Section 1. Subject of the contract
(1) TIMCONSULT GmbH ("TIMCONSULT") provides companies ("users") with information from the transport sector for use by the company (“Transport Market Monitor” or ”TMM”). Users are primarily provided with contents of the TMM in the form of diagrams for viewing and downloading via the Internet. This offer is exclusively designed for business customers who are entrepreneurs as defined in section 14 BGB (German Federal Civil Code).
(2) TMM are online available presentations providing certain anonymised parameters for development of the transport market. The contents are not described or interpreted; the product is simply a neutral presentation in the form of diagrams. The underlying data is based on evaluations of real market prices which are collected selectively in anonymous form through the products on the TRANSPOREON Group platforms. They are not based on customer surveys. The contents of the TMM therefore do not lay claim to being complete, representative or accurate in terms of statistical/scientific principles.
(3) Within the framework of a contract, the contents are made available to the user on the TMM web pages.
(4) For further details of the contents and features of the TMM and the available package options and the prices, please refer to the specification of services (Service Description) on the TMM website.
Section 2. Registration and security
(1) Users who wish to place an order for a contract to TIMCONSULT’s TMM must register to do so. The user does not have an entitlement to registration. The display of the TMM on the website does not constitute a legally binding offer. It is intended as an invitation to the user to propose the conclusion of a contract. After completion of the registration process, users who entered all the registration data required, are considered to have made a binding offer. Before completing the registration process, users can check their data again and make corrections. TIMCONSULT accepts the offer by sending a confirmation of the order by e-mail.
(2) Users must complete the online registration form fully and truthfully. TIMCONSULT is entitled, although not required to request appropriate proof of a user's power of representation. If there is a change in users' data, they must immediately notify TIMCONSULT or themselves correct their data in the secure web pages. TIMCONSULT reserves the right to refuse to accept the registration or, in the event of providing incorrect data or misuse, to block user access or issue extraordinary notice of termination.
(3) The General Terms and Conditions of TIMCONSULT apply exclusively. TIMCONSULT does not accept any conflicting or deviating terms or conditions of users unless TIMCONSULT has expressly agreed to their validity in writing. The language of the contract is English. If TIMSONCULT issues versions of these terms and conditions in other languages, the English version will override them in the event of contradictions.
(4) Users' individual registration and a specification of services with the various contract periods regarding the chosen package (Service Description) will again be sent to them together with the electronic confirmation of the receipt and of the order and once completed, users can also view their online registration in the secure web pages at any time.
2. Identification / security
(1) When registering online, users choose a password for their personal identification which they can easily change under “My Account” when they log in. The access data consists of the user ID (user’s e-mail address) and the selected password. When approved by TIMCONSULT, users receive access to the secure pages provided by TIMCONSULT on their website and the contents of the TMM stored on a web server along with their user ID and password.
(2) Users undertake to ensure that their access data, particularly their password, is
adequately protected against unauthorised access by third parties. If users become aware of a theft of their access data or of some other form of loss or unauthorised access or use of the access data, or if they suspect that an incident such as this could occur, they will immediately notify TIMCONSULT and change their password.
(3) Users and third parties are not permitted to log into the TMM using the access data of other users. Users must confirm that they will change their password regularly.
Section 3. Duration of the contract
(1) When registering, users take out a contract with TIMCONSULT for a limited period of usage of the TMM and its contents. The duration of the contract depends on the package (currently Freemium, Premium, Premium Plus) selected by the user; for details of the various contract periods available please refer to the specification of packages (Service Description). Users may at any time choose to change over to a higher package period from the end of the current month of the contract.
(2) The contract period is automatically extended by the period of the contract, not exceeding one year, unless the user or TIMCONSULT has cancelled the contract in due time. The notice period depends on the chosen package and is described for all packages in the Service description:
Freemium: Terminable at any time without a notice period;
(3) The right of either party to issue extraordinary notice of termination for cause is not af-fected. If the behaviour of the user represents a reason of cancellation for cause, TIMCONSULT reserves the right to block the user’s access immediately. This will not affect the right to terminate the contract without notice.
(4) Notice of cancellation can be given in writing (e-mail is acceptable) or when the user is logged in under “My Account”. This means that the users also have the option of terminating their contractual relationship in the secure pages of the TMM website. Once the contract is cancelled, the right to access the secure website pages and the TMM contents available there is also terminated.
Section 4. Remuneration, conditions of payment
(1) The payment due is determined by the package selected by the user. Users undertake to pay the agreed fee as set out in the specification of services (Service Description) and the rates displayed on registration without deductions. The prices in this contract do not include the VAT. If User is established in Germany, TIMCONSULT will charge the fees plus VAT. If User is not established in Germany, the services are considered “other services” and are not subject to VAT in accordance with the Art. 56 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax. The recipient of performance owes the VAT (reverse tax obligations – “reversed charge”).
(2) Payment can only be made by credit card. Unless otherwise agreed, users receive an e-mail invoice in pdf format to the e-mail address provided on registration.
(3) Users choosing direct debit must ensure that their account has sufficient funds to cover the fees. If the fee is charged back or if payment is not made because there were insufficient funds in the bank account to cover it, TIMCONSULT will charge a EUR 5.00 handling fee (charge-back fee). This does not exclude the option of proving lower or higher damages in an individual case.
(4) If a user is in arrears with payment of a fee for more than one month and if a period of grace set by TIMCONSULT then passes without result, TIMCONSULT may block user access until all debts receivable are paid. When granting a period of grace, TIMCONSULT will duly notify the user to this effect.
(5) If payment is not made in time, TIMCONSULT may charge interest on arrears of 9 % above the European Central Bank’s base interest rate. TIMCONSULT reserves the right to assert a claim for a higher rate of interest on arrears.
(6) TIMCONSULT will notify users by e-mail of any changes in price for future contract periods no later than two months before such changes come into effect. If the user does not cancel the contract in accordance with section 3 (2) with effect from the end of the current contract period, the change in price will be deemed to have been agreed. The user will be informed of this in TIMCONSULT notification regarding the price change.
(7) Users are only entitled to offset TIMCONSULT claims if their claim is undisputed or it has been legally established. They may only exercise a right of retention if it is based on the same contractual relationship.
Section 5. Rights of use
(1) As it is a database as defined in sections 87a et seq. UrhG (copyright act), TIMCONSULT owns the copyright to the individual diagrams, tables and other TMM contents. When they download the contents, users are granted a non-transferrable, non-exclusive right to use them for their own business purposes (they may also be used by their employees), and to download and print them out to this end.
(2) The prior, express written consent of TIMCONSULT is required for any other form of copying or dissemination of the contents or for the provision of public access to or processing of same. Without the consent of TIMCONSULT, users are specifically precluded, in whole or in part, from:
- copying the contents or storing them on any type of data media, over and above the download;
- making the contents available in digital form in their own network (Intranet);
- passing the contents on to third parties in any form whatsoever (paper, data media, Internet) or making same available to them (legally independent locations, foreign companies, parent companies and subsidiaries of users are also deemed to be third parties) or
- utilising or modifying the contents in any other way (e.g. translating, processing or reconfiguring them or transferring significant parts of the contents or repeatedly and systematically transferring insignificant parts of the contents to the users’ own databases).
(3) Brands, logos, copyright notices and other property rights notices or other features or notices aimed at identifying TIMCONSULT must not be changed or removed (even in copies).
(4) To ensure that the TMM is used properly, TIMCONSULT is entitled to use technical anti-piracy systems for the contents (for all the content or for certain content only). According to section 95a UrhG, the electronic watermarks TIMCONSULT applies where necessary constitute an anti-piracy device which ensures that users only use the contents in the manner ex-pressly permitted. Pursuant to section 108b UrhG, removing it constitutes an offence.
Section 6. Guarantee
(1) It is the responsibility of users to ensure that they meet the technical requirements for accessing and opening and displaying the contents, particularly those applying to the required hardware and software and the Internet connection.
(2) Since the basis for the data is restricted (cf. section 1 (2)), TIMCONSULT cannot guaran-tee the accuracy, completeness or topicality of the content provided. Business decisions made on the basis of the contents of the TMM are the responsibility of the user.
(3) In principle, the TMM is available to users 24/7, with 98 % availability per calendar year. This does not take account of periods of non-availability that are due to planned maintenance work or technical problems for which TIMCONSULT is not responsible, e.g. Internet connection from TIMCONSULT’s delivery point.
Section 7. Liability
(1) Insofar as not otherwise provided for herein, including the following provisions, TIMCONSULT shall be liable according to the relevant statutory provisions in case of a breach of con-tractual and non-contractual duties.
(2) TIMCONSULT shall be liable for damages – irrespective for what legal grounds – in case of wilful intent and gross negligence. With slight negligence, TIMCONSULT shall only be liable
a) for damages from the injury to life, body or health and
b) for damages from the breach of a material contractual duty (i.e. those duties whose fulfilment is required in order to allow the contract to be duly performed and in relation to which user is entitled to regularly rely on for services); in this case TIMCONSULT’s liability is, however, limited to the reimbursement of the reasonably foreseeable, typically occurring damages.
c) Any strict liability of TIMCONSULT for initial defects existing at the time of the contract conclusion in the web server on which the contents are stored are hereby excluded.
d) The period of limitation for all user claims to compensation or reimbursement of wasted expenditure is one year. The period of limitation commences in accordance with the legal requirements and – in the case of a legally binding maximum period – comes into effect after five years from the date on which the claim arose at latest. This does not affect the stat-utory period of limitations for claims against TIMCONSULT arising from wilful or grossly negligent breaches of its duties.
e) The liability and periods of limitation in respect of personal claims or claims made in accordance with the Product Liability Act are not affected by the above provision.
(3) The TMM may contain links to other websites and content of third parties. However, TIMCONSULT is not responsible for accessibility to these external websites or for their contents, advertising or products. TIMCONSULT is not liable for such data, their legality, completeness, accuracy or up-to-date nature, nor is TIMCONSULT liable for such being free of any Third Party’s intellectual property rights. TIMCONSULT is not liable for damages arising from downloading or another use of unchecked harmful data via the Platforms. Any liability in accordance with §§ 7 et seq. Telemedia Act (“Telemediengesetz” or “TMG”) remains unaffected.
(4) To the extent TIMCONSULT’s liability for damages is excluded or limited, this shall also apply with regard to the personal liability for damages of its representatives, employees and other vicarious agents.
Section 8. Data protection and secrecy
(1) The required personal data of users, particularly the contact name, address, e-mail address and telephone number and bank details, are obtained, stored, processed and used solely for the purposes of establishing the contractual relationship and arranging billing of the contract between TIMCONSULT and the user. Other than for these purposes, TIMCONSULT does not pass the data on to third parties. Aside from the use already permitted by law, users’ data will only be used for advertising purposes if the user has given prior consent to this effect. Users may object to the use of their data for advertising purposes at any time.
(2) TIMCONSULT uses an external hosting provider to fulfil its contractual obligations. The provider will only have access to the user’s personal data in exceptional circumstances (e.g. in the event of technical problems) and only in the context of order data processing carried out under instruction.
(3) All personal data is only stored as long as necessary for the required purpose (completion and billing of the contract). Users undertake to treat all content made available to them as strictly confidential and not to divulge it to third parties, even after the contract is cancelled.
(4) For more information on data protection and secrecy please refer to “Privacy” on the website.
Section 9. Changes to the general terms and conditions and the contents
(1) TIMCONSULT may expand the contents and functions of the TMM at any time and make modifications which do not limit the agreed scope of the service.
(2) TIMCONSULT will inform users by e-mail of any other changes to the contents and functions provided or any changes to these terms and conditions one month before the relevant change comes into effect. In making their first transaction after notification is issued and the changes come into effect, users express their agreement and accept the changes. Specific reference will be made to this effect in the notification regarding the changes.
(3) If a user refuses to accept or objects to the changes to these terms and conditions and/or the contents or functions as set out in section 9 (2), both parties to the contract are entitled to give extraordinary notice of termination with effect from the date on which the change is to come into effect. Notice of termination must be submitted no later than this date.
Section 10. Jurisdiction, place of fulfilment and performance, applicable law, miscellaneous
(1) The court of jurisdiction for all legal disputes is Ulm/Donau. TIMCONSULT also reserves the right to take an action in the general court of jurisdiction of the user.
(2) The registered offices of TIMCONSULT (Mannheim, Germany) are the place of fulfilment and performance.
(3) The laws of the Federal Republic of Germany apply exclusively with the exclusion of the UN Convention on the International Sale of Goods.
(4) Users acknowledge that the TMM is not intended, nor may it be used to facilitate illegal collusion between competitors.
Section 11. Severability clause
If certain provisions are or become unenforceable in whole or in part, this will not affect the remaining provisions. The parties will replace the unenforceable provisions of the contract with legal provisions that best reflect the commercial purpose of the unenforceable provision. The same applies to regulatory gaps.