TIM Solutions GmbH, Parkring 29, 85748 Garching near Munich (hereinafter referred to as “TIM”)

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1. Scope of application

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1.1.1. The following General Terms and Conditions (hereinafter referred to as “GTC”) form the basis for all current and future agreements concluded between TIM and its customers, even if no explicit reference is made to the GTC when concluding individual contracts.

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1.1.2. The respective individual contract (offer) concluded with the customer governs which provisions apply. In the event of conflicting provisions, the following order of priority applies:

1. Provisions from the individual contract (offer)
2. before the relevant terms of use
3. before these General Terms and Conditions

1.1.3. All products and services offered by TIM may only be purchased by companies.

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2. Offer and conclusion of contract

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2.1.1. Unless otherwise agreed, offers are subject to change until accepted by the customer and are valid for 30 days from the date of issue. A contract is concluded upon written (letter, fax, or email) acceptance of an offer. Verbal agreements or commitments require written confirmation by TIM to be effective. Offers, cost estimates, and similar documents are subject to the agreed confidentiality provisions.

2.1.2. TIM is entitled to engage affiliated companies to fulfill orders. Affiliated companies are officially listed consulting, training, or implementation partners. The customer will be informed of this in advance. The generally applicable data protection provisions will be observed in accordance with Section 7.3.3.

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3. Obligations to cooperate

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3.1.1. Both contracting parties shall ensure the careful execution of the rights and obligations incumbent upon them in accordance with the agreement and shall employ personnel with sufficient expertise and relevant experience in the subject area to fulfill the contract.

3.1.2. The customer shall provide TIM with all information necessary for the fulfillment of the contract and invoicing in a timely manner. In particular, the customer shall inform TIM immediately of any circumstances that significantly affect the services to be provided by TIM.

3.1.3. The customer shall support TIM as necessary in the performance of the services to be provided. In particular, the customer shall carry out agreed preparatory work in a timely manner and to the agreed quality and, if necessary, provide expert personnel. The customer shall provide the access necessary for the performance of the contract (e.g., to the product or the work result concerned), access to premises or infrastructure, work equipment, information, and documents in a timely manner and free of charge. Any travel time, travel costs, and expenses incurred must be reimbursed by the customer.

3.1.4. If the customer requires an order number for invoicing purposes, they shall provide this in good time, at least 14 days before the end of an invoicing period (PO Number, Purchase Order Number). If the order number is not provided or is provided late, the customer waives any objections in connection with the order number in the context of invoicing.

3.1.5. The customer shall notify TIM in writing of any changes to its company name or address within a reasonable period of time. If no notification of change has been made in this regard, documents shall be deemed to have been received by the customer if they have been sent to the last known address.

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4. License agreement

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4.1. General provisions

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4.1.1. By installing the software, you agree to these license agreement terms and conditions, and a contract between the licensee and TIM containing these terms and conditions is formed. For this reason, please read the following license agreement terms and conditions carefully and thoroughly.

4.1.2. The subject matter of the license agreement is the rights of use for TIM software products, including TIM interfaces, TIM documentation, and other accompanying written material that you have purchased from your software dealer or directly from TIM for your own exclusive use.

4.1.3. The nature and scope of the software as well as the approved operating environment are specified in the respective program description (see offer). The software corresponds to the descriptions in the documentation; TIM is not obligated to provide any functionality beyond this. Representations in the documentation, in test programs, in product and project descriptions do not constitute a guarantee of quality.

4.1.4. Any maintenance work on the software that goes beyond the rectification of defects within the warranty period shall only be carried out on the basis of a separate software maintenance agreement, to which the terms and conditions for software maintenance of the TIM application shall apply. Outside of such a maintenance agreement, TIM is not obliged to create updates for the future.

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4.2. Rights of use and reproduction

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4.2.1. TIM grants the Licensee the non-exclusive, spatially and temporally unrestricted right to use the TIM software products in return for payment of the purchase or rental price to TIM. Use includes, in particular, loading, displaying, running, and storing the TIM software products.

4.2.2. Insofar as the licensee is entitled to place the software provided on its internal intranet or website and to use it there, it is obliged to ensure compliance with the agreed single-user licenses and, if requested, to provide TIM with evidence of this in the form of a corresponding protocol. A breach of this obligation constitutes a material breach of the terms of the contract and also gives rise to additional license fees.

4.2.3. If the software provided is equipped with copy protection or another protection routine (hard or soft key), the licensee is obligated to use the software only in conjunction with this protection routine and not to use any circumvention program. The protection routine may only be removed if it would impair or prevent the trouble-free use of the software. The licensee bears the burden of proof in this regard.

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4.3. Multiple use

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4.3.1. You may use the TIM software products provided to you on any hardware available to you. If you change the hardware, you must delete it from the mass storage device of the hardware previously used. Simultaneous storage, stockpiling, or use of the TIM software products provided to you on more than one piece of hardware is not permitted.

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4.4. Programmänderungen und Dekompilierung

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4.4.1. You may only edit, redesign, or otherwise modify the TIM software products within the scope of their intended use for the purpose of troubleshooting, maintenance, updating, and expanding their functionality.

4.4.2. You may only entrust the actions specified in Section 4.4.1 to commercially operating third parties who are in a potential competitive relationship with TIM if TIM is unable or unwilling to make the desired changes for a reasonable fee. You must allow TIM a reasonable period of time to review the change request.

4.4.3. You may not remove or alter copyright notices, serial numbers, or other features used to identify the program under any circumstances.

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4.5. Resale and subletting

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4.5.1. The right of use expressly does not include the rental or partial rental of TIM software products to third parties for commercial purposes. If you wish to rent TIM software products to third parties, this requires a separate written agreement with TIM.

4.5.2. Permissible temporary transfer for use exists if only individual files or parts of the software are transferred to other users without the need to store the complete software.

4.5.3. You may not transfer the TIM software products to third parties if there is reasonable suspicion that the third party will violate these contractual terms and conditions, in particular by making unauthorized copies.

4.5.4. TIM reserves the right to verify compliance with these license terms and conditions by means of a license audit.

4.5.5. TIM may revoke the licensee's right of use if the licensee violates usage restrictions or other regulations for protection against unauthorized use to a significant extent. TIM shall first set the licensee a grace period for remedial action. In the event of a repeat offense and in special circumstances that justify immediate revocation after weighing the interests of both parties, TIM may declare revocation without setting a deadline. The licensee must confirm to TIM in writing that they have ceased use after revocation.

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5. Terms and Conditions for Services (SLA)

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5.1 SaaS (Software as a Service) Terms and Conditions

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The TIM – SaaS offering includes hosting of your productive TIM application server and the associated database in a high-performance, certified data center operated by our partners. The TIM test server, which is already included, has limited performance and is not suitable for live operation. The TIM SaaS price is based on the use of the system and the number of users created in the system. As soon as the next higher level of users or processes started per month is reached, the corresponding price applies. ‍

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Scales for TIM SaaS licenses:

5.1.1. Standby time (SaaS)

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During on-call hours, TIM contact persons can be

• reached via the ticket system. They record the problem description and confirm the reported case with a unique ticket number (ticket number, date, time, brief description, name of the person reporting the problem)
• forward the ticket to the solution group
• and can be reached by email or phone.

5.1.2. Data center location (SaaS)

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All services and data are provided either by Azure (Microsoft Ireland Operations Limited) or AWS (Amazon Europe Core S.à r.l. and Amazon EU S.à r.l. in Luxembourg) as contractual partners, depending on the customer's requirements. Unless otherwise requested by the customer, the services are always provided in a German data center. Where available, Frankfurt am Main is the preferred data center location.

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5.1.3. Planned maintenance work (SaaS)

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Upcoming maintenance work (software updates) will be coordinated with the customer and announced to the customer in advance (at least 14 days). After confirmation by the customer, the maintenance work will be carried out without further warning and communicated to the customer upon completion. If, at the customer's request, the maintenance window falls outside of on-call hours, costs will be incurred in accordance with Section 5.5.

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5.2. Planned maintenance work (on-premises)

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In the case of planned maintenance work, individuals can also be placed on call after timely notification (at least 14 days) by the customer and confirmation by TIM. In the event of on-site assignments, the client shall bear additional costs for travel time, travel expenses, and other expenses. We charge the following flat rates for on-call service:

• Outside of the applicable on-call hours on working days (100% hourly rate)
• Outside of the applicable on-call hours on Saturdays (125% hourly rate)
• Outside of the applicable on-call hours on Sundays and public holidays (150% hourly rate)

For the hours during which the employee is active, costs are incurred in accordance with Section 5.5.

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5.3. Data recovery

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The backup concept is generally the responsibility of the party responsible for hosting. This results in two cases in which data recovery is either the responsibility of TIM or the client, who either handles the hosting themselves or outsources it to a third-party service provider.

• If TIM takes over hosting (SaaS), data recovery after loss is ensured in accordance with the backup concept.
• If hosting is not provided (on-premise) by TIM but by the client or a third-party service provider, the host assumes responsibility for restoring data in the event of loss or incorrect data records.

5.4. Surcharges

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For assignments outside of standard on-call hours, we charge the following flat rates:

• Outside of the applicable on-call hours on working days (125% hourly rate)
• Outside of the applicable on-call hours on Saturdays (150% hourly rate)
• Outside of the applicable on-call hours on Sundays and public holidays (200% hourly rate)

These times are calculated based on the amount of work involved, plus any travel time, travel costs, and expenses incurred for on-site visits that may be necessary.

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5.5. On-call time

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During on-call hours, the contact persons at TIM are

• Available via ticket system, email, or phone, they record the problem description and confirm the reported case with a unique ticket number (ticket number, date, time, brief description, reporter name).

and forward the ticket to the solution group. The on-call times do not mean that TIM contact persons can solve a problem directly on the phone. The standard on-call times of the TIM Helpdesk are defined as follows:

• Monday–Friday: 8:00 a.m.–4:00 p.m. CET Exceptions: The help desk is closed on public holidays in Germany and Bavaria.

5.6. Response time

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Response time means that TIM confirms receipt of a case as defined above within an agreed time and forwards it to the solution group. Periods outside of on-call hours do not count toward the response time.

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The maximum standard response time is 4 hours after the customer reports the case by phone or email to the TIM Helpdesk.

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5.7. Processing time and error class

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The processing time begins when a TIM Solutions GmbH helpdesk employee starts analyzing the case and searching for a solution to a reported problem. The latest start date for processing a case depends on the error class reported by the customer. The classification of error classes as “important” and “critical” requires confirmation by the helpdesk employee.

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The standard agreement is:

The error classes are defined as follows:

5.8. On-site appointments

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All services are generally provided remotely. If the client requests an on-site appointment, this will be billed at the standard hourly rate. Appointments outside of the applicable on-call hours will be billed in accordance with Section 5.5.

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6. Terms and conditions for software maintenance

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6.1. General provisions

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The subject matter of these terms and conditions for software maintenance is the use of maintenance services for the TIM – BPM Suite. The TIM – BPM Suite is continuously developed and maintained by TIM in terms of functionality and optimization of subcomponents and approvals for new versions of operating systems and application servers.

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6.2. sCcope of services

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6.2.1. Software maintenance includes preventive measures to improve the TIM – BPM Suite in terms of its organizational structure and program flow at TIM's discretion, as well as keeping the documentation up to date.
6.2.2. Software maintenance also includes the right to receive the latest versions of the TIM – BPM Suite (hereinafter referred to as “updates”) upon official release by TIM and to use them in place of the previous versions at no extra charge.

6.2.3. Updates are developed by TIM at specified intervals and made available to the customer either on a data carrier or via remote support.

6.2.4. Only the latest program version created by TIM is maintained.

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6.3. Excluded services

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6.3.1 Software maintenance expressly does not include support services. The provision of support services can be agreed separately with TIM. However, this requires an existing software maintenance contract.

6.3.2 TIM is not responsible for third-party products and services.

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7. Data protection and confidentiality

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7.1. General provisions

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7.1.1. Confidential information is information that a reasonable third party would consider worthy of protection or information that is marked as confidential. This may also include information that becomes known during an oral presentation or discussion. Confidential information may only be used for the purpose of fulfilling the contract. Information that is already lawfully known to the parties or that becomes known outside the existing contract without violating a confidentiality agreement is not considered confidential.

7.1.2. Personal data is any data that contains individual details about personal or factual circumstances, such as name, email address, telephone number, occupation, bank details, etc. However, personal data is not only data that can be specifically assigned to a particular person, but also data that can only be used to identify the person with additional information. In case of doubt, it should be assumed that personal information is present.

7.1.3. Employees, subcontractors, tax advisors, auditors, lawyers, and comparable external advisors of one of the parties, as well as companies affiliated with a party, are not considered third parties within the meaning of this chapter, provided that they are bound to strict confidentiality by virtue of their profession or on the basis of a comprehensive confidentiality agreement with one of the parties.

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7.2. Confidentiality

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7.2.1. There is mutual agreement that any confidential information exchanged between the parties shall be treated as strictly confidential and that care shall be taken to ensure that unauthorized third parties cannot gain knowledge of this information. The obligation to maintain confidentiality of the information obtained includes, in particular, the obligation not to use confidential information for one's own competitive purposes. The obligation of confidentiality does not apply if there is an obligation to disclose the confidential information by order of a court, order of an authority, or law.

7.2.2. Both parties are entitled to refer to the existing business relationship by name and company logo, stating the area of application of the product.

7.2.3. Personal data entrusted to the parties in the course of their contractual cooperation or otherwise received must be kept confidential. Processing may only take place to the extent permitted by law.

7.2.4. After the expiry or termination of this agreement, the confidentiality obligation for confidential information exchanged during the term of the agreement shall remain in force indefinitely.7

.2.5. The customer agrees to the processing of data by TIM for the purposes of internal business transactions.

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7.3. Collection and processing of personal data

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7.3.1. All personal data used by TIM will only be collected, processed, and used within the legal framework. If TIM uses software or services from third-party providers that are not subject to European law, TIM ensures that either an adequacy decision (such as European Commission Decision C(2000) 2304 for Switzerland) or sufficient safeguards are in place to ensure an adequate level of data protection. These safeguards ensure that data protection regulations and the rights of data subjects are respected in a manner appropriate to processing within the Union.

7.3.2. TIM only processes personal data that is actively provided to us by the customer or that arises from customer service. TIM uses this data for

• Contract processing,
• Payment processing,
• Processing customer inquiries and
• Transmission of product, service, and event information.

7.3.3. TIM occasionally uses service providers to provide services and process payments, to whom it provides the personal data that is absolutely necessary. These service providers have contractually agreed to (a) use this data exclusively for the purpose of fulfilling the order, (b) not to use it for their own purposes, (c) to delete it after the order has been fulfilled, and (d) not to pass it on to third parties. -> see 2.2

7.3.4. Details on the collection and handling of personal data in connection with TIM's websites are available at https://www.tim-solutions.de/de/datenschutz.

7.3.5. If TIM acts as a processor for the customer, a contract for order data processing (ADV) is concluded with TIM. A contract pre-signed by TIM (Data Processing Agreement – DPA) can be requested from the TIM customer advisor.

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7.4. Data security

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7.4.1. TIM takes appropriate technical and organizational measures (TOM) to protect TIM systems and TIM websites against loss, destruction, access, modification, or distribution of data by unauthorized persons. Personal data is always transmitted in encrypted form via the Internet.

7.4.2. With regard to Art. 32 GDPR, TIM takes appropriate measures to ensure a level of protection appropriate to the risk. In selecting the measures, particular attention was paid to

• the state of the art,
• The nature, scope, circumstances, and purposes of the processing,
• the implementation costs and
• the different probabilities of occurrence and severity of the risk to the personal rights and freedoms of the persons concerned.

7.4.3. Information on specific technical and organizational measures (TOM) implemented by TIM can be requested from the TIM customer advisor.

7.4.4. Data within the meaning of this section also includes data that is created, processed, or stored through the intended use of TIM products, as well as installation and configuration settings, user information, and any further documentation.

7.4.5. The customer is responsible for the appropriate protection of application-related data and for performing adequate data backups, unless these are covered by an operating service agreement.

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8. Property rights

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8.1.1. TIM's services do not infringe any third-party property rights.

8.1.2. The customer must notify TIM immediately of any third-party claims asserted against it. If the customer acknowledges alleged infringements of property rights or enters into any out-of-court agreements with third parties to the exclusion of TIM, TIM shall not be liable in connection with this alleged infringement of property rights.

8.1.3. Claims against TIM are also excluded if the customer is responsible for the alleged infringement of property rights.

8.1.4. Finally, claims against TIM are excluded if the alleged infringement of property rights relates to programs or data provided by the customer or is based on the fact that the service component delivered by TIM and the data contained therein are not used in a valid, unmodified original version delivered by TIM or are not used in accordance with their intended purpose.

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9. Intellectual property

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9.1.1. The products and all documents and information provided within the scope of the business relationship are the intellectual property of TIM. All rights not expressly granted remain reserved by TIM. This also applies to any future improvements or comparable further developments of the products.

9.1.2. The right to edit and translate work results, products, solutions, additional modules, documents, and the like remains exclusively reserved by TIM. In particular, the determination or editing of the source code is not permitted.

9.1.3. The copyright notices and trademarks affixed by TIM may not be edited or deleted.

9.1.4. The customer is not permitted to sell, transfer, or make available products, solutions, add-on modules, documents, or other confidential information in accordance with Section 7 to competitors of TIM, in particular other software manufacturers.

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10. Liability

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10.1.1. Neither party shall be liable for pure financial losses, lost profits, expected but unrealized savings, or damages arising from third-party claims against the customer.

10.1.2. Liability for data loss is excluded unless this has been agreed in writing in an operating service agreement regulating the obligations of both parties and defining a liability limit.

10.1.3. The contracting parties shall not be liable to the other party for damages attributable to circumstances beyond their control. This applies in particular to damages caused by the actions of third parties (such as hacking) or attributable to force majeure. TIM shall not be liable for damages caused by the customer's own actions, the network environment used by the customer, or other circumstances within the customer's sphere of influence.

10.1.4. If the customer fails to fulfill its obligations to cooperate as described herein to the agreed extent, TIM shall not be liable for any damages resulting from this failure.

10.1.5. TIM shall be released from all obligations under the agreement if program changes are made to the software programs covered by the contract without TIM's prior consent or if the products are not used for their intended purpose.

10.1.6. Furthermore, the contracting parties shall only be liable in the event of a breach of an essential provision of the present contract. The amount of liability for each event causing damage is limited to the order value.

10.1.7. Claims for damages shall become time-barred in accordance with the statutory provisions, but at the latest one year after the start of the statutory limitation period.

10.1.8. The limitations of liability under this section shall not apply in cases of intent, gross negligence, injury to life, limb, or health, or insofar as the Product Liability Act applies.‍

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11. Terms of payment

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11.1.1. Unless otherwise agreed, one-time payments shall be invoiced after the service has been rendered, and ongoing payments shall be invoiced in advance. Software licenses shall be invoiced after installation, provision of a download link, or transmission of the access data. Invoice amounts are payable without any deductions within 14 days of the invoice date. For partial invoices or advance payments, the payment terms specified for the entire order shall apply analogously.

11.1.2. Travel expenses for projects within a radius of up to 100 km from the place of performance to the customer's location are included in the daily rate. From 101 km, travel expenses will be charged at cost. Travel time will generally be compensated at half the daily rate.

11.1.3. Unless otherwise agreed, the invoice amount must be transferred to a bank account specified by TIM on the invoice. Payments are only considered to have been made once they have been credited to the agreed account. The customer bears the risk of incorrect or delayed transfers.

11.1.4. Unless expressly stated otherwise, all prices are in euros and exclude value added tax (VAT).

11.1.5. The customer shall be in default without further notice if they fail to meet the agreed payment deadlines. If payment is not made even after TIM has issued a reminder and granted a reasonable grace period, TIM shall be entitled to withdraw from the agreement.

11.1.6. If the customer defaults on a payment, the provisions on reminders and default interest shall apply in accordance with the applicable legal basis. If the customer exceeds the payment deadline by more than 30 days, TIM shall be entitled to suspend all services. TIM shall also be entitled to demand immediate payment for all services already rendered, regardless of any payment deadlines.

11.1.7. Taxes (in particular VAT) and other levies shall be charged in accordance with the applicable legal provisions. If the tax authorities subsequently impose additional taxes or levies, these shall be borne by the customer.

11.1.8. For deliveries and services within the European Union (EU), the customer shall provide their VAT identification number prior to the transaction.

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12. Delivery and delivery time

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12.1.1. Unless otherwise agreed, delivery shall be made by providing a download link or transmitting the access data. The delivery date shall be the day on which the customer receives the download link or access data.

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13. Other

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13.1. Retention

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13.1.1. In the event of a defect and/or damage, the customer is not entitled to make the services to be provided by him dependent on the rectification of the defect and/or damage or on the provision of other services by TIM.

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13.2. Expiry of claims

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13.2.1. All claims of the customer in connection with the contractual relationship shall lapse unless they are asserted in writing to TIM within six months of their occurrence.

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13.3. EWritten form

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13.3.1. Any agreement entered into, amended, supplemented, or terminated between the contracting parties must be in writing and signed by both contracting parties in order to be valid. This also applies to amendments and supplements as well as to the cancellation of this written form clause itself.

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13.4. Assignment, transfer, pledging

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13.4.1. The assignment or pledging of rights and/or the transfer of obligations arising from the contractual relationship with TIM requires the written consent of TIM.

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13.5. Severability clause

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13.5.1. Should individual provisions of these General Terms and Conditions be invalid or void, this shall not affect the validity of the remaining provisions. Invalid provisions shall be replaced by the parties with a legally valid provision that best achieves the economic purpose of the contractual terms and conditions and/or other agreements intended by the invalid provision.

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14. Applicable law and place of jurisdiction

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14.1.1. The place of performance and jurisdiction for the entire contractual relationship between the customer and TIM is Munich. The UN Convention on Contracts for the International Sale of Goods and the conflict of laws rules under the international private law of the respective country are excluded.

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