§ 1 Scope of application

Unless the Special Terms and Conditions for Service Contracts, Standard Software or for Individual Software and/or for Software License Conditions contain deviating rules, the following General Terms and Conditions apply. The General Terms and Conditions (GTC) of eMind GmbH (hereinafter referred to as eMind) apply to all one-off and ongoing services provided by eMind and its legal successors and/or after mergers with other companies as part of its overall business activities and irrespective of their classification under contract law. The General Terms and Conditions also apply to all future business relationships without the need for express inclusion. In this respect, eMind's General Terms and Conditions (together with the Special Terms and Conditions) always form the basis for its activities. The current version of these terms and conditions, which can be accessed on the Internet at www.eMind.de/agb.html, shall apply at the latest when eMind's services are used for the first time. Conflicting terms and conditions are not recognized by eMind. Deviations from these GTC are also only effective if and insofar as they are recognized by eMind in writing. Verbal collateral agreements do not exist. In individual cases, these must be confirmed in writing to the customer by the management of eMind.

§ 2 Definitions

Installation of hardware: unpacking and setting up the hardware, connecting it to the customer's power supply and carrying out a device test. Standby time: Times during which eMind receives (error) messages (usually eMind's business hours). Data backup: Proper data backup includes all technical and/or organizational measures to ensure the availability, integrity and consistency of the IT systems, including the data, programs and procedures stored on these IT systems and used for processing purposes. Proper data backup means that the measures taken, depending on the data sensitivity, enable immediate or short-term restoration of the status of systems, data, programs or procedures after a recognized impairment of availability, integrity or consistency due to a damaging event; the measures include at least the production and testing of the ability to reconstruct copies of the software, data and procedures in defined cycles and generations. Data loss: Loss (deletion) or loss of integrity and consistency of data. Replacement delivery: Provision of hardware and/or software by eMind or a vicarious agent for the fulfillment of contractual services. Warranty period: This refers to the limitation period as defined by the statutory provisions applicable at the time the contract is concluded. Hardware: Devices or machines, including their optional additional equipment, in accordance with the manufacturer's specification, which are listed in the contract; such devices or machines are generally specified in more detail by their manufacturers via order numbers (type designation supplemented by model designation if necessary). Maintenance: Measures to maintain and restore the target condition and to determine and assess the actual condition. Cost of materials: eMinds expenses for the use and consumption of raw materials, consumables and supplies as well as other products in the context of service provision. Incidental costs: Expenses eMinds that are necessary for the provision of goods and services. They are not included in the agreed remuneration and are neither travel nor material costs. Response period: Period within which eMind must begin maintenance work. It begins with the receipt of the fault report within the agreed service times and runs exclusively during the agreed service times. Travel costs: eMind's expenses for traveling to and from the location of the agreed service, if different from the place of work, which are generally not part of the costs for personnel deployment. Expenses can be: Travel expenses, accommodation allowance, incidental travel expenses, etc. Written form: in accordance with §§ 126, 126b, 127 BGB. Property rights: in particular industrial property rights and copyrights. Standard software: Software (programs, program modules, tools, etc.) that has been developed for the needs of a majority of customers on the market and not specifically by eMind for the customer, including the associated documentation. Pre-installation: Pre-installation of the (standard) software on a specific hardware prior to delivery. Manual: at eMind's discretion, a printed or electronic description of the products supplied to the customer. eMind will supply the current version at the time of conclusion of the contract in the contractually agreed quantity. Any additional and/or more up-to-date versions must always be requested and paid for separately by the customer.


eMind's offers are subject to change with regard to prices, quantities and delivery times, unless they are explicitly marked as binding in writing. We reserve the right to make technical changes at our reasonable discretion. eMind's product descriptions are to be regarded as an invitation to submit offers. If there are discrepancies between the contract concluded in writing and the order confirmation from eMind, the content of the order confirmation takes precedence. The rules on commercial letters of confirmation apply mutatis mutandis. A contract with eMind can also be concluded by eMind starting to provide the service ordered by the customer. eMind always reserves the right to check the solvency of the customer. eMind is entitled to withdraw from the contract if there is a significant deterioration in the customer's financial circumstances, in particular if there are sustained seizures or other enforcement measures against the customer or if insolvency proceedings are opened. This does not apply if the customer provides a performance bond within five working days of a written request by eMind.


In the absence of a separate agreement, the prices for services and software products from eMind are determined by the price lists valid at the time the contract is concluded. These can be requested from eMind. eMind reserves the right to make them available to customers on its website www.eMind.de. With the publication of a new price list, all previous price lists and their contents lose their validity. eMind reserves the right to increase the prices or fees once a year by 3% of the contractually agreed service fee for service contracts with a term of more than 12 months.


If the customer makes A-account payments, these shall be booked in accordance with Sections 366 (2) and 367 BGB. If the customer makes a different repayment provision, eMind may reject the payment.


eMind retains ownership of the (standard) software products supplied to the customer (insofar as they were supplied in the form of data carriers such as CDs, CD-ROMs, etc., dongles or similar, together with installation and operating instructions) or hardware until payment of all claims existing at the time of delivery or arising later from the business relationship or/and for other legal reasons. At the customer's request, eMind will release securities if the value of the security property exceeds the amount of the balance existing at the time of the request by more than 20%. If the customer is in arrears with payment, the assertion of the retention of title by eMind does not constitute withdrawal from the contract, unless eMind expressly states this. The customer may only sell reserved goods - if contractually authorized to do so - in the ordinary course of business and as long as he is not in default. The claims from the resale are transferred to eMind by way of assignment. They serve as security to the same extent as the reserved goods. The customer is entitled to collect these claims as long as he fulfills his contractual obligations. The amounts collected must be transferred to eMind without delay. If eMind asserts the retention of title, the customer's right to continue using the software/hardware expires. eMind reserves the right to interrupt the use of the software in this case. Immediately after settlement of the outstanding claims, eMind will send the customer a new license file within the meaning of § 11 GTC. Otherwise, all program copies made by the customer must be deleted immediately. Hardware parts must be returned to eMind at the expense of the contractual partner when the retention of title is asserted. The contractual partner is obliged to inform eMind within two weeks of the assertion of the retention of title of the extent to which deletion has taken place.


In the event of default and/or deferral of payment, interest shall be owed at a rate of eight percent above the current prime rate. The interest rate is to be set higher or lower if eMind proves a higher charge or the customer proves a lower charge. The assertion of further damages caused by default remains unaffected by this. For each direct debit that is not honored or returned, the customer must reimburse eMind in full for the costs incurred. eMind may instead demand a flat-rate charge of EUR 7.50 for each such case, without any obligation to show damages/expenses. The contractual partner is at liberty to demonstrate a lower or no loss. If direct debit authorization has been granted, the customer undertakes to inform eMind immediately of any change to his bank details. Objections to eMind's invoices must be raised immediately upon receipt. Failure to raise objections in good time is deemed to constitute approval, unless the inaccuracy of the invoice is obvious or significant (more than 5% of the order volume). The parties agree that a timely objection generally does not exist if more than five working days have elapsed since receipt of the invoice. The parties assume that invoices sent within Germany are generally received three working days after dispatch. The customer reserves the right to refute this presumption of receipt. Services are invoiced at intervals determined by eMind at its reasonable discretion. All amounts are subject to VAT at the current statutory rate. If the customer is not subject to VAT, he must inform eMind of his VAT ID when placing the order. If the customer violates this obligation, he must bear the interest damage resulting from the delay in accordance with the above-mentioned default interest rate. In the event of default of payment of a significant part of the invoice amount or if eMind's payment claim is jeopardized due to a deterioration in the customer's financial circumstances within the meaning of § 321 BGB, eMind is entitled to declare all claims due immediately. In the case of an installment payment agreement, the customer is deemed to be in arrears with a significant part of the invoice amount if he is in arrears with two due installments.


Subject to § 6, the customer may only assign rights arising from the respective contractual relationship to third parties with the prior written consent of eMind.


If disagreements arise between eMind and the customer in the course of the execution of this contractual relationship regarding the content of IT terms and symbols, quality requirements, format requirements or similar, compliance with the respective DIN standards applicable at the time of conclusion of the contract is deemed to be agreed.


The customer shall only acquire the right to telephone hotline support by concluding a corresponding service contract. In addition, the Special Terms and Conditions for Service Contracts of eMind apply.


The customer receives a licensing code (,,lic file") from eMind to activate the software and/or use other (services) from eMind. If this file is lost or destroyed, new additional license(s) must be purchased by the customer at the valid prices for all programs and/or other (services) permitted on this file. Any programmatic modification of the "lic. file", but also of the other eMind software, in particular in order to run it without a license code, for example for pirated copies, is prohibited. (Culpable) violations of this entitle eMind to impose a contractual penalty on the customer. Subject to a judicial review of appropriateness in this respect, the penalty shall in any case amount to 50% of the order amount.


The delivery of software subject to license shall be made in accordance with the software license conditions specified therein or in accordance with supplementary separate agreements to be concluded. All present and future copyrights and/or industrial property rights to the programs sold by eMind and to all programs, program parts or documents created in this context, including cost estimates, drawings and other parts of the offer, remain with eMind. The customer is liable to eMind for all damages resulting from the breach of the aforementioned obligations. In each case of infringement, eMind may - without prejudice to further claims for damages - claim a contractual penalty of at least 5% of the purchase price or/and the license fee for the corresponding overall program, without eMind having to prove any damage incurred in detail. All programs, software and manuals supplied by eMind are protected by copyright and ancillary copyright. The granting of any right of use requires the special written consent of eMind. If a third party asserts claims against the customer due to the infringement of property rights by the software supplied by eMind and the use of the software is impaired or prohibited as a result, eMind is liable as follows: eMind will, at its discretion and at its own expense, either modify or replace the software so that it does not infringe the property right, but essentially corresponds to the agreed functional and performance features in a way that is reasonable for the customer, or indemnify the customer from license fees for the use of the software vis-à-vis the property right holder or third parties. If eMind is unable to do so on reasonable terms, eMind must take back the software in return for reimbursement of the price paid by the customer less an amount that takes into account the time the software has been used. In this case, the customer is obliged to return the software to eMind. The prerequisites for eMind's liability are that the customer informs eMind immediately of any claims by third parties, does not acknowledge the alleged infringement of property rights and either leaves any dispute, including any out-of-court settlements, to eMind or only conducts it in agreement with eMind. Any necessary court and legal costs incurred by the customer as a result of the legal defense shall be borne by eMind. If the customer ceases to use the software in order to mitigate damages or for other important reasons, he is obliged to point out to the third party that the cessation of use does not constitute an acknowledgement of the alleged infringement of property rights. If the customer is responsible for the infringement of property rights, claims against eMind are excluded. Further claims by the customer due to an infringement of third-party property rights are excluded. This exclusion does not apply in cases of intent or gross negligence.


Orders are processed within eMind with the aid of automatic data processing. The customer authorizes the processing of data disclosed to eMind in the context of contractual relationships and necessary for order processing. The customer also agrees that eMind may use the data received from the business relationship with the customer within the meaning of the Data Protection Act for eMind's business purposes, including within eMind. The invoice (or delivery bill) is in this respect and in particular as notification within the meaning of §§ 19a, 33 of the Federal Data Protection Act. Unless expressly agreed otherwise, the following shall apply


Delivery dates or deadlines are always subject to change. In case of doubt, a binding delivery date shall be deemed to have been agreed if the purchase bill contains the words 'fixed', 'precise', 'exact' or 'latest'. As a general rule of doubt, the delivery date is agreed according to eMind's expected capacity and is subject to unforeseen circumstances and obstacles for which eMind is not responsible, irrespective of whether these occur at eMind or at the manufacturer or its subcontractors, provided that these circumstances make delivery at the agreed time unreasonable for eMind. If eMind is more than 2 weeks late with delivery, the customer may withdraw from the contract after setting a reasonable grace period in writing. If the delay in delivery lasts longer than 2 weeks, eMind is also entitled to withdraw from the contract in whole or in part. The customer must be informed of this immediately and the consideration must be refunded if already provided by the customer. In the case of software developments or additions, these periods are extended to 6 weeks in each case. eMind is not responsible for delays in delivery and performance due to force majeure and/or due to events that make delivery significantly more difficult or impossible for eMind, including in particular strikes, lockouts, official orders, but also lack of cooperation from the customer, etc., even if they occur at eMind's suppliers or their subcontractors, even in the case of bindingly agreed deadlines and dates. They also entitle eMind to postpone the delivery for the duration of the hindrance plus a reasonable start-up time or to withdraw from the contract in whole or in part due to the part not yet fulfilled. eMind is entitled to supply contractual products that deviate from the customer's order and are modified and adapted to the extent customary in trade or commerce, provided that the modification and/or deviation is reasonable, taking into account the interests of the customer. Compliance with eMind's delivery and performance obligations presupposes the timely and proper fulfillment of the customer's obligations. eMind is entitled to make partial deliveries and partial services and to invoice them at any time. If the customer is in default of acceptance, eMind is entitled to demand compensation for the damage it incurs; the risk of accidental deterioration and accidental loss is transferred to the customer when default of acceptance occurs.


The liability of eMind for negligent breaches of duty is excluded, unless damages from injury to life, limb or health or guarantees are affected or claims under the Product Liability Act are affected. Furthermore, liability for the breach of obligations, the fulfillment of which is essential for the proper execution of the contract (cardinal obligations) and on the observance of which the customer may regularly rely, remains unaffected. Liability for property damage and financial loss is limited to the foreseeable damage typical of the contract. The above also applies to breaches of duty by eMind's vicarious agents.


eMind maintains liability insurance to cover the foreseeable damage typical of the contract for which eMind is liable in accordance with the above principles. If the customer provides evidence of such damage, eMind will assign its claim for cover against the liability insurance to the customer on account of performance in order to satisfy the customer's claims for damages. As long as the customer has not taken legal action against eMind's liability insurance, eMind is not liable. This does not apply if the referral to the claims against the liability insurance would burden the customer with unreasonable costs and/or risks. In this case, eMind is directly liable for the foreseeable damage typical of the contract.


If a claim for damages is not asserted in court within three months - beginning with the final rejection of the claim for damages by eMind - it lapses. In cases of referral to the liability insurance, the expiry period only begins to run when the liability insurance has been unsuccessfully claimed against in court.


GTC.GeneralClaims