Terms of Service

The following words and phrases, when capitalised herein, have the meanings ascribed to them below:

“Agreement” — the contract between the Parties, comprising the Terms, the Privacy Policy and such other terms concerning the service as the Parties may agree to;

“Data Subject” — any natural person (individual) to whom any of the Relevant Data relate;

“DPA” — the data processing annexe at the end of these Terms;

“Feature” — a component, property or an aspect of the service;

“GDPR” — Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons concerning the processing of personal data and the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation);

“Intellectual Property” — any trademarks, service marks, domain names and business names, brands, rights of inventions, designs, databases and proprietary information (including, without limitation, trade secrets and know-how), patents, copyrights (including both economic and moral rights) as well as any other items treated as intellectual property or rights thereof under applicable law;

“Party” — each of the User and the Supplier (collectively, “the Parties“);

“Personal Data” — any information relating to an identified or identifiable natural person (individual). This term has the same meaning as ‘personal data under the GDPR;

“Privacy Policy” — the Supplier’s privacy policy, available at https://www.kimaimobile.com/private-policy/

“Relevant Data” — Personal Data that form part of Workspace Data;

“Representative” — anyone who represents the User upon his entry into the Agreement or in any transaction related hereto (e.g., ordering or terminating a Service Plan or amending or terminating the Agreement);

“Service” — depending on the context, either: (a) the Supplier’s providing (i) the Software and/or (ii) one or more resources or other benefits for use in conjunction with the Software and/or (iii) technical support services concerning the preceding; or (b) the above items collectively, any of them separately or any combination of any of them, notwithstanding that the item(s) in question may not consist in service (as, e.g., in the case of locally installable Software);

“Software” — the Supplier’s team calendar and task management software (currently branded Kimai Mobile) and such other Supplier-developed computer programs as the Supplier may make available in conjunction in addition to that, including such patches, updates, upgrades, further modifications and replacements thereof as the Supplier may from time to time provide. Each of the previous may take the form of an on-demand service, a local installation or a combination thereof;

“Supplier” – Cloudrizon GmbH, a German private company registered number 741039 established and doing business at Magirus-Deutz-Str. 12, 89077 Ulm, Baden-Württemberg.

“Terms” — these terms of service, including the DPA;

“User” — anyone other than the Supplier that downloads, saves, installs, uses, accesses, interacts with, or is the recipient of the service or possesses or controls, directly or indirectly, any item that forms part of the service, including, without limitation: (a) Customer; (b) anyone who performs any of the above acts on the User’s behalf or through his Workspace, whether authorised to do so or not; (c) anyone who accesses a resource (e.g., visits a web page or retrieves a file, information or some other object) that is located on the service or forms a part thereof; (d) anyone with a copy of any Software. Each User should interpret this term as referring specifically to him unless the context otherwise requires;

“Customer” — anyone other than the Supplier that purchased the access to the software. Each Customer is also a User (i.e., a particular type of User) and, unless the context otherwise requires, should interpret the term “Customer” as referring specifically to him;

“User Data” — any data, including Personal Data, that a User process (e.g., collects, enters, records, stores, alters, arranges, deletes, uses, transmits, discloses or makes available) through the workspace or otherwise using the service;

“Workspace” — a logical space in the Service user environment where one or more Customers may use the Features available to them

“Workspace Data” — the data stored or otherwise processed in, through or using a given Workspace, including all such User Data;

“Workspace Owner” — the User having ultimate responsibility for a given Workspace, its contents and all activities (including all data processing) performed in, through or using that Workspace. Workspace Owner is also referred to as the “Owner” in these Terms.

In these Terms: (a) the words “herein”, “hereto”, “hereof”, “hereunder”, “hereby” and “herewith” refer to the Agreement; (b) words denoting a gender or genders are to be construed as referring to all genders appropriate in the context; and (c) save where the context otherwise determines, the word “item” means any legal object, i.e., anything tangible or intangible (including any electronic object and any right or other benefit) that is capable of being the object of a right, duty or a capacity.

This Agreement constitutes the entire contract between the Parties relating to the subject matter hereof, superseding all prior agreements and understandings of the Parties concerning that matter. If any provision of the Agreement conflicts with any Service-related information provided elsewhere, the condition in the Agreement shall prevail.

The agreement shall form between the Parties as to each of the following aspects of their relations:

1. the Agreement with User that does not act like Customer
2. the Agreement with User that acts like Customer

Thus, most users will have more than one Agreement with the Supplier, each governing a different aspect of the Parties’ relations and comprising those terms hereof that are relevant to that aspect. Specifically:

1. each User shall have an Agreement with the Supplier, and that Agreement: (a) shall be effective upon the earlier of (i) the party to be identified as the User consenting to the Terms, whether explicitly or impliedly, with implied consent being deemed to have been given by the performance of any of the acts mentioned in the definition of “User”, and (ii) the said party becoming identifiable by any of the characteristics used in these Terms to define a User (except the attribute “other than the Supplier”); (b) is for an indefinite term, continuing in force until terminated according to its terms or on statutory grounds, except that certain of its provisions (as identified herein) will survive any termination hereof;
2. Each Customer shall have an Agreement with the Supplier, and that Agreement: (a) shall be effective upon the earlier of (i) the party to be identified as the Customer consenting to the Terms, whether explicitly or impliedly, with implied consent being deemed to have been given by the performance of any of the acts mentioned in the definition of “Customer”, and (ii) the said party becoming identifiable by any of the characteristics used in these Terms to define a Customer (except the attribute “other than the Supplier”); (b) is for an indefinite term, continuing in force until terminated according to its terms or on statutory grounds, except that certain of its provisions (as identified herein) will survive any termination hereof;

 

The Supplier’s undertakings concerning the service are to the User only. No one but the User may demand or rely on the Supplier’s performance of its respective obligations (or any other obligation that the Supplier may have under its Agreement with the Customer).

At the time of downloading, you allow us to issue you an invoice for the purchase in accordance with the terms of the marketplace. It may contain any other fees incurred in connection with your use of the Services, such as taxes, duties and possible transaction fees.

For all accounts, there are no refunds or credits for changes to your account.

Subject to the terms set forth herein, the Supplier grants to the below Party, and the latter accepts the following limited, non-exclusive and restrictedly-transferable right:

1. to the Customer – the right to access and use his workspace during the term hereof in a manner and by means benefits he is entitled to enjoy;
2. to the User having a complete end-user copy of a Software product – the right to install, store and use the respective Software copy during the term hereof on a device for which it is intended.
3. If the User is not a Customer, he is entitled to use the Software during the trial period; after this period, he could continue to be granted by licence only becoming a Customer.

Each of the above rights shall be exercised solely for the respective Party’s own internal legitimate purposes. None of these rights shall be sublicensed, assigned, encumbered or otherwise disposed of.

The service is intended for normal end-use, respecting the rights, freedoms and legitimate interests of others, and may only be accessed through the interfaces that the Supplier has provided or authorised, therefore.

Reproduction of the Software by persons other than the Supplier is only allowed for Software installation and backup, and only to the extent that such copy is necessary for using the Software under this Agreement.

As between the Parties, all Service-related Intellectual Property shall vest in and is retained by the Supplier. The User shall not acquire any right thereto or otherwise in connection with the service, except for the limited rights of use expressly outlined in this Agreement.

The Supplier will use commercially reasonable efforts to provide the User with the benefit of all Features.

Agreed explicitly between the User and the Supplier: (a) the Customer may contact the Supplier for technical support at the email address specified in the definition of “Supplier”; (b) the Supplier aims to respond to support requests within 72 business hours and endeavours to resolve Software errors and Service defects within a reasonable time, but makes no commitment as to how quickly support will be provided or such matters will be resolved.

The User acknowledges and agrees that:

1. the service (i) has not been designed to meet his specific requirements, (ii) may from time to time suffer interruptions and be occasionally unavailable, (iii) has and will continue to have specific bugs and vulnerabilities, and (iv) should not be relied upon in inherently dangerous circumstances;
2. the Software, the service, and anything offered or delivered as a part of, in conjunction with, or using any Feature is provided on an “as is” and “as available” basis;
3. use of any of the Features is at his own risk, as are his exposure to, down- and uploading of, transmission, receipt, storage, possession, disclosure and another handling of data, computer programs, software code or other items through or due to the service.

The service may provide links, references or access to third-party websites, resources or services, and the latter may provide the same in relation to the service. The Supplier is not responsible for the existence, absence or qualities (including the availability, reliability and security) of such external sites, resources or services, does not endorse them and shall not be liable for any loss, damage, expenses or other undesirable consequences attributable thereto.

The Supplier has no obligation to enhance, modify or replace any part of the service, or continue developing or releasing new versions thereof.

The Supplier may: (a) discontinue the service or cease providing the same to any Customer on a month’s notice; (b) cease providing the service to any User other than a Customer without notice; (c) suspend or restrict access to the service for anyone whose payment hereunder is overdue more than six days or whose use of the Service conflicts with the Agreement; and (d) suspend performance under the Agreement in whole or in part with immediate effect if legally required to do so.

The Customer must be a person (natural or legal) or an entity with legal capacity.

By becoming a Workspace Owner, and otherwise when transacting with the Supplier, the User shall use his valid legal name and provide such true and accurate contact and other information as the Supplier reasonably may request.

The User must comply with all legal requirements applicable to his use of the service, handling of Workspace Data, and other activities hereunder (including export control provisions and requirements for processing Personal Data).

The User warrants that his User Data, and, in the Customer’s case, the User Data of Guest Users, are lawful and acquired properly and that his data processing activities, and, in the Customer’s case, those of Guest Users, are legal.

The User further warrants that he will not use the service for sending unsolicited communications or uploading, transmitting, delivering, running, controlling or storing harmful code, malware or illegal content, and, in the Customer’s case, that no Guest User will do so.

Suppose the Supplier reasonably believes that User Data or the User’s data processing activities violate the law or otherwise conflict with the Agreement. In that case, it may, in its absolute discretion:

1. ask the User to take such action as the Supplier considers is necessary to remedy the matter (which, where feasible and legally permitted, will be the preferred option); or

2. remove, disable, restrict access to, or delete the data concerned without being liable (neither to the User nor anyone else) for any loss, damage or other undesirable consequences resulting therefrom.

The Representative personally warrants to the Supplier that:

1.his principal, upon becoming and while being a User, conforms to the description of being a person  (natural or legal) or an entity with legal capacity.

2. he is authorised to act on the User’s behalf; and

3. the transactions he makes on the User’s behalf, including, if applicable, this Agreement, are binding on the User.

The Customer shall be responsible for the activity that occurs under his Workspace, including all data processing and other acts performed through or by means thereof, and must notify the Supplier promptly upon learning of any security breach relating to, or unauthorised use of, his Workspace.

The User shall maintain his workspace Name, server URL, email, password and similar credentials in confidence.

The Supplier has no obligation to monitor or access any Workspace but may do so where reasonably warranted (e.g., providing technical support, preventing illegal or harmful activity, performing its duties hereunder or complying with a legal obligation).

Each Workspace must have an Owner, i.e., a User or third parties providing Workspace services to the User; they are equally ultimately responsible for the Workspace. If the User is an Owner of Workspace, the Owner is designated and accepts the responsibilities of the Owner’s role. Workspace Owner is jointly and severally liable for their Workspace having an Owner being a real person (natural or legal).

For the avoidance of doubt, it is not the Supplier’s duty to allocate responsibility or resolve disputes between Workspace members.

The Owner shall ensure that Workspace Data is lawful and acquired properly and that all data processing and other activities performed in, through or through the Workspace are legal.

The User acknowledges that the rights he has and the control he can exercise in relation to Workspace Data, including the ability to access, process and dispose of the same, are commensurate with his role in the Workspace.

As between the Parties, Workspace Data belongs to the Workspace Owner, and his instructions as to Workspace Data override those of any other User. The User acknowledges this and shall not hold the Supplier responsible for any undesirable consequences that he or anyone else may suffer due to the Supplier’s disposal or processing of User Data according to the instructions of an Owner other than the User where those User Data form part of that Owner’s Workspace Data.

Cloudrizon GmbH does not collect, store and otherwise process personal data within the use of the Software. Cloudrizon GmbH can collect, store, and use the personal data only if a User visits the website of the Software( www.kimaimobile.com) or the Supplier website (www.cloudrizon.de). In these cases, Cloudrizon GmbH could process all data following the Privacy Policy.

Concerning any product of the intellectual activity, including any object of Intellectual Property, that is submitted, contributed or otherwise knowingly made available for inclusion in the Software or any other part of the service, the Supplier shall be deemed to have been granted a non-exclusive, royalty-free, worldwide, perpetual (save as limited by law), irrevocable, freely transferable and fully sublicensable right to use, distribute, reproduce, modify, adapt, publish, translate, transmit, publicly perform, display and make available the same (in whole or in part) and to incorporate it into other items, including works and inventions, in any form or medium now known or hereafter developed. Anyone is making such contribution warrants to the Supplier that he is authorised to do so and that neither he nor any author of any item embedded in his contribution will seek any compensation or reimbursement in connection therewith.

Any warranty of the Supplier not expressly stated herein shall be deemed withheld. The Supplier disclaims, to the extent permitted by applicable law, all statutory and implied warranties and course of performance, course of dealing and usage related expectations concerning the service.

Without prejudice to the generality of the preceding, the Supplier makes no representation and gives no warranty or guarantee: 

• (a) that the service is fit for any particular purpose or accurate, timely, of satisfactory quality, enjoyable, available regardless of, or in any specific, jurisdiction, or non-infringing of third-party rights; 
• (b) that access to or the operation or use of the service will be uninterrupted, secure or error-free;
• (c) that any error or defect in the service will be corrected; 
• (d) that the service or any means by which it is accessed or used is free of undesirable objects, such as malware or other harmful or annoying components; 
• (e) concerning any third-party item; or 
• (f) to anyone who is not a Customer.

The Supplier’s disclaimers in connection with the service apply both to the service as a whole and each component thereof.

1. the service is provided “as is” and “as available”, with all faults and defects; and, in any event
2. the Supplier shall not be liable (under any theory of liability), neither to the User nor anyone else, for any undesirable consequences, including any loss or damage of whatever nature, whether foreseeable or not and even if advised of the danger thereof, that result from (i) any installation, implementation, upgrade, downgrade, modification or customisation of the Software not carried out by the Supplier, (ii) failure to use a Feature in accordance with the Agreement or applicable law, (iii) using a Feature in conjunction with an item not provided or approved by the Supplier, (iv) using a third-party item in conjunction with a Feature not in accordance with the relevant third-party instructions, (v) not applying an available fix, patch, update, service pack or upgrade that would have avoided the harmful event, (vi) inherently dangerous use of any Feature or anything else provided hereunder, (vii) any unauthorised accessing or use of a Customer’s Workspace, (viii) any unauthorised use of a User’s credentials, (ix) any communication received or transaction entered into through or by means of the service, (x) anyone’s statements or conduct on any site, page or other medium forming part of the service, or (xi) anything attributable to anyone other than the Supplier;
3. where subsection (b) does not apply, the Supplier shall not be liable (under any theory of liability), neither to the User nor anyone else, for any loss of profit, business or opportunity, or any special, consequential, incidental, indirect, punitive or non-patrimonial loss or damages, whether foreseeable or not and even if advised of the danger thereof. The Supplier may only be held liable for the User’s direct financial loss.
4. this section is without prejudice to the exclusions and limitations of liability that apply by operation of other provisions hereof.

Neither Party shall be liable for breaching his obligations due to a circumstance that is beyond his control and which he reasonably could not have foreseen or avoided and which, or whose consequences, he reasonably cannot be expected to overcome, such as, for example, a force of nature, conduct of public authorities, war, civil unrest, an act of terror, nontrivial cyberattack, failure of a third-party hosting, internet or utility service or any other circumstance qualifying as force majeure under applicable law — to the extent that the respective circumstance prevented or hindered the Party’s performance. For the avoidance of doubt, this section shall not limit the amount of, or excuse the User from paying, any fee or other sum that the User owes hereunder.

Nothing herein shall prevent the Supplier from invoking, or otherwise prejudice the Supplier’s recourse to, any statutory defence, remedy or exclusion or limitation of liability.

The protection afforded to the Supplier hereunder, and any statutory protection that the Supplier may enjoy, extends to anyone who acts on the Supplier’s behalf, exercises its rights or performs its duties or assists the Supplier in doing the same.

The User shall defend, indemnify and hold harmless the Supplier, its officers, directors, employees, contractors, agents and representatives from and against all claims made by and all damages, liabilities, penalties, fines, costs and expenses payable to any third party that arise from the User’s, or, if the User is a Customer:

1. Breach of any obligation, representation or warranty hereunder
2. Misuse of any Feature
3. Infringement of anyone’s Intellectual Property or proprietary or personal rights.

The User acknowledges that circumstances may arise that make it necessary or desirable to vary specific provisions of this Agreement from time to time. Such cases include:

1. The Supplier’s launch of a new service or a modification to the Service.
2. A significant change in the Supplier’s operating environment.
3. An order or a judgment being entered against or in favour of the Supplier.
4. Other events whose occurrence or expected occurrence in the Supplier’s reasonable opinion necessitates an amendment hereto.

The User agrees that: (a) upon any of the circumstances referenced in the preceding section the Supplier may make such changes to the Agreement as it reasonably deems appropriate; (b) the Supplier may amend the Agreement as follows: (i) if the User is a Customer, then by providing him with the revised text of the Agreement or the revised part thereof or with a URL specifying a location where the same is available on the internet, or (ii) if the User is not a Customer, then by any of the means described in point (i) or by posting the revised text of the Agreement or the revised part thereof on such page of the Supplier’s website as then used for publishing materials such as the Terms; (c) if he is a Customer and the revised version of the Agreement substantially reduces his rights or increases his responsibilities, the Supplier will give him reasonable notice of such new version’s entry into force.

Notwithstanding anything herein to the contrary, the Supplier may modify the Service or any part thereof at any time and for any reason, with or without notice. Unless otherwise expressly agreed, the use of any new features, versions, releases, updates or other modifications that the Supplier may make available in connection with the Service shall be subject to the Agreement. The User’s continued use of the Service after any such modification shall constitute his consent to the respective change(s).

If the User does not agree with the Supplier’s changes (whether to the Agreement or the Service), his sole remedy shall be to terminate the Agreement and stop using all Features.

The Agreement between the Supplier and a Customer can only be terminated by stopping using the Customer’s User workspace within the Software and deleting the Software from the device.

OBJECT
This DPA is between the Supplier and the User and forms part of the Agreement.
The purpose of the DPA is to supplement the Terms concerning the processing of Relevant Data. Accordingly, the DPA does not concern any other data or the processing thereof. Therefore, the Supplier’s obligations under this DPA must be viewed, i.e., as only relating to the processing of Relevant Data and not applying in any other context.
RELEVANT DATA
Personal Data whose processing is permitted
The types of Personal Data that a User (including the Owner) is allowed to process as part of Workspace Data are limited to those which the User is legally permitted to process. Therefore, the Owner undertakes that Workspace Data will not include, and neither he nor any other User who accesses the Workspace will use the service to process Personal Data whose processing is legally prohibited.
Personal Data whose processing is restricted
The User acknowledges that the processing of certain types of Personal Data is restricted or limited under the GDPR. Further, non-compliance with the relevant restrictions or limitations may result in substantial penalties, including fines, being imposed on, or other punitive, remedial or compensatory measures being taken against, the User, the Supplier involved in the processing.
Consequently, the User undertakes that, absent the Supplier’s prior explicit consent, Workspace Data will not include, and neither he nor any other User who accesses the Workspace will use the service for the processing of, Personal Data that fall within either of the following categories:
1. ‘special categories of personal data (also known as ‘sensitive information’) as described for the time being in Article 9 of the GDPR, including particularly but without limitation genetic data, biometric data and data concerning health;
2. ‘personal data relating to criminal convictions and offences or related security measures as described for the time being in Article 10 of the GDPR.
DATA SUBJECTS
The Owner will determine who the Data Subjects are or determine this jointly with other Workspace members (or together with certain members or a particular member thereof). As between the Parties, the Owner shall be deemed to have determined the same.
The categories of Data Subjects include but may not be limited to: (a) Users having access to the Workspace; (b) Users who interact with the Features applied via the Software.

If you have any questions regarding the Terms of Service, please contact us by email at support@kimaimobile.com.