General Terms and Conditions
of TIM Solutions GmbH, Parkring 29, 85748 Garching b. München (referred to hereafter as: “TIM”)
1. Scope
1.1.1. The following General Terms and Conditions (referred to hereafter as “GTC”) serve as the rules and regulations on which all current and future agreements entered into between TIM and the client are based, even if in isolated cases no express reference to the GTC is made upon conclusion of a contract.
1.1.2. The respective individual contract (offer) entered into with the client governs which terms and conditions apply. Should certain provisions come into conflict, the following precedence shall apply:
- Provisions from the individual contract (offer)
- Have precedence over the respective relevant terms of use
- Which has precedence over the GTC at hand
1.1.3. All products and services offered by TIM may only be procured by businesses.
2. Offer and Contract Conclusion
2.1.1. Unless otherwise agreed, all offers are non-binding until accepted by the client and remain valid for 30 days from the date of issue. A contract is entered into with the written (mail, fax or e-mail) acceptance of the respective offer. Any oral agreements or commitments must be confirmed in writing by TIM to be effective. Offers, cost quotations, etc. are subject to the arranged confidentiality provisions.
2.1.2. TIM has the right to use affiliated companies for the fulfillment of an order. Affiliated companies are officially named consulting, training and/or implementation partners. The customer shall be notified of any such usage in advance. The generally applicable privacy policies as stated in Section 7.3.3 shall be complied with in such cases.
3. Obligations to Cooperate
3.1.1. Both contract parties shall ensure the diligent fulfillment of the rights and obligations for which they are responsible pursuant to the agreement and shall employ personnel with adequate expertise and appropriate experience with the topic in the fulfillment of the contract.
3.1.2. The client shall provide TIM with all information required to fulfill the contract and for billing purposes in a timely manner. Specifically, the client shall immediately inform TIM of any circumstances having significant impact on the services to be provided by TIM.
3.1.3. To the extent necessary, the client shall support TIM in the realization of the services to be provided. Specifically, the client shall complete any arranged preliminary work in a timely manner and in the agreed quality and shall make available proficient personnel as needed. Any access (e.g., to the product or to the deliverables in question) and/or access to offices or infrastructure, equipment, information and materials that is essential to the fulfillment of the contract shall be provided by the client in a time manner and free of charge. Any travel time, travel expenses or expenses incurred must be reimbursed by the client.
3.1.4. Should the client require an order number for billing purposes, they shall provide such in a timely manner, but no later than 14 days prior to the end of a billing period (purchase order [PO] number). If the client fails to provide a PO number or is late in providing such, the client shall waive the right to object to the billing on the grounds of the order number.
3.1.5. The client shall notify TIM in writing of any changes to its company name or address within a reasonable period of time. Failure to provide said notification of change shall result in any correspondence to the client being considered received if such was sent to the last address provided.
4. License Agreement
4.1. General Conditions
4.1.1. With the installation of the software, you consent to the terms and conditions of the License Agreement at hand and a contract that includes said terms and conditions is entered into between the licensee and TIM. Consequently, we implore you to carefully read the following terms and conditions of the License Agreement in their entirety.
4.1.2. Object of the License Agreement is usage rights for the TIM software products, including TIM interfaces, TIM documentation, as well as other written accompanying materials, which you purchased from your software vendor or directly from TIM for the sole purpose of your own use.
4.1.3. The condition and service scope of the software, as well as the approved operational environment can be found in the applicable program description (see Offer). The software corresponds to the descriptions found in the documentation; TIM is not responsible for providing any software functions beyond that scope. Statements and portrayals found in the documentation, test programs and/or product and product descriptions do not represent a quality guarantee.
4.1.4. Maintenance services that go beyond the correction of defects during the guarantee period require a separate software maintenance agreement and the software maintenance conditions for TIM applications can be found therein. TIM is not obligated to create future updates outside said maintenance contract.
4.2. Usage Right and Right of Reproduction
4.2.1. In exchange for the payment of the purchase or rental price, TIM grants the non-exclusive usage rights, with no restrictions in regard to space and time, to the TIM software products. Usage specifically includes allowing the TIM software products to load, display, run and save.
4.2.2. To the extent the licensee is authorized to place the delivered software on its internal intranet or on its website and use it from said location, the licensee is required to ensure compliance with the arranged single user licenses and to provide proof of such to TIM by means of a corresponding protocol, if so requested. Any violation of said obligation constitutes a significant breach of the terms and conditions of the contract and is furthermore grounds for imposing additional license fees.
4.2.3. To the extent the delivered software is equipped with copy protection or other protection routines (hard or soft keys), the licensee is required to use the software exclusively in conjunction with said protective routine and shall not employ workaround programs. The protective routine may only be removed if such impaired or prevented the smooth operation of the software. The licensee is responsible for providing proof of any such impairment or interference.
4.3. Multiple Use
4.3.1. The delivered TIM software products may be used on any hardware at your disposal. The products must be deleted from the hardware previously in use should you change the hardware you are using. A simultaneous installation, storage or use of the delivered TIM software products on more than one hardware is not allowed.
4.4. Program Changes and Decompilation
4.4.1. You may only edit, rearrange or otherwise change the TIM software products within the context of the intended use and for the exclusive purpose of troubleshooting, maintenance, updates or function scope expansion.
4.4.2. The actions named in 4.4.1 may only be performed by commercially active third-parties, who may be competitors of TIM, if TIM is unable or unwilling to make the desired changes in exchange for suitable compensation. TIM must be granted a suitable period to review the change request.
4.4.3. Copyright notices, serial numbers and other features used for program identification may not be removed or changed under any condition.
4.5. Resale and Sub-Licensing
4.5.1. The usage rights expressly exclude the licensing or partial licensing of TIM software products to third parties for commercial purposes. A separate written agreement must be entered into with TIM should you wish to license TIM software products to third parties.
4.5.2. A temporary and permissible transfer of usage rights is deemed to exist if merely individual files or parts of the software are delivered to other users, but when such does not necessitate the installation of the full software.
4.5.3. You may not transfer TIM software products to third parties if there is reasonable suspicion that said third party will violate the terms and conditions of this contract, unauthorized reproductions in particular.
4.5.4. TIM reserves the right to review compliance with the license terms and conditions at hand within the context of a license audit.
4.5.5. TIM has the right to revoke the licensee’s usage rights should the licensee violate the usage restrictions or other policies in place to protect against unauthorized use and do so to a not insignificant degree. Prior to doing so, TIM must grant the licensee a grace period to remedy the situation. Should such be repeated and under special circumstances that warrant, after weighing the interests of both parties, an immediate revocation, TIM may issue an immediate revocation without a grace period. Upon revocation, the licensee must confirm the cessation of usage to TIM in writing.
5. Conditions of Service (SLA)
5.1. SaaS (Software as a Service) Conditions
5.1.1. Service Hours (SaaS)
During regular service hours contact partners at TIM:
- Can be reached using the ticket system, document problem descriptions and confirm reported cases with a unique ticket number (ticket number, date, time, brief description, name of reporting party).
- Forward tickets to the problem resolution group.
- Can be reached by e-mail or telephone.
5.1.2. Data Center Location (SaaS)
At the client’s request, all services and data are provided by either Azure (Microsoft Ireland Operations Limited) or AWS (Amazon Europe Core S.à r.l. and Amazon EU S.à r.l. in Luxembourg), with the selected organization service as contract partner. Unless otherwise requested by the client, services shall always be provided in a data center located in Germany. Frankfurt am Main is preferred, where possible.
5.1.3. Scheduled Maintenance Work (SaaS)
Upcoming maintenance work (software updates) are coordinated with the client and the client is given sufficient advanced notice of such (no less than 14 days). Once confirmed by the client, maintenance work shall be performed without further advanced notice and the client is notified once the work has been completed.
Should the client prefer to have a maintenance window outside normal service hours, costs shall be incurred pursuant to Section 5.5.
5.2. Scheduled Maintenance Work (OnPremise)
Staff may also be explicitly placed on on-call duty during scheduled maintenance work. Such requires adequate advanced notice by the client (no less than 14 days) and must be confirmed by TIM. Should on-site deployments occur, the client shall be responsible for any additional costs related to travel time, travel expense or other applicable expenses.
We charge the following flat-rates for on-call services:
- Business days outside the current service hours (100% of the hourly rate)
- Saturdays outside the current service hours (125% of the hourly rate)
- Sundays and holidays outside the current service hours (150% of the hourly rate)
The costs named in Section 5.5 are incurred for hours in which staff is active.
5.3. Data Recovery
Generally speaking, the back-up concept is the responsibility of the party that is responsible for the hosting. This produces two cases: one in which TIM is responsible for data recovery or one in which the client, having assumed the hosting itself or hired a third party service provider to do so, is responsible for data recovery.
- If the hosting is assumed by TIM (SaaS), data shall be recovered pursuant to the back-up concept should there be a loss thereof.
- If the hosting is not (on-premise) assumed by TIM, but is assumed by the client or by a third party service provider, the host shall be responsible for recovering the data in case of loss or erroneous data records.
5.4. Surcharges
We charge the following flat-rates for deployments outside the standard service hours:
- Business days outside the current service hours (125% of the hourly rate)
- Saturdays outside the current service hours (150% of the hourly rate)
- Sundays and holidays outside the current service hours (200% of the hourly rate)
These times are calculated based on actual time and effort, plus any travel time, travel expenses or other expenses incurred for necessary on-site deployments.
5.5. Service Hours
During regular service hours contact partners at TIM:
- Can be reached using the ticket system, by e-mail or by telephone.
- Document problem descriptions and confirm reported cases with a unique ticket number (ticket number, date, time, brief description, name of reporting party).
- Service hours do not mean that the contact partner at TIM can solve a problem directly over the phone.
Service hours do not mean that the contact partner at TIM can solve a problem directly over the phone.
The standard service hours of the TIM help desk are as follows:
- Monday – Friday: 8:00 am – 4:00 pm CET
Exceptions: The help desk is not staffed on public holidays in Germany and Bavaria.
5.6. Response Time
Response time means that TIM shall confirm the receipt of a case, as described above, within the agreed time frame and forward it to the problem resolution group Periods outside the service hours are not included in the reaction time.
The maximum standard reaction time is 4 hours from the time the client reports the case to TIM by telephone, e-mail or via the TIM help desk.
5.7. Processing Time and Error Class
The processing time begins with an employee of TIM Solutions GmbH’s help desk analyzing the case and searching for a solution to the reported problem. The latest start for processing a case depends on the error class of the error reported by the client. Classification as error class “Important” or “Critical” requires confirmation by the help desk employee.
The standard agreement is as follows:
| Error class | Latest start of processing |
|---|---|
| Trivial | Within 3 business days (Mon–Fr) of confirmation of receipt being issued to client |
| Minor | Within 2 business days (Mon–Fr) of confirmation of receipt being issued to client |
| Major | Within 1 business day (Mon–Fr) of confirmation of receipt being issued to client |
| Critical | Within 4 hours (Mon–Fr) of confirmation of receipt being issued to client – business days only |
Within that context, error classes are defined as follows:
| Error Class | Description |
|---|---|
| Trivial | When using the software, the error causes an insignificant or negligible impairment of business operations with no major impact on the functionality; there is no economic loss. Examples:
|
| Minor | Use of the software in business operations is impaired; however, core processes are not significantly affected. Nevertheless, it takes more time and effort to use the software than it would if it were error-free. Examples:
|
| Major | Use of the software in business operations is limited, but does not render operation of the software as a whole impossible. A minimum of business operations is possible with a reasonable, yet increased amount of effort. Core business processes are affected. Workarounds are available to bridge the time it takes to troubleshoot the problem. Examples:
|
| Critical | The use of the software in business operations is considered severely limited if such results in considerable business loss and/or if the use of the entire software or of individual self-contained parts of the software pose a business risk. There is no workaround. Examples:
|
5.8. On-Site Appointments
Generally speaking, all services are provided remotely. Should the client request on-site appointments, such shall be billed at the standard hourly rate. Appointments outside the current service hours shall be billed as stated in Section 5.5.
6. Conditions of Software Maintenance
6.1. General Conditions
Object of these software maintenance conditions is the utilization of maintenance services for the TIM BPM Suite. TIM continuously works to further develop and maintain the functionality and subcomponents of the TIM BPM Suite and to provide releases for new versions of the operating systems and application server.
6.2. Service Scope
6.2.1. The software maintenance includes preventive measures intended to improve the organizational structure and program flow TIM BPM Suite, such are at the discretion on TIM, as well as the ensuring documentation is kept up-to-date.
6.2.2. The software maintenance further includes the right to obtain the latest versions of the TIM BPM Suite (referred to hereafter as “Updates”) when officially released by TIM and to use such in place of previous versions at no additional charge.
6.2.3. Updates shall be developed in internals named by TIM and made available to the client on either a data storage device or through remote support, depending on the client’s preference.
6.2.4. Only the latest version of the program that was created by TIM shall be maintained.
6.3. Excluded Services
6.3.1 The software maintenance specifically excludes any support services. The provision of support services can be arranged separately with TIM. A software maintenance agreement must be in place in order to procure support services.
6.3.2 TIM is not responsible for third-party products or for services provided by third-party providers.
7. Data Protection and Confidentiality
7.1. General Conditions
7.1.1. Confidential information is any information that a reasonably third party would consider sensitive or any information that has been flagged or labeled confidential. Such could include information that became known in the context of an oral presentation or discussion. Confidential information may only be used to fulfill the contract. Information not considered confidential is any information the parties are already legally aware of or that becomes known outside the existing contract without any violation of a confidentiality agreement.
7.1.2. Personal data refers to all data containing the particulars of personal or professional relationships, such as name, e-mail address, telephone number, occupation, bank details, etc. Personal data is not, however, limited to data that can be associated with a specific person; instead, it further includes data that can be used in conjunction with other data to identify a person. If in doubt, it should be assumed that the information in question is personal.
7.1.3. Not considered third-parties within the context of this chapter are employees, subcontractors, tax consultants, auditors, attorneys and similar external consultants of either party, as well as any affiliated companies of either party, should such be required to observe strict confidentiality measures as a result of their profession or due to a comprehensive confidentiality agreement with either party.
7.2. Confidentiality
7.2.1. The parties agree to handle any confidential information exchanged between them as strictly confidential and to take steps to prevent unauthorized third parties from acquiring knowledge of said information. The obligation to uphold the confidentiality of any information gained access to specifically includes the obligation to refrain from using confidential information for one’s own competitive purposes. The obligation to uphold confidentiality does not apply if the disclosure of confidential information is mandated by a court decision, an order by an authority or by law.
7.2.2. The parties are authorized to reference the existing business relationship, including the name and company logo with disclosure of the area in which the product is used.
7.2.3. Personal data entrusted to or otherwise obtained by the parties within the context of the contractual collaboration must be kept confidential. Processing of said data is only permitted to the extent permitted by law.
7.2.4. Upon expiry or dissolution of this agreement, the confidentiality agreement governing confidential information exchanged while the agreement was in place, remains intact indefinitely.
7.2.5. The client grants TIM the right to process data for internal business activity purposes.
7.3. Collection and Processing of Personal Data
7.3.1. All personal data used by TIM shall be collected, processed and used solely to the extent permitted by law. Should, in doing so, TIM employ third-party services that are not subject to European law, TIM shall ensure that either an adequacy decision (similar to the decision by the European Commission K(200) 2304 for Switzerland) or an adequate guarantee to uphold a sufficient level of data protection is in place. Said guarantee ensures that the data protection policies and the rights of the affected persons to processing within the European Union are observed in an adequate manner.
7.3.2. TIM shall only process personal data that is actively shared by the client or that is the result of client services. TIM shall use said data for:
- Contract processing
- Payment processing
- Processing of customer requests, and/or
- Delivery of product, service and event information.
7.3.3. TIM may, at times, employ services providers to assist with service provision as well as payment processing and shall provide them with personal data that is essential to their work. Said service providers shall, by contract, agree to (a) use said data exclusively for the fulfillment of the order, (b) specifically not use said data for their own purposes, (c) delete said data upon conclusion of the order fulfillment, and (d) not share said data with third parties. -> Please refer to 2.2
7.3.4. Details on the collection and handling of personal information in connection with the TIM websites can be found at https://www.tim-solutions.de/de/datenschutz.
7.3.5. Should TIM perform data processing activities on behalf of the client, the client shall enter into a data processing agreement (DPA) with TIM. The TIM account manager can request a pre-signed DPA from TIM.
7.4. Data Security
7.4.1. TIM shall employ adequate technical and organizational measures (TOM) to protect the TIM systems and TIM websites from loss, destruction, access, modification or distribution of data by unauthorized persons. Any personal data shared over the internet shall always be encrypted.
7.4.2. With respect to Art. 32 of the GDPR, TIM shall employ appropriate measures to ensure a level of protection commensurate with the risk. The following were specifically considered when selecting measures:
- State of technology
- Type, scope, circumstances and purpose of the processing
- Implementation costs, as well as
- The different probabilities of occurrence and severity of the risk to the personal rights and freedoms of the affected persons.
7.4.3. Information on the specific technical and organizational measures (TOM) employed by TIM can be requested from the TIM account manager.
7.4.4. Data, as referred to in the context of this section, includes data created, processed or saved as a result of using TIM products as intended, as well as any installation and configuration settings, user information and any accompanying documentation.
7.4.5. The client is responsible for ensuring application-related data is properly protected, as well as for performing adequate data backups, if such is not the object of an operating service agreement.
8. Property Rights
8.1.1. The TIM services do not violate any third-party property rights.
8.1.2. The client must immediately inform TIM of any third-party claims made against them. Should the client acknowledge the alleged property rights violations or should they reach extrajudicial agreements with third-parties of which TIM is not a part, TIM cannot be held liable for any claims made in connection with the property rights violation.
8.1.3. Similarly, claims cannot be made against TIM if the client is responsible for the alleged property rights violation.
8.1.4. Lastly, claims cannot be made against TIM if the alleged property rights violation concerns programs or data provided by the client or reference service components delivered by TIM, or the data sets found therein, that no longer reflect the valid, unaltered original version delivered by TIM or if such has not been used as intended.
9. Intellectual Property
9.1.1. The products, as well as any materials and information delivered within the context of the business relationship, are the intellectual property of TIM. TIM reserves the right to any rights not expressly granted. Such also applies to any future improvements or similar enhancements to the products.
9.1.2. TIM reserves the sole right to process and translate deliverables, products, solutions, add-on modules, materials, etc. The identification or editing of source code is specifically not allowed.
9.1.3. The editing or deletion of any copyright notices and trademarks put in place by TIM is not permitted.
9.1.4. The client is not allowed to share, transfer or provide access to any products, solutions, add-on modules, materials or other confidential information as outlined in Section 7 with competitors of TIM, and other software manufacturers in particular.
10. Liability
10.1.1. Neither contract party can be held liable for pure pecuniary losses, lost profit, expected but unrealized savings or losses from third-party claims against the client.
10.1.2. Liability for data losses is excluded, unless otherwise agreed to in writing in an operating service agreement, with clear regulation of the obligations of both parties and definition of liability caps.
10.1.3. The contract parties shall not be liable to one another for any losses resulting from causes outside their control. This specifically includes losses caused by the actions of third parties (specifically including hacking) or forces majeures. TIM cannot be held liable for outcomes resulting from independent actions by the client, for network environments used by the client or for other circumstances within the client’s realm of responsibility.
10.1.4. Should the client fail to meet its obligations to cooperate to the extent named herein, TIM cannot be held liable for any losses resulting from said failure.
10.1.5. TIM shall be exempted from all obligations named in the agreement should changes be made to the software programs that form the object of the agreement without the prior consent of TIM or if the products are not used as designated.
10.1.6. Furthermore, the contract parties shall only be liable if a material condition of the contract at hand has been violated. The amount of the liability is limited to the total value of the order for each loss-triggering incident.
10.1.7. Loss compensation claims expire according to the legal regulations; however, no later than one year from the start of the legal statute of limitations.
10.1.8. The liability limitations named in this section do not apply in the case of intent, gross negligence or injury to life, body or health or to the extent that product liability laws apply.
11. Payment Conditions
11.1.1. Unless otherwise agreed, one-time compensation following service provision or regular compensation in advance shall be billed. Software licenses shall be billed after installation, provision of a download link or delivery of the access data. Invoice amounts must be paid in full within 14 days of the invoice date. In the case of partial invoices or advanced payments, the payment conditions defined for the order in general apply.
11.1.2. Travel expenses for projects within the vicinity of the place of fulfillment and up to 100 km from the client’s location are included in the daily rate. Travel expenses shall be billed at cost for distances of 101 km or more. Travel times shall generally be compensated at half the daily rate.
11.1.3. Unless otherwise agreed, the invoice amount should be transferred to the bank account indicated by TIM on its invoice. Payments are not considered received until they have been deposited to the named account. The risk of erroneous or delayed transfers is borne by the client.
11.1.4. Unless expressly indicated otherwise, all prices are in euro and exclude value added tax (VAT).
11.1.5. The client shall immediately be considered to have defaulted should they fail to meet the agreed payment deadlines. TIM shall have the right to withdraw from the agreement should the client fail to provide payment following an official reminder, with adequate grace period, by TIM.
11.1.6. Should the client default on a payment, the terms and conditions for official reminders and default interest shall apply pursuant to the applicable legal basis. Should the client exceed the payment deadline by more than 30 days, TIM has the right to stop all services. TIM is further authorized to immediately invoice all services provided to date, regardless of potential payment deadlines.
11.1.7. Taxes (specifically VAT) and other fees shall be calculated based on the relevant and applicable law. Any additional taxes or fees imposed by tax authorities shall be the responsibility of the client.
11.1.8. For deliveries and services within the European Union (EU), the client shall provide their respective VAT ID number prior to conclusion of the sale.
12. Delivery and Delivery Date
12.1.1. Unless otherwise agreed, the delivery shall be provided in the form of a download link or the provision of access data. Delivery date is the date on which the client receives the download link or access data.
13. Miscellaneous
13.1. Retention
13.1.1. In case of a defect and/or damage, the client does not have the right to make the provision of the services for which they are responsible dependent upon the elimination of the defect and/or damage or on the procurement of other services from TIM.
13.2. Forfeiture of Claims
13.2.1. The client forfeits the right to assert claims should they fail to notify TIM of such in writing within six months of the appearance of the object of the claim.
13.3. Written Form
13.3.1. Any entry into, modification of, amendment of or dissolution of an agreement between the contract parties must be made in writing and signed in writing by both contract parties to be effective. This also applies to any modifications or amendments, as well as for the abolishment of the written form clause itself.
13.4. Assignment, Transfer, Pledge
13.4.1. The assignment or pledging of rights and/or the transfer of obligations resulting from the contractual relationship with TIM requires the written consent of TIM.
13.5. Severability Clause
13.5.1. Should any of the individual terms or conditions of the GTC at hand be or become invalid, such shall not affect the validity of the remaining terms and conditions. The parties shall replace any invalid terms or conditions with a legally effective term or condition that most closely reflects the intended business purpose of the contract term or condition and/or other agreements.
14. Place of fulfillment and place of jurisdiction
14.1.1. Place of fulfillment and place of jurisdiction for the entire contract relationship between the client and TIM is Munich. The UN sales law and conflict-of-law rules as set forth in the Code on International Private Law of the respective country are excluded.
