TimoCom - English -

General terms and conditions (GTC)

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. 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) Supplements and amendments of the agreement must be made in writing in order to be valid.

2. Object of contract

(1) TimoCom shall make a right of use to software available to the user against a remuneration to be periodically paid . The software grants the user access to the TimoCom user platform to the individually agreed extent. Excepted are times, in which the server used by TimoCom is not available owing to technical reasons or other reasons which cannot be influenced by TimoCom or TimoCom undertakes necessary service work on the server 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 shall make the software available to the user via a download link.
(3) The selection, procurement and use of necessary hardware 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 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. The use for other purposes, for example for fictitious offers, advertising notifications, general enquiries, set-up of data collections or any other means, which complicate or impede the use of the software for other users, harm a third party or violate the governing law or good morals, is not permitted.
(3) The data made available by the software may be extracted exclusively through the existing export or print function. An automated use of the software requires written consent from 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) 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 software 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.
(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 software enables the user to offer cargo space capacities and loads as well as to inspect the cargo space capacities and loads offered, for international road transport using the application TC Truck&Cargo®.
(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) Insofar as agreed, TC eMap® enables the online transmission of data for the map presentation and route calculation to the user. All map presentations are – as all maps – subject to constant changes and never represent a full depiction of the real situation. Therefore, TimoCom is not liable for the guarantee of the accuracy of the map presentations and other data. The service obligation of TimoCom is limited to the provision, processing and visualisation of the data for the user.
(2) The data and information presented in TC eMap®® are procured from third parties. Therefore, TimoCom reserves the right to cancel the contract in the event of incorrect and non-timely self-delivery unless the user proves the fault is with TimoCom.
(3) The programme searches for destinations according to the respective stated town names. Search results are possible with similar town names or multiple names mentioned. TimoCom is not liable for the correct automatic selection of the requested town by the programme. Neither does TimoCom assume any warranty for the correctness or completeness with regard to all related data such as postal codes, street data or other supplementary information. According to the status of technology, maps are subject to constant changes. No warranty is assumed for information nor that the maps have no faults nor for the condition of the maps.
(4) Map material and other related data (the maps) are procured from licensors. The maps are protected under copyright law. TimoCom grants the user a non-transferable, non-exclusive sub-licence for using such maps, which are used in the products of TimoCom, exclusively for the internal use by the user. The user may neither copy, fragment, extract, change or produce products derived from the maps. The user may neither derive, nor attempt to derive the source code, source files or the structure of the maps on the whole or in part, neither through reconstruction, fragmentation, decompilation or in other way. The user may not use the products for operating a service provider or for other purposes, which include the processing of maps by other persons or units. The user does not receive any property rights, which on the whole remain with the licensors. References to a copyright, source information or the reservation of title in or on the maps may not be changed, hidden or removed.
(5) Insofar as third party suppliers increase the prices which existed upon conclusion of the contract, for TimoCom, TimoCom reserves the right to increase the prices with regard to licences which are subject to costs for the user accordingly. The price increase shall become effective 2 weeks to the first day of the next month after receipt of the declaration. Should the price increase for the use of the TC eMap®® by TimoCom exceed 10% within a calendar year then the user is entitled to a termination without notice that can be exercised within 2 weeks after notification of the price increase.
(6) The contractual relationship with regard to licences which are liable to costs shall begin with the 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 notice by either party.

3d. Right of use TC eBid®

(1) The software grants the users access to the application TC eBid®, with which they can issue invitations to tender 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 is a user platform, which can be used to describe, collect, process and transmit orders for the preparation of the autonomous conclusion of the contract.
(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 term is at least 14 days. 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. 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.

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.

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.
(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. 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 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.
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 refusal to consent according to subclause 5 para. (5), (6) or (7) excludes the conclusion of the licence agreement.

6. Warranty and liability

(1) TimoCom exclusively guarantees that the software 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 software with IT environment at the user 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 software 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 software 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) of the wilful or grossly negligent cause by TimoCom,
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 an entrepreneur then the liability in the cases of the aforementioned para. 7 lit. a) and b) is limited with gross negligence to the typical damages which are foreseeable upon conclusion of the contract. For the loss of data, programmes and their restoration through use of the software 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.

7. Complaints

(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) 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.