General Terms and Conditions
CloneDesk is a product of CloneDesk UG (limited liability), Großbeerenstr. 89, 10963 Berlin, represented by the Managing Director Hendrik Henze. These terms are an automatic translation of the German terms.
Section 1 Scope
(1) These General Terms and Conditions (hereinafter referred to as “GTC”) apply to all contracts between CloneDesk UG (limited liability), Großbeerenstr. 89, 10963 Berlin, Phone: +49 (0) 30 – 6 09 84 99 77, Fax +49 (0) 30 – 6 09 84 99 73, E-Mail: info (at) clonedesk.com, Register Court: Charlottenburg District Court, HRB 213850 VAT identification number pursuant to Section 27a UStG: DE[noch unbekannt], Sole authorized Managing Director: Hendrik Henze (hereinafter “Provider”) and their customers (hereinafter: “User” or “Customer”) who use the software solution “CloneDesk” (hereinafter: “Application”) or extensions or other services for this purpose even if this is not agreed separately again.
(2) Unless expressly agreed otherwise, these General Terms and Conditions in their version valid at the time of conclusion of the contract shall apply exclusively. The latest version of the Terms and Conditions can be viewed, downloaded and printed at any time under https://clonedesk.com/en/terms/.
By registering an account, the customer expressly agrees to www.clonedesk.com the application of these GTC and waives the assertion of his own deviating terms and conditions of business or purchasing and payment terms. Other terms and conditions do not apply even if the provider does not expressly contradict them in individual cases. Deviating terms and conditions of the customer shall only apply if these have been agreed separately, expressly and in writing. If the customer does not agree with this, he must inform the provider immediately in writing.
(3) Customers within the meaning of these General Terms and Conditions are exclusively entrepreneurs within the meaning of Sections 14, 310 para. 1 BGB, i.e. any natural or legal person or partnership with legal status acting in the exercise of its commercial or independent professional activity at the time of conclusion of the contract. Provision of the application to consumers is excluded.
(4) Individual agreements made with the customer on a case-by-case basis (including ancillary agreements, additions and amendments) shall in any case take precedence over these GTC. Subject to the evidence to the contrary, the content of such agreements shall be subject to a written contract or written confirmation by the trader.
(5) Insofar as these GTC are also translated into other languages, this serves only as a reading aid. In the case of questions of dispute or interpretation, only the German version of this contract shall be used.
Section 2 Registration
(1) Use of the Application requires prior, free registration. There is no entitlement to open a user account. Only persons with unlimited legal rights who act in the exercise of their commercial or independent professional activity are entitled to participate. At the request of the provider, the customer must send the provider a copy of his identity card or name his VAT identification number and document registration under register law. To create a user account, the customer enters his e-mail address on https://app.clonedesk.com/register and receives access. The data required in the user account must be provided by the customer in full and truthfully. After successful registration, the registration to the website takes place by entering the stored e-mail address of the customer as well as the password chosen by the customer. The customer is obliged to keep the password secret and not to inform this third party in any way.
(2) Apart from the customer’s declaration of consent to the validity of these General Terms and Conditions, its registration is not bound by any obligations. With the registration alone, there is no obligation to order or book with regard to the software solution offered by the provider or other services.
(3) Insofar as the personal or company details of the customer change, the customer is responsible for updating them. All changes can be made on the website of the provider after registration in the personal area under “Profile Information”.
Section 3 Subject matter of the contract
(1) The subject of the contract is the provision of the software application CloneDesk or extensions for the use of its functionalities, the technical possibility of the use of the application or extensions by means of an internet browser and the granting or mediation of rights of use to the application or extensions as well as the provision of storage space for the data generated by the customer through the use of the application and/or the data required for the use of the application (hereinafter: application data) by the provider towards the customer against payment of the agreed fee.
(2) The application is offered in five variants. All variants include monthly webinars, phone support, and access to the support forum. The variants differ as follows:
|Inclusive volume of 100 tasks/month
|Inclusive volume of 500 tasks/month
|CloneDesk SMALL BUSINESS
|Inclusive volume of 5000 tasks/month
|CloneDesk MEDIUM BUSINESS
|Inclusive volume of 50,000 tasks/month,
API access (once development is complete)
PREMIUM Phone Support
annual on-site training
PREMIUM Phone Support
On-site training by arrangement
|Additional tasks for the respective billing period can be added to the Packages CloneDesk STARTUP, CloneDesk SMALL BUSINESS and CloneDesk MEDIUM BUSINESS (task additional volume). The size and prices of the packages depend on the respective offer on the website of the provider.
(3) Task within the meaning of these GtC is a coherent and closed chain of steps to perform a task. Each task can be paused or canceled. The tasks (including volumes) contained in the respective package can also be performed in parallel. Tasks started, paused, and canceled are counted against the inclusive volume. The calculation period starts with posting of the respective program variant and is one month.
(4) The application offers the possibility to book and use pre-built tasks (blueprints). The user can also release his own tasks as blueprint (if necessary for a fee). The provider identifies these blueprints accordingly. The provider does not check user-generated blueprints and does not guarantee them.
(5) Within the scope of the free variant CloneDesk FREE, the user cannot assert any claims from this contract beyond the statutory liability claims.
Section 4 Conclusion of the contract
(1) After registration, the free cloneDesk FREE version is available to the customer. This is available for an unlimited period of time, but for a maximum of 100 tasks (Section 3 (3) per month.
(2) The customer can also choose a program variant (STARTUP, SMALL BUSINESS, MEDIUM BUSINESS). To this end, he makes a selection among https://clonedesk.com/pricing/. After entering his billing and payment details, he confirms the conclusion of the contract by clicking on the button “Order for a fee”.
(3) In the case of selection of the ENTERPRISE package, the provider contacts the customer and submits an individual offer to him. By its acceptance, the contract is concluded.
(4) The customer has the possibility to book paid templates (blueprints) within the program. When you select a blueprint, the price is displayed. By clicking on “Order for a fee” the contract for the use of the respective blueprint is concluded.
(5) When the inclusive volume of the respective program variant is reached (Section 3 para. 2), the user is notified of this and cannot create new tasks in the remaining calculation period. The user can add additional inclusive volume by booking additional task volume or the next larger package (Section 4 para. 2).
Section 5 Provision of the application or extensions and storage space for application data
(1) The provider shall keep the application in the current version from the date of conclusion of the contract (Section 4) on one or more central data processing equipment, which he rents from third parties (hereinafter: server), for use in accordance with the following regulations Ready. The scope of the program’s services is determined by the program’s description at the time of ordering or the current description of the application. The service descriptions are part of the GtC.
(2) The provider is liable for the fact that the provided application
- suitable for the purposes resulting from the current service description,
- is free of defects during the entire term of the contract,
- Insb. free of viruses and similar malware, which cancel the suitability of the application for contractual use.
(3) Insofar as the supplier manufactures the application himself, he shall ensure that it always complies with the tried and tested state of the art.
If and to the extent that the provision of a new version or any other change results in the functionalities of the application, customer’s work processes supported by the application and/or restrictions on the usability of previously generated data, the provider will announce this to the customer in writing no later than six weeks before such a 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 notice, the change becomes part of the contract. The provider will draw the customer’s attention to the aforementioned period and the legal consequences of their expiry in the event of non-performance of the possibility of objection sifty at any notice of changes.
4. The provider shall have storage space on the server from the time the application is deployed to store the application data. The storage for application data and images is provided depending on the selected package.
(5) The application and application data are regularly backed up to the server. A full backup is performed weekly. The customer is responsible for compliance with commercial and tax retention periods.
(6) Transfer point for the application and application data is the router output of the provider’s data center.
(7) The respective system requirements or compatible browsers on the customer’s pages can be found on the website of the provider. Changes to the supplier’s technical system are subject to the opposition solution of the paragraph. 3 underabs. 2 accordingly. The provider is not responsible for the quality of the required hardware and software on the part of the customer as well as for the telecommunications connection between the customer and the provider up to the transfer point.
Section 6 Availability of the application, planned unavailability
(1) The provider owes the availability of the application and the application data at the transfer point agreed below. By availability, the contracting parties mean the technical usability of the application and the application data at the transfer point for use by the customer.
(2) The provider shall provide the customer with the application from the date of registration, but this to the exclusion of the agreed periods of announced unavailability.
(3) Available use also includes periods during the
- malfunctions in or due to the condition of parts of the technical infrastructure necessary for the execution of the application not to be provided by the supplier or its vicarious agents;
- Disruptions or other events that are not (co-)caused by the provider or one of its vicarious agents, e.g. exceeding an agreed authorised use of the application;
- negligible reduction in suitability for use in accordance with the contract;
(4) Announced unavailability
(a) In times of announced unavailability, the Provider is entitled to maintain, maintain, perform data backups or other work on the Application and/or Server. Announced unavailability and its expected duration will be announced to the customer at least 7 days in advance. This period may be shortened in justified exceptional cases.
(b) Use of the Application in times of announced unavailability
If and to the extent that the customer can use the application in times of announced unavailability, there is no legal claim to this. If, in times of announced unavailability, the use of an application leads to a reduction or discontinuation of performance, the customer is not entitled to any defect or compensation.
In the event of unplanned unavailability of the application, the provider shall ensure that the troubleshooting is initiated within a reasonable time and that the customer is informed of this. The provider shall also ensure that the reported or noted technical fault is rectified at a time commesed with in the scope of the fault.
Section 7 Non-fulfilment of principal performance obligations
(1) If the provider does not fully comply with the obligations agreed in Sections 5 to 6, the following regulations shall apply.
(2) If the provider is in arrears with the initial operational provision of the application, the liability shall be governed by Section 16. The customer is entitled to withdraw from the contract if the provider does not comply with a two-week grace period set by the customer, i.e. does not provide the full agreed functionality of the application within the grace period.
(3) If, when using the application, the 6 agreed availability for reasons for which the provider is responsible, the customer has a right of reduction. The severity, timing and duration of the disturbance shall be taken into account when determining the reduction. The amount will be credited to the customer as a credit note.
Section 8 Other services of the provider
(1) An electronic help function, a support forum and telephone support are available to the customer during the term of the contract.
(2) If the provider provides third-party software as an application and no documentation in German/English is generally available from this third party, the provider is entitled to provide only the documentation available to him.
The customer is entitled to store, print and reproduce the provided documentation in reasonable numbers while maintaining existing intellectual property notices. In addition, the restrictions on the use of the documentation agreed for the application in accordance with Section 9 apply accordingly.
(3) The provider provides customer support. The accessibility times and communication channels can be found on the website of the provider. The provider reserves the right to adjust the accessibility times and channels.
(4) Further services of the provider can be agreed at any time. Such other services shall be provided against reimbursement of the proven expenses at the generally applicable prices of the supplier at the time of the commissioning.
Section 9 Rights of use and use of the application, rights of the provider in the event of exceeding the rights of use
(1) Rights of use of the application
(a) The Customer shall receive simple (non-sublicensable and non-transferable) rights of use in the Application, limited to the term of this Agreement, in accordance with the following provisions.
(b) The customer uses the application exclusively on the server. There is no physical transfer of the application to the customer. The customer may only use the application for his own business activities by his own personnel.
(c) The customer is not entitled to make changes to the application. This does not apply to changes necessary for the correction of errors, provided that the provider is in arrears with the correction of the error, refuses to correct the error or is unable to rectify the error due to the opening of the solvency procedure for correcting the error.
(d) If the Provider makes new versions, updates, upgrades or other new deliveries with respect to the Application during the term, the above rights shall also apply to such.
(e) Rights which are not expressly granted to the Customer above shall not be vested in the Customer. The customer is in sb. does not have the right to use the application beyond the agreed use or to have it used by third parties or to make the application accessible to third parties. lnsb. it is not permitted to reproduce, sell or allow the application to be used for a limited period of time, in s. not to be rented or lent.
(2) Customer’s obligations to use safely
(a) The customer takes the necessary precautions to prevent the use of the application by unauthorized persons; in particular, the customer shall ensure that the passwords used contain at least 8 characters.
(b) The customer is liable for the fact that the application is not used for racist, discriminatory, pornographic, endangering the protection of minors, politically extreme or otherwise unlawful or contrary to official regulations or regulations or corresponding data, in s/ application data, created and/or stored on the server.
(3) Violation of the provisions of paragraph 1 and 2 by the customer
(a) If the customer violates the regulations in paragraph 1 or 2 for reasons for which it is responsible, the provider may block the customer’s access to the application or the application data if the violation can be demonstrably stopped as a result.
(b) If the customer unlawfully violates paragraphs. 2 lit. b, the provider is entitled to delete the data or application data that is affected. In the event of an unlawful infringement by the user, the customer must immediately provide the provider with all information on the basis of the claims against the user, in s/he/she/he/she/he/she/he/she/he/she/he/she/he/she/he/she/he/she/he/she/he/she/he/she/he/she/he/she/he/she/he/she/he/she/he/ its name and address.
If the customer continues to violate the regulations in paragraphs despite a written warning from the provider. 1 or 2, and if he is responsible for this, the provider may terminate the contract without observance of a notice period.
(c) In the event of breaches of duty by the customer, the supplier may claim damages in accordance with Section 16, unless the customer is not responsible for the breach of duty
(4) Customer’s rights to any emerging databases/database works
If and to the extent that it is during the term of this contract, in s/ by compiling application data, by creating a database, databases, database or database works by the activities permitted by this contract, all rights thereof to the customer. The customer remains the owner of the databases or database works even after the end of the contract.
(5) If and insofar as the user creates blueprints and releases them for use by third parties, he grants the provider an unlimited, sublicensable and transferable right of use. In particular, the user grants the provider the right to make blueprints available to third parties within the application, if necessary, even after the termination of the contract. The user’s remuneration is governed by Section 11 para. 8.
Section 10 Liability for the rights of third parties
The provider shall not be liable for a violation of the rights of third parties by the customer, if and to the extent that this violation results from an overrun of the rights of use granted under this contract. In this case, the customer shall, upon first request, release the supplier from all claims of third parties.
Section 11 Remuneration
(1) The remuneration for the services to be provided for the grant of use with regard to the application and provision of storage space, including data protection, shall consist of a basic monthly flat rate and usage-based remuneration in accordance with in accordance with paragraphs of 2 to 4 together.
(2) The monthly basic flat rate is based on the applicable price list at the time of conclusion of the contract (Section 4 para. 2). The price list can be viewed on the website of the provider.
The respective basic flat rate applies for each month started from the operational provision. It is due in advance at the beginning of the respective billing period. If the customer has justifiably terminated the contract exceptionally, the lump sum must be repaid on a pro rata basis.
(3) The fee for bookable blueprints depends on the price indicated at the time of booking (Section 4 (4)).
(4) The usage-related fees according to paragraph 3 will be charged at the time of booking.
(5) The provider is entitled to increase the agreed prices for the contractual services appropriately to compensate for personnel and other cost increases. The provider will announce these price increases to the customer in writing or by e-mail; the price increases do not apply to the periods for which the customer has already made payments. If the price increase exceeds 7.5% of the previous price, the customer is entitled to terminate the contract in its entirety with a period of three weeks at the end of a calendar month; if he makes use of this right of termination, the non-increased prices shall be charged until the termination takes effect. The provider will inform the customer of this right of termination together with each announcement.
An increase in prices within 12 months after the conclusion of the contract is excluded.
(6) Individual developments are calculated according to the time required according to the valid tariffs of the provider at the respective time. In individual further developments, the customer acquires simple usage rights in accordance with 9 for the duration of the contract.
(7) Other services are provided by the provider according to effort (time & material) at the general list prices of the provider applicable at the time of the assignment.
(8) Insofar as the customer creates blueprints and releases them for paid use by third parties, he is informed at regular intervals about the number of bookings and the resulting amount of remuneration. Compensation is paid as soon as they add up to an amount of EUR 100.
(9) Compensation is payable plus VAT in the applicable statutory amount.
Section 12 Obligations and obligations of the customer
The customer will fulfil all obligations and obligations necessary for the execution of the contract. In particular, it will:
(1) keep the usage and access rights assigned to him or the users secret, protect them from access by third parties and do not pass them on to unauthorized users. This data shall be protected by appropriate and usual measures. The customer will inform the provider immediately if there is a suspicion that the access data and/or passwords may have become known to unauthorized persons;
(2) the information set out in Section 5 (5) 7 create and maintain agreed access conditions;
(3) comply with the restrictions/obligations with regard to the rights of use in accordance with Section 9, in s.
(a) do not obtain or retrieve any information or data without authorisation, or interfere with or interfere with programmes operated by the provider or infiltrate or promote such intrusion into the provider’s data networks without authorisation;
(b) do not misuse the exchange of electronic messages, which may be exchanged in the context of the contractual relationship and/or using the application, for the unsolicited sending of messages and information to third parties for advertising purposes;
(c) insoisaging the provider of claims by third parties that are based on unlawful use of the application by the customer or that arise from data protection, copyright or other legal disputes caused by the customer, which may arise with the associated with the use of the application;
(d) the Authorized Users undertake to comply with the provisions of this Agreement applicable to them;
(4) ensure that it respects all third-party rights to the material used by the provider (e.g. when transmitting third-party texts/data to the provider’s server and creating blueprints), complies with applicable legal requirements and does not create content that may result in third-party infringements;
(5) insoisay the provider of claims by third parties based on illegal content or incorrect information in blueprints made available to other users (Section 3(4));
(6) pursuant to Section 13 para. 2 obtain the required consent of the respective data subject insofar as he collects, processes or uses personal data when using the application and does not intervene in any legal authorisation;
(6) before sending data and information to the provider, check them for viruses and use state-of-the-art anti-virus programs;
(7) if, in order to generate application data, it transmits data to the provider with the help of the application, backs it up regularly and in accordance with the importance of the data and prepares his own backups in order to reconstruct the enable them to be made possible;
(8) if and to the extent that he is given the technical possibility to do so by mutual agreement, he regularly saves the application data stored on the server by downloading; The obligation of the provider to secure data in accordance with Section 5 para. 5.
Section 13 Data security, data protection
(1) The contracting parties shall comply with the applicable, in- observe the data protection regulations in force in Germany and oblige their employees employed in connection with the contract and its implementation to comply with the data secrecy in accordance with Section 53 of the German Data Protection Act (BDSG), unless these are already generally are obliged to do so.
(2) If the customer collects, processes or uses personal data, he shall be responsible for ensuring that he/ in accordance with the applicable, in-use data. data protection law, provisions and inthe event of a breach inexempts the provider of third-party claims.
(3) The provider will only collect and use customer-related data to the extent required by the implementation of this contract. The customer agrees to the collection and use of such data to this extent.
(4) The obligations under paragraph 1 to 3, as long as application data is within the control of the provider, also exist beyond the end of the contract.
(5) The contracting parties conclude an agreement on the order data agreement in accordance with Article 28 GDPR or Section 62 of the German Data Protection Act (BDSG). In the event of any inconsistency between this contract and the contract for the processing of the order data, the latter shall proceed to the former.
(6) In addition, the data protection declaration of the provider applies.
Section 14 Confidentiality
(1) Confidential information is the information expressly designated as confidential by the information-giving contracting party and information the confidentiality of which is clear from the circumstances of the transfer; in particular those of economic value, protected by the holder concerned by appropriate confidentiality measures and not yet known or readily accessible in their entirety or in their details.
The provider must treat confidentially in all. application data, should he gain knowledge of them
No confidential information is available insofar as the contracting party receiving the information proves that it
- known to him before the date of receipt or were generally accessible;
- known to the public before the date of receipt or were generally accessible;
- became known to the public after the date of receipt or became generally available without the information-receiving contracting party being responsible for this.
(2) The contracting parties shall keep confidential about all confidential information that has come to their attention in the context of this contractual relationship or shall only keep it confidential in the written agreement of the other contracting party. to third parties, for whatever purpose.
3. Public declarations by the contracting parties on cooperation shall be made only by prior mutual agreement.
(4) The obligations under paragraph 2 shall also exist indefinitely beyond the end of the contract, for as long as an exception under paragraph. 1 has not been proven.
Section 15 Penalty in the event of breach of obligations pursuant to Sections 13, 14
If a contractual partner violates an obligation under Sections 13, 14 for reasons for which he is responsible, a contractual penalty of EUR 1,000.00 shall be payable in each case of the breach.
Furthermore, the injured contractual partner may claim damages in accordance with Section 16 of this contract, whereby the contractual penalty is to be set off.
Section 16 Liability, Limits of Liability and Penalty
(1) The contractual partners shall be liable to each other without limitation in the event of intent or gross negligence for all damages caused by them and their legal representatives or vicarious agents.
(2) In the event of slight negligence, the contracting parties shall be liable without limitation in the event of injury to life, body or health. In the case of free use (CloneDesk FREE), this liability is limited by Section 599 of the German Civil Code (BGB).
(3) In addition, a contractual partner is only liable if he has violated an essential contractual obligation. Essential contractual obligations are obligations which are of particular importance for the achievement of the objective of the contract, as well as all those obligations which, in the event of a culpable breach, may endanger the achievement of the purpose of the contract. . In such cases, liability is limited to compensation for foreseeable, typically occurring damage. The provider’s liability for damages (Section 536a of the German Civil Code) for defects present at the time of conclusion of the contract is excluded; Abs. 1 and 2 remain unaffected.
(4) A contractual partner is only obliged to pay a contractual penalty if this contract expressly provides for this. A contractual penalty need not be reserved. The set-off with and against it is permissible.
(5) Liability under the Product Liability Act remains unaffected.
Section 17 Term, Termination
(1) The contractual relationship begins with the conclusion of the contract (Section 4).
(2) If the customer has chosen an annual term, the duration of the contract is 12 months. If the customer has chosen a monthly term, the contract period is 30 days. The contract shall be extended by the selected term if it is not terminated in due time. In the case of an annual term, the period is 30 days before the end of the contract term. In the case of a monthly term, the period is 7 days before the end of the contract term.
(2) The customer may switch to a higher contract variant at any time. A new annual or monthly term begins with the change.
(3) Extraordinary termination due to or in connection with a breach of duty is only possible after the previous written warning with a reasonable period of not less than 14 working days.
If the contracting party entitled to terminate the contract has been aware of the circumstances justifying the extraordinary termination for more than 7 working days, he can no longer base the termination on these circumstances.
(4) Notwithstanding the provisions in paragraph 4, 3 the supplier may terminate the contract without observance of a period if the customer pays the prices for two consecutive months or in a period of more than two months, with the payment of the remuneration in the amount of an amount reached for two months is in arrears. In this case, the provider may additionally claim a lump sum of lump sum in the amount of a quarter of the remaining monthly basic lump sum until the end of the regular contract period. The customer reserves the right to prove that there is less damage.
Section 18 Force Majeure
None of the contractual parties is obliged to fulfil the contractual obligations in the event of and for the duration of force majeure. lnsb. the following circumstances must be regarded as force majeure in this sense:
- Fire/explosion not for the contractual partner
- war, mutiny, blockade, embargo,
- industrial action lasting for more than 6 weeks and not culpably caused by the contracting party,
- technical problems of the Internet that cannot be influenced by a contractual partner.
Each contractual partner must inform the other immediately in writing of the occurrence of a case of force majeure.
Section 19 Final Provisions
(1) German substantive law shall apply to the contractual relationship to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
(2) There are no ancillary provisions outside this Contract. Amendments or additions to this Agreement and to the Annexes shall be of the text in order to be effective. This also applies to the condition of the text form requirement.
(3) The possible invalidity of individual provisions of this contract shall not affect the validity of the remaining content of the contract.
(4) Unless a standard necessarily orders a different place of jurisdiction, the exclusive place of jurisdiction is the landgericht responsible for Berlin.