Section I. General Provisions
1. Subject and Scope
- TIMIFY - TerminApp GmbH, Balanstr. 73, 81541 Munich, Germany ("TIMIFY") offers a solution for online appointment booking and resource management ("Software") via software-as-a-service (SaaS).
- Clients (“Subscribers”) that enter into a “Licence Subscription Agreement” (“Lizenzvereinbarung SaaS”) with TIMIFY may – during the term of the Licence Subscription Agreement – use the Software to offer available and online bookable appointments to their customers or interested parties. In addition, they can efficiently control and manage all availabilities of their bookable resources. For further details and provisions also refer to Section II: Licence Subscription.
- TIMIFY may render the Software in accordance with certain service levels as described in a specified “Service Level Agreement” (“SLA”). For further details and provisions also refer to Section III: Service Level Agreements.
- In addition, Clients may request certain ”Professional Services” from TIMIFY as defined in a “Professional Services Agreement” (“Auftrag zur Erbringung von Programmierdienstleistungen”). For further details and provisions also refer to Section IV: Professional Services.
- Partnering companies (“Partner”) promote, sell and/or distribute subscriptions to the Software (“Partner Activities”) to other companies as agreed upon by the Parties in the "Partner Agreement" (“Partnervertrag”). For further details and provision also refer to Section V: Partner Activities.
- Both the Software as well certain Professional Services may use open source software with further details being mentioned in Section VI: Open Source Software.
- These General Terms & Conditions (“GT&C”), together with the individual Licence Subscription, Professional Services, and/or Partner Agreement (incl. any potential annexes), set out the conditions valid between TIMIFY and the Client (“Contract”). In case of contradictions between these GT&C and the Licence Subscription, Professional Services and/or Partner Agreement, the respective Agreement takes precedence.
2. Further Definitions
- Affiliates: shall mean companies related to Client in the sense of Article 15 et sqq. of the German Stock Corporation Act (§ 15 ff. AktG) where Client owns more than 50% of the shares or directly or indirectly controls, is controlled by, is under common control with or is otherwise in the same group of entities as Client.
- Agreement: means the respective Licence Subscription, Professional Services or Partner Agreement document between TIMIFY and Client.
- Client: means the party that has signed an Agreement with TIMIFY for Licence Subscription, Professional Services, and/or Partner Activities.
- Confidential Information: means all material, non-public, business-related information (including but not limited to trade secrets, source codes, technical know-how, marketing and business plans, sales volumes, pricing, customer and employee data, as well as the terms of this Contract) whether or not specifically labelled or identified as confidential. Confidential Information does not include information that is (i) already known by the other party at the time of disclosure, (ii) lawfully obtained by the other party from a third party, (iii) independently developed by the other party, or (iv) expressly indicated by the disclosing party as non-confidential.
- Intellectual Property (“IP”): shall mean patents, marks, copyrights (including rights in object- and source code), rights in designs, utility models, rights in know-how and any other intellectual property rights, in each case whether registered or unregistered.
- a) TIMIFY IP: any existing IP relating to the Software incl. the backend and uncostumized frontend of TIMIFY’s systems.
- b) Customization IP: any new IP that relates to customization of TIMIFY’s backend and/or frontend.
- c) Professional Services IP: any new IP that may be created in relation to Professional Services and is not part of TIMIFY IP.
- Party/Parties: shall mean the other party to the contract or all parties to the Contract, respectively.
- User: shall mean any user of the Client that is granted access to the Software.
- While the Parties aim to share as little Confidential Information as possible it may be necessary for a Party to do so in furtherance of the purposes of this Contract. Accordingly, each Party may become a disclosing and/or receiving Party of Confidential Information under this Contract.
- In this case, the receiving Party shall take all reasonable measures and precautions to protect the Confidential Information, keep it strictly confidential and use it exclusively for the fulfilment of the Contract. Except for recipients who have a strict need to know and been made aware of the duties and restrictions related to Confidential Information, the receiving Party shall not disclose or use any Confidential Information.
- In the event the receiving Party is required by judicial or governmental administrative process to disclose any Confidential Information or suspects any breach or unauthorized access (e.g. due to an intrusion or security incident) of the Confidential Information, the receiving Party shall promptly notify the disclosing Party so that the disclosing Party may seek appropriate means to protect the confidentiality of its Confidential Information. Notwithstanding the absence of such means, if, in the opinion of the receiving Party's counsel the receiving Party is compelled to disclose such Confidential Information, the receiving Party may disclose only the Confidential Information that is required without liability hereunder.
- The Parties agree that any threatened or actual breach of this section could have a material and adverse effect upon the disclosing Party and potentially cause irreparable injury for which it would have no adequate remedy at law and damages arising from such breach may be difficult to ascertain. In each such case, the Parties agree that in addition to, and without limiting any other right or remedy it may have, the disclosing Party shall be entitled to equitable relief, including immediate injunctive relief and specific performance prohibiting such violation.
- Client is prohibited from obtaining Confidential Information by means of reverse engineering. "Reverse engineering" in this context means all actions, including observing, testing, examining and reassembling and, if necessary, reassembling, with the aim of obtaining Confidential Information.
- In the event the law applicable to this Contract requires that the receiving Party’s duties under this section have a time limit, the duties under this section shall expire three years after the expiration of this Contract.
4. Invoicing and Accounting
- The pricing model between TIMIFY and Client, including Client’s discounts, are defined in the individual Agreement. In case the Agreement refers to TIMIFY list prices, it is retained that lists prices that are applicable when the respective Agreement comes into effect shall apply and that TIMIFY may modify the list prices within the framework of its general pricing policy. In such case, TIMIFY will provide Client with an amended price list no later than two weeks before said prices take effect. A price increase shall not apply to orders placed by Client that TIMIFY received before an amended price list takes effect.
- TerminApp GmbH is entitled to increase the licence prices for the first time 12 months after the start of the contract and no more than once a year with a notice period of three months in accordance with the cost development at TerminApp GmbH. As soon as the licence prices increase by more than 5%, the customer is entitled to terminate the contract extraordinarily with a notice period of six weeks after receipt of the request for an increase at the time the increase takes effect.
- TIMIFY is entitled to invoice Client the complete fees as defined in the individual Agreement, even if Clients terminates or reduces the use of the Software at an earlier point in time.
- Purchased Software subscription licences cannot be cancelled or refunded before the expiration of their respective term once an order has been placed.
- Invoices from TIMIFY to Client are to be paid within thirty days of receipt of the invoice and are subject to value-added tax, if applicable.
- If Client is in arrears with payment, TIMIFY shall be entitled, until receipt of the payment, to de-activate Subscriber’s Software licences and/or activate outstanding Software licences only against advance payment. The assertion of further rights due to default in payment shall remain unaffected by this.
- TerminApp GmbH will send the client an invoice by e-mail to the address given to TerminApp. All invoiced amounts must be paid in full within 30 days from the date of the TerminApp invoice. TerminApp reserves the right to charge a late fee on all overdue amounts at the lesser of 1.5% per month or the highest amount permitted by law. The statutory regulations for overdue amounts apply.
- If the client require a purchases order number ("PO") in order to transfer the fees due hereunder, it is the sole responsibility of the client to provide TerminApp GmbH with such a PO in a timely manner. TerminApp will include the PO number provided by the client on the corresponding invoice to the client. TerminApp's failure to provide a PO number on an invoice does not relieve the client of its obligation to pay for the content. If the client does not provide TerminApp GmbH with an order number, the client warrants that an order number is not required for the transfer of the fees owed by the client.
5. Term and Termination
- Unless otherwise agreed, the two subscription options have the following terms and notice periods:
- The annual Contract has a regular term of twelve months and will thereafter be extended automatically for successive periods of twelve months each, unless terminated by either party with four weeks’ notice prior to the expiration of the Contract.
- The monthly Contract has a regular term of one month and will thereafter be extended automatically for successive periods of one months each, unless terminated by either party at the end of the term.
- The right to terminate without notice for good cause remains unaffected. Good cause is given for a Party in particular if the other Party culpably violated a duty to a significant degree and has not cured such violation within an appropriate term set by the Party; or the other Party is unable to pay.
- Any notice of termination must be in writing.
- Upon termination of the Contract any free licence given to Client for its own use of the Software as well as for training and presentation purposes automatically ends as well. All booking buttons or booking widgets must be deleted on all devices and programs of the Client. If necessary, Client has to confirm the proper and complete deletion.
- TIMIFY is liable for a violation of contractual and non-contractual obligations according to the legal regulations. TIMIFY is liable for damages - regardless of the legal reason - within the scope of fault liability in the case of intent and gross negligence. In the case of simple negligence, TIMIFY is liable subject to a milder standard of liability according to legal regulations (e.g. for care in own affairs) only
- for damages resulting from injury to life, body or health,
- for damages resulting from a not insignificant breach of an essential contractual obligation (obligation, the fulfilment of which enables the proper execution of the Contract in the first place and on the observance of which Partner regularly relies on and may rely on);
- in this case, however, liability is limited to compensation for the foreseeable, typically occurring damage.
- The liability limitations resulting from the above paragraph also apply to breaches of duty by or in favour of persons whose fault TIMIFY is responsible for according to legal regulations. They do not apply in the case of fraudulent intent, in the case of a guarantee assumed by TIMIFY, and for claims according to the product liability regulations.
7. Force Majeure
Neither Party shall be liable for any non-performance or delayed performance of any of its obligations hereunder to the extent that such non-performance or delayed performance is due to circumstances beyond its control. The Parties shall immediately notify each other of any event of Force Majeure and specify the probable duration and the extent of obstructions and impacts. The Party affected by an event of Force Majeure in its performance of this Contract shall use its best efforts to comply with its contractual obligations and to avoid and remove the obstruction. If an event of Force Majeure is likely to occur, the Parties shall closely cooperate in order to maintain the provision of the services of the Contract.
8. Data Security and Ownership
- TIMIFY undertakes to take all technical and organizational measures which are necessary to ensure the appropriate level of protection for the personal data of the Client (and in particular of its customers, employees and contractual partners).
- The measures to be taken are those of data security and to ensure that the confidentiality, integrity, availability and resilience of the systems are protected in a manner appropriate to the risk. TIMIFY takes into account the current status of the technology, the implementation costs and the nature, scale and purposes of the processing, as well as the different likelihoods of the processing operation and the seriousness of the risk to the rights and freedoms of the data subjects. In this respect, TIMIFY has the right to adjust the measures if and to the extent that the security level of the defined measures is not undercut and the changes are documented in a manner comprehensible to Client. Client will be informed of any changes in advance.
- Client has the right to schedule an appointment with TIMIFY to monitor compliance with the provisions on data protection and data security as well as the contractual agreements to an appropriate and necessary extent (either by itself or through a third party commissioned by Client), in particular by obtaining information and inspecting the stored data and data processing programs as well as by checks and inspections on site (Art. 28 par. 3 sentence 2 lit. h GDPR).
- Together with Client, TIMIFY will prepare an additional annex to the existing Contract – if necessary – which contains the subject of data order processing (Order Processing Agreement (ADV)).
- Client’s data shall be and remain the sole and exclusive property of Client. Client shall be entitled to export their data at any time, without charge, upon request and upon termination of the Agreement. TIMIFY shall support such export. TIMIFY is provided a licence to Client’s data hereunder for the purpose of using the Software and/or Professional Services, including a licence to store, record, transmit, maintain, and display Client’s data to the extent necessary in the provisioning of the Software and/or Professional Services.
9. Prevention of Bribery and Corruption
- The Parties agree and acknowledge that they have taken and in the future will take all necessary measures to make sure, that themselves, their directors, officers, employees, agents, or anyone else acting on behalf of the Party have not directly or indirectly, offered, promised, given, authorized, solicited or accepted any pecuniary or other advantage of any kind or anything else of value to public officials, or employees of public or private international, national or local organizations (government officials), or any other persons, that are relevant in connection with negotiation of contracts, providing of licences, permits or other authorizations, either public or private, in any way connected to this Contract.
- The Parties agree and acknowledge in connection and throughout the course of this Contract (including upon acquisition of the products and/or contents that are relevant for the supply of goods or rights and/or for the provision of the services subject to this Contract) to fully comply with all applicable laws on the prevention of bribery and corruption in those jurisdictions where business is conducted with regard to this Contract relating to combating corruption, including in all cases the appropriate provisions of the UK Bribery Act 2010.
- A Party shall inform the other Party immediately without delay if they have knowledge or suspicion of corruption cases which are in a reasonable relation to this Contract or its performance.
TIMIFY acknowledges that Client may be bound to fulfil the requirements of the U.S. Securities and Exchange Commission (SEC) at the U.S. Stock Exchange. In particular, Client may comply with the requirements of Section 404 of the Sarbanes Oxley Act (SOX) for an effective internal control system (ICS). As far as this requirement also concerns outsourced processes, goods and/or services of this Contract carried out by TIMIFY on behalf of Client, the aforementioned SOX evidence requirement is also extended to the Software and Professional Services.
TIMIFY warrants and represents to have - in particular but not limited to - an industry liability insurance in place, covering in particular the operations of TIMIFY, pursuant to this Contract.
12. Export Control
The Software and Professional Services may be subject to the relevant customs regulations and the laws on export control of the Federal Republic of Germany, the European Union (EU) or other countries. The Parties agree to comply with such regulations and to provide all the relevant details which the other Party may need in order to comply with the respective legal regulations and the administration of basic data of its logistic processes.
If TIMIFY intends to commission any third party to carry out the Software or the Professional Services (in whole or in part), TIMIFY shall be obliged to inform Client of this in advance in a timely manner and specify the names of such third parties in writing or electronically. TIMIFY will oblige the third party concerned by written contract in accordance with the stipulations laid down in this Contract, in particular with regard to the non-disclosure obligations and the obligations relating to data protection.
- Client cannot transfer the rights and obligations from the Contract to third parties without the prior written consent of TIMIFY.
- Deviating terms and conditions of Client are not recognized unless TIMIFY expressly agrees to their validity in writing. Changes and additions to these GT&C must be made in writing to be effective. This also applies to the waiver of the written form requirement.
- The laws of the Federal Republic of Germany shall apply. The exclusive place of jurisdiction for all disputes is Munich. This shall not apply if another exclusive place of jurisdiction is established on the basis of mandatory statutory provisions.
- Should individual provisions of these GT&C be or become invalid and/or contradict the statutory provisions, this shall not affect the validity of the remaining provisions of the GT&C. The invalid provision shall be replaced by the contracting parties by mutual agreement with a provision that comes as close as possible to the economic purpose of the invalid provision in a legally effective manner. The above provision shall apply mutatis mutandis in the event of loopholes.
Section II. Licence Subscription
TIMIFY grants Subscriber and their Affiliates the non-exclusive, non-assignable and non-sub-licensable right to use the Software as a service for the duration of the Licence Subscription and to the extent as set out in the Licence Subscription Agreement.
2. Additional Licences
During the term of the Contract, Subscriber may add additional licences (i.e. on top of the originally agreed upon amount) based on the defined terms and at the same fees as agreed upon in the Licence Subscription Agreement. Unless otherwise agreed to between the Parties, the term of each such additional licence will not be coterminous with the term of the Licence Subscription Agreement but have a separate term commencing from the effective date of each order.
3. Rights and Obligations of Subscriber
- If not otherwise agreed by the parties, Subscriber will provide its Users with certain service and technical support for the Software. The service and technical support is supposed to clarify questions raised by Users and assist in rectifying Subscriber’s potential technical and administrative problems (“First and Second Level Support”). TIMIFY shall assist Subscriber in its troubleshooting efforts as “Third Level Support” only in cases where First and Second Level Support is unable to resolve a problem that is attributable to TIMIFY, supplied by TIMIFY and that can only be resolved with the assistance of TIMIFY.
- Subscriber may pass on its Users’ requests to TIMIFY, e.g. for the development of certain features or add-ons, as well as other market observations.
4. Rights and Obligations of TIMIFY
- TIMIFY will, at its own cost, warrant that the rights to operate and use the Software are sustained for the duration of this Contract in as far as it, at its sole discretion, deems such course of action economically feasible and reasonable.
- TIMIFY will, within a reasonable period, respond to and provide support for the Software specific problems experienced by Subscriber that the latter cannot resolve without TIMIFY assistance.
5. Intellectual Property Infringement Claims
- TIMIFY confirms to the best of their knowledge that the Software does not infringe any third party intellectual property rights and that no such claims or disputes or proceedings are pending.
- TIMIFY shall, at its expense, defend, indemnify, and hold Subscriber harmless from and against any third party claims alleging with respect to the Software an infringement of intellectual property rights. TIMIFY shall pay all reasonable and duly documented demands, liabilities, proceedings, cost, expenses, damages and penalties with respect to (or any amount agreed to in any settlement of) any intellectual property rights claim that proves to be rightful and justified.
- TIMIFY shall not be responsible for any infringement of third party intellectual property rights if the infringement is caused by or resulting from any modification of the Software by the Subscriber.
- In case any third party raises an intellectual property claim Subscriber shall notify TIMIFY of such claim without undue delay.
- TIMIFY shall have no obligation to defend, indemnify, and hold Subscriber harmless in connection with such defence or settlement if Subscriber agrees to a settlement of the claim without the written consent of TIMIFY unless TIMIFY has not adequately responded to Subscriber’s notification of the claim as stipulated in this section.
- Independent of the foregoing, in case of a justified claim, TIMIFY will acquire on -its own cost- the right for unrestricted use of the Software or change - on its own cost - the Software so that third-party rights are not infringed.
6. Grant of Licence and Promotional Materials
- TIMIFY is exclusively entitled to all rights of the Software (including the source and object code, all components, including all new releases, upgrades, updates and documentation). All documents and information issued or provided by TIMIFY are and remain the property of TIMIFY. The production of copies of the documents and information as well as the processing, modification, translation, conversion and/or further development are only permitted if this is absolutely necessary for the use of the contractual services and TIMIFY has given its prior written consent.
- Subscriber will neither attack the intellectual property rights and the know-how of TIMIFY itself nor have them attacked by third parties, or support third parties in attacking them in any form. Partner will not register the company name, the trademarks or other signs of TIMIFY as part of his company in the commercial register or as part of a domain or use them in any other way for other purposes than those of the Contract.
- TIMIFY grants Subscriber, for the duration of the Contract, the revocable right to use the trademarks and other signs of TIMIFY in compliance with the instructions of TIMIFY. In doing so, Subscriber must refer to its legal position as TIMIFY Subscriber.
- (4) If not otherwise agreed, TIMIFY may reasonably use Subscriber’s company name and/or trademark on TIMIFY’s website and/or promotional material. In this case, TIMIFY will inform Subscriber of such use, may not alter the trademarks and will adhere to any potential trademark guidelines of Subscriber available to TIMIFY.
Section III. Service Level Agreements (SLA)
- An SLA is a contract between Parties that defines the services provided, the indicators associated with these services, acceptable and unacceptable service levels, liabilities on the part of both Parties, and actions to be taken in specific circumstances.
- (2) TIMIFY may offer Client a specific SLA based on the amount of Licences and/or the scope of the Professional Services involved. Only in this case TIMIFY will guarantee certain Service Levels and performance indicators (such as downtime percentage) as agreed upon in the SLA in relation to the performance of the Software and/or Professional Services.
Section IV. Professional Services
1. 1. Professional Services and Deliverables
- TIMIFY shall perform the Professional Services in accordance with the terms, conditions, scope, specifications, schedules and time and place of performance set forth in the Professional Services Agreement and shall deliver to Client the resulting product from such Professional Services (“Deliverables”).
- TIMIFY will perform all Professional Services in accordance with the terms and conditions of the Contract to the best of TIMIFY’s ability and in a good, workmanlike manner with high standards of care, skill, and diligence used by persons who are skilled, trained and experienced with respect to the type of services required by the Professional Services Agreement.
- All materials and Professional Services IP produced or otherwise provided under the Professional Services Agreement shall be of original development by TIMIFY and TIMIFY will have the legal right to convey the ownership rights and licences set forth in the Professional Services Agreement with respect to such materials and Professional Services IP.
- Client shall, in addition to paying the agreed upon fees, reimburse TIMIFY for reasonable out-of-pocket costs and expenses incurred by TIMIFY in its performance of Professional Services provided that TIMIFY has first obtained Client’s pre-approval of all such expenses in writing.
2. Approval of Deliverables
- Upon initial completion, TIMIFY will make each Deliverable available to Client for review and approval. Client will promptly review and conduct acceptance tests to determine whether such Deliverable complies with the relevant specifications set forth in the Professional Services Agreement and any related documentation. After such review, Client will issue to TIMIFY an approval indicating that it has accepted the Deliverables or a disapproval that specifies in detail the potential defects or deficiencies of the Deliverables.
- If the Deliverables are disapproved, TIMIFY will discuss with Client the next steps and take the necessary and appropriate action to resolve the defects and deficiencies noted therein. Once such resolution is achieved, TIMIFY will again notify Client that the Deliverables are ready for inspection and testing and the process set forth above in this paragraph shall be repeated.
- If TIMIFY fails to cure errors and defects that are so severe that the Deliverables cannot be used for the purpose agreed upon in the Professional Services Agreement within reasonable time (or such other time period as the Parties may agree upon), then Client may terminate the Professional Services Agreement.
- If Client requires changes to a Deliverable not connected with a failure to achieve acceptance then such changes or the impact of such changes shall be agreed between the Parties in writing as a change order to the applicable order. Any approval by Clients of any Deliverable under this section shall be without prejudice to Client’s right to reject any other Deliverable.
3. Independent Contractor Status
- TIMIFY is an independent contractor and neither TIMIFY nor any worker of TIMIFY shall be deemed an agent, employee, joint employee or servant of Client or any of Client’s Affiliates.
- Client shall have no right to control the manner or means by which TIMIFY performs Professional Services for Client.
- TIMIFY and its sub-contractors, as applicable, shall have the sole right, obligation and discretion to hire, assign, fire, discipline, evaluate, supervise, manage, train, assign work, define jobs, determine job content, negotiate terms of employment, maintain records of hours, perform payroll functions, provide benefits and insurance, including, but not limited to employee worker’s compensation insurance and unemployment insurance required by any jurisdiction having authority over TIMIFY and its sub-contractors, and determine all other terms and conditions of employment for each of their respective employees.
4. Intellectual Property Rights
- Upon full payment of the Professional Services fees TIMIFY grants, and agrees to cause its workers to grant, to Client and its Affiliates the non-exclusive, perpetual, irrevocable, worldwide and royalty-free license to use and modify such Professional Services IP, without identifying or seeking the consent of TIMIFY.
- For the avoidance of doubt, the above paragraph only refers to such Professional Services IP that can be fully separated from any TIMIFY or Customization IP. If this is not the case, Client may only use the Professional Services IP in combination with and according to the terms of an individual Licence Subscription Agreement.
Section V. Partner Activities
1. Rights and Obligations of Partner
- Partner carries out Partner Activities in its own name and on its own account and is not authorized to represent TIMIFY. Partner operates as an independent contractor and is free to determine its activities and business hours. Partner will procure the necessary operating resources for the Partner Activities itself if not otherwise agreed by the parties. Partner is solely responsible for taxes, duties, fees, contributions, and similar amounts related to the Partner Activities.
- In all Partner Activities TIMIFY’s name will be disclosed as the owner of the Software. Partner is entitled to identify itself as TIMIFY Partner and use the TIMIFY trademark in connection with Partner Activities upon written consent of TIMIFY.
- Partner may integrate the Software into its own product and service portfolio as agreed upon by the parties in the Partner Offer.
- For the duration of the Contract, Partner may be provided with a (free) licence (NFR/not-for-resale) of the Software for its own use as well as for training and presentation purposes.
- Partner shall employ staff who are trained to market, demonstrate, and distribute the Software and to support Subscribers in the installation, maintenance, and use of the Software. The employees of Partner shall participate in the Partner Program of TIMIFY (see art. 3. par. (3) below).
- Partner will set up the Software for Subscribers in the hosted cloud application of TIMIFY. As far as provided for TIMIFY and requested by Subscribers, the set-up includes configuration and parameterization of the Software (i.e. adaptation of the Software within the framework of the standard provided which can be carried out without individual programming or development). Individual developments and adaptations are to be made via TIMIFY's developer platform.
- Partner shall comply with the relevant statutory provisions applicable to the Partner Activities. In particular Partner shall not violate any antitrust laws and shall take all necessary measures to avoid corruption and violations against the rules of fair competition. Partner undertakes to process personal data only in accordance with the applicable data protection laws, including but not limited to the General Data Protection Regulation (GDPR) EU 2016/679. If Partner violates any such rules of law or any third party presents any allegations or claims that pertain to the sale or marketing of the Software by Partner, such as but not limited to promotional materials used by Partner, Partner will indemnify and hold TIMIFY harmless for any and all costs arising out of any such violations, allegations or claims.
- Partner bears the sole responsibility for its contractual obligations with Subscribers as well as for all communication, correspondence, and interaction with Subscribers in relation to the Software.
- If not otherwise agreed by the parties, Partner will provide Subscribers with certain service and technical support for all Software subscriptions by Partner. The service and technical support is supposed to clarify questions raised by Subscribers and assist in rectifying Subscribers’ potential technical and administrative problems (“First and Second Level Support”). TIMIFY shall assist Partner in its troubleshooting efforts as “Third Level Support” only in cases where First and Second Level Support is unable to resolve a problem that is attributable to TIMIFY, supplied by TIMIFY and that can only be resolved with the assistance of TIMIFY.
- Partner will pass on Subscribers’ requests to TIMIFY, e.g. for the development of certain features or add-ons, as well as other market observations.
- Partner shall and is encouraged to act for other clients. However, Partner may not directly or indirectly participate in a direct competitor company of TIMIFY or hold shares in such a company without the prior written consent of TIMIFY. The involvement of further subcontractors by Partner for Partner Activities requires the prior consent of TIMIFY.
2. Rights and Obligations of TIMIFY
- TIMIFY grants Partner a non-exclusive right to carry out the Partner Activities in the contractually agreed territory. TIMIFY has the right to act in the contractually agreed territory by itself as well as via other channel partners, including other resellers, sales agents, OEM partners, system integrators and online sales.
- TIMIFY provides Partner with (presentation) materials about the Software, including but not limited to demo versions of the Software, product descriptions, information on sales strategies as well as advertising materials, design guidelines and other information and documents that Partner may require in order to be able to adequately perform the Partner Activities. Unless otherwise agreed by the parties, all materials and documents remain the property of TIMIFY and are to be returned and/or deleted after termination of the Contract, insofar as they have not been consumed as intended.
- TIMIFY may offer trainings at regular intervals in which Partner’s employees may receive guidance in the application, sale, and maintenance of the Software. The trainings are part of the Partner Program and TIMIFY is free to structure the trainings at its discretion. At its option it may hold training sessions in classrooms or conduct online training. Partner shall bear the travel costs of its employees for in-person trainings.
- TIMIFY reserves the right to monitor and determine at any time whether Partner is complying with its contractual obligations. For the duration of the Contract, TIMIFY and its authorized agents are entitled, subject to a period of notice of ten business days, to audit the business documents concerning the sales of the Software and to make copies thereof. The audit shall take place at Partner’s business premises during its regular business hours. Should it arise that Partner has culpably violated duties arising from the Contract, Partner shall bear the costs of the examination. Otherwise TIMIFY and Partner shall each bear their own costs.
- TIMIFY will, at its own cost, warrant that the rights to operate and sell the Software are sustained for the duration of this Contract in as far as it, at its sole discretion, deems such course of action economically feasible and reasonable.
- TIMIFY will, within a reasonable period, respond to and provide support for Software specific problems experienced by Partner that the latter cannot resolve without TIMIFY assistance.
3. Orders, Order Processing and Delivery
- In case of Partner selling to enterprise clients, Partner’s orders shall be submitted electronically by way of e-mailing an Order Form which the Parties agree upon in the Partner Agreement. An agreement on the subscription of the Software comes into effect by TIMIFY’s electronic confirmation of Partner’s order.
- In case of Partner selling to SMB clients, Partner can place an order by adding a new account for the SMB. The order is accepted with activation of the account, provided that the respective SMB is not a TIMIFY client already. In this case, TIMIFY has the right to reject an order at any time, including the retroactive rejection, e.g. deactivation of SMB client’s account.
- TIMIFY will make the Software available to Subscribers by activating the Subscriber’s account in its system, which is done via a digital licence or a product key.
- The Software will not be provided if the respective product bundle has been removed from the inventory at the time the order was received by TIMIFY or if there is, taking into account Partner’s interests, another objective reason to refuse an order or delivery.
- Every order is subject to these GT&C. Conflicting or additional contractual terms and conditions of Partner or a third party may only apply if TIMIFY consents to the application thereof in writing.
Section V. Open Source Software
- TIMIFY confirms that – to the best of its knowledge – all of the licence obligations applicable to any Open Source Materials contained in the Software have been completely fulfilled. “Open Source Materials” means all software or other material that is distributed as “free software”, “open source software” or under similar licensing or distribution terms including, but not limited to, the Apache licences, BSD licences, the GNU General Public Licence (GPL), GNU Lesser General Public Licence (LGPL), Mozilla Public Licence (MPL), the Netscape Public Licence, the Sun Community Source Licence (SCSL), and the Sun Industry Standards Licence (SISL).
- TIMIFY shall not use or incorporate into any Deliverable of Professional Services any Copyleft Open Source Materials. “Copyleft Open Source Materials” are open source materials that would require, as a condition of use or distribution of the open source material, that the software must be disclosed or distributed in source code form, be licenced for the purpose of making derivative works, or be redistributable at no charge.
- If requested by Client, TIMIFY will provide Client with a list of the open source software licences that may be used in the Software and/or Professional Services. This list may not be exhaustive at the time of issuance but will be regularly updated.