General Terms and Conditions
Status: January 2023
This English version of the General Terms and Conditions of OMIND platform GmbH is for information purposes only. The German version of the General Terms and Conditions, which can be viewed here, apply exclusively.
All deliveries, services, performances and offers of OMIND platform GmbH (hereinafter: „we“) in business transactions with entrepreneurs (hereinafter: „customers“) shall be governed exclusively by these General Terms and Conditions. They are an integral part of all contracts that we conclude with our customers. They shall also apply to all future deliveries, services, performances and offers, even if they are not separately agreed upon again. In the case of existing business relations, the current version of these Terms and Conditions shall apply in each case.
Deliveries and offers made and services and performances rendered by us in the event of deviating General Terms and Conditions of the customer shall not constitute acceptance of the General Terms and Conditions of the customer. In particular, we shall only be bound by the customer’s General Terms and Conditions to the extent that they are consistent with our General Terms and Conditions in force at the time or if we have expressly agreed to the customer’s General Terms and Conditions in writing or in text form.
Agreements that expressly deviate individually from these General Terms and Conditions shall take precedence. Additions and amendments to the agreement reached with the customer, including these General Terms and Conditions, must be made in writing or in text form in order to be effective. Transmission by e-mail shall be sufficient to comply with this form.
1. Offer and conclusion of contract, commissioning of external third parties
1.1 Our offers are subject to change without notice and are exclusive of value added tax at the respective statutory rate.
1.2 Orders and changes to orders shall only be concluded if orders or changes are agreed with the customer in writing or in text form.
1.3 We shall only provide such services as are expressly stated in our offers and contracts. The customer’s requirements shall be taken into account in the service description to the extent necessary. We shall only provide additional services if these have been expressly agreed with the customer in writing or in text form.
1.4 We shall be free to engage external third parties (subcontractors) to perform the services agreed with the customer.
2. Periods and dates, extensions of terms
2.1 Deadlines and dates shall only be binding if they have been expressly agreed with the customer in writing or in text form.
2.2 The term of agreed performance periods shall commence upon receipt by us of the contract signed by both parties, but not before the work documents and/or items to be procured by the customer have been provided and any agreed payments have been received.
2.3 If the customer fails to fulfill its obligation to cooperate in a timely manner or delays such fulfillment, or if the customer requests changes, the performance period shall be extended in accordance with the time extension initiated by the customer. We shall inform the customer of any extension without delay.
2.4 Force majeure and other extraordinary circumstances such as labor disputes (strikes), bottlenecks in the supply of resources for which we are not responsible, sovereign measures and traffic disruptions for which we are not responsible shall release us from our obligation to perform for the duration of their effects and, if they lead to the impossibility of performance, release us completely from our obligation to perform. We will inform the customer immediately about cases according to this clause 2.4.
3. Working documents and authority to issue instructions
3.1 The customer shall provide us with the necessary information and working documents agreed upon for the performance of the service in due time prior to the performance of the service in a form individually agreed upon between the customer and us and at the customer’s expense.
3.2 The customer shall not be entitled to issue instructions to us or to third parties commissioned by us, even if they work at the customer’s premises or at other work sites agreed with the customer. This shall not apply in the event of imminent danger, for which the customer shall bear the burden of proof.
3.3 If services are provided at the customer’s premises, the customer shall be responsible for setting up and operating the workplaces required for the provision of services at its own expense, if necessary for the project employees deployed by us. The workplaces shall comply with the requirements of the „Ordinance on Workplaces“ (German „Verordnung über Arbeitsstätten“) and other occupational safety and accident prevention regulations according to German law.
3.4 Our work and activities shall generally take place online and by arrangement with the customer on the customer’s premises or on the premises of partners of ours. Corresponding dates will be agreed with the customer.
4. Remuneration and payment
4.1 The remuneration for our work and our services shall be made in Euros on the basis of the order placed by the customer.
4.2 Unless otherwise agreed in the offer to the customer, we shall be entitled to issue partial invoices for partial services rendered; this shall apply mutatis mutandis if we have agreed service rates/hourly billing rates with the customer. The remuneration for partial services and the service rates/hourly billing rates shall be agreed with the customer in the service description.
4.3 The customer shall make payments to us immediately upon receipt of an invoice, but no later than the due date stated in the invoice, without any deductions.
4.4 After the due date, default interest in the amount of 9% above the respective base interest rate p.a. shall be charged. Furthermore, we reserve the right to claim a lump sum for damages in the amount of EUR 40.00 pursuant to Section 288 (5) BGB (German Civil Code). We also reserve the right to assert further damage caused by default, against which the lump-sum compensation shall be offset.
5. Property rights and copyrights, granting of rights of use
5.1 We reserve all property rights, copyrights and other industrial property rights to all documents, drafts, originals and the like made available to the customer during the course of our services or our performances, unless the documents, etc. made available to the customer are part of our contractual performance. Without our written consent, the aforementioned documents may not be used in any other way, in particular they may not be reproduced or made accessible to third parties. Upon request, the aforementioned documents shall be returned to us without delay or shall be completely deleted from customer systems and, in the event of existing access, shall also be removed. If a corresponding agreement exists within the scope of the service description with regard to the acquisition of a right of use, the customer shall acquire the corresponding right of use upon payment of the agreed remuneration. The granting of the right of use shall be compensated by the contractually agreed remuneration, unless we have reached a different agreement with the customer.
5.2 We grant the customer the non-exclusive and gratuitous right to use our name and logo, which are protected under German laws, especially company and trademark law, in favor of us, as a reference on its website, as part of its presentations and as part of social media postings on LinkedIn, Facebook, XING and Twitter and as part of e-mail newsletters to refer to the cooperation with us. Changes to the size of the logo while maintaining proportions are possible. Use of our name or logo in a form that could lead to confusion regarding the business relationship between us and the customer is not permitted. Furthermore, use for purposes other than those specified in the first sentence above of this clause 5.2 is not permitted without our prior consent.
6.1 The customer shall accept the services rendered by us, even if these are permissibly rendered as partial services, without undue delay upon request by us, insofar as acceptance is required due to the service to be rendered by us.
6.2 Acceptance shall be deemed to have taken place if the customer waives it or puts our services into use or utilizes them.
7. Defects, warranty claims
7.1 The customer shall notify us of any defects in writing or in text form without undue delay, at the latest 5 days after their discovery.
7.2 We shall first be given the opportunity to provide subsequent performance within a reasonable period of time, at our discretion either by remedying the defect or by providing a new defect-free delivery or service.
7.3 If the subsequent performance fails after two unsuccessful attempts to remedy the defect, if a subsequent performance cannot be reasonably expected of us or the customer or if a subsequent perfrmance is only possible with disproportionate costs/effort, the customer may – without prejudice to any claims for damages – withdraw from the contract or reduce the remuneration. The customer cannot demand compensation for futile expenses.
7.4 The customer shall have statutory rights of recourse against us only to the extent that the customer has not entered into any agreements with a purchaser that go beyond the statutory claims and rights based on defects. The provisions of this Clause 7 shall apply mutatis mutandis to the scope of the customer’s right of recourse against us.
7.5 The limitation period for material defects and defects of title shall be one year and shall commence with the passing of risk. This shall not apply if and to the extent that longer periods apply by law, the defect was fraudulently concealed or one of the cases of liability set forth in Section 8 below exists.
7.6 In addition, the German statutory provisions that apply to material defects and defects of title and to our obligation to pay compensation for expenses and damages are only subject to clause 8 below, unless there are mandatory legal regulations to the contrary.
8.1 We shall be liable for claims for damages and reimbursement of expenses (hereinafter referred to as „Damage Claims“) of the customer against us if and to the extent they are based on the provisions of the Product Liability Act, an intentional or grossly negligent breach of contractual or statutory obligations by us, damage to health or bodily injury of the customer as a result of a breach of duty for which we are responsible, the assumption of a guarantee for the existence of a characteristic or the breach of material contractual obligations by us. Otherwise, the customer’s claims for damages against us – irrespective of the legal grounds – shall be excluded.
8.2 In the event of a breach of material contractual obligations by us, the customer’s claim for damages shall be limited to the foreseeable damage typical for the contract, unless we are liable for an intentional or grossly negligent breach of duty, for damage to health or bodily injury of the customer or due to the assumption of a guarantee for the existence of a property.
8.3 A breach of duty by us is equivalent to a breach of duty by our legal representative or vicarious agent.
9. Takeover of employees
We and the customer undertake not to entice away, hire or employ any employees of the other who were active in the initiation and execution of the contract before and during the term of the contract and for a period of 6 months after the termination of the contract, irrespective of the legal reason.
10. Assignment, offsetting and Retention
10.1 The customer shall not be entitled to assign its claims and rights against us to third parties without our written consent.
10.2 The customer may only set off against us claims that are undisputed, legally established or ready for decision.
10.3 The customer shall only be entitled to exercise a right of retention if his counterclaims are based on the same contractual relationship.
11. Data protection
11.1 The parties undertake to treat as confidential and not to disclose to third parties any documents and information provided by one party to the other party or of which one party has become aware within the framework of the contractual relationship. This shall also apply to documents and information provided to one party by the other party in the course of the contract initiation. The parties agree that the documents and information may be stored electronically.
11.2 In addition, our data protection provisions shall apply, which can be viewed at the following address on our website: www.omindplatform.com.
12. Place of jurisdiction, applicable law, differences in case of several language versions
12.1 The exclusive place of jurisdiction is the local/state court responsible for our registered office. However, we are entitled to sue the customer at his general place of jurisdiction or at any place of action.
12.2 The law of the Federal Republic of Germany shall apply to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods.
12.3 These General Terms and Conditions are provided in German and in English. In the event of any inconsistencies in language or content between the German and English versions, the German version shall always take precedence over the English language version.
13. Partial invalidity
If individual provisions of a contract between us and the customer, of which these terms and conditions are a part, are or become invalid, this shall not affect the validity of the remaining provisions of that contract. The same applies to these Terms and Conditions.