These General Terms and Conditions of timeSensor AG including Software License Agreement, Software Maintenance Contract, as well as Server Maintenance Contract shall apply exclusively, unless a separate agreement has been concluded with the customer in text or written form.
The receipt of the completed order form from the customer to timeSensor AG, whether embodied or stored in electronic form, or the signed order confirmation represents the customer’s offer to conclude a contract. timeSensor AG may accept offers from customers within 10 days. Any offers from timeSensor AG are also valid for 10 days. In case of doubt, the order confirmation from timeSensor AG shall prevail for the contract.
Software licence agreement for timeSensor® products
Please read the following conditions carefully before using the timeSensor® software. By enabling or using the timeSensor® software, you confirm your agreement with the following provisions. If you do not agree with the provisions, do not download the timeSensor® software and do not use it.
1. Scope and general provisions
This Software Licence Agreement governs the terms for downloading, installing and using the timeSensor® software (hereinafter “software”) between timeSensor AG and the user (hereinafter “customer”). timeSensor AG hereby grants the customer the right to use the timeSensor® software in the respective version in accordance with the following provisions, regardless of the storage form of the software. timeSensor AG reserves all rights that are not expressly granted to the customer. The licences granted under this agreement are limited to the use of the copyrights of timeSensor AG and any of its possible licensors of the software. Insofar as the customer has received a data carrier on which the software is recorded, then only this data carrier becomes their property. timeSensor AG and/or licensor(s) of timeSensor AG retain ownership and other rights in the software. This software licence agreement covers all software upgrades that replace and/or supplement the original software, unless such upgrades require a separate licence.
2. Rights of use and restrictions
Against payment of the appropriate licence fee and depending on the chosen model, timeSensor AG grants the customer a limited, temporary or permanent non-exclusive and non-transferable licence to install and use the software for the processing of customer data.
The customer may choose from the models Start Edition, Easy Edition, Smart Edition, Business Edition, First Edition or Department Edition. In principle and subject to other provisions in the present GTC, the scope of services available are in accordance with the individual agreement as well as any timeSensor® LEGAL price list valid at the effective date of the contract.
2.2 Start Edition and Sponsored Start Edition
timeSensor® LEGAL Start Edition is provided to the customer for service recording/invoicing of CHF 50’000.00 or 40,000.00 € or the equivalent per year free of charge. In the case of the timeSensor® LEGAL Sponsored Start Edition, this limitation is inapplicable and, instead, the customer accepts integrated advertising with the use of the software.
timeSensor® LEGAL Start Edition and timeSensor® LEGAL Sponsored Start Edition may only be installed on a single computer and only used by a single user.
The customer is entitled to transfer the software from one computer to another provided that the software is not installed and/or used on more than one computer at a time. The transfer requires renewed activation.
2.3 Easy Edition, Smart Edition, Business Edition, First Edition, Department Edition
timeSensor® LEGAL Easy Edition, Smart Edition, Business Edition, First Edition and Department Edition may be used in a client/server environment, without limiting the number of client computers, provided that the software will not be used in any case by more than the allowed number of concurrent users. A workstation is to be licensed for each user of the software (“named user licence”), or, insofar as correspondingly specified in the individual contract, each concurrent user of the software has to have a licensed workstation (“concurrent user licence”).
The customer is entitled to transfer the software from one server computer to another provided that the software is not installed and/or used on more than one server computer at a time. The transfer requires renewed activation.
2.4 Software environment
The timeSensor® LEGAL software may be used only with an appropriate and compatible environment, i.e. computer hardware, operating systems, and any required additional programmes.
2.5 Additional provisions
The customer is entitled to make a copy of the software in executable form only for the purpose of backup and archiving. The backup or archive copy is to be labelled as such.
The customer is entitled to configure the software at their own risk within the scope provided for in the documentation and/or to connect it with interoperable programmes. Any other changes or development constitute an infringement of the protected rights of timeSensor AG and are not permitted.
Insofar as it is necessary to connect the software with interoperable programmes, the customer may request the necessary interface information from timeSensor AG in writing. If timeSensor AG does not provide the information within 30 days and following prior written notice, the customer has the right to trace back the necessary information for this purpose through the computer-readable programme (object code) in the source code. Any further access to the software through the source code is an infringement of the protected rights of timeSensor AG and is not permitted.
The customer is especially not entitled to sub-license, sell, lend, rent or lease the software, or share its use.
The commissioning of the software as well as its extension (increasing the number of users) or change of the licence (Sponsored Start Edition, Easy Edition, Smart Edition, Business Edition, First Edition, Department Edition) requires the software’s activation by an activation code. The respective activation code is sent to the customer upon completion of the order process. The activation of the software requires a working connection to the Internet.
4. Duration, termination and amendment of the agreement
This Software Licence Agreement is concluded for a limited or unlimited period depending on the model chosen.
In the case of an agreement for a monthly licence fee, the minimum rental period is 12 months. Thereafter, the rent may be terminated in writing or by e-mail by the customer at any time with a notice period of three months end of the month.
timeSensor AG may terminate the Software Licence Agreement in writing or by e-mail at any time with immediate effect, insofar as (a) the customer is in arrears with the payment of licence fees, or (b) the customer breaches the provisions of this agreement in spite of a reminder.
In the event of early termination of the Software Licence Agreement, the customer shall not be entitled to a refund of the licence fees.
In the event of extension or change of the licence, the existing agreement ends at the time of the new activation and is replaced by a new agreement in accordance with the order confirmation from timeSensor AG.
Upon termination of the software licence agreement, the customer is obliged to immediately discontinue use of the software and immediately and irrevocably delete all copies in their possession of the software or any part thereof.
5. Licence fees and payment
The licence fees vary by licence type and the number of users and are governed by the agreement with the customer or the order confirmation from timeSensor AG. Unless expressly stated otherwise, the licence fees are due and payable for their entire term at the inception of the agreement.
Unless expressly stated otherwise, all licence fees include VAT at the legal rate on the conclusion or renewal of the agreement.
In the absence of a payment being received by timeSensor AG, and even without a reminder, the customer shall default at the latest 30 days after the due date.
timeSensor® products are standard software and are licensed to the customer by timeSensor AG without warranty of any kind. In accordance with the Software Licence Agreement, timeSensor AG does not offer any support services for the software. The latter are based, where appropriate, on the Software Maintenance Contract. Warranty of any kind, especially for the non-existence of open and hidden defects as well as for non-infringement of third party rights, is waived in full. Any errors or suggestions may be reported by the customer to timeSensor AG, but with no legal claim to troubleshooting.
In particular, limited accessibility to the computer systems of timeSensor AG while performing maintenance is excluded from the warranty.
7. Software Maintenance Contract
7.1. Free licence
If the customer receives a free licence (Start Edition or Sponsored Start Edition), it is not possible to conclude an additional Software Maintenance Contract. Any services will be charged at a cost in accordance with an individual agreement or the valid price list of timeSensor® LEGAL provided at the time of delivery.
7.2. Monthly licence fee
The conclusion of a Software Licence Agreement for the Easy Edition, Smart Edition, Business Edition, First Edition or the Department Edition with a monthly licence fee includes the conclusion of a reduced Software Maintenance Contract under the following conditions (section: “Software Maintenance Agreement for timeSensor® products).
7.3. One-time licence fee
On conclusion of the Software Licence Agreement with a unique licence fee, the customer may at the same time, according to their needs, sign a one-year Software Maintenance Contract under the following conditions.
A licence extension during a running Software Maintenance Contract is mandatory in order to adapt the Software Maintenance Contract. The software maintenance fee for the licence extension is calculated pro rata up to the predetermined expiry of the Software Maintenance Contract.
8. Limitation of liability
timeSensor AG shall only be liable, regardless of the legal reason, for intent and gross negligence. Any liability for loss of profits, indirect damages, consequential damages, loss of data and for damages to third parties – as far as legally permissible – shall be entirely excluded. In the event of use by the customer contrary to the contract, any possible liability of timeSensor AG shall be cancelled.
9. Third party software
Certain components of the software or the software environment may be sub-licenced to the customer of timeSensor AG or licenced by timeSensor AG on behalf of the customer but for its own account.
10. Special provisions for demo versions
timeSensor AG provides the customer with demo versions for free. The right to use demo versions is limited to product evaluation without productive use for data processing. Moreover, the above clauses. 2.1, 2.2, 2.3, 2.4 and 2.5 apply accordingly.
The licence agreement for any demo version is valid for 3 months from downloading the software. Moreover, the above clause 4 applies.
The above clauses 1, 6, 8, 9 and 10 are applicable for demo versions. Clauses 3, 5 and 7 are not applicable.
Software maintenance contract for timeSensor® products
1. Services of timeSensor AG
On payment of the corresponding annual or monthly fee, the Software Maintenance Contract provides the customer with available software updates for the software licensed by the latter as well as the use of a telephone information service (hotline) according to the following provisions:
Software updates timeSensor AG informs the customers about new updates and makes them available on request, whereby timeSensor AG determines the choice of medium. Updates are usually done online and require the customer to have a functioning Internet connection. The customer has to update the software environment in advance if an update requires this. Software maintenance does not include an installation service on the part of timeSensor AG.
Updates are at the discretion of timeSensor AG for the purpose of troubleshooting and general improvements to the software. However, major upgrades are connected with new features or enhancements to the software, or are effected in the case of upgrades in the software environment (e.g. in the OS or database server). Major upgrades are not covered by the Software Maintenance Contract. Major upgrades may incur additional charges.
Hotline The telephone helpline (hotline) supports the customer by phone during programme operation in problem situations. The hotline is available to the customer via a (standard tariff) phone line on each working day from 09.00 to 12.00 and 14:00 to 17.00 (CET). In the case of software licenses with a monthly licence fee, the price list for the hotline of timeSensor® LEGAL, valid at the time of performance applies, and is invoiced accordingly. In other cases, the helpline is free of charge as part of a Software Maintenance Contract.
For the installation of software updates, as well as to diagnose problems related to the hotline service, the customer allows timeSensor AG expressly to access his server, using the third party software TeamViewer. TeamViewer is pre-installed at delivery on the customer’s server. At the customer’s request and at an additional cost timeSensor AG can substitute the access via TeamViewer by a VPN access.
The software maintenance fee is dependent on the software to be maintained and according to the existing Software Licence Agreement and is determined in accordance with the contract with the customer or the order confirmation of timeSensor AG. Unless expressly stated otherwise, the software maintenance packages are calculated annually.
All software maintenance packages are, unless expressly stated otherwise, plus VAT current at the time of conclusion or renewal of the contract.
One-time and recurring payment obligations of the customer are due immediately from contract inception for the duration of the respective pay period, insofar as timeSensor AG does not expressly indicate a later due date.
In the absence of a payment being received by timeSensor AG, and even without a reminder, the customer shall default at the latest 30 days after the due date.
3. Duration and termination of the contract
The duration of the Software Maintenance Contract is determined in the contract with the customer or the order confirmation of timeSensor AG. It ends without notice after the expiry of the agreed period as determined in the contract. This applies to the Software Maintenance Contract as a whole, regardless of any change of licence or extension.
If timeSensor AG delivers an invoice to the customer after the expiry of the contract, this then constitutes an offer to extend the contract. Upon payment of the invoice amount within one month, the customer accepts the offer.
Insofar as the customer does not want to close the Software Maintenance Contract simultaneously with the Software Licence Agreement, or if the customer wants to renew the Software Maintenance Contract before or after its end, as well as in the event of a prolonged interruption or an initial agreement, this involves a (new) Software Maintenance Contract in each case beginning on the date of expiry of the pre-existing Software Maintenance Contract (or without a pre-existing Software Maintenance Contract on the date of conclusion of the Software Licence Agreement). In this case, this date is also used to calculate the authoritative expiry date (Example: The original Software Maintenance Contract ran from 1.1.2013 to 31.12.2013 and was subsequently not renewed by the customer. On 15 June 2014, the customer again wants to enter into a Software Maintenance Contract for one year until 14 June 2015. The beginning of the Software Maintenance Contract relates back to the date of expiry of the pre-existing contract. It therefore begins on 1 January 2014 and ends on 14 June 2015, with the fee being calculated according to this contract period).
In the event of default of payment, timeSensor AG may terminate the Software Maintenance Contract in writing or by e-mail at any time with immediate effect.
The customer may terminate the Software Maintenance Contract in writing or by e-mail at any time with immediate effect.
In the event of early termination of a Software Maintenance Contract, the customer is not entitled to a refund with respect to the software maintenance fees.
4. Further provisions
Clauses 6 and 8 of the above GTC of the Software Licence Agreement are also applicable to the Software Maintenance Contract.
Server maintenance contract of timeSensor PLC
In the daily work with timeSensor® LEGAL, one tends to forget that the heavy lifting of data storage is done by the “4D Server” database – and the latter works only as well as the physical server (hereinafter the timeSensor® server), which it houses.
2. Scope of performance
Depending on the services chosen by the customer (according to the individual agreement), timeSensor AG provides the following services:
2.1. Basic package
- Monitoring of the timeSensor® server
- Monitoring log files monthly
- Install security fixes and updates to the Mac OSX operating system (minor updates) monthly
- Monitoring database
- Database integrity test monthly
- Reorganisation/compression of your database annually
- Monitoring the local backup
- Check backup monthly
- Test: restoring the backup annually
- Installation of updates and interim updates of 4D Server and timeSensor® LEGAL as needed
- Database repair as needed
- Fault diagnosis; response time within 8 working hours (standby time: Monday to Friday, 09.00-18.00 CET) as needed
Most services are preventive in nature. In the event of a malfunction, timeSensor AG supports the customer in the troubleshooting. The fix is usually handled (especially in the case of hardware defects) by a local service provider that may be retained and remunerated by the customer.
Individual maintenance work (especially installation, database reorganisation, database repairs) may cause temporary service interruptions. This maintenance window will be determined in consultation with the customer. timeSensor AG strives to keep the service interruptions as short as possible. There is no entitlement to maintenance windows outside of the standby time.
2.2. Reduction of the maximum response time
Beginning of the fault diagnosis within 4 hours of receipt of the fault report during the working hours of timeSensor AG.
2.3. Increasing security
Remote maintenance via VPN instead of TeamViewer; setting up by the customer through local technicians (not included)
2.4. Online secondary back-up
- Establish an online back-up, e.g. with Wuala (www.wuala.ch)
- Monthly review of the online data back-up
- Annual test of online data back-up restoration
Special conditions for secondary backup:
- Lead time from order to provision of the back-up in case of emergency: 2 weeks
- Settlement of added options from standby of the online back-ups
2.5. 4D Server maintenance
- Installation of new database versions
- Management of the 4D licences of the customer (timeSensor AG provides these to the customer to ensure that the correct number of available 4D licences is always available. If necessary and without prior consultation, timeSensor AG will procure licences directly from 4D on behalf and for the account of the customer. timeserver AG merely concludes a maintenance contract between the customer and 4D, whereby the free access of the customer is guaranteed on new versions of 4D. The content of this 4D-maintenance contract, in particular the price of the 4D maintenance, shall be governed by the terms of 4D Inc. and may be adapted.)
2.6 Online back-up server
- Connection of an online back-up server to bridge for a maximum of 4 weeks
- Setting up the database with customer data
- Instructions on how customer can access the database in case of malfunction
- Re-migration after the repair/substitution of the customer’s server
Special back-up server conditions:
- Lead time from order to provision of back-up server in an emergency: 2 weeks
- Settlement of the service surcharge from standby of the online back-up server
- For technical reasons, access to the online back-up server is slower than to a local server. This may considerably reduce the operating speed of timeServer® LEGAL.
3. Common provisions
3.1. Conditions for the provision of services
The following requirements apply especially to the service performance:
- The customer’s server to be serviced is accessible via a permanent broadband Internet connection;
- The customer’s server to be serviced is provided with a functioning UPS power supply;
- The 4D server is used by the customer as the database;
- The customer has installed and licensed timeSensor® LEGAL;
- The customer will provide timeSensor AG with access to their system (via TeamViewer or VPN), to the extent necessary for the performance of the contract;
- In certain cases, additional requirements may be announced.
3.2. Maintenance time
The performance intervals for the individual maintenance tasks are indicative (+/- 15 business days for monthly performance, +/- 40 business days for annual performance). The exact time of execution is at the discretion of timeSensor AG.
The price of the services depends on the individual contract. Payments shall be made annually in advance and payable by cash transfer. timeSensor AG provides a written statement of this. Upon termination of the service contract by the customer, a refund of payments already made is excluded.
timeSensor AG reports to the customer periodically about the services actually provided. Critical diagnoses, i.e. diagnoses that trigger action on the customer side, will be separately communicated as they become known in a manner corresponding to the urgency (e-mail, phone).
3.5. Other provisions
In the event of missing or inadequate service, the customer should inform timeSensor AG in writing within 8 working days of discovery of the defect; at the latest, however, within eight days since the last report, otherwise the service provided by timeSensor AG shall be taken to comply with the contract.
In the event of a timely reminder, timeSensor AG has a right to supplementary performance. The supplementary performance period is (from the receipt of each reminder) 8 working days for a monthly service and 20 working days for an annual service. Work and rest days are based on the official calendar of the Canton of St. Gallen. If the missing or inadequate service subsequently becomes obsolete, timeSensor AG will omit the subsequent performance of the service in question, unless the customer expressly insists on it being effected.
If the failure of the provision of contract services is for reasons that lie in the sphere of influence of the customer (especially lack of access permissions, lack of availability of the IT infrastructure, lack of collaboration), then timeSensor AG will immediately inform the customer of this by e-mail. In the event of a longer lasting impediment, a one-time notification is sufficient. timeSensor AG has the right, following consultation with the customer, to retry the service performance within 8 working days.
If the barriers to performance of the service lying in the sphere of influence of the customer are not eliminated during these 8 days, the contract for timeSensor AG shall be considered to have been fulfilled.
If the contract for timeSensor AG is made considerably more difficult (external causes) due to causes that are outside the sphere of influence of timeSensor AG and the customer, the parties shall negotiate a contract adjustment. If the parties cannot reach an agreement, the contract is considered to be terminated with respect to the service in question from the date of occurrence of the external cause. A major impediment to performance is assumed to represent a 1/3 increase in expenses.
Liability for late or improper performance is limited to the contract value of each service.
Liability for consequential damages is excluded to the extent permitted by law.
External service providers such as Wuala and 4D are not auxiliary persons of timeSensor AG. timeSensor AG acts solely to establish a contractual relationship between the customer and the external service providers. Therefore, timeSensor AG is not responsible for any lack of performance of the contract by external service providers.
The minimum contract period is one year. Thereafter, the Server Maintenance Contract may be terminated in writing or by e-mail by the customer or timeSensor AG at any time with a notice period of three months end of month.
All notices of timeSensor AG to the customer may be effected by e-mail to the e-mail address provided by the customer. If the customer changes his e-mail address, they must give written notice to timeSensor AG. The sending of the last known e-mail address will, in any case, be deemed valid.
The foregoing General Terms and Conditions including Software License Agreement, Software Maintenance Contract, and Server Maintenance Contract as well as the contract with the customer based thereon, or the order confirmation of timeSensor AG contain all agreements between the Parties. There are no verbal collateral agreements. Changes or additions to the contract must be in writing. This also applies to any waiver of the same.
The present GTC-based contracts with customers are subject exclusively to Swiss substantive law, excluding conflicts of law. The exclusive place of jurisdiction for all disputes arising from or in connection with this Software Licence Agreement shall be the headquarters of timeSensor AG. However, timeSensor AG is entitled to sue the customer at their residence or place of business.
If any provision of these GTCs are or become invalid or void, the effectiveness of all other provisions shall not be affected. The invalid or void provision shall be replaced by a valid one which comes as close as legally possible to the purpose of the ineffective or invalid provision.
GTC Version June 2015
timeSensor AG, Museumstrasse 47, CH-9004 St. Gallen, Switzerland