Unless there is any deviation rule for Service Contracts, Standard Software and/or Individual Software and/or Software Licensing Terms, the following General Terms and Conditions will apply. The General Terms and Conditions of eMind GmbH (hereinafter referred to as eMind) apply to all one-time and ongoing services provided by eMind and its legal successors, including those provided after mergers with other companies, for all commercial activities, regardless of the classification under contract law. The GTC will also be valid for all future business relationships, without the need for explicit inclusion. In this context, eMind's terms and conditions (together with Special Terms and Conditions) always form the basis of its activities. The current version of these Terms and Conditions, accessible at www.eMind.de/agb.html on the internet, will be effective at the latest when eMind's services are first used. eMind does not recognize conflicting terms. Any deviation from these terms will be valid only if explicitly accepted in writing by eMind. There will be no verbal collateral agreements. In individual cases, deviations must be confirmed in writing by eMind management to the customer.
Hardware installation: Unpacking and assembling hardware, connecting it to the customer's power source, and performing a device test. Downtime: Times when eMind receives (error) messages, usually during eMind's working hours. Data backup: All technical and/or organizational measures to ensure the availability, integrity, and consistency of IT systems, including appropriate data backup, covering data, programs, and procedures used for processing purposes. Adequate data protection means measures that, depending on the sensitivity of the data, enable the immediate or short-term restoration of the state of systems, data, programs, or procedures after a noticeable degradation due to a harmful event; measures include at least the production and testing of copies of software, data, and procedures in defined cycles and generations. Data loss: Loss (deletion) or loss of data integrity and consistency. Replacement delivery: The provision of hardware and/or software by eMind or a proxy representative to fulfill contractual services. Warranty period: The period defined by legal provisions in force at the date of signing the contract. Hardware: Devices or machines listed in the contract, including optional additional equipment, usually specified in more detail by manufacturers through order numbers (if available, completed with the model name). Maintenance: Measures to maintain and restore the target condition, as well as to determine and evaluate the actual condition. Material costs: Expenditures made by eMind for raw materials, consumables, and consumables within the scope of service provision, as well as for the use and consumption of other products. Incidental expenses: Expenses that cover eMind's requirements for the provision of goods and services. They are not included in the agreed-upon fee and are neither travel nor material costs. Response time: The time when eMind should start maintenance work. It begins with the receipt of the fault report within the agreed-upon service times and only works during the agreed-upon service times. Travel expenses: Expenses incurred by eMind for travel to and from the agreed-upon place of service if different from the place of operation and are normally not part of personnel deployment costs. Expenses may include travel expenses, accommodation allowances, incidental travel expenses, etc. Written form: According to §§ 126, 126b, 127 BGB. Industrial property rights: Especially industrial property rights and copyrights. Standard software: Software (programs, program modules, tools, etc.) developed by eMind for the general needs of the majority of customers, excluding software specifically developed for the customer, including relevant documentation. Pre-installation: Pre-loading of (standard) software onto specific hardware before delivery. User manual: A printed or electronic description of the products provided to the customer at the discretion of eMind. eMind will deliver the current version, determined by the number of copies agreed upon in the contract, at the time of signing the contract. Additional and/or newer versions must always be separately requested and paid for by the customer.
Unless explicitly stated in writing as binding, eMind's offers may vary in terms of prices, quantities, and delivery times. eMind reserves the right to make technical changes at its reasonable discretion. eMind's product descriptions should be considered as invitations to submit offers. In case of inconsistencies between the contract signed in writing and eMind's order confirmation, the content of the order confirmation shall prevail. Rules regarding commercial confirmation letters apply with necessary modifications. A contract with eMind can also be concluded by the commencement of the performance of the service ordered by the customer. eMind always reserves the right to verify the customer's ability to pay. If there is a significant deterioration in the customer's financial conditions, particularly in case of continuous seizures against the customer or other sanction measures, or if bankruptcy proceedings are initiated, eMind has the right to withdraw from the contract. Such withdrawal will not be valid if the customer provides definitive security within five business days of eMind's written request.
In the absence of a separate agreement, prices for eMind's services and software products are determined based on the price lists valid at the time of contract signing. These can be requested from eMind. eMind has the freedom to present them to its customers on the website www.eMind.de. Upon the publication of a new price list, all previous price lists and their contents become invalid. For service contracts lasting more than 12 months, eMind reserves the right to increase prices or fees annually by up to 3% of the agreed service fee, depending on the contract.
If the customer makes payments to account A, these shall be in accordance with §§ 366 para. 2 and 367 BGB. If the customer establishes a different payment arrangement, eMind may reject the payment.
eMind retains ownership of the (standard) software products delivered to the customer (as long as delivered in the form of data carriers such as CDs, CD-ROMs, along with installation and operating instructions, hardware locks, or similar) or hardware until all claims arising from the business relationship and/or other legal grounds existing at the time of delivery or arising at a later date are paid. Upon the customer's request, eMind will release the security if the value of the collateral exceeds the balance amount available at the time of the request by more than 20%. In the event of the customer's delayed payment, unless explicitly notified by eMind, the approval of the retention of ownership by eMind will not be considered a termination of the contract. The customer, if authorized under the contract, may only sell goods subject to retention of ownership in the ordinary course of business and as long as not in default. Claims arising from the resale are transferred to eMind through assignment. These goods subject to retention of ownership serve as collateral to the same extent. The customer has the right to collect these receivables as long as they fulfill their obligations under the contract. The amounts collected must be paid to eMind without delay. If eMind enforces the retention of ownership, the customer's right to use the software/hardware will cease. In this case, eMind reserves the right to terminate the use of the software. After resolving the outstanding claims, eMind will send the customer a new license file as defined in § 11 GTC. Otherwise, all program copies made by the customer must be immediately deleted. Upon retention of ownership, hardware parts must be returned to eMind by the contracting party, with the costs borne by the contracting party. The contracting party is obligated to inform eMind of the scope of the deletion process within two weeks after claiming retention of ownership.
In case of default and/or deferred payment, interest is due at a rate of eight percent above the current base rate according to §§ 366 para. 2 and 367 BGB. If eMind can prove a higher fee or if the customer pays a lower fee, the interest rate will be adjusted accordingly. This does not affect the right to claim additional damages for default. For each unsuccessful or returned automatic payment, the customer shall reimburse eMind for all resulting costs. Instead of having to demonstrate damages/costs, eMind may request a fixed fee of €7.50 for each such case. The contracting party has the freedom to prove that the damages are less or that no damage occurred. If an automatic payment instruction is given, the customer commits to immediately notify eMind of any changes to their bank details. Objections to eMind's invoices must be made immediately upon receipt of the receipt. If the inaccuracy of the invoice is not obvious or significant (more than 5% of the order volume), failure to object in a timely manner will be deemed acceptance. If more than five business days have passed since the invoice was received, the parties generally assume that there was no timely objection. The parties assume that invoices sent within Germany are usually received three business days after being sent. The customer reserves the right to rebut this assumption. Services are billed at intervals determined by eMind at its reasonable discretion. All amounts are subject to the current legal rate of value-added tax. If the customer is not subject to value-added tax, they must provide eMind with their VAT number when placing an order. If the customer violates this obligation, they shall bear the interest loss resulting from the delay at the above-mentioned default interest rate. In case of significant default in payment of a major part of the invoice amount or if eMind's payment request is at risk due to a deterioration in the customer's financial conditions, as defined in Section 321 of the German Civil Code (BGB), eMind will be entitled to declare all claims immediately due. In the case of a setup payment agreement, the customer will be considered in default if they are delayed with two installations accompanying the payment, and a significant portion of the invoice amount remains unpaid.
Subject to Article 6, the customer may only assign the rights arising from the relevant contractual relationship to third parties with the prior written consent of eMind.
In the execution of the contractual relationship between eMind and the customer, if disputes arise regarding compliance with the content, quality requirements, format requirements, or similar aspects of IT terms and symbols with the relevant DIN standards in effect at that time, the contract shall be deemed accepted.
The customer has the right to receive hotline support by signing the relevant service contract. Additionally, the Special Terms and Conditions for Service Contracts of eMind will apply.
The customer will receive a license code ('license file') from eMind to activate the provided software and/or for the use of other (services). In case of loss or destruction of this file, the customer must purchase new additional licenses for all programs and/or other (services) licensed in this file at the current prices. Using the 'Lic. file' to run eMind's other software, especially without a license code, is prohibited, e.g., for pirated copies. Violations of this provision give eMind the right to impose a contractual penalty on the customer. Subject to judicial review of the appropriateness of the penalty, the penalty will in any case be up to 50% of the order value.
Software subject to licensing will be provided according to additional separate agreements to be concluded or subject to the software license terms stated here. eMind retains all existing and future copyright and/or industrial property rights to all programs, documents, or items sold by eMind, including cost estimates, drawings, and other parts of quotations. The customer will be responsible for all damages arising from the violation of the obligations mentioned above. In each case of a violation, eMind may, without prejudice to further damage claims, demand a contractual penalty of at least 5% of the purchase price and/or the license fee for the respective general program, without eMind having to provide detailed information on the damage incurred. All programs, software, and manuals provided by eMind are protected by copyright and related rights. Granting any right of use requires the explicit written consent of eMind. If a third party asserts claims against the customer, claiming a violation of the software's ownership rights provided by eMind, and as a result, the use of the software is impaired or prohibited, eMind will be responsible as follows: eMind will, at its discretion and at its expense, either modify or replace the software so that it no longer infringes on ownership rights but still reasonably complies with the agreed-upon functional and performance features for the customer, or reimburse the customer for the license fees paid for the period of use. eMind will assume all necessary court costs and attorney's fees incurred by the customer as a result of eMind's legal defense. The customer is obligated to immediately inform eMind of any third-party claims, not accept the infringement of ownership rights, and leave any dispute, including extrajudicial resolution, to eMind, or only to eMind. eMind will bear all necessary court costs and attorney's fees incurred by the customer in the legal defense of claims by third parties if the customer immediately informs eMind of any such claims, does not acknowledge the infringement of ownership rights, and leaves the dispute, including extrajudicial resolution, to eMind or only to eMind. The customer must expressly exclude any claims for damages in the event of a breach of duty. If the customer stops using the software to mitigate damages or for other significant reasons, they must declare that they acknowledge the alleged infringement of ownership rights. eMind will be exempt from liability to the extent that the customer is responsible for any violation of third-party industrial property rights, excluding claims by the customer for the violation of other third-party industrial property rights. This exception does not apply in cases of intent or gross negligence.
Order processing within eMind is carried out with the help of automatic data processing. The customer allows the processing of data known to eMind and necessary for order processing during the contractual relationship. The customer also agrees that eMind may use the data obtained from the business relationship with the customer for eMind's commercial purposes, including eMind. In this respect, and in particular, invoices (or delivery notes) will be deemed notifications within the meaning of the Federal Data Protection Act sections 19a and 33. Unless expressly agreed otherwise, information sent to eMind in connection with orders is not considered confidential.
Delivery dates or deadlines can always change. In case of doubt, if the words 'fixed,' 'definite,' 'complete,' or 'at the latest' are found in the purchase order, a binding delivery date is considered agreed upon. In general, if there is doubt, the delivery date is determined by eMind based on its expected capacity, regardless of whether it occurs at eMind's facilities or at the facilities of the manufacturer or subcontractors, subject to unforeseen conditions and obstacles beyond eMind's control, making it logically unreasonable for eMind to make the delivery at the agreed time. If eMind is delayed in delivery for more than 2 weeks, the customer can withdraw from the contract after setting a reasonable grace period in writing. If the delay in delivery exceeds 2 weeks, eMind also has the right to withdraw from the contract in whole or in part. The customer will be informed of the delay, and if payment has already been made, it will be refunded. In the case of software development or additions, these periods will be extended to a maximum of 6 weeks. eMind will not be responsible for delivery and performance delays due to force majeure events and/or events that significantly make delivery for eMind substantially difficult or impossible, such as strikes, lockouts, official orders, etc., even if they occur at eMind's suppliers or subcontractors, even if binding final deadlines and dates are agreed upon. In addition, eMind is entitled, under reasonable conditions and deviations, to deliver, change, and/or adapt contract products that deviate significantly from the order for which the customer can reasonably expect, taking into account the customer's interests. eMind's compliance with delivery and performance obligations is dependent on the customer's timely and proper fulfillment of its obligations. eMind has the right to make partial deliveries and provide partial services at any time, and invoice them.
eMind's liability for negligent breaches of duty does not apply unless it concerns damages resulting from injury to life, body, or health or warranties or claims under the Product Liability Act. Furthermore, liability for the breach of obligations essential to the proper performance of the contract ('cardinal obligations') and the violation of obligations on which the customer can regularly rely will remain unaffected. In the case of property damage and financial loss, liability will be limited to contract-specific foreseeable damage. The above also applies to breaches of duty by eMind's vicarious agents.
eMind maintains liability insurance to cover typical contract-specific foreseeable damage for which eMind is liable. If the customer provides evidence of such damage, eMind will assign the customer's claim for damages against the liability insurance for performance-related liability. eMind will not be liable unless the customer asserts a claim against eMind's liability insurance. This does not apply if redirecting the claims to liability insurance would unreasonably burden the customer with costs and/or risks. In this case, eMind will be directly liable for contract-specific foreseeable damage.
Compensation claims will be forfeited if they are not brought to court within three months after final rejection by eMind. If the claim is referred to the liability insurer, the statute of limitations will not begin until a claim against the liability insurer has been unsuccessfully asserted in court.
The customer is obliged to immediately notify eMind in writing of any noticeable defects, damage, and/or malfunctions. The parties agree that, in cases where more than three business days elapse between the occurrence of the defect, damage, and/or malfunction and the receipt of the notification, urgent notification will generally not be made. The notification obligation does not apply if the defect, damage, and/or malfunction is obvious to eMind. If the customer becomes aware of situations that give rise to suspicions of unauthorized access to eMind servers by at least third parties, it must be reported immediately. If the customer fails to notify eMind of a defect in a timely and proper manner, the customer will be liable to eMind for the typical foreseeable damage resulting from the failure to notify. In this regard, eMind will not be entitled to a reduction in the usage fee and/or compensation for damage and/or expenses or the right to terminate the contract without prior notice from eMind due to the customer's failure to notify.
In the event of data loss, eMind will only be responsible for the expenses required to restore the data if the customer has made appropriate data backups (regular and risk-adapted backups). In case of slight negligence on the part of eMind, this responsibility will only apply if the customer has performed a suitable data backup immediately before the preventive action that led to data loss.
In the case of purchasing used goods, the customer confirms that the delivered goods were in perfect condition at the time of delivery. In the event of a warranty claim – material defect / legal defect or lack of guaranteed quality(ies) – eMind has the right, at its discretion, to remedy the defect and/or provide a replacement. The customer retains the right to withdraw from the contract and/or demand a price reduction after the unsuccessful completion of the remedy period. No guarantee is given for services explicitly defined as 'goodwill,' 'free,' or similar by eMind or (commercial) representatives that can only be understood as such under certain conditions. The goodwill obligation is subject to §§ 521, 599 BGB. No liability is accepted in cases of misuse or excessive use.
The customer must immediately and in writing report any transport damage to the carrier and send a copy of the correspondence to eMind. Unless otherwise agreed, eMind has the right to insure against all transportation risks at the customer's expense for the goods to be shipped, but is not obligated to do so. This does not affect the transfer of risk as far as the assumption of possible transport costs is concerned.
The customer can only assert claims against eMind that are undisputed, ready for decision, and/or finally determined. The customer will have a right of retention based on the same contractual relationship, whether under § 273 of the German Civil Code (BGB) or § 369 of the German Commercial Code (HGB), for counterclaims arising from the same contractual relationship. Due to defects, the customer can only withhold payments to a reasonable extent, taking into account the defect, and only if the defect is indisputably present. If the customer is delayed in providing eMind with a proper performance for which eMind is entitled to demand, eMind will have the right of retention over the arising debts, even without explicit objection. If the customer provides sufficient security as permitted by law, it is considered that no objection has been made.
eMind reserves the right to make customary changes in the services it owes. Unusual changes in trade may be permitted if they are more valuable for the contractual party. In any case, changes will only be made to the extent that is reasonable for the customer, taking into account eMind's interests.
The customer agrees to be contacted by eMind regarding products and/or services and/or other information, assuming that such communication can be presumed to correspond to the customer's default interest.
eMind reserves the right to transfer the rights and obligations arising from ongoing commitments with the customer to a third party. If eMind exercises this option, the customer will have the right to terminate the contract without notice. Termination is only valid if it occurs after eMind has exercised its rights and is communicated by registered mail.
The customer undertakes not to persuade employees of eMind who are in contact with the customer, either on their behalf or on behalf of third parties, and not to use their services outside the contractual relationship between the customer and eMind. This obligation will continue for a period of two years after the termination of the contractual relationship. The customer is obliged to pay a contractual penalty of €5,000 for each breach. This does not exclude ongoing defense. The right to claim damages for any further harm is reserved. The customer has the freedom to prove that the damage is less or that there is no damage at all.
The place of performance is Rösrath. This is also valid for the customer's obligation.
The place of jurisdiction is Cologne. This is also applicable to promissory notes, bills of exchange, and cheque disputes. However, eMind reserves the right to file a lawsuit in the customer's place of residence or in courts stipulated by law. German law, excluding the UN Convention on Contracts for the International Sale of Goods (CISG), applies to all contractual relationships.
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