (hereinafter "WBA") is required, particularly. Integration with the WBA is facilitated through a business partner of Pocket Agency. Users must enter into a contract for the use of the WBA with Pocket Agency's business partner on their own behalf. Pocket Agency may assist in the creation and management of user accounts in this regard.

§ 5 Contract Conclusion

To commission and utilize Keaz, the user must first create a user account. The user assures that (i) the individual creating the user account is legally authorized to represent the user and (ii) all data provided during registration is correct and complete. Any subsequent changes to the data (especially contact, address, and payment details) must be promptly updated by the user within the user account. The user can initially select a suite without obligation and correct their entries before submitting a binding order at any time by using the correction aids provided during the ordering process. The ordering process can be canceled at any time, for example, by closing the browser until the completion of the last ordering step. By clicking the "Place order" button, the user submits a legally binding contract offer. However, the order can only be placed if the user agrees to the application of these GTC by clicking the corresponding checkbox and confirms that they are a business entity within the meaning of § 14 BGB. After submitting the order, the customer will receive a confirmation via email, which will reiterate the order and present the current GTC, which can be printed out. Upon successful order placement, the user will receive a link to the "Stripe" online payment service. Upon completion of the payment, access to the commissioned functions of Keaz will be activated. This constitutes Pocket Agency's acceptance of the contract. The language available for contract conclusion is German. If these GTC are also available in other languages for access, the wording of the German version remains binding.

§ 6 Compensation and Payment Terms

The amount of compensation for the services booked by the user is determined by the respective agreement. All prices are stated in Euro and are exclusive of the applicable statutory value-added tax at the time of contract conclusion. The costs for the basic fee of a suite become due immediately upon the first order. Invoices for all subsequent amounts will be issued in electronic form (e.g., via email), unless otherwise agreed upon.

§ 7 Set-off prohibition and right of retention

The user is not entitled to set off against claims of Pocket Agency unless the user's counterclaims have been legally established or are undisputed. The user may only exercise a right of retention if their counterclaim arises from the same contract.

§ 8 Provision of the Platform

As Keaz is still in the development stage, Pocket Agency does not warrant uninterrupted and faultless operation or constant and unrestricted availability of all functions. However, Pocket Agency continuously works on improving the service quality and continuity. Especially during planned maintenance work by Pocket Agency or their hosting providers, Keaz services may be temporarily unavailable. If possible, planned maintenance work will not be carried out on business days. Pocket Agency endeavors to inform customers about planned maintenance work as soon as possible. Pocket Agency also reserves the right to perform unscheduled maintenance work at any time if necessary for security reasons or other important reasons that require immediate maintenance or deactivation of the service. Pocket Agency is not liable for damages resulting from an outage due to scheduled or necessary unscheduled maintenance. If Keaz exhibits errors, the user must promptly notify Pocket Agency in writing, providing a detailed description of the issue and all information useful for troubleshooting ("Error Reports"). Pocket Agency will respond as quickly as possible to proper error reports from the user with a qualified feedback on the causes of the error and the measures taken and/or to be taken for error correction. An error exists if contractually agreed functionalities of Keaz are not available or only available with impairments and the cause lies within Pocket Agency's responsibility.

§ 9 Usage Rights

Pocket Agency grants the customer a limited, revocable, non-exclusive, and non-transferable right to use Keaz for its own business purposes for the duration of the contract. Usage is limited to the number of individuals specified in the contract who may use the service simultaneously.

§ 10 Additional Services

Additional services, especially consulting services or technical support services (excluding those legally or contractually required to remedy defects) ("Additional Services"), must be separately commissioned and compensated based on effort, billed to the user. The user will be informed of the compensation amount before commissioning these services. Pocket Agency does not provide any warranty for additional services provided free of charge.

§ 11 User Responsibilities

The user grants Pocket Agency a non-exclusive right for the duration of the contract to use the content uploaded by the user in Keaz, especially communication content (including photographs, videos, graphics, documents, logos, texts, and other files ("Content")), to the extent necessary for the fulfillment of the contract. This includes the right to reproduce, edit, and transmit them as necessary to fulfill the contract. The user assures that they have all necessary rights to grant Pocket Agency these rights. The user may not store or transmit unlawful content through Keaz. Unlawful content includes, but is not limited to, content (i) that the user is not authorized to use, (ii) that infringes the rights of third parties (especially trademark rights, copyright, and other intellectual property rights, as well as personality rights), or (iii) that has an unlawful, glorifying violence, racist, discriminatory, or pornographic content. The user is responsible for ensuring that all legal requirements for communication with their customers are met. This includes obtaining necessary consents and fulfilling all information obligations (e.g., under the General Data Protection Regulation ("GDPR")). Pocket Agency does not review the content uploaded by the user or the communication with customers for legality. When sending commercial messages, such as newsletters, via the WBA, the user will exclusively use templates approved by Meta according to the terms of use and policies of the WBA. The use of unauthorized templates may result in the permanent blocking of the WhatsApp number used. It is the user's responsibility to create backup copies of user content. For the use of Keaz, the user needs a sufficiently dimensioned internet connection to access the delivery point. Further system requirements for the use of Keaz will be communicated to the user in the form of the version of the service description valid at the time of order placement. The user is solely responsible for meeting the system requirements. Furthermore, the user needs a phone number associated with their business and a verified Meta Business Account to use Keaz. Pocket Agency offers the user assistance in establishing these requirements as part of any separately commissioned additional services.

§ 12 Indemnification

The user shall indemnify Pocket Agency upon first request from any claims asserted by third parties due to (i) the use of the user's content by Pocket Agency or the user, and (ii) the use of Keaz by the user against Pocket Agency, provided that these claims do not arise from intentional or grossly negligent conduct by Pocket Agency. This includes reasonable legal defense costs.

§ 13 Warranty

Pocket Agency will maintain the software in a condition suitable for contractual use for the duration of the contract. The user will provide reasonable cooperation, especially by promptly reporting any errors and setting appropriate deadlines for remediation, so that Pocket Agency can fulfill its obligations to maintain and operate Keaz. A functional impairment of Keaz resulting from hardware defects, changed environmental conditions, user errors, or similar circumstances within the user's responsibility is not considered a defect. The user is only entitled to claims for defect rectification if reported defects can be reproduced or demonstrated through machine-generated outputs. The strict liability for initial defects according to § 536a of the German Civil Code (BGB) is excluded. Pocket Agency will remedy defects at its discretion either by free rectification or replacement delivery.

§ 14 Liability

Claims by the user for damages are excluded. This exclusion does not apply to claims for damages by the user arising from injury to life, body, health, or from the breach of material contractual obligations (cardinal obligations) as well as liability for other damages resulting from intentional or grossly negligent breach of duty by Pocket Agency, its legal representatives, or vicarious agents. Material contractual obligations are those whose fulfillment is necessary to achieve the purpose of the contract. In the event of a breach of material contractual obligations, Pocket Agency is only liable for typical, foreseeable damages if caused by simple negligence, unless it concerns claims for damages by the customer arising from injury to life, body, or health. The aforementioned limitations of liability also apply in favor of the legal representatives and vicarious agents of Pocket Agency if claims are asserted directly against them. The aforementioned limitations of liability do not apply if Pocket Agency has fraudulently concealed a defect or has assumed a guarantee for the quality of the services. The same applies if Pocket Agency and the user have made an agreement regarding the quality of the services. The provisions of the Product Liability Act remain unaffected.

§ 15 Deletion of Content and Blocking of Access

Pocket Agency is entitled to delete content that violates these terms and conditions (especially § 11) if Pocket Agency becomes aware of such content and the user fails to delete it within a reasonable period after being requested to do so. Pocket Agency is also entitled to temporarily or permanently block the user's access to Keaz in whole or in part at its own discretion if there are specific indications that the user is or has violated these terms and conditions and/or applicable law, or if Pocket Agency has another legitimate interest in blocking access. When deciding on a block, Pocket Agency will appropriately consider the legitimate interests of the user. If the user repeatedly violates these terms and conditions despite being warned, Pocket Agency reserves the right to permanently block access to Keaz and terminate the contract with the user without notice. In the event of access being blocked, Pocket Agency will notify the user via email about the blocking and whether it is permanent. Users who are permanently blocked are also permanently excluded from opening a new user account. If the block is temporary, Pocket Agency will inform the user via email about the reactivation of their access.

§ 16 Term of Contract and Termination

Unless otherwise agreed, the initial term of the contract is [number] months. The term automatically extends for successive periods of 12 months ("Renewal Period") unless the contract is terminated with a notice period of two weeks prior to the end of the initial term or the Renewal Period. The parties' right to terminate the contract with immediate effect for good cause remains unaffected. A significant reason for Pocket Agency to terminate the contract with immediate effect includes, but is not limited to, the following cases: (i) the user becomes insolvent or over-indebted, (ii) the user is in arrears with the payment of the agreed remuneration or a significant part thereof for two consecutive months, or is in arrears with the payment of the ongoing remuneration in an amount equal to the ongoing remuneration for two months for a period exceeding two months, (iii) the user's access to Keaz has been permanently blocked in accordance with § 15 of these terms and conditions. Terminations must be in writing, with electronic transmission by email being sufficient. Upon termination of this contract, the user's access to Keaz will be blocked, and any content uploaded by the user will be deleted, unless it is subject to legal retention obligations of Pocket Agency.

§ 17 Data Protection

If Pocket Agency processes personal data of the user's customers to provide the services, Pocket Agency acts as a data processor within the meaning of Article 28 GDPR. The parties shall conclude a data processing agreement pursuant to Article 28 (3) GDPR. For the execution of the contract concluded between Pocket Agency and the user, the processing of personal data of the user or persons employed by the user is also necessary. Further information about the processing of this data can be found in the privacy policy for Keaz users.

§ 18 Confidentiality

Confidential information, as defined in this agreement, includes all information (whether written, electronic, oral, digitally embodied, or in any other form) disclosed by the parties or any entity affiliated with a party within the meaning of §§ 15 et seq. AktG for the purpose of carrying out this agreement. Confidential information includes, but is not limited to: Trade secrets, products, manufacturing processes, know-how, inventions, business relationships, business strategies, business plans, financial planning, personnel matters, digitally embodied information (data); Any documents and information from Pocket Agency that are subject to technical and organizational confidentiality measures and are marked as confidential or are to be treated as confidential based on the nature of the information or the circumstances of the disclosure; The existence and content of this agreement. The receiving party will treat all confidential information of the disclosing party as strictly confidential, to the same extent and with the same care as it protects its own confidential information. The receiving party will not disclose any confidential information of the disclosing party to any persons other than its personnel or representatives or its affiliated companies, whose access is necessary to exercise its rights and obligations under this agreement, and who are subject to confidentiality obligations at least as stringent as those set forth in this agreement. The user will not disclose the agreement or the pricing to third parties. The receiving party will promptly return or destroy all confidential information upon request by the disclosing party. The limitations on the use or disclosure of confidential information do not apply to information that: Was known to the public prior to the disclosure or transfer by the disclosing party or becomes known to the public at a later date without breaching a confidentiality obligation; Was already known to the receiving party prior to the disclosure by the disclosing party and without breaching a confidentiality obligation, as evidenced; Was independently developed by the receiving party without the use or reference to confidential information from the disclosing party; or Is provided or made accessible to the receiving party by a third party entitled to do so without breaching a confidentiality obligation.

§ 19 Changes to these terms and conditions

Pocket Agency reserves the right to supplement or amend these terms and conditions with reasonable notice. The user may object to the amendment within a period of two weeks after receiving notification of the change, in writing or via email. If the user does not object within this period, the changes and additions will become part of the contract. Pocket Agency will inform the user of these consequences in the notification of the amendment or addition. If the user objects to the amendment or addition within the specified period, Pocket Agency may terminate the contract with a notice period of two weeks.

§ 20 Final provisions

The transfer of rights and obligations from these GTC by one party to third parties requires the prior written consent of the other party. The transferability of monetary claims remains unaffected (§ 354a HGB). If individual provisions of these GTC are ineffective, the validity of the GTC as a whole remains unaffected. The invalid clause is to be replaced by a provision that comes closest in economic terms to what the parties intended with the invalid agreement in a legally permissible manner. These GTC and all agreements concluded between the user and Pocket Agency are subject to the law of the Federal Republic of Germany, excluding the UN Sales Convention (CISG). If the user is a merchant within the meaning of the German Commercial Code, the parties agree, if legally permissible, to the exclusive jurisdiction of the court at Pocket Agency's registered office for all disputes arising from or in connection with this contract. Pocket Agency, however, reserves the right to appeal to any other court that may otherwise be competent.

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