AGB

1. General Provisions and Scope of Application

1.1

SuperX GmbH, Prenzlauer Allee 242–247, 10405 Berlin (hereinafter referred to as “SuperX”), is the provider of the Platform “Superchat”, which enables businesses (hereinafter referred to as “Users”) to communicate with their customers and other contacts (hereinafter referred to as “Customers”) by means of a web interface via various communication channels (such as WhatsApp, Facebook Messenger, Google, email, SMS, Telegram) and to manage Customer communication centrally (hereinafter referred to as the “Platform”).

1.2

These General Terms and Conditions (hereinafter referred to as the “Terms and Conditions of Use”) apply to the use of the Platform.

1.3

The offer of SuperX is directed exclusively at Users acting in the course of business and not at consumers. A consumer within the meaning of these Terms and Conditions of Use is any natural person who concludes a legal transaction for a purpose that can predominantly neither be attributed to their commercial nor their independent professional activity. By making use of the services, the User declares that they are an entrepreneur and not a consumer. The use of the Platform by consumers is not permitted.

1.4

Agreements concerning specific services or areas of service shall form part of the contract with the Users and shall take precedence in the event of any conflict with these Terms and Conditions of Use.

1.5

The application of the User’s own general terms and conditions is excluded. Deviating, conflicting, or supplementary general terms and conditions of the User shall only become part of the contract if and to the extent that SuperX has expressly agreed to their validity in writing. This requirement of express consent applies in all cases, including, for example, where SuperX, with knowledge of the User’s general terms and conditions, accepts the User’s payments without reservation or performs the service without reservation.

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

2.1

Through the Platform, the Customer has the possibility to centrally manage and control communication with end customers via various communication channels (email, SMS, and different messenger platforms such as WhatsApp). The User is able, through the Platform, to send content either as individual messages or collectively within the framework of a campaign, in digital form, to their Customers 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 commencement date of ongoing services, the remuneration, and any further scope of services shall be determined by the order summary and the contract confirmation sent by SuperX.

2.3

SuperX provides the Platform to the User as a technical infrastructure.

2.4

SuperX makes the Platform available on servers for use at the access point of SuperX’s data centre (“point of service delivery”). To use the Platform, it is necessary that the User has their own access to the internet and accesses the Platform through this connection at the point of service delivery.

2.5

For the provision of its services, SuperX uses the connection of the User to the messenger platforms and other communication services used by the User (hereinafter referred to as “Third-Party Systems”). The contracts governing the use of Third-Party Systems are concluded independently between the User and the provider of the respective Third-Party System. SuperX has no influence on the technical or contractual design, nor on the scope of the services provided by third parties. The contractual partners of the connected Third-Party Systems may change or discontinue their scope of services at any time and may thereby also prevent the services of SuperX. SuperX shall not be liable to the User for any service limitations caused by changes to the Third-Party Systems.

2.6

Communication via WhatsApp takes place through an interface (“API”) of the WhatsApp Business Platform. Access to the WhatsApp Business Platform is provided to the User by SuperX to the agreed extent.

2.7

The Platform provides, to the extent agreed in each case, access to various functions based on large language models (“Large Language Models”, “LLMs”), such as chatbots, virtual assistants, automated response functions, or other AI-supported automations (collectively referred to as “AI Features”). The AI Features can be deactivated at any time by the administrator of the respective User.

SuperX uses LLMs operated by one or more external providers (“LLM Providers”) for the provision of the AI Features. In addition to the model of OpenAI LLC (“OpenAI”), which is used via an API, SuperX reserves the right to employ further LLM Providers in the future and to change, expand, or replace the models or providers used at any time, provided that the contractually agreed service is not materially impaired thereby.

The User’s requests (“Prompt/s”) are transmitted through the Platform to the respective LLM Provider; the responses generated by the LLM Provider (“Output/s”) are then transmitted back to the User. Where necessary, the provision of the AI Features may also involve the transmission and processing of content or context provided by the User (including conversation histories or attachments) by the LLM Providers. Such processing takes place solely for the purpose of providing the AI Features and in compliance with the data protection provisions set out in Clause 15.

The technical logging and traceability of the AI Features are ensured via the service LangSmith, which records all execution processes (“Traces”) and is hosted within the EU. In addition, SuperX operates its own LangGraph server as a framework component for the control and orchestration of AI workflows.

The use of the AI Features is based on the credit system described in Clauses 10.1 to 10.3. Credits are virtual units without any intrinsic monetary value and entitle the User solely to use the AI Features within the respective booked scope.

SuperX has no influence on the technical or substantive design of the services provided by the respective LLM Providers. The availability, specific functionality, or factual accuracy of the Outputs are expressly not part of SuperX’s service obligations. Therefore, changes or restrictions in the services provided by the LLM Providers may affect SuperX’s AI Features without constituting a defect in SuperX’s performance.

2.8

The further functionalities and system requirements of the Platform are determined by the description valid at the time of the order or by the current status of the self-signup offers.

3. Registration and Creation of a User Account

3.1

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 them during registration are accurate and complete. In the event of subsequent changes, the data stored in the User account, in particular address, payment, and contact details, must be kept up to date at all times.

4. Free Trial Period

If the User has registered independently on the Platform (“Self-Signup”), they may use the Platform free of charge for a period of 14 days with a limited range of functions (“Trial Period”). During the Trial Period, the User may access all functions except for the campaign feature. After the expiry of the Trial Period, the possibility of use ends automatically without the need for termination, unless the User concludes a contract for the paid use of the Platform.

5. Conclusion of Contract

5.1

Within the framework of Self-Signup: The service descriptions of the products on SuperX’s website do not yet constitute a binding offer. If, after the expiry of the free Trial Period, the User wishes to conclude a paid subscription, the User submits a binding contractual offer for the selected service package by clicking the button that completes the ordering process “Order with an obligation to pay”.

Via an order link: Following a conversation with the SuperX sales team, SuperX sends the User by email a summary of the agreed conditions and services as well as an order link through which the User is directed to the electronic ordering process. There the User can check their order again for possible input errors and correct them if necessary. By clicking the button that completes the ordering process (“Order with an obligation to pay”), the User submits a binding contractual offer.

5.2

SuperX may 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 as well as the applicable Terms and Conditions of Use. The contract is concluded upon receipt of the contract confirmation at the email address provided or registered by the User.

5.3

During the term of the contract, the User may book additional extensions (“Add-Ons”, such as the addition of further Users) in their User account. In this case, the service description of the Add-Ons on the SuperX website constitutes a binding offer. By clicking the button that completes the ordering process (“Upgrade”), the User declares acceptance of the offer, and the contract is concluded. SuperX shall confirm the User’s order of the Add-On by email within 48 hours at the latest.

6. Availability of the Platform, Error Correction

6.1

The Platform is available at 99% on a monthly calendar average.

6.2

Non-availability exists if the Platform is completely unavailable due to circumstances within the responsibility of SuperX. Non-availability does not exist if the Platform is unavailable due to circumstances for which SuperX is not responsible, in particular as a result of force majeure (especially war and warlike conditions, natural disasters, epidemics, and pandemics, including the COVID-19 pandemic), incorrect operation by the User (for example, blocking of the WhatsApp number due to the sending of spam messages), or improper use of the Platform by the User, or due to planned maintenance periods in accordance with Clause 6.3.

6.3

SuperX may temporarily restrict access to the Platform in order to carry out maintenance work. SuperX shall notify the Customer of planned maintenance periods at least seven days in advance. Planned maintenance periods, which are not taken into account when calculating availability, may take place on Saturdays and Sundays between 00:00 and 07:00 hours. The total duration of planned maintenance periods may not exceed 24 hours per month.

6.4

Should the Platform exhibit an error or malfunction, the User shall inform SuperX thereof without undue delay in writing, providing a precise description of the facts and enclosing all information useful for remedying the error (“error and malfunction reports”). SuperX shall respond within one working day (the “response time”) to proper error and malfunction reports from the User with a qualified feedback on the causes of the error and the measures taken and to be taken to eliminate the error. The response time does not apply to insignificant errors and malfunctions.

6.5

An error or malfunction exists if the Platform does not possess the contractually agreed functionalities and this lies within the responsibility of SuperX.

6.6

This Clause 6 does not apply to the availability of third-party services used by SuperX, in particular the LLM Providers and the frameworks connected to the Platform. A specific availability of these external services is not part of SuperX’s contractual performance obligations.

7. Usage Rights for the Platform

7.1

SuperX grants the User a time-limited, revocable, non-exclusive, and non-transferable right to use the Platform within the contractually agreed scope. The right of use expires at the latest upon termination of the contract.

7.2

The User may use the Platform only for their own business activities. Use is permitted only by the number of persons specified in the scope of services to use it simultaneously.

7.3

The Customer is not entitled to rent, lease, lend, reproduce, resell, distribute, or otherwise transfer the Platform or access to the Platform; to use the Platform for the development of their own services that have the same or substantially similar functionalities; to activate and/or use functionalities of the Platform for which no usage rights have been granted; to transfer usage rights to the Platform to third parties or to grant third parties access to the Platform without the consent of SuperX; to modify, translate, reproduce, decompile, or examine the source code of the Platform, algorithms, or other program components, except where permitted by law under Sections 69d or 69e of the German Copyright Act (UrhG); to remove, circumvent, decrypt, or otherwise modify functions of the Platform related to digital rights management or copy protection, or other technologies that control access to the Platform; to remove, obscure, or alter legal notices, in particular those concerning SuperX’s intellectual property rights; to use automated programs, applets, bots, or similar tools to access, download, extract, or copy the Platform and its content, for example, for the purpose of downloading, indexing, scraping, or caching content.

SuperX reserves the right to perform text and data mining in relation to the content provided as part of its services and expressly prohibits such access and use by others.

8. Support

8.1

SuperX provides the User with support services, the scope of which is determined by the summary of services contained in the contract confirmation or by any written agreements concluded between the parties after the conclusion of the contract.

8.2

Additional support services, in particular consulting services or technical assistance services (with the exception of defect rectification owed by law or under the contract), shall be remunerated separately and invoiced to the User based on the effort involved. The User shall be informed of the amount of the remuneration before commissioning such services.

9. Obligations and Responsibilities of the User

9.1

The User grants SuperX the non-exclusive right to use, during the term of the contract and to the extent necessary for the fulfilment of the contract, the content provided by the User, in particular communication content (including photographs, graphics, videos, files, documents, logos and symbols, texts, collectively referred to as “User Content”), in particular to reproduce, edit, and transmit such content. The User warrants that they are entitled to grant these rights to SuperX.

9.2

The User may only store or have stored on the Platform, or transmit via the Platform, such User Content (i) to the use of which they are entitled to the extent necessary for the fulfilment of the contract, (ii) which does not infringe any rights of third parties (in particular trademark rights, copyright and other intellectual property rights, as well as personal rights), and (iii) which does not contain any unlawful, violence-glorifying, 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 consent that may be required and that all statutory information obligations (e.g. imprint information) are fulfilled. SuperX does not review the User Content or Customer communications for their legality.

9.4

For the sending of promotional messages, in particular newsletters, via the WhatsApp Business Platform, only templates approved by WhatsApp may be used. The use of unapproved templates may result in the permanent blocking of the WhatsApp number used for sending. The User is responsible for compliance with these provisions as well as with the WhatsApp Business Policy pursuant to Clause 9.5. Any liability on the part of SuperX is excluded.

9.5

For individual Third-Party Systems, additional terms of use of the respective provider may apply (WhatsApp Business Policy, WhatsApp Business Solutions Terms, WhatsApp Business Terms of Service, Meta Terms for WhatsApp Business, Facebook Commerce Policies (also applicable to Instagram), Telegram Terms of Service, Google Business Messaging, Twilio Messaging Policy (for SMS transmission)). The User is responsible for compliance with these terms of use. SuperX points out that violations of these terms of use may lead to exclusion from or restriction of the use of the Third-Party Systems. Any resulting limitations in the services of SuperX do not constitute a defect in the services provided by SuperX.

9.6

The use of the AI Features is additionally subject to the terms of use of the integrated LLM Providers. The User is responsible for compliance with these terms. SuperX points out that violations of these terms may lead to exclusion from or restriction of the use of the respective API. Any resulting limitations in the services of SuperX do not constitute a defect in SuperX’s performance.

The User undertakes to use the AI Features to a reasonable extent and exclusively within the framework of the intended purpose. Use that exceeds normal operation, in particular through the mass or automated invocation of functions (e.g. through bots, scripts, or comparable technical means), is not permitted. The same applies to any use intended to circumvent technical protection mechanisms or to excessively strain system resources. SuperX is entitled to temporarily or permanently block the affected AI Features if there are indications of misuse.

9.7

The User shall indemnify SuperX upon first request against all claims asserted by third parties arising from (i) the use of the User Content by SuperX or the User, and (ii) the use of the Platform by the User, insofar as such claims are not based on intentional or grossly negligent conduct by SuperX. This indemnification also includes the costs of an appropriate legal defence in accordance with the German Lawyers’ Remuneration Act (RVG).

9.8

It is the responsibility of the User to create backup copies of the User Content independently.

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) as well as the payment schedule shall be determined by the respective contract confirmation. The first debit shall take place 48 hours after the onboarding appointment with the User. The remuneration for the use of AI Features, as well as for functions added in the future, shall be based on a “credit system”. Credits are virtual units of use without any intrinsic monetary value and serve exclusively for the utilisation of specific functions within the Platform. The User may purchase credit packages.

10.2

The consumption of credits depends on the type and scope of the respective use. The number of credits required per function (“Credit Rate”) may vary depending on the service. The current Credit Rate for individual services is determined by the service description valid at the time of use on the SuperX website. SuperX is entitled to adjust the Credit Rates of individual services if this becomes necessary due to technical or economic developments or due to cost changes within the meaning of Clause 10.7. Any changes will be communicated to the User in advance by email and/or made visible on the Platform.

10.3

Credits purchased are available to the User until the end of the respective calendar month. Credits not used expire at the end of the last calendar day of a month. Carryover of credits to the following month or refund/payout of unused credits is excluded.

The User will be automatically informed via the email addresses stored in the User account (all administrators) as soon as consumption of the booked credit volume reaches 80%, 90%, and 100%. If the booked credit volume is exceeded in a month by 15% (i.e. to 115% of the total volume), an immediate, automatic block (“hard lock”) of all AI Features shall take place. Further use of these functions is only possible after an upgrade of the credit volume or after the automatic reset of the volume at the beginning of the following month.

For existing customers, the transition to the credit system shall be made by conversion based on average previous consumption. In doing so, SuperX ensures that the User does not suffer any disadvantage as compared to the previous terms as a result of the transition.

10.4

All amounts are quoted in EUR and net.

10.5

Invoicing to the User shall be carried out in electronic form (e.g. by email), unless otherwise agreed.

10.6

The User may only offset claims that are undisputed or have been finally adjudicated, unless the claims are mutually dependent (i.e. in a reciprocal relationship).

10.7

SuperX is entitled, at its reasonable discretion, to adjust the agreed remuneration (including the Credit Rates, i.e. the number of credits per service) in line with changes in the costs incurred by SuperX that are relevant for the price calculation. Such an adjustment of remuneration may result in either a price increase or a price reduction. For the calculation of the relevant costs, the following in particular shall be taken into account: administrative costs, costs of maintaining and operating SuperX’s IT infrastructure, general expenses (such as sales and marketing costs, personnel expenses, rent, external service providers), as well as financing costs, taxes, fees, and other levies. Cost increases and cost reductions shall be reflected equally by SuperX in the pricing.

All price changes will be communicated to the User by email and will take effect no earlier than 30 days after such notification by SuperX. If SuperX increases the agreed remuneration by more than 10%, the User shall be entitled to terminate the usage contract extraordinarily with a notice period of four weeks from receipt of the notice of increase.

11. Warranty

11.1

‍For defects of the Platform, the provisions of Sections 536 et seq. of the German Civil Code (BGB) shall apply. Strict liability for initial defects is excluded.

11.2

The rectification of defects shall, at the discretion of SuperX, be carried out either by free repair or by replacement delivery.

11.3

Termination by the Customer pursuant to Section 543(2) Sentence 1 No. 1 of the German Civil Code (BGB) due to the failure to grant contractual use is only permissible if SuperX has been given sufficient opportunity to remedy the defect and such remedy has failed.

11.4

SuperX assumes no warranty for the internet access of the User and/or their end customers, in particular regarding the availability and capacity of the internet connection. The User is responsible for their own internet access up to the point of service delivery.

11.5

SuperX has no influence on the completeness and accuracy of the outputs generated by the LLM Providers and assumes no warranty for them. SuperX expressly points out that LLMs and AI Features are based, among other things, on algorithms and probability calculations, and the User should therefore not rely on the factual accuracy of the outputs without having verified them. Outputs that appear correct due to their level of detail or specificity may still contain significant inaccuracies. Likewise, outputs may not contain the most up-to-date or complete information. Events or changes to the underlying facts that have occurred only after the training of the underlying LLM are not taken into account and may not be reflected in the output.

12. Liability and Damages

12.1

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

12.2

In all other cases, SuperX shall—unless otherwise provided in Clause 12.3—be liable only in the event of a breach of a contractual obligation, the fulfilment of which is essential for the proper performance of the contract and upon the observance of which the User may regularly rely (so-called cardinal obligation), and such liability shall be limited to the compensation of foreseeable and typical damages. In all other cases, liability is excluded, subject to the provision in Clause 12.3.

12.3

The liability of SuperX for damages arising from injury to life, body, or health, as well as under the Product Liability Act, remains unaffected by the above limitations and exclusions of liability.

12.4

To the extent that liability is excluded under these provisions, this exclusion also applies to the liability of SuperX's corporate bodies, agents, and vicarious agents, in particular its employees.

12.5

The limitation period for claims for damages by the User against SuperX shall be one year, except in the cases referred to in Clauses 12.1 and 12.3.

12.6

In the event of damages incurred by the User as a result of the conduct of an integrated LLM Provider or other Third-Party Systems, the liability of SuperX shall be limited to the assignment of SuperX's claims against the respective provider, insofar as the provider's contractual and usage conditions permit such assignment. The User's claims for damages arising from the blocking of AI Features due to the exceeding of the credit volume in accordance with Clause 10.3 are excluded.

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, in whole or in part, if there are concrete indications that the User is violating or has violated these Terms and Conditions of Use and/or applicable law, or if SuperX otherwise has a legitimate interest in such blocking. In deciding on a blocking measure, SuperX shall duly take into account the legitimate interests of the User. If the User repeatedly violates these Terms and Conditions of Use despite prior notice, SuperX reserves the right to permanently block access.

13.2

In the event of a temporary or permanent blocking, the access authorisation shall be blocked and the User shall be notified thereof by email.

13.3

In the event of a temporary blocking, after the expiry of the blocking period or the definitive cessation of the reason for the blocking, the access authorisation shall be reactivated and the User shall be notified thereof by email. An access authorisation that has been permanently blocked cannot be restored. Persons who are permanently blocked are permanently excluded from the use of the Platform and may not register again. In connection with the permanent blocking of the User, SuperX is entitled to terminate the usage relationship extraordinarily.

13.4

SuperX is entitled to delete content that does not comply with the conditions of Clause 9 if the User fails to delete such content themselves within a reasonable period after being requested to do so.

14. Term of Contract; Termination of Access

14.1

The User is permitted to use the Platform for the duration of the agreed contractual term. No later than 48 hours after the conclusion of the contract, SuperX shall make the first debit of the agreed remuneration. With this debit, the paid usage period and the agreed minimum term commence.

14.2

Unless otherwise agreed, the minimum contractual term shall be 12 months, commencing on the day of the first debit. After the expiry of the minimum term, the usage contract shall automatically renew for a period corresponding to the payment interval agreed upon at the time of contract conclusion, unless it is terminated by either party no later than 30 days before the end of the minimum term or, during a renewal period, no later than 14 days before the end of the respective contractual term.

This minimum or renewal term shall apply equally to any Add-Ons additionally booked by the User during the usage period. The right of both parties to terminate the contract without notice for good cause remains unaffected. The effective termination of the usage contract automatically results in the termination of any agreed additional services and extensions (in particular Add-Ons booked during the usage period), without requiring a separate declaration by either party.

14.3

SuperX shall, in particular, have the right to terminate the contract without notice for good cause in the following cases:

(i) the User becomes insolvent or over-indebted;

(ii) an application for the opening of insolvency proceedings over the assets of the User is filed (the provisions of Section 112 of the German Insolvency Code (InsO) remaining unaffected); or

(iii) the User is in default of payment of the agreed remuneration, or of a not insignificant part thereof, for two consecutive months, or is in default, over a period extending beyond two months, of payment of the ongoing remuneration in an amount equal to the remuneration payable for two months.

14.4

Termination may be effected exclusively via the Platform. The User may terminate their contract in the account settings under "Settings" → "Plan and Billing" → (three-dot menu). Termination by post or email is not required.

14.5

After the expiry of the contractual term, the User shall no longer have access to the Platform and to the User Content—unless the contract is renewed or a new usage contract is concluded—and the content shall be deleted from the Platform.

15. Data Protection

15.1

Insofar as SuperX processes personal data on behalf of the User for the purpose of performing the contractual services, SuperX acts as a processor within the meaning of Article 28 of the General Data Protection Regulation (GDPR). Upon conclusion of the usage contract, the parties enter into the Data Processing Agreement, which can be accessed via the link provided and which, together with its annexes, forms an integral part of the contract.

15.2

For the execution of the contract concluded with the User, the use of the User's personal data may be required. The details regarding the data collected and their respective use are set out in the Privacy Policy.

16. Amendment of the Terms and Conditions of Use

16.1

SuperX reserves the right to amend the services offered as well as these Terms and Conditions of Use. An amendment is permissible insofar as it is necessary to take into account changes that were not foreseeable at the time of the conclusion of the contract, in particular with regard to technical or legal framework conditions, including the conditions for the use of Third-Party Systems. In doing so, SuperX shall duly take into account the legitimate interests of the User.

16.2

Amendments shall 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 amendments shall be deemed accepted with effect for the future. If the Customer objects to the amendments, SuperX shall be entitled to terminate the contractual relationship extraordinarily with a notice period of two weeks, provided that SuperX has informed the User in the amendment notice of the effect of silence and the right of termination.

16.3

Excluded from the right to amend are any changes to the subject matter of the contract and the principal performance obligations that would result in a modification of the overall contractual structure. In such cases, SuperX shall inform the User of the intended changes and offer the continuation of the contractual relationship under the amended conditions.

17. Final Provisions

17.1

The agreements concluded between the parties, including these Terms and Conditions of Use, are governed by the substantive law of the Federal Republic of Germany, to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG) and the rules of private international law.

17.2

The exclusive place of jurisdiction is Berlin, Germany. However, SuperX is also entitled to bring an action against the User at the User's general place of jurisdiction. Mandatory statutory provisions regarding exclusive places of jurisdiction remain unaffected by this regulation.

17.3

Should one or more provisions of these Terms and Conditions of Use be or become invalid, the validity of the remaining provisions shall not be affected thereby.