Terms & Conditions
1. GENERAL | SCOPE
1.1 These timeinvest End User License Terms (“Terms”) apply to all contracts between timeinvest mpm GmbH, Brunnenstraße 3, 10119 Berlin, Germany (“timeinvest”) and its customers who are business owners (Unternehmer) within the meaning of § 14 German Civil Code (“Customers”) to whom timein-vest provides access to its Services.
1.2 These Terms shall govern each ordering document or any online, e-mail or in-app ordering process that references these Terms (each an “Order”). The terms of each Order shall incorporate these Terms and shall form a separate services contract with respect to the Services (as defined below) under that Order (a “Services Contract”).
1.3 These Terms shall also apply as a framework agreement for future contracts with the same Custom-er without timeinvest being required to refer to them in each individual case. These Terms shall be deemed to be confirmed by Customer at the latest when timeinvest provides the Services.
1.4 These Terms apply to the exclusion of all others. Different, conflicting or supplementary standard terms of business of Customer shall only become part of the Services Contract if and to the extent that timeinvest has consented to their application in writing.
1.5 Individual agreements made in writing with Customer in specific cases (including ancillary agree-ments, supplementary agreements and amendments) shall take priority over these Terms.
1.6 Where these Terms mention the terms ‘written’, ‘in writing’, ‘written form’ or similar, this shall refer to ‘in writing’ in the sense of § 126 German Civil Code. The electronic exchange of copies of signed documents shall suffice in this regard whereas the exchange of simple e-mails shall not be sufficient.
1.7 References herein to the application of statutory provisions shall be for clarification purposes only. Consequently, statutory provisions shall apply even without such clarification provided that they are not directly amended by or expressly excluded in these Terms.
2. LICENSE GRANT
2.1 Subject to the terms and conditions of the Services Contract, timeinvest grants to Customer, during the Initial Service Term and any Renewal Service Term, a non-exclusive, non-transferable, non-sublicensable world-wide right and license to use the timeinvest software which is offered as soft-ware-as-a-service including any related websites, spaces, services, applications and plug-ins as des-ignated in the Order (collectively the “Services”) for internal business purposes only (“License”). The number of Licenses is stated in the Order. The Services are offered as prescribed by the timeinvest documentation located at an URL further specified by timeinvest or attached as an exhibit to the Or-der (as it may be updated from time to time, the “Documentation”).
2.2 Customer may permit its employees to use the Services (collectively “Permitted Users” and any individual using the Services a “User”) provided that (A) Customer has obtained a License for each such User; (B) Customer shall procure that such Users comply with these Terms and Customer shall remain responsible and liable towards timeinvest for all acts and omissions of such Users; and (C) the Services are used solely for the benefit of Customer.
3. LICENSE RESTRICTIONS
3.1 Customer shall not (and shall not permit any third party to) directly or indirectly: (A) sublicense, sell, resell, transfer, assign, distribute, share, lease, rent, make any external commercial use of, out-source, use on a timeshare or service bureau basis, or use in an application service provider or man-aged service provider environment, or otherwise generate income from the Services; (B) copy the Services onto any public or distributed network; (C) decompile, reverse engineer or disassemble any portion of the Services, or otherwise attempt to discover any source code, object code or underlying structure, ideas, know-how or algorithms or other operational mechanisms of the Services, in each case, unless permitted by mandatory statutory law; (D) modify, adapt, translate or create derivative works based on all or any part of the Services (except to the extent expressly permitted by timeinvest or authorized within the Services); (E) modify any proprietary rights notices that appear in the Ser-vices or components thereof; (F) use any Services in violation of any applicable laws and regulations (including any export laws and restrictions, national security controls and regulations) or outside of the license scope set forth in Clause 2; (G) configure the Services to collect (i) any data that is defined as sensitive personal data or ‘special categories of data’ within the meaning of the EU General Data Pro-tection Regulation or any applicable national data protection law or regulation; (ii) passwords or other authentication credentials; (iii) any payment or other financial data, biometric data or genetic data; or (iv) any data relating to a person under the age of 16 years (collectively, “Prohibited Data”); or (H) use the Services to (i) store, download or transmit infringing, libelous, or otherwise unlawful or tortious material, or malicious code or malware; or (ii) engage in phishing, spamming, denial-of-service attacks or other fraudulent or criminal activity; (iii) interfere with or disrupt the integrity or performance of third party systems, or the services or data contained therein; (iv) attempt to gain unauthorized access to the Services or timeinvest’s systems or networks; or (v) perform, or engage any third party to per-form, penetration testing, vulnerability assessments or other security assessments.
3.2 Customer shall not export or re-export, directly or indirectly, any Services or technical data or any copy, portions or direct product thereof in breach of any applicable laws and regulations. In particular, Customer and its Affiliates shall comply with the sanctions imposed by the Federal Republic of Ger-many, the European Union, the United Nations and with the applicable federal laws of the United States of America, in each case, insofar as this does not result in a violation of or a conflict with § 7 of the German Foreign Trade and Payments Ordinance (Außenwirtschaftsverordnung) or a similar ap-plicable anti-boycott statute. Customer shall, at its own expense, obtain all necessary customs, im-port, or other governmental authorizations and approvals.
3.3 The Services may only be used by Customer as prescribed in the Documentation.
3.4 Although timeinvest has no obligation to monitor Customer’s use of the Services, timeinvest may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of this Clause 3.
4. TRIAL USE
timeinvest may grant Customer access to the Services as part of a trial evaluation for a period de-termined by timeinvest in its sole discretion (“Trial Use”). timeinvest shall have the right to down-grade, limit or otherwise modify the Services provided for Trial Use at any time without notice, and no guarantee, indemnity, Maintenance or Support obligations of timeinvest shall apply to Trial Use. timeinvest has the right to immediately revoke and terminate any Trial Use at any time. Trial Use is not a guarantee of future product features and should not be relied upon in making any purchasing de-cisions.
5. CUSTOMER’S RESPONSIBILITIES
5.1 Customer represents and warrants that Customer and its Permitted Users shall use the Services only in full compliance with all applicable laws and regulations.
5.2 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems and networking (collectively “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge.
5.3 Customer shall be solely responsible for the content of all data and any other material displayed, posted, uploaded, stored, exchanged or transmitted by Customer or any User on or through the Ser-vices (“Content”).
5.4 timeinvest cannot control the information submitted by Customer or Users during their use of the Services and cannot guarantee the accuracy of any information submitted. timeinvest may, without notice or liability, investigate any complaints or suspected violations of the Services Contract that come to its attention and may take any action that it believes is appropriate, including, but not limited to, rejecting, refusing to post, or removing any Content, or other data, or restricting, suspending, or terminating Customer’s or any User’s access to the Services.
5.5 Customer shall keep the information in the Customer account up to date and correct. Customer shall notify timeinvest promptly of any unauthorized use of any password or account or any other known or suspected breach of security or misuse of the Services.
6. MAINTENANCE AND SUPPORT
6.1 Subject to Customer’s payment of the Service Fees set forth in the applicable Order, timeinvest shall provide Maintenance and Support for the Services to the extent specified in the Order. “Support” is defined as timeinvest’s obligation to respond to support requests of Customer with regard to the Ser-vices by documenting and troubleshooting issues and providing technical and non-technical assis-tance. “Maintenance” or “Maintain” means timeinvest’s obligations with regard to the Services relat-ed to error resolution, bug fixes and the provision of updates and upgrades made generally available by timeinvest in its sole discretion.
6.2 Support is provided via e-mail through email@example.com from Monday to Friday 9:00 am to 5:00 pm (CET), excluding public holidays in the State of Berlin, Germany.
6.3 timeinvest shall use reasonable efforts consistent with prevailing industry standards to Maintain the Services in a manner which minimizes errors and interruptions in the Services.
6.4 Customer may notify timeinvest of any errors via firstname.lastname@example.org. timeinvest shall begin correcting any errors within the following reaction times and undertakes to rectify the notified errors within the following restoration times subject to (A) Customer providing a detailed description of the error and its reproducibility, and (B) depending on the priority of the error to be reasonably determined by timeinvest in its sole discretion:
|Priority||Criteria||Reaction Time||Restoration Time|
|Urgent||Services interrupted. No User can use the core functions of the Services and no reasonable workaround exists.||12 hours||24 hours|
|High||Services significantly impaired. One or more Users cannot use certain of the core functions of the Services.||24 hours||48 hours|
|Medium||Services insignificantly impaired. A non-core function of the Services cannot be used properly. Only one or few Users affected.||48 hours||72 hours|
6.5 The reaction time begins with receipt of the error notification by timeinvest. The reaction time shall only run from Monday to Friday 9:00 am to 5:00 pm (CET), excluding public holidays in the State of Berlin, Germany, and shall be deemed to have been observed if timeinvest initiates measures to recti-fy the notified error during the reaction time period.
6.6 If timeinvest’s analysis shows that an error notified by Customer has actually not occurred or is not attributable to the Services, timeinvest may charge Customer for the costs demonstrably incurred by timeinvest in connection with such analysis.
6.7 The fees for Maintenance and Support are included in the Service Fees.
7. AVAILABILITY OF THE SERVICES
7.1 Subject to Customer’s payment of the Service Fees set forth in the applicable Order, timeinvest shall make the Services available to Customer in accordance with this Clause 7.
7.2 timeinvest shall use reasonable endeavors to ensure, that the Services are available to Customer over the internet, however no less than 99.5% per year (based on twenty-four (24) hours a day and seven (7) days a week) excluding any temporary unavailability for scheduled or for unscheduled Maintenance, either by timeinvest or by third-party providers, and unavailability for causes beyond timeinvest’s reasonable control. timeinvest shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.
7.3 Customer is aware and acknowledges that Customer-side access to the Services such as an internet access cannot be guaranteed and that timeinvest shall not be liable for deficiencies in Customer’s own internet connections or equipment.
8. PROFESSIONAL SERVICES
8.1 Subject to these Terms hereof (including payment of any applicable Service Fees set forth in the Order), timeinvest shall provide additional professional services if and to the extent described in an Order (“Professional Services”).
8.2 Unless specified otherwise in the relevant Order, the Professional Services are services within the meaning of § 611 German Civil Code. The Professional Services shall be rendered on a one-time fee or a time and materials basis. If the Professional Services purchased have been consumed, timein-vest shall stop the Professional Services until additional Professional Services have been ordered.
8.3 Customer agrees to provide reasonable cooperation and information as ne¬cessary to permit timein-vest to perform the Professional Services. With respect to timeinvest’s staff providing Professional Services to Customer no lease of personnel (Arbeitnehmerüberlassung) shall take place. Instructions to timeinvest’s staff must not be given by Customer’s staff or representatives but only by timein-vest’s representatives. Issues arising with timeinvest’s staff which affect Customer and/or the Pro-fessional Services to be provided must be addressed by the relevant Customer’s contact person to the relevant timeinvest’s contact person. timeinvest’s staff shall not be integrated into the operational organization of Customer. timeinvest shall in its sole discretion decide how and where to utilize its re-sources (including timeinvest’s staff) and plan its performances under the Services Contract (and the related Order) in accordance with the agreed contents and limits of the Professional Services.
8.4 Customer shall reimburse timeinvest for travel and other expenses (at cost) incurred in connection with the Professional Services (if any).
8.5 Professional Services shall be performed on business days (a business day means Monday through Friday, excluding national holidays, during normal working hours, in the location where the Profession-al Services are provided).
8.6 The cooperation of the Parties hereunder, in particular with regard to Professional Services, builds upon mutual trust between timeinvest and Customer. Therefore, during the Initial Service Term and any Renewal Service Term, and in each case for a period of twelve (12) months thereafter, without timeinvest’s prior written approval, Customer shall not solicit for employment or consultancy any of timeinvest’s employees who participated in the performance of Professional Services.
9. CONFIDENTIALITY | CUSTOMER DATA
9.1 Customer and timeinvest understand that they have or may disclose to each other business, tech-nical or financial information relating to their business (the “Confidential Information”). Confidential Information of timeinvest includes but is not limited to non-public information regarding features, func-tionality and performance of the Services. Confidential Information of Customer includes non-public data provided by Customer to timeinvest to enable the provision of the Services or during the use of the Services (“Customer Data”).
9.2 Customer and timeinvest shall take reasonable precautions to protect each other’s Confidential Infor-mation, and not to use (except in performance of the Services or as otherwise permitted herein) or di-vulge to any third person any such Confidential Information. This shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that Customer or timeinvest respectively can document (A) is or becomes generally available to the public; or (B) was in Customer’s or timeinvest’s respective possession or known by them prior to receipt; or (C) was rightfully disclosed to Customer or timeinvest respectively without restriction by a third party; or (D) was independently developed without use of any Confidential Information or (E) is required to be dis-closed by law.
9.3 Notwithstanding anything to the contrary, timeinvest shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Ser-vices and related systems and technologies (including, without limitation, information concerning the Customer Data and data derived therefrom). timeinvest shall be free (during and after the term hereof) to use such information and data in aggregate or other de-identified form to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Ser-vices and other timeinvest offerings.
10. PROPRIETARY RIGHTS | TRADE NAMES AND LOGOS | FEEDBACK
10.1 timeinvest and its suppliers own and shall retain all proprietary rights, including all copyright, database rights, patent, trade secret, trademark and all other intellectual property rights and technical solutions, in and to the Services. Customer acknowledges that the rights granted under the Services Contract do not provide Customer with title to or ownership of the Services.
10.2 Customer shall retain all right, title and interest in and to the Customer Data and any Content, as well as any data that is based on or derived from the Customer Data and any Content. Customer grants to timeinvest during the term of the Services Contract a non-exclusive, non-transferable, sublicensa-ble, worldwide and unlimited right and license to use the Customer Data and any Content solely in connection with providing the Services. timeinvest shall have no liability for the Customer Data and any Content.
10.3 timeinvest reserves the right to implement new versions and upgrades of the Services including, but not limited to, changes that effect modifications to the design, operational method, technical specifi-cations, systems, and other functions, etc. of the Services, at any time without prior notice.
10.4 Customer may from time to time provide timeinvest with suggestions for new features or functionali-ties of and with feedback regarding the Services. timeinvest shall be free to take such suggestions or feedback into consideration. Customer grants to timeinvest, without charge, the fully paid-up, perpet-ual, sublicensable right to exploit such feedback for any purpose.
11. DATA PROTECTION
Customer and timeinvest shall at all times comply with the requirements of any applicable privacy and data protection legislation. Customer shall remain the controller regarding personal data processed by timeinvest as part of the Services and timeinvest shall be a processor in this regard. If applicable pri-vacy and data protection legislation requires a specific data processing contract to be concluded be-tween Customer and timeinvest, the additional provisions laid down in Annex A (timeinvest Data Processing Terms, DPT) to these Terms shall apply.
12. PAYMENT OF FEES
12.1 Customer shall pay timeinvest the fees described in the Order for the Services and Professional Ser-vices in accordance with the terms therein (the “Service Fees”).
12.2 timeinvest reserves the right to change the Service Fees for the following Renewal Service Term upon at least sixty (60) days prior to the end of the Initial Service Term or the end of the then current Renewal Service Term.
12.3 Unless otherwise specified, Customer shall make all payments via the payment options offered by timeinvest. In the case of billing through invoices, full payment must be received by timeinvest four-teen (14) days after the mailing date of the invoice.
12.4 Following notice in text form under § 126b Ger¬man Civil Code (simple email sufficient), timeinvest shall be entitled to suspend Customer’s access to the Services in accordance with § 320 German Civil Code if payments are not received by timeinvest within fourteen (14) days of the due date.
12.5 All Service Fees are exclusive of, and Customer shall pay, all taxes, duties, and assessments, how-ever designated, which are levied or imposed upon such Service Fees, excluding only taxes based on timeinvest net income.
13. TERM | TERMINATION
13.1 Subject to earlier termination as provided below, the Services Contract begins on the date specified in the Order (“Effective Date”) and shall remain in effect for an initial term as specified in the Order (“Ini-tial Service Term”). The Initial Service Term shall automatically and continuously renew for additional periods, each of which correspond with the Initial Service Term (“Renewal Service Term”), unless ei-ther party requests termination of the Services Contract at least fourteen (14) days prior to the end of then-current term.
13.2 Neither Customer nor timeinvest shall be entitled to terminate the Services Contract for convenience with effect prior to the end of the Initial Service Term or any Renewal Service Term (Ausschluss der ordentlichen Kündi¬gung). Customer’s and timeinvest’s right to immediately terminate the Services Contract for good cause (außerordentliche Kündigung aus wichtigem Grund) shall remain unaffected. Such good cause shall in particular exist, (A) if a party commits a material breach of the Services Contract, and such breach has not been cured within thirty (30) days after receipt of written notice thereof; (B) Customer is in default of payment by more than forty-five (45) days; (C) Customer breaching the use restrictions under Clause 3; or (D) Customer ceases its due payments or suffers a significant deterioration in its asset situation.
13.3 Upon termination of the Services Contract or lapse of its Initial Term or Renewal Service Term taking effect, timeinvest will suspend Customer’s access to the Services and delete any Content (if any) in the possession of timeinvest after a period of thirty (30) days. Customer shall be solely responsible for extracting all such Content before any suspension. Upon Customer’s request and as part of the Professional Services, timeinvest may choose to extract and/or manipulate Customer’s Content against an additional Service Fee.
14. LIMITED WARRANTY
14.1 Customer has checked that the specification of the Services as described in the Documentation meets his needs and wishes. Customer is aware of the essential functionalities and features of the Services. The extent, nature and quality of the goods and services to be delivered by timeinvest are determined by these Terms, the Order, and the Documentation. Any other information or requirements do only form part of the Services Contract if Customer and timeinvest so agree in writing or if timein-vest so confirms in writing. Product descriptions, illustrations, test programs, etc. represent mere service specifications but do not constitute guarantees (Garantien) or agreements on certain specifi-cations (Beschaffenheitsvereinba¬rungen). In order to be valid, an agreement on a guarantee requires the written confirmation from a director of timeinvest.
14.2 timeinvest warrants (gewährleistet) that the Services will, in all ma¬terial respects, conform to the functionality described in then-current Documentation for the applicable Services version. In case of a breach of this warranty timeinvest shall be required to use commercially reasonable efforts to modify the Services to conform in all material respects to the Do¬cu¬mentation, and if timeinvest is unable to materially restore such functionality within thirty (30) days from the date of written notice of said breach, Customer shall be en¬titled to terminate the Services Contract upon written notice and receive a pro-rata refund of the unused Services Fees which have been paid in advance (if any) for unused access to the Services. Customer must notify timeinvest in writing of any warranty breaches and Customer must have installed and configured the Services in accordance with the Documentation to be eligible for the foregoing remedy. Any no-fault liability (verschuldensunabhängige Haftung) of timeinvest for the existence of initial errors (anfängliche Mängel) under § 536a German Civil Code shall be excluded. Customer’s claims for damages for a breach of this warranty are subject to the lim-itations set forth in Clause 16.
14.3 Under no circumstances shall Customer be entitled to obtain the source code of the Services.
15.1 Without prejudice to any other liability of Customer under contract or statutory law, Customer shall defend, indemnify and hold harmless, at its expense, timeinvest and its Affiliates, its suppliers and resellers against any third party claim to the extent such claim arises from or is made in connection with Customer’s breach of Clause 3 or otherwise from Customer’s use of Services, and Customer shall pay all costs and damages finally awarded against timeinvest by a court of competent jurisdic-tion as a result of any such claim.
15.2 In connection with any claim for indemnity under this Clause 15, timeinvest must promptly provide Customer with notice of any claim that timeinvest believes is within the scope of the obligation to in-demnify, provided, however, that the failure to provide such notice shall not relieve Customer of its obligations under this Clause 15, except to the extent that such failure materially prejudices Custom-er’s defense of such claim. timeinvest may, at its own expense, assist in the defense if it so choos-es, but Customer shall control the defense and all negotiations related to the settlement of any such claim. Any such settlement intended to bind timeinvest shall not be final without timeinvest’s written consent, which consent shall not be unreasonably withheld, conditioned or delayed.
15.3 timeinvest agrees at its expense to defend Customer against (or, at timeinvest’s option, settle) any third-party claim to the extent such claim alleges that the Services infringe or misappropriate any pa-tent, copyright, trademark or trade secret of a third party, and timeinvest shall pay all costs and dam-ages finally awarded against Customer by a court of competent jurisdiction as a result of any such claim. In the event that the use of the Services is, or in timeinvest’s sole opinion is likely to become, subject to such a claim, timeinvest, at its option and expense, may (A) replace the applicable Ser-vices with functionally equivalent non-infringing technology; (B) obtain a license for Customer’s con-tinued use of the applicable Service; or (C) immediately terminate the Services Contract in whole or in part and provide a pro-rata refund of the Service Fees that have been paid in advance for the applica-ble Services (beginning on the date of termination). The foregoing indemnity obligation of timeinvest shall not apply: (i) if the Services are modified by Customer or any User; (ii) if the Services are com-bined with other non-timeinvest products, applications, or processes, but solely to the extent the al-leged infringement is caused by such combination; or (iii) to any unauthorized use of the Services. The foregoing shall be Customer’s sole remedy with respect to any claim of infringement of third party intellectual property rights and trade secrets.
16. LIMITATION OF LIABILITY
16.1 timeinvest shall be unrestrictedly liable for (A) injury to life, body or health caused by timeinvest, its legal representatives (gesetzliche Vertreter) or assistants in performance (Erfüllungsgehilfen); (B) damage caused intentionally (vorsätzlich) or with gross negligence (grob fahrlässig) by timeinvest, its legal representatives or executive staff; (C) damage caused intentionally by timeinvest’s assistants in performance not mentioned in (B); (D) damage resulting from the absence of any guaranteed (gar-antiert) characteristics; and (E) claims under the German Product Liability Act (Produkthaftung-sgesetz).
16.2 timeinvest shall be liable for damage resulting from the breach of its primary obligations (Kardinal-pflichten) hereunder by timeinvest, its legal representatives, senior executives or assistants in per-formance. Primary obligations are such basic duties which form the essence of the Services Con-tract, which were decisive for the conclusion of the Services Contract and on the performance of which Customer may rely. If the breach of such primary obligation was caused (A) through simple negligence by timeinvest, its legal representatives or executive staff; or (B) through simple or gross negligence by timeinvest’s assistants in performance not mentioned in (A), then timeinvest’s ensuing liability shall be limited to the amount which was foreseeable by timeinvest at the time the respective Service was performed.
16.3 Subject always to Clauses 16.1 and 16.2, timeinvest shall not be liable for damage resulting from the breach of non-primary obligations through (A) simple negligence of timeinvest, its legal representatives or executive staff; or (B) simple or gross negligence of timeinvest’s assistants in performance not mentioned in (A).
16.4 timeinvest shall not be liable for any loss, damage or harm suffered by Customer that is directly or indirectly caused by Customer’s unauthorized use of the Services to process Prohibited Data.
16.5 timeinvest shall be liable for loss of data only up to the amount of typical recovery costs which would have arisen had proper and regular data backup measures been taken by Customer.
16.6 Any other liability of timeinvest not covered by this Clause 16 is excluded on the merits.
17. IT SECURITY
17.1 Customer shall ensure that User identities, passwords, and equivalent obtained by Customer in con-junction with registration for the Services are stored and used in a secure manner and cannot be ac-cessed and thereby used by third parties. Customer shall be liable for any unauthorized use of the Services.
17.2 Where it is suspected that any unauthorized person has become aware of a User identity and/or password, Customer shall immediately inform timeinvest thereof and also change such User identity and/or password.
17.3 Customer shall be liable for losses or damage incurred by timeinvest where Customer intentionally or negligently reveals a user identity/password to a third party or where a user identity and password otherwise become known to an unauthorized party, unless Customer notifies timeinvest immediately upon suspicion that such event has occurred.
17.4 timeinvest shall adopt reasonable measures to ensure that the security of the Services meet relevant industry standards.
18. NO SET-OFF | LIMITATION OF RIGHT OF RETENTION
Customer may only invoke a right to set-off and assert a right of retention to the extent that its claims have been (A) finally established by a court of law; (B) are uncontested; or (C) have been acknowl-edged by timeinvest.
19. ASSIGNMENT | NOVATION
19.1 Customer may not assign (übertragen) the Services Contract without the prior written approval of timeinvest and any purported assignment in breach of this Clause 19 shall be void. timeinvest may at its discretion assign, or transfer to third parties the Services Contract and/or any associated rights in whole or in part.
19.2 Customer shall, at timeinvest’s request, promptly, and in any event within fourteen (14) days, enter into a novation agreement in such form as timeinvest shall reasonably specify in order to enable timeinvest to exercise its rights pursuant to this Clause 19.
Should any provision of the Services Contract including the Order and these Terms be or become in-effective or invalid in whole or in part, the effectiveness and validity of the other provisions shall not be affected. Such ineffective or invalid provision shall be replaced by a provision which comes as close as legally possible to what the Parties would have agreed, pursuant to the meaning and purpose of the original provision and of the Services Contract if they had recognized the ineffectiveness or in-validity of the original provision. If the ineffectiveness or invalidity of a provision is based on the de-termination of a certain level of performance or a certain time (deadline or fixed date), such ineffective or invalid level or time shall be replaced by the level or time which comes as close as legally possible to the original level or time. The foregoing shall also apply to any possible omission in the Services Contract including the Order and these Terms that was not intended by the Parties. It is the express intention of the Parties that this savings clause does not just have the effect of shifting the burden of proof but that § 139 German Civil Code is entirely dispensed with.
21. ENTIRE AGREEMENT | CHANGES
21.1 The Services Contract including the Order and these Terms represent the entire agreement between Customer and timeinvest in respect of its subject matter and supersede and extinguish all prior nego-tiations, arrangements, understanding, course of dealings or agree¬ments made between the Parties in relation to its subject matter, whether written or oral.
21.2 Valid amendments or supplements to these Terms must be made in writing. The same shall apply to any agreement to deviate from or cancel this requirement of written form.
21.3 timeinvest may amend and/or update these Terms with future effect from time to time and as neces-sary for technical, economic or legal reasons. Any revision of these Terms shall be announced to Customer in text form (simple email shall suffice) no later than six (6) weeks before their proposed ef-fective date. Customer may either approve or object to the revision before their proposed effective date. The revision shall be deemed approved by Customer, unless Customer objects to the revision before their proposed effective date. timeinvest shall expressly inform Customer thereof in the re-spective announcement.
22. GOVERNING LAW | JURISDICTION
22.1 The Services Contract and any issues, disputes or claims (whether contractual or non-contractual) arising out of or in connection with it or its subject matter or formation shall be governed by and con-strued in accordance with the laws of the Federal Republic of Germany. The United Nations Conven-tion on Services Contracts for the International Sale of Goods (CISG) shall not apply.
22.2 The courts of Berlin (Germany) shall have exclusive jurisdiction to settle any dispute or claim (whether contractual or non-contractual) that arises out of or in connection with the Services Contract or its subject matter or formation.
23.1 The person signing or otherwise accepting the Order and these Terms for Customer represents that it is duly authorized by all necessary and appropriate corporate action to enter the Services Contract on behalf of Customer.
23.2 timeinvest shall be entitled to retain subcontractors, including third party software suppliers, for the performance of any of its obligations in accordance with the Services Contract.
23.3 Customer shall not assign (abtreten) any of its rights or obligations under the Services Contract and these Terms without the prior written consent of timeinvest.
23.4 No agency, partnership, joint venture, or employment is created as a result of the Services Contract and Customer does not have any authority of any kind to bind timeinvest in any respect whatsoever.
timeinvest mpm GmbH
District Court of Charlottenburg (Berlin), Germany HRB 205483
Annex A to timeinvest End User License Terms
timeinvest Data Processing Terms
1.1 These timeinvest Data Processing Terms (“DPT”) shall apply to the processing of personal data relat-ed to the Services Contract between timeinvest and Customer.
1.2 Subject to these DPT, timeinvest provides the following data processing services to and on behalf of Customer (“Data Processing”): Online meeting evaluation services provided as software as a ser-vice. Further details can be found in the Services Contract.
1.3 timeinvest may, in the course of the Data Processing, gain access to, obtain knowledge of or process the following personal data:
|Type of Personal Data||Categories of Data Subjects|
|Meeting data (meeting ID, meeting name, meeting description, begin and end of meeting, emails and names of attendees, availability of attendees) and meeting evaluation data (emails, evaluation score, evaluation statement). Meeting attendees and timeinvest users.||Further details can be found in the Services Contract.|
2. GENERAL RIGHTS AND OBLIGATIONS OF THE PARTIES
2.1 The Data Processing shall be conducted by timeinvest on behalf of Customer. Customer shall be responsible for compliance with applicable data protection laws.
2.2 timeinvest may process personal data only within the scope of the Services Contract and in accord-ance with the instructions of Customer, unless required otherwise by the laws of the European Union or its Member States to which timeinvest is subject. In particular, timeinvest shall only correct, delete or limit the processing of personal data according to the instructions of Customer. In the event that an affected data subject addresses timeinvest directly in such regard, timeinvest shall, where reasonably possible, immediately forward such request to Customer.
2.3 Customer shall issue verbal instructions to timeinvest only in urgent cases and immediately thereafter confirm such instructions at least in text form.
2.4 timeinvest shall process personal data only within the territory of a member state of the European Union or of a signatory state of the Agreement on the European Economic Area. Any transfer and processing of personal data to third countries shall require the prior written consent of Customer and shall only take place if the conditions of Art. 44 et. seq. General Data Protection Regulation of the Eu-ropean Union (“GDPR”) are met.
2.5 timeinvest shall regularly audit its internal processes and data protection security mechanisms for compliance with applicable data protection laws.
2.6 If required by law, timeinvest shall appoint a data protection officer in writing. timeinvest shall notify Customer of the contact details of such data protection officer to allow Customer to directly contact such data protection officer.
2.7 timeinvest shall, within its capabilities, assist Customer in fulfilling Customer’s obligations under Art. 12 through 22 GDPR and Art. 32 through 36 GDPR. The costs thereof shall be borne by Customer.
2.8 timeinvest shall only delegate the Data Processing to such employees who are bound by confidentiali-ty obligations or who are subject to an appropriate statutory duty of confidentiality. Persons subordi-nated to timeinvest, having access to personal data of Customer, shall process such data exclusively in accordance with the instructions of Customer, unless such persons are legally obliged to process such data.
2.9 Upon completion of the Data Processing and upon termination of the Services Contract and any relat-ed agreement in their entirety, timeinvest shall, at the choice of Customer, and as far as timeinvest is not bound by statutory retention duties, either return all personal data as well as all documents, data and copies obtained in connection with these DPT to Customer, or upon the prior written consent of Customer, delete or destroy such personal data, documents, data and copies.
3. INFORMATION OBLIGATIONS
3.1 In the event that timeinvest becomes aware that an instruction of Customer violates any data protec-tion laws, timeinvest shall immediately notify Customer thereof. timeinvest shall be entitled to sus-pend the execution of such instruction until such instruction is confirmed or altered in writing by Cus-tomer.
3.2 timeinvest shall immediately notify Customer of control actions and measures of investigating and supervisory authorities, to the extent such measures are related to the Data Processing.
3.3 In the event that timeinvest becomes aware of any personal data breach in relation to these DPT, timeinvest shall immediately notify Customer thereof.
4. TECHNICAL AND ORGANIZATIONAL MEASURES
4.1 timeinvest shall implement technical and organizational measures for the protection of personal data appropriate to comply with the requirements of the GDPR, in particular measures ensuring confidenti-ality, integrity, availability and resilience of the systems and services used for the Data Processing.
4.2 timeinvest shall be entitled to replace any of the implemented technical and organizational measures at any time with alternative measures that provide a comparable level of protection.
5.1 Subject to this Clause 5, Customer consents to the subcontracting of the Data Processing by timein-vest to third parties (hereinafter “Subcontractors”). timeinvest shall inform Customer before com-missioning a Subcontractor. Customer may object to the commissioning of a Subcontractor on im-portant grounds of data protection law within seven (7) working days after being informed by timein-vest. If Customer does not object within such period, its consent shall be deemed given.
5.2 Customer hereby consents to the commissioning of Subcontractors by timeinvest as follows:
|Subcontractor’s Company||Business Address||Subcontractor’s Services||Location of Data Processing|
|Hetzner Online GmbH||Industriestr. 25
5.3 timeinvest shall impose its data protection obligations under these DPT on any Subcontractor.
5.4 Clauses 5.1 and 5.3 of these DPT shall apply mutatis mutandis to the replacement of any Subcon-tractor by timeinvest and to the further subcontracting of the Data Processing to another third party by Subcontractor.
Unless agreed otherwise in writing, these DPT shall apply until the Services Contract and any related agreement are terminated or expire in their entirety.
7. PROOF OF COMPLIANCE
7.1 timeinvest shall allow Customer to verify timeinvest’s compliance with these DPT (including the im-plementation of technical and organizational measures pursuant to Clause 4 of these DPT).
7.2 timeinvest may demonstrate compliance with these DPT by providing appropriate test reports, certifi-cates, and data protection certificates issued by independent institutions, self-audits and reports of compliance with approved codes of conduct.
7.3 If necessary for the purposes laid down in Clause 7.1 of these DPT and, cumulatively, if compliance with these DPT cannot be demonstrated otherwise by timeinvest in accordance with Clause 7.2, timeinvest shall enable Customer to carry out, once per calendar year during normal business hours and without disrupting timeinvest’s business, inspections at timeinvest’s business premises. Such in-spections shall be announced by Customer at least fourteen (14) business days in advance and shall only be performed by independent external auditors. Such auditors shall not be entitled to gain access to company secrets, business secrets or confidential information of timeinvest or to any data which is not subject to these DPT. timeinvest may object to the appointment of an external auditor for good cause, in particular, where an auditor is a competitor of timeinvest. Customer shall bear the costs of any inspections and supporting actions of timeinvest hereunder (if any).