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Sense Cloud B.V., established in Emmen and registered with the Chamber of Commerce under file number 70010617, hereinafter "Sense Cloud", offers you the software "Clickker". This software is offered to you via the Internet as Software-as-a-Service.
Use of Clickker is subject to the following terms of use. By using Clickker, you agree to these. Deviations from these terms and conditions are only binding if accepted by Sense Cloud in writing.
Capitalised terms used in the Terms of Use shall have the following meanings, unless a (different) meaning is assigned elsewhere in the Terms of Use.
1.1. Customer: the legal entity that purchases the software for its business.
1.2. User: Employees of the Customer, who use the software.
1.3. Terms of use: these terms and conditions.
1.4. Written: in these Terms of Use, Written also includes communication by e-mail, provided that the identity of the sender and the integrity of the message are sufficiently established.
2.1. By using the software, the Customer enters into an agreement with Sense Cloud.
2.2. The Terms of Use come into force upon commissioning of the Clickker and then remain in force indefinitely.
3.1. Customer is free to use Clickker in any way it wishes within the limits of these Terms of Use.
3.2. Sense Cloud hereby grants Clickker Customer a revocable, non-exclusive, non-transferable, non-sublicensable right of use for the duration of the agreement to use Clickker in accordance with the Terms of Use.
3.3. In order to use Clickker, Customer must first register. After Customer's registration is completed, Customer will be given access to the main account. Customer can use the main account to create one sub-account per employee. The Customer is prohibited from creating accounts for non-employees, with the exception of secondees.
3.4. Both Customer and User must protect access to his/her account by means of the user name and password from unauthorised persons. In particular, User must keep the password strictly confidential. Sense Cloud may assume that everything that happens from the account of the Customer and/or User account, happens under the direction and supervision of the Customer. The Customer is therefore liable for all such actions.
4.1. Using Clickker, Customer and User are prohibited from violating the law or infringing the rights of others. In particular, it is prohibited to use Clickker to store files in violation of relevant copyright laws, or to allow anyone other than themselves to access the stored files. In the case of a company account, this prohibition does not apply to colleagues.
4.2. If Sense Cloud finds that the Customer or User is in breach of the above terms and conditions, or receives a complaint about it, it shall warn the Customer. If this does not lead to an acceptable solution, Sense Cloud may itself intervene to end the breach. In urgent or serious cases, Sense Cloud may intervene without warning.
4.3. If, in the opinion of Sense Cloud, there is any hindrance, damage or other danger to the functioning of the computer systems or the network of Sense Cloud or third parties and/or to the provision of services via the Internet, in particular due to excessive sending of e-mail or other data, leaks of personal data or activities of viruses, Trojans and similar software, Sense Cloud is entitled to take all measures it reasonably considers necessary to avert or prevent this danger.
4.4. Sense Cloud shall at all times be entitled to report any criminal offences found.
4.5. Sense Cloud may recover damages resulting from violations of these rules of conduct from the Customer. The Customer shall indemnify Sense Cloud against all claims by third parties relating to damage resulting from a breach of these rules of conduct.
5.1. All rights to the Clickker, related documentation and all modifications and extensions thereto, are and shall remain with Sense Cloud or its suppliers. The Customer and User shall only acquire the user rights and powers arising from the purport of these Terms of Use or granted in writing and otherwise the Customer or User may not use, reproduce or disclose the Clickker.
5.2. Information stored or processed by Customer and/or User through Clickker is and remains the property of Customer (or that of Customer's suppliers).
6.1. Personal data will be processed with the use of Clickker. These personal data will be processed in accordance with the processor agreement.
7.1. Sense Cloud shall make every reasonable effort to have Clickker available, but specific guarantees are only given if a separate Service Level Agreement is concluded with Sense Cloud. Unless otherwise provided in the Service Level Agreement, or if no Service Level Agreement has been agreed, the provisions in this article shall apply to maintenance, malfunctions and support.
7.2. Clickker communicates via the internet with a server managed by Sense Cloud to provide the service. Sense Cloud makes every effort to ensure that this server is available at all times, but makes no guarantees in this regard.
7.3. Sense Cloud has the right to temporarily put the Software or parts thereof out of operation for maintenance, adjustments or improvement thereof. Sense Cloud will try to have such taking out of operation take place outside office hours as much as possible and will endeavour to inform the User in time of any planned taking out of operation. However, Sense Cloud shall never be obliged to compensate any damage caused in connection with such taking out of service.
7.4. Sense Cloud may adjust the functionalities of the Clickker from time to time. In doing so, feedback and suggestions from the Customer and/or User are welcome, but ultimately Sense Cloud itself decides which adjustments it makes or does not make.
8.1. For the use of Clickker, Customer must pay a monthly fee. This fee consists of two parts. Customer pays a fee per month for the main account. On top of this is the monthly fee per type of User.
8.2. This fee shall always be paid in advance. Sense Cloud shall send an electronic invoice to the Customer for the amount due. The payment term for invoices is 14 days after the date of the invoice.
8.3. Payment can be made, by transferring the amount itself to Sense Cloud's bank account or by direct debit.
8.4. If the Customer fails to pay an invoice within the payment term or if the amounts due could not be debited from the Customer by direct debit, the Customer shall be in default without any notice of default being required. In that case, Sense Cloud shall be entitled to suspend the use of the Clickker.
8.5. In the event of late payment, in addition to the amount due and the interest accrued thereon, the Customer shall be obliged to pay in full both extrajudicial and judicial collection costs, including the costs of lawyers, bailiffs and collection agencies.
8.6. The claim for payment is immediately due and payable if the Customer is declared bankrupt, applies for a moratorium or a general attachment is levied on the Customer's assets, goes into liquidation or is dissolved.
9.1. The total liability of Sense Cloud, including on account of an attributable shortcoming in the fulfilment of the agreement or a wrongful act, is limited to compensation of direct damage, except in case of intent or deliberate recklessness, limited to the amount paid by the Customer for the three months prior to the moment of the event causing the damage, whereby a connected series of events counts as one event. The maximum liability of Sense Cloud is limited to €10,000 (in words: ten thousand euros) per year regardless of the number of events.
9.2. Sense Cloud shall expressly not be liable for indirect damage, consequential damage, lost profits, missed savings and damage due to business interruption.
9.3. A condition for the creation of any right to compensation is that the Customer reports the damage to Sense Cloud in writing no later than two months after its discovery.
9.4. Sense Cloud indemnifies the Customer against claims by a third party who claims that the Clickker as such infringes the Intellectual Property Right of such third party or violates a licence granted thereunder.
10.1. In case of force majeure, Sense Cloud is never obliged to compensate any damage incurred by the Customer as a result. Force majeure includes disruptions or failures of the internet, telecommunications infrastructure, power failures, domestic disturbances, mobilisation, war, traffic congestion, strikes, lockouts, operational failures, supply stagnation, fire and flooding.
11.1. This agreement commences when the Customer first uses the Clickker and then runs for an indefinite period of time.
11.2. Customer may terminate the use of Clickker with a notice period of one month. Customer may also terminate the account of one or more User(s) on a monthly basis. Termination must be done in writing.
11.3. Upon termination of the Agreement (for whatever reason), Customer/User must cease and desist any use of Clickker. User must then delete all copies (including any backup copies) of Clickker from all his/her systems.
11.4. Upon termination of the agreement, the Customer may, upon request, receive a copy of the data currently available from the Customer through the service.
11.5. Sense Cloud is entitled to terminate the right of use with immediate effect and without obligation to pay compensation, if:
i. Customer has failed to fulfil its obligations and such failure has not been remedied within 14 days after Written notice of default;
ii. Customer is declared bankrupt;
iii. Customer has been granted suspension of payments;
iv. General attachment of the Customer's assets is made;
v. Customer goes into liquidation;
vi. Customer is dissolved.
12.1. The parties will keep confidential any information they provide to each other through the use of the Clickker where such information is marked as confidential or where the receiving party knows or should reasonably suspect that the information was intended to be confidential.
12.2. Sense Cloud shall not take cognisance of any private data that the Customer/User stores and/or distributes through Clickker, unless this is necessary for proper service provision or Sense Cloud is obliged to do so under a statutory provision.
13.1. These Terms of Use may be amended.
13.2. Sense Cloud will announce the amendments or additions at least (30) calendar days before they come into effect so that Customer/User can take note of them.
13.3. If the Customer does not wish to accept an amendment or addition, the Customer may cancel the right of use until the date of entry into force. Use of the Software after the effective date shall constitute acceptance of the amended or supplemented conditions.
14.1. Use and the agreement on which it is based are governed by Dutch law. To the extent not otherwise prescribed by the rules of mandatory law, all disputes relating to these Terms of Use shall be submitted to the competent Dutch court in Assen.
14.2. If any provision of these Terms of Use turns out to be invalid, this shall not affect the validity of the entire Terms of Use. In that case, the parties shall determine (a) new provision(s) to replace it(them), which will give shape to the intention of the original provision as much as legally possible.
14.3. Sense Cloud is entitled to transfer its rights and obligations under the Terms of Use to a third party that acquires the Clickker or the relevant business activity from it.
Clickker is a plug & play link that connects data streams from Exact Globe and (web) applications. Fast, simple and without high costs.
Phone number: 0591-652400
Email: sales@sense-cloud.nl
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