Terms of ClockAssist
Last Updated: March 4, 2020
YOU ARE REQUESTED TO READ THESE TERMS CAREFULLY BEFORE USING THE SERVICES AND TO CONTACT US IN CASE OF ANY UNCERTAINTIES.
Section 1. About the General Terms and Conditions
1. Operation of these Terms
- The Terms apply to you at all times, both if you are a customer or contracting party of ClockAssist (for example, an accounting or administrative office) and if you are a user (hereinafter: "the "User") of the Services, a User can, for example, be an employee of an accounting or administrative office.
- The Services consist, where applicable, at least of the services as discussed and/or offered via https://www.clockassist.com/ (hereinafter: the "Website"), through software to be installed by ClockAssist (hereinafter: the "Windows application"), through the Web portal (hereinafter: "the "Web portal""), through apps for phones (hereinafter together: the "Smartphone App"), and furthermore through all software, texts, services provided by, through or on behalf of ClockAssist.
- All software offered by, on behalf of, or through ClockAssist, including but not limited to, the Website, the Windows application, and the Web portal and the Smartphone App, regardless of version or operating system, are collectively referred to as the "Software".
- Your general terms and conditions (to the extent applicable) are expressly rejected hereby.
2. Scope of Application
- These Terms apply to this and all future legal relationships between you and ClockAssist.
- Your access to and use of the Services constitute your agreement to be bound by these Terms and establish a contractual relationship between you and ClockAssist. If you do not agree to these Terms, you may not access or use the Services.
- These Terms expressly replace any prior agreements or arrangements with you. ClockAssist may immediately and unconditionally terminate any agreement or arrangement with you or discontinue altogether the provision of or refuse access to the Services or any part thereof, at any time and without giving any reasons.
- These Terms also apply for the benefit of third parties involved by ClockAssist in the execution of the agreement, as well as for the benefit of ClockAssist's personnel, directors, and advisors.
3. Additional Terms
- Additional terms of ClockAssist may apply to certain specific Services, or may be agreed upon in addition to these terms.
- To the extent that the additional terms are agreed upon in writing or communicated by or on behalf of ClockAssist via the Software, what is included in the following clause shall apply.
- The additional terms are supplementary and shall be deemed to form part of the Terms. The additional terms shall prevail over these Terms in the event of a conflict regarding the applicable Services.
4. Changes in Terms
- ClockAssist may change these Terms from time to time. Changes are effective after ClockAssist has published the amended Terms via (part of) the Software, for example via the Website. Additional terms as mentioned in the preceding article will also be effective after they have been communicated to you or, if earlier, from the moment of publication.
- Your continued access to or use of the Services
after such publication constitutes your consent to be bound by the amended Terms.
- If you do not agree to the amended Terms, you may not access or use the Services anymore.
- ClockAssist may notify you about the changes in the Terms, for example, via the Website, or by email.
Section 2. Use of the Services
5. Services and Liability
- The services of ClockAssist consist of an attempt to provide a system that automatically records the amount of time spent on various activities.
- ClockAssist will make every effort to provide the Services with care and to the best of its ability. This is done on the basis of a best-effort obligation. The application of Article 7:404, 7:407(2), and 7:409 of the Dutch Civil Code is expressly excluded.
- To the extent that ClockAssist provides support or instructions regarding the use of the Services, this is done voluntarily and it is not obligated to do so under these Terms, except to the extent that other agreements are made. You are required to take note of all information provided by ClockAssist and to follow all instructions from ClockAssist.
- ClockAssist cannot be held responsible for the actions or omissions of a (different) User through or in connection with the Software or otherwise. ClockAssist is at all times entitled to modify and/or terminate (the content of) the Services.
- ClockAssist assumes no responsibility for its statements via the Software or otherwise and provides Services on an "as is" basis, excluding any express or implied warranties, representations, or indemnifications of any kind, including (but not limited to) the exclusion of warranties with respect to entitlement to (property) rights, sufficient quality, availability of the Services, fitness for a particular purpose, and non-infringement of property rights or third-party rights. In particular, ClockAssist does not guarantee: a) the accuracy, completeness, suitability, timeliness, and non-illegality of the information it provides, so that Users have full responsibility to (1) provide the correct information, (2) verify the information provided by or on behalf of ClockAssist, and (3) make adjustments or, if this is not possible, inform ClockAssist of any inaccuracies; b) that the Software will operate uninterrupted and free from (intentional) interference by third parties; and c) that third parties will not unlawfully use the Software and/or ClockAssist's systems.
- ClockAssist is not liable for direct, indirect, incidental, special, exemplary, punitive, or consequential damages, including lost profits, lost data, personal injury, or property damage related to, in connection with, or otherwise arising from the use of the Services, even if ClockAssist has been advised of the possibility of such damages. In any case, ClockAssist is not liable to the extent that the damage arises from inadequate security or incorrect use by you.
- You agree that the entire risk arising from your use of the Services is entirely at your own risk, to the maximum extent permitted by law.
6. Correct Information, Information Obligation, and Control Obligation
- By using the Services, you provide information, which information may consist of (but is not limited to): a) Personal and business information, such as name, address, place of residence, Chamber of Commerce number, and contact details; b) Information about your activities on a working day; c) Information relating to (capacity, work, activities, correspondence, etc.) of your clients, clients of your clients, etc.; d) Adjustments and corrections you provided regarding the (automatically) recorded time and activities. e) etc. All this information, and furthermore all information provided by you to ClockAssist, in any way, is hereinafter referred to as: "User Content".
- You agree that ClockAssist uses and processes the User Content in the context of the Services. This is done primarily automatically, and ClockAssist has no obligation to verify User Content.
- You are obliged to always provide complete, accurate, clear, non-misleading, and recent information and continuously check whether the information known to ClockAssist is correct, complete, and up-to-date. You are and remain responsible as a User for the content of all information provided, as well as for the information produced by ClockAssist, whether or not based on your input.
- Furthermore, you realize that timely provision of correct and complete information is essential for the proper provision of the Services.
- ClockAssist may request you to provide additional information or to verify information known to ClockAssist. You must comply with such a request, regardless of the reason for the request, and even if ClockAssist does not wish to provide a reason (yet). ClockAssist may deny you access to or use of the Services if or for as long as you do not provide the requested information, without being liable for any (consequential) damage.
- In case of a violation of the foregoing, you are obliged to compensate for any damage caused thereby. You indemnify ClockAssist against claims from third parties (including other Users) in connection with your violation of this article.
7. Interference with Third Parties
- You agree to comply with all applicable laws when using the Services, and you may only use the Services for lawful purposes.
- You will not cause inconvenience, nuisance, discomfort, or property damage to others during your use of the Services. You will also at all times ensure the protection of the privacy of all involved.
8. Network Access and Devices
- You are responsible for obtaining access to the data network necessary for using the Services, and therefore you are responsible for the associated costs, such as (but not limited to) costs for obtaining internet, subscription costs for your mobile phone, call costs, etc.
- You are responsible for purchasing and updating compatible hardware or devices necessary for access to and use of the Services and applications and any additional updates thereof.
- ClockAssist does not guarantee that the Services, or any part thereof, will work on certain hardware or devices. Moreover, the Services may be subject to disruptions and delays inherent in the use of the internet and electronic communication.
- ClockAssist is not liable for damage arising from or after your use or use of Services, regardless of the nature of the damage. Therefore, you must take out appropriate insurance yourself.
- If you have an account with ClockAssist, you are responsible for any activity that occurs under your account or registration, and you agree to keep your account username and password confidential at all times. Unless otherwise agreed in writing with
ClockAssist, you may only own one account per person.
- You may not authorize third parties to use your account, and you may not assign or otherwise transfer your account and/or registration to other individuals or entities without prior written consent from ClockAssist. It is also prohibited to allow third parties, including other Users, to use your account.
11. Maintenance and Malfunctions
- ClockAssist is entitled to temporarily disable or restrict the Services if, for example, this is necessary for maintenance or adjustment, without any right to compensation arising therefrom, even if it turns out that ClockAssist did not or belatedly announce this.
- You acknowledge and accept that it is possible that the Software is temporarily unavailable, the Services are otherwise inaccessible, or do not function properly due to technical malfunctions or maintenance, the ClockAssist team is temporarily unavailable, etc. In this case as well, ClockAssist is not liable, and no right to compensation arises.
Paragraph 3. Personal data and privacy
12. Protection of your privacy
13. Your care with regard to other users
- You realize and acknowledge that the User Content provided by other users, including, in any case, activities and hours, is of a personal nature. You (for example, in the capacity of a manager or colleague) therefore undertake to handle this carefully and, to the extent reasonably required, not to become aware of User Content provided by another user about hours and activities before this User Content is released by that user themselves.
14. Your obligations regarding (confidential) data.
- You realize and acknowledge that the information you work with and the information sent to ClockAssist is often of a confidential nature. You realize and acknowledge that ensuring this confidentiality is (partly) your responsibility. You will therefore do everything to sustainably guarantee the confidentiality.
- An implication of the obligation as set out in the preceding paragraph is also that you are obliged to immediately notify ClockAssist if you have reason to suspect that the confidentiality of information is at stake.
15. Third-party services and content
- Any link, reference, or otherwise on the Website or elsewhere to a third party's (website) does not imply a recommendation by ClockAssist. In no event will ClockAssist be responsible or liable for any of the products or services of third parties.
Paragraph 4. Copyright
16. License and restrictions
- Subject to your compliance with these Terms, ClockAssist grants you a limited, non-exclusive, non-sublicensable, revocable at any time, and non-transferable license to: (i) access and use the Software on your personal device solely in relation to your use of the Services; and (ii) access and use any content, information, and related materials that may be made available through the Services.
- All rights not expressly granted herein are reserved to ClockAssist and its licensors. Unless otherwise agreed, all your rights as mentioned above, including the aforementioned license, will terminate at the end of the agreement with ClockAssist.
- You may: (i) not remove any copyright, trademark, or other proprietary notices from any part of the Services; (ii) not reproduce, modify, prepare derivative works based upon the Services, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, broadcast, or otherwise exploit; (iii) not decompile, reverse engineer, or disassemble the Services; (iv) not refer to, mirror, or frame any part of the Services; (v) not launch or use any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any part of the Services or unnecessarily burden or hinder the activity and/or functionality of any part of the Services; or (vi) not attempt to gain unauthorized access to or disrupt any part of the Services and the related systems or networks.
17. Ownership rights
- All rights to and regarding the Services and the Software are and remain the property of ClockAssist, or where applicable, its licensors. Neither these Terms nor your use of the Services grant you rights: (i) to or regarding the Services except for the aforementioned limited granted license, or (ii) to use or refer in any way to the business names, logos, product and service names, trademarks, or service marks of ClockAssist or its licensors.
18. User-provided content
- ClockAssist attaches great importance to exercising due care with regard to the User Content (as mentioned above).
- By providing the User Content to ClockAssist, you grant ClockAssist a royalty-free, unlimited in content, time, and transferability, license with regard to that User Content to do everything necessary in the broadest sense for the provision of the Services.
- You hereby represent and warrant that: (i) you are either the sole and exclusive owner of all User Content or you possess all rights, licenses, permissions, and necessary releases to grant ClockAssist the license for the User Content as set forth above; and (ii) neither the User Content, nor your submission, uploading, publishing, or otherwise making available of such User Content, nor the use of the User Content by ClockAssist as permitted herein, infringes, is inappropriate, or violates the intellectual property or proprietary rights, as well as publication or privacy rights, of third parties, or will result in a violation of any applicable law or regulation. Furthermore, you indemnify ClockAssist against (potential) claims from third parties in connection with User Content provided by, on behalf of, or on your behalf.
- You agree not to provide User Content that is defamatory, libelous, hateful, violent, obscene, pornographic, unlawful, or otherwise offensive, regardless of whether such material is legally protected. ClockAssist may, but is not obligated to, review, monitor, or remove User Content, at its own discretion, at any time, for any reason, without any obligation to notify you.
Paragraph 5. Payment for the Services
- The prices and rates used by ClockAssist are exclusive of VAT and other government levies that are or may be imposed, unless stated otherwise.
- The prices and rates in quotations and on invoices are based on data known to ClockAssist about selected Services and data about (for example) your company, such as turnover, number of customers, etc. (hereinafter collectively referred to as the "Billing Information"). Once the Billing Information changes or it appears that the Billing Information no longer corresponds to the data on the basis of which ClockAssist has invoiced or quoted, you are obliged to report this immediately.
- ClockAssist has the right at all times to adjust prices and rates if your Billing Information changes (as mentioned above). ClockAssist also has the right to retroactively invoice for past periods if it appears that incorrect Billing Information was used for invoicing in the past.
- ClockAssist may adjust the prices and rates applicable under this agreement in writing with a notice period of at least three months. Such a right to price adjustment by ClockAssist exists in any case when the price increase is the result of increases in taxes or other levies and/or rights imposed by the government.
- Payment is made by transfer to a bank account designated by ClockAssist, unless otherwise agreed.
- Unless otherwise agreed, payment must be made no later than 14 days after receipt of an invoice for this purpose. Payment must then be made in a timely and complete manner without deduction, suspension, or set-off. Objections to the amount of the invoices or with regard to the Services do not suspend your payment obligation.
- In the event of non-payment or (partial) non-payment within the period mentioned in the previous paragraph, you will be in default by operation of law without prior notice or notice of default. From the moment of default, you owe statutory commercial interest until the day of full payment.
- ClockAssist has the right to suspend the performance of its obligations until the moment of full payment of all outstanding invoices, regardless of whether they have become due.
Paragraph 6. Termination of Agreement and Interpretation
21. Transfer of Rights and Obligations
- You may not assign or transfer (rights or obligations from) your agreement(s) with ClockAssist and/or these Terms in whole or in part without the prior written consent of ClockAssist.
- You consent to ClockAssist assigning or transferring (rights or obligations from) these Terms to, among others, (i) a subsidiary or otherwise affiliated entity; (ii) a purchaser of the assets, business operations, or assets of ClockAssist; or (iii) a successor by merger. You hereby also declare to be bound by these Terms with respect to any third party.
- ClockAssist is also entitled to have this agreement performed in whole or in part by third parties, involve third parties in the performance, or have third parties provide the Services.
22. Other Provisions
- If any provision of these Terms is found to be wholly or partly illegal, invalid, or unenforceable under any law, such provision or part thereof shall be deemed not to form part of these Terms, but the legality, validity, and enforceability of the remainder of these Terms shall remain unaffected. In such a case, the parties shall replace the (part of the) illegal, invalid, and unenforceable provision with a (part of a) provision that is legal, valid, and enforceable and that to the greatest extent possible has a similar effect to the (part of the) illegal, invalid, or unenforceable provisions, in terms of the content and purpose of these Terms.
- ClockAssist is not obliged to fulfill any obligation if it is prevented from doing so as a result of force majeure.
23. Duration and Termination of the Agreement
- Each agreement between you and ClockAssist is entered into for an indefinite period, unless expressly agreed otherwise. Even if you no longer use the Services, these Terms remain in full force.
- ClockAssist has the right to terminate the agreement with you without observing a notice period, without further notice of default or judicial intervention, and without being obliged to pay any damages, and/or to refuse and block your use of the Services and the Software if: 1) you are declared bankrupt or apply for a suspension of payments, apply for suspension of payments, or your own bankruptcy, or are in debt restructuring (in accordance with the Dutch Act on Debt Restructuring of Natural Persons or Bankruptcy Act); 2) you cease your business operations, or a substantial part of your assets is seized, or a situation arises that renders you unable to fulfill the agreement with ClockAssist in a proper manner; 3) you act in violation of one or more of these Terms or other provisions of your agreement with ClockAssist; 4) you act in violation of applicable law or regulations; 5) you act in violation of one or more instructions from ClockAssist; 6) you do not fully or timely pay ClockAssist; 7) you cause direct or indirect damage to ClockAssist and/or other Users, or (knowingly) act in such a way that this is or could be an expected consequence; 8) ClockAssist's data indicates that you have not used the Services for more than two months.
- If at the termination of the agreement with ClockAssist there are still outstanding invoices or if Services have already been provided that have not yet been invoiced, you are obliged to pay in full without any right to discount, suspension, or set-off. Furthermore, ClockAssist has the right, in the event of termination for any of the reasons mentioned in the second paragraph, to recover all (consequential) damages from you.
- After termination of this agreement, you lose the rights, including usage rights, therefrom. You are obliged to immediately remove the Software (including, at least, the Windows application) from all your systems at the end of this agreement. ClockAssist is not obliged to cooperate after the end of this agreement, for example with a planned data conversion.
Paragraph 7. Disputes, Liability, Forum, and Choice of Law
24. Disputes, Damages, and Limitation of Liability
- You acknowledge and accept that ClockAssist cannot be held liable for or because of User Content or information provided by you or other Users. Information provided by ClockAssist does not imply any warranty from ClockAssist in any way.
- You understand and acknowledge that ClockAssist, its owners, directors, or affiliated companies cannot (be) liable or be held liable, by you or by third parties, in connection with the actions, behavior (or lack thereof) of Users. Furthermore, in connection with the foregoing between the parties, any error of Users and any act or omission of Users which (may) result in damage and over which ClockAssist has not actually had any influence should be considered as a force majeure situation of ClockAssist, except to the extent of intent or willful recklessness of ClockAssist.
- If, despite everything included in these Terms, ClockAssist is liable, in no event shall the total liability of ClockAssist, and its officers, directors, employees, and agents for all damages, losses, and measures exceed the total amount paid by you to ClockAssist up to a maximum of €1,000.
- You indemnify ClockAssist, its officers, directors, employees, and agents from any and all claims for damages, demands, losses, liabilities, and expenses (including attorney's fees) arising out of or related to: (i) your use or misuse of the Services; (ii) infringement or violation of these Terms; (iii) the use of your User Content by ClockAssist; (iv) violation of the rights of third parties, including other Users, by you or by third parties; (v) damage to third parties,
including other Users, caused by you.
25. Applicable Law and Procedures
- All agreements with ClockAssist, including these Terms, are governed by and must be interpreted in accordance with Dutch law.
- All disputes arising from your agreement with ClockAssist or (otherwise) from the use of the Services shall be exclusively settled by the competent court in Rotterdam.