Terms and Conditions
Terms and Conditions
1. General
1.1 The following terms and conditions shall apply to the delivery of all goods and the provision of all services and planning services of openmindz GmbH in relation to the client.
1.2 General terms and conditions of the client shall not become part of the contract. This shall also apply if reference is made to such in an offer of the client or in other written documents and openmindz GmbH has not expressly objected to the agreement of such terms and conditions. General terms and conditions of the client shall only apply if this is expressly agreed.
2. Conclusion of contract
2.1 Unless the circumstances indicate otherwise, the offers of openmindz GmbH are subject to change and represent only invitations to the customer to submit binding contractual offers to openmindz GmbH.
2.2 The conclusion of the contract shall be subject to the proviso that, in the event that openmindz GmbH does not receive correct or proper deliveries itself, it shall not perform or shall only perform in part. If the service is not or only partially available, the customer will be informed immediately and the consideration will be refunded.
3. Retention of title
3.1 All deliveries by openmindz GmbH shall be made subject to retention of title. The delivered goods shall remain the property of openmindz GmbH until the purchase price has been paid in full. In addition, openmindz GmbH shall retain title to the delivered goods until all claims already arising from the business relationship with the customer at the time of the conclusion of the contract (“current claims”) as well as all further claims of openmindz GmbH against the customer arising from the business relationship prior to the complete fulfilment of the current claims.
3.2 The client is obligated to store the goods subject to retention of title separately and to adequately insure them against all customary risks, in particular burglary and fire. The customer hereby assigns all claims against the insurance company to openmindz GmbH.
3.3 The customer is revocably permitted to resell the delivered goods in accordance with the following provisions in the ordinary course of business:
3.3.1 In the event that the goods subject to retention of title are resold, the customer hereby assigns to openmindz GmbH the claims arising from the resale in the amount of the final invoice amount including value-added tax. openmindz GmbH accepts the assignment. If the customer is unable to assign the goods in accordance with the above provisions, the resale shall not be deemed to be in the ordinary course of business within the meaning of this provision.
The customer shall be entitled to collect the assigned claim until revoked by openmindz GmbH. The authority of openmindz GmbH to collect the receivables itself shall remain unaffected. However, openmindz GmbH undertakes not to notify the third-party debtor of the assignment of the claim as long as the customer meets its payment obligations from the proceeds collected, is not in default of payment and, in particular, no application for the opening of insolvency proceedings has been filed or there is no cessation of payments. Even before this, openmindz GmbH may demand at any time that the customer discloses the assigned claims and their debtors, provides all information required for collection and hands over the associated documents.
3.3.2 The right to resell and use the goods subject to retention of title and the authorization to collect the assigned claims shall expire upon cessation of payments, filing for and opening of judicial insolvency proceedings or out-of-court composition proceedings.
4. Obligation to give notice of defects
4.1 Deliveries shall be inspected immediately upon receipt by the Customer or by the recipient designated by the Customer. After unconditional acceptance of the goods by the principal or by a person appointed by him, any subsequent complaint regarding the external condition of the delivery shall be excluded.
4.2 Defects visible on the goods shall be notified without delay, but no later than within three working days after receipt of the goods.
4.3 Defects other than those regulated in Section 4.2 of these General Terms and Conditions shall be notified immediately upon discovery, at the latest 45 calendar days after receipt of the goods.
4.4 Timely dispatch of the notice shall be sufficient to comply with the obligations to give notice of defects under sections 4.2 and 4.3.
4.5 Notices of defects shall be made in writing.
4.6 If the customer fails to properly inspect the goods and/or to give timely notice of defects in accordance with this Section 4, openmindz GmbH shall not be liable for the defect not reported.
5. Warranty
5.1 For defects notified in due time that not only insignificantly restrict the value or the usability, openmindz GmbH shall provide warranty at its own discretion by means of a replacement delivery or by remedying the defect.
5.2 The limitation period for warranty claims for goods shall be 12 months, unless openmindz GmbH is guilty of intent, and shall begin with the handover of the goods.
5.3 The warranty claims of the customer against openmindz GmbH in the event of the existence of a defect shall be limited to the aforementioned right to subsequent performance. In the event that the selected supplementary performance fails, the client shall have the right to a reduction (reduction of the remuneration) and withdrawal from the contract at its discretion.
5.4 We reserve the right to deviations in color, grain, pattern, shape and size compared to an exhibit, sample or picture, insofar as these are in the nature of the materials used and are customary in the trade.
5.5 openmindz GmbH is entitled to deliver 10% more or less than agreed.
5.6 The expenses required for the purpose of inspection and subsequent performance, in particular transport, travel, labor and material costs, shall be borne by openmindz GmbH if a defect is actually present. However, if a request by the customer to remedy a defect turns out to be unjustified, openmindz GmbH shall be entitled to demand compensation from the customer for the costs incurred as a result.
6. Deadlines
6.1 Stated delivery dates are to be understood as approximate, subject to expressly binding agreement.
6.2 Execution deadlines shall be extended appropriately without further agreement in cases of force majeure, due to official orders or upon the occurrence of other circumstances for which openmindz GmbH is not responsible.
6.3 The conditions for compliance with execution deadlines are the timely fulfilment of the cooperation obligations specified in the offer letter, in particular the release of samples.
6.4 If the customer is in default of acceptance, fails to cooperate or if the delivery is delayed for other reasons for which the customer is responsible, openmindz GmbH shall be entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs). For this purpose, a lump-sum compensation of 1% of the purchase price shall be calculated for the first three calendar days and 0.3% for the subsequent calendar days, beginning with the delivery deadline or – in the absence of a delivery deadline – with notification of readiness for shipment or – in the absence of an agreement on a shipment purchase – after planned delivery and notification of the client. The proof of a higher damage and further legal claims (in particular compensation of additional expenses, reasonable compensation, termination) shall remain unaffected; however, the lump sum shall be credited against further monetary claims. The client shall be permitted to prove that openmindz GmbH has not incurred any damages or that the damages incurred are significantly less than the aforementioned lump sum.
7. Price and payment
7.1 Unless otherwise stated in our offer, our prices shall apply “ex works” in euros plus VAT on the date of invoicing.
7.2 openmindz GmbH shall be entitled to pass on to the customer any increases in freight costs, shipping charges, insurance premiums, etc. that occur after the conclusion of the contract. The same applies with regard to customs duties, levies, taxes, etc., which directly or indirectly increase the price. If the raw material prices applicable to openmindz GmbH change by the time the contract is processed, openmindz GmbH reserves the right to adjust the prices accordingly if the delivery is to be made later than two months after the conclusion of the contract.
7.3 The payment claims of openmindz GmbH shall be due immediately, unless expressly stated otherwise in our offer. The client shall be in default no later than 30 days after the due date and receipt of an invoice or an equivalent request for payment.
7.4 If “payment in advance” has been agreed, payment shall be due eight working days after the contract becomes effective.
7.5 If it becomes apparent after the conclusion of the contract that openmindz GmbH’s claim to the purchase price is jeopardized by the customer’s lack of ability to pay (e.g. by an application to open insolvency proceedings), openmindz GmbH shall be entitled to refuse performance in accordance with the statutory provisions and – if necessary after setting a deadline – to withdraw from the contract (§ 321 BGB). In the case of contracts for the production of unjustifiable items (custom-made products), openmindz GmbH may declare its withdrawal immediately; the statutory provisions regarding the dispensability of setting a deadline shall remain unaffected.
8. Copyrights, property rights and rights of use / secrecy
8.1 Each party is obligated to treat secret or confidential information as well as materials and samples disclosed by the other party in connection with this agreement as strictly confidential. Confidential information shall be all information and materials disclosed by a party under the contract or during the initiation of the contract in oral, written, physical, electronic or other form and which are not public and protected, constitute a trade secret or are to be treated as confidential due to their nature.
8.2 openmindz GmbH shall have unrestricted copyright to ideas, plans, drafts and drawings (“Documents”) and samples, insofar as they are copyrightable, regardless of whether they were handed over in advance of the conclusion of the contract or later. These may only be used by the client for the contractually agreed purpose. All documents and samples provided to the client as well as any existing patent rights, trademark rights, copyrights or other industrial property rights and all know-how shall remain the property of openmindz GmbH at all times and may not be made accessible 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. In the absence of an express agreement to the contrary, a payment to openmindz GmbH agreed in connection with the provision of a sample shall 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.
The Customer shall have no right of retention.
8.3 The provisions of this Section 8 shall also apply to the work result of a plan, idea, graphic, etc. submitted by the customer, from which openmindz GmbH develops a sample or the subsequent delivery item.
8.4 The client is authorized to use and exploit the deliveries exclusively within the scope of the contractual purpose. openmindz GmbH grants the customer a free and non-exclusive right for the exclusive purpose of the contractual use and exploitation of the deliveries.
9. Assumption of risk / force majeure
9.1 Unless expressly agreed otherwise, the goods are shipped at the risk of the customer. Consequently, the risk shall pass to the customer when the delivery item leaves the factory, even if partial deliveries are made or openmindz GmbH or its suppliers have assumed other services, e.g. shipping costs or delivery.
9.2 If the shipment or acceptance is delayed or does not take place due to circumstances that are not attributable to openmindz GmbH, the risk shall pass to the customer on the day of notification of readiness for shipment.
9.3 If a party is prevented or impeded from fulfilling its obligations under the contract by an event of force majeure, it shall not be in default as a result. The affected party shall notify the other party thereof in writing without undue delay, but no later than within 7 days after becoming aware of the occurrence of such event.
9.4 “Force majeure” shall mean events which affect at least one of the parties or at least one of the parties or at least one vicarious agent or subcontractor of at least one of the parties and for which neither of the parties is responsible and which are unavoidable even if the party concerned exercises the greatest possible care; these include in particular war and civil war, riot, civil unrest and terrorist actions, mobilization, strike, lockout, sabotage, embargo, import restriction, shipwreck and delays in shipping, natural disasters, fire, storm, lightning and customs measures such as seizures.
9.5 The Party giving notice of Force Majeure shall be released from the performance or punctual performance of its obligations under the Contract for so long as the relevant Force Majeure Event continues and to the extent that performance of the Contract is hindered or impeded thereby. As soon as a party is no longer prevented or impeded by the event in the performance of its obligations under the contract, it shall resume its performance without undue delay. Any agreed delivery date shall be adjusted accordingly.
9.6 If the performance of the contract is significantly hindered or impeded during an individual 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 attempt to work out a mutually agreeable solution. If no agreement on a mutually agreeable solution is reached within 6 months at the latest after the existence of the conditions according to sentence 1, each party shall be entitled to terminate the contract by giving notice of termination to the other party.
9.7 In the event of termination of the contract pursuant to clause 9.6, the customer shall be obligated to compensate openmindz GmbH for the part of the contractual deliveries and services performed up to the time of termination of the contract on the basis of the pro rata reasonable contract price if a fixed price has been agreed; otherwise, the contractual deliveries and services shall be compensated on a time and material basis. Likewise, the customer shall reimburse all other costs that can no longer be averted by openmindz GmbH.
10. Liability
10.1 The liability of openmindz GmbH shall generally be limited to damages caused by openmindz GmbH or its vicarious agents intentionally or through gross negligence. In the event of slight negligence, openmindz GmbH shall only be liable in the event of injury to life, limb or health as well as the breach of obligations, the fulfillment of which is a prerequisite for the proper performance of the contract and the observance of which the customer may regularly rely on (so-called cardinal obligations).
10.2 If openmindz GmbH is liable due to a slightly negligent breach of duty, the liability of openmindz GmbH shall be limited to the amount of the typical damages for contracts of the type in question, which were foreseeable at the time of the conclusion of the contract or at the latest at the beginning of the breach of duty. This shall not apply in the event of injury to life, limb or health.
10.3 Claims for damages, which by law do not require fault, shall remain unaffected by the provisions in Clauses 10.1 and 10.2.
10.4 The Customer shall be solely and exclusively responsible for ensuring that no statutory provisions or rights of third parties are violated by the processing of the order. In particular, the customer guarantees openmindz GmbH that it is entitled to the patent rights, trademarks, copyrights and industrial property rights or rights of use necessary for the execution of the contract. If a claim is made against openmindz GmbH by a third party within the scope of the execution of the contract due to the infringement of one of the aforementioned rights, the customer shall indemnify openmindz GmbH against all claims for damages and costs reasonably incurred in this respect, such as costs of legal defense, court costs and personnel expenses.
11. Set-off
The customer may only offset claims of openmindz GmbH against undisputed or legally established claims.
12. Transferability 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 fulfilment
The place of fulfilment for all mutual obligations shall be Heidelberg.
14. Applicable law and place of jurisdiction
14.1 All legal relationships between the customer and openmindz GmbH arising from or in connection with this contract shall be governed by the law of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods.
14.2 The place of jurisdiction for all disputes between openmindz GmbH and the customer arising from or in connection with this contract shall be the court responsible for Heidelberg or, at the discretion of openmindz GmbH, a general or special place of jurisdiction of the customer, provided that the customer is a merchant, a legal entity under public law or a special fund under public law and the legal dispute does not relate to a non-pecuniary claim that is assigned to the local courts without regard to the value of the subject matter of the dispute, nor is an exclusive place of jurisdiction established.
15. Other legal info
15.1 If a part of the contract is invalid or if a loophole is found in the contract, the validity of the remaining part shall not be affected, provided that the invalidity / loophole does not affect the essential features of the contract. The gap / invalid provision shall be replaced by the legally permissible provision which comes closest to what the contracting parties would have intended if they had considered or noticed the partial invalidity or gap when concluding the contract.
15.2 The contract represents the entire agreement of the parties with regard to all facts and contents contained therein and replaces all previous written and oral agreements, negotiations, declarations, notifications and information of any kind.