- Contractual parties in connection with these Terms and Conditions of Use and Business (hereinafter: "T&C") are TerminApp GmbH, Balanstrasse 73, Building 24, 3rd Floor, 81541 Munich, Germany (hereinafter: "TIMIFY") and the Customer.
- Customer and contractual partner of TIMIFY in the sense of these GTC can only be entrepreneurs in the sense of § 14 BGB (German Civil Code), as well as legal entities under public law or a special fund under public law.
2. Scope of the GTC
- Terms and conditions deviating from these GTC shall only become the subject of the contractual agreement if TIMIFY confirms this in advance. This also applies if TIMIFY does not expressly object to deviating terms and conditions of the customer, even if these are attached to requests for quotations, orders or declarations of the customer.
- These GTC shall also apply to all future orders, contracts and other agreements between the parties, even if they are not expressly agreed again or reference is not made to them again, unless the parties agree otherwise in writing.
B. General Contractual Basis
1. Services covered by the contract
- TIMIFY provides the customer;
- a) different versions of the appointment booking solution, including.
- b) the rights of use required for the term of the agreement, and
- c) individual proactive support services provided by TIMIFY in accordance with the Service Levels. However, the Service Levels will only apply if Customer purchases a paid version or paid TIMIFY Product.
- The content and scope of the appointment booking solution, as well as the respective functions, modules and components contained therein (hereinafter: "Components") can be found in the respective service descriptions (e.g. Classic, Premium, Enterprise, Enterprise Plus) as well as on the website in its current version.
- In the event of contradictions between the information in the offer/order form or the service descriptions and these GTC or in the event of deviating written agreements, these provisions shall take precedence over the GTC.
- TIMIFY reserves the right to change functions, modules and components provided free of charge, to make new functions available free of charge or against payment and/or to discontinue the provision of functions provided free of charge. TIMIFY will always take into account the legitimate interests of the customer.
2. Registration and conclusion of contract
- The use of the online appointment booking solution requires the creation of a user account. This requires the entry of the company, industry, country, first and last name, an e-mail address and a password. The e-mail address and password also serve as the service provider's access data to the online appointment booking solution (hereinafter: "access data"). Access Data shall be kept secret and shall only be made available to users authorized by the Customer. The customer assumes full responsibility for all actions taken by users authorized by him under his Access Data. The customer must inform TIMIFY immediately if the access data have become known to third parties not authorized by him. In this respect, the customer assumes responsibility for all actions taken by third parties not authorized by him under his access data.
- Customers can delete their user account at any time under "My account". However, this has no effect on any contracts already concluded. Insofar as their personal details change, users themselves are responsible for updating them. All changes can be made online after logging in under "My account"/"Log in".
- The components offered by TIMIFY are non-binding and subject to change. The customer submits a binding offer to conclude a contract on the use of the respective booked online appointment booking solution as part of the registration process for setting up a user account (clicking the "Register" or "Register for payment" button in the last step of the registration/order process). In the case of paid registration or ordering of paid versions or TIMIFY products, the customer's billing and payment data will be requested before the offer is submitted and the customer will finally be shown all order data again on the order overview page. Before submitting the order, the customer has the option to check all information again, change it (also via the "back" function of the Internet browser), or cancel the order.
- A contract comes into effect a) upon receipt of the confirmation of the contract by TIMIFY by the customer or b) upon the day of the extension of a service or c) upon activation of the account, at the latest, however, d) upon provision of the respective version or the TIMIFY products and/or performance of the contractual and agreed services by TIMIFY, unless the customer immediately objects to the performance of the service. TIMIFY is not obligated to accept the offer declared by the customer and thus to conclude the contract.
- These GTC and the contract details can be viewed in the user account of the customer.
- After receipt of the order at TIMIFY, the order data, the legally required information for distance contracts and the terms and conditions of use and business will be sent to the customer again by e-mail.
- 1.7 The language provided for the conclusion of the contract is German only. Translations into other languages are for your information only. In case of contradictions between the German text and the translation, the German text shall prevail.
3. Contract terms and termination rights
- In the absence of any agreement to the contrary, the contracts on the use of the online appointment booking solution are concluded for an indefinite period of time.
- In the event that the contracting parties agree on a specific (minimum) contract term ("Subscription") for a version or a TIMIFY Product, the notice period is to be taken from the respective Subscription and termination is accordingly possible at the earliest at the point in time at which the term in the respective performance profile, or the performance description ends.
- Unless otherwise agreed between the parties, the notice period for the respective service profile shall be twelve (12) weeks to the end of the agreed contract term. In case of doubt, each notice of termination shall only be effective with regard to the service profile named in each case.
- If the contractual relationship is not terminated in due time, it shall be extended, in the absence of any agreement to the contrary, by the respective preceding (minimum) term of 12 months.
- Contracts that provide for the free use of the online appointment booking solution and its components (e.g. trial and test periods) may be terminated by the customer at any time without notice.
- If the customer does not log in once within 12 months, TIMIFY will assume that the customer's account is inactive and will close it, unless it is a paid version or paid TIMIFY product. However, TIMIFY will notify the customer in advance of the termination, or deactivation, of the account.
- The right of the parties to terminate the contractual relationship for cause at any time without notice shall remain unaffected. The right of the parties to terminate the contract extraordinarily for good cause without notice shall remain unaffected. Good cause shall be deemed to exist in particular in the following cases, if the Customer a) is more than two (2) months in arrears with due payments or b) one of the contracting parties, after prior warning, again violates elementary obligations of the contract.
- Cancellations must be in text form to be effective.
4. General obligations of the parties
- TIMIFY provides the customer with the online appointment booking solution, including the components as technical infrastructure for its own responsible use. TIMIFY itself has no influence on the design and details of the contractual relationship between the customer and his/her appointment bookers. This concerns in particular the availability of appointments, the respective service details of the customer towards his/her users, price quotations or evaluations and contents of the booking profile. Therefore, the customer is solely responsible for the use of the online appointment booking solution and all contents of the service descriptions created by him/her using the online appointment booking solution, the booking profile as well as the contractual arrangement vis-à-vis the users.
- The online appointment 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 for data access (GOBD). The customer is responsible for the storage of data in accordance with the legal requirements, in particular commercial and tax law.
- The customer undertakes to ensure that the services and service descriptions offered by it and the contents of the booking profile do not violate any statutory prohibitions or the rights of third parties (in particular, but not exclusively, name, personality, copyright, data protection and trademark rights). In particular, the customer undertakes not to offer any services via the online appointment booking solution and not to use any content in the service description and the booking profile that a) relates to sexual, pornographic or other content that is harmful to young people, b) relates to content that glorifies violence or incites hatred, c) incites criminal acts or provides instructions for such, or d) violates any national statutory or official prohibitions.
- TIMIFY is not obliged to check the content and data implemented by the customer. However, TIMIFY reserves the right to terminate the contractual relationship without notice or to terminate the customer's account (temporarily) in the event of violations of the aforementioned obligations. TIMIFY will always give the customer the opportunity to comment.
- The customer indemnifies TIMIFY from all claims of third parties, which they assert against TIMIFY due to the infringement of their rights, in particular, but not exclusively, of copyrights, trademark rights, competition rights, personal rights or other property rights, by the content implemented by the customer. The same applies to any claims made against TIMIFY by authorities or other bodies due to infringements of rights for which the customer is responsible.
- Furthermore, the customer undertakes to reimburse TIMIFY for all necessary expenses incurred by TIMIFY as a result of third parties taking justified action against TIMIFY due to the infringement of their rights by the customer. This includes, but is not limited to, the necessary costs of a reasonable legal defense. The customer is not obligated to reimburse TIMIFY if it is not at fault for the infringement of the rights of third parties.
- The customer shall perform regular data backups.
5. Property rights and intellectual property
- In the absence of a written agreement to the contrary, TIMIFY grants the customer a simple, non-exclusive, non-transferable and non-sublicensable right of use to the online appointment booking solution and the contractual components for the duration of the respective contract and subject to payment of the agreed fee.
- By placing content in the service descriptions and booking profiles designed by the customer, the customer in turn grants TIMIFY a simple, transferable, licensable and sublicensable right of use to the respective content, unlimited in terms of space and content and limited in terms of time to the term of the contract for the use of the online appointment booking solution and its components, for the purpose of a) the publication, processing and evaluation of this content for the customer; b) the reproduction, making available to the public and storage in databases, as well as the processing in whole or in part; in connection with the performance of the contract vis-à-vis the customer.
- Limited and subject to anonymization and evaluation in non-personal form by TIMIFY, the granting of the rights of use of content is permitted for an unlimited period of time and also for own purposes.
- The customer assures that he is unrestrictedly authorized to grant the necessary rights and to dispose of these rights insofar and that he does not violate any rights of third parties by granting these rights, especially not personal rights or copyrighted rights of third parties involved in the creation of the content.
6. Payment modalities
- The amount, due date and billing details result from the service descriptions and the subscription selected in each case. All prices and remunerations are exclusive of statutory value-added tax.
- In the absence of any agreement to the contrary, the charges shall be due for payment within fourteen (14) days of the invoice date. If no objection is made by the customer within fourteen (14) working days of receipt of the invoice, stating reasons, objections to the reason and amount of the settlement shall be excluded.
- TIMIFY is entitled to charge a reasonable reminder fee in the event of a reminder initiated by the customer due to unjustified non-payment. In this case, the customer is always at liberty to prove that TIMIFY has incurred no or only minor damage.
- If the customer is in arrears with payments and also fails to make payment within a further payment period of at least two (2) weeks set thereupon, TIMIFY is entitled, with reference to these legal consequences, to withhold the provision of the contractual services owed for the time being until payment is made in full, or to discontinue them in whole or in part. However, the customer shall not be released from the obligation to pay even in this case.
- TIMIFY may, at its reasonable discretion, adjust the fees payable on the basis of these GTC to the development of the costs that are decisive for the price calculation. A price increase shall be considered and a price reduction shall be made if, for example, the costs for the procurement of hardware and software as well as energy, the use of communication networks or the wage costs increase or decrease, significant functional expansions or functional reductions of the services provided take place or other changes in the economic or legal framework conditions (e.g. inflation) lead to a changed cost situation. Increases in one type of cost, e.g. labor costs, may only be used to increase prices to the extent that they are not offset by any decreases in other areas, such as hardware and software costs. In the event of cost reductions, e.g. in hardware costs, TIMIFY shall reduce prices to the extent that such cost reductions are not fully or partially offset by increases in other areas. In exercising its reasonable discretion, TIMIFY will select the respective times of a price change in such a way that cost reductions are not taken into account according to standards that are less favorable for the customer than cost increases, i.e. cost reductions will have at least the same effect on prices as cost increases. TIMIFY will inform the customer of changes in text form at least 6 (six) weeks before the changes take effect.
- The settlement of the remuneration can be made via a cooperation partner named by TIMIFY. The customer has the option to use an "Online Payment Function". This gives the customer the opportunity to process payments for the use of its services directly via a payment service provider. For this purpose, the customer must create a user account with the payment provider and thus concludes an independent contract with this payment provider. The content and scope of the services related to this service, including the costs incurred by the customer for the use of these functions (transaction costs), are governed exclusively by the contract concluded between the payment provider and the customer. TIMIFY has no influence on the transaction costs charged by the payment provider and payable by the customer. Any fees and costs payable to TIMIFY can be found in the service descriptions. TIMIFY does not process the access data, payment or credit card data of the customer or his appointment bookers (and their customers) when using the online payment function. TIMIFY assumes no responsibility for the execution of the transactions. In particular, TIMIFY is not liable for payment defaults of the customer as well as in case of cancellations. In the event of refunds or other repayments by the customer, any transaction costs incurred up to that point shall remain unaffected. TIMIFY reserves the right to adjust the percentage fee of the transaction costs if the costs attributable to the contract between TIMIFY and the payment provider change due to circumstances that occur after the conclusion of the contract and were not foreseeable and are not at the discretion of TIMIFY. The costs attributable to the respective contract are determined by the transaction costs that TIMIFY has to pay to the Payment Provider for the use of this service. Accordingly, TIMIFY shall be entitled to increase the fee if and to the extent that TIMIFY's costs attributable to the Contract increase. TIMIFY will not make a price increase by more than the amount of the total cost increase and not more than once within any calendar year. TIMIFY shall notify the customer of any price increase at least two (2) weeks prior to its effective date and, as part of the notice of the price increase, shall specifically advise the customer of any right of termination and the notice period, as well as the consequences of any termination not received in a timely manner. Such a right of termination shall exist if the price increase amounts to more than 5% of the charge applicable up to the time of the increase. In this case, the customer shall be entitled to terminate the contract in text form within three (3) weeks of receipt of the notification of the increase with effect from the date on which the increase takes effect. If the customer does not terminate the contract or does not terminate the contract in time, the contract will continue at the new amount at the time specified in the notice. To the same extent,TIMIFY will reduce the price if and to the extent the aforementioned criteria result in a cost reduction.
7. Dealing with critical vulnerabilities & zero-day vulnerabilities
- Critical security vulnerabilities (zero-day vulnerabilities), especially those reported by national and international security authorities (e.g. BSI warnings), often pose a serious threat to customers and require an immediate response by TIMIFY, which due to the time criticality cannot be handled within the framework of formal requests and/or assignments. TIMIFY has the right to implement warnings and recommendations of security authorities for the protection of customers immediately and without prior consultation with the customer, if such prior consultation leads to a risk for the customer due to the loss of time and otherwise the security of the customer's data and IT systems cannot be guaranteed or cannot be guaranteed comprehensively.
- It is pointed out to the customer that the expenses for the processing of such security vulnerabilities becoming known at short notice and the resulting immediate danger of a zero-day attack cannot be foreseen or calculated. Therefore, these are not covered by the existing remunerations and must be remunerated separately by the customer.
- TIMIFY's obligation to keep the customer informed comprehensively and promptly also in these cases remains unaffected.
- TIMIFY shall be liable for defects in accordance with the statutory provisions applicable to this.
- TIMIFY warrants that the contractually agreed quality of the online appointment booking solution and its components will be maintained during the term of the contract and that no rights of third parties conflict with the contractual use of the online appointment booking solution. TIMIFY shall remedy any material defects and defects of title in the online appointment booking solution within a reasonable period of time. The response times as well as the deadlines for the elimination of any defects are regulated in the area of the respective service levels.
- A defect or functional impairment resulting from environmental conditions, incorrect operation or from non-compliance with operating instructions or technical specifications by the customer is not a defect for which TIMIFY is responsible. Accordingly, rights of the customer due to defects are excluded in particular if these are due to the fact that the customer has modified the online appointment booking solution as well as its components a) or has had them modified by third parties or b) is used contrary to the technical specifications and requirements of TIMIFY.
- TIMIFY always strives to improve and further develop the online appointment booking solution, but is not obligated to do so. In particular, TIMIFY is not obligated to adapt the online appointment booking solution and its components to any changes in the services or interfaces of third-party providers.
9. Maintenance and services activities (SLA)
- Faults in the IT infrastructure provided by TIMIFY and for which it is responsible shall be remedied within the scope of the applicable service levels. Unless the parties have concluded a separate SLA, the fault shall be remedied within a reasonable period of time.
- The customer is obligated to report malfunctions as soon as possible and to support TIMIFY to a reasonable extent in the elimination and determination of the cause of the malfunction. This includes in particular that the customer describes occurring malfunctions in sufficient detail and in a comprehensible manner and forwards the report to the responsible ticket and support system of TIMIFY.
- If, in the course of checking and processing the fault report, it turns out that the fault was not TIMIFY's responsibility, TIMIFY is entitled to charge the customer for the expenses incurred for checking the fault in accordance with its current price list if the customer could have reasonably recognized during the troubleshooting that the fault was not caused by TIMIFY.
- For the maintenance and servicing of systems and work on the IT infrastructure, service interruptions by TIMIFY must be tolerated if these are reasonable and appropriate for the customer. This maintenance work is not relevant to the SLA or is counted as time of availability when measuring availability. This does not entitle the customer to damages or a reduction of the agreed remuneration. In this context, TIMIFY will endeavor to keep impairments for the customer as low as possible and always announce them with an appropriate lead time. Irrespective of this, the possibility and the right of TIMIFY to take action at any time outside the maintenance window to remedy acute disruptions or to avert imminent disruptions and threats to security remains unaffected. Such maintenance work is also not relevant to the SLA.
- The contracting parties shall be liable to each other at all times and without limitation for damage caused intentionally or by gross negligence, under the Product Liability Act and on the basis of an assumed guarantee, as well as in the event of injury to life, limb or health.
- Liability of the contracting parties, their legal representatives and vicarious agents for slight negligence is excluded. This shall only not apply in the event of a culpable breach of elementary contractual obligations, i.e. obligations the fulfillment of which is a prerequisite for the proper performance of the contractual relationship or the breach of which would jeopardize the achievement of the purpose of the contract. In these cases, however, the liability of the contracting parties shall be limited to the amount of the foreseeable damage typical for the contract. However, in the absence of an agreement to the contrary, the total maximum amount in the case of simple negligence shall amount to a maximum of two (2) months' net sales that TIMIFY has generated with the customer, based on the month and order in which the damage occurred.
- There shall be no further liability of the contracting parties beyond this amount stated in 10.2. This shall also apply to loss of profit, loss of savings or other consequential damages. The above limitations of liability shall also apply to the personal liability of the employees, representatives and bodies of the contracting parties.
- The liability of TIMIFY in the event of data loss or data recovery is in any case limited to the amount of the damage that would have occurred even if the customer had made regular and proper data backups (at least half-day backups).
- Insofar as services are obtained/procured directly from third-party providers for the customer (e.g. Microsoft® services), the rights of the third-party provider apply to the liability and other provisions of the third-party provider. These include all agreements - in particular regarding warranty and liability - that the third-party provider makes with its customers or licensees on the basis of its contractual terms. TIMIFY will refer the customer to these regulations of the third-party provider.
- TIMIFY is not responsible if TIMIFY cannot meet obligations due to circumstances beyond TIMIFY's control. In particular, TIMIFY cannot guarantee the availability of energy or telecommunication services (of third parties) or be liable for the performance of such third parties. This also applies accordingly if TIMIFY is unable to perform due to force majeure (e.g. pandemics; natural disasters).
11. Secrecy and confidentiality
- The Parties undertake to treat as confidential the information made available to them under this Agreement by one Party as well as knowledge which they acquire on the occasion of this cooperation about matters - for example of a technical, commercial or organizational nature - of the other Party and not to exploit or make it available to others during the term of and after termination of this Agreement.
- Any non-disclosure agreements already concluded between the contracting parties shall continue to apply and, in the event of contradictions, shall take precedence.
12. Data protection and data security
- Each party is responsible for ensuring that its employees and other vicarious agents comply with the relevant statutory provisions, in particular those of the EU General Data Protection Regulation (GDPR).
- The Contracting Parties undertake to take and maintain in their organizational area the necessary technical and organizational measures as well as the necessary security precautions to protect personal data against unauthorized use, access, disclosure, modification or destruction.
- The contracting parties shall conclude an agreement on commissioned processing pursuant to Art. 28 DS-GVO.
13. Marketing & Customer Communication
- If the customer enters into a contract with TIMIFY and provides the electronic mail address (e-mail), TIMIFY has the right to use this electronic mail address (e-mail address) of the customer for direct advertising of its own similar goods or services.
- The customer has the right to object to the use of the electronic postal address (e-mail address) at any time without incurring any costs other than the transmission costs according to the prime rates.
- The customer grants TIMIFY the right to identify the customer as a reference customer in publications of any kind and to use names, brands and logos of the customer in this context, unless and until the customer expressly objects to this in text form.
C. Final provisions
1. Ancillary agreements and miscellaneous
- Amendments and supplements to these contractual terms and conditions must be made in writing to be effective. The same shall apply to any waiver of this written form requirement.
- The parties are aware that software may be subject to export and import restrictions. In particular, licensing requirements may exist or the use of the software or related technologies may be subject to restrictions abroad. Customer will comply with applicable export and import control regulations of the Federal Republic of Germany, the European Union and the United States of America, as well as all other relevant regulations. TIMIFY's fulfillment of the contract is subject to the proviso that there are no obstacles to fulfillment due to national and international regulations of export and import law as well as no other legal regulations.
- TIMIFY is not responsible for compliance with any laws or regulations applicable to Customer or its industry.
2. Applicable law and place of jurisdiction
- The place of jurisdiction is Munich.
3. Severability clause
- The parties are aware of the risk that individual or several provisions of this contract could prove to be invalid or void, contrary to the parties' current understanding. Even in such a case, the parties wish to exclude any doubt as to the validity of this contract. Should one or more provisions of this Agreement be or become invalid or void in whole or in part, or should the Agreement contain a loophole, the cooperation agreement shall therefore, in derogation of Section 139 of the German Civil Code (BGB), remain valid not only in case of doubt but always.
- In place of the invalid or missing provisions, the parties undertake to replace them with provisions that come as close as possible to the intended economic result. Should this replacement be inadmissible for legal reasons, the statutory provisions shall apply in place of the invalid or missing provisions.
Stand: November 2022