1. General Scope
1.1 The double-sided written terms are binding for the scope of the deliveries or goods and services (in the following called “services”). The general terms and conditions of the organiser (in the following called “organiser”) are only valid in as much as we have agreed to them in written form.
1.2 Our offers are subject to change without notice. We retain the right to make technical changes or changes in the types of services within reason. Any services ordered by an organiser are binding. We reserve the right to accept the contracted services ordered within two weeks upon receiving the order. The acceptance of the order may be made in written form. The simple acknowledgment that the order has been received does not denote acceptance of the order.
1.3 Our employees are not authorised to make any additional oral agreements or oral promises that go beyond the scope of the written contract.
1.4 Any changes in address, changes in ownership, company structure, or other business relations for sole-proprietorships shall be conveyed to us in written form as soon as possible.
2. Goods and Services
2.1 Fundamentally, the written description of our services is decisive for determining the nature of our services. Any presentation of our services on the Internet, in brochures, or similar such things, is non-binding. We do not provide any guarantees in the legal sense.
2.2 In so far as the contracted software is our standard software SPORTS or other standard software (not Smart Timing), the organiser has the non-exclusive, non-transferable right (limited to the calendar year in which the software was delivered) to use the software for the events stated in the contract in the unchanged form in which the services were contracted for the agreed upon devices. The organiser may make a back-up copy of the software without obtaining prior permission, which must be deleted once the right of use has expired. The organiser does not have the right of use of the software for other purposes, especially for permanent or temporary copying, in part or in full, in any means or form, in translation, in adaptation or new arrangement, for duplicating the results of any adaptations of the original or for duplicating the original in any form or duplicating any piece including renting, public presentation or public accessibility to the software, or for any use of the software outside of the uses for the events denoted in the contract. The organiser may only provide access to the software to third parties with our prior written permission. The organiser must insure that appropriate measures are taken to avoid misuse of the access data.
2.3. If we have provided the organiser the right to access our systems, for instance our results services, as part of our contracted services, the organiser may only provide third parties access to these systems with our prior written permission. The organiser must insure that appropriate measures are taken to avoid misuse of the access data. We shall not be obliged to provide information about measured results to participants or third parties.
2.4. In so far as we are conducting timekeeping services for sporting events (in the following called “events”), we will provide the results to the organisers electronically, if no other arrangements have been agreed upon. The athletic evaluation of the data is not part of the services, which we provide.
2.5 In so far as we are providing services in conjunction with online registration, we will receive the registration of participants in the name of and on account of the organisers. We shall not enter any contractual relations with the participants. This also applies when we do not provide services in conjunction with the online registration of the participants.
2.6 In so far as we provide the organiser with ChampionChips, other transponders, hook and loop strips, or other fasteners to be provided to the participants, the organiser is obligated to return these objects to us if he does not purchase them from us, for instance, in order to sell them to the participants. We thus do not enter any contractual agreements with the participants. The organiser does not have permission to represent us in legal business vis-à-vis the participants in this or any other matter.
2.7 We have the exclusive right to place logos or advertising for us or for third parties on the ChampionChips, other transponders, hook and loop strips, or other fasteners, which we provide.
3. Right of Use, Security Deposit
3.1 In so far as we have agreed to provide the organiser – especially as part of our Smart Timing offer – materials for usage (such as the Timing equipment, hardware, software), we are only obligated to provide the materials for usage when the organiser has paid the contracted security deposit. We are not obligated to hold the security deposit in a separate account. No interest will be paid on the security deposit. If we utilise our right to the retention of goods with respect to the provision of the materials for usage due to delinquent payment of the security deposit, this does not give the organiser the right to withhold payment of the usage fees.
3.2 While the right of use is in effect and after the right of use has expired, we reserve the right to use the security deposit to fulfil our demands from the contract for the right of use, even if protested by the organiser.
3.3 After the right of use has expired, we will settle the security deposit. We have a period of six months after expiration of the right of use to settle. During this period, the organiser shall not have the right of retention due to his claim to return of the security deposit, nor may he apply the deposit to offset outstanding payments.
3.4 The shipment of goods to the organiser and return of goods to us shall take place on behalf of and on account of the organiser. The organiser shall carry the risk of accidental destruction and/or accidental degradation of the materials provided in the time period between the provision of the materials to be utilised to the carrier and the return of the goods via the carrier to us. The organiser shall also be responsible for examining the materials upon arrival to determine if they are damaged and for confirming this with the carrier. Any damages shall be reported immediately and in written form. The organiser shall secure the damaged materials including the packaging to use as evidence.
3.5 The organiser is not permitted to make any changes to the materials provided to them. This also includes the installation or operation of hardware and software we have not explicitly approved.
3.6 For any functional defects for the materials supplied, the organiser shall not conduct any repairs until we have given prior written consent. Rather, the organiser shall notify us immediately about functional defects of any kind. 3.7 The organiser shall not have the right to claim damages or reimbursement of expenses for any damages to provided materials at the conclusion of the contract for which we are not responsible.
4. Prices and Terms of Payment
4.1 In case of price increases or higher costs between the conclusion of the contract and the date of the contracted services, we reserve the right to adjust prices, in so far as more than four months lie between the date of the conclusion of the contract and the date of the contracted services and we announce the price adjustment at least three weeks before the start of the event in written form. In so far as the price adjustment is greater than 10% of the contracted price at the time of the onset of the services, the organiser has the right to retract from the contract up to one day before the beginning of the contract in written form.
4.2 Payments shall be made to us without any deductions and free of transaction charges.
4.3 The organiser shall have no rights to retention or to withhold payment unless the underlying counterclaim is undisputed or finally determined by court order.
5. Retention of Ownership
5.1 Until fulfilment of all claims (including balance claims from any open accounts), which may currently or in the future exist for any legal principles against the organiser, we shall retain the following securities, which we can release at our discretion in as much as their value exceeds our demands by more than 10%.
5.2 All delivered goods shall remain our property. Processing or remodelling is always carried out on our behalf, but without any obligation for us. If our (joint) property right is invalidated due to combination, it is already agreed now that the organiser's (joint) property rights to the combined item are transferred to us pro rata (invoice value). The organiser shall keep custody of our (joint) property free of charge. Goods which are our (joint) property are hereinafter called "goods subject to retention of title".
5.3 The organiser has the right to process or sell the goods subject to retention of title in the normal course of business, provided that he is not in default. Pledging the goods as collateral or transfer by way of security is not permitted, nor is it permitted to stipulate non-assignment clauses. The customer already assigns to us now by way of security and to the full extent any claims arising from re-sale or any other legal principle (insurance, illegal action) connected with the goods subject to retention of title (including balance claims from any open accounts). We will accept assignment of the claims.
5.4 Our entire rights of retention of ownership (simple, extended, or lengthened rights of retention) also shall not lapse when goods that we supplied are purchased by a different buyer, in so far as this buyer did not pay us for the goods. This is especially true for the sale of goods within the framework of partner companies. 5.5 Subject to revocation at any time, we authorise the customer to collect in his own name the claims for his invoices which have been assigned to us. This right to collect claims is valid in as far as bankruptcy has not been filed for the organiser‘s assets; this right can otherwise only be retracted if the organiser does not properly comply with his obligations to pay.
5.6 In the event of claims by third parties on the goods subject to retention of title the organiser must state that it is our property and must inform us immediately.
5.7 In the event of the customer failing to meet his contractual obligations, especially in the case of default on payment, we shall have the right to take back at the customer's expense the goods subject to retention of title, or, as the case may be, demand the assignment of the organiser's right to recovery against third parties. Unless subject to the regulations on financial assistance between entrepreneurs and consumers (Article 503 German Civil Code/BGB), the taking back or seizure of reserved goods shall not constitute withdrawal from the contract.
5.8 Upon request, the organiser shall inform us of his purchaser and inform him of the cession as well as give us the necessary documents for asserting our rights. We also shall have the right to notify the organiser’s purchaser of the cession.
6. Protection of Data Privacy
6.1 Where we collect, process and utilize personal data (especially participants’ personal data) in the context of our services, this shall be done within the framework of “commissioned data processing”. The organiser as "controller" within the meaning of Art. 4 No. 7 GDPR is obliged pursuant to Art. 28 (1) GDPR to carefully select the contractor taking particular account of the suitability of the technical and organisational measures he has taken; the organiser confirms with the conclusion of the contract that he has selected us accordingly.
6.2 (1) According to Article 4 Nr.1 GDPR, personal data means any information concerning the personal or material circumstances of an identified or identifiable individual (data subject).
(2) According to Art.4 Nr.8 GDPR Commissioned data processing is the order processing of personal data in accordance with the instructions by of the controller.
(3) Instruction means an order given by the customer as controller concerning a certain action relating to data privacy (e.g. anonymization, blocking, deletion, issue) and associated activities by the contractor in relation to personal data. The instructions are defined by the order and can then be changed, supplemented or replaced by the organizer in writing or in an electronic format (text form) to the place designated by us by individual instructions (individual instructions). Instructions that are not provided for in the order are treated as requests for service changes. Oral instructions must be confirmed immediately in writing or in text form.
6.3 (1) The scope, type and purpose of the intended order processing shall be determined as follows:
(a) Registration for the event.
The data necessary for the organisation of the events are collected from the data subject. The data subject provides the information either in the form of the online registration on the website of the organizer or on the website of mika:timing or in written form on the registration form for the respective event.
For the pre-registered participants, bib numbers and other documents for the event are usually compiled by the organizer (or on his behalf by us) and the participation fee is collected in advance by direct debit or, if desired, by credit card from the athlete's account. For this purpose, the bank details or credit card details of the athlete are requested.
The following personal data is collected, processed and used as mandatory data:
Both gender and year of birth are used as criteria for determining the ranking for the evaluation of event results. The event result can be presented both as an overall ranking and as a ranking within certain age groups (under 20 years, between 30 and 39 years, ...).
Further data such as the club, an academic title or the postal address and telephone number may be provided voluntarily. They are used e.g. as communication data by the organizer, if further inquiries are or are communicated in the case of an accident to the medical staff or law enforcement officers on request by the organizer. In addition, statistical evaluations of the age structure, the origin of the participants and the like are prepared
(b) Preparation and presentation of results.
The measurement of the performance (time) on the day of the competition takes place via so-called transponder chips with a unique number, which either belong to the participant personally or are made available on loan by the organizer on the day of the event. The time recording system only records the times and the corresponding chip number. Only an assignment of the chip number to the person and their data allows a representation of the athlete's performance and a ranking for the results list.
On separate written order of the organizer, we keep the results of the event in a historical database for several years and thus enable the organizer, for example, to honour athletes who have participated in the event several times. The scope of the order includes making the results of an event available on the Internet for all participants and other interested parties. Since often several 100 or even several 1000 athletes participate in an event, the results can be searched and filtered according to various criteria. Usual criteria are the name, the club and the bib number of the athlete as well as the course, if different courses are offered at an event.
(c) Map display
If ordered, the position of the data subject is displayed on a map during the event, on the basis of split times
If ordered, the position of the data subject is also displayed on a map during the event via GPS location.
The organiser assures that he fulfils the necessary information obligations for (a) to (d) to the data subjects concerned and has obtained any necessary consent to (a) to (d).
(2) The group of persons affected by the handling of their personal data under this mandate are:
We confirm to the organizer that we are aware of the relevant data protection regulations of the GDPR, and other relevant legal norms. We observe the principles of proper data processing and guarantee the data security measures specified in this agreement and prescribed by law.
6.4 Our obligations as contractor
(1) We may only process data of data subjects within the scope of the order and the instructions of the customer unless there is an exceptional case within the meaning of Article 28 (3a) GDPR. We will inform the client immediately if we are of the opinion that an instruction violates applicable laws. We may suspend the implementation of the instruction until it has been confirmed or amended by the client.
(2) In our area of responsibility, we have designed the internal organization in such a way that it meets the special requirements of data protection. We have taken technical and organisational measures to adequately protect the client's data which meet the requirements of the GDPR (Art. 32 GDPR).
The technical and organisational measures taken ensure the long term confidentiality, integrity, availability and resilience of the systems and services in connection with the data processing. The client is aware of these technical and organisational measures and is responsible for ensuring that they assure an appropriate level of protection for the risks of the data to be processed.
We reserve the right to change the security measures taken, however, we ensure that they do not fall below the contractually agreed level of protection.
(3) We support - as far as agreed and within our possibilities - the client in the fulfilment of the requests and claims of the persons concerned according to Chapter III of the GDPR as well as in the compliance with the obligations mentioned in Art. 33 to 36 GDPR
(4) We guarantee that our employees dealing with the processing of the client's data and other persons working for us are prohibited from processing the data outside the instructions. Furthermore, we guarantee that the persons authorised to process the personal data are bound to confidentiality even beyond the existence of the employment relationship or are subject to an appropriate legal duty of confidentiality. The confidentiality obligation shall continue to apply even after termination of the order.
(5) We will inform the customer immediately if we become aware of any violations of the protection of the customer's personal data. We take the necessary measures to secure the data and to minimise possible adverse consequences of the persons concerned and discuss these immediately with the client.
(6) We shall name the customer the contact person for data protection questions arising within the scope of the contract.
(7) We guarantee to comply with our obligations under Art. 32 (1) lit. d GDPR and to establish a procedure for the regular review of the effectiveness of technical and organisational measures to ensure the security of processing.
(8) We correct or delete the contractual data if the customer instructs us to do so and if this is covered by the framework of instructions. If deletion in conformity with data protection or a corresponding restriction of data processing is not possible, we shall undertake the destruction of data carriers and other materials in conformity with data protection on the basis of an individual order by the customer or we shall return these data carriers to the customer, unless this has already been agreed in the order. In special cases to be determined by the client, the goods shall be stored or handed over. A remuneration or corresponding protective measures in this regard are to be agreed separately, unless this has already been correspondingly agreed in this contract.
(9) Data, data carriers and all other materials shall either be surrendered or deleted at the request of the organizer at the end of the order/contract.
(10) In the event of a claim against the organizer by a data subject with regard to any claims pursuant to Art. 82 GDPR, we undertake to support the customer in defending the claim within the scope of our possibilities.
(6.5) The obligations of the client
(1) The client must inform us immediately and completely if he detects errors or irregularities with regard to data protection regulations in the order results.
(2) In the event of a claim against the principal by a data subject with regard to any claims under Art. 82 DS-GMO, 6.4(10) shall apply mutatis mutandis
(3) The customer shall inform us of his contact person for data protection questions arising within the scope of the contract.
(6.6) Requests from data subjects
(1) If a person data subject contacts us with claims for correction, deletion or information, we will refer the data subject to the customer, provided that an attribution to the customer is possible according to the data of the data subject. We will forward the application of the person data subject to the client without delay.
(2) We support the customer within the scope of our possibilities, on instruction and as far as agreed.
We are not liable if the request of the person data subject is not answered by the client, not correctly or not in due time.
(6.7) Verification possibilities
(1) We shall prove to the customer that we have complied with the obligations laid down in this contract by suitable means.
(2) If inspections by the client or an auditor commissioned by the client are required in individual cases, they shall be carried out during normal business hours without disrupting operations after notification, taking into account an appropriate lead time. We may make this conditional upon prior registration with a reasonable lead time and the signing of a confidentiality agreement with regard to the data of other clients and the technical and organisational measures set up. If the inspector commissioned by the client is in a competitive relationship with the contractor, the contractor has a right of objection against the contractor commissioned by the client.
We may charge an appropriate fee for assistance in carrying out an inspection. The cost of an inspection is generally limited to one day per calendar year.
(3) If a data protection supervisory authority or another sovereign supervisory authority of the contracting authority carries out an inspection, (2) shall apply mutatis mutandis. It is not necessary to sign a confidentiality agreement if this supervisory authority is subject to professional or legal secrecy, in which a violation is punishable under the Criminal Code of Germany
(1) The client agrees that we may call in subcontractors. We will inform the client before involving or replacing the subcontractors.
The client can object to the change - within a reasonable period - for an important reason - at the contact person designated by us. If there is no objection within this period, consent to the change shall be deemed given.
(2) If we place orders with subcontractors, it is incumbent on us to transfer our duties under data protection law from this contract to the subcontractor.
(3) Sub-contracting relationships within the meaning of this agreement do not include services which we make use of with third parties as an ancillary service to support the execution of the order. These include, for example, telecommunications services, maintenance and user service, cleaning staff, inspectors or the disposal of data carriers. However, in order to guarantee the protection and security of the organizer's data, we are obliged to make appropriate and legally compliant contractual agreements and to take control measures, even for ancillary services provided by third parties.
(1) Should the client's data be endangered by seizure or confiscation, by insolvency or settlement proceedings or by other events or measures taken by third parties, the contractor shall inform the client immediately. The contractor shall immediately inform all persons responsible in this context that the sovereignty and ownership of the data lies exclusively with the client as "person responsible" within the meaning of the Basic Data Protection Ordinance.
(2) In the event of any contradictions, these data protection regulations take precedence over the regulations of the order.
(6.10) The processing and use of the data shall take place exclusively in the territory of the Federal Republic of Germany, in a member state of the European Union or in another contracting state to the Agreement on the European Economic Area. Any transfer to a third country requires the prior consent of the organiser and may only take place if the requirements of Art. 45 GDPR are complied with.
(6.11) (1) In accordance with Art. 4 No.7 GDPR, the organiser is responsible for the use of data within the scope of this order and is therefore also responsible for ensuring that the regulations of the GDPR and other regulations on data protection are complied with.
(2) We are subject to the instructions in all matters of the obligations arising from the service agreement concluded between the organizer as client and us as contractor (in the sense of Art. 28 (3) GDPR).
(6.12) (1) By organizational and/or technical measures we ensure that the bank/account data of the participants are irretrievably deleted at the latest 15 months after the end of the respective event, unless otherwise instructed by the customer or unless there is a legal obligation to keep the data safe.
(6.13) If the organiser hands over transponders, e.g. ChampionChips, which can (also) be used for further events of other organisers to participants, we are entitled to store the data of the participants required for the use of the transponders at further events and to continue to use them in future for the purpose of using the transponders; in this respect we are "controller" within the meaning of Art. 4 No.7 GDPR. The organiser shall obtain the consent of the data subjects and draw their attention to the fact that otherwise the transponder cannot be used for future events.
(6.14) The organiser will inform the participants that he is "controller" in the sense of data protection and for what purpose the data should be processed and used (e.g. for the organisation of the event concerned).
(6.15). If we perform online registration services, we will inform the participants in the online registration form according to sections 6.3, 6.12 and 6.13 and obtain the consent of the participants according to section 6.12.
7. Liability, Material Defects
7.1 Damages and claims for reimbursement of expenses by the organiser (in the following called “damage claims) are limited to the amount of the contractual net remuneration from the respective complete contract (e.g. for an event or for the use of a Smart Timing), regardless for what legal reasons, in particular due to claims to damages on account of breaches of duties from the contractual relationship and from tort.
7.2 The above shall not apply in the case of mandatory liability, e. g. under the German Product Liability Act, in the case of intent, gross negligence, injury of life, body or health, or breach of a condition which goes to the root of the contract. However, claims for damages arising from a breach of a condition which goes to the root of the contract shall be limited to the foreseeable damage which is intrinsic to the contract, unless caused by intent or gross negligence or based on liability for injury of life, body or health. The above provision does not imply a change in the burden of proof for the organiser.
7.3 The period that the organiser has a valid claim for damages is 12 months. This does not apply in so far as the law according to § 438 Sect.1, No. 2 [Construction works and goods for construction works], 479 Sect. 1 [Right of recourse] and 634a Sect. 1, No. 2 [Construction defects] of the BGB does not specify longer periods, in cases of bodily injury, sickness or disease or death, if there is an intentional or grossly negligent breach of duty by us, and in the event of fraudulent concealment of a defect. This shall not affect statutory regulations relating to suspension of the period of limitations and recommencement of warranty periods.
7.4 In the case of valid compensation claims by the organiser according to clauses 7.1 and 7.2, these demands are subject to a limitation period as specified in clause 7.3. In the case of claims for damages under the German Product Liability Act, the statutory provisions governing limitation periods shall apply.
7.5 In so far as equipment, including computer hardware and software,
within the framework of the contract is under the care of the organiser, or when the organiser is utilising our equipment for an event, the organiser is liable for loss or damage. This does not apply if the loss or damage was not caused by the fault of the organiser. The burden of proof lies with the organiser. In as much as the organiser has taken on the surveillance of equipment that is in our care, the burden of proof lies with us that the loss or damage is not by our fault.
8. Final Conditions
8.1 If the organiser is a chartered merchant, a legal entity under public law or special federal funding, the sole venue shall be Bergisch Gladbach in the Federal Republic of Germany for all disputes resulting directly or indirectly from the contractual relationship. We also reserve the right to take the organiser to court at the venue of his legal jurisdiction.
8.2 Legal relations existing in connection with this contract shall be governed by German substantive law, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
8.3 The contract remains valid and binding in its other provisions even if individual provisions are legally null and void. This shall not apply where adhering to the contract would represent an unreasonable hardship for a party.
Supplementary general terms and conditions for payments made with the online payment system
In the case of online payment systems, the following regulations are valid in addition to the prior general terms and conditions:
1. Online Payment System
1.1 We shall process the payments by the participants via our interface in the name and on behalf of the organiser. We shall verify the payment details securely and electronically. The data will be stored electronically. The organiser shall have the right to access the participant data and registrations for the respective contractual event at any time.
1.2 The online payment system accepts Visa and MasterCard cards from all countries. The payment will be authorised when the card number and expiration dates are valid. The authorisation data shall be transferred automatically. The declaration of liability for the respective credit card agency shall apply. The credit card disagio (3.60 percent of the transaction) will be deducted by us. The organiser does not require his own credit card contract.
1.3 The online payment system accepts payment by direct debit for payments made in Germany. Participants shall have the opportunity to reverse payments without having to provide any reason within 42 calendar days of the date the transaction posted at the bank. The organiser shall carry the costs of any reverse payments. 1.4 We shall charge the organiser a specific sum set in the contract for each participant, regardless of the amount of payment, which we will collect in the name of and in behalf of the organiser during the booking of the participants’ registration fees
1.5 The texts and links provided by us shall not be altered in any manner. It is not permitted to open the registration form in a separate frame or Java window. We shall not be liable for incorrect linking and any costs accrued thereby. The logo for the online payment, which we provide, shall be integrated in the race form.
2. Payment of Race Fees to the Organisers
2.1 We are not responsible for the obligations of the participants to make payment of the race fees or any other fees to the organiser.
2.2 We shall transfer the race fees in regular intervals to the organiser’s account, at the latest four weeks after receipt of the payment of at least 500 Euros. The payments we receive will not collect interest nor will they be saved in a separate account from our other assets. We have the right to deduct any contractual payments, any disagios or reverse payment fees. Any commissions to the benefit of the organiser shall be calculated and paid out after the registration deadline has ended.
2.3 We reserve the right to offset any demands from this and/or other contractual relations with the registrations fees which we collect.
Version: September 2010
TRANSLATION DISCLAIMER: This document is a non-binding English translation of the contract. Therefore, only the original German version of the contract shall be binding. Mika Timing GmbH shall not be held liable for any inconsistency, mistake, misrepresentation, falsehood or misleading statement as contained herein resulting from a mistake in the translation, or inadequate or inappropriate translation. For all purposes, the German version shall prevail.