OPEN MIND Technologies AG
General Business Terms and Conditions of OPEN MIND Technologies AG
I. Conclusion of the Contract
OPEN MIND Technologies AG completes out all current and future sales, deliveries, and other services exclusively under the conditions described below. They also apply in cases where they are not expressly referenced. Other standard business conditions do not become part of the contract, even if OPEN MIND Technologies AG has not expressly disagreed with them.
Unless otherwise specified as binding, our quotations are always non-binding and subject to change without notice. Additions, modifications, or additional agreements as well as possible assurances provided by our employees by telegraph, telephone, or verbally always require our written confirmation in order to become effective; transmission via fax is sufficient.
OPEN MIND Technologies AG reserves the right to make the conclusion of the contract dependent on a prepayment, deposit, or provision of security.
All quoted prices are subject to change without notice. Unless otherwise specified, prices are ex warehouse and net of VAT; shipping and handling are not included.
The delivery dates specified by OPEN MIND Technologies AG are guidelines. The term of delivery starts when the order confirmation is sent. If the conclusion of the contract is dependent on a prepayment, deposit, or provision of security in terms of Section I, the term of delivery does not start until payment for this commitment has been received.
Default in delivery on the part of OPEN MIND Technologies AG only occurs if the customer, within a reasonable period after the delivery is due, submits a written reminder to make the delivery with a grace period of at least 4 (four) weeks and if OPEN MIND Technologies AG does not make the delivery within this grace period.
If OPEN MIND Technologies AG or one of its suppliers is prevented from making the delivery in a timely manner due an act of god or other circumstances beyond their control, the term of delivery is extended by a reasonable period required to correct the situation that prevents performance. In case performance is impossible for reasons beyond the control of OPEN MIND Technologies AG or if performance would be unreasonable, OPEN MIND Technologies AG is relieved of its obligation to perform.
The indemnifiable amount of damage caused by a delay is limited to an amount no greater than the net order amount of the goods and services affected by the delay.
IV. Shipment and Passing of Risk
Passing of risk to the buyer occurs no later than with the transfer to the person instructed to make the shipment. Deliveries are not insured.
V. Payment Terms
Payments for the supply of goods are due 14 days from the invoice date. Payments for services are due as soon as the services are completed.
All payments must be made by the due date with no deductions. Set-off is only permitted in case of legally established or undisputed counter claims.
OPEN MIND Technologies AG calculates late payment charges at the rate of 4 % above the prime rate of the European Central Bank but no less than 9 %, unless the customer provides proof that the loss suffered by OPEN MIND Technologies AG was lower.
In case the customer’s financial situation deteriorates significantly, OPEN MIND Technologies AG reserves the right to request immediate payment of all amounts receivable from the customer to the extent that they are not in dispute, to assert the right of retention against all claims made by the customer, and to request matching payments with deliveries or provision of security.
In the normal course of business, the customer is responsible for immediately verifying the accuracy and completeness all invoices.
VI. Retention of Title
OPEN MIND Technologies AG retains title to all products supplied under the business relationship until the entire amount due has been paid. This also applies if the customer makes a payment for a particular delivery (open item retention).
The retention of title also extends to products that have been processed, combined, or resold (extended retention of title) and that contain the products subject to retention of title. Resale is only permitted in the normal course of business. Title to the new items is automatically assigned to OPEN MIND Technologies AG in advance (assignment in advance). In case of extra security, the customer can request the release of the excess security.
If the payment terms are not met, in case of unauthorized commitment of funds, and if insolvency proceedings are commenced against the customer, OPEN MIND Technologies AG can immediately take possession of the goods subject to retention of title.
VII. Warranty – Use of Software Products
The requirements of the corresponding license agreement must be considered for the use of software.
Software products cannot be guaranteed to be entirely free of errors. The liability of OPEN MIND Technologies AG is limited to ensuring that the product is fundamentally usable in terms of the product description and the instructions for use.
No liability is assumed for changes made by the customer. In principle, OPEN MIND Technologies AG does not assume any liability for damages resulting from incorrect use of the software or from failures (i.e. backups) that fall under the responsibility of the customer.
The customer is obligated to carefully inspect deliveries for errors and quantities in a timely manner, and to report possible deficiencies immediately. This also applies to concealed deficiencies which must be reported as soon as they are discovered. If these obligations are not fulfilled, OPEN MIND Technologies AG is not liable for these deficiencies.
Under the terms of the warranty, OPEN MIND Technologies AG has the right to choose between subsequent improvement or delivery of replacements. If OPEN MIND Technologies AG should not be able to or willing to do so, if subsequent improvement or the delivery of replacements in particular is delayed beyond a reasonable grace period for reasons under the control of OPEN MIND Technologies AG, or if subsequent improvement or the delivery of replacements fails for any other reason, the customer has the right to abatement or conversion. Further warranty claims are excluded.
Warranty claims expire 12 months after the transfer of goods, and can only be asserted directly by the customer.
Any liability on the part of OPEN MIND Technologies AG for damages of any kind – financial damages, consequential damages caused by defects, and lost profits as well as damages resulting from the breach of obligations arising from letters of intent and because of default at the time the contract is concluded – is excluded.
This does not apply to claims for damages resulting from the lack of a warranted characteristic or from the breach of an obligation that is required to make proper completion of the contract possible (cardinal obligation). In any case, the liability for damages is limited to the foreseeable loss. Should the amount of the foreseeable loss exceed the contract value, liability is limited to the contract value. However, the limitation of liability outlined above does not apply to damages caused by OPEN MIND Technologies AG wilfully or through gross negligence.
IX. Final Clauses
Should all or part of the general business terms and conditions not have become part of the contract or have become ineffective, the remainder of the contract remains effective. In place of the ineffective provision, an effective provision that comes closest to the desired economic result is considered as having been agreed on.
The place of execution is Munich. The parties agree that the laws of the Federal Republic of Germany apply. To the extent permitted under §38 ZPO (code of civil procedure), Munich is the sole jurisdiction.
The assignment of customer claims to third parties is excluded.
OPEN MIND Technologies AG
Argelsrieder Feld 5
Phone: +49 8153 933-500
Fax: +49 8153 933-501