Terms
Terms
1. General Information
1.1 The following Terms and Conditions apply to the delivery of all goods and the provision of all service and and planning services by openmindz GmbH in its relationship with the client.
1.2 The Client’s general terms and conditions shall not form part of this Agreement. This applies even if such terms and conditions are referenced in an offer from the Client or in other documents and openmindz GmbH has not expressly objected to the inclusion of such terms and conditions. The Client’s general terms and conditions shall apply only if this is expressly agreed upon.
2. Conclusion of the Contract
2.1 Unless the circumstances indicate otherwise, offers made by openmindz GmbH are non-binding and constitute only invitations to the client to submit binding contract offers to openmindz GmbH.
2.2 The contract is concluded subject to the proviso that, in the event of incorrect or improper delivery to us, we may not perform our obligations or may perform them only in part. If the service is not available or is available only in part, the client will be notified immediately and the consideration will be refunded.
3. Retention of Title
3.1 All deliveries by openmindz GmbH are subject to retention of title. The delivered goods remain the property of openmindz GmbH until the purchase price has been paid in full. Furthermore, openmindz GmbH reserves title to the delivered goods until all claims arising from the business relationship with the client at the time the contract is concluded (“current claims”), as well as all further claims arising from the business relationship prior to the full satisfaction of the current claims, have been fully satisfied.
3.2 The Client is obligated to store the goods subject to retention of title separately and to insure them adequately against all customary risks, in particular burglary and fire. The Client hereby assigns all claims against the insurance company to openmindz GmbH.
3.3 The Client is permitted, subject to revocation, to return the delivered goods in accordance with the provisions of the following provisions within the scope of a proper business transaction:
3.3.1 In the event of the resale of the goods subject to retention of title, the Customer hereby assigns to openmindz GmbH the receivables arising from such resale in the amount of the final invoice amount, including sales tax. openmindz GmbH accepts this assignment. If the Client is unable to make an assignment in accordance with the foregoing provisions, the resale shall not be deemed to have taken place in the ordinary course of business within the meaning of this provision.
The Client is authorized to collect the assigned receivable until openmindz GmbH revokes this authorization. This does not affect openmindz GmbH’s authority to collect the receivables itself. However, openmindz GmbH undertakes not to notify the third-party debtor of the assignment of the claim as long as the Client fulfills its payment obligations from the proceeds received, is not in default of payment, and, in particular, no petition for the opening of insolvency proceedings has been filed or payments have been suspended. Even prior to this, openmindz GmbH may at any time demand that the client disclose the assigned claims and their debtors, provide all information necessary for collection, and hand over the relevant documents.
3.3.2 Upon suspension of payments, the filing of a petition for, or the commencement of, judicial insolvency proceedings, or out-of-court settlement proceedings, the right to resell and use the goods subject to retention of title, as well as the authorization to collect the assigned receivables, shall expire.
4. Obligation to Give Notice
4.1 Deliveries must be inspected by the Customer or by a recipient designated by the Customer immediately upon receipt. Once the Customer or a person authorized by the Customer has accepted the goods without reservation, any subsequent complaint regarding the external condition of the delivery is excluded.
4.2 Any apparent defects in the goods must be reported immediately, no later than but within three business days after receipt of a9> three business days after receipt of the goods to be reported.
4.3 Defects other than those covered in Section 4.2 of these General Terms and Conditions must be reported immediately upon discovery, but no later than 45 calendar days after receipt of the goods.
4.4 To meet the deadlines for the notification obligations under Sections 4.2 and 4.3, it is sufficient to send the notice in a timely manner.
4.5 Notices of defects must be submitted in writing.
4.6 If the Client fails to conduct a proper inspection and/or provide timely notice of defects in accordance with this Section 4, openmindz GmbH shall not be liable for any defect that has not been reported.
5. Warranty
5.1 For defects reported in a timely manner that do not merely insignificantly limit the openmindz value or usability, insignificantly restrict, openmindz GmbH shall at its discretion provide a remedy either by delivering a replacement or by other means a15> choice guarantee by means of replacement delivery or by means of rectification of the defect.
5.2 The statute of limitations for warranty claims regarding goods is 12 months, provided that openmindz GmbH is not guilty of willful misconduct, and begins upon delivery of the goods.
5.3 The Client’s warranty claims against openmindz GmbH in the event of a defect are limited to the aforementioned right to subsequent performance. If the chosen method of subsequent performance fails, the Client has the right, at its discretion, to a reduction in payment or to rescind the contract.
5.4 Variations in color, grain, pattern, shape and size compared to a display item, sample, or a picture are reserved, to the extent that these are in nature of the used materials are found and are commercially available are.
5.5 openmindz GmbH is entitled to to deliver 10% more or less than agreed quantities.
5.6 The expenses necessary for the purpose of inspection and subsequent performance—in particular, transportation, travel, labor, and material costs—shall be borne by openmindz GmbH if a defect actually exists. However, if a request by the Client to remedy a defect proves to be unjustified, openmindz GmbH is entitled to demand reimbursement from the Client for the costs incurred as a result.
6. Deadline
6.1 Unless otherwise expressly agreed, stated delivery dates are to be understood as approximate.
6.2 Performance deadlines are extended automatically without further agreement reasonably in cases of force majeure, due to official orders or in the event of the occurrence of other circumstances the openmindz GmbH not responsible for circumstances.
6.3 Conditions for compliance with execution deadlines are the timely fulfillment of the specified in the bid letter cooperation obligations, in particular the approval of samples.
6.4 If the Client is in default of acceptance, fails to cooperate, or if delivery is delayed for other reasons for which the Client is responsible, openmindz GmbH is entitled to demand compensation for the resulting damages, including additional expenses (e.g., storage costs). For this purpose, a flat-rate compensation of 1% of the purchase price will be charged for the first three calendar days and 0.3% for each subsequent calendar day, beginning with the delivery deadline or—in the absence of a delivery deadline—upon notification that the goods are ready for shipment or—in the absence of an agreement for a sale with delivery—after the scheduled delivery date communicated to the Client. The right to prove greater damages and to assert further statutory claims (in particular reimbursement of additional expenses, reasonable compensation, and termination) remains unaffected; however, the lump-sum amount shall be offset against any further monetary claims. The client retains the right to prove that openmindz GmbH incurred no damages or damages significantly less than the aforementioned lump-sum amount.
7. Price and Payment
7.1 Unless otherwise specified in our offer, our prices are “ex works” in euros, plus sales tax as of the date of invoicing.
7.2 openmindz GmbH is entitled to pass on to the Client any increases in freight costs, shipping charges, insurance premiums, etc., that occur after the contract is concluded. The same applies to customs duties, levies, taxes, etc., that directly or indirectly increase the price. If the raw material prices applicable to openmindz GmbH change before the contract is fulfilled, openmindz GmbH reserves the right to adjust the prices accordingly if delivery is scheduled to take place more than two months after the conclusion of the contract.
7.3 The payment claims of openmindz GmbH are, unless otherwise expressly specified in our offer, immediately due. The client shall pay no later than 30 days after the due date and receipt of an invoice or an equivalent request for payment in default.
7.4 If “payment in advance” has been agreed upon, then, the payment is due eight business days after the contract becomes effective.
7.5 If, after the conclusion of the contract, it becomes apparent that openmindz GmbH’s claim to the purchase price is at risk due to the client’s inability to pay (e.g., due to a petition for the opening of insolvency proceedings), openmindz GmbH shall be entitled, in accordance with statutory provisions, to withhold performance and—if necessary, after setting a deadline—to withdraw from the contract (Section 321 of the German Civil Code (BGB)). In the case of contracts for the manufacture of non-replaceable items (custom-made products), openmindz GmbH may declare its withdrawal immediately; the statutory provisions regarding the dispensability of setting a deadline remain unaffected.
8. Copyright, Property Rights, and Rights of Use / Confidentiality
8.1 Each party is obligated to treat as strictly confidential any secret or confidential information, as well as any materials and samples, disclosed by the other party in connection with this Agreement. Confidential information includes all information and materials disclosed by a party under this Agreement or during the negotiation of this Agreement, whether orally, in writing, in physical form, electronically, or in any other form, that is not publicly available, is protected, constitutes a trade secret, or, by its nature, must be treated as confidential.
8.2 openmindz GmbH holds unrestricted copyright in ideas, plans, drafts, and drawings (“Documents”) and samples, to the extent they are eligible for copyright protection, regardless of whether they were provided prior to the conclusion of the contract or thereafter. The Client may use these only for the contractually agreed-upon purpose. All documents and samples provided to the Client, as well as any associated patent rights, trademark rights, copyrights, or other intellectual property rights, and all know-how, shall remain the property of openmindz GmbH at all times and may not be made available to third parties without the written consent of openmindz GmbH. If the Client does not accept the offer, all documents and samples must be returned to openmindz GmbH immediately upon request. Unless otherwise expressly agreed, any payment to openmindz GmbH agreed upon in connection with the provision of a sample does not serve as consideration for a transfer of ownership or any kind of transfer of property rights or rights of use, but rather as compensation for the personnel and planning costs incurred as a result.
A right of retention on the part of the client does not exist.
8.3 The provisions of this Section 8 also apply to the work product resulting from a plan, idea, graphic, etc., submitted by the Client, from which openmindz GmbH develops a prototype or the subsequent deliverable.
8.4 The Client is authorized to use and exploit the Deliverables solely for the contractual purpose. openmindz GmbH grants the Client a royalty-free, non-exclusive right to use and exploit the Deliverables solely for the contractual purpose.
9. Risk Assumption / Force Majeure
9.1 Unless expressly agreed otherwise, the goods are shipped at the customer’s risk. Consequently, risk passes to the customer when the goods leave the factory, even if partial deliveries are made or if openmindz GmbH or its suppliers have assumed other obligations, such as shipping costs or delivery.
9.2 If shipment or acceptance is delayed or fails to occur due to circumstances beyond the control of openmindz GmbH, the risk shall pass to the client on the date the goods are reported as ready for shipment.
9.3 If a party is prevented or hindered from fulfilling its obligations under the contract due to an event of force majeure, it shall not be deemed to be in default. The affected party must notify the other party in writing without delay, but no later than 7 days after becoming aware of the occurrence of such an event.
9.4 “Force majeure” refers to events that affect at least one of the parties or at least one agent or subcontractor of at least one of the parties, for which neither party is responsible, and which are unavoidable even if the affected party exercises the utmost care; These include, in particular, war and civil war, riots, civil unrest, and acts of terrorism; mobilization; strikes; lockouts; sabotage; embargoes; import restrictions; shipwrecks and delays in shipping; natural disasters; fire; storms; lightning strikes; and customs measures, such as seizures.
9.5 The party invoking force majeure shall be excused from fulfilling or timely fulfilling its obligations under the contract for as long as the relevant force majeure event persists and, to the extent that such event prevents or hinders the performance of the contract. As soon as a party is no longer prevented or hindered by the event from fulfilling its contractual obligations, it must resume performance immediately. Any agreed-upon delivery date shall be adjusted accordingly.
9.6 If the performance of the contract is significantly impeded or hindered during a single period of more than 6 months or a total period of more than 12 months due to one or more events of force majeure, the parties shall endeavor to reach a mutually agreeable solution. If no agreement on a mutually acceptable solution is reached no later than 6 months after the conditions set forth in the first sentence have been met, either party is entitled to terminate the contract by giving notice to the other party.
9.7 In the event of termination of the contract pursuant to Section 9.6, the Client is obligated to compensate openmindz GmbH for the portion of the contractual deliveries and services performed up to the time of termination on the basis of a pro-rata, reasonable portion of the contract price, provided that a fixed price was agreed upon; otherwise, the contractual deliveries and services shall be compensated on a time-and-materials basis. Likewise, the Client shall reimburse openmindz GmbH for all other costs that openmindz GmbH can no longer avoid.
10. Liability
10.1 The liability of openmindz GmbH is generally limited to damages caused by openmindz GmbH or its agents through willful misconduct or gross negligence. openmindz GmbH is liable for slight negligence only in the event of injury to life, limb, or health, as well as in the event of a breach of obligations whose fulfillment is essential for the proper performance of the contract and on whose compliance the client may reasonably rely (so-called cardinal obligations).
10.2 If openmindz GmbH is liable for a breach of duty resulting from slight negligence, the amount of openmindz GmbH’s liability is limited to the damages typical for contracts of the type in question that were foreseeable at the time the contract was concluded or, at the latest, at the time the breach of duty began. This does not apply in the event of injury to life, limb, or health.
10.3 Claims for damages that, by law, do not require proof of fault are not affected by the provisions of Clauses 10.1 and 10.2.
10.4 The Client is solely and exclusively responsible for ensuring that the execution of the order does not violate any statutory provisions or the rights of third parties. In particular, the Client warrants to openmindz GmbH that it holds the necessary patents, trademarks, copyrights, intellectual property rights, or rights of use required for the performance of the contract. If openmindz GmbH is held liable by a third party in connection with the performance of the contract due to a violation of any of the aforementioned rights, the Client shall indemnify openmindz GmbH against all claims for damages and all reasonably incurred costs in this regard, such as legal defense costs, court costs, and personnel expenses.
11. Set-off
The client may set off claims against openmindz GmbH only with claims that are undisputed or have been legally established.
12. Assignability of Contractual Rights
The Client may not transfer its contractual rights, in particular claims, to third parties without the express consent of openmindz GmbH.
13. Place of Performance
The place of performance for all mutual obligations is Heidelberg.
14. Governing Law and Jurisdiction
14.1 The law of the Federal Republic of Germany, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods, shall govern all legal relationships between the Client and openmindz GmbH arising out of or in connection with this Agreement.
14.2 The place of jurisdiction for all disputes between openmindz GmbH and the Client arising out of or in connection with this contract shall be the court with jurisdiction over Heidelberg or, at the discretion of openmindz GmbH, a general or specific place of jurisdiction of the Client, provided that the Client is a merchant, a legal entity under public law, or a special fund under public law, and the legal dispute neither concerns a non-pecuniary claim—which is assigned to the local courts regardless of the value of the matter in dispute—nor does it establish an exclusive place of jurisdiction.
15. Miscellaneous
15.1 If any part of the contract is invalid or if a gap is found to exist in the contract, the validity of the remaining parts shall remain unaffected, provided that the invalidity or gap does not affect the essential terms of the contract. The gap or invalid provision shall be replaced by a legally permissible provision that most closely reflects what the contracting parties would have intended had they considered or noticed the partial invalidity or gap at the time the contract was concluded.
15.2 This Agreement constitutes the entire agreement between the parties with respect to all matters and content contained herein and supersedes all prior written and oral agreements, negotiations, statements, communications, and representations of any kind.