AVACO Terms of Use - Private/Personal
1. preamble
1.1 These Terms of Use (" Terms of Use") govern the use of AVACO's services, the use of AVACO's network and the other products, features, apps, services, technologies and software available through AVACO's social network (" AVACO") and apply directly and immediately to all of our business relationships with companies, cities and other public entities (" Companies", together with AVACO, the " Parties") that use AVACO's services and have access to the network (" Network"). CNS Company Network Solutions UG (haftungsbeschränkt) promotes and mediates services and products on the KIBUCO communication portal and is the "Portal Owner" (Third Party). The company registering on the portal is neither platform owner nor portal owner, nor private user (private users together with companies in the following also: " users"), which can also access AVACO services. Separate terms of use shall apply to them.
1.2 In addition to these Terms of Use, the Privacy Policy of CNS Company Network Solutions UG (haftungsbeschränkt) and the applicable law must be observed.
1.3 These Terms of Use shall apply to all current and future contractual relationships between AVACO and Company pursuant to which Company is entitled to use the Platform ("User Agreement"). Individual agreements made with Company in individual cases (including collateral agreements, supplements and amendments) shall in any case take precedence over these Terms of Use. Subject to proof to the contrary, a written contract or written confirmation in text form by AVACO shall be authoritative for the content of such agreements.
1.4 Deviating or supplementary terms and conditions of business/use of the company or third parties shall not be recognized and shall therefore not be part of the contract, even if AVACO does not object to them. Even if AVACO refers to a letter containing or referring to third party terms and conditions, this shall not constitute an agreement with the validity of such terms and conditions. Only if AVACO expressly agrees in writing to the validity of other terms and conditions of business/use, these shall apply.
2. performance specification AVACO
2.1 The offer to use the network is directed at the company and offers it the opportunity to reach a targeted interest group and to provide information about its own company, its services, news, etc.. The platform, through which the company is enabled to register, serves as an entry portal to the entire network for the company and other users. The platform itself is not operated by AVACO - with the exception of its own platform - but by a third party ("Platform Owner"), which is responsible for the content and services. Furthermore, the Company has, among other things, the possibility to use its own store on the platform, to address the network via this, to find cooperation partners and to communicate with its customers in its own groups and in the B2B area.
2.2 AVACO reserves the right to change the functions of the respective platform, the network as well as the individual access of the contractors, in particular to implement new functions and - to a reasonable extent - to change or remove existing functions or to adapt layouts and design.
2.3 AVACO points out that partial system malfunctions may occur and that updates may also impair functionality in the most exceptional case. AVACO shall try to prevent this, in case of emergency to complete any updates at a time of low use. Any claims for compensation by the company are excluded in this regard.
3. registration
3.1 The Company's registration for the AVACO Service shall be made by an employee or representative of the Company through the user registration process provided on the Platform.
3.2 By completing the registration process (the registration), the Company makes an offer to enter into a contract for the use of the AVACO Service. It is at AVACO's sole discretion to accept this offer. AVACO accepts the offer with the consequence that the contract of use between AVACO and Company is concluded by Company being activated for the AVACO Services and receiving an e-mail about the activation from AVACO.
3.3 With the activation of the platform, the employee or representative of the company, who was specified as representative during the registration, receives a user account and as so-called administrator administrator rights
in relation to the design of the user profile of the Company (" Administrator"). After successful registration, the company is authorized to use the network. In a first step after the activation of the user account of the entrepreneur, he has to classify himself as such. An entrepreneur cannot be a private user at the same time.
3.4 Up to five (5) employees may be assigned to the Company Profile, who may operate the profile for the Company and use the AVACO Services. An extension for which a fee is charged shall not prevent this.
3.5 Only one registration per company can be made to obtain a user account. Only legal entities or partnerships and natural persons with unlimited legal capacity are permitted to register. The registration of legal entities or partnerships may only be carried out by a natural person authorized to represent the company, who must be named.
3.6 The data requested by AVACO upon registration as well as the categorization as entrepreneur in distinction to other users or platform owners shall be provided completely and correctly by the Administrator. If the data provided at that time changes after registration, the Company, represented by the Administrator, is obliged to update the data in its user profile of the created user account without undue delay.
3.7 AVACO cannot technically determine with certainty whether a user registered in the Network or the other websites operated by AVACO actually represents the person the user or platform owner claims to be. AVACO therefore does not warrant the actual identity of a user.
3.8 The user account is not transferable. Both access to the user profile and the password must be protected from use by third parties.
4. use of AVACO services, obligation of the company
4.1 The Company shall ensure that the content (in particular images, links, texts and other content) presented and used by it or by a person attributable to it, or using its user profile in any other way, is lawful, complies with these Terms of Use and does not infringe any third-party rights.
4.2 The Company is obliged to use the Network only for its own commercial purposes; therefore, it is in particular prohibited to publish third-party advertising via its platform in the Network. In individual cases exceptions are possible - e.g. in the case of close advertising and strategy partners - provided that this is notified to AVACO in advance and AVACO has agreed in text form.
4.3 In addition, the Company undertakes:
4.3.1 To provide only true and non-misleading information and not to use a clear name or pseudonyms or stage names, unless these can be assigned to the company name;
4.3.2 To reproduce only images, photographs, illustrations, videos and other visual and non-visual media that are permitted, do not infringe any third party rights and comply with applicable law;
4.3.3 Not to use any insulting or defamatory content or any content that is pornographic, glorifies violence, is abusive, immoral or violates the law for the protection of minors or to advertise, offer and/or distribute any goods or services that are pornographic, glorify violence, are abusive, immoral or violate the law for the protection of minors;
4.3.4 To refrain from using content protected by law (e.g. by copyright, trademark, patent, design patent or utility patent law) as well as from advertising, offering and/or selling goods or services protected by law, unless it is entitled to do so.
4.4 The Company respects the intellectual property and personal rights of others and promises to always comply with applicable law; in particular, not to take, tolerate or refrain from any actions that conflict with the GDPR or the BDSG.
4.5 If it is not possible for Company itself to delete any harmful content, it shall immediately report such content and the person responsible for such content to AVACO.
4.6 Company shall be obligated to inform AVACO without undue delay of any changes in the information provided in the course of registration.
4.7 The foregoing obligations shall also apply to the Company's employees and representatives who act on behalf of the Company there and are identified by the Company as "Employees". The Company undertakes to monitor its representatives and employees accordingly and to grant them a right of use with regard to the User Account only if they also undertake to comply with these Terms of Use by signing a corresponding agreement. The Company vouches for the compliance of its representatives and employees with the obligations under these Terms of Use.
5. user fee
5.1 The Company shall be entitled to use the platform communication portal KIBUCO, the network as well as the other AVACO services free of charge within the first 30 days after registration ("trial period").
5.2 After expiration of the trial period, the Company shall be obligated to pay a monthly usage fee in the amount of EUR 69.90 (net). The usage fee shall be due for payment in each case on the first day after expiry of the free usage period for the current month. Payment shall be made via the deposited payment method.
6. data, documents and records / retention obligations
6.1 Unless otherwise provided for in the data protection agreement attached to these Terms of Use, all content posted by the Company and assigned solely to its user profile ("User Content") shall be deleted upon termination of the agreement. The Company shall independently ensure the timely backup of any data still required by it.
6.2 This does not apply insofar as these contents are still required, esp. for:
- To execute the contract between AVACO and the Company,
- For the purpose of data security and abuse control,
- for verification purposes from AVACO
- To comply with legal obligations of AVACO
6.3 The Company is advised that content entered by it or related to it, but also assigned to other users (companies/private users) or platform owners (e.g. messages from the Company to other users) may remain stored even after termination of the contract. More details can be found in the privacy policy.
7. secrecy and data protection
7.1 The Parties undertake to treat as confidential all items (e.g. software, documents, information) received from the other Party prior to or during the performance of the contract which are protected by law or contain business or trade secrets or are designated as confidential ("Confidential Information"), also beyond the end of the contract, unless they are publicly known without any breach of the obligation of confidentiality. The parties shall store and secure these items in such a way that access by third parties is excluded.
7.2 The Company shall make the Confidential Information available only to those employees and other third parties who require access in order to perform their official duties. It shall instruct these persons about the confidentiality of the Confidential Information.
7.3 The Parties undertake to comply with the applicable regulations for the handling of personal data (" Data Protection Regulations") including - as far as applicable - the EU General Data Protection Regulation (" GDPR").
7.4 Insofar as personal data is processed by the Company in connection with the use of the Network, the responsibilities under data protection law shall be governed by the Data Protection Agreement (Annex to this Agreement).
8. sanctions and blocking
8.1 AVACO may take the following measures if there are concrete indications that the Company violates statutory provisions, third party rights, provisions of these Terms of Use and/or other agreements entered into between the parties or if AVACO has another legitimate interest, in particular to protect other users.
- Warning of the company,
- Temporary blocking of access to the network and use of AVACO services,
- Permanent blocking of access to the network and the use of AVACO services as well as
- Termination of the user contract.
8.2 When choosing a measure, AVACO shall take into account the legitimate interests of the company concerned, in particular whether there are indications that the company or persons attributable to it are not responsible for the violation.
8.3 As soon as access to the Platform and the use of AVACO Services has been blocked for Company or the User Agreement has been terminated by AVACO, Company may no longer use the AVACO Services even with another profile/account and may not register again.
9. contract term and termination
9.1 The User Agreement is concluded for an indefinite period of time.
9.2 The User Agreement may be terminated at any time.
9.3 The right to extraordinary termination of the contract of use and the contracts and agreements concluded in this context shall remain unaffected and shall exist in the event of good cause. Good cause for extraordinary termination by AVACO shall exist in particular if the Company violates provisions of these User Agreements, any other agreements between the parties or applicable law or misuses the AVACO Services or uses the Network with regard to the provided content;
9.4 A right of termination for good cause shall otherwise exist if, taking into account the circumstances of the individual case and weighing the interests of both parties, it is unreasonable for AVACO to adhere to the usage agreement even until the end of an applicable notice period, with the proviso that a warning with a notice period of two weeks stating the reason for termination must be given at least in text form in order to have legal effect. The extraordinary termination shall not exclude the assertion of claims for damages by AVACO against the Company.
9.5 If the User Agreement is terminated, the Company's right of use with respect to the AVACO Services shall expire subject to the provisions in Section 6 (Data, Documents and Records/Duties of Retention) and Section 7 (Confidentiality and Data Protection).
9.6 Any termination shall be made in text form.
10. exclusion or limitation of liability
10.1 AVACO shall be liable to Company for damages (irrespective of the legal grounds) which are based on a culpable breach of material contractual obligations by AVACO, its legal representatives or vicarious agents. Material contractual obligations are obligations the breach of which jeopardizes the achievement of the purpose of the contract or the fulfillment of which enables the proper performance of the contract in the first place and on the compliance with which Company could regularly rely (so-called cardinal obligations). Insofar as the breach of cardinal obligations was only due to simple negligence and did not result in injury to life, body or health of the company, claims for damages shall be limited in amount to the typical foreseeable damage.
10.2 In all other respects, claims for damages against AVACO - irrespective of the legal grounds, in particular due to the breach of obligations arising from the contractual relationship by AVACO, its legal representatives, employees or vicarious agents, from § 311 a BGB (German Civil Code) or from tort - shall be excluded.
10.3 The above provisions of Sections 10.1 and 10.2 shall not apply (i) to claims of the Company under the provisions of the Product Liability Act; (ii) in cases of intent or gross negligence of AVACO, its legal representatives or vicarious agents, (iii) for injury to life, body or health as well as (iv) in all other cases of statutory mandatory liability. In these cases AVACO shall be liable in each case in accordance with the statutory provisions.
10.4 To the extent that liability is limited or excluded under the above provisions, this shall also apply to any personal liability of AVACO's legal representatives, employees and vicarious agents.
11. exemption
11.1 Company warrants that its use of the AVACO Service shall not infringe any third party rights.
11.2 Company shall indemnify AVACO against any and all claims of third parties if and to the extent that such claims are based on Company's failure to comply with its contractual obligations. The same shall apply to the legal costs incurred in connection with the defense against such claims, i.e. the actual attorney's fees and court costs incurred as well as the other costs associated with the litigation.
12. final provision
12.1 The place of performance for all obligations arising directly or indirectly from these Terms of Use and the User Agreement shall be the registered office of AVACO.
12.2 The Company shall only be entitled to set-off and retention on the basis of undisputed or legally established claims arising from and in connection with these Terms of Use and the User Agreement.
12.3 Subsidiary agreements and amendments to these Terms of Use shall be made in writing, unless otherwise stipulated in these Terms of Use. This shall also apply to this written form requirement.
12.4 These Terms of Use and the User Agreement shall be governed by and construed in accordance with German law as applicable between parties with their registered office in Germany, with the exception of the UN Convention on Contracts for the International Sale of Goods, which shall not apply.
12.5 To the extent permitted by law, the exclusive place of jurisdiction shall be AVACO's registered office.
12.6 Should one or more provisions of these Terms of Use be or become invalid or void or contain a loophole, the validity of the rest of these Terms of Use shall remain unaffected. The parties undertake to agree on a valid provision in place of the invalid or void provision which comes as close as possible to what was intended by the parties according to the meaning of the invalid or void provision. Insofar as one or more provisions of these Terms of Use contain loopholes, those legally effective provisions shall be deemed agreed to fill these loopholes which the contracting parties would have agreed to in accordance with the economic objectives of these Terms of Use and the purpose of these Terms of Use if they had known about the loophole.
12.7 AVACO reserves the right to change or amend these Terms of Use. AVACO shall inform Company of any changes or amendments. Amendments and supplements shall be deemed accepted by Company unless Company objects in writing within four weeks after notification. AVACO shall also point out the consequences of silence in the notification of the change or amendment to the Terms of Use. In the event that Company does not agree to the amendments or supplements, AVACO may terminate Company's user profile extraordinarily by applying the provisions of clauses 9.3 and 9.4. In the case of mandatory changes or amendments to the Terms of Use required by applicable law or court or official order, the aforementioned deadlines may also be shorter.
Attachment: Agreement on data protection when using the AVACO network
Precautionary Agreement iSd Art. 26 DSGVO
1. definitions
1.1 Where used in this Annex, the terms "processing", "personal data", "processor", "controller", "joint controllers" and "data subject" shall have the meaning given to them in the GDPR.
1.2 "Representatives" of the parties are their legal representatives and other authorized representatives, employees, subcontractors and other vicarious agents.
2. scope of application / further agreements on data processing in the network
2.1 The agreement applies to the processing of personal data within the scope of the use of the network by the Company. To the extent that the Parties are joint controllers in the use, this Agreement serves in this respect as an agreement pursuant to Art. 26 (1) sentence 2 DSGVO. It is supplemented by agreements between AVACO and the Platform Owners and AVACO and other users (Companies/Private Users), which may also - again jointly with AVACO, if applicable - be responsible for data processing operations in the Network (see Terms of Use Platform Owners and Terms of Use Companies/Private Users).
2.2 Insofar as interfaces to systems of the Company are integrated in the network, further data processing in these systems shall be the responsibility of the Company.
2.3 This Agreement shall also not apply to the processing of personal data in connection with the use of the Network under the Company's own responsibility, e.g. in exchanges with representatives of AVACO or Data Subjects outside the Network.
3. general responsibilities under data protection law and responsibility for the fulfillment of obligations under data protection law
3.1 Each party is responsible for ensuring that its actions and the actions of its representatives in the course of using the Network comply with the provisions of the data protection regulations and that no unlawful processing of personal data takes place.
3.2 For the individual processing activities in the context of the use of the network by the Company, a fulfillment of the obligations under data protection law by the Controllers and a division of any areas of joint responsibility shall take place as follows:
Responsible for the fulfillment of data protection obligations with regard to:
AVACO
- The network as such, i.e. esp.
- Provision of platforms and the network as such and the technical delivery of requested content (esp. processing of HTTP requests)
- Collection, storage and processing of personal usage data / user profiles
- analyses of usage data / user profiles initiated by AVACO itself
- AVACO's communication with users or platform owners via the network (e.g. exchange for administration of the user contract, notice of news, suggestions with regard to offers of "Preferred Partners").
Company (as far as responsible person iSd Art. 4 No. 7 DSGVO)
Use of the network by the company. This includes in particular:
- Publication of contributions and other content, including the processing of data contained therein,
- Communication with Users, Platform Owner(s) and/or AVACO via the Network, including the processing of data contained therein,
- Request for evaluations of visitors etc. of the own user site; the technical implementation is the responsibility of AVACO (cf. above).
- Data processing in connection with the operation of a webshop
For additional information (not part of this agreement, subject to change):
The division of responsibility under data protection law in connection with the Network is supplemented by agreements of AVACO with the respective Platform Owners - to the extent responsible persons within the meaning of Art. 4 No. 7 DSGVO - as follows: The respective Platform Owner is responsible under data protection law for its use of the Platform. This includes in particular:
- Definition of the requirements of the respective platform and their design by the platform owner
- Use of the Platform and the Network by the Platform Owner and its representatives, esp.
o publication of contributions and other content on the platform, including the processing of the data contained therein
o Communication between Platform Owner and User as well as Platform Owner and AVACO via the Platform or the Network, including the processing of the data contained therein.
o Request for aggregated statistical analysis of users or user behavior.
o If applicable, commissioning the delivery of targeted messages to users.
- Definition and establishment of interfaces that enable data export from the Platform to systems of the Platform Owner. Further processing in these systems is not the subject of this Agreement and shall be the sole responsibility of the Platform Owner.
Further information can be found in the Terms of Use for Platform Owners.
4. lawfulness of the processing (Art. 5, 6 DSGVO)
Companies and AVACO shall each ensure the lawfulness of the data processing initiated by them or their representatives within their areas of responsibility in accordance with Section 3.2.
5. data subject rights, contact point (Art. 12ff. GDPR)
5.1 The information of the data subjects pursuant to Art. 13, 14 DSGVO and additionally due to the provisions in this Annex pursuant to Art. 26 para. 2 sentence 2 DSGVO shall be provided by the data protection declaration. The data protection declaration may be adapted by AVACO, in particular if this is necessary to reflect technical changes or new functions of the network or platforms. The Company will provide AVACO with any information required in this respect.
5.2 The responsibility for the fulfillment of data subject requests pursuant to Art. 12 et seq. DSGVO is distributed as follows, whereby the obligation of the Platform Owner or the Company and other Users to support AVACO remains unaffected:
- Right to information (Art. 15 para. 1, para. 3 DSGVO): This is basically done by routines implemented by AVACO, which in this respect can also access Owner Content.
- Right to rectification / completion (Art. 16 GDPR):
o Contract/usage data: AVACO
o Usage data / Profile: AVACO
o User data, in particular those in owner or user content (e.g. entries on the wall of users, in mailboxes and in groups): The company to whose profile the wall and the mailbox are assigned or who has administrator rights for the group. In this regard, the respective entrepreneur is obliged to comply with the legal requirements and the guidelines in accordance with the privacy policy and to make any necessary corrections in accordance with the same.
o AVACO's right to take measures, if necessary also with regard to operator obligations, e.g. according to the Network Enforcement Act, shall remain unaffected.
- Right to erasure (Art. 17 GDPR): Distribution of responsibilities as for the right to rectification (Art. 16 GDPR)
- Right to restriction of processing (Art. 18 GDPR): Distribution of responsibilities as for the right to rectification (Art. 16 GDPR)
- Right to data portability (Art. 20 DSGVO): AVACO
- Right to object (Art. 21 GDPR): Distribution of responsibilities as for the right of rectification (Art. 16 GDPR)
- Rights with regard to automated individual decisions / profiling (Art. 22 GDPR): This functionality is currently not implemented. AVACO is responsible for requests made nevertheless.
5.3 To the extent necessary to fulfill legal rights of the data subject or to fulfill other legal operator obligations, AVACO shall be entitled to take all measures, also with regard to user and usage data, which are necessary to fulfill the legal rights of the data subject, including the deletion of contributions. As far as possible, AVACO will coordinate such a measure with the platform owner or the user.
5.4 Data subjects can primarily assert their rights via the web interface of the network's user administration. For all other requests, the person responsible according to Section 5.2 is the primary point of contact. If a data subject request in accordance with Section 5.2 concerns the responsibility of several data controllers, the data controller who received the request shall inform the other parties involved. This obligation is directly in favor of the platform operators and other users (§ 328 BGB). AVACO is also always available to affected parties as an additional point of contact.
5.5 To the extent necessary, the Platform Owner, Companies and AVACO shall support each other in the fulfillment of the data subject rights. This Agreement shall be directly effective in favor of the Platform Owner and other Users (§ 328 BGB).
6. technical-organizational measures
6.1 AVACO shall ensure the security of data processing within its area of responsibility pursuant to Section 3.2 by taking appropriate technical and organizational measures. These include in particular:
- Design of the platform in accordance with the relevant and current standards for data and software security
- technical and organizational measures to ensure the security of the technical layer of the network (e.g. physical security of access to server rooms, password security, restrictive granting of access),
- technical and organizational measures to ensure compliance with data protection law by representatives of AVACO (e.g. commitment to data protection, data protection policy).
6.2 In the area of joint responsibility, the Contractor shall ensure the security of data processing within its area of responsibility pursuant to Section 3.2 by taking appropriate technical and organizational measures. These include in particular:
- Careful handling of user access granted by AVACO. This includes at least the following points:
o Accesses may only be passed on within the company and under no circumstances to third parties.
o Each employee of the company who is granted such access shall be separately obligated to handle the access data with care and to comply with the data protection regulations.
o Company shall inform AVACO without delay as soon as it becomes aware that an unauthorized third party has gained knowledge of the access data or has otherwise gained access to the user profile and shall change the access data without delay.
o Appropriate measures to secure IT infrastructure and mobile devices to prevent unauthorized access to credentials.
- Technical and organizational measures to ensure compliance with data protection requirements by representatives of the company (e.g., commitment to data protection, data protection policy).
7. violation of the protection of personal data
7.1 Within the scope of these agreements, Company shall inform AVACO without undue delay as soon as a personal data breach (Art. 4 No. 12 GDPR) or a suspicion of a personal data breach substantiated by facts (both together: Security Incident) comes to its knowledge. AVACO shall in turn inform the Company about security incidents with relevance for the Company.
7.2 The management for security incidents shall in principle be carried out by AVACO. Company will support AVACO and will implement instructions from AVACO to contain and resolve Security Incidents and to comply with related legal obligations.
8. directory of processing activities
Pursuant to Art. 30 of the GDPR, each party shall maintain a register of processing activities carried out within the scope of this Agreement. The Parties shall support each other in maintaining the processing directory.
9. authority inspections, documentation and accountability
9.1 To the extent necessary to comply with the accountability obligation under Article 5(2) of the GDPR, the Parties shall:
upon request, provide the other party within a reasonable period of time with all information by which compliance with the obligations of the GDPR can be demonstrated, to the extent that this information cannot be obtained by the party concerned itself;
Permit audits or investigations of the other party or assist the other party in its audits or investigations.
In this regard, the parties agree that confirmation of compliance with the relevant data protection regulations by an expert, independent body (e.g., the company data protection officer) is usually sufficient to meet the requirements of accountability.
9.2 To the extent legally permissible and necessary, the Parties shall assist each other if a Party is subject to an audit, investigation or other action by a regulatory authority.
10. other obligations
If further obligations arise under the GDPR or other data protection regulations that require coordination by the parties (e.g., under Articles 35 and 36 of the GDPR), the parties will jointly determine their responsibilities in good faith.
11 Liability and indemnification
Each party shall indemnify the other party against all losses, costs, claims of third parties and other damages of the other party (including legal costs and legal defense costs, fines and penalties) which are directly or indirectly based on a breach of the contract or the legal data protection obligations of the liable party by the liable party or its representatives (esp. sub-processors and other sub-contractors, if applicable also in a multi-member chain).
12. adjustments
The Parties shall discuss in good faith and, if necessary, contractually regulate any changes or additional provisions to the regulations of this Annex that are necessary to comply with the GDPR or other data protection regulations.