1. General information
(1) The following terms and conditions shall apply exclusively to all deliveries and services from this contractual relationship. Stipulations and conditions of the user shall also be non-binding if TimoCom does not explicitly object to these.
(2) TimoCom reserves the right to change or supplement these terms and conditions at the end of each settlement period. TimoCom shall inform the user about the change through an explicit reference on the invoice form or in the platform. The consent to the changed terms and conditions shall be deemed granted by the user if they do not object to these immediately, but by no later than within 1 month. In the event of unconditional payment of the invoice consent is deemed granted.
(3) Explanations in relation to the contract, additions and amendments to the contract must be made in writing to be effective. The parties agree that when a third person is authorised to use the software, the other party grants this user permission to receive and forward declarations of TimoCom.
(4) If people (e.g. users) are mentioned in this contract, the designation employed (e.g. 'he') should be understood to apply to men and women, i.e. to both genders.
2. Object of contract
(1) TimoCom shall make a right of use to a user platform (licence) available to the user against a remuneration to be periodically paid. The scope of the licence shall be dependent on the individual agreement. TimoCom may enable access to this user platform (platform) for the user at its own discretion either through software to be installed, a combination of user name and password, or an interface with the existing hard- and software environment at the user’s end. This platform will be operated by means of servers connected to the internet, which can be accessed exclusively via an online connection.
Excepted are times, in which the servers used by TimoCom are not available owing to technical reasons or other reasons, which cannot be influenced by TimoCom or TimoCom undertakes necessary service work on the servers to retain the contractual service with which interferences may be unavoidable with the access according to the status of the technology. As far as possible, TimoCom shall limit service work and upgrades which can be planned within the time outside business hours. TimoCom’s business hours are Mondays to Fridays between 07.30am and 6.00pm (GMT+1).
(2) TimoCom can provide the user with access to the platform at its own discretion as a means of downloading software, e.g. via the website www.timocom.com, the Apple® App Store®, the Google Play™ Store or an online registration with user name and password. The user shall treat his/her connection ID, in particular the user and access rights assigned to him/her, as well as backups for identification and authentication purposes, login names and passwords, as confidential, protect them against unauthorised access and ensure that they are used properly. The downloading and installation of the software are not part of the service provided by TimoCom, but instead conducted independently by the user under his/her own responsibility.
(3) The selection, procurement and use of necessary hard- and software and remote data connections are carried out exclusively by the users and at their own risk.
(4) TimoCom is entitled to make changes to its products as part of the further development and optimisation of its products insofar as the essential performance features are not limited by this.
3. The right of use
(1) The right of use granted with this contract shall only apply to the individually agreed number of single accesses (TimoCom Accounts) in the trade operation of the user per branch, self-employed or dependent activity, to the user platform of TimoCom and is not transferable to third parties or other branches.
(2) The right of use shall only apply to the input and query of trade-specific data in the normal course of business. The information provided must be true and has to be verified upon TimoCom's request. Usage of this data for the following purposes or contents in not permitted:
a) Unwanted messages, such as spam, mass enquiries, general advertising and general offers.
b) Illegal purposes, wrong information, deception or misleading.
c) Violation of rights, such as personal rights, intellectual property or third parties' private spheres.
d) Set-up of data collections, especially those that allow a profile of another user to be created.
e) Entry of program code that influences the functionality of a terminal device or this software.
f) Contents that, for example, impede, harass or damage TimoCom or third parties, such as calls for a boycott, chain letters, stalking, threats, insults, defamation, discrimination, hate statements, harm to business, remarks of a sexual nature, presentation of brutality, violence or nudity.
g) Contents that violate applicable law or offend against public morals or which the user is not authorised to transmit.
(3) The data made available by the platform may be extracted exclusively through the existing export or print function. An automated use of the software requires written consent from TimoCom. An automation of the use of the platform, be it through an interface, external software, scripts or other tools that differ from the standard of the common browsers, such as Chrome™, Firefox® or Internet Explorer, requires the written consent of TimoCom.
(4) TimoCom reserves the right to interrupt the connection of a user to the user platform and to delete data if this avoids or ends a violation of law or good customs. The same applies if the existence of the software, an application or the user platform from TimoCom is endangered by the user from a technical point of view.
(5) If the user does not comply with a contractual obligation, in particular the obligation according to subclause 3 (1) or (2), 4 (1) or (5) or subclause 7 (2) or (3), or if he is in default with remedying any other breach of contract after having been warned, then TimoCom is indemnified from its service obligation (“blocking“) but does retain the entitlement to consideration.
(6) In any case of culpable breach of contract of subclause 3 (1) or (2), or subclause 5 (2), (4) or (5) the user must pay a contractual penalty consisting of the agreed fee for twelve months. Providing evidence of a lesser damage is subject to the user.
3a. The right of use of TC Profile®
(1) Insofar as agreed, the Platform grants the user access to the TC Profile® database. In this database the user can call up and view existing company data from third parties.
(2) The users of a TC Truck&Cargo® licence can also enter their company data in the database for third parties to view and refer to. The users receive access to the extended company data of third parties after creating their own extended company data.
(3) The database is offered for use to the customary extent during the normal course of business. Copying either the entire database or essential parts of it is forbidden under copyright law.
(4) The information is to be kept up-to-date. Should it come to TimoCom's knowledge that the information provided by the user is incomplete or incorrect, TimoCom can notify the user about this error. If the user fails to complete or correct the information within the next 7 days upon receipt of the notification from TimoCom, TimoCom is authorised by the user, but not obliged, to correct or complete the information in the user's name and liability according the official information of the company or trade register.
(5) Should subclauses (3) and (4) be breached TimoCom reserves the right to block the user’s data as well as the user’s access to the database.
(6) The contractual relationship shall begin with the written acceptance or with the signing of the licence agreement; the contract can be terminated with notice by both parties without stating any reasons by giving 14 days notice to the end of the calendar month. The term of the contract is 1 month and is extended by 1 month if the contract is not terminated with notice by either party.
3b. The right of use TC Truck&Cargo®
(1) Insofar as agreed, the platform enables the user to enter vehicle capacities and freight offers, as well as to search the offered vehicle capacities and cargos for international road transports using the application TC Truck&Cargo®.
In addition, the software allows the user to offer and inspect warehousing capacities.
(2) Outdated data are to be deleted immediately. The input must be completed, in simple writing without additional blanks or other characters which are solely suitable for emphasis and with the correct details in the designated input fields. TimoCom reserves the right to automatically delete data inputs which do not meet these criteria or the stipulations from subclause 3 para.2.
(3) The contractual relationship shall begin with the written acceptance or with the signing of the licence agreement; the contract can be terminated with notice by both parties without stating any reasons by giving 14 days notice to the end of the calendar month. The term of the contract is 1 month and is extended by 1 month if the contract is not terminated with notice by either party.
3c. The right of use TC eMap®
(1) TC eMap® makes it possible, to the extent agreed to transfer data for map display and route calculation online to the user. All map displays - just like all conventional maps - are subject to continuous change and never fully reflect current reality. TimoCom is therefore not responsible for assuring the accuracy of map displays and of other data. The service obligations of TimoCom are restricted to the provision, processing and displaying of data on behalf of the user.
(2) The data and information portrayed in TC eMap® are sourced from third parties. TimoCom therefore reserves the right to withdraw from the contract in the event of incorrect or late self-delivery, unless the user is able to prove that TimoCom was to blame.
(3) The program searches for destinations matching the place names keyed in to it. That means that search results featuring similar place names and multiple designations are possible. TimoCom is not responsible for the program automatically and correctly selecting the desired destination. Nor does TimoCom provide any assurance for the accuracy or completeness of related data, e.g. postal codes, street name details or other supplementary information. Maps are subject to continuous change in accordance with state-of-the-art technology. No guarantee is provided for details on the maps nor for their freedom from errors or their other properties.
(4) Map material and other type-related details (the maps) are sourced from licensors. The maps and functionalities are copyright-protected and are the exclusive property of TimoCom and/or its licensors and partners, and are protected by international contracts and other national legislation in the country in which they are being used. TimoCom assures the user a non-transferable, non-exclusive sub-licence to use maps of the kind used in TimoCom products, solely for internal (in-house) use by the user. The user is not permitted to copy, dismantle, extract or change these maps, or to produce derivative products from them. The user is not permitted to extract the source code, source files or the overall structure of these maps either partially or in whole, or to attempt to do so, this prohibition being applicable to reconstruction, destruction, decompiling or in other ways. The user must not use these products to operate a service provision company nor for other purposes that include the processing of maps by other persons or entities. The user shall not receive any ownership rights, all of which remain in the possession of the licensors in their entirety. References to copyright, source details or an ownership provision must not be changed, concealed or removed.
(5) If third-party suppliers increase the prices to TimoCom that were in force when the contract was concluded, TimoCom reserves the right to increase the prices relating to chargeable licences to users accordingly. The price increase enters into force 2 weeks before the first of the month following receipt of the declaration. If the price increase for the use of TC eMap® by TimoCom increases by more than 10% within a calendar year, the user is entitled to exercise an extraordinary right of termination within 2 weeks of being notified of this price increase.
(6) TimoCom reserves the right, which it can exercise at its own discretion, to modify, extend, delete and re-categorise the map displays and data elements at any time, including the capabilities and specifications for map displays and map-related additional functions. TimoCom is not obliged to deliver or perform maintenance work, troubleshooting, corrections (patches), updates or improvements (upgrades).
(7) In addition, these end user conditions apply (HERE SERVICE TERMS)
(8) The contractual relationship in respect of chargeable licences commences on the date of written acceptance or of signing of the licence contract, and can be terminated by either party without the need to provide reasons by serving 14 days notice to the end of a calendar month. The term of the contract is 1 month and is extended by 1 month if the contract is not terminated with orderly notice by either party.
3d. The right of use Tracking function in TC eMap®
(1) The platform provides the user, subject to agreement, with access to the tracking function of TC eMap® with which the user can transfer available data from his own vehicles, e.g. location details provided by the Global Positioning System (GPS) from local navigation devices to the user platform of TimoCom (upload) and to use these in an unlimited manner and to show these details to other users of the platform (viewers) in the context of a time-limited approval. In the same way, the platform enables the viewer to display data from navigation devices in the vehicles of other users, once these have granted permission for the relevant level of access. A necessary component for the display of these data is a software licence for the application TC eMap® as well as a provider contract with a telematics provider for the upload process.
(2) In cases where a user has agreed for a viewer to display these data on the navigation device in his vehicle, the user undertakes to assure the provision of these data throughout the agreed period of time continuously and in accordance with state-of-the-art technology. The user is directly responsible for the correct and timely transmission of data to TimoCom.
(3) The use and processing of data from navigation devices in third-party vehicles that are not rented or leased on a continuous basis by the user is prohibited, unless approval has been granted between 2 users of the software in the context of the approval procedure described in the preceding paragraph 1. In particular, no user is permitted to upload data from the navigation devices of sub-contractors, and/or parties engaged full-time on behalf of the user. In the event of a violation of this paragraph, TimoCom is authorised to block the provision of data to any affected navigation device.
(4) The user is responsible for ensuring that the software is used in accordance with applicable data protection legislation. The user undertakes, when sourcing, processing and using data with this software to comply with all relevant data protection requirements in accordance with applicable legislation. In particular, positioning data must only be used for coordination of operations of detected vehicles and/or navigation devices in accordance with the purposes defined for this kind of service. It is not permissible to designate the enabled navigation devices in the context of this service provision with the actual names of real people (e.g. the name of the driver).
(5) The user agrees that TimoCom may capture, process and use data processed by means of TC eMap® (especially positioning data). The user can at any time, and with effect on the future, revoke his consent to the capture, processing, storage and usage of data processed by the software (especially location data). Revoking consent in this way does not affect the existence of the contract nor the user's obligation to make payment. The user recognises that TimoCom, as a consequence of such revocation, may possibly no longer be in a position to further facilitate use of the tracking functionality of this system.
a) The user informs all persons equipped with a navigation device before they start using it of the consent granted to TimoCom to process data, the nature of that processed data, the purpose, the duration of that processing consent, the companies involved in data processing and the scope for terminating data transmission.
b) To the extent that legislation applicable to the user obliges him to obtain the consent of all persons equipped with a navigation device, the user shall ensure that all required consents or legally permissible alternatives (e.g. company agreements) are available in written form. The user is obliged to store for TimoCom all requisite supporting evidence for a period of two years after the end of the contract termand on demand to hand over the original documents.
(6) The viewer is responsible for ensuring that the software is used in accordance with applicable data protection legislation. The viewer undertakes, when capturing, processing and using data by means of this software to comply with all relevant data protection stipulations in accordance with applicable legislation. In particular, positioning data must only be used for coordination of operations of detected vehicles and/or navigation devices in accordance with the purposes defined for this kind of service. No other form of usage of this data other than this defined purpose is permitted.
(7) In the event of the viewer, and/or the user, infringing terms of that applicable data protection legislation, in particular against the preceding paragraphs 4, 5 and/or 6, TimoCom is entitled to terminate the contract with the view and/or the user with immediate effect. The viewer and/or the user shall indemnify and hold harmless TimoCom from all claims arising from or in conjunction with any failure to observe the requirements of data protection legislation, in particular in respect of the preceding paragraphs 4, 5 and/or 6, resulting from the actions of the viewer and/or the user.
(8) The chargeable contractual relationship commences with written acceptance or with the signing of the licence agreement by TimoCom and can be terminated properly, stating the grounds, by either party by serving 14 days notice to this effect to the end of a calendar month. The term of the contract is 1 month and is extended by 1 month if the contract is not terminated with orderly notice by either party.
3e. Right of use TC eBid®
(1) Insofar as agreed, the platform grants the user access to the application TC eBid®, with which they can issue invitations to tender fixed contracts from the field of transport and logistics to a target group (tendering company) which is to be selected by them or can submit offers for a bid invitation (bidder). The application enables the user to describe tenders, collect, process and transmit offers in preparation of the conclusion of a contract in their own responsibility.
(2) The right of use for the tendering company shall begin with receipt of payment for the first invoice from TimoCom or by TimoCom granting access to the application.
(3) A tender is not a binding offer, but a request to submit offers. The tendering company is obliged to provide full and correct information concerning the service. A contract shall be concluded directly between the bidder and the tendering company without contractual involvement by TimoCom.
(4) The bidders are bound to their submitted offer for 1 month after the term of the invitation to tender.
(5) TimoCom reserves the right to examine offers to tender for a maximum of 2 full working days from the date of entry, as well as offers from bidders for the legal validity, completeness and conclusiveness. An offer shall be seen as unlawful if it violates the law or any official bans, property rights of third parties or good morals. An offer shall be deemed incomplete if essential contractual parts or necessary information, concerning necessary permits or licences for the execution, are missing. An offer shall be deemed inconclusive if it has a prevailing advertising nature or it only concerns a single transport.
(6) If TimoCom determines, retrospectively or otherwise, that the tendering company or the bidder did not comply with para. 5, they are entitled to delete, stop or not even publish the offer in the application, but retain the claim for consideration.
(7) TimoCom reserves the right to only publish offers from a company issuing an invitation to tender in the application, which has at least an average credit rating from a well-known credit agency and for which no circumstances are known which concretely endanger the financial processing of the offers. An average credit rating corresponds with an index of more than 300 from Creditreform in Germany, a “B” from Euler Hermes Kreditversicherungs-AG or an “R” from Coface AG in Europe. If the credit rating of the company issuing the invitation to tender falls below this value or its equivalent during the term of the offer or if TimoCom becomes aware of circumstances which concretely endanger the subsequent payment of the tendered offers TimoCom can either end the offer as soon as they know of the deteriorated rating or suspend it until the limited credit rating has been cleared.
(8) TimoCom is entitled to transmit offers for a bid invitation or to evaluate a bid invitation step-by-step against the compensation of the claim existing for this bid invitation of TimoCom.
(9) TimoCom reserves a special area for technical questions concerning a concrete bid invitation by potential bidders. TimoCom reserves the right to extend the deadline for tender by the period of time by which the period for answering is extended over the period of 1 working day. TimoCom also reserves the right to delete such entries which impair use for other users in which they for example
- do not serve the clarification of technical questions concerning the concrete bid invitation,
- are of an advertising nature or
- can discredit other participants.
(10) The user is exclusively responsible for all their details and offers within the framework of a bid invitation which TimoCom publishes or forwards via the application. TimoCom shall not assume any warranty for these details or fulfilment of the contracts or non-disclosure agreements which are concluded thereby and shall not become the contractual partner itself. TimoCom shall not assume any warranty for details and efficiency of the bidders, in particular if these were invited at the tendering company’s request.
(11) TimoCom reserves the right to delete offers or not to forward offers from bidders, in case facts become known which could concretely endanger the efficiency of the bidder or legally or officially forbid carrying out the tendered service itself. TimoCom may also delete or disregard in the forwarding such offers of bidders who do not act in their own name and of their own account.
(12) The contractual relationship shall begin with the written acceptance or with the signing of the licence agreement; the contract can be terminated with notice by both parties without stating any reasons by giving 14 days notice to the end of the calendar month. The term of the contract is 1 month and is extended by 1 month if the contract is not terminated with notice by either party. Alternatively the contractual relationship can be founded upon an individual agreement and then ends automatically on conclusion of the bid period without requiring any formal kind of termination. The right of use of the bidder, who was invited to a bid invitation by the tendering company, shall end with the deadline for bid invitation with this requiring a separate termination otherwise with the right of use from the existing licence agreement.
(13) TimoCom is entitled to increase the fee for use with an increase in the consumer price index determined by the EU Commission for the EU (HVPI) according to the EU regulations No. 1921/2001, Basis 2005 = 100 points (http://epp.eurostat.ec.europa.eu) compared with the index which existed upon conclusion of the contract, to the same (converted as a percentage) ratio without this requiring a separate declaration concerning the price change by TimoCom. The change, which is reported by the EU Commission for the month of October, is decisive. The change shall become effective as of 1 January of the following year. With a reduction in the consumer price index the fee for use shall be automatically reduced to the same (converted as a percentage) ratio effective as of 1 January of the following year. The respective price shall apply as a fixed price for 1 calendar year. The regulation is applicable annually.
3f. The right of use warehousing exchange
(1) The platform allows the user - to the extent agreed - to offer warehousing capacities and view the warehousing capacities offered. The publication of the offers can take place via the platform, as well as via the publicly accessible TimoCom homepage and via www.portatio.com.
(2) Obsolete data must be deleted with immediate effect. Data input must be complete, in simple script without additional spaces or other symbols used to denote emphasis and must include accurate details in all the input boxes provided. TimoCom reserves the right to delete all data input that fails to comply with these criteria, and/or with the specifications outlined in Clause 3 Para. 2 automatically .
(3) The contractual relationship begins with written acceptance or with the signing of the licence agreement and can be terminated without the need to give reasons by either party by serving 14 days of orderly notice to the end of a calendar month. The term of the contract is 1 month and is extended by 1 month if the contract is not terminated with orderly notice by either party.
3g. Right of use of messaging functionality
(1) The messaging functionality allows the user, to the extent agreed, to send messages within the user platform to another user registered for the function.
(2) The messaging functionality is not a substitute for general public communication media and is particularly not suitable for sending emergency calls or similar alarms to the competent institutions or authorities.
(3) A requirement for use is to set up and maintain a user profile. On setting up the messaging functionality, the user can be indicated on the user platform as ready to receive messages. The respective registered user is solely responsible for the content of the messages sent. Messages sent from users do not represent TimoCom's opinions, nor does TimoCom agree to these or make them its own.
(4) In setting up and using the messaging functionality, TimoCom collects, stores and processes the user's personal and technical data, messages, and the information that a user makes accessible to third persons in his/her profile. This data is used by TimoCom for the following purposes:
- Verification of the user's identity
- Provision and maintenance of the agreed service
- Ensuring compliance with these conditions of use
- Performance of the transactions initiated by the user
- Fulfilment of legal obligations or enforceable official or judicial requirements
(5) TimoCom does not guarantee that a message reaches its destination. Likewise, it is not guaranteed that the person stated as the sender or recipient of a message actually corresponds with the person sending or receiving it.
(6) TimoCom reserves the right, but is not obliged to check a user's messages in compliance with telecommunications secrecy and in case of an infringement of Item 3 (2) of these provisions to block such messages or to deny the user's data or the user's access to the messaging functionality.
(7) By using the messaging functionality, the user agrees that a message sent via the messaging functionality may be stored on a server by TimoCom in compliance with telecommunications secrecy for a period of at least 3 months for transmission to the user selected and this enables them to view the message. TimoCom shall keep the message on the server for the user until the message is deleted on the request of all the users participating in a communication or the period of at least 3 months since the creation and transmission of the message has expired, unless otherwise legally, judicially or officially required, permitted or enforceably ordered. On expiry of the minimum storage period, the user must expect the message to be deleted without further announcement.
(8) Compliance with any obligation to retain records concerning messages is the sole responsibility of the user. A print function is available to the user for this purpose to enable separate retention.
(9) The user is responsible for ensuring that the messaging functionality is used in accordance with applicable data protection legislation. The user undertakes, when sourcing, processing and using data with messaging functionality to comply with all relevant data protection requirements in accordance with applicable legislation. No other form of usage of this data other than this defined purpose is permitted. The user indemnifies TimoCom against all claims resulting from or in conjunction with any failure to comply with stipulations relating to data protection legislation.
(10) The user can at any time, and with effect on the future, revoke his consent to the capture, processing, storage and usage of data processed by the messaging functionality. Revoking consent in this way does not affect the existence of the contract nor the user's obligation to make payment. The user recognises that TimoCom, as a consequence of such revocation, may possibly no longer be in a position to further facilitate the use of the messaging functionality.
(11) The chargeable contractual relationship commences with written acceptance or with the signing of the licence agreement by TimoCom and can be terminated properly, stating the grounds, by either party by serving 14 days notice to this effect to the end of a calendar month. The term of the contract is 1 month and is extended by 1 month if the contract is not terminated with orderly notice by either party.
3h. TC Connect
(1) Insofar as agreed, TC Connect enables the user to establish a connection between a transport management system software available at the user’s end (hereinafter: TMS) and the platform. In this respect, TC Connect fulfils the function of an interface by means of which data can be transferred between the user’s TMS and the platform.
(2) A graphic user interface is not included. To display the contents of the platform, it may be required to agree further licences.
(3) The connection of the user’s existing TMS to this interface, and thereby to the platform will be implemented by the user in his/her own responsibility. TimoCom can support the user for this purpose by providing a technical product description of the interface. The technical product description is not a part of this contract. It is not guaranteed that the technical product description is useful without previous technical know-how about interfaces.
(4) The contractual relationship begins with written acceptance or with the signing of the licence agreement and can be terminated with notice without stating any reasons by both parties with 14 days notice to the end of the calendar month. The term of the contract is 1 month and is extended by 1 month if the contract is not terminated with orderly notice by either party.
3i. Right of use for the "document management service"
(1) Insofar as agreed, the platform grants the user access to the "document management service" (DMS), which he/she can use to upload his/her own documents to the TimoCom platform and enable other platform users to view them. TimoCom reserves the right to restrict the service with regard to the format, volume and number of documents.
(2) The documents uploaded by the user will be stored in the EU in encrypted format. Data retrieval occurs via a download by the authorised user, whereby the rights to this retrieval remain with the user who uploaded the data. The user uploading the document consents to TimoCom capturing, processing and using the data generated by the DMS.
(3) he DMS technologies and functionalities are copyright protected and the exclusive property of TimoCom and its licensors. They are furthermore protected by international agreements and other national legislation in the country in which they are used.
(4) TimoCom shall be exempt from providing the user with the service if the memory cannot be accessed as a result of circumstances caused by the third-party licensor or not attributable to TimoCom for periods of non-availability that extend beyond those established in point 2 (1) of these General Terms and Conditions. The user shall be immediately informed of any such downtime and exempted from payment during such periods.
(5) The user shall bear sole responsibility for the use of his/her DMS login and shall refrain from all misuse and attempts to gain unauthorised access to information him/herself or by means of a third party, as well as from interfering with the platform systems. In such cases, the user shall bear all incurred costs, including any expense that arises for TimoCom as a result of inspecting the facilities and/or any costs attributable to faults and defects for which the user is responsible. The user must immediately notify TimoCom about any possibilities for unauthorised third parties to access the products or any known or suspected data breaches. The user must furthermore conduct all other pertinent collaborative acts immediately and at no cost to TimoCom, especially if instructed to do so by TimoCom and the cost of the necessary measures is within reason.
(6) Prior to uploading the documents, the user must check them for harmful content, in particular using up-to-date virus protection programs to check for malicious software.
(7) The user is entitled to revoke the consent granted to TimoCom for the capture, processing, storage and usage of the data processed by the DMS at any time and with retroactive effect. Such revocation shall not affect the existence of the contract or the user's payment obligations. The user recognises that, as a consequence of such revocation, TimoCom may no longer be in a position to further facilitate the use of the DMS.
(8) The user is responsible for handling the documents in line with data protection requirements and undertakes to comply with all relevant data protection provisions established by applicable laws.
(9) In the event of an infringement of data protection regulations, in particular against the preceding paragraph (8), TimoCom shall be entitled to terminate the contract with immediate effect. The user indemnifies TimoCom against all claims resulting from or in conjunction with any failure to comply with data protection, contractual or other legal provisions.
(10) The DMS is not a substitute for an electronic data archive. In particular, TimoCom does not store the documents in an auditable manner for an unlimited period. The user shall bear sole responsibility for compliance with any retention obligations concerning messages. On expiry of the right of use, the user must expect the documents that he/she has uploaded to be deleted without further announcement.
(11) The contractual relationship begins upon written acceptance or the signature of the licence agreement and can be routinely terminated by either party, without citing reasons, under provision of 14 days’ notice to the end of a calendar month. The term of the contract is 1 month and is extended by 1 month if not routinely terminated by either party.
4. The fee for use
(1) The fee for use is due in advance at the beginning of the period of use and should be received by TimoCom by no later than by the third working day of the respective time period. Invoices for additional services provided by TimoCom are due immediately. All payment costs shall be borne by the user with the exception of the legal regime for SEPA payments.
(2) A right of the user to offset or retain his payments owing to counter-claims is excluded unless for undisputed counter claims or counter claims which have been declared final and binding.
(3) In the event that a user who has been granted a discount by TimoCom for a particular billing period due to an advanced licence fee payment, terminates the contract or part of the contract before the end of this billing period, the discount applied will be retrospectively cancelled. The same applies if the termination is carried out by TimoCom due to important reasons.
(4) TimoCom is entitled to increase the price of the agreed licence annually to a reasonable extent, provided that no price guarantee was explicitly agreed for the respective period. TimoCom will announce the price increase in writing giving 4 weeks notice. If the price increase exceeds 5% compared with the same period during the previous year, the customer has the right to terminate the contract within 14 days from the day the new price applies.
Non-application of a discount or expiry of a special time-restricted agreement is not a price increase as defined in this clause. If TimoCom does not exercise the right to increase prices once or several times this does not mean that it waives the right as such. Advance payment does not grant any price guarantee for the period paid for in advance.
5. Equal treatment, sub-licences, property rights, data protection
(1) The software provides the user with access to the user platform in addition to other users without entitlement to preference over other users.
(2) This licence agreement does not entitle the granting of sub-licences or the forwarding of possibilities for data or use acquired with the software to third parties; in particular not for the use of the software for own IT property rights. The software and its source code are protected by copyright law. The software shall remain the property of TimoCom. The software may contain codes, which are the intellectual property rights of third parties, as well as references to them, possibly by linking. These codes are licensed to the user on the basis of licensing agreements or provisions from the respective third party. The user accepts the validity of these licensing agreements or provisions.
(3) The user must report to TimoCom each use of third parties or alleged claims of third parties against its use or against TimoCom of which he becomes aware and which breach the useage regulations of this contract in order to enable legal defence as soon as possible.
(4) The user is not entitled to regular advice concerning software technology, to subsequent delivery of updates or further data carriers and in particular to the right of the source code; to reverse engineer, disassemble or alter the software. The user is prohibited from using the licensed software for further developments of software technology, changed versions or for preparing copies for the benefit of third parties, also of other users. Each use beyond this, albeit through copies, through parallel or alternating use on various workplaces or for the benefit of various trade enterprises and/or branches requires the written agreement of additional licences against payment of a fee.
(5) The user has to notify TimoCom of any company-related amendment relevant to the company or trade register of the company immediately after applying for the amendment. This refers to changes in the legal form or address as well as to the exit or entry of persons authorised to represent who are registered in the company and trade register.
(6) The users declare that TimoCom stores their technical data for the purpose of data security and improvement of data transmission.
(7) The users declare that they agree that TimoCom stores their business data for the purpose of concluding the contract and the contractual processing and obtains information from well-known credit agencies about them.
(8) The user consents to TimoCom communicating user data to subsidiaries or partner companies in order to deliver upon the licence contract or upon service orders. At the present time, these are: TimoCom SAS, 153, Boulevard Haussmann, FR- 75008 Paris; TimoCom Logistica SL, Avenida Riera Principal, 8, ES- 08328 Alella/Barcelona; Hock R. Kft, Malom u. 7., HU- 8000 Székesfehérvár, D.A. Korbut, ul. Motylewska 24, PL- 64-920 Piła; DPN CZ Team s.r.o., Klíšská 977/77, CZ- 400 01 Ústí nad Labem; Ticonex GmbH, Bessemerstr. 2-4, DE-40699 Erkrath.
These companies capture and process user data solely on behalf of, and on the basis of instructions issued by, TimoCom and are obliged by TimoCom to comply with applicable data protection legislation.
The communication of user data to third parties can also occur in cases where legislative requirements and/or enforceable public authority or court orders apply, and to prevent or combat criminal acts or infringements of these licence terms and conditions.
(9) TimoCom points out that according to § 28a paragraph 1 No. 5 of the German Data Protection Act (Bundesdatenschutzgesetz (BDSG)) data on the non-fulfillment of the contractual obligation concerning due receivables resulting from a contractual relationship can be communicated to the SCHUFA Holding AG, Kormoranweg 5, 65201 Wiesbaden, as long as the contractual relationship can be terminated without notification due to arrears and the outstanding payment of the services has not been compensated despite them being due within the notified payment period. You can obtain further information about SCHUFA at www.meineSCHUFA.de
6. Warranty and liability
(1) TimoCom exclusively guarantees that the platform is suitable for the use to the agreed extent. Details in product descriptions, brochures and of user information made available by TimoCom represent non-binding recommendations. A further liability by TimoCom is excluded. TimoCom in particular does not assume any warranty for the actuality, accuracy and completeness of the data entered by the other users nor for the compatibility of the platform with IT environment at the user's end or with used remote data connections.
(2) The set-up of hyperlinks and the information on homepages of third parties which is accessible from the homepage of TimoCom through hyperlinks are not a part of the contractual services. Neither do they serve to describe the contractual service obligations in more detail. The hyperlinks or the pages which are accessible through these hyperlinks are not constantly controlled so that TimoCom does not assume any liability for their contents or accuracy.
(3) TimoCom shall not be liable for damages which various users inflict upon each other, albeit through the loss or transmission faults of data or in any other manner. TimoCom shall not be liable for harmful software or programme codes (viruses, trojans, worms, etc.) which are played onto the user platform by users or are transmitted in their offer attachments or descriptions and spread from these. The user shall be directly liable for the fact that he does not transmit such harmful software.
(4) TimoCom is neither contractual partner nor mediator for a contract concluded with the help of the platform or messenger of a declaration which is relevant in this respect. Therefore TimoCom does not in any way guarantee the proper processing of the agreed contracts between the users. The user shall examine with his own obligation to show care the accuracy of the data and information transmitted to him by third parties.
(5) The user indemnifies TimoCom from all liabilities, which are incurred due to the fact that the user does not use the platform as intended according to this contract. TimoCom shall accordingly conclude the same agreements with other users and assigns if applicable (after the primary satisfaction of own claims for damages of TimoCom) possible existing claims for damages against other users to the user in order to cover damages.
(6) The risk of non or false transmission of data shall pass to the user as soon as the data have left the sphere of influence of TimoCom.
(7) The liability restrictions or exclusions in this contract for damages caused by the user shall not apply in cases
a) deliberate or grossly negligent action by TimoCom, its legal representatives or its agents,
b) of the culpable breach of an essential contractual duty, which endangers the achievement of the contractual purpose,
c) of the liability owing to malicious deceit or granting of a guarantee,
d) of the liability according to mandatory law, such as for example the product liability act or
e) of the liability for a culpable injury to life, the body or health
by TimoCom, its legal representatives or vicarious agents.
(8) If the user is a business person/entrepreneur, liability in the instances cited in the preceding paragraphs 7 lit. a) and b) are limited in instances of gross negligence to an amount of damages commensurate with and typical of the contract concluded between the parties. For the loss of data, programmes and their restoration through use of the platform TimoCom shall only be liable in the cases of the aforementioned para. 7 lit. a) and b) insofar as this loss could not have been avoided by the user through appropriate contingency measures, such as regular data backup.
(9) Components of the platform designated as 'BETA' or 'BETA version' always constitute incomplete products in respect of their use on an everyday basis which, while it may include all major functions, may be subject to limitations in respect of performance, compatibility and stability because experience tends to indicate that, prior to official publication or 'release', it may not have been possible to simulate all hardware and software environments and/or conditions of usage. For this reason, TimoCom also provides BETA components of the platform of this kind for non-binding test purposes where the users can report on their experience and where this input forms an essential part of the process. No assurance can be given in respect of productive properties or of freedom from serious defects. The user recognises that TimoCom cannot be held liable in this respect, nor for any usage downtime on the system, loss of data, defects and secondary damage resulting from such defects, nor for any loss of earnings. Prior to installation and usage of a BETA component of the platform, the user must carry out a complete data backup.
(1) If TimoCom receives information about a user, according to which the user has culpably breached his duties from a freight contract, this contract or other applicable law (hereinafter: complaint) TimoCom is entitled, however not obliged, to forward these complaints with or without naming the complainant to the relevant user or, after questioning and examining him, to other users.
(2) The user, against whom the complaint is directed (“person concerned“) is obliged to make a statement about the complaint concerning its contents towards TimoCom and to rectify the complaint in writing immediately, by no later however than within one week after receipt of the notification, at least however to substantiate his possible longer time required for the statement.
(3) If the user does not succeed in his statement in invalidating the allegation made in the complaint of a breach of duty TimoCom is entitled – however not obliged – to request the user to remedy the complaint within one further week. The limited request for remedy is not necessary if this is not deemed reasonable for TimoCom according to the circumstances.
(4) The rights from the aforementioned para. 2 and 3 in conjunction with the right to blocking or termination shall exist solely in the interest of TimoCom. If TimoCom does not exercise these rights, a liability towards the other users is excluded.
(5) TimoCom is not obliged to examine complaints it receives.
8. Extraordinary termination, duration of the licence, final provisions
(1) The duration of the right of use is oriented to the individually agreed modules. A reciprocal immediate period of notice shall apply during a free test phase.
(2) Each party is entitled to terminate this contract without observing a period of notice if they have an important reason. An important reason for a termination by TimoCom without notice exists in particular if:
a) the user becomes insolvent or there is a threat of insolvency,
b) the opening of the insolvency proceedings over the assets of the user was rejected, return unsatisfied or the user has to submit an affidavit,
c) the user culpably breaches provisions of these terms and conditions which endanger the achievement of the contractual object or which entitle to a blocking according to subclause 3 para. 4 or 5,
d) the user is in default with an amount, which corresponds with a fee for use of one month, for longer than 14 calendar days or
e) the stakeholders' proportion in the user's company changes by 25% or more, or if the company is legally represented by other persons - according to the time of signing the agreement.
(3) The right of use shall apply from activation by TimoCom and end at the same time as the contractual relationship.
(4) With the end of the contract the user must delete the software immediately under the exclusion of all right of retention and to refrain from all use of the software.
(5) If the user is an entrepreneur, legal entity under public law or separate assets under public law within the meaning of § 310 para. 1, sentence 1 BGB or if he has no general place of jurisdiction in Germany, Düsseldorf is agreed as place of performance and place of jurisdiction. German law shall apply under the exclusion of the UN convention on the international sale of goods.
(6) If Timocom supplies the user with translations of this contract or of components of the contract, only the German language version shall be binding in the sense of legally enforceable in cases where a translation contains contradictions or deviations to the meaning of the German language version.
(7) Should individual provisions of these terms and conditions be invalid then this shall have no effect on the validity of the other provisions. The invalid provision shall be replaced by a valid regulation which shall, as far as possible, correspond with the intention of the invalid provision.