1. Scope of application
- The terms and conditions of use of TerminApp GmbH, Balanstrasse 73, Building 24, 3rd floor, 81541 Munich, Germany (hereinafter: "TIMIFY") apply to the provision and use of the online appointment booking software as well as the associated user account by the CUSTOMER or customer (hereinafter: "CUSTOMER").
- CUSTOMERS of TIMIFY can be both consumers and entrepreneurs. The CUSTOMER is a consumer insofar as the purpose of his services cannot be predominantly attributed to his commercial or self-employed professional activity. On the other hand, an entrepreneur is any natural or legal person or a partnership with legal capacity who, when concluding the contract, is acting in his commercial or self-employed professional capacity;
- Differing terms and conditions of the CUSTOMER shall not be accepted unless TIMIFY expressly agrees to their validity in writing.
2. Subject matter of contract and services
- TIMIFY shall provide the CUSTOMER with
- (a)different versions of the scheduling solution, including
- (b)the rights of use necessary for the duration of the contract; and;
- (c)individual proactive support services by TIMIFY;
- according to the Service-Level However, the Service-Level re only applicable if the CUSTOMER purchases a version or TIMIFY product that is subject to a charge..
- 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 Description (e.g. Premium Package) as well as on the TIMIFY website in its current version.;
- With the User Account, TIMIFY provides the CUSTOMER with a comprehensive application for the administration, monitoring and evaluation of his business transactions and booking overviews.
- TIMIFY reserves the right to change functions, modules and components provided free of charge, to make new functions available free of charge or free of charge and/or to discontinue the provision of functions provided free of charge. TIMIFY will always consider the legitimate interests of the CUSTOMER.
3. 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, the sector, the country, the first and last name, an e-mail address and a password. The e-mail address and password also serve as the CUSTOMER'S LOGIN DATA for the online appointment booking solution (hereinafter: "LOGIN DATA").
- Upon completion of the registration process for setting up a user account, the CUSTOMER submits an offer to conclude a contract for the use of the booked online appointment booking solution.
- When ordering versions subject to a charge or TIMIFY products, billing and payment data will also be requested beforehand and the CUSTOMER will then be shown all order data again on the order overview page. Before submitting the order, the CUSTOMER has the option of checking all details again, changing them (also via the "back" function of the Internet browser) or canceling the order.
- In this case, the CUSTOMER only submits an offer to conclude the respective contract by clicking on the button "order subject to payment".
- TIMIFY accepts the offer by activating the account or by providing the respective version or the TIMIFY products. The contract between the CUSTOMER and TIMIFY is only concluded through this. TIMIFY is not obliged to accept the offer declared by the CUSTOMER and thus not to conclude the contract.
- The contract details are stored at TIMIFY and can be viewed in the user account of the CUSTOMER.
- The original contract language is German. This document only services as a translation. Upon receipt of the order by TIMIFY, the order data, the information required by law for distance selling contracts and the Terms and Conditions of Use and Business shall be sent to the CUSTOMER again by e-mail.
4. Rights and duties
- The CUSTOMER shall keep confidential the LOGIN DATA required for the purpose of access to the online appointment booking solution and only make them available to users authorised by him. The CUSTOMER assumes full responsibility for all actions performed by users authorised by him under his LOGIN DATA. The CUSTOMER must inform TIMIFY immediately if the LOGIN DATA has become known to unauthorised third parties. In this respect, the CUSTOMER assumes responsibility for all actions performed by unauthorised third parties under his LOGIN DATA.
- TIMIFY shall make the online appointment booking solution, including the COMPONENTS, available to the CUSTOMER as a technical infrastructure for his own use. TIMIFY has no influence on the design and details of the contractual relationship between the CUSTOMER and his appointment bookers. This applies in particular to the availability of appointments, the respective service details of the CUSTOMER vis-à-vis his/her users, prices or evaluations and contents of the booking profile. Therefore, the CUSTOMER is solely responsible to the users for the use of the online appointment booking solution and all contents of the service descriptions created by him using the online appointment booking solution, the booking profile as well as the contractual arrangement.
- The online appointment booking solution does not meet the requirements of the principles for the proper management 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 legal requirements, in particular commercial and tax law.
- The CUSTOMER further undertakes to ensure that the services and service descriptions offered by him as well as the contents of the booking profile do not violate any legal prohibitions or third party rights (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 is
- concern sexual, pornographic or other content harmful to minors,
- concern content that glorifies violence or incites hatred,
- encourage or provide guidance on criminal offences; or
- violate any national legal or official prohibitions.
- TIMIFY is not obliged to check the contents and data implemented by the CUSTOMER. However, TIMIFY reserves the right to terminate the contractual relationship without notice or in the event of violations of the aforementioned obligations, or to block the CUSTOMER's account (temporarily). TIMIFY will always give the CUSTOMER the opportunity to comment.
- The CUSTOMER indemnifies TIMIFY against all claims of third parties, which make them valid against TIMIFY due to the violation of their rights, specificly, but not exclusively, copyrights, trademark rights, competition rights, personal rights or other property rights, through the contents implemented by the CUSTOMER. The same applies to any claims against TIMIFY by authorities or other bodies due to violations 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 violation of their rights by the CUSTOMER. This includes in particular, but not exclusively, the necessary costs of a reasonable legal defence. The CUSTOMER is not obliged to reimburse if he is not at fault for the violation of the rights of third parties.
- The CUSTOMER shall carry out regular data backups.
5. Contract terms and right of termination
- Unless otherwise agreed, the contracts for the use of the online appointment booking solution shall be concluded for an indefinite period of time.
- In the event that the contracting parties agree on a certain (minimum) contract term (SUBSCRIPTION) for a version or a TIMIFY product, the period of notice shall be taken from the respective SUBSCRIPTION and the termination shall accordingly be possible at the earliest at the point in time at which the term ends in the respective scope of services or service description.
- Unless otherwise agreed, the contract for the contractual services shall be extended in the case of a subscription for the duration of the respective preceding minimum term if the contract or the respective scope of services is not terminated before the end of the agreed term.
- Contracts which 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.
- Should the CUSTOMER not log in for a time period of 12 months, TIMIFY will assume that the CUSTOMER's account is inactive and will close it unless it is a paid TIMIFY product. However, TIMIFY will inform the CUSTOMER in advance of the termination or deactivation of the account.
- The right of the parties to extraordinarily terminate the contractual relationship at any time without notice for good cause remains unaffected. An important reason for extraordinary termination exists if the continuation of the contractual relationship until the expiry of the statutory period of notice is not reasonable for the terminating party, taking into account all circumstances of the individual case and weighing the interests of both parties. Important reasons for TIMIFY are in particular:
- Serious violation of the CUSTOMER's contractual obligations;
- Impairment of the reputation and external appearance of TIMIFY (e.g., if, after registration of the CUSTOMER, it turns out that the he has been convicted of an intentional criminal offence by a court of law and other CUSTOMERS or prospective customers become aware of this conviction);
- CUSTOMER's advertising or support for associations or institutions observed by security or youth protection authorities;
- Notices of termination must be written in text form in order to be effective.
6. Remuneration and invoicing
- The amount, due date and billing details shall be determined by the Service Description and the selected Subscription.
- Unless otherwise agreed, the fees are due for payment within 14 days of the invoice date. The settlement of the remuneration can also be made via a cooperation partner named by TIMIFY.
- The CUSTOMER has the possibility to use an "Online Payment Function". This gives the CUSTOMER the opportunity to process payments for the use of his services directly via a payment service provider.
- The CUSTOMER must create a user account with the payment provider for this purpose and thereby concludes an independent contract with this payment provider. The content and scope of the services associated with 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 fees charged to the CUSTOMER by the Payment Provider. For this service TIMIFY does not process neither the CUSTOMER’s LOGIN DATA or credit card data, nor that of his customers.
- Any fees and costs can be found in the Service Description.
- TIMIFY assumes no responsibility for the execution of the transactions. In particular, TIMIFY shall not be liable for payment defaults of the CUSTOMER or in the event 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 Transaction Costs (b) if the costs of the contract between TIMIFY and the Payment Provider change due to circumstances which occur after the conclusion of the contract and which were not foreseeable and which are not at TIMIFY's discretion. The costs incurred for 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 proportionately to the costs for TIMIFY that are attributable to the contract with the Payment Provider. TIMIFY will increase the price no more than cost increase and no more than once per calendar year. TIMIFY shall inform the CUSTOMER about a price increase at least two (2) weeks before any price increase takes effect. TIMIFY shall also inform the CUSTOMER about his extraordinary right of termination and the respective notice period as well as about the consequences of a termination not received in due time. Such an extraordinary right of termination shall exist if the price increase amounts to more than 5% of the original payment fee up to the time of the increase. In this case, the CUSTOMER shall be entitled to terminate the contract in writing within three (3) weeks after receipt of the notification of the increase. If the CUSTOMER does not terminate the contract or does not terminate it in due time, the contract shall be continued with the new fee. To the same extent, TIMIFY shall have the right to reduce the price if the aforementioned criteria lead to a cost reduction.
- All prices are inclusive of the applicable statutory value added tax.
7. Right of revocation
- Consumers are entitled to a right of withdrawal.
- Details, as well as exceptions to the right of revocation and a corresponding sample revocation form, can be found in the revocation instructions.
8. Industrial property rights and intellectual property rights;
- Unless otherwise agreed in writing, TIMIFY grants the CUSTOMER a simple, non-exclusive, non-transferable and non-sublicensable right to use the online 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, spatially and content-wise unlimited right of use for the duration of the contract on the use of the online appointment booking solution and its COMPONENTS to the respective content, limited in time to the duration of the contract on the use of the online appointment booking solution and its COMPONENTS, for the purpose of
- the publication, processing and evaluation of these contents for the CUSTOMER;
- the reproduction, making available to the public and storage in databases, as well as the complete or partial processing;
- in connection with the performance of the contract vis-à-vis the CUSTOMER.
- Subject to anonymization and evaluation in non-personal form by TIMIFY, the granting of the rights of use of contents is limited in time and also permitted for own purposes.
- The CUSTOMER affirms that he is fully authorised to grant the necessary rights and to dispose of these rights and that by granting these rights he does not infringe any rights of third parties, in particular personal rights or copyrighted rights of third parties involved in the creation of the contents.
- TIMIFY is liable for defects according to the applicable legal regulations. 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 will 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.
- A defect or a functional impairment resulting from environmental conditions, incorrect operation or non-observance of operating instructions or technical specifications by the CUSTOMER is not a defect for which TIMIFY is responsible. Rights of the CUSTOMER due to defects are therefore excluded, in particular, if these are attributable to the fact that the CUSTOMER has failed to use the Online appointment booking solution and its COMPONENTS in such ways that:
- the elements were changed or had changes made by third parties, or;
- were 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 obliged to do so. In particular, TIMIFY is under no obligation to adapt the online appointment booking solution and its COMPONENTS to any changes in the services or interfaces of third party providers.
- In all other respects, the Service-Level regulations shall apply.
- TIMIFY is liable for damages - for whatever legal reason - within the scope of liability for culpa in contrahendo in cases of intent and gross negligence.
- In case of simple negligence TIMIFY is liable subject to a milder liability standard according to legal regulations (e.g. for care in own matters) only
- for damages resulting from injury to life, body or health,
- for damages arising from the not inconsiderable breach of an essential contractual obligation (obligation the fulfilment of which is essential for the proper performance of the contract and the observance of which the contractual partner regularly relies on and may rely on); in this case, however, liability is limited to compensation for the foreseeable, typically occurring damage. In total, liability is limited to the value of the respective Subscription.
- The limitations of liability resulting from paragraph 2 shall also apply to breaches of duty by or for the benefit of persons whose fault TIMIFY is responsible for in accordance with statutory provisions. They do not apply if TIMIFY fraudulently concealed a defect or assumed a guarantee for the quality of the goods and for claims under the Product Liability Act.
- Otherwise the liability of TIMIFY is excluded. In particular, TIMIFY is not liable for services and COMPONENTS provided free of charge as well as for any defects (§ 536a Para. 1 Alt. 1 BGB) already existing at the time of conclusion of the contract, unless the conditions of Para. (1) or (2) are fulfilled..
11. Data protection and confidentiality
- The parties undertake to treat as strictly confidential all information concerning the other party (including affiliated companies, customers, business partners, employees of the respective party) which becomes known to them in the course of their business cooperation and to use such information exclusively for the purpose of fulfilling the subject matter of the contract.
- Each party is responsible for complying with the relevant statutory provisions in its own area of responsibility, in particular those of the EU Data Protection Basic Regulation (DS-GVO) and the Federal Data Protection Act (BDSG). This also includes the obligation to conclude a contract for order processing pursuant to Art. 28 DSGVO, which becomes part of this contractual relationship.
- Further information on the protection of personal data is available on the TIMIFY website.
12. Marketing & Customer Communication
- If the CUSTOMER concludes a contract with TIMIFY, indicating the electronic mail address (e-mail), TIMIFY shall have the right to use this electronic mail address (e-mail address) of the CUSTOMER for direct marketing of its own similar goods or services.
- The CUSTOMER has the right at any time to object to the use of the electronic mail address (e-mail address) without incurring any costs other than the transmission costs according to the basic tariffs.
13. Final provisions
- The CUSTOMER grants TIMIFY the right to identify the CUSTOMER as a customer of reference in publications of any kind whatsoever and to use the CUSTOMER's names, trademarks and logos in this context, unless and until the CUSTOMER expressly objects to this in text form.
- These Terms and Conditions of Use shall be governed by the laws of the Federal Republic of Germany to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.
- Whether the contractual partner is a merchant within the meaning of the German Commercial Code (HGB), a legal entity under public law or a special fund under German public law, the exclusive - including international - jurisdiction for all such disputes arising directly or indirectly from the contractual relationship shall be our place of business in Munich. The same applies if the contractual partner is an entrepreneur within the meaning of § 14 BGB (German Civil Code). However, TIMIFY is also entitled in all cases to bring an action at the CUSTOMER's place of business. The statutory provisions limiting the choice of law and the applicability of mandatory provisions, in particular of the country in which the CUSTOMER has his habitual residence as a consumer, shall remain unaffected.
- In the event of legal disputes, consumers also have the option of using alternative dispute resolution. The following link of the EU Commission (also called OS platform) contains information on online dispute resolution and serves as a central point of contact for out-of-court settlement of disputes arising from online sales contracts: https://webgate.ec.europa.eu/odr/main. However, TIMIFY does not participate in dispute resolution proceedings before a consumer arbitration body and is not legally obliged to do so.