General Terms and Conditions
For all deliveries, services and offers of OMIND platform GmbH (hereinafter referred to as “we” or “us”) in business transactions with entrepreneurs (hereinafter referred to as “Customers”), these General Terms and Conditions shall apply exclusively. They form an integral part of all contracts concluded between us and our Customers. They shall also apply to all future deliveries and services, even if they are not expressly agreed again. In the case of ongoing business relationships, the current version of these General Terms and Conditions shall apply in each case.
Deliveries and services rendered under deviating general terms and conditions of the Customer shall not constitute acceptance of the Customer’s general terms and conditions. In particular, we shall only be bound by the Customer’s general terms and conditions insofar as they correspond to our respective valid General Terms and Conditions or we have expressly agreed to them in writing.
1. Offer and Conclusion of Contract, Engagement of Third Parties
1.1 Our offers are non-binding and subject to statutory value-added tax at the applicable legal rate.
1.2 As a rule, the Customer shall receive a written offer from us. The contract shall be concluded upon acceptance of the offer by the Customer. Acceptance may be effected by signature or by declaration in text form.
1.3 Changes to the scope of services are generally not permitted. Amendments to orders shall only become effective if agreed in writing. Exceptions are services explicitly stated as optional in the offer.
1.4 We shall only be obliged to provide those services expressly stated in our offers and contracts. Customer requirements shall be taken into account in the service description insofar as necessary. Any additional services shall only be rendered if expressly agreed in writing with the Customer.
1.5 We are entitled to engage external third parties (subcontractors) to perform the agreed services.
1.6 Termination of the contract by either party shall only be permissible for good cause.
2. Deadlines and Dates, Extensions of Term
2.1 Deadlines and dates shall only be binding if expressly agreed in writing with the Customer.
2.2 Agreed service periods shall commence upon conclusion of the contract, but not before receipt of all documents and/or items to be provided by the Customer and not before receipt of agreed payments.
2.3 In the event of delayed, omitted or improper cooperation by the Customer or due to change requests initiated by the Customer, the service period shall be extended accordingly. We shall inform the Customer of such extension without undue delay.
2.4 Force majeure and other extraordinary circumstances, such as labor disputes (strikes), resource shortages for which we are not responsible, governmental measures or traffic disruptions beyond our control, shall release us from our obligation to perform for the duration of their effects and, if performance becomes impossible, entirely from our obligation to perform. We shall inform the Customer without undue delay of any such events pursuant to this Clause 2.4.
3. Working Materials and Authority to Issue Instructions
3.1 The Customer shall provide us with all information and working materials required for performance in due time prior to performance, in a form individually agreed between the Customer and us, and at the Customer’s expense.
3.2 The Customer shall have no authority to issue instructions to us or to third parties engaged by us, even if such parties perform services on the Customer’s premises or other agreed workplaces. This shall not apply in cases of imminent danger, for which the Customer bears the burden of proof.
3.3 If services are rendered on the Customer’s premises, the Customer shall, at its own expense, provide and operate the workplaces required for performance, if necessary for our project staff. Such workplaces shall comply with workplace regulations and all applicable occupational safety and accident prevention provisions.
3.4 Services shall generally be performed online and, by agreement with the Customer, at the Customer’s premises or at the business premises of our partners. Relevant dates shall be agreed with the Customer.
4. Remuneration and Payment
4.1 The Customer shall pay us the total remuneration specified in the offer. Such remuneration constitutes a fixed total price. Any breakdown of individual services serves solely for calculation and transparency purposes and enables allocation to different budget categories.
4.2 We are entitled to invoice software services annually in advance. Consulting services shall be invoiced upon performance. If the Customer refuses to make use of booked consulting services, we shall nevertheless be entitled to invoice such services.
4.3 Payments shall be made by the Customer immediately upon receipt of the invoice, but no later than the due date stated therein, without any deductions.
4.4 Upon default, interest shall be charged at a rate of 9% above the applicable base interest rate per annum. In addition, we reserve the right to claim a flat-rate compensation for damages in the amount of EUR 40.00 pursuant to Section 288 (5) of the German Civil Code (BGB). We also reserve the right to assert further damages caused by default, which shall be offset against the flat-rate compensation.
5. Ownership and Copyright, Granting of Rights of Use
5.1 We retain all ownership, copyright and other intellectual property rights to all documents, drafts, originals and similar materials made available to the Customer, unless such materials form part of the contractually agreed services. Without our prior written consent, such materials may not be used otherwise, in particular not reproduced or made accessible to third parties. Upon request, such materials shall be returned to us without undue delay or completely deleted from the Customer’s systems, and any existing access shall be removed. If an agreement regarding the acquisition of usage rights exists within the service description, the Customer shall acquire the agreed usage rights upon payment of the remuneration. The granting of such rights is compensated by the contractually agreed remuneration, unless otherwise agreed.
5.2 We grant the Customer a non-exclusive, free-of-charge right to use our name and logo, which are protected under company and trademark law, as a reference on the Customer’s website, in presentations, in social media postings on LinkedIn, Facebook, XING and Twitter, and in email newsletters to indicate the cooperation with us. Changes to the size of the logo while maintaining proportions are permitted. Any use that could cause confusion regarding the business relationship between us and the Customer is prohibited. Any use beyond the purposes stated above requires our prior consent.
6. Acceptance
6.1 The Customer shall accept the services rendered by us, including permissible partial services, without undue delay upon our request, insofar as acceptance is required due to the nature of the services.
6.2 Acceptance shall be deemed to have occurred if the Customer waives acceptance or uses or exploits our services.
7. Defects
7.1 Defects shall be reported to us by the Customer without undue delay, at the latest within five (5) days after discovery, in writing or in text form.
7.2 We shall initially be given the opportunity to remedy defects within a reasonable period, at our discretion by rectifying the defect or by re-delivery or re-performance free of defects.
7.3 If subsequent performance fails after two unsuccessful attempts, is unreasonable for either party, or is only possible with disproportionate cost or effort, the Customer may—without prejudice to any claims for damages—withdraw from the contract or reduce the remuneration. Claims for reimbursement of futile expenses are excluded.
7.4 Statutory recourse claims by the Customer against us shall only exist insofar as the Customer has not entered into agreements with its customer exceeding statutory defect claims and rights. Clause 7 shall apply accordingly to the scope of such recourse claims.
7.5 The limitation period for material and legal defects shall be one year and shall commence upon transfer of risk. This shall not apply if longer statutory periods apply, if the defect was fraudulently concealed, or if one of the liability cases pursuant to Clause 8 applies.
7.6 In addition, statutory provisions regarding defects and our obligation to compensate expenses or damages shall apply, subject to Clause 8.
8. Liability
8.1 We shall be liable for claims for damages and reimbursement of expenses (hereinafter “Claims for Damages”) only insofar as they are based on the Product Liability Act, intentional or grossly negligent breach of contractual or statutory obligations, injury to life, body or health caused by a breach of duty for which we are responsible, the assumption of a guarantee, or the breach of essential contractual obligations. Otherwise, Claims for Damages—regardless of legal basis—are excluded.
8.2 In the event of a breach of essential contractual obligations, liability shall be limited to the typical, foreseeable damage, unless liability arises from intentional or grossly negligent conduct, injury to life, body or health, or the assumption of a guarantee.
8.3 A breach of duty by our legal representatives or vicarious agents shall be deemed equivalent to a breach of duty by us.
9. Non-Solicitation of Employees
We and the Customer undertake not to solicit, employ or otherwise engage employees of the respective other party who were involved in the initiation or execution of the contract, during the term of the contract and for a period of six (6) months after termination of the contract, regardless of the legal basis for termination.
10. Assignment, Set-Off and Retention
10.1 The Customer shall not assign any claims or rights against us to third parties without our prior written consent.
10.2 The Customer may only set off claims against us that are undisputed, legally established or ready for decision.
10.3 The Customer may exercise a right of retention only insofar as its counterclaims arise from the same contractual relationship.
11. Data Protection and Confidentiality
11.1 The parties undertake to treat all documents and information provided by one party to the other or obtained in connection with the contractual relationship as confidential and not to disclose them to third parties. This also applies to documents and information exchanged during contract negotiations. The parties agree that such documents and information may be stored electronically.
11.2 Our data protection provisions apply in addition and may be accessed on our website at: www.omindplatform.com
12. Jurisdiction and Applicable Law
12.1 Exclusive jurisdiction shall be the court competent for our registered office. However, we shall also be entitled to sue the Customer at its general place of jurisdiction or at any place of performance.
12.2 The law of the Federal Republic of Germany shall apply, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).
13. Severability
If individual provisions of a contract between us and the Customer, of which these General Terms and Conditions form part, are or become invalid, the validity of the remaining provisions shall remain unaffected.