Terms of Use

This is an automatic translation of the original and legally binding document that you can view here in German.

For orders placed via our Internet store, the store terms and conditions also apply.

Terms of Use Germany of cleverworks

1. scope of application, subject matter of contract

1.1 The following terms and conditions (hereinafter referred to as “Terms of Use”) apply exclusively and conclusively to the use of the online service “cleverworks” offered by Human Networks GmbH, Im alten Grund 2, 36100 Petersberg, Germany (hereinafter referred to as “cleverworks”). The Customer’s general terms and conditions shall not apply, even if cleverworks has not expressly objected to their application.

1.2 The subject matter of the Online Service is the provision of the software application cleverworks in the versions cleverworks Starter, cleverworks Essentials or cleverworks Professional, cleverworks Extended (depending on the version purchased by the Customer; hereinafter referred to as “cleverworks” or “Software”) and storage space for storing the data generated from the use of cleverworks Cloud by the Customer (“Customer Data”) on a server of cleverworks as well as the provision for use via the freely available internet browsers Firefox 39 or Chrome browser in version 2015, hereinafter referred to as (“Client”). The Online Service is operated according to the “Registered User” model (Named User Model). In addition, cleverworks provides technical support via the methods identified in the Service Description. The Customer may only use the Online Service to process its own data for its own purposes; use for other purposes is not permitted.

1.3 cleverworks provides the service in accordance with these Terms of Use exclusively to Customers who are entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB), who have their registered office in the Federal Republic of Germany and who use the online service in the Federal Republic of Germany.

2. scope of service

2.1 A comprehensive description of the Online Service and the services provided by cleverworks within the scope of the Online Service (“Service Description”) is available at www.cleverworks.org/de/shop/ for the respective product ordered. cleverworks shall keep the respective current version of the Software, i.e. the version most recently released by cleverworks for the market in general, available on a server for use by the Customer during the term of the Agreement in accordance with the following provisions. The Customer shall be granted access to cleverworks via the access address provided in the email sent to the Customer. cleverworks shall be entitled to change the access address upon prior notice.

2.2 cleverworks shall make the cleverworks software available on the server within 72 hours on working days (Monday – Friday; excluding public holidays) for a maximum of 300 registered users after acceptance of the Customer’s order. For registered users exceeding the aforementioned number, an individual delivery date will be agreed upon with the Customer. Furthermore, cleverworks shall provide the Customer with storage space to the extent defined in the service description for the respective version at the time of the conclusion of the contract for the storage of the Customer data resulting from the use of the Software. Exceeding the agreed storage capacities requires the prior consent of cleverworks. For exceeding the storage capacity, additional usage fees will be charged according to the general price list of cleverworks in effect at the time of the Customer’s use of the service. Included free volumes for functions and services (e.g. for included sending of e-mails per month) for use within one month are not transferable to subsequent months and expire at the end of the respective month of use.

2.3 The place of performance for the online service to be provided by cleverworks is the location of the internet server of cleverworks in Germany. cleverworks reserves the right to relocate the server to another location in the European Union/EEA at any time. The transfer point for the services provided by cleverworks to the Customer is the router exit of the cleverworks server or the external provider of the data center services used for this purpose. cleverworks shall only be responsible for the contractual functioning of the systems, computers and lines operated by cleverworks itself or its vicarious agents. Furthermore, the use of computer systems and lines of third parties on the Internet and worldwide web (www) falls within the scope of risk of the Customer.

2.4 The Customer is entitled to use the functionalities of cleverworks in accordance with the provisions of clause 4 of these Terms of Use. The user documentation will be made available to the Customer at the beginning of the contract as an online version in the form of screencast videos or in the form of illustrated text at the internet site www.cleverworks.org. A printed manual is not part of the services under this contract. The customer is entitled to print out a copy of the online documentation for his own use. The Customer shall not be granted any further rights to use the documentation.

2.5 The technical standards and security measures used by cleverworks within the scope of the provision of services are listed in the service description. cleverworks reserves the right to change the technical standards and security measures, provided that this does not result in any significant disadvantages for the Customer. If and to the extent that a technical change is associated with more than insignificant disadvantages for the Customer with regard to the conditions of use of the Online Service, cleverworks shall announce this to the Customer by e-mail or in another suitable manner no later than six weeks before such change takes effect. If the Customer does not object to the change in writing within a period of two weeks from receipt of the change notification, the change shall become part of the contract. If the Customer objects, cleverworks may terminate the agreement with a notice period of three months, whereby cleverworks will provide the online service with the previous technical standards until the expiration of the notice period.

2.6 cleverworks shall update the Software at its own discretion and adapt it to legally mandatory changes. If and to the extent that the provision of a new version or any other change to the Software is accompanied by a change in the functionalities of the Software and/or restrictions in the usability of data previously generated in accordance with the contract, cleverworks shall announce this to the Customer by email or in any other suitable manner no later than four weeks before such change takes effect. If the Customer does not object to the change in writing within a period of two weeks from receipt of the change notification, the change shall become part of the contract. If the Customer objects, cleverworks may terminate the agreement with a notice period of three months, whereby cleverworks will provide the old version of the Software until the expiration of the notice period.

2.7 cleverworks contact persons for this agreement and related questions are available at email: Support@Human-Networks.com, as well as at telephone no. 0661 9628358.

2.8 The Customer may purchase additional services separately from cleverworks or a cleverworks Business Partner for a fee, if applicable, provided that these services are generally available. This applies in particular to the following services: Helpdesk and user support, customer-specific adjustments, consulting regarding the use and handling of cleverworks , training, installation of clients and other software, configuration of customer systems.

3. access to cleverworks , test use

3.1 The access requirements necessary to use cleverworks are described in the service description. Access to the server of cleverworks is only possible with the browser-based client software recommended by cleverworks. The requirements necessary for the use of cleverworks with regard to browser software (product and version) as well as the access requirements and information on how the Customer obtains access can be found on the website www.cleverworks.org. The Customer shall only choose secure passwords known to it for access and shall change these passwords regularly during the term of the contract in order to ensure adequate access protection to its Customer Data.

3.2 The Customer is liable for the use of the Online Service under the passwords chosen by him, unless he proves to cleverworks that the misuse is not attributable to him. The Customer can activate additional protection of access via 2-factor authentication in its profile settings.

3.3 If the Customer has purchased a test account, cleverworks shall grant the Customer access to the cleverworks Editions for a maximum period of 30 days for a maximum of one registered user by means of a password and user name. The test access may only be used for test purposes. The test access is granted free of charge. Upon expiration of the test period, the access authorization expires and cleverworks automatically blocks the access and deletes the data contained therein, unless the Customer enters into an agreement for the regular use of the online service. During the test period, mailings will be provided with an advertising message from cleverworks, which the Customer may remove after the test period. The free trial access and the granted trial period may be changed by Cleverworks at any time without notice or the trial access may be deleted at any time.

4. rights of use of the Customer

The following usage rights apply to the respective version of the Software and the browser-based client provided by cleverworks.

4.1 cleverworks grants the Customer, for the duration of this agreement, the non-exclusive, non-sublicensable and non-transferable right to use the Online Service to execute the Software as intended for the purposes of sales automation with respect to its own Customers, to process its own data by its own personnel. The customer may use the clients exclusively for accessing the online service to the extent required. Only the customer himself is authorized to use the online service. The right of use is limited to the number of concurrent users agreed upon with the Customer and to the employees of the Customer entered by the Customer as registered users at cleverworks. In particular, the Customer is not entitled to subcontract or sublet the Online Service. The use of the Online Service is technically dependent on the entry of a user name and a password chosen by the Customer. The customer can change the persons entered as registered users at any time through his own administrator, whereby the agreed number of registered users may not be exceeded under any circumstances.

4.2 All rights to the Online Service, the Software and the Clients shall remain with cleverworks. The Customer is not entitled to copy the Software onto its own computers or otherwise outside the server system of cleverworks. The Customer may make a backup copy of the Client Software, insofar as this is technically possible for browser add-on components; any other copying is not permitted. The Customer may not pass on the Software and the Clients to third parties (i.e. neither sell, nor rent or lend) and may not make them accessible to third parties. The customer may not translate, modify, edit, decompile, reverse engineer or disassemble the software and the clients. He is not entitled to correct occurring program errors himself or through third parties by changing or otherwise interfering with the software.

4.3 If the Online Service is used by more than the agreed number of simultaneous Users, the Customer shall pay an additional usage fee for each additional User in accordance with the general price list of cleverworks in effect at the time the service is used. Further claims of cleverworks shall remain unaffected.

5 Obligations of the Customer

5.1 The Customer shall duly and completely provide the information requested by cleverworks during registration and other data required for the proper execution of the contract and shall name a permanent contact person authorized to represent the Customer with an e-mail address and postal address to cleverworks. In addition, the Customer shall name all registered users of cleverworks. Any changes to the aforementioned data shall be communicated to cleverworks without delay.

5.2 The Customer shall be responsible for creating the necessary conditions for use on the part of the Customer, in particular the system requirements, infrastructure and for the telecommunications connection between the Customer and cleverworks up to the transfer point. The Customer shall comply with state-of-the-art technical and organizational security standards and ensure that no viruses are transmitted from its systems to cleverworks’ systems.

5.3 The Customer may only use the Online Service in accordance with the contractual agreement and shall refrain from any use that may harm cleverworks or other users of the Online Service. The Customer shall take the necessary precautions to prevent the use of the Online Service by unauthorized persons, in particular by adequately protecting and regularly changing its secret passwords and, if applicable, other secret access codes against access by unauthorized persons. The Customer shall immediately inform cleverworks if it is suspected that passwords or other secret access identifiers may have become known to unauthorized persons. The Customer shall also be responsible for monitoring its personnel and, in particular, registered users. For its part, the Customer is obligated to require its authorized users to comply with the provisions of this Agreement that apply to them. The Customer may not circumvent or disable security measures set up by cleverworks, modify cleverworks’ content unless this is expressly permitted within the scope of the intended use of the Online Service or link the Online Service to other content, websites or services.

5.4 The Customer shall create a backup copy of the Customer Data transmitted to cleverworks within the scope of the use of the Online Service prior to transmission. To the extent that the Online Service makes this technically possible, the Customer shall also regularly back up the data transmitted by it during the use of the Online Service by download and create its own back-up copies.

5.5 The customer may not use the online service for illegal purposes (e.g. racist, discriminatory, pornographic, endangering the protection of minors, politically extreme or otherwise illegal or in violation of official regulations or requirements).
5.6 The Customer undertakes not to retrieve information or data without authorization, either itself or through third parties, or to interfere with programs operated by cleverworks or to penetrate data networks of cleverworks without authorization.

5.7 The Customer shall notify cleverworks immediately of any disruptions to the Online Service and shall support cleverworks to a reasonable extent in determining the disruption and its causes as well as its elimination.

5.8 Within the scope of this agreement, the Customer is not entitled to use trademarks, logos and other protected signs of cleverworks and Human Networks GmbH.

5.9 The Customer is obligated to provide in a timely manner any data protection and other consents of third parties that may be required for the performance of the contractual services by cleverworks.

5.10 cleverworks may block access to the Online Service with immediate effect if there are reasonable grounds to suspect that the Online Service is being used in an illegal or immoral manner. The Customer’s obligation to pay shall remain unaffected. cleverworks will immediately inform the Customer in writing about the blocking.

5.11 If the Customer uses cleverworks to write to his contacts via e-mail, fax, letter, SMS or other communication channels provided, he shall ensure that he has the legally required permission to do so. cleverworks does not assume any liability for legal violations of the Telecommunications Act (TKG) or other tangential laws for the operation and management of the Customer’s data.

6 Remuneration, Due Date, Billing

6.1 The remuneration for the use of the online service cleverworks and all other services provided by cleverworks under this agreement shall be based on the price list of cleverworks applicable at the time of the conclusion of the contract. All prices are subject to the applicable statutory value added tax.

6.2 For the provision of the Online Service, the Customer shall pay a usage-independent monthly or annual basic fee per registered user. The basic fee is usage-independent and also accrues if the registered user does not use the online service. The basic fee is payable in advance for the selected contract term (renewal period). The fee is payable beginning with the 1st full month after the day on which the online service cleverworks is made available for operation. If the Customer acquires additional clients during the contract period, the amended fee will be charged from the date of acquisition. Invoices shall be issued for the first time on the first day of the month following the activation. If necessary, cleverworks will issue a supplementary invoice. The contract term of the additionally acquired Clients shall be based on the contract term of the existing Clients. A reduction of Clients during the term of the contract is not possible. Other – in particular usage-dependent – fees shall be invoiced on a calendar-monthly basis in arrears and shall be due upon invoicing. If the User purchases services that are not covered by a usage fee, but are to be paid for separately on a one-time basis, cleverworks will invoice the User for these services after they have been rendered. In this case, invoices are due for payment 14 days after receipt. cleverworks may agree with the Customer on an advance payment for usage-dependent services, especially if larger quantities are involved, or object to the provision of the usage-dependent service.

6.3 If the Customer makes use of services of cleverworks that are not included in the basic fee according to the service description applicable to this agreement, the Customer shall pay for these services according to the general price list of cleverworks applicable at the time of the order.

6.4 cleverworks may also send invoices with due date to the Customer by e-mail, provided that the invoices meet the legal requirements for purposes of input tax deduction.

6.5 The Customer shall, at its own discretion, either grant cleverworks a direct debit authorization and provide cleverworks with the necessary information for this purpose or choose to pay by invoice. cleverworks shall collect the fees due on the due date. If the Customer does not grant cleverworks a direct debit authorization, cleverworks shall not be obligated to grant the Customer access to the Online Service.

6.6 cleverworks is entitled to change the agreed fees. cleverworks shall notify the Customer of any such change in writing or by e-mail three months before it takes effect. If the price increase in the case of the monthly basic fee or flat fee is more than 10% of the previous fee in a contractual year, the Customer shall be entitled to terminate this agreement with one month’s notice to the date on which the increase in the agreed fees is to take effect.

6.7 If the Customer is in default of payment of at least two monthly basic or flat fees, cleverworks is entitled, without prejudice to other rights, to block the Customer’s access to the Online Service with immediate effect after a single fruitless reminder with a deadline of no more than one week.

6.8 The Customer may only offset undisputed or legally binding claims or set them off against claims of cleverworks. Likewise, the Customer may only assert rights of retention (§ 273 BGB) due to counterclaims of the Customer recognized by cleverworks or legally established.

7. Interruptions of Services

7.1 cleverworks is entitled to withhold services under this Agreement if:

– work is to be carried out on its Internet server which cannot be performed without an interruption of services and the interruption is of insignificant duration;

– cleverworks is obliged to comply with an order of an authority or a court that makes the provision of services inadmissible or impossible;

– there is reasonable suspicion that the Customer’s facilities or the Customer’s use of the Online Service pose or pose a risk of damage to cleverworks or third parties. This includes, in particular, the risk of viruses spreading or the network being overloaded due to improper use (e.g. improper advertising). In the latter case, the Customer’s obligation to pay shall remain in effect.

7.2 cleverworks shall, if possible, inform the Customer in advance about service interruptions and their expected duration by e-mail or in any other suitable manner. For scheduled maintenance work, the maintenance windows described in the service description shall apply.

7.3 In the event of disruptions, cleverworks undertakes to begin identifying the disruption and rectifying it within the response times specified in the service description. Blocks shall be lifted immediately if the reasons for causing them have ceased to exist.

8. Defects of cleverworks’ Services

cleverworks shall be liable as follows for defects in the services owed by cleverworks under this Agreement that occur after the Online Service, including the Software, has been made operationally available:

8.1 cleverworks shall be liable for ensuring that the Online Service and the Software do not have defects that significantly impair their usability in accordance with the scope of services described in this Agreement. The Customer shall report any defects in the services of cleverworks without delay, providing a detailed description of the symptoms that have occurred. The notification of defects shall be made in writing.

8.2 cleverworks shall remedy any defects within a reasonable period of time. cleverworks may also remedy defects by modifying the Services, provided that this does not change the originally agreed scope of Services in any aspects that are significant for the Customer. The Customer shall support cleverworks in the elimination of defects to the extent necessary and free of charge, e.g. by providing further information, participating in tests, etc.

8.3 In the event of significant defects, the Customer shall be entitled to reduce the monthly basic fee proportionately for the time during which the defect existed and in accordance with the extent to which the Online Service could not be used in accordance with the contract. The customer’s rights of termination shall be governed by the statutory provisions. In the event of only an insignificant reduction in the usability of the online service, reduction and termination shall be excluded.

8.4 The Customer shall not be entitled to remedy defects in the software itself.

8.5 Claims for damages or reimbursement of expenses shall be limited in accordance with Section 9 of these Terms of Use. For defects that were already present when the Online Service was provided (initial defects), cleverworks shall only be liable for damages or reimbursement of expenses in the event of fault.

9 Limitation of Liability of cleverworks

9.1 cleverworks shall be liable without limitation for intent and gross negligence, for personal injury and for the absence of guaranteed characteristics to the extent of the guarantee.

9.2 For other culpable breaches of essential contractual obligations, cleverworks shall be liable, regardless of the legal reason, only for the amount of damages typical for the contract, i.e. foreseeable damages.

9.3 cleverworks shall not be liable for slightly negligent breaches of other contractual obligations.

9.4 cleverworks shall not be liable for damages or expenses if the Customer could have prevented their occurrence by taking reasonable measures – in particular program and data backups.

9.5 The liability according to clause 9.2 is in any case limited to the amount of the coverage of the business liability insurance taken out by cleverworks.

9.6 The provisions of this Clause 9 shall also apply in favor of the employees and other vicarious agents of cleverworks.

9.7 The provisions of the Product Liability Act shall remain unaffected.

10 Secrecy

10.1 The parties are obligated to keep confidential any business and trade secrets and other confidential information of the other party that come to their knowledge within the scope of this contractual relationship and to use such information only for the purpose of fulfilling this agreement. Information requiring secrecy is information that is marked as confidential or the confidentiality of which clearly results from the nature of the matter. In particular, the content of the software provided by cleverworks is subject to secrecy. Insofar as this is necessary within the scope of the purpose of the contract, the receiving party may also make the information subject to secrecy accessible to its own employees and to such consultants who are subject to a professional duty of confidentiality. cleverworks shall also be entitled to make Confidential Information available to its affiliated companies.

10. 2 The confidentiality obligations under this Agreement shall not apply to such information for which the receiving Party can prove that it was generally known or became generally known after it was made available by the disclosing Party without violating the provisions of this Agreement or other regulations existing for the protection of trade secrets by the receiving Party, or were known to the Receiving Party before they were made available to it by the Disclosing Party, or were developed by it independently without recourse to Confidential Information of the Disclosing Party, or were lawfully received by it from third parties who were in turn authorized to disclose them.

10.3 The above obligations shall continue to exist for an indefinite period of time beyond the end of the contract and for as long as the information is confidential.

11 Data Protection

11.1 The parties shall comply with the applicable data protection provisions and shall oblige their employees deployed in connection with the contract and its performance to maintain data secrecy in accordance with Art. 32, Para. 4 of the German Data Protection Regulation (DSGVO), unless they are already generally obligated accordingly.

11.2 If the Customer collects, processes or uses personal data, the Customer warrants that it is entitled to do so in accordance with the applicable provisions, in particular the provisions of data protection law, and shall indemnify cleverworks against any claims of third parties in the event of a violation. This also applies with regard to any required consent for the transfer of personal data across the borders of the European Union to a third country where the server may be located. Human Networks offers a separately concludable confidentiality agreement in the event that the Customer stores personal data in the cleverworks system.

11.3 cleverworks shall take the legally required and customary technical and organizational security precautions and measures and shall, in particular, protect the services and systems operated by cleverworks as well as the application data and, if applicable, other data transmitted by the Customer against unauthorized notice, storage, modification or other unauthorized access or attacks. In the event of a data transfer outside the EU or the scope of the EEA Agreement, cleverworks is obligated to ensure an appropriate level of data protection, for example by means of suitable standard contractual clauses or the selection of a provider. The Customer agrees to use such a data center provider, cleverworks will announce a change of provider.

11.4 If and to the extent required by applicable data protection laws, the Customer shall obtain consent for such processing from the data subjects whose personal data is stored and processed in the cleverworks system. The Customer shall indemnify cleverworks against all claims of third parties and shall compensate cleverworks for all damages that are levied against cleverworks or that cleverworks suffers because the Customer does not have the required data protection consents or was not authorized to process the data.

11.5 cleverworks will collect and use Customer-related data to the extent required for the execution of this Agreement.

Furthermore, our Privacy Policy shall apply.

12 Term and Termination, Consequences of Termination

12.1 The Agreement shall enter into force upon acceptance by cleverworks of the Customer’s offer to conclude the Agreement on the use of the Online Service for cleverworks. Acceptance shall be made either by confirmation on the part of cleverworks or by activation of the agreed services.

12.2 Unless otherwise agreed between the Customer and cleverworks, e.g. due to special promotions, the following shall apply: The Customer may choose to enter into the agreement initially for a period of 3 or 12 months. Either party may terminate this agreement with a notice period of 1 month for a contract period of 3 months and 3 months for a contract period of 12 months to the end of the contract. If the agreement is not terminated, it shall be extended by the same period in each case, i.e. by three months in the case of a 3-month basic term and by a further 12 months in the case of a 12-month basic term. If the customer acquires additional clients under the agreement during the term of the agreement, this shall not affect the term and extension provisions of the agreement.

12.3 The right to terminate without notice for good cause remains unaffected. An important reason for termination by cleverworks exists in particular if

– the Customer is in arrears with the payment of fees in an amount equal to the monthly basic fees for two months. In this case, cleverworks may also claim damages for non-performance.

– the Customer breaches its contractual obligations in a significant manner, in particular pursuant to Sections 4 and 5 of these Terms and Conditions of Use. § Section 314 (2) of the German Civil Code (BGB) shall remain unaffected.

12.4 Terminations must be made in writing.

12.5 Upon termination of this agreement, the Customer’s right to use the online service cleverworks ends. Any copies of the software or user documentation made by the Customer shall be permanently destroyed at the end of the contract. The Customer shall download its data itself prior to the end of the agreement. Upon the Customer’s written request and after fulfillment of all outstanding payment obligations, cleverworks shall provide the Customer with a copy of the application data stored on the cleverworks server at the time of termination of the contract on standard data carriers in SQL database format (backup) within 3 weeks after termination of the contract for a separate fee to be agreed upon separately.

13. general provisions

13.1 Unless this Agreement provides for a special form, all declarations of the parties may also be made by e-mail. The parties undertake not to dispute the probative value of electronic documents either in or out of court.

13.2 The Customer is not entitled to transfer this Agreement as a whole or individual rights and obligations hereunder to third parties or to have them exercised by third parties. cleverworks is entitled to transfer this Agreement to another company of the Human Networks GmbH Group.

13.3 These Terms of Use and the documents referenced therein conclusively govern the contractual relationship between the parties. No verbal collateral agreements have been made. Should any provisions of this Agreement be or become invalid in whole or in part, this shall not affect the validity of the remainder of the Agreement. The same shall apply in case of a loophole.

13.4 cleverworks may amend these Terms of Use with a notice period of six months. The Customer shall be notified of the amendments in writing or by e-mail. The Customer shall have the right to object to the amendments within one month after receipt of the notification. If the Customer does not object to the amendments, they shall be deemed accepted and the contract shall be continued under the amended terms and conditions when the amendments come into effect. cleverworks will specifically inform the Customer of this consequence when notifying the Customer of the changes. If the Customer objects to the changes, cleverworks shall be entitled to terminate the agreement extraordinarily with a notice period of three months from the effective date of the change.

13.5 The Agreement shall be governed by the laws of the Federal Republic of Germany, excluding the application of the UN Convention on Contracts for the International Sale of Goods dated April 11, 1980.

13.6 Fulda, Germany is agreed as the exclusive place of jurisdiction. However, cleverworks is entitled to sue the Customer at its general place of jurisdiction.

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Status May 2018

 

Alternative Dispute Resolution according to Art. 14 para. 1 ODR Regulation and § 36 VSBG:

The European Commission provides a platform for online dispute resolution (OS), which you can find at https://ec.europa.eu/consumers/odr. We are not obliged or willing to participate in a dispute resolution procedure before a consumer arbitration board.