General Terms and Conditions (GTC) of H. Timm Elektronik GmbH and customer information

I. Scope

  1. These General Terms and Conditions shall apply to all contracts concluded by H. Timm Elektronik GmbH, including software license and service contracts (such as training, consulting and software maintenance contracts).
  2. Other agreements and subsidiary agreements shall only be effective if they have been confirmed in writing by H. Timm Elektronik GmbH.
  3. General Terms and Conditions of the other contracting party (hereinafter referred to as “Customer”) shall not apply.

II. Conclusion of the contract

  1. Offers of H. Timm Elektronik GmbH are subject to change. A contract shall be deemed concluded when H. Timm Elektronik GmbH accepts an order from the Customer (offer).
  2. Software maintenance contracts refer to the software licenses specifically designated in the contract (main license, additional licenses and/or additional modules subject to a charge). Details are set forth under VII.
  3. The invoice for any training courses shall be sent at the same time as the registration confirmation. Only payments received before the start of the training shall entitle the participant to take part in the training. Details on training courses are set forth under VI.

III. Prices, shipping, terms of payment

  1. All prices of H. Timm Elektronik GmbH are quoted on an ex warehouse Reinbek basis plus the value-added tax applicable at the date of performance.
  2. Shipment shall be effected for the account and at the risk of the Customer. This also applies to return shipments.
  3. Delivery and service dates or deadlines shall only be binding for H. Timm Elektronik GmbH if they have been expressly designated as binding in writing by H. Timm Elektronik GmbH. The adherence to agreed delivery and service dates requires that payments or other obligations of the Customer are fulfilled in time. If this does not happen, the deadlines shall be extended accordingly for H. Timm Elektronik GmbH. If the deadlines are not met for other reasons, the Customer shall be entitled to grant a reasonable extension of time in writing with the threat of refusal and, after this extension of time has expired unsuccessfully, to withdraw from the order with regard to the delivery and service in default. H. Timm Elektronik GmbH is entitled to effect delivery ahead of schedule. It may withdraw from the contract if an upstream supplier does not deliver as agreed or does not deliver on time and H. Timm Elektronik GmbH is not responsible for this.
  4. Invoices shall be due for payment 10 days after receipt of invoice without deductions. In case of doubt, invoices shall be deemed received three working days after the invoice date. In the event of default of acceptance by the Customer, payment shall be due when the delivery is offered. The Customer is not entitled to offset counterclaims against the payment claims of H. Timm Elektronik GmbH, unless its counterclaim is undisputed or has been legally established. If the Customer is in default, H. Timm Elektronik GmbH shall be entitled, without prejudice to other rights, to withhold all deliveries or services and to charge default interest in the amount of nine percentage points above the base interest rate plus a lump sum in the amount of € 40.00 (see Section 288 paragraph 5 of the German Civil Code [BGB]). The rights of use for the respective goods delivered shall only be granted when all due claims have been satisfied in full. This shall not apply if H. Timm Elektronik GmbH gives its prior written consent to an earlier use. The Customer shall not be entitled to pledge or transfer the software by way of security.
  5. If the service cannot be rendered in whole or in part for reasons for which the Customer is responsible, the Customer shall nevertheless remain obligated to make payment less effectively saved expenses.
  6. Unless further specified in the contract, ancillary costs, such as travel expenses and hotel expenses, shall always be refunded separately. The amount of the ancillary costs is listed in detail on the price list of H. Timm Elektronik GmbH valid at the time or arises from the costs actually incurred.
  7. The value added tax as well as any other legal charges shall be invoiced separately in the legal amount valid at the time. This also applies to public charges for services abroad.
  8. H. Timm Elektronik GmbH is entitled to withhold its performance as long as a due claim is not satisfied even after a demand for payment.
  9. With regard to the software maintenance contracts, the remuneration shall be charged in advance for one calendar year at the beginning of each year. If the software maintenance contract begins during a current calendar year, the remuneration for the short calendar year shall accrue pro rata temporis. Special services, travel expenses and out-of-pocket expenses shall be paid in accordance with the cost rates of H. Timm Elektronik GmbH applicable at the time.
  10. Personnel services (personnel, training and consulting services) shall be charged at the fixed price specified in the contract or on a time and material basis after completion or acceptance of the services, unless a different invoicing method is agreed in the contract. Details are set forth under VI. If the Customer makes use of further services of H. Timm Elektronik GmbH, regardless of whether agreed in writing or on the basis of other demand, the list prices of H. Timm Elektronik GmbH applicable at the time of performance shall apply to these additional services, subject to other provisions. In the case of services on a time and material basis, the accrued working hours and travel times shall be invoiced at the hourly or daily rates applicable at the time and the materials consumed at the prices applicable at the time of performance. A working day consists of 8 hours. Services in excess of this shall be invoiced at the corresponding hourly rate for every half of an hour or part thereof that has elapsed. Estimated prices stated in the contract for services on a time and material basis are non-binding. The estimated quantities underlying an estimate shall be based on an evaluation of the scope of performance carried out to the best of one’s knowledge. If H. Timm Elektronik GmbH ascertains in the course of performance that the estimated quantities are exceeded, it shall inform the Customer without undue delay.

IV. Copyrights

  1. Timm Elektronik GmbH is the owner of copyrights and exploitation rights to the copyrighted works to be delivered, in particular to software, training documentation and to the documents and files made available to the Customer, to which the following provisions apply. In particular, the Customer is prohibited from granting sub-licenses and from making the works available or otherwise accessible to third parties, in whole or in part, or the associated documentation, unless this serves, with regard to the software, to realize the rights under Sections 69d and 69e of the German Copyright Act (UrhG) in accordance with the following provisions.
  2. The Customer shall pay the agreed user fee for the right of use granted in these terms and conditions for the works, in particular for the software and, if applicable, training documents. H. Timm Elektronik GmbH grants the Customer the non-exclusive and non-transferable right to use the delivered software, subject to full payment of the corresponding remuneration. The scope of use is agreed as follows: the Customer may reproduce the software insofar as the respective copy is necessary for the use. Necessary copies include, in particular, the installation of the software from the original data carrier into the mass memory of the hardware used and the loading into the working memory. In addition, the Customer may make a copy for backup purposes. However, only one backup copy may be made and kept in accordance with Section 69d paragraph 2 UrhG. The backup copy shall be marked as such and provided with a copyright notice (“© H. Timm Elektronik GmbH”). The Customer is not allowed to make any other copies, including the output of the program code to a printer and photocopying of the entire manual or essential parts of it.
  3. Products delivered for evaluation purposes (e.g. hardware, software, data carriers, documents, etc.) shall be provided free of charge for a certain period of time and shall remain the property of H. Timm Elektronik GmbH. H. Timm Elektronik GmbH reserves the right to equip these products in such a way that they are no longer fully operational after the agreed period of use has expired. The Customer may not derive any claims from this.
  4. The Customer may use the software on any hardware available to it. However, if the Customer changes the hardware, it must delete the software from the hardware previously used. Simultaneous storage, holding or use of a license on more than one hardware is not permitted. If the Customer wishes to use the contractual software on several hardware configurations at the same time, it must purchase a corresponding number of licenses. The number of users depends on the agreements made with H. Timm Elektronik GmbH. The offering of an ASP (“Application Service Provider”) or SaaS operation (Software as a Service) is not permitted in any case.

V. Services and scope of services

  1. Timm Elektronik GmbH is entitled to transfer the fulfilment of its contractual obligations to third parties in whole or in part.
  2. Installation, introduction and maintenance services shall only be part of the contract if they have been expressly agreed in writing.
  3. The execution of the contract must not interfere with the legal responsibilities of the other contracting party as an employer. Employees of H. Timm Elektronik GmbH are only bound by instructions of H. Timm Elektronik GmbH.

VI. Special provisions for training and consulting contracts

  1. Timm Elektronik GmbH reserves the right to make minor changes to the content of the training and, if necessary, to change dates and location, for example in the event of a low number of firm registrations.
  2. If the participant does not attend the entire training course, the full amount of the attendance fee shall still be payable.
  3. A training course registration may only be cancelled and/or rebooked in writing.
  4. If the registered participant does not attend the training without having cancelled or rebooked it in time, the full invoice amount shall remain due for payment.
  5. If the participant is justifiably prevented from attending on the agreed training course date, he/she shall be entitled to nominate a substitute participant in his/her place at any time. No additional costs shall be incurred for this.

VII. Special provisions for software maintenance contracts

(1) Services

  1. Timm Elektronik GmbH or the respective software producer shall provide updates if necessary; if this is not the case, reference shall be made to the one-year warranty period (see Section IX No. 1 sentence 1).
  2. The processing of questions concerning the Customer’s organization (such as for the optimization of business processes or business management consulting) shall not fall under the scope of maintenance.
  3. The scope of services shall not include the individual creation, adaption, modification or provision of software or databases, the maintenance of hardware or the training of users. Modifications or further developments of the software requested by the Customer shall also not fall under the scope of software maintenance, but constitute special requests that will be invoiced separately.
  4. This software maintenance contract shall be concluded for an indefinite period. It may be terminated with three months’ notice taking effect at the end of a calendar year. If this contract begins during a current calendar year, termination shall be possible for the first time in the second calendar year following the beginning of the contract in accordance with sentence 1. The notice of termination requires the written form; text form is not sufficient. The right to terminate the contract for cause remains unaffected (Section 314 of the German Civil Code [BGB]).

(2) Execution of the maintenance

  1. The maintenance work shall be performed during normal office hours. H. Timm Elektronik GmbH shall decide at its discretion at which location the maintenance work will be carried out.
  2. The Customer is obliged to report any errors in reproducible form with an exact written description of the error and its effects. The maintenance obligation of H. Timm Elektronik GmbH shall begin only when a complete error message as defined above has been received.
  3. Depending on the type of error, the error correction services shall be carried out at the discretion of H. Timm Elektronik GmbH by:
    • a verbal instruction for error elimination or error avoidance or instruction to reduce the impact of the error,
    • transmission of a written procedure description and/or functional description,
    • delivery of a software supplement or
    • delivery of a new software version.
  4. If the error affects the use of the software only insignificantly, H. Timm Elektronik GmbH shall be entitled to refer the Customer to interim solutions until a new software version is created that remedies the part in question.

(3) Maintenance requirements and cooperation obligations of the Customer

  1. If the software maintenance contract does not commence upon delivery of the software, the Customer shall ensure that the latest version of the software released by H. Timm Elektronik GmbH is in use at the commencement of the software maintenance contract.
  2. To ensure that the software functions properly, the Customer must meet certain requirements with regard to the hardware and software environment, (in particular with regard to the operating system). These requirements are set out in the corresponding user manuals of the software. It is the Customer’s responsibility to inform itself about the suitability of the hardware and software environment before concluding the contract.
  3. As long as the Customer has not created the maintenance requirements according to Sections 1 to 2 above, any obligation of H. Timm Elektronik GmbH under the contract shall be suspended.

VIII. Special Provisions for contracts for work and services

  1. Service results are generally not subject to acceptance. The following provisions shall apply only if the contracting parties have expressly agreed on a contract for work and services.
  2. Unless otherwise stipulated in the contract, the remuneration for work services shall be due as follows:
    • 1/3 of the total remuneration upon conclusion of the contract,
    • 1/3 of the total remuneration upon delivery;
    • 1/3 of the total remuneration upon acceptance or due date of the contractual performance. In the event of a partial delivery, the respective share which the delivery constitutes shall be due for payment.
  1. The Customer shall accept the services after a successful acceptance test and/or handover without undue delay. An insignificant deviation from the agreed features and acceptance criteria shall not entitle the Customer to refuse acceptance. The obligation of H. Timm Elektronik GmbH to eliminate errors (“Nacherfüllung”= subsequent performance) shall remain unaffected.
  2. If the Customer does not provide the conditions required to carry out the acceptance in accordance with the contract despite being requested to do so, the services shall be deemed to have been accepted 14 calendar days after the request. The services shall also be deemed to have been accepted when the Customer commences their productive use.
  3. Advising and supporting the Customer during the acceptance of the rendered services by H. Timm Elektronik GmbH must have been expressly agreed in writing.
  4. Defects that were recorded in the acceptance certificate and defects that give rise to a rightful claim to subsequent performance, which the Customer asserts before the expiry of the limitation period for claims based on defects, shall be remedied by H. Timm Elektronik GmbH at its expense. If the review of a notice of the defect reveals that there was no such defect giving rise to a rightful claim to subsequent performance, H. Timm Elektronik GmbH may demand reimbursement of the expenses for the services rendered on the basis of the notice of defect according to the general rates of remuneration applied by it.
  5. The Customer is obliged to check without undue delay whether the contractual services show obvious defects. Such obvious defects must be notified in writing within a preclusive period of ten days after the acceptance or, in the event of a later occurrence, within a preclusive period of ten days after the occurrence. Non-obvious defects shall be notified in writing within a preclusive period of one year after their occurrence.

IX. Claims for defects

  1. A one-year warranty period shall apply to all deliveries and services provided by H. Timm Elektronik GmbH under this contract. Excepted from this are all claims listed in X. as well as all claims based on gross negligence or intent, or claims based on an injury to life, limb, health or an obligation essential to the contract.
  2. If the provision of software is owed, the warranty period shall commence with the provision of the software to the Customer.
  3. The Customer has been informed that it is not possible to exclude errors in software entirely. Warranty rights of the Customer are excluded if the Customer does not notify H. Timm Elektronik GmbH in the case of obvious defects ten days after delivery or performance and in the case of hidden defects ten days after discovery, describing the defect. The warranty rights of the Customer shall also be excluded if the defects complained about were caused by improper installation, improper use, inadmissible modification or tests not in keeping with the regulations. If the Customer modifies the software itself or has it modified by third parties without the prior consent of H. Timm Elektronik GmbH, the claims for material defects shall be forfeited, unless the Customer proves that the errors that have occurred are not attributable to this fact.
  4. To ensure that the software functions properly, the Customer must meet certain requirements with regard to the hardware and software environment (in particular with regard to the operating system). These requirements are set out in the corresponding user manuals of the software. It is the Customer’s responsibility to inform itself about the suitability of the hardware and software environment before concluding the contract.
  5. If a defect is attributable to information provided by the Customer, H. Timm Elektronik GmbH shall be released from the warranty for these defects.

X. Liability

  1. The Customer may claim damages in lieu of performance pursuant to Section 281 BGB or compensation for expenses pursuant to Section 284 BGB only after it has given H. Timm Elektronik GmbH a reasonable deadline to effect the performance or subsequent performance (“Nacherfüllung”) coupled with the declaration that it will refuse the performance or subsequent performance after expiry of the deadline, and the performance or subsequent performance has not been effected within the deadline set.
  2. Statutory liability for damages based on a guaranteed quality of the services and software is not limited by these GTC, subject to paragraph 1 above. Otherwise, H. Timm Elektronik GmbH is exclusively liable in accordance with paragraphs 3 to 15 below.
  3. H. Timm Elektronik GmbH has unlimited liability subject to Sections 6, 7 and 8 below only in the following cases:
    • a) in case of intent or gross negligence;
    • b) in case of culpable breaches of duty which result in injury to life, limb or health.
  4. Unless a case according to paragraph 3 b) above has occurred, H. Timm Elektronik GmbH shall be liable for slight negligence only if an obligation is violated, the compliance with which is of essential importance to the achievement of the purpose of the contract (cardinal obligation). In the event of a slightly negligent violation of a cardinal obligation, liability shall be limited to the amount of the foreseeable damage typical of the contract.
  5. Unless otherwise agreed, five times the remuneration owed under the contract shall be deemed to be the foreseeable damage typical of the contract.
  6. Apart from in cases of intent and gross negligence, liability for lost profit and other pure economic loss is excluded.
  7. Claims for damages against H. Timm Elektronik GmbH do not exist if a simple “Erfüllungsgehilfe” (person employed in performing a contractual obligation for whom the principal is vicariously liable) of H. Timm Elektronik GmbH violates non-essential contractual obligations by gross negligence.
  8. Liability for data loss is limited to the typical recovery expense which would have been incurred in making backup copies regularly and commensurate with the risk.
  9. The exclusions and limitations of liability according to paragraphs 2 to 8 above shall also apply to non-contractual liability.
  10. Liability under the German Product Liability Act (ProdHaftG) shall remain unaffected by the above provisions.
  11. In the relationship between the Customer and H. Timm Elektronik GmbH it is the sole responsibility of the Customer to observe the products and work results delivered by H. Timm Elektronik GmbH after they have been placed on the market (product observation obligation) and to react to any risks or dangers. The Customer is obliged to inform H. Timm Elektronik GmbH without undue delay of all errors, problems and/or risks in connection with the products and work results delivered by H. Timm Elektronik GmbH. To the extent that damage or injuries are caused by a violation of the project observation obligation, the Customer shall be solely liable for these.
  12. H. Timm Elektronik GmbH does not assume any liability for damage caused by the fact that third party companies commissioned by the Customer do not perform services of the Customer or perform them late or do not perform them properly.
  13. In the case of software not produced by H. Timm Elektronik GmbH (third-party software), the liability of H. Timm Elektronik GmbH shall be limited to the proper condition of the data carriers and any manuals. H. Timm Elektronik GmbH does not assume any liability for the content, functionality and faultlessness of the third-party software. This warranty is exclusively incumbent on the manufacturer of the software.
  14. H. Timm Elektronik GmbH shall notify the Customer without undue delay of unforeseen events beyond its control (force majeure, such as strikes, illness of an employee as well as other comparable circumstances), which make scheduled performance impossible and which cannot be countered by reasonable and appropriate means. These events shall entitle H. Timm Elektronik GmbH to postpone its contractual obligations accordingly. Any further claims for damages by the Customer are excluded.
  15. Unless otherwise provided for in these GTC, all liability claims of the Customer against H. Timm Elektronik GmbH shall become barred by limitation within one year after the claim arose and the Customer became aware of the circumstances giving rise to the claim or should have become aware without gross negligence. This shall not apply to the claims specified in this Section X. No. 2, 3, 4 and 10.

XI. Confidentiality and data protection

  1. The contracting parties undertake to treat all the confidential information which comes to their knowledge confidentially and to use it only for contractually agreed purposes. The obligation to maintain confidentiality shall not apply to persons who are authorized to take cognizance of the information or who have been committed to secrecy by law or by contract or to the extent that it precludes assertion of their own claims or to the extent that the other party has consented to the disclosure.
  2. The contracting parties are required to impose a corresponding confidentiality obligation on their employees who are more closely involved with the services to be provided.
  3. The obligation to maintain confidentiality and not to use the information disclosed shall not apply if it can be proved that such information was known prior to the disclosure or that such information was known or generally accessible to the public or professional community prior to the disclosure or that such information was known or generally accessible to the public or professional community after the disclosure without any involvement or fault of a contracting party or that such information essentially corresponds to information disclosed and made accessible to a contracting party at any time by an authorized third party in a legally permissible manner. This obligation of confidentiality shall also apply for the period after the end of the contract, subject to the aforementioned restrictions. Section 5 of the German Business Secrets Protection Act (GeschGehG) shall remain unaffected in any case.
  4. The contracting parties undertake to comply with applicable provisions of data protection law as may be amended from time to time when implementing this contract and the respective individual contracts and constrain their employees to comply with these provisions.

XII. Non-solicitation clause

Due to the special need for protection and the special relationship of trust between the parties, the following shall apply:

For the duration of the cooperation and twelve months after the execution of the last contract concluded between the parties, neither party shall directly or indirectly solicit employees of the other party or entice them away from the other. In case of violation of this non-solicitation clause, the parties agree on a contractual penalty in the amount of one year’s salary of the respective employee that he/she earned at the company injured by the solicitation.

XIII. Final provisions

  1. Should individual provisions or parts of provisions be void or ineffective, this shall not affect the validity of all other provisions or the contract as a whole. In the place of the ineffective provision or the part of the ineffective provision, H. Timm Elektronik GmbH shall agree with the Customer on an effective provision that comes as close as possible to the economic content of the ineffective provision or the ineffective part of a provision.
  2. The place of performance for all obligations arising from this contract is the registered office of H. Timm Elektronik GmbH.
  3. Amendments and supplements as well as termination of the contractual relationship require the written form. This also applies to a waiver of this requirement of writing.
  4. The courts of Hamburg have exclusive jurisdiction over all disputes.
  5. The laws of the Federal Republic of Germany shall apply exclusively with the exception of the United Nations Convention on Contracts for the International Sale of Goods (CISG) of 11 April 1980.

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Customer information

1. Identity of the seller

H. Timm Elektronik GmbH
Senefelder-Ring 45
21465 Reinbek
Germany
telephone number: +49(0)402483563-0
E-Mail: info@timm-technology.de

2. Information regarding the conclusion of the contract

The technical steps for forming the contract and the formation of the contract, as well as the scope for correction are carried out as per the stipulation of § 2 of our General Terms and Conditions (part 1).

3. Contractual language, saving the text of the contract

3.1 Contract language shall be English.

3.2 The entire contract wording shall not be saved by us. Before the order or request is submitted the contract information can be printed using the print function on the browser or saved electronically.

Last updated: 02.07.2021