Terms and conditions

§ 1 Scope of application
Insofar as the Special Terms and Conditions for Service Contracts, Standard Software and/or for Individual Software and/or for Software Licensing Terms and Conditions do not contain any deviating rules, the following General Terms and Conditions shall apply.
The General Terms and Conditions (GTC) of the company eMind GmbH (hereinafter referred to as EMIND), apply to all one-off and ongoing services provided by the same and its legal successors and/or following mergers with other companies within the scope of its entire business activities and irrespective of the classification under contract law.
The GTC shall also apply to all future business relationships without the need for express inclusion again. In this respect, EMIND’s 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. EMIND does not recognise any conflicting terms and conditions. Any deviations from these terms and conditions shall also only be effective if and to the extent that they are accepted by EMIND in writing.
There shall be no verbal collateral agreements. In individual cases, they must be confirmed in writing to the customer by EMIND’s management.

§ 2 Definitions
Hardware set-up: Unpacking and setting up the hardware, connecting it to the customer’s power supply and performing 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 organisational measures to ensure the availability, integrity and consistency of the IT systems, including the data, programmes and procedures stored on these IT systems and used for processing purposes. Proper data protection means that the measures taken, depending on the data sensitivity, enable an immediate or short-term restoration of the state of systems, data, programmes or procedures after a recognised impairment of the availability, integrity or consistency due to a damaging event; the measures include at least the production and testing of the reconstruction capability of 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 or/and software by EMIND or a vicarious agent to fulfil contractual services.
Warranty period: This means the limitation period as defined by the statutory provisions in force at the time the contract was concluded.
Hardware: Devices or machines including their optional additional equipment, in accordance with the manufacturer’s specifications, 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 applicable).
Maintenance: Measures to maintain and restore the target condition as well as to determine and assess the actual condition.
Cost of materials: EMIND’s expenses for the use and consumption of raw materials, consumables and supplies as well as other products within the scope of service provision.
Incidental expenses: Expenses EMINDs which 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 commence 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: expenses incurred by EMIND for travelling to and from the place of the agreed service, if different from the place of service, which are not normally part of the costs for the deployment of personnel. Expenses may be: Travel costs, accommodation allowance, ancillary travel costs, etc.
Written form: according to §§ 126, 126b, 127 BGB.
Industrial property rights: in particular industrial property rights and copyrights.
Standard software: Software (programs, program modules, tools, etc.) developed for the needs of a majority of customers on the market and not specifically developed by EMIND for the customer, including the associated documentation.
Pre-installation: pre-installation of the (standard) software on a specific hardware before delivery.
Manual: at EMIND’s option, a printed or electronic description of the products supplied to the customer. EMIND shall hand over the current version at the time of conclusion of the contract in the contractually agreed number of copies. Additional and/or more up-to-date versions must always be requested and paid for separately by the customer.

§ 3 Formation of the contract
EMIND’s quotations are subject to change with regard to prices, quantities and delivery periods, unless they are explicitly marked as binding in writing. EMIND reserves the right to make technical changes at its reasonable discretion. EMIND’s product descriptions are to be regarded as invitations to submit offers.
If there are discrepancies between the contract concluded in writing and EMIND’s order confirmation, the content of the order confirmation shall prevail. The rules on commercial letters of confirmation apply mutatis mutandis.
A contract with EMIND may also be concluded by EMIND commencing the performance of the service ordered by the customer.
EMIND always reserves the right to verify the customer’s solvency. 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 initiated. This shall not apply if the customer provides a performance bond within five working days of EMIND’s written request.

§ 4 Remuneration
In the absence of a separate agreement, the prices for EMIND’s services and software products are determined by the price lists valid at the time the contract is concluded. These can be requested from EMIND. EMIND is at liberty to make these available to customers on its website www.EMIND.de. When a new price list is published, all previous price lists and their contents become invalid.
EMIND reserves the right to increase the prices or charges once a year by 3% of the contractually agreed service charge for service contracts with a term of more than 12 months.

§ 5 Repayment
If the customer makes A-account payments, these shall be booked in accordance with §§ 366 para. 2 and 367 BGB. If the customer makes a different redemption provision, EMIND may reject the payment.

§ 6 Retention of title
EMIND retains title to the (standard) software products delivered to the customer (insofar as they were delivered 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 at a later date from the business relationship or/and from other legal grounds. At the customer’s request, EMIND will release collateral if the value of the collateral exceeds the amount of the balance existing at the time of the request by more than 20%. In the event of payment arrears on the part of the customer, the assertion of the reservation of title by EMIND shall not be deemed to be a rescission of the contract unless EMIND expressly notifies the customer to this effect.
The customer may sell goods subject to retention of title – if contractually authorised to do so – only in the ordinary course of business and as long as it is not in default. The claims arising from the resale are transferred to EMIND by way of assignment. They serve as security to the same extent as the goods subject to retention of title. The customer is entitled to collect these receivables as long as it fulfils its contractual obligations. The amounts collected must be paid to EMIND without delay.
If EMIND enforces its retention of title, the customer’s right to further use the software/hardware shall expire. 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 licence file as defined in § 11 GTC. Otherwise, all program copies made by the customer must be deleted immediately. Hardware parts must be returned to EMIND by the contracting party at the contracting party’s expense upon assertion of the reservation of title. The contracting party is obliged to inform EMIND of the extent of the deletion within two weeks of assertion of the reservation of title.

§ 7 Delay
In the event of default and/or deferral of payment, interest is owed at a rate of eight per cent above the current base rate. The interest rate shall be set higher or lower if EMIND proves a higher charge or the customer proves a lower charge. This does not affect the right to claim further damages for default. For each direct debit not honoured or returned, the customer shall reimburse EMIND in full for the costs incurred. EMIND may instead charge a flat-rate fee of € 7.50 for each such case, without having to show damages/expenses. The contracting party is at liberty to prove that the damage was less or that no damage was incurred.
If direct debit authorisation has been granted, the customer undertakes to notify EMIND immediately of any change in his bank details.
Objections to EMIND’s invoices must be raised immediately upon receipt. Failure to raise objections in good time shall be deemed to constitute approval, unless the incorrectness of the invoice is obvious or significant (more than 5 % of the order volume). The parties agree that a timely objection is generally not present if more than five working days have elapsed after 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 rebut this presumption of receipt. Services are invoiced at intervals determined by EMIND at its reasonable discretion. All amounts are subject to value-added tax at the current statutory rate. If the customer is not subject to value-added tax, he must provide EMIND with his VAT number when placing the order. If the customer breaches this obligation, he shall bear the interest damage resulting from the delay in accordance with the above-mentioned default interest rate. In the event of default in payment of a significant portion of the invoice amount or if EMIND’s payment claim is at risk due to a deterioration in the customer’s financial circumstances as defined in Section 321 of the German Civil Code (BGB), EMIND shall be entitled to declare all claims due and payable immediately. In the event of an instalment payment agreement, the customer shall be deemed to be in default of payment of a substantial part of the invoice amount if it is in arrears with two instalments due.

§ 8 Prohibition of assignment
Subject to § 6, the customer may assign rights arising from the respective contractual relationship to third parties only with EMIND’s prior written consent.

§ 9 Validity of DIN standards
If, in the course of the performance of this contractual relationship between EMIND and the customer, disagreements arise regarding the content of IT terms and symbols, quality requirements, format requirements or the like, compliance with the respective DIN standards in force at the time of the conclusion of the contract shall be deemed agreed.

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

§ 11 Activation or licence code
The customer shall receive a licence code (“lic file”) from EMIND for the activation of the software and/or the use of other (services) provided by EMIND. In the event of loss or destruction of this file, the customer must purchase new additional licence(s) at the applicable prices for all programmes or/and other (services) licensed on this file. Any program-related modification of the “lic. file”, but also of EMIND’s other software, in particular in order to run it without a licence code, e.g. for pirate copies, is prohibited.
(Culpable) violations of this provision entitle EMIND to impose a contractual penalty on the customer. Subject to a judicial review of the appropriateness of the penalty, the penalty shall in any case amount to 50% of the order value.

§ 12 Industrial property rights
Software subject to licensing shall be supplied in accordance with or subject to supplementary separate agreements to be concluded under the software licence conditions specified therein. EMIND retains all current and future copyright and/or industrial property rights to the programs sold by EMIND and to all programs, parts of programs or documents created in this context derived therefrom, including cost estimates, drawings and other parts of offers. The customer shall be 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 and/or the licence fee for the relevant overall programme, without the need for EMIND to provide detailed evidence of any damage incurred. All programmes, software and manuals supplied by EMIND are protected by copyright and ancillary copyright. The granting of any right of use requires the specific written consent of EMIND. If a third party asserts claims against the customer for infringement of property rights by the software supplied by EMIND and if the use of the software is impaired or prohibited as a result, EMIND shall be liable as follows: EMIND shall, at its option and expense, either modify or replace the software in such a way that it does not infringe the property right but still essentially complies with the agreed functional and performance features in a manner that is reasonable for the customer, or indemnify the customer from licence fees for the use of the software vis-à-vis the property right holder or third parties. If EMIND does not succeed in doing so under reasonable conditions, EMIND shall take back the software against reimbursement of the price paid by the customer less an amount taking into account the time of use of the software. In this case, the customer is obliged to return the software to EMIND. EMIND’s liability is subject to the customer notifying EMIND immediately of any third-party claims, not acknowledging the alleged infringement of property rights, and either leaving any dispute, including any out-of-court settlement, to EMIND or conducting it only in agreement with EMIND. Any necessary court costs and lawyers’ fees incurred by the customer as a result of the legal defence shall be borne by EMIND. If the customer ceases to use the software in order to mitigate damages or for other important reasons, it shall be 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. To the extent that the customer is responsible for the infringement of property rights, claims against EMIND are excluded. Any further claims by the customer for infringement of third-party industrial property rights are excluded. This exclusion does not apply in the event of intent or gross negligence.

§ 13 Storage of business data, confidentiality
Order processing is carried out within EMIND with the aid of automatic data processing. The customer consents to the processing of data that has become known to EMIND in the course of contractual relations and that is necessary for order processing. The customer also agrees that EMIND may use data obtained from the business relationship with the customer within the meaning of the Data Protection Act for EMIND’s business purposes, including within EMIND. In this respect and in particular, the invoice (or delivery note) shall be deemed to be notification within the meaning of sections 19a, 33 of the Federal Data Protection Act.
Unless expressly agreed otherwise, information submitted to EMIND in connection with orders is not considered confidential.

§ 14 Delivery
Delivery dates or deadlines are always subject to change. In case of doubt, a binding delivery date is deemed to have been agreed if the purchase note contains the words ‘fix’, ‘präzis’, ‘genau’ or ‘spätestens’. As a general rule in case of doubt, the delivery date is agreed in accordance with EMIND’s expected capacity and is subject to unforeseen circumstances and obstacles beyond EMIND’s control, irrespective of whether these occur at EMIND or at the manufacturer’s or its subcontractors’ premises, insofar as these circumstances make it unreasonable for EMIND to deliver at the agreed time. If EMIND is more than 2 weeks in arrears with delivery, the customer may withdraw from the contract after setting a reasonable grace period in writing. If the delay in delivery exceeds 2 weeks, EMIND shall also be entitled to withdraw from the contract in whole or in part. The customer shall be informed of this without delay, and the consideration shall be refunded if already provided by the customer.
In the case of software developments or additions, these periods shall be extended to 6 weeks in each case.
EMIND shall not be responsible for delays in delivery and performance due to force majeure and/or events that make delivery significantly more difficult or impossible for EMIND, including in particular strikes, lockouts, official orders, but also lack of cooperation on the part of 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 delivery for the duration of the impediment plus a reasonable start-up period, or to withdraw from the contract in whole or in part on account of the unfulfilled part.
EMIND is entitled to deliver modified and adapted contractual products that deviate from the customer’s order to the extent customary in trade or commerce, provided that the modification and/or deviation is reasonable, taking into account the customer’s interests.
EMIND’s compliance with its delivery and performance obligations is subject to the customer’s timely and proper fulfilment of its obligations. EMIND is entitled to make partial deliveries and render partial services and to invoice them at any time. If the customer defaults on acceptance, EMIND is entitled to demand compensation for the damage it incurs; the risk of accidental deterioration and accidental loss shall pass to the customer upon the occurrence of default in acceptance.

§ 15 Exclusion or/and limitation of liability
EMIND’s liability for negligent breaches of duty is excluded, unless damages resulting from injury to life, body or health or guarantees are affected or claims under the Product Liability Act are affected. Furthermore, liability for the breach of obligations whose fulfilment is essential for the proper performance of the contract (cardinal obligations) and on whose compliance the customer may regularly rely shall remain unaffected. In the case of property damage and financial loss, liability shall be limited to the foreseeable damage typical of the contract. The foregoing also applies to breaches of duty by EMIND’s vicarious agents.

§ 16 Referral to liability insurance
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 coverage claim 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 made a legal claim against EMIND’s liability insurance, EMIND shall not be liable. This does not apply if referring the claims to the liability insurance would burden the customer with unreasonable costs and/or risks. In this case, EMIND shall be directly liable for the foreseeable damage typical of the contract.

§ 17 Time limit for action and exclusion
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 shall be forfeited. In cases of referral to the liability insurer, the period of forfeiture shall not begin to run until a claim has been unsuccessfully made in court against the liability insurer.

§ 18 General duty to give notice of defects and to cooperate
The customer is obliged to notify EMIND immediately in writing of any recognisable defects, damage and/or faults. The parties agree that immediate notification is generally not given if more than three working days have elapsed between the discovery of the defect, damage and/or malfunction and receipt of the notification. The obligation to notify does not apply if the defect, damage and/or fault is obvious to EMIND.
If the customer becomes aware of circumstances that give rise to at least the suspicion of unauthorised access by third parties to EMIND’s servers, this must be reported immediately. If the customer culpably fails to notify EMIND, it shall be obliged to compensate EMIND for the typically foreseeable damage arising therefrom. Insofar as EMIND was unable to remedy the situation as a result of the customer’s failure to notify EMIND, the customer shall not be entitled to demand a reduction in the usage fee and/or compensation for damages and/or expenses and/or to terminate the contract without notice.

§ 19 Loss of data
In the event of data loss, EMIND shall only be liable for the expenditure required to restore the data if the customer has made proper data backups (regular and risk-compliant backups). In the event of slight negligence on the part of EMIND, this liability shall only apply if the customer has carried out a proper data backup immediately before the measure leading to the loss of data.

§ 20 Exclusion of warranty
In the case of the purchase of used goods, the customer confirms that the delivered goods were in perfect condition when they were handed over to him.
In the event of a warranty claim – material defect/legal defect or/and lack of warranted quality(s) – EMIND is entitled to rectify the defect or/and deliver a replacement at its own discretion. The customer’s right to withdraw from the contract and/or demand a reduction in price after the fruitless expiry of the rectification period remains unaffected.
No warranty is provided for services rendered by EMIND or its (commercial) representatives that are expressly described as ‘favours’, ‘without charge’ or similar, or that could only be understood as such a service under the circumstances. Liability for favours is governed by §§ 521, 599 BGB. Liability is excluded in the event of improper handling or overuse.

§ 21 Transport damage
The customer must report any transport damage to the carrier immediately and in writing and send EMIND a copy of the correspondence.
Unless otherwise agreed, EMIND is entitled, but not obliged, to insure the goods to be shipped against transport risks of all kinds at the customer’s expense. This, as well as the possible assumption of the transport costs, does not affect the transfer of risk.

§ 22 Set-off/right of retention
The customer may only set off claims of EMIND against claims that are undisputed, ready for a decision and/or have been finally adjudicated. The customer shall only be entitled to assert a right of retention, whether under § 273 of the German Civil Code (BGB) or § 369 of the German Commercial Code (HGB), on the basis of counterclaims arising from the same contractual relationship. Due to defects, the customer may withhold payments only to a proportionate extent taking into account the defect and only if the defect exists beyond doubt.
If the customer is in arrears with a due performance that EMIND is entitled to demand fulfilment of, EMIND shall have a right of retention upon the occurrence of the arrears, even without an express objection to this effect. If the customer provides the security permitted by law, the defence shall be deemed not to have been raised.

§ 23 Reservation of right of modification
EMIND reserves the right to make customary changes to the services it owes. Changes that are not customary in the trade are permissible if they are of greater value to the contracting party. In any case, changes will only be made to an extent that is reasonable for the customer, taking into account EMIND’s interests.

§ 24 Advertising
The customer agrees to be contacted by EMIND with regard to products or/and services or/and other information, provided it can be assumed that such contact corresponds to the customer’s presumed interest.

§ 25 Written form and completeness clause
Amendments and/or supplements to the contracts shall be made in writing.

§ 26 Change of contractual partner
EMIND reserves the right to transfer the rights and obligations arising from continuing obligations with the customer to a third party. If EMIND makes use of this option, the customer shall be entitled to terminate the contract without notice. Termination is only effective if it is effected after EMIND has exercised its rights and by registered letter.

§ Section 27 Contractual penalty
The customer undertakes not to entice away EMIND employees who have come into contact with the customer for himself and/or third parties or to use their services outside the contractual relationship existing between the customer and EMIND. This obligation shall continue for a period of two years after termination of the contractual relationship. The customer is obliged to pay a contractual penalty of € 5,000 for each case of infringement. The defence of continuation is excluded. The right to assert a further claim for damages remains reserved. The customer is at liberty to prove to EMIND that the damage was less or/and that no damage was incurred.

§ 28 Place of performance
The place of performance is Rösrath. This also applies to the customer’s debt.

§ 29 Place of jurisdiction/applicable law
The place of jurisdiction is Cologne. This shall also apply to proceedings involving documents, bills of exchange and cheques. However, EMIND is also entitled to bring an action at the customer’s place of business or before the courts provided for by law. All contractual relationships shall be governed by German law, to the exclusion of the Vienna Sales Convention.