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TerminApp GmbH, Balanstraße 73, Gebäude Nr. 24, 3. OG, 81541 München, Germany ("TIMIFY") operates an online booking solution for appointments. Entrepreneurs registered in the online booking solution (“Service Providers”) can make non-binding appointments for their services visible online, and offer online booking thereof, through the online booking solution. Visitors of the online booking solution have the possibility to view the available non-binding appointments for services offered by Service Providers through the online booking solution and to book such non-binding appointments for services as registered users (“Bookers”).
TIMIFY provides services for Service Provider only to entrepreneurs within the meaning of Sect. 14 of the German Civil Code (Bürgerliches Gesetzbuch – BGB). Consumers within the meaning of Sect. 13 of the German Civil Code are not entitled to use TIMIFY services for Service Providers.
1. Subject matter and services
TIMIFY provides the Service Provider with a free basic version of the online booking solution (hereinafter “Classic Version”) or, against charge, with an enhanced version with additional features (hereinafter “Premium Version”).
Service Providers can access the online booking solution as a “software as a service” through the TIMIFY website (http://www.timify.com) (“TIMIFY Website”). As part of the Premium Version, TIMIFY also provides Service Providers with apps for mobile devices easing access to the online booking solution from certain mobile devices (“Mobile Apps”). In addition, as part of the Premium Version, TIMIFY also provides Service Providers with an application which can be installed on desktop systems and allows offline administration of the online booking solution (“Desktop Apps”). The range of features of the Mobile Apps and of the Desktop Apps (hereinafter together also the “Service Provider Apps”) is described in detail on the TIMIFY Website.
The Classic Version allows Service Providers to manage available appointments, services and resources, to book themselves and to administrate booked appointments, customer data and booking information. Furthermore, the Classic Version allows Service Providers to prepare their individual booking profiles through which Bookers can view and book each Service Provider’s non-binding appointments for services (hereinafter “Booking Profile”). The non-binding appointments for services offered by a Service Provider in the online booking solution can be viewed and booked by Bookers through the TIMIFY Website and through the TIMIFY mobile app which is available for certain mobile devices (hereinafter “Booker App”). Furthermore, TIMIFY offers Service Providers the possibility to integrate the online booking solution into their websites (“TIMIFY Button”) and online presences on certain third-party platforms (hereinafter “TIMIFY Widget”). The range of features of the Classic Version applicable from time to time is described in detail on the TIMIFY Website.
The Premium Version has all features of the Classic Version. The enhanced range of features of the Premium Version is described in detail on the TIMIFY Website.
2. Service Provider account and Access Data
To be able to use the online booking solution, it is necessary create a Service Provider account. This requires the Service Provider to enter a business name, an industry, a country, first and last names, an e-mail address and a password. The e-mail address and the password entered also serve as the Service Provider’s access data for the online booking solution (hereinafter “Access Data”).
When creating an account, a Service Provider explicitly warrants that he/she/it is acting as an entrepreneur within the meaning of Sec. 14 of the German Civil Code. If so requested by TIMIFY, the Service Provider will submit adequate proof of such entrepreneur quality.
The Service Provider undertakes to keep confidential the Access Data required to access the online booking solution and to make such data available only to users authorised by such Service Provider. The Service Provider accepts full responsibility for any and all actions which are done by unauthorized users using the Service Provider’s Access Data.
The Service Provider shall inform TIMIFY in text form (Sect. 126 b of the German Civil Code) without undue delay if a third party has obtained the Access Data without the Service Provider’s authorization. The Service Provider accepts full responsibility for any and all actions which are done by unauthorized third parties using the Service Provider’s Access Data, unless the Service Provider is not at fault with regard to such unauthorized actions.
3. Conclusion of contract
For the free Classic Version, the contract is concluded as follows: The completion of the registration procedure initiated by a Service Provider to create a Service Provider account constitutes a legally binding offer of such Service Provider for the conclusion of a contract for the use of the online booking solution’s Classic Version. TIMIFY accepts the Service Provider’s offer in a legally binding manner by activating the account. The contract between the Service Provider and TIMIFY is formed only by such activation. TIMIFY is not obliged to accept the offer submitted by the Service Provider, and therefore not obliged to enter into such contract.
For the Premium Version, which is subject to charge, the contract is concluded as follows: The completion of the procedure initiated by a Service Provider to activate the Premium Version in the online booking solution or an order form completed by a Servicer Provider for the Premium Version constitutes a legally binding offer of such Service Provider for the conclusion of a contract for the use of the online booking solution’s Premium Version. TIMIFY accepts the Service Provider’s offer in a legally binding manner by activating the Premium Version. The contract between the Service Provider and TIMIFY is formed only by such activation. TIMIFY is not obliged to accept the offer submitted by the Service Provider, and therefore not obliged to enter into such contract.
4. Use of online booking solution on users’ own responsibility
TIMIFY provides Service Providers and Bookers with the online booking solution as a technical infrastructure to be used on their own responsibility to initiate a contract. In doing so, TIMIFY itself is unable to influence the specific use of the online booking solution by a Service Provider or a Booker, or, in particular, the non-binding appointments made availabe by Service Providers through the online booking solution, the content of the service descriptions designed by them, price information or other information, or the content of Booking Profiles. As a result, the Service Provider is solely responsible for the use of the online booking solution, the content of any service description prepared by using the online booking solution and of the Booking Profile.
The online booking solution does not enable the conclusion of binding contracts between Service Providers and Bookers. The booking of an appointment is only a non-binding reservation of an appointment. The non-binding reservation shall not create any obligation of Bookers or Service Providers for the conclusion of a contract for the relevant services. Any contracts between Bookers and Service Providers shall be concluded exclusively through personal contact between Bookers and Service Providers.
The parties to a contract for services provided by a Service Provider are the Booker and the Service Provider only. TIMIFY is also unable in this context to influence the structure of the legal relationship between the Service Provider and the Booker.
TIMIFY is also unable to influence the booking of a Service Provider’s non-binding appointments for services by a Booker. In particular, TIMIFY does not accept any responsibility for the generation of a minimum number of non-binding bookings by the appointments for services offered by the Service Provider through the online booking solution, or for the Booker’s actual use of the non-binding appointments booked. As a provider of a merely technical infrastructure designed for initiating contracts between Bookers and Service Providers on their own responsibility, TIMIFY is also not responsible for any damage which a Service Provider incurs in connection with a Booker’s use of the Service Provider’s services.
The online booking solution does not meet the requirements of the principles for the proper keeping and storage of books, records and documents in electronic form and data access (GoBD). The Service Provider shall be solely responsible for storing data in accordance with the statutory requirements, in particular the requirements under commercial or tax law.
In the event that a Service Provider includes links in a service description or Booking Profile to websites with illegal content, TIMIFY explicitly distances itself from such linked content. In particular, TIMIFY is under no obligation to the Service Provider to check the links included. If, however, TIMIFY obtains knowledge of any links to illegal content, TIMIFY will promptly remove such links where such removal is technically possible for, and reasonably acceptable to, TIMIFY.
The Service Provider further undertakes to verify and ensure that the services offered, the content of the service descriptions designed by the Service Provider and of other information as well as the content of the Booking Profile do not violate any statutory prohibitions and that they are neither contrary to public policy nor infringe any third-party rights (including but not limited to name rights, personality rights, copyright, data protection rights or rights to signs). In particular, the Service Provider undertakes to not provide any services through the online booking solution, and to not use any content in the service description and in the Booking Profile which
(a) refer to sexual, pornographic or content otherwise harmful to juveniles;
(b) refer to content glorifying violence or inciting the people;
(c) incite others to commit crimes or constitute instructions for committing crimes;
(d) are related to gambling or betting offers;
(e) are related to religious or political activities, in particular party meetings, demonstrations, flyer or signature campaigns or content showing political symbols;
(f) insults, defames, harasses or otherwise harms other persons or constitutes an aggressive or provocative attitude towards the same,
(g) are otherwise unlawful, obscene, vulgar, disturbing for the privacy of other persons, defamatory or offensive or contain untrue factual claims or abusive criticism,
(h) contain business or trade secrets of individuals or legal entities or other content which the Service Provider is not authorised to disclose – for example due to non-disclosure agreements,
(i) contain links or other connections to content which is inadmissible according to the above criteria and/or
(j) invite others to violate the above content bans.
The Service Provider shall indemnify TIMIFY from all third party claims to which such third party is entitled vis-à-vis TIMIFY as a result of an infringement of such third party’s rights, including but not limited to copyright, rights to signs, rights under competition law, personality rights or other proprietary rights, by content included by the Service Provider. The same shall apply whenever TIMIFY is held liable by any public authority or other body by virtue of an infringement of rights by content included by the Service Provider. Each of the foregoing shall not apply where the Service Provider is not at fault with respect to such infringement of rights.
Furthermore, the Service Provider undertakes to reimburse TIMIFY all necessary expenses which TIMIFY incurs as a result of third parties legitimately taking legal action against TIMIFY because of an infringement of their rights by content included by the Service Provider. The foregoing includes, without limitation, the necessary costs of reasonable legal defence. The Service Provider shall not be obliged to make such reimbursement if the Service Provider is not at fault with respect to such infringement of third-party rights.
If TIMIFY is held liable by a third party on account of a possible infringement of such third party’s rights by content included by the Service Provider, the Service Provider shall use its best efforts to support TIMIFY in defending any claims asserted by such third party. This includes, without limitation, that the Service Provider shall provide TIMIFY at the latter’s written request with copies of any documents the Service Provider may have with regard to the allegedly infringing content. Any costs associated therewith shall be borne by TIMIFY if the Service Provider is not at fault with respect to such infringement of rights.
The Service Provider has the right to use the online booking solution within the limits of, and with a restriction to, the purposes of the services owed by TIMIFY for the term of, and subject to the relevant contract. TIMIFY grants the Service Provider a simple, non-transferrable and non-sublicensable license to the online booking solution to that extent.
By adding content to the service description designed by the Service Provider and to the Booking Profile, the Service Provider grants TIMIFY a simple, transferrable, licensable and sublicensable license to such content, without restrictions in terms of territory or content, limited in time to the term of the contract for the use of the online booking solution, for the purpose of publishing such content in the online booking solution in connection with the performance of the contract with the Service Provider, in particular on the TIMIFY Website and in the Booker App. This includes, in particular, the right to use such content by
copying it or making it available to the public or storing it in databases and
editing such content in whole or in part. The Service Provider acknowledges that the right to edit content is necessary to present such content in the best possible manner and to use it for the purposes and as part of its publication in the online booking solution, in particular on the TIMIFY Website and in the Booker App.
The Service Provider guarantees to be authorised without limitation to grant the rights granted under subsection 5.(2) above and to dispose of those rights in this respect, and that by granting those rights, no third-party rights are infringed, in particular no personality rights, or rights protected under copyright law, of any third party involved in the development of such content.
TIMIFY endeavours to ensure an annual average availability of 95% for the operation and use of the online booking solution. In the calculation of the percentage availability, figures are rounded to one position after the decimal point in accordance with commercial principles. The operating hours are 24 hours seven days a week (24/7). This is without downtimes due to circumstances outside the immediate control of TIMIFY, in particular:
downtimes due to circumstances of force majeure (in particular war, strike, Acts of God), sabotage or similar reasons for which TIMIFY is not responsible
downtimes due to virus or hacker attacks
downtimes resulting from downtimes of parts of the Internet or external DNS, routing issues outside the immediate control of TIMIFY
downtimes due to planned interruptions for maintenance work
downtimes due to third-party operating errors
downtimes resulting from third-party fault due to faulty or insufficient maintenance of third-party hardware or software (including of third parties deployed by TIMIFY (e.g. host providers)).
downtimes relating to the use of software not supported by the online booking solution, in particular operating systems, browsers and terminals.
TIMIFY warrants to maintain the contractually agreed quality of the online booking solution during the term of the contract and that the contractual use of the online booking solution does not conflict with any third-party rights. TIMIFY will remedy any material defects or defects of title of the online booking solution within reasonable time.
The Service Provider is obliged to notify TIMIFY of any defects in the online booking solution in text form (Sect. 126 b of the German Civil Code) after their discovery without undue delay, in case of material defects describing in each case the point in time and the specific circumstances prevailing when the defect occurred.
TIMIFY permanently seeks to improve and develop the online booking solution, but is not obliged to do so. In particular, TIMIFY is under no obligation to change the online booking solution to adapt it to changes in the services or interfaces of third-party providers.
8. Term and termination of the contract
Contracts for the use of the online booking solution are concluded for an indefinite period of time.
The contract for the use of the Classic Version of the online booking solution can be terminated by either party at any time with immediate effect.
The contract for the use of the Premium Version of the online booking solution has a minimum term of one year from the conclusion of a contract unless the parties agree on a longer minimum term. It can be terminated by either party at any time with effect from the expiry of the relevant minimum term. The minimum term of the contract shall automatically extend by the duration of the relevant previous minimum term each time, unless terminated by either party prior to the expiry of the minimum term. After termination of the Premium Membership by the User or TIMIFY, the user will be granted a free membership (Classic version) until terminated, but the additional and extended features of the Premium Membership will fall away.
Both parties have the right to terminate the contractual relationship at any time without notice in the event of an important reason. An important reason for the extraordinary termination is provided if the continuation of the contractual relationship is not reasonable for the terminating party until the expiry of the statutory period of notice, taking into account all circumstances of the individual case and weighing the interests of both parties.
Important reasons for TIMIFY are in particular the following:
Disregard of legal regulations by the user;
Offence of the user against his contractual duties;
The call of the services offered on the TIMIFY websites is considerably affected by the presence of the user (e.g., if turns out after registration of the user that the user is condemned because of a deliberate criminal offence legally and this conviction is known by other users);
the user advertises to unions or communities – or their mead testicles or activities – which are observed by security services or protection of children and young people authorities;
the user damages one or several other users, or the user is a member of a sect or another religious community which is argumentative in Germany.
By presentation of an important reason after figure 8.4, TIMIFY can also cover independently the following sanctions against the user from a notice after figure 8.4:
Deletion of the content which has been put by the user;
Blockage of the access to the service of the TIMIFY websites or single applications, or
Remark of a caution.
The user's right to reimbursement of prepaid fees for termination is excluded, unless the user terminates due to an important reason to be represented by TIMIFY. In the following cases, the user's right to reimbursement is already excluded in advance:
TIMIFY announces the contract for important reason; or
TIMIFY blocks the access of the user according to section 8.5.
Notices of termination must be given in text form (Sect. 126 b of the German Civil Code) to be effective.
9. Remuneration and billing
No remuneration is due for the use of the Classic Version of the online booking solution.
The remuneration for the use of the Premium Version will be billed each year in advance. The remuneration billed shall be due for payment within 14 days from the date of the invoice. The remuneration may also be billed by a cooperation partner nominated by TIMIFY.
All prices are plus VAT as applicable from time to time.
Set-off and rights of retention of the Service Provider are excluded unless the claims are undisputed or have been finally established.
10. Cooperation by the Service Provider
The Service Provider will always perform all cooperation and/or provision tasks in due time as necessary for TIMIFY to perform the services. The Service Provider will in particular provide TIMIFY with the information necessary to provide the contractual services and designate contact persons to TIMIFY who are sufficiently qualified and vested with sufficient authority to decide. The Service Provider will also use an up-to-date browser version of Microsoft Internet Explorer, Google Chrome or Mozilla Firefox to access the online booking solution through the TIMIFY Website.
The Service Provider guarantees to use the programme code provided by TIMIFY to integrate the TIMIFY Button into the Service Provider’s website or to integrate the TIMIFY Widget into the Service Provider’s online presence on third-party platforms only without changes and in accordance with the technical requirements of TIMIFY.
TIMIFY shall be liable without limitation for intent or gross negligence, for injury to life, body or health, under the provisions of the German Product Liability Act, and to the extent of any guarantees assumed by TIMIFY.
In case of a slightly negligent violation of duty which is essential for achieving the purpose of the contract (material duty), the liability of TIMIFY shall be limited in amount to the damage which is foreseeable and typical according to the nature of the transaction concerned.
In all other respects, liability of TIMIFY shall be excluded. In particular, a no-fault liability for any defects already existing at the time of conclusion of the contract (Sec. 536a (1) 1st alt. of the German Civil Code) does not exist on the part of TIMIFY, save where the conditions set forth in subsections 11(1) or (2) above are fulfilled.
The above limitation of liability shall also apply to the personal liability of the employees, representatives and bodies of TIMIFY.
12. Data protection
TIMIFY attaches great importance to the protection of personal data and collects, processes, and uses personal data only in observance of the applicable data protection laws and in accordance with the principles described in the privacy statement (https://www.timify.com/privacy-booker).
TIMIFY makes the online booking solution available to the Service Provider as software as a service. TIMIFY in this context only functions as a technical platform operator without the ability to influence the specific use of the service by the Service Provider. Where TIMIFY collects, processes or uses personal data such as employee or customer data while providing services for the Service Provider, this is done only on behalf of and in accordance with the strict instructions of the Service Provider and on the basis of a separate agreement regarding the commissioned processing of personal data. In this respect, TIMIFY will be responsible for performing the duties of TIMIFY under the agreement regarding the commissioned processing of data. In all other respects, the Service Provider shall be responsible for compliance with the data protection regulations as controller within the meaning of data protection law.
The Service Provider guarantees to use personal data of the Service Provider’s employees, in particular employee pictures, in the online booking solution only where a legal provision so allows or where the person concerned has given his or her approval.
Furthermore, the Service Provider will send electronic mail via the online booking solution only to those recipients who have given their legally effective approval to that effect.
The Service Provider grants TIMIFY the right to refer to the Service Provider in publications of any kind as a reference customer and to use the Service Provider’s names, marks and logos in this context, provided that and as long as the Service Provider does not explicitly object to such use in text form (Sect. 126 b of the German Civil Code).
Any deviating, conflicting or additional general terms and conditions of the Service Provider shall not become part of the contract, unless TIMIFY has explicitly agreed to them in text form (Sect. 126 b of the German Civil Code).
In the event of legal disputes, you have the possibility to use an alternative dispute settlement. The following link from the EU Commission (also known as the OS platform) contains information on online dispute resolution and serves as a central point of entry for the out-of-court settlement of disputes arising from online purchase contracts: https://webgate.ec.europa.eu/odr/main/index.cfm?event=main.home.show&lng=EN. However, TIMIFY does not participate in dispute resolution proceedings before a consumer sacking agency and is not legally obliged to do so.