Last modified on August 24th, 2016
The smartwork solutions GmbH (hereinafter called "we" or "us") has developed the web application called SMASHDOCs. It may be used from our websites, accessible under www.smashdocs.net for example.
SMASHDOCs is a web application designed to create documents and to coordinate their editing with others in a team, with colleagues or business partners and to negotiate their contents.
Other terms and conditions will only come into effect if expressly agreed upon inwritten note by the terms of sec. 126 b BGB (German Civil Code) (hereinafter simply called "written note"). The precedence of individually reached agreements with you remains unaffected.
Additional terms and conditions may apply for the use of additional content, features and services, especially premium offerings. Those will be announced to you separately and in written note before your first use of such additions. Previous to your first use of premium offers you must also confirm that we have informed you about the method of payment and about the amount of cost and that you agree with the offer's characteristic fee-based.
By using SMASHDOCs, you agree to be bound by these Terms. If you don't agree to these Terms, do not use SMASHDOCs. If you are using SMASHDOCs on behalf of an organization (such as your employer), you are agreeing to these Terms for that organization, and are indicating that you have the authority to bind that organization to these Terms. In that case, "you" and "your" will refer to that organization.
2. Subject matter
Subject of the contract between you and us is the use of the web application SMASHDOCs.
We do not guarantee anything in the context of the content, features and services offered by us with SMASHDOCs. Properties of SMASHDOCs are legally non-binding unless we have expressly declared something like a guaranteed feature in written note.
You have no right to any particular design or equipment of SMASHDOCs.
We store your data in the cloud so you can use our web application from different devices simultaneously and will have access to them any way.
For the use of our products the following functions are available, for example:
A user has its user profile, in which a personal profile picture can be adjusted. In each user profile, sample documents and standard functions and features are available. A user can edit those sample documents as well as create his own documents and share them with other users.
For documents created by a user that user is responsible as an administrator. This includes the question of making backups of that document. A backup service is owed by us only if we have explicitly agreed with you that this has to be provided by us.
You can be invited by another user to view or edit their documents, too. A claim for such an invitation does not exist, however. If you would like to invite anybody to your documents and if you are capable of adding users to the particular document, you can do this by entering the email address for non-registered persons. They receive an invitation email message afterwards.
3. Conclusion of contract
You can use our web application SMASHDOCS as Software-as-a-Service (SaaS) through your browser and the Internet without a need for any download. It is up to you to provide yourself access to the Internet and the software that is required for the use of SMASHDOCs (e.g., browser, browser plug-ins).
You will have access to this application through our websites or the websites of third parties, and you can register yourself within the application. For a registration with SMASHDOCS, you will have to warrant the information gathered from you is true and complete if the request for information is not explicitly marked as voluntary.
You must enter a user name for the registration, and you need to register your email address. When the registration was completed by you, we send an email to you with a registration link so that you can activate your account at SMASHDOCs. With the reception of this email and your use of the registration link the registration process is completed ("completion of registration").
A right for you to force us to confirm your registration or a need for us to enable the completion of registration to create a user account and form the resulting underlying contract with us do not exist. We reserve the right to reject registration requests without giving a reason. The information already provided by you within the registration process including your personal data is deleted in such a case.
You are responsible for the security of your login data. In particular, you must keep your password confidential and must not pass it on to any unauthorised third parties or others.
In case of loss or misuse of your login or reasonable suspicion of any harmful action, you are obliged to notify us immediately by email. You can send such a message to email@example.com.
4. Your use of SMASHDOCs
While using SMASHDOCs, you must comply with all laws and regulations of the Federal Republic of Germany.
Data and contents (for example, Texts, images and links) may be uploaded and processed or spread with SMASHDOCs only if that use of data and content does not violate the laws or intellectual property rights or other rights of third parties (e.g. registered trademarks, naming rights, portrait rights).
You are always responsible for the information and content provided by you.
We do not take any action to investigate the data and content provided by our users to see whether they are legal or free of malware.
You can upload a picture in your user profile in SMASHDOCs. Before uploading any image, you must ensure that you have appropriate rights to use.
You must not upload or make available contents, files or pictures with depictions of violence, pornographic, discriminatory, libellous, racist or other illegal content.
Other persons may only be visible on pictures uploaded and published in SMASHDOCs if you have their consent to do so.
We are authorised to delete files or images uploaded by you at any time or to replace them if they clearly violate third party rights or applicable laws or if you fail to react within the period stipulated by us because of a complaint about your files or images.
4.1 General Prohibitions
You agree not to do—or attempt to do—any of the following:
Probe, scan, or test the vulnerability of any SMASHDOCs system or network or breach any security or authentication measures;Access, tamper with, or use non-public areas of SMASHDOCs, Smartwork solutions's computer systems, or the technical delivery systems of SMASHDOCs's providers;Decipher, decompile, disassemble or reverse engineer any of the software used to provide SMASHDOCs;Interfere with, or attempt to interfere with, the access of any user, host or network, including sending a virus, overloading, flooding, spamming, or mail-bombing SMASHDOCs;Access or search SMASHDOCs or download any intellectual property from SMASHDOCs through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than our publicly supported interfaces;Plant malware or use SMASHDOCs to distribute malware;Send any unsolicited communications, promotions, advertisements or spam;Send altered, deceptive or false source-identifying information, including "spoofing" or "phishing";Post or transmit anything that is fraudulent or misleading, or that infringes on others' rights;Impersonate or misrepresent your affiliation with any person or entity;Violate the privacy of others;Violate any applicable law or regulation; orEncourage or enable any other individual to do any of the above.
Although we're not obligated to monitor access to or use of SMASHDOCs or your content or to review or edit any of your content or the intellectual property of other SMASHDOCs users, we have the right to do so for the purpose of operating SMASHDOCs to ensure compliance with these Terms, or to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to any of your content, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider any of your content to be objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects SMASHDOCs. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
5. Liability Limit
5.1 Exclusion of Indirect Damages
Smartwork solutions is not liable for any indirect, special, incidental, or consequential damages arising out of or related to this agreement (including, without limitation, costs of delay; inaccurate guidance; loss of data, records, or information; and lost profits, revenue, or anticipated cost savings), even if it knows of the possibility of such damage or loss.
The liability of smartwork solutions for the breach of obligations and for offences is limited to cases of intent and gross negligence. The limitation of liability does not apply in the event of harm to life, body or health of the client, entitlements due to culpable breach of fundamental contractual obligations and compensation for damages relating to delay. The liability for culpable breach of fundamental contractual obligations is limited to such damages that can typically be expected to occur as far as it is not caused by intent or grossly negligent behavior.
The above exclusion of liability also applies for slightly negligent violations of duty of our auxiliary persons.
The liability for the loss of data is restricted to the typical retrieval expenditure that would also have occurred if data were backed up regularly and in accordance with the risk involved.
5.2 Total Limit on Liability
Except for Smartworks solutions's indemnity obligations, Smartworks solutions's total liability arising out of or related to this agreement (whether in contract, tort, or otherwise) does not exceed the amount paid by Customer within the 12-month period prior to the event that gave rise to the liability.
6. Responsibility for contents
We do not take any responsibility for the contents, texts, images, data or other content published by our users or for externally linked information and websites.
With SMASHDOCs we provide the technical platform only that is capable of storing und publishing contents in particular documents. Therefore the contents stored and published by the users of SMASHDOCs are not our contents but someone else's. In the exceptional case we present own content on SMASHDOCSs, e.g. sample documents, these contents will be explicitly labelled as our content.
Of someone else's content, we have no knowledge; a selection or other control by us does not take place. We dissociate ourselves from the content of our users, and we do not adopt it. Therefore we take no responsibility for their content.
7. Term and termination
The contract is concluded for an indefinite period if not agreed otherwise.
The contract may be terminated by you at any time without notice and without the need to comply with any term. You need to delete your account only.
We may terminate the contract with a notice period of one week. Reasons must not be named for the cancellation. The notice must be explained in written note, for example, send an e-mail to you.
The right to termination for cause ("immediate dismissal") remains unaffected.
With your cancellation and deletion of the account, your access to SMASHDOCs is blocked. Your contents corresponding with your account will be erased completely at the end of the month following the month of termination if you have not reactivated your account before. If you want to use your contents after your termination you need to save your contents by downloading them.
If you send or transmit any communication, comments, questions, suggestions, or related materials to Smartworks solutions, whether by letter, email, telephone, or otherwise (" Feedback"), suggesting or recommending changes to the Software or Support Services, including, without limitation, new features or functionality relating thereto, all such Feedback is, and will be exclusively owned by Smartworks solutions. You hereby assign all right, title, and interest in, and Smartworks solutions is free to use, without any attribution or compensation to you, any ideas, know-how, concepts, techniques, and all applicable intellectual property rights relating to the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. You agree and understand that Smartworks solutions is not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and you have no right to compel such use, display, reproduction, or distribution.
10.1 Support for the free version of SMASHDOCs
If you have any questions about SMASHDOCs, you can share these in our SMASHDOCs community.
We also point out new features, services and contents of SMASHDOCs to you by e-mail to all registered user. If you do not wish to receive these e-mails any longer, you can unsubscribe at any time. We will explain to you in every e-mail how to unsubscribe.
10.2 Support for the paid version
If not stated differently in an order or commercial agreement, Smartworks solutions must provide customer support for the Service under the terms of smartworks solutions's Customer Support Policy (Support) which is located at https://www2.smashdocs.net/customer-support-policy/ all purposes.
10.2.1 Service Level Agreement & Warranty
Smartwork solutions warrants to Customer:
(i) that commercially reasonable efforts will be made to maintain the online availability of the Service for a minimum of availability in any given month as provided in the chart below (excluding maintenance outages of which Smartworks solutions shall give at least 8-hours electronic notice and shall schedule to the extent practicable during the night or weekend hours, force majeure, and outages that result from any Customer technology issues);
(ii) the functionality or features of the Service may change but will not materially decrease during any paid term; and
(iii) that the Support may change but will not materially degrade during any paid term.
Availability Warranty Credit
– 96,5 – 94% = 10% of monthly fee
– 94 – 90% = 25% of monthly fee
– Less than 90% = 50% of monthly fee
11. Mutual Confidentiality
11.1 Definition of Confidential Information
Confidential Information means all non-public information disclosed by a party (Discloser) to the other party (Recipient), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (Confidential Information). Smartwork Solutions's Confidential Information includes without limitation the Service, its user interface design and layout, pricing information, and the Software and Documentation (defined below).
11.2 Protection of Confidential Information
The Recipient must use the same degree of care that it uses to protect the confidentiality of its own confidential information (but in no event less than reasonable care) and not disclose or use any Confidential Information of the Discloser for any purpose outside the scope of this agreement. The Recipient must make commercially reasonable efforts to limit access to Confidential Information of Discloser to those of its employees and contractors who need such access for purposes consistent with this agreement and who have signed confidentiality agreements with Recipient no less restrictive than the confidentiality terms of this agreement.
Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to Discloser, (ii) was known to the Recipient prior to its disclosure by the Discloser without breach of any obligation owed to the Discloser, (iii) is received from a third party without breach of any obligation owed to Discloser, or (iv) was independently developed by the Recipient without use or access to the Confidential Information. The Recipient may disclose Confidential Information to the extent required by law or court order, but will provide Discloser with advance notice to seek a protective order.
You hereby agree that Smartwork Solutions may include your company name and logo on the SMASHDOCs and Smartwork Solutions website and in other marketing materials promoting the Software as a customer of Smartwork Solutions who uses the software. Smartwork solutions may contact registered users from time to time to draw the registered users' attention to information that may be of interest. Registered users may opt out from receiving such emails.
12.1 Account Information
When you create an account, we collect certain information that can be used to identify you, such as your name, email address, and if you are using a paid account, postal address, phone number, and billing information ("personally identifiable information" or "PII"). We may also collect information like your gender, date of birth and zip code. If you choose to create a SMASHDOCs account via a third-party service such as Google or Facebook, you may have to provide us with your username or user ID so that your identity can be authenticated. When the authentication is complete, we'll be able to access certain information based on your permissions from the third-party service. We don't receive or store passwords for any accounts on third-party services.
12.2 Information collected using Cookies
12.3 Information related to use of SMASHDOCs
Our servers automatically record information about how a person uses SMASHDOCs, including IP addresses, browser types, operating systems, pages or features of SMASHDOCs that were used and time spent on them, search terms and other statistics. We use and analyze (and may engage third parties to analyze) this information to customize and improve SMASHDOCs. We also use IP addresses to generate aggregate, non-identifying information about how SMASHDOCs is used.
12.4 Location Information
In some cases we collect and store information about where you are located, such as by converting your IP address into a rough geolocation. We may use location information to improve and personalize SMASHDOCs.
12.5 Information We Share With Third Parties
We'll only share your PII in the following cases:
• We use a third-party service provider that requires it, such as for payment processing, data storage, and hosting and servers.
• We need to disclose it as part of a business transaction. Information that we collect from our users, including PII, is considered to be a business asset. As a result, if we go out of business or enter bankruptcy or if we are acquired as a result of a transaction such as a merger, acquisition or asset sale, your PII may be disclosed or transferred to the third-party acquirer in connection with the transaction.
• We need to do so for legal reasons or to protect ourselves or others. We strongly believe in protecting you from having your privacy violated through abuse of legal systems, whether by individuals, entities or government, and in contesting claims that we believe to be invalid under applicable law. However, we reserve the right to disclose any information about you to government or law enforcement officials or private parties if we believe it is necessary to
satisfy or comply with any applicable law, regulation or legal process,respond to lawful requests,protect the rights, property and safety of us or others,and to prevent or stop activity we consider to be illegal or unethical.• You expressly ask us to do so.
We may share aggregated information and non-identifying information with third parties for industry analysis, demographic profiling and other similar purposes.
13. Final provisions
The contractual relationship between you and us is governed by the law of the Federal Republic of Germany. The place of jurisdiction is the principle place of business of smartwork solutions GmbH.
Oral side agreements have not been made. Amendments and modifications to this contract must be in written note. This also applies to the repeal of this clause.