1. Area of applicability, Object of agreement
1.2 The object of the on-line service is the supply of the software use cleverworks in the versions cleverworks starter, cleverworks Essentials or cleverworks professional, cleverworks Extended (according to the version acquired by the customers; in the following “cleverworks” or “software” called) and storage space for the storage from the use from cleverworks Cloud of the customer to generated data (“customer data”) on a server from cleverworks as well as the supply to the use about the freely available Internet browsers Firefox 39 or chrome browsers in the version 2015, in the following (“client”) called. The on-line service is pursued after the model „of registered users“ (Named user model). In addition, performs cleverworks technical Support about the methods marked in the achievement description. The customer may use the on-line service exclusively for the processing of own data for own purposes, the use for other purposes is not permitted.
1.3 Cleverworks produces the achievement according to this condition of utilisation exclusively towards customers whom enterprisers are in terms of §14 Civil Code, having its base in the Federal Republic of Germany and take up the on-line service in the Federal Republic of Germany.
2. Scope of Service
2.1 A comprehensive description of the on-line service and within the scope of the on-line service from cleverworks to produced achievements (“achievement description”) is retrievable under www. cleverworks. org/produkte/. Cleverworks holds for the respectively softwares the most currently released version of the software in the market during the contract term on a server to the use by the customer in accordance with the following regulations. The customer receives access to cleverworks through the Internet address https://cloud. cleverworks. org or through the Internet addresses marked according to separate contractual regulation. cleverworks is entitled after previous announcement to a change of the access address.
2.2 Cleverworks runs 72 hours on working days (Monday – Friday; except public holidays) for max. 300 registered users after acceptance of the order of the customer. For the registered users who go out the protrudingly called number an individual date of delivery is agreed with the customer. Further storage space in for the respective version at the time of the contract end in the achievement description makes available cleverworks to the customer defined extent to the storage by the use of the software to originating customer data. An excess of the agreed storage capacities needs the previous approval from cleverworks. For the excess additional fees of utilisation after at the time of the claim of the achievement by the customer attack valid general price-list from cleverworks. Contained free volumes for functions and services (e. g. for contained transmissions of e-mails per month) to the use within one month are not transferable for subsequent months and ends at the end of the respective month of utilisation.
2.3 The local of the service for that of on-line service cleverworks to be produced is the location of the Internet server from cleverworks in Germany. Cleverworks reserves itself to move the server any time to another place in the European union EEA. Handing over point for the achievements from cleverworks to the customer is of the Routerausgang of the server from cleverworks or the external supplier used for this of the computer centre achievements. cleverworks is responsible only for the contract-appropriate functioning of the systems pursued by itself or your fulfilment assistants, computer and management leaders. For the rest, the use of computer systems and management on the Internet and worldwide web (www) is the risk area of the customer.
2.4 The customer is entitled to use the functionalities from cleverworks according to the regulations of the cipher 4 in this term of utilisation. The user documentation is made available to the customer at contract beginning as an on-line version in the form of Screencast videos or in the form of illustrated text under the Internet site www. cleverworks. org. A printed manual is not an object of the Service according to this contract. The customer is entitled to print out a copy of the on-line documentation for own use. The customer does not receive further rights of use the documentation.
2.5 From cleverworks within the scope of the Service performance to used technical standards and safety measures are performed in the achievement description. cleverworks reserves itself to change the technical standards and safety measures, provided that herewith no considerable disadvantages are connected for the customer. Provided that and so far are connected with a technical change for the customer more than only unimportant disadvantages concerning the conditions of utilisation of the on-line service, cleverworks will announce this to the customer at the latest six weeks before the coming into effect of such a change by e-mail or in otherwise suitable manner. If the customer of the change does not contradict in writing within a term of two weeks from access of the change communication, the change becomes a contract component. If the customer contradicts it, he can notice cleverworks the arrangement with a term of three months and cleverworks will make available the on-line service with the present technical standards up to the expiry of the term of notice.
2.6 cleverworks will update the software at its own discretion and adapt it to legally compelling changes. Provided that and so far with the supply of a new version or another change of the software a change of functionalities of the software and/or restrictions walk along in the usability of the up to now contracted agreement of generated data, cleverworks will announce the customer at the latest four weeks before the coming into effect of such a change by e-mail or in otherwise suitable manner. If the customer of the change does not contradict it in writing within a term of two weeks from access of the change communication, the change becomes a contract component. If the customer contradicts it, he can give notice to cleverworks the arrangement with a term of three months and cleverworks up to the expiry of the term of notice the old version of the software will make it available.
2.7 cleverworks contacts for this arrangement and the questions hanging together with it are accessible under e-mail: Support@Human-Networks. com, as well as under the phone No. 0661 41091600.
2.8 The customer can acquire if necessary other achievements against remuneration separately with cleverworks or a cleverworks business partner, considering that these achievements are generally available. This concerns the in particular following achievements: Helpdesk and application support, customised adaptations, consultation concerning application and contact with cleverworks, training, installation of clients and other software, configuration of customer systems.
3. Access to cleverworks, Test use
3.1 To the use of cleverworks necessary access conditions are described in the Service description. The access to the server from cleverworks occurs exclusively with the recommended browser-based client software from cleverworks. For the use of cleverworks necessary conditions concerning browser software (product and version) as well as the access conditions and information, as the customer receives access, they are retrievable on the website www. cleverworks. com. The customer has to choose for the access only to him the known and safe passwords and to change this regularly during the contract term to guarantee an adequate access protection to his customer data.
3.2 The customer guarantees for the use of the on-line service under the passwords chosen by himself, unless, he proves cleverworks that the misuse to him is not to be atributted.
3.3 If the customer has acquired a test access so cleverworks grants to him an access to the cleverworks editions for a period of maximum 30 days for maximum a registered user by means of password and user name. The use of the test access may occur exclusively for test purposes. The test access is granted free of charge. At the end of the test period the access authorisation and cleverworks goes out and it closes the access automatically and the contained data are extinguished, unless, the customer closes an arrangement about the regular use of the on-line service. In the test period transmissions will be provided with an advertising message from cleverworks which the customer can remove after the test period.
4. Rights of use of the customer
The following right of use regulation is valid for in each case from cleverworks provided version of the software and the browser-based client.
4.1 Cleverworks doesn’t grants to the customer during the duration of this arrangement exclusive, unterlicenseable and transferable right to use the on-line service for the designated implementation of the software for the purposes of the distribution automation with regard to own customers, for the processing of own data by own staff. The customer may use the clients exclusively for the access to the on-line service in the necessary extent. Only the customer himself is entitled to the claim of the on-line service. The authorisation of utilisation is limited to the agreed number with the customers of concurrent user and from the customer with cleverworks as registered users registered employee of the customer. The customer is to be sublet in particular not entitled the on-line service. The claim of the on-line service is dependent technically on the input of a user name and a password chosen by the customers. The customer can change by his own dashboard at any time the people registered as registered users and the agreed number may be crossed in registered users in no case.
4.2 All rights in the on-line service, the software and the clients remain with cleverworks. The customer is not entitled to copy the software on his own computer or, otherwise, beyond the server system from cleverworks. From the client software the customer may provide a backup copy, as far as this is technically possible for additional components with browser, every other duplication is inadmissible. The customer may not transmit the software and the clients into three parts (i. e. neither dispose, nor rent or lend) and third not accessibly make. The customer may not translate the software and the clients, change, work on, develop back decompile, or disassemblieren. He is not entitled to correct program errors or by third by changing it or make other interventions in the software.
4.3 If the on-line service is used by more than the agreed number of concurrent user, the customer has to pay an additional fee of utilisation according to by claim of the Service valid general price-list from cleverworks for every other user. Further claims from cleverworks remain untouched.
5. Duties of the customer
5.1 The customer has to make with the registration of cleverworks questioned information and other data necessary for the proper contract realisation properly and completely and to name cleverworks a constant representation-entitled contact with e-mail address and postal address. Moreover, the customer has to nominate to cleverworks all registered users. Changes of the precalled data are to be informed to cleverworks immediately.
5.2 The customer is responsible for the creation of the necessary customer-sided conditions of utilisation, in particular the system requirements, infrastructure as well as for the telecommunication connection between the customer and cleverworks up to the handing over point. He will make sure of the technology to suitable technical and organizational safety standards and also guarantee that no virus come from his system into the cleverworks systems.
5.3 The customer may use the on-line service only according to the contractual arrangement and will omit from every use which can damage cleverworks or other users of the on-line service. He has to make the necessary arrangements to prevent against any unauthorized users the use of the on-line service, in particular by adequate protection and regular change of his confidential passwords and if necessary other confidential access call signs against access by unauthorized. The customer will immediately inform cleverworks if the suspicion insists that passwords or other confidential access call signs unauthorized could have become known. Moreover, the supervision of his staff and in particular the registered users is incumbent upon to the customer. He is obliged to oblige on his part his entitled users, to keep for their part to the regulations applying for them of this arrangement. The customer may not handle from cleverworks furnished safety measures or switch off, contents from cleverworks do not change, as far as this is not permitted expressly within the scope of the designated use of the on-line service or the on-line service with other contents, websites or services connect.
5.4 The customer has to provide a backup copy which is from him within the scope of the use of the on-line service in cleverworks to transmitted customer data before transmission. As far as the on-line service has technically allowed this, the customer to protect from him during the use of the on-line service also regularly by download and own backup copies .
5.5 The customer may no use the on-line service fo illegal purposes (e.g. , racist, discriminating, pornographic endangering the protection of children and young people the, politically extreme or usually illegal or against official regulations or editions offending).
5.6 The customer undertakes to call away unauthorizedly neither even nor by the third information or data or in programmes which are pursued from cleverworks to intervene or to penetrate unauthorizedly into data networks from cleverworks.
5.7 The customer has to inform cleverworks immediately about disturbances of the on-line service and to support cleverworks in adequate extent with the statement of the disturbance and its causes as well as their removal.
5.8 The customer is not entitled within the scope of this arrangement to use brands, logos and other protected marks from cleverworks and the Human Networks GmbH.
5.9 The customer is obliged to procure for the fulfilment of the contractual Service by cleverworks to possibly necessary data protection-juridical and other approvals of third.
5.10 Cleverworks can close the access to the on-line service with immediate effect if the reasonable suspicion insists that the on-line service is used in illegal or immoral manner. The payment duty of the customer remains untouched. Cleverworks will inform the customer immediately in writing about the ban.
5.11 If the customer cleverworks is of use for the covering letter of his contacts by e-mail, fax, letter, SMS or other provided communication ways, he must to be sure that the juridically necessary permission is given to him for it. Cleverworks assumes no liability for law breakings of the telecommunication law (TKG) or other affecting laws for the company and the management of data of the customer.
6. Reimbursement, maturity, account
6.1 The reimbursement for the claim of the cleverworks on-line service and all other services from cleverworks according to this arrangement is directed after the price-list applying in each case with contract end from cleverworks. All prices are in each case holding the legal additional of VAT (value added tax).
6.2 For the supply of the on-line service the customer pays a monthly basic charge independent of use per registered user. The basic charge is independent of use and also results if the registered user does not take up the on-line service. The basic charge is to be paid for the elective contract term (lengthening period) in advance. The remuneration is to be paid beginning with 1. full month after the day of the supply ready for service of the on-line service cleverworks. If the customer acquires other clients during the contract term, the changed reimbursement is calculated from the time of the acquisition. The calculation position occurs first by the first day of the month following the connection. So far necessarily it puts cleverworks a supplement calculation. The contract term of the in addition acquired clients is directed after the contract term of the already available clients. A reduction of clients during the term of the contract is not possible. Other – in particular dependent on use – remunerations becomes due calendar-monthly afterwards subtracted and is with calculation position. Provided that the user acquires services which are to be compensated not with a fee of utilisation satisfied, but separately unique, charges cleverworks this after performance of the achievement. In this case calculations are due 14 days after access to the payment. Cleverworks can agree for services dependent on use, just if it concerns larger amounts, a preredemption with the customer or the supply of the service dependent on use contradict.
6.3 If the customer takes up services from cleverworks which are not included after the service description applying for this arrangement in the basic charge, the customer has to compensate for these services after in each case at the time of the agency valid general price-list from cleverworks.
6.4 Cleverworks can feed to the customer computers with maturity-reasonable effect also by means of e-mail, as well as the computers that fulfil the legal demands for the purposes of the pretax deduction.
6.5 The customer gives cleverworks after own choice either a direct-debit authorisation and gives cleverworks moreover the necessary information or chooses the payment by bill. Cleverworks will draw the accumulated fees by the day of maturity. Cleverworks is not obliged to grant the custumer access to the on-line service If no payment warrant is given.
6.6 Cleverworks is entitled to the change of the agreed remunerations. Cleverworks will inform the customer of such a change three months before their coming into effect in writing or by e-mail. If the price increase amounts in case of the monthly basic charge or all-inclusive fee in one contract year more than 10% of the present remuneration, the customer is entitled to discontinue this arrangement with a term of one month at the time in which the rise of the agreed remunerations should come into force.
6.7 With default of the customer with at least two monthly basic charges or all-inclusive fees cleverworks is entitled regardless of other rights to close the access of the customer to the on-line service after unique futile reminder with term settlement of maximum one week with immediate effect.
6.8 The customer may charge only with indisputable or legal demands or settle this with demands from cleverworks. Also the customer may assert retention rights (§273 Civil Code) only because of approved or legally ascertained counterclaims of the customer from cleverworks.
7. Service interruptions
7.1 cleverworks is entitled to hold back services according to this arrangement, if:
• Works on your Internet server are to be carried out which cannot be carried out without interruption of the achievements and the interruption of unimportant duration ;
• Cleverworks is obliged to obey due to arrangement of an authority or a court the service achievement inadmissibly or impossibly;
• the reasonable suspicion insists that the danger of damages for cleverworks or third goes out from the facilities of the customer or the use of the on-line service by the customer or threatens. Moreover in particular the danger of the spreading of viruses or the strain of the net belongs by improper use (e.g. , improper advertisement). In the last case the payment duty of the customer continues.
7.2 cleverworks will inform the customer as far as possible in advance about achievement interruptions and their prospective duration by e-mail or in otherwise suitable manner. The servicing windows described in the service description are valid for level-cash servicing works.
7.3 cleverworks is obliged to begin in case of disturbances with the statement of the disturbance and their removal within the response times given in the service description. Barriers are immediately lifted if the reasons have been cancelled for you reason.
8. Service defects of the from cleverworks
For defects from cleverworks according to this arrangement to the owed service which appears after supply ready for service of the on-line service including the software cleverworks guarantees as follows:
8.1 cleverworks is liable for the fact that the on-line service and the software are not afflicted with defects which affect your use suitability according to the achievement extent described in this contract considerably. The customer has to announce defects of the service from cleverworks immediately under detailed description of the appeared symptoms. The defect description should occur in writing.
8. 2 cleverworks will remove defects within adequate term. Cleverworks can remove defects also by change of the service, provided that through the originally agreed service extent does not change in aspects considerable for the customers. The customer will support cleverworks by the removal of the defects in the necessary extent free of charge, e.g. , by surrender further information, participation in tests etc.
8.3 In case of considerable defects the customer is entitled to diminish the monthly basic charge proportionately for the time in which the defect existed and according to the extent in which the on-line service was not usable. Rights to cancel of the customer are directed according to the legal regulations. The on-line service is suspended with only unimportant decrease of the use suitability.
8.4 The customer is not entitled to remove defects of the software independently.
8.5 Damage or expenditure claims for damages are after cipher 9 in these terms of utilisation limited. For the defects which already existed by supply of the on-line service (initial defects) cleverworks guarantees only in case of from defects on compensation or expenditure substitute.
9. Restriction of the liability from cleverworks
9.1 Cleverworks guarantees without limitation for intention and coarse carelessness, for personal damages as well as for the absence of guaranteed qualities in the extent of the guarantee.
9.2 For other culpable injuries of essential contract duties guarantees cleverworks, immediately for which legal argument, after the height only for i. e. predictable damages typical for contract.
9.3 Cleverworks does not guarantees by slightly careless injury of other contract duties
9.4 cleverworks does not guarantees for damages or expenditures, as far as the customer could have prevented their entry by their reasonable measures – in particular program protection and data protection-.
9.5 The liability according to cipher 9. 2 is limited, in any case, to the amount of the sum insured that of cleverworks concluded company liability insurance.
9.6 The regulations of this cipher 9 are also valid in favour of the employees and other fulfilment assistant from cleverworks.
9.7 The regulations of the product liability law remain untouched.
10.1 The parties are obliged to keep secret to them within the scope of this contractual relationship to the knowledge to handed business secrets and trade secrets and other secrecy-destitute information of the other party and to be of use only for the purpose of the fulfilment of this arrangement. Is secrecy-destitute information which is marked as confidential or whose confidentiality arises unambiguously from the nature of the thing. In particular the contents from cleverworks delivered software are secrecy-destitute. As far as this is necessary within the scope of the contract purpose, the conceiving party may make the secrecy destitute information also to own employees and such advisers who are defeated by a professional discretion duty accessibly. moreover, cleverworks is entitled, secrecy-destitute information to her linked enterprises accessibly makes.
10.2 The secrecy obligations according to this arrangement are cancelled for such information for which the conceiving party can prove that they were known in general or have become known to by the disclosing party without offence against the regulations of this arrangement or against other for the protection of the business secrets existing regulations by the conceiving party in general, or the conceiving party were known, before they have been made to you by the disclosing party accessible, or yourself has developed independently without resort on secrecy destitute information of the disclosing party or from third who were entitled for their part to the passing on, has received rightfully.
10.3 The preceding obligations also insist after the expiration of the contract indefinitely, namely so long as the information is confidential.
11. Data protection
11.1 The parties will follow the data protection regulations and oblige theirs in connection with the contract and his realisation used employees on the data secret after §5 BDSG, as far as these are not obliged already generally accordingly.
11.2 Raises, the customer processes or uses personal data, he answers for the fact that he is entitled to it after the applicable, insb. to data protection-juridical regulations and releases cleverworks in case of an offence from claims of third. This is also valid concerning any necessary approvals for a transmission of personal data about the borders of the European Union in a third country in which the server can be. As far as the data to be processed are personal data and the server location is within the borders of the European Union, an order data processing is given and cleverworks will follow the legal requirements of the order data processing and instructions of the customer (e. g. , for the observance of deletion and blockage duties). The instructions must be given on time in writing. cleverworks points out the customer to the fact that concerning the order data processing relation a separate arrangement should be closed accordingly of the default §11 BDSG.
11.3 cleverworks takes the juridically necessary and usual technical and organizational safety measures and procedure and protects in particular from cleverworks pursued services and systems as well as the use data transmitted by the customers and if necessary to other data against unauthorized inspection, storage, change or other not authorised accesses or attacks. With a data transfer beyond the EU or the area of application of the EEA agreement is obliged cleverworks, for an adequate data protection level according to §4 B BDSG, possibly by suitable standard-contract clauses or choice of a supplier, the safe Harbour join is to provide. The customer agrees with the use of such a computer centre supplier, cleverworks will announce a change of the supplier.
11.4 The customer is obliged, as far as possible the applicable data protection act this ask approvals of the affected persons to whose personal data in cleverworks – system are stored and are processed to catch up for such a processing. The customer releases cleverworks from all demands of third and will make good all damages which are raised towards cleverworks or cleverworks suffers, because the customer was not ordered of necessary data protection-juridical approvals or was not entitled to the processing of the data.
11.5 Cleverworks will raise customer related data in the extent and be of use as it requires the realisation of this arrangement.
12. Runtime and ending, Consequence of ending
12.1 The arrangement comes into force with acceptance of the offer of the customer on end of the arrangement about the use of the on-line service for cleverworks by cleverworks. The acceptance occurs either through confirmation on the part of cleverworks or through connection of the agreed achievements.
12.2 Untill it is valid between customer and cleverworks otherwise, e. g. , on account of special actions agreed: The customer can close after his choice the arrangement first for a period of 3 or 12 months. Every party can discontinue this arrangement with a term of 1 month to a contract term of 3 months as well as with 3 months with a contract term of 12 months to the expiration of the contract substantially. If the arrangement is not discontinued, it is extended in each case by the same period, i. e. with 3-month basic term about three months and with 12-month basic term in other 12 months. If the customer acquires other clients under the contract during the term of a contract, this does not touch the term and lengthening regulations of the contract.
12.3 The right to the instant notice for important reason remains untouched. An important reason for the notice by cleverworks is given in particular, if:
• the customer with the payment of the remunerations by height of an amount in delay gets which corresponds to the monthly basic charges for two months. Moreover, in this case compensation can ask cleverworks because of non-fulfilment.
• the customer injures his contractual duties, insbes. after ciphers 4 and 5 in these terms of utilisation, in considerable manner. §314 paragraph 2 Civil Code remains untouched.
12.4 Written form of acceptance cancelation.
12.5 The authorisation of utilisation of the customer ends with ending of this arrangement concerning the on-line service cleverworks. Finally possibly from the customer provided copies of the software or the user documentation must to be destroyed to the expiration of the contract. The customer has transmitted his data before the expiration of the contract even to download. cleverworks transfers to the customer at his written wish and after fulfilment of all open bills of debt within 3 weeks after expiration of the contract a copy at the time of the contract ending on the server by cleverworks stored use data on usual data carriers in the format SQL Data bank (backup) against separate remuneration which separately has to be agreed.
13. General regulations
13.1 As far as this arrangement intends no special form, all declarations of the parties can be also issued by means of e-mail. The parties undertake to deny the conclusiveness of electronic documents neither judicially, nor extrajudicial.
13.2 The customer is not entitled to transfer this arrangement as a whole or single rights and duties out of this on third or to let exercise from third. cleverworks is entitled to transfer this arrangement on another enterprise of the Humanly Networks to Ltd group.
13.3 These terms of utilisation and the documents taken in it in relation regulate finally the contract relations between the parties. Verbal additional agreements are not met. Should regulations of this arrangement be ineffective all or part or become, this does not touch the effectiveness of the arrangement, for the rest. The same is valid in case of a gap.
13.4 cleverworks can change these terms of utilisation with a deadline of six months. The changes are informed for the customer in writing or by e-mail. The customer has the right to contradict the changes within one month after access of the communication. If the customer does not contradict the changes, these are valid as accepted and the contract it is continued with introduction of the changes to the changed conditions. To this result will particularly point cleverworks the customer with the communication of the changes. If the customer contradicts the changes, it is entitled cleverworks to discontinue the contract with a term of three months at the time of the introduction of the change exceptionally.
13.5 The arrangement is defeated by the right of the Federal Republic of Germany to the exclusion of the use of the UN-purchase rights (UN arrangement about contracts about the international goods purchase from the 11. 04. 1980).
13.6. Fulda is agreed as an exclusive legal venue. however, cleverworks is entitled to sue the customer in his general legal venue.
Effective July 2015