Terms of Service starting from 13.08.2020
TERMS OF SERVICE
These terms of service (the ‘Terms’) govern your company’s (hereinafter the ‘Company’ or ‘You’) use of Taimer CRM and business management services provided on a software as a service basis (the ‘Service’),and licensed by Taimer Ltd (hereinafter ‘Taimer’). You and Taimer together the ‘Parties’ and separately a ‘Party’).
PLEASE READ THESE TERMS AS THEY ARE PART OF A LEGALLY BINDING SERVICE AGREEMENT BETWEEN YOU AND TAIMER. BY CLICKING THE ‘ACCEPT’ BUTTON OR OTHERWISE ACCEPTING THESE TERMS THROUGH AN ORDER DOCUMENT THAT INCORPORATES THESE TERMS, EITHER DIRECTLY OR BY REFERENCE (SUCH ORDER DOCUMENT, TAIMER’S GENERAL FEE SCHEDULE AND THESE TERMS JOINTLY THE ‘AGREEMENT’), YOU ACCEPT THESE TERMS AS A BINDING CONTRACT BETWEEN TAIMER AND THE COMPANY.
Taimer reserves the right to modify these Terms, at any time, by issuing a public notification in the Service at least thirty (30) calendar days prior to the effective date of such change. Your continued access or use of the Service shall be deemed as your acceptance of these changes and the reasonableness of these standards for notice of changes. If you disagree with changes to these Terms, your sole and exclusive remedy is to terminate the Agreement by a written notice given at least fourteen (14) calendar days before the change in the Terms takes effect. Your continued use of the Service after the effective date of any change to the Terms will be deemed to be Your agreement to the modified Terms.
2. GRANT OF LICENSE
Taimer grants to the Company a personal, limited, revocable, non-exclusive, non-transferable, non-sublicensable, non-assignable, worldwide right and license to access and use the Service solely for Your internal business operations, subject to the provisions of these Terms. The Service is licensed, not sold.
The Company acknowledges that Taimer owns all right, title and interest to the Service that is protected by intellectual property rights. Other than the express rights granted in this agreement, the Company shall not obtain or claim any intellectual property right in the Service.
You may allow your Users to use the Service for this purpose and You are responsible for Your Users’ compliance with these Terms. In these terms, ‘Users’ means the permitted end users of the Company for whom a personal user account has been created for the use of the Service subject to these Terms.
3. THIRD PARTY COMPONENTS AND SITES
The Company may purchase third-party components to be bundled with the Service provided to the Company. These additional components are licensed by third parties under their respective license terms or via the components in question (‘Third-Party Components’). Available Third-Party Components, listed at "Third-Party Services" and other links to third-party websites or services are provided only as a convenience to the Company and are not endorsed by, or the responsibility of, Taimer. The Company bears all risk in connection with access and use of linked sites and the purchase of the Third-Party Components. The Company acknowledges that the Third-Party Components offered may change during the term of the Agreement and that Taimer shall have no liability with regard to the Company’s selection, purchase or use of the Third-Party Components. Taimer also has no responsibility or liability to provide a specific Third-Party Component for the full duration of the overall Agreement. Your use of the Third-Party Components is subject to each component’s own license terms and Taimer accepts no liability whatsoever for any Third-Party Components used in connection with the Service. Taimer’s sole responsibility with respect to the Company’s claims regarding defects and disruptions in the Third-Party Components shall be limited to passing on the Company’s claim to the third party having licensed the said Third Party Component.
4. USE OF SERVICE
The Company shall ensure that the Company and Users use the Service in accordance with these Terms. The Company accepts responsibility for each of its Users and shall be liable for each of its User’s conduct as its own. The Company and Users will not, except as may be allowed by applicable mandatory law:
(a) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, re-publish, download, display, transmit, or distribute all or any portion of the Service in any form or media or by any means (save that the Company shall be entitled to download or display parts of the Service to the extent this is necessary for the Service’s normal operation); or
(b) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form the Service’s source code or other source materials or any part thereof; or
(c) access all or any part of the Service in order to build a product or service which competes with the Service.
With respect to Users, the Company undertakes that:
(a) the Company is solely responsible for ensuring that the Company and its Users comply with application laws and regulations;
(b) it will not allow any User credentials to be used by any person other than the respective User to whom the User credentials have been assigned;
(c) each User will keep a secure password for his or her use of the Service and that each User will keep his or her credentials confidential; and
(d) each User will comply with all terms and conditions governing the use of the Service.
If the Company becomes aware of any unauthorized access to, or any other use of the Service in breach of these Terms, the Company will promptly notify Taimer upon becoming aware of any such breach. The Company will, at Taimer’s request and in accordance with Taimer’s instructions, including but not limited to changing the credentials (i.e., usernames and passwords) of such Users as may be necessary or expedient in order to ensure the continued security of the Service. Taimer may also provide new credentials for the Users which credentials shall thereafter be used when accessing the Service.
Taimer may, without liability to the Company or Users, and without prejudice to any other rights and remedies available to Taimer, disable the Company’s or Users’ access to the Service in the event the Company or a User fails to use the Service in compliance with these Terms or in a way that Taimer, in its sole discretion, decides may adversely impact the Service.
Taimer is entitled to audit Your use of the Service. You agree to cooperate with Taimer’s auditors and provide reasonable assistance and access to information. Any such audit shall not unreasonably interfere with Your normal business operations. You agree to pay within thirty (30) days of written notification any fees applicable to Your use of the Service in excess of Your rights. If You do not pay, Taimer can end Your and the Users’ access to the Service and the Agreement between You and Taimer. You agree that Taimer will not be responsible for any of the costs You may incur in connection with the audit.
5. SERVICE PROVISION, AVAILABILITY
Taimer shall provide the Service with due professional skill and care in accordance with Taimer’s own methods and procedures. Taimer shall use reasonable efforts available to it to ensure that the Service conforms to Taimer’s service descriptions as available at www.taimer.com from time to time. If the Service does not conform to the foregoing undertaking Taimer will, at its expense, use commercially reasonable and technically feasible efforts to correct such non-conformance promptly. Taimer’s efforts in correcting the non-conformance constitute the Company’s sole and exclusive remedy for the non-conformity.
Taimer is entitled to deploy a new, updated or otherwise changed version of the Service at its discretion upon fourteen (14) days’ prior notification and such notification shall be made available in the Service or by notice to the Company. In the event the Company does not agree to accept the new version, the Company’s only recourse is to terminate this Agreement in accordance with fourteen (14) days’ prior written notice. Taimer shall not be required to give the aforementioned notice, and the Company shall not have the aforementioned right to terminate the Agreement, for minor changes to the Service that do not materially affect the Company’s use of the Service.
Taimer will use commercially reasonable efforts to make the Service available 24 hours a day, 7 days a week and provide the Service without disruptions. Taimer does not, however, represent or warrant that use of the Service will be uninterrupted or error-free. The Company acknowledges that Taimer is entitled to effect (i) planned maintenance breaks, and (ii) unscheduled maintenance breaks, provided that Taimer has used reasonable efforts to issue a public notice in the Service at least 24 hours in advance. Taimer is entitled to take the Service or parts thereof offline, when in its sole discretion there has been a serious threat to the security or integrity of the Service in which case, Taimer may keep the Service offline until such time as it can assure itself of the Service’s continued security and integrity. Taimer will use all reasonable efforts to resolve the situation quickly.
The Company is solely responsible for procuring and maintaining all necessary network connections and telecommunications links for accessing and using the Service. In addition, the Company shall be solely responsible for all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to such network connections or telecommunications links or caused by the Internet.
6. BACKUPS AND DATA LOSS
Taimer makes backups from the data stored in the Service in accordance with its standard backup procedures. The Company acknowledges that Taimer shall have no liability for the destruction of the content provided by the Company or Users and processed in the Service (‘Content’) or any damage and costs incurred in consequence thereof, such as for the costs of recreating the files. With respect to loss of Content, Taimer’s sole liability is to make commercially reasonable efforts to recreate such Content.
The fees payable for the Service are specified in the applicable order document, or if not specified in the applicable order document, Taimer’s general fee schedule. The service fees include all taxes and public charges set by government authorities, save for value added tax. Value added tax will be added to the prices in accordance with the applicable legislation and regulations. If there is a change in the amount or basis of any taxes or public charge set by a government authority either due to a change in the law or a change in taxation practice, the fees provided for under the Agreement will change accordingly.
The payment term is fourteen (14) calendar days net from the date of invoice. Interest on overdue payments shall accrue at a rate of eight per cent (8%) per annum. Taimer may, without liability to the Company and without prejudice to any other rights and remedies available to Taimer, disable the Company’s or Users’ access to the Service if Taimer has not received due payment within seven (7) calendar days of a written notice thereof (and as long as the invoice(s) concerned remain unpaid). An additional cost of seven (7) euros will be added to a payment reminder letter.
Taimer shall be entitled to change fees payable for the Service at any time upon a ninety (90) days’ prior written notice to the Company. In the event the Company does not agree to the change in fees, the Company’s only recourse shall be to terminate the Agreement by a written notice given at least thirty (30) days before the changes in service fees take effect.
8. INTELLECTUAL PROPERTY RIGHTS
All intellectual property rights, including but not limited to copyrights (including the right to transfer the copyrights and the right to alter the works protected by the copyright), patents, utility models, registered or unregistered designs, trademarks, trade secrets and know-how, and other intellectual property rights, whether or not capable of registration, and applications of any of the foregoing, and title in the Service shall be the exclusive property of Taimer and/or its licensors. Any rights not expressly granted herein are reserved by Taimer.
The Company represents and warrants that it has all necessary rights to the Content. All intellectual property rights and title in the Content shall be the exclusive property of the Company and/or its licensors. The Company grants Taimer a limited, worldwide, non-exclusive, royalty-free right and license to the Content as necessary for the provision of the Service for the Company and Users. Taimer undertakes to maintain standard industry practices that are designed to keep the Content confidential.
In the event the Company submits suggestions or improvements about the Service to Taimer, the Company will grant to Taimer a perpetual, irrevocable, royalty-free, worldwide, transferable, sublicensable exclusive right and license to all intellectual property rights, other rights, title, and interest in and to such suggestions. Taimer will be entitled to use such suggestions without restrictions for any purpose and without compensation to the Company.
The Company shall indemnify, defend and hold harmless Taimer and its affiliates and licensors, and each of its respective officers, directors, employees, agents, independent contractors, successors and assigns from and against liability for any third-party claims based on: (i) the Company’s use of the Services in violation of applicable law or, this Agreement; or the Company’s unauthorized access to or disruption of any service, data, account or network in connection with the use of the Services; (ii) any Content or the Company data; or (iii) the alleged infringement or misappropriation of third-party rights by the Content or the Company data. If Taimer is obligated to respond to a compulsory legal order or process described herein, the Company shall also reimburse Taimer for reasonable attorneys’ fees and costs and shall pay Taimer on a time and material basis for time and materials spent.
Taimer shall indemnify, defend and hold harmless the Company and its affiliates, and each of its respective officers, directors, employees, agents, independent contractors, successors and assigns from and against liability for any third-party claims based upon the Service infringement or misappropriation of any copyright of such third party. The foregoing indemnity shall not apply to any claim that arises from or is based on: (i) a claim made by the Company or Users or any of its affiliates; (ii) the Content or use of a Third-Party Component in conjunction with the Service; (iii) the use of the Service in conjunction with any other third-party software package or service for which the Company has not obtained Taimer’s formal written approval; (iv) the Company’s violation of this Agreement; or (vi) the use of non-Taimer software.
Process for Indemnification. The indemnified Party shall promptly notify the indemnifying Party of any claim, but the indemnified Party’s failure to promptly notify the indemnifying Party will only affect the indemnifying Party’s obligations to the extent that the indemnified Party’s failure prejudices the indemnifying Party’s ability to defend the claim. The indemnifying Party may: (i) use counsel of its choice; (ii) settle the claim as the indemnifying Party deems appropriate; and (iii) assume control of the defense and settlement of the claim; provided, any settlement of a claim will not include a financial or specific performance obligation on, or admission of liability by the Party against whom the claim is brought. The indemnified Party shall provide the indemnifying Party with necessary assistance in the defense (at indemnifying Party’s expense).
Remedies for Intellectual Property Infringement. If use of the Service is the subject of a third-party infringement claim or if Taimer reasonably believes that use of the Service may be the subject of a third-party infringement claim, Taimer may, at its option, (i) obtain the right for the Company to continue using the Service; or (ii) replace or modify the Service so it is no longer infringing, or (iii) if Taimer determines that neither (i) nor (ii) can reasonably be accomplished, terminate the Service and refund any amounts that were prepaid.
This Section 9 shall constitute the Company’s sole and exclusive remedy for all claims relating to infringement.
10. PERSONAL DATA
10.1 Roles of the Parties
With respect to any Personal Data that the Company and Users upload or otherwise process in the context of using the Service, the Company acknowledges that it is the Data Controller liable to the Data Subjects for the processing of Personal Data by the Data Processor and Taimer shall be the Data Processor, processing such Personal Data on behalf of the Company. The Data Controller, Data Processor, Data Subject and Personal Data shall have the meanings set forth in the European Union’s General Data Protection Regulation ((EU) 2016/679).
The Company is responsible for compliance with its obligations as Data Controller under data protection laws, in particular for justification of any transmission of Personal Data to Taimer (including providing any required notices and obtaining any required consents), and for its decisions concerning the processing and use of any data in the Service.
The Company warrants that:
i) there is a valid legal ground for the processing, and any Personal Data transferred to Taimer are correct; and
ii) to the extent required by applicable mandatory law, the Company has provided appropriate notice to each individual and/or obtained from each individual his or her written consent for the use and processing of his or her Personal Data in the Service; and
iii) to the extent required by applicable mandatory law, the Company has submitted all and any registrations and/or notifications to the necessary data protection authorities having jurisdiction over the Company’s activities in connection with using the Service; and
iv) the processing of Personal Data in connection with the Service by the Company is carried out in accordance with applicable data protection laws; and
v) it shall give Taimer comprehensive, reasonable, written and lawful instructions on the processing. Performance of the Service in accordance with the Agreement shall be deemed to be in compliance with such written instructions.
The Company shall inform Taimer of all such requirements under the mandatory applicable law that may be imposed on Taimer due to the provision of the Service to the Company by Taimer.
With respect to the Content that is outdated or inaccurate, Taimer shall use reasonable efforts to assist the Company in deleting or rectifying such data in accordance with the Company’s instructions. Taimer does not guarantee any accuracy with respect to information uploaded to the Service by the Company.
10.2 Processing of Personal Data
In order to execute the Agreement and to perform the Service, the Company authorizes and requests that Taimer process the following Personal Data:
Categories of Personal Data: Personal Data may include, without limitations, personal contact information such as name, company address, company telephone or mobile number, email address, and passwords; information on age, date of birth, employment details including employer name, job title and function, education, identification numbers, social security number and business contact details, and goods and services provided and other Personal Data that the Company chooses to process in the Service.
Categories of Data Subjects: Data Subjects include the Company’s representatives and Users, as well as other employees, contractors, collaborators, partners, and customers of the Company.
The nature of the processing has been further described in the Agreement.
Taimer shall process Personal Data only for the provision of the Service and in accordance with the Company’s reasonable written instructions, unless required to do so to comply with a legal obligation to which Taimer is subject. Taimer shall inform the Company of such legal requirement before processing, unless that law prohibits such notification on important grounds of public interest. Taimer will inform the Company if, in Taimer’s opinion, the Company’s instructions breach data protection regulation. The Company understands that Taimer is not obligated to provide legal advice to the Company or to conduct legal research.
Taimer shall execute the processing without additional charge to the extent necessary for Taimer to comply with laws applicable to Taimer as a Data Processor in the provision of the Service. If the Company gives additional instructions, which go beyond the Agreement, any associated costs for compliance with such instructions shall be borne by the Company.
10.3 Confidentiality of Personal Data
Taimer warrants that it will treat all Personal Data as strictly confidential and ensures that all its employees, and/or approved affiliates and sub-processors engaged in processing the Personal Data have signed an adequate confidentiality agreement and/or are under any other binding obligation of confidentiality.
10.4 Data Security
Taimer shall implement commercially reasonable technical and organizational measures appropriate to the risk of the processing to protect Personal Data as required by law against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access. The technical and organizational measures may include, as appropriate, (i) pseudonymisation and encryption of Personal Data, (ii) being able to ensure ongoing confidentiality, integrity, availability and resilience of processing systems and Services, (iii) being able to restore the availability and access to Personal Data in a timely manner in the event of a physical or technical incident, and (iv) having a process in place for regularly testing, assessing and evaluating the effectiveness of the measures implemented to ensure the security of the processing. Taimer shall restrict access to Personal Data in the Service solely to such Taimer employees and subcontractors who need access to such content for purposes of providing the Service and Taimer undertakes to inform those having access to such content of the relevant confidentiality and security requirements.
Once per calendar year, on the Company’s expense and in accordance with the Parties mutual agreement, Taimer shall make available all reasonable information necessary to demonstrate compliance with Taimer’s obligations as a Data Processor, and allow for and contribute to audits, including inspections, conducted by the Company or a third-party auditor mandated by the Company, and approved by Taimer, provided that the Company notifies Taimer of its intention to conduct an audit no later than two (2) weeks prior to the audit. The audit shall be conducted during normal business hours and without interruption to Taimer’s ongoing business operations.
10.6 Assistance, Information Obligations and Incident Management
Taimer shall, taking into account the nature of the processing and the information and technical means available, assist the Company in (i) ensuring compliance with its legal obligations, such as data security, data breach notification, data protection impact assessment and prior consulting obligations, and (ii) responding to requests for exercising the Data Subject’s rights. On the Company’s written request, Taimer shall make available to the Company reasonably all such information it possesses, which are, in accordance with Article 28 of the General Data Protection Regulation ((EU) 2016/679), necessary to demonstrate compliance with the obligations regarding the use of a data processor. Taimer has the right to invoice the reasonable costs incurred as a result of the aforementioned assistance and provision of data.
10.7 Personal Data Breaches
In case Personal Data is accidentally, unlawfully or without proper authorization destroyed, lost, altered, disclosed or accessed, or the confidentiality, integrity or availability of Personal Data is endangered by any other event (‘Personal Data Breach’), Taimer shall, after having become aware of a Personal Data Breach, notify Company without undue delay. Such notification shall be made in writing or any other means Taimer finds reasonable.
Taimer shall retain documentation of Personal Data Breaches, and retain such documentation for a reasonable time, however as a minimum for six (6) months from the termination of this Agreement.
10.8 Sub-Processor and Affiliates
Some or all of Taimer’s obligations under the Agreement may be performed by affiliates and sub-processors of Taimer. This Agreement includes a general written authorization of the Company for Taimer to subcontract the performance of whole or parts of the Service to a third party in accordance with this Agreement. Taimer shall use all reasonable efforts to procure that its sub-processors are bound in writing by the same or equal obligations as Taimer under this Agreement and shall supervise compliance thereof.
Taimer maintains a list of sub-processors that may process the Content. Taimer shall inform the Company of the engagement of a new sub-processor. If the Company does not object to the engagement of the sub-processor in question in writing within one (1) week after having received notice thereof, the Company shall be deemed to have accepted the sub-processor in question. If the Company objects to the use of a new sub-processor, Taimer shall be entitled to, for each service, without consequences for Taimer, decline the Service. For the avoidance of doubt, the Company has accepted all sub-processors used by Taimer at the time the Agreement comes into force.
10.9 Location of data
In connection with the Service, Taimer shall process the Personal Data as follows:
If the Company is based in the European Union (‘EU’) or in the European Economic Area (‘EEA’), Personal Data shall be processed within the EU/EEA.
If the Company is based in North or South America, Personal Data shall be processed in the United States.
If the Company is based somewhere else than the areas mentioned in subparagraphs 1) and 2) above, Personal Data shall be processed within the EU/EEA.
10.10 Return and Deletion of Personal Data
Following the termination of the Agreement and the Service, Taimer will return or otherwise make available for retrieval the Content in the Service.
Upon termination of the Agreement, Taimer will promptly delete all copies of the Content, unless any legislation imposed upon Taimer, Taimer’s employees, Taimer’s affiliates or subcontractors prevent it from returning or destroying all or part of the Content received. In that case, Taimer warrants that it will not actively process the Content after the termination of the Agreement, and will otherwise comply with its obligations pursuant to this Section 10.
10.11 Enquiries and Disclosures
In the event of a dispute or claim brought by a Data Subject or an authority against Taimer concerning the processing of Personal Data, or if Taimer is required by law or a non-appealable judgment or other resolution issued by any competent court, supervisory authority or similar administrative organ to disclose any information or Personal Data in connection with the provision of the Service, whether partly or wholly, or provide other specific answers to such entity (together ‘Enquiry’), Taimer agrees to give preliminary notice to the Company of any such Enquiry and its circumstances, unless prohibited to do so by law to which Taimer is subject.
As a general rule, Company will respond to Enquiries and requests from Data Subjects and authorities concerning processing of the Content by Taimer, unless the Enquiry provides that Taimer shall respond and the national data protection laws do not allow deviating from such position either. Taimer shall inform the Company of any requests from the Company’s Data Subjects and supervisory authorities. Taimer has the right to invoice the reasonable costs incurred as a result of the aforementioned assistance and provision of data.
11. USE OF ANALYTICS
Taimer may compile statistical and other aggregate data related to system activity and performance, operation and use of the Service to create statistical analyses, and for research and development purposes. Taimer may make statistical analyses publicly available; however, analyses will not incorporate any of the Content in a form that could serve to identify the Company or any Data Subject,or any confidential information of the Company, or in any other manner than statistically, and the statistical analyses do not constitute Personal Data as the data is fully anonymized. Taimer retains all intellectual property rights in its statistical analyses as well as the results of its research and development.
12. FORCE MAJEURE
Neither Party shall be liable for any delay in performing its obligations under this Agreement, if such delay is caused by circumstances beyond the Party’s reasonable control, including without limitation, any acts of God, war, terrorism, floods, windstorm, labor disputes, change in laws or regulations, public health risks or epidemics, or delay of essential materials or services. A force majeure event affecting a Taimer subcontractor shall be deemed a force majeure event affecting Taimer, provided the above requirements are met for the subcontractor in question. In the event a non-performance or a delay in performance of obligations under this Agreement is due to a force majeure event, the period of performance shall be extended by the delay due to such event and any additional time that the Parties may mutually agree is necessary for the remobilization of personnel and resources. However, the Party not affected by the force majeure shall have the right to terminate this Agreement without penalty if the Party affected by the force majeure event is unable to resume full performance within sixty (60) days of occurrence of the event.
13. NO WARRANTIES, LIMITATIONS OF LIABILITY
THE SERVICE IS PROVIDED AS DESCRIBED IN, AND SUBJECT TO, THE TERMS OF THE AGREEMENT (INCLUDING THE RELEVANT ORDER DOCUMENT) AND TAIMER’S THEN-CURRENT SERVICE DESCRIPTION.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THE SERVICE IS PROVIDED ON AN ‘AS IS’ AND ‘AS AVAILABLE’ BASIS AND TAIMER MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. TAIMER DOES NOT GUARANTEE THAT THE SERVICE OR THIRD-PARTY PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE. NEITHER TAIMER NOR ITS AFFILIATES OR LICENSORS HAVE ANY DUTY TO REVIEW, EDIT, SCREEN, PUBLISH OR REMOVE ANY CONTENT EXCEPT AS STRICTLY REQUIRED BY APPLICABLE LAW. THE COMPANY