General Terms of Use of the Cleverest-App

Version 1.0, December 2019

The Cleverest application ("Cleverest App") supports you (hereinafter referred to as the "User") in the conscious use of your smartphone.The Cleverest app allows you to take a break from the digital world through the Cleverest functions.

The Cleverest App is offered by Martian & Machine GmbH, represented by Managing Director Jerolim Dragojevic, Falckensteinstraße 49, 10997 Berlin, Germany, E-Mail:hello@martian.ventures, Tel: +49 (0) 30 69 53 74 - 190 (hereinafter: "Martian & Machine").

Martian & Machine provides the Cleverest App and all services and content offered in connection with the App solely on the basis of these Terms of Use.

The General Terms of Use can be downloaded here (PDF).

1. Scope, definitions

1.1 These General Terms of Use govern the relationship between you as a registered user (hereinafter: "you", "user") and Martine & Machine as the provider of the application regarding the use of the Cleverest App.

1.2 The subject matter of the user relationship is the provision and possibility of using the Cleverest App.

1.3 Any deviating General Terms and Conditions of the User shall not apply. These shall not apply even if we have not expressly objected to them.

1.4 The use of individual functions of the Cleverest App may be subject to additional conditions. We will inform you of any such additional terms and conditions and, if necessary, obtain your consent to them.

1.5 If you purchase the Cleverest App or other services and content in connection with the Cleverest App via an App Store (e.g. value-added services, in-app purchases), the terms of use of the respective App Store Operator (e.g. Apple or Google) shall apply to the relationship between you and the App Store Operator (e.g. Apple or Google) with regard to the conclusion of the contract, payment and provision of the respective offers. This shall also apply if we offer the Cleverest App in an App Store free of charge.

2. Registration and usage requirements

2.1 Use of the Cleverest App does not require registration as a user in accordance with Clause 3. There is no entitlement to registration. We are entitled to reject registration requests without giving reasons.

2.2 There are no requirements for registration.

2.3 The technical prerequisite for using the Cleverest App is access to an Internet-enabled terminal device.

3. Conclusion of contract

By clicking on the "START" button you make a binding offer to conclude a contract for the use of the Cleverest App. Since we do not have to activate your account for the Cleverest App and you do not receive a "Welcome Mail" from us, clicking on the "Start" button also creates the contract for the use of the Cleverest App.

4. Scope of services

4.1 With the Cleverest app you can take a break from the digital world. You can always keep an eye on yourself and your smartphone usage. By means of statistical analysis you can see your successes at any time and compare your "Cleverest" times in certain periods.

4.2 Within our offer only free services are offered.

4.3 Services that can be used in the Cleverest app may also include third-party services to which we merely provide you with access (hereinafter referred to as "third-party services"). The use of third-party services - which we identify as such - may be subject to regulations that deviate from or are additional to these General Terms of Use. We or the respective service provider will inform you of these deviating or additional regulations.

5. Changes to the Cleverest Service

We are entitled at any time to change the Cleverest App and its services and contents, to add new functions free of charge or against payment and to discontinue the provision of free parts partially or completely. You have no claim that we offer or maintain certain services or content or technical specifications. In addition, we reserve the right to change service components that are provided at a charge. This does not apply if this is unreasonable for the user. In addition, we are entitled to make changes to services if this is necessary to ensure the legal conformity of our offer (e.g. if the legal situation changes) or to guarantee or improve the technical security of the service. We will take your legitimate interests into consideration in each case.

6. Availability, maintenance, performance problems

We make every effort to ensure that the Cleverest app is available throughout and that it functions flawlessly. However, for technical reasons and due to our dependence on external influences, e.g. power failure, hardware and software errors, we cannot guarantee uninterrupted availability of services and content related to the Cleverest App.

7. Rights of Use

7.1 We grant you the limited, non-exclusive, non-transferable and non-sublicensable right to use the services and content of the Cleverest App for your own purposes in accordance with these Terms of Use for the duration of the User Agreement. No other rights are granted.

7.2 In particular, you are not entitled to use the Cleverest App beyond the agreed use or to have it used by third parties or to make it accessible to third parties. In particular, you are not permitted to reproduce, sell or temporarily transfer the Cleverest App in whole or in part, in particular not to rent or lend it out.

8. Your duties and obligations

8.1 It is your responsibility to check to what extent the Cleverest App is suitable for fulfilling the purposes for which you are using it and for achieving any desired benefits.

8.2 In the event of breaches of duty, we may take appropriate measures to prevent such breaches.

8.3 We provide updates of the App in the App Stores at irregular intervals. The use of the current versions of the app is a prerequisite for the fact that you can make use of all functions of the app and the security during or by the use of the app is not impaired. We would like to point out that we are exempt from any liability if we can prove that the damage would not have occurred if the current versions of the app had been used. This applies accordingly if we can prove that the damage would have been less if the current versions of the app had been used.

9. Termination

You can cancel the user relationship with us by deleting the app from your digital device.

10. Liability

10.1 In accordance with the statutory provisions, we are liable to you without limitation for damages arising from injury to life, limb or health which are based on an intentional or negligent breach of duty as well as for other damages which are based on an intentional or grossly negligent breach of duty as well as fraudulent intent. In addition, we shall be liable without limitation for damages covered by liability in accordance with mandatory statutory provisions, such as the Product Liability Act, as well as in the event of the assumption of guarantees.

10.2 In the event of a merely negligent breach of a material contractual obligation, our liability shall be limited to such damages as are typically and predictably expected to occur in the course of the provision of the agreed services. This limitation does not apply if damages are the result of injury to health, body or life.

10.3 Otherwise, our liability is excluded irrespective of the legal grounds. In particular, we shall not be liable for services provided by third parties identified as such. The respective contractual conditions of the third party provider apply.

10.4 Liability for damage caused by the incompatibility of the devices and systems used by you as well as misconfigurations within your sphere and the use of outdated, not updated or unsafe software (e.g. operating systems, apps) is excluded.

11. Indemnification

If you have culpably violated obligations from the contractual relationship with us and if this has led to a violation of law, due to which we are held liable by a third party, you are obliged to indemnify us from all claims asserted by the third party on first demand. The indemnification shall also apply to all necessary costs incurred by us as a result of our own legal defence.

12. Changes to the General Terms of Use

12.1 We reserve the right to change these General Terms of Use at any time, even within the existing conditions of use, without giving reasons, provided that this is reasonable for you. We will notify you of such changes at least four weeks before the changes are due to take effect (notification of change). If you do not object within two weeks of receipt of the notification and the use of the Cleverest App continues even after expiry of the objection period, the changes shall be deemed to have been validly agreed upon as of expiry of the period. We will inform you of your right to object and the consequences of your objection in the notification of change.

12.2 Furthermore, we reserve the right to change these Terms of Use at any time in the following cases:

• if the change is only advantageous for you;
• to bring the Terms of Use into compliance with applicable law, in particular if the legal situation changes;
• in order to comply with a court ruling or an official decision against us;
• in order to take into account (partial) functions or services that have been added if necessary, unless this changes the existing usage conditions to your disadvantage;
• for the elimination of not inconsiderable difficulties in the implementation of the user relationship due to loopholes in the regulations arising after the conclusion of the contract.

13. Final provisions

13.1 Place of performance is the registered office of Martian & Machine.

13.2 German law applies to the exclusion of the UN Convention on Contracts for the International Sale of Goods. This choice of law applies to consumers only insofar as the protection granted by mandatory provisions of the law of the state in which the consumer has his habitual residence is not withdrawn.

13.3 We are entitled to transfer all rights and obligations arising from this usage relationship as well as this contract as a whole, after we have informed you about it, to companies affiliated with us and other third parties. In the event of the transfer of all rights and obligations, we will inform you at least four weeks in advance. You are entitled to terminate the user relationship with effect from the time the transfer becomes effective.