Section 1 – Provider, customers
(1) The Provider of the services (hereinafter: 'Service') offered at the internet address clockodo.com (hereinafter: 'Website') is clickbits GmbH, a company having its registered seat in Unna, Germany.
(2) The Provider offers the Service exclusively to entrepreneurial customers. The Provider does not enter into contracts with consumers. A consumer is any natural person concluding a legal transaction for purposes which for the most part cannot be attributed to either its commercial activities or its activities as a self-employed person.
(3) Any general terms and conditions of business of customers shall not apply. The Provider objects to their inclusion, unless such inclusion is agreed individually in text form.
Section 2 – Services provided, exclusion of resellers
(1) The Service enables the customer to record, organise, evaluate based on certain criteria and compile into reports working time he spends in connection with his entrepreneurial activities. The Service is provided to the customer exclusively via the internet. Therefore, its use requires an internet-capable terminal device and a connection to the internet.
(2) The Provider provides its services exclusively to its respective customer. The customer shall not let any third party use these services, also not partially or temporarily, unless otherwise agreed with the Provider. Employees of the customer for whom the customer holds the corresponding number of licences shall not be regarded as third parties. For the purpose of these conditions, 'employees' shall also include other contractual partners of the customer, e.g. freelancers whose hours the customer records.
(3) Where the Provider provides templates as part of its Service, e.g. working hours templates for employees, they only serve as design examples. The Provider does not guarantee the correctness or completeness of the templates. Should the customer require legally binding information on working time regulations or other matters, he shall have to obtain professional legal advice.
Section 3 – Conclusion of contract, customer account
(1) Use of the Service requires the opening of a customer account with the Provider.
(2) To set up the customer account (hereinafter: 'Registration'), the Provider will collect data, namely the name, the e-mail address and a password. After successful Registration, the customer can use his e-mail address and password to log in to his customer account.
(3) The Provider shall confirm the Registration of the customer account on the screen and by e-mail. Upon the Registration of the customer account, a usage contract regarding the Provider's Service is concluded.
(4) To prevent misuse, the Provider shall send a confirmation link to the e-mail address provided upon Registration. It is the customer's responsibility to confirm his e-mail address by using that link within 48 hours ('Double opt-in'). If the e-mail address is not confirmed in time, the Provider shall promptly delete all data relating to the Registration. Such deletion of the data shall at the same time be deemed termination without notice for an important reason.
Section 4 – Test phase and use for a charge
(1) The Provider shall maintain a customer account, initially free of charge, for a period of 14 days from Registration (hereinafter: 'Test Phase').
(2) During the Test Phase, the customer may use all functions of the Service without any payment obligation. If the customer is satisfied with the Provider's Service, he may at any time change to a pay-for contract model.
(3) After the Test Phase, the Provider shall provide the Service as a free-of-charge contractual relationship with restricted functionality. Either party may terminate this contractual relationship ordinarily without notice.
(4) To change to a pay-for contract model, the customer can use an input mask provided in his customer account. The Provider shall make a binding offer regarding the contract desired by the customer which the customer may accept online, using the input mask.
(5) The customer shall receive a confirmation by e-mail regarding the pay-for contract concluded.
Section 5 – Licences
(1) The Service enables the separate recording of working hours for any number of employees of an enterprise, one usage licence being required for each employee.
(2) The customer may order the necessary number of licences when he changes to the pay-for contractual relationship.
(3) During the term of the contract, the customer may order additional licences at any time. The customer may give notice to terminate at the end of the contract term any licence he no longer needs.
(4) At least one licence is always linked to a customer account. Notice to terminate that licence shall at the same time mean termination of the entire customer account.
(5) The paragraphs (1) to (3) above shall not apply to customers who have agreed a different contract model with the Provider prior to 6 July 2017.
Section 6 – Remuneration, term of the contract
(1) Unless otherwise agreed individually, the fees for the Service shall result from the price list published on the Provider's website, as amended from time to time. All prices are quoted net, excluding value added tax, unless expressly stated otherwise.
(2) All licence fees shall fall due at the commencement of the agreed contract term. If the contractual relationship is renewed, the licence fees for the renewal period shall fall due at the commencement of that period.
(3) Fees due shall be paid within ten days of the invoice date, unless a longer term of payment is stated in the invoice. The Provider shall be entitled to send invoices also in electronic form by e-mail.
(4) The customer shall raise any objection to an invoice in text form within eight weeks of receipt of the invoice. After that time, the content of the invoice shall be deemed correct, the customer having the right to prove that it is incorrect. The customer shall be made aware of this legal consequence separately when the invoice is sent.
(5) Payments into the Provider's bank account shall be made free of expense to the recipient.
(6) If the parties have agreed on payment by means of direct debiting, the customer shall be obliged to ensure in due time that the respective amount can be debited. The Provider may charge the customer for any costs incurred by the Provider as a consequence of non-redemption for reasons attributable to the customer.
(7) The Provider may withhold its services and disable access to the customer account if the customer is in default of the payment of fees due.
(8) The contractual relationship shall be renewed each time for a period equal to the originally agreed term, unless a party terminates it or the terms and conditions of the contract are adjusted by mutual agreement.
Section 7 – Availability, impairments of performance
(1) The Provider shall provide its Service with an average availability rate of 99.5% in each calendar month. The availability rate shall be the proportion of the time during which the Service has been available in a month to the total time of the month less times of contractual maintenance work pursuant to paragraph 2 below.
(2) The Provider reserves the right to carry out maintenance work in the extent of up to six hours in each calendar month, during which the Service may be not, or not completely, available. The Provider may carry out the maintenance work in the time between 10 pm and 6 am but on Sundays and on public holidays also between 6 am and noon. The Provider shall announce maintenance work by e-mail not less than 48 hours in advance.
(3) With respect to data transmission, the Provider's obligation to perform shall be limited to the communication between the Provider's server and a suitable point of connection to the internet to be chosen by the Provider. The Provider has no influence on the availability and reliability of the internet's data channels located outside its own network. Therefore, successful data exchange from the connection point to third-party servers is not part of its obligation.
(4) The customer shall without delay inform the Provider of any service failure or other technical fault, so as to enable prompt fault clearance. Insofar, the customer has an obligation to cooperate and to mitigate loss.
Section 8 – Liability
(1) The Provider's liability for financial losses shall be limited to cases of wilful intent or gross negligence. In any case of ordinary negligence, the Provider shall be liable for financial losses only if it breaches an obligation the fulfilment of which makes proper performance of the contract possible in the first place and discharge of which the customer may typically rely on (material contractual obligations). In such cases, the Provider shall be liable only for foreseeable consequences which may typically be expected. The parties limit the amount of damages to be paid in accordance with the above sentences to €2,500 per case of damage.
(2) Any claims for damages shall become statute-barred after one year.
(3) The Provider's liability for damage caused due to injury to life, body or health, under the German Product Liability Act or based on the provision of a guarantee shall be within the limits of statutory regulations and shall not be affected by the paragraphs (1) and (2) above.
Section 9 – Notice of termination, end of the contract
(1) The customer may at any time give notice to ordinarily terminate the contractual relationship at the end of the respective term.
(2) The Provider may ordinarily terminate the contractual relationship at the end of the respective term by giving four weeks' notice.
(3) Each party's right of termination without notice for an important reason shall not be affected.
(4) Any notice of termination shall only be effective if made in writing. Should the Provider offer a termination function on its website, the customer may use that function instead of the text form.
(5) After the end of the contract, the customer and his employees have no longer any possibility to log in to the customer account. It is the customer's responsibility to copy in due time prior to the end of the contract those data to own storage media which he wishes continue to use after the end of the contract.
(6) The Provider shall be entitled and obliged towards the customer to irretrievably delete all data of the customer account on expiry of a holding period of 30 days after the end of the contract, subject to paragraph (7). The purpose of the holding period is to enable the customer to restore his data in case he has accidentally given notice to terminate the contract, has objected to a notice of termination or changes his mind. The customer's right to request immediate deletion at the end of the contract at any time shall not be affected.
(7) Any data which the Provider is obliged to retain based on any requirement under tax law, commercial law or other law shall be kept stored until the end of the respective retention period.
(8) Should the customer believe that any notice of termination given by the Provider is unjustified, it shall be the customer's obligation to object to such notice within three weeks after its receipt. Should the customer not object, the Provider may assume that the customer agrees to the termination of the contractual relationship. In that case, the customer shall not be entitled to claim damages for any deletion of data pursuant to paragraph (6).
Section 10 – Use of third-party data by the customer
(1) In various areas of the Service, the customer can process personal data of third parties. This in particular concerns names and e-mail addresses of his employees for which he procures licences and names and addresses of his recipients of performance for which he sets up projects. The customer warrants to the Provider that he will use the Service only to process data which he is authorised to process. He also provides this warranty with respect to his employees and all other persons that he may allow to access the Service.
(2) The customer shall indemnify and keep indemnified the Provider from and against any and all claims raised by a third party against the Provider in connection with the processing of such third party's personal data by the customer, unless the customer is not responsible for such raising. The claim to indemnity shall also include the costs necessary for examining and defending against any such claim.
Section 11 – No consumer right of withdrawal
With respect to the contracts concluded with the Provider, there shall be no consumer's right of withdrawal because the Provider offers its Service exclusively to entrepreneurs.
Section 12 – Amendments to these General Terms and Conditions
The Provider reserves the right to amend these General Terms and Conditions with future effect. The Provider shall notify the customer of any intended amendment not later than six weeks prior to the effective date of such amendment. The customer's consent shall be deemed given if he does not object in text form within one month. In the notification, the customer shall be made aware specifically of his right of objection and the possibility of termination.
Section 13 – Final provisions
(1) The parties agree that the contract shall be governed by the law of the Federal Republic of Germany, excluding application of the German conflict-of-law rules of private international law.
(2) If the customer is a merchant, a corporate body under public law or a special fund under public law, the parties agree that the place of fulfilment shall be the place where the Provider has its registered seat and that the place of jurisdiction shall be the district of the local court of Unna, Germany.
(3) Where the parties refer to working days, Sundays, public holidays, dates or times, this shall be based on the standard time and the statutory public holidays regulations at the place where the Provider has its registered seat.
(4) Should any individual provision of these General Terms and Conditions be found to be invalid or unenforceable, this shall not affect the validity of the remaining provisions. The same shall apply in the case of an omission.