1. General information

1.1 The following terms and conditions apply to the delivery of all goods and the provision of all services and planning services by openmindz GmbH in relation to the client.

1.2 The client’s general terms and conditions shall not become part of the contract. This shall also apply if reference is made to such terms and conditions in an offer made by the client or in other documents and openmindz GmbH has not expressly objected to the agreement of such terms and conditions. The client’s general terms and conditions shall only apply if this has been expressly agreed.

2. Conclusion of contract

2.1 Unless otherwise indicated by the circumstances, offers made by openmindz GmbH are subject to change and merely constitute invitations to the client to submit binding offers to openmindz GmbH.

2.2 The contract is concluded subject to the proviso that, in the event of incorrect or improper delivery to openmindz GmbH, performance shall not be provided or shall only be provided in part. If the service is not available or only partially available, the client will be informed 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. In addition, openmindz GmbH retains title to the delivered goods until all claims arising from the business relationship with the client at the time of conclusion of the contract (“current claims”) and all further claims of openmindz GmbH against the client arising from the business relationship prior to the complete fulfillment of the current claims have been settled in full.

3.2 The client is obliged to store the goods subject to retention of title separately and to insure them adequately against all usual risks, in particular burglary and fire. The client hereby assigns all claims against the insurance company to openmindz GmbH.

3.3 The client is revocably permitted to resell the delivered goods in accordance with the following provisions within the scope of proper business transactions:

3.3.1 In the event of resale of the goods subject to retention of title, the client hereby assigns to us all claims arising from the resale in the amount of the final invoice amount including sales tax. openmindz GmbH accepts the assignment. If the client is unable to make an assignment in accordance with the above 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 shall be entitled to collect the assigned claim until revoked by openmindz GmbH. The right of openmindz GmbH to collect the claims itself remains unaffected by this. However, openmindz GmbH undertakes not to notify the third-party debtor of the assignment of claims as long as the client meets its payment obligations from the proceeds received, is not in default of payment, and, in particular, no application for the opening of insolvency proceedings has been filed or payments have been suspended. openmindz GmbH may demand at any time 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 cessation of payments, application for and opening of judicial insolvency proceedings or extrajudicial settlement proceedings, the right to resell and use the goods subject to retention of title and the authorization to collect the assigned claims shall expire.

4. Obligation to give notice of defects

4.1 Deliveries must be inspected immediately upon receipt by the customer or by the recipient designated by the customer. After unconditional acceptance of the goods by the customer or a person authorized by the customer, any subsequent complaints regarding the external condition of the delivery shall be excluded.

4.2 Defects apparent in the goods must be reported immediately, but no later than within three working days of receipt of the goods.

4.3 Defects other than those specified 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 The timely dispatch of the notification shall suffice to meet the deadline for the notification of defects in accordance with Sections 4.2 and 4.3.

4.5 Notifications of defects must be made in writing.

4.6 If the client fails to carry out the proper inspection and/or timely notification of defects in accordance with this Section 4, openmindz GmbH shall not be liable for the unreported defect.

5. Warranty

5.1 For defects reported in good time that significantly impair the value or usability of the goods, openmindz GmbH shall, at its discretion, either replace the goods or remedy the defect.

5.2 The limitation period for warranty claims for goods is 12 months, unless openmindz GmbH is guilty of intent, and begins with the delivery of the goods.

5.3 The warranty claims of the client against openmindz GmbH in the event of a defect are limited to the aforementioned right to subsequent performance. If the chosen subsequent performance fails, the client shall be entitled, at its discretion, to a reduction in price (reduction of the remuneration) or to withdraw from the contract.

5.4 Deviations in color, grain, pattern, shape, and size from an exhibit, sample, or image are reserved, insofar as these are inherent 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 necessary 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 actually exists. However, if the client’s request for rectification of a defect proves to be unjustified, openmindz GmbH shall be entitled to demand reimbursement of the costs incurred from the client.

6. Deadlines

6.1 Unless expressly agreed otherwise, specified delivery dates are to be understood as approximate.

6.2 Performance deadlines shall be extended appropriately without further agreement in cases of force majeure, due to official orders or in the event of other circumstances for which openmindz GmbH is not responsible.

6.3 Conditions for compliance with performance deadlines are the timely fulfillment of the obligations to cooperate specified in the offer letter, in particular the approval of samples.

6.4 If the client is in default of acceptance, fails to cooperate or delays delivery for other reasons for which the client is responsible, openmindz GmbH shall be entitled to demand compensation for the damage incurred, including additional expenses (e.g. storage costs). For this, a flat-rate compensation of 1% of the purchase price shall be charged for the first three calendar days and 0.3% for each subsequent calendar day, beginning with the delivery date or, in the absence of a delivery date, with notification of readiness for shipment or, in the absence of an agreement on a sale by delivery, after the planned delivery date communicated to the client. The right to prove higher damages and further legal claims (in particular compensation for additional expenses, reasonable compensation, termination) remains unaffected; however, the lump sum shall be offset against any further monetary claims. The client is entitled to prove that openmindz GmbH has incurred no damage or significantly less damage than the above lump sum.

7. Price and payment

7.1 Unless otherwise stated in our offer, our prices are “ex works” in US dollars plus sales tax on the date of invoicing.

7.2 openmindz GmbH is entitled to pass on to the client any increases in freight costs, shipping costs, insurance premiums, etc. that occur after conclusion of the contract. 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 to take place more than two months after conclusion of the contract.

7.3 Unless expressly stated otherwise in our offer, openmindz GmbH’s payment claims are due immediately. The client shall be in default at the latest 30 days after the due date and receipt of an invoice or an equivalent request for payment.

7.4 If “advance payment” has been agreed, payment shall be due eight working days after the contract comes into effect.

7.5 If, after 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 an application for the opening of insolvency proceedings), openmindz GmbH shall be entitled to refuse performance in accordance with the statutory provisions and, if necessary, to withdraw from the contract after setting a deadline (§ 321 BGB). In the case of contracts for the manufacture of non-fungible items (custom-made products), openmindz GmbH may declare its withdrawal immediately; the statutory provisions on the dispensability of setting a deadline remain unaffected.

8. Copyright, protection and usage rights / confidentiality

8.1 Each party is obliged to treat as strictly confidential any secret or confidential information, materials and samples disclosed by the other party in connection with this contract. Confidential information shall include all information and materials disclosed by one party within the scope of the contract or during the contract negotiations in verbal, written, physical, electronic, or any other form that 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, designs, and drawings (“documents”) and samples, insofar as these are subject to copyright, regardless of whether they were handed over prior to the conclusion of the contract or at a later date. 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 patent, trademark, copyright, or other property rights and all know-how, 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. Unless expressly agreed otherwise, any payment to openmindz GmbH 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 shall compensate for the personnel and planning costs incurred as a result.

The client shall have no right of retention.

8.3 The provisions of this Section 8 shall also apply to the work results of a plan, idea, graphic, etc. submitted by the client 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 client a free and non-exclusive right for the exclusive purpose of contractual use and exploitation of the deliveries.

9. Transfer of risk / Force majeure

9.1 Unless expressly agreed otherwise, the goods shall be shipped at the risk of the client. Consequently, the risk shall pass to the client 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 shipment or acceptance is delayed or fails to occur due to circumstances beyond the control of openmindz GmbH, the risk shall pass to the customer on the day of notification of readiness for shipment.

9.3 If one party is prevented or hindered from fulfilling its obligations under the contract by an event of force majeure, it shall not be in default. The affected party must notify the other party in writing immediately, but no later than 7 days after becoming aware of the occurrence of such an event.

9.4 “Force majeure” shall mean events which affect at least one of the parties or at least one vicarious agent or subcontractor of at least one party, and which are beyond the control of either party and are unavoidable even with the exercise of the greatest possible care on the part of the affected party; including, in particular, war and civil war, riots, civil unrest and terrorist acts, 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 notifying the force majeure shall be released from the performance or timely performance of its obligations under the contract for as long as the relevant force majeure event continues and to the extent that the performance of the contract is prevented or hindered thereby. As soon as a party is no longer prevented or hindered by the event from performing its contractual obligations, it shall resume its performance without delay. Any agreed delivery date shall be adjusted accordingly.

9.6 If the performance of the contract is significantly prevented 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 attempt to work out a mutually acceptable solution. If no agreement on a mutually acceptable solution is reached within six months of the conditions set out in sentence 1 being met, 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 in accordance with Section 9.6, the client shall be obliged to remunerate 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 proportionate contractual price, provided that a fixed price has been agreed; otherwise, the contractual deliveries and services shall be remunerated on the basis of actual expenditure. Likewise, the client shall reimburse openmindz GmbH for all other costs that can no longer be avoided.

10. Liability

10.1 The liability of openmindz GmbH is generally limited to damages caused by openmindz GmbH or its vicarious agents through intent or gross negligence. openmindz GmbH shall only be liable for slight negligence in the event of injury to life, limb, or health, as well as in the event of a breach of duties whose fulfillment is essential for the proper execution of the contract and on whose fulfillment the client may regularly rely (so-called cardinal obligations).

10.2 If openmindz GmbH is liable for a slightly negligent breach of duty, the liability of openmindz GmbH shall be limited to the amount of damage typical for contracts of the type in question that was foreseeable at the time of conclusion of the contract or at the latest at the time of the breach of duty. This does not apply in the event of injury to life, limb, or health.

10.3 Claims for damages which do not require fault under the law remain unaffected by the provisions in 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 legal regulations or the rights of third parties. In particular, the client guarantees openmindz GmbH that it is entitled to the patent, trademark, copyright, and property rights or rights of use necessary for the execution of the contract. If openmindz GmbH is held liable by a third party within the scope of the execution of the contract due to the violation of one of the aforementioned rights, the client shall indemnify openmindz GmbH against all claims for damages and reasonable costs incurred in this respect, such as costs of legal defense, court costs, and personnel expenses.

11. Offsetting

The client may only offset claims against openmindz GmbH with undisputed or legally established claims.

12. Non-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 performance

The place of performance for all mutual obligations is Heidelberg.

14. Applicable law and place of jurisdiction

14.1 All legal relationships between the client and openmindz GmbH arising from or in connection with this contract shall be governed by the laws 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 client arising from or in connection with this contract shall be the court having jurisdiction for Heidelberg or, at the discretion of openmindz GmbH, a general or special 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 does not concern a non-pecuniary claim which is assigned to the local courts regardless of the value of the matter in dispute, nor is an exclusive place of jurisdiction established.

15. Miscellaneous

15.1 If part of the contract is invalid or if a loophole is discovered in the contract, the validity of the remaining part shall remain unaffected, provided that the invalidity/loophole does not affect the essential features of the contract. The gap/invalid provision shall be replaced by a legally permissible provision that comes closest to what the contracting parties would have wanted if they had considered or noticed the partial invalidity or gap when concluding the contract.

15.2 The contract represents the entire agreement between the parties with regard to all matters and content contained therein and replaces all previous written and oral agreements, negotiations, declarations, notifications, and information of any kind.