Scope

1. These General Terms and Conditions apply exclusively to companies, legal entities under public law or special funds under public law within the meaning of § 310 paragraph 1 BGB. collective mind does not recognize any conflicting terms and conditions or terms and conditions of the customer that deviate from the terms and conditions of collective mind, unless collective mind has expressly agreed to their validity in writing.
2. These General Terms and Conditions also apply to all future transactions with the customer, insofar as these are legal transactions of a related nature.
   
   

Offer and conclusion of contract

1. In the case of development or consulting contracts, collective mind will prepare an offer on the basis of the service description developed jointly with the customer. The customer is obliged to specify its requirements in detail and to check the service description for completeness. collective mind is bound by this offer for a period of four weeks.
2. Each order for deliveries or commissioning of any other service by the customer is deemed a binding contractual offer, unless otherwise stated in the order or commissioning or other agreements. collective mind is entitled to accept this contractual offer within two weeks of receipt. Acceptance can be declared either in writing or by delivery or provision of the other services to the customer.
   
   

Dates and deadlines

1. Dates and deadlines are binding if they have been agreed as binding by collective mind and the customer in writing in individual cases. Unless otherwise agreed in individual cases, the performance period begins with the conclusion of the contract or dispatch of the order confirmation. The agreement of a fixed performance date is subject to the condition that collective mind receives the necessary services from its suppliers in good time and in accordance with the contract.
2. Compliance with dates and deadlines requires that the customer provides all information required for the deliveries in good time, in particular that it performs its obligations to cooperate. If these requirements are not met, the deadlines or dates will be extended appropriately.
3. If non-compliance with dates and deadlines is due to force majeure, e.g. war, riot, or similar events such as strike, lockout, the dates and deadlines shall be extended appropriately. The same applies in the event that collective mind does not receive the necessary services from the respective upstream suppliers in good time and in accordance with the contract.
   
   
   

Changes

1. The customer may request a change to the requirements in writing at any time. collective mind will review this request and inform the customer whether the proposed change can be implemented within the scope of the agreed services. If this is not the case, collective mind will submit a written offer to the customer within two weeks for the implementation of the changes (change offer). The change offer will include, in particular, the service description and its effects on the service period, the agreed dates and the remuneration. The offer will also take into account possible savings due to reduced expenses.
2. The customer will either accept or reject this change offer within the acceptance period (binding period) specified in the offer.
3. Until the change offer is accepted, the work will continue on the basis of the previous contractual agreements. The customer and collective mind may agree in writing that services affected by a proposed change will be suspended until the examination is completed or - if a change offer is submitted - until the end of the binding period. The service periods will be extended by the number of working days on which the work in connection with the proposed change or its examination was suspended by mutual agreement or after consultation.
4. If the offered change to the contractual conditions is not accepted within the binding period, the work will be continued on the basis of the contract. collective mind may demand the agreed expense allowance or a reasonable increase in the agreed fixed price for the duration of the interruption, unless collective mind has used its labor or the employees affected by the interruption elsewhere or has maliciously failed to do so.
   
   

Remuneration, terms of payment

1. Unless expressly agreed otherwise in writing, collective mind's prices for purchase agreements apply ex works, excluding packaging and shipping, plus value added tax at the applicable rate. Costs for packaging and shipping will be invoiced separately.
2. Services are provided at the prices and special conditions of the respective contract. The prices stated therein are binding. If no fixed prices have been agreed, the price for the respective delivery or service shall be based on the price list valid at the time of the order confirmation.
3. Unless otherwise agreed, the prices are "net" plus the statutory value added tax of currently 19%.
4. Unless otherwise agreed, the prices or daily rates are plus travel and incidental expenses. A day comprises 8 hours. Expenses for accommodation and travel costs (rental car, fuel, train, flight) shall be paid by the customer in accordance with actual expenses, additional meal expenses in accordance with the statutory regulations. Travel times will be charged at half the hourly rate. The kilometer allowance for private cars used is €0.40/km.
5. Invoicing takes place after the service has been provided. collective mind is entitled to demand reasonable advance payments.
6. Unless otherwise agreed, the invoice amount is payable within 14 days of the invoice date. Default interest will be charged at a rate of 9% above the respective base interest rate p.a. The assertion of a higher damage caused by default remains reserved.
7. If the customer is in default with payments and does not pay despite two reminders, collective mind is entitled to temporarily suspend further services from the same legal relationship to which collective mind is obliged and to make all open amounts from this relationship due immediately. Any agreed dates or deadlines for the execution of outstanding deliveries and services shall lapse in this case without any special notice from collective mind being required.
   
   

Retention of title and rights

1. collective mind reserves all rights to the deliveries or services until full payment of all claims arising from the respective contract. This applies as of November 2018 4 in particular to the ownership of the object of delivery (e.g. data carriers, user manuals, other documentation, etc.) as well as to intellectual property rights (e.g. copyright rights of use to software programs and user manuals).
2. The customer will either accept or reject this change offer within the acceptance period (binding period) specified in the offer.
3. Before full payment, deliveries and services of collective mind may neither be pledged to third parties nor assigned as security. As long as ownership has not yet been transferred, the customer must inform collective mind immediately in writing if the delivered item is seized or is subject to other interventions by third parties. If the third party is not in a position to reimburse collective mind for the court and out-of-court costs of an action pursuant to § 771 ZPO, the customer shall be liable for the loss incurred by collective mind.
   
   

Transfer of software/documentation material

1. If the subject matter of the contract includes the transfer of software, collective mind grants the customer - unless otherwise agreed in the contract - the non-transferable and non-exclusive right to use the software specified in more detail in the order and, if available, the documentation material for an indefinite period of time. The area of application, performance and all other specific software properties are determined solely by the documentation accompanying the software.
2. If standard software is the subject of the contractually owed services, the delivered standard software may only be used in accordance with the license conditions of the respective manufacturer. Failure to comply with these license conditions will lead, among other things, to the revocation of the license.
3. Before full payment, deliveries and services of collective mind may neither be pledged to third parties nor assigned as security. As long as ownership has not yet been transferred, the customer must inform collective mind. The software provided to the customer, in particular the source code, including all documentation, remains the property of collective mind. collective mind remains the owner of all copyrights and rights of use to the software provided to the customer, including the respective documentation material, even if the customer modifies it or combines it with its software and/or that of a third party. In the event of such modifications or connections, as well as in the creation of copies, the customer shall affix a corresponding copyright notice. Modifications and extensions to the source code that are carried out at the request and expense of the customer become the property of collective mind and can be made available to other customers with the customer's consent. As of November 2018 5 The rights of use for the software changes are assigned to the customer. The customer accepts the assignment.
   
   

Update and Support

1. If collective mind is commissioned to take over the maintenance and support of software, the scope of these services will be contractually agreed in a service description (SLA). The services agreed in this way will be remunerated in the form of a maintenance and support flat rate.
2. Unless otherwise agreed, the flat rate includes the following services:
   1. the elimination of errors in the source code
   2. the updating of software (updating)
   3. the exchange of improved standard software including documentation
   4. Advising the customer (by telephone, fax and/or email) on questions that arise during software use.
   5. Maintenance also extends to the documentation pertaining to the software, as well as to files or database material covered by the service description.
3. collective mind is obliged to investigate reproducible software errors reported by the customer and, if possible, provide the customer with a workaround (temporary solution). An error exists, in particular, if the software does not fulfill a function specified in its performance description, or does not fulfill it correctly, or otherwise does not behave functionally.
4. In the event of significant software errors, collective mind is obliged to rectify the error in one of the following updates. A prerequisite for the search and elimination of errors is the fulfillment of the customer's obligations to cooperate.
   
   

Service provision

1. Unless otherwise agreed in individual cases, the place of service provision is the registered office of collective mind.
2. The employees involved in the performance of the service will be selected by collective mind. The customer is not entitled to the performance of services by specific employees. In making its selection, collective mind will give reasonable consideration to the interests of the customer. collective mind provides the services through persons who are qualified to provide the agreed services. Should a person employed by collective mind to fulfill the contract be replaced by another and training is required, this shall be borne by collective mind.
3. collective mind determines - in accordance with the subject matter of the service - the manner in which the service is provided.
4. The employees of collective mind do not enter into any employment relationship with the customer. With the exception of that agreed within the framework of § 16 para. 2, the customer is not authorized to issue instructions to collective mind or the employees of collective mind involved in the provision of the service.
5. The involvement of subcontractors is only possible with the prior, express consent of the customer.
6. If collective mind has to present the result of a service in writing, only the written presentation is authoritative.
7. collective mind will undertake additional services not covered by the contract at the written request of the customer against separate payment. The calculation is based on collective mind's hourly rates valid at the time of execution.
   
   

Customer's obligations to cooperate in service/work contracts

1. The customer shall nominate a qualified contact person to collective mind who can make binding decisions for the customer during the execution of the contractually agreed service. This person must be available for the exchange of necessary information and participate in the decisions necessary for the fulfillment of the contract. Necessary decisions of the customer must be obtained by the contact person without delay and documented jointly in writing by the contracting parties immediately thereafter.
2. The customer shall ensure that collective mind is provided with the documents, information, technical data, computer programs, files, documentation, test data, aids, etc. necessary for the provision of the service, completely, correctly, in good time and free of charge, insofar as these are not owed by collective mind. In addition, the customer shall ensure that they are updated. collective mind may assume that these documents are complete and correct, unless the contrary is recognized or should have been recognized.
3. In order to ensure a smooth execution of the agreed services, the customer will make necessary decisions within a reasonable period (usually 2 days).
4. The customer is responsible for the provision or creation of the necessary structural, technical and other prerequisites that are specified to the customer by collective mind.
5. The customer is obliged to define test scenarios (e.g. function tests, check special cases). He is also obliged to provide data and suitable business transactions for testing purposes in good time and to carry out tests.
6. The customer will notify collective mind of any errors that occur without delay and support collective mind in the investigation and elimination of errors to a reasonable extent. This includes, in particular, submitting written defect reports to collective mind at its request and providing other data and logs that are suitable and necessary for analyzing the error.
7. In order to avoid damage - and unless otherwise agreed in the contract - the customer is required to ensure that its data stock is backed up daily in accordance with the state of the art.
8. The customer is obliged to support collective mind to the extent necessary and to create all the prerequisites necessary for the proper execution of the assignment in its operational sphere. In addition, the customer shall provide sufficient workplaces and equipment at the request of collective mind.
9. Unless otherwise agreed, the customer shall store all documents, information, etc. handed over by collective mind in such a way that they can be reconstructed in the event of damage or loss.
   
   

Complaints of defects / Liability for defects

1. The customer is obliged to inspect deliveries and services immediately for completeness and obvious defects, in particular also for obvious shortages or damage, and to notify collective mind of these in writing without delay, at the latest within two weeks of receipt of the delivery or service. In the case of non-obvious (hidden) defects, the customer is obliged to report these in writing after their discovery, at the latest within the limitation period. If the customer fails to make the above-mentioned complaints, liability for the unreported defect is excluded.
2. The customer bears the burden of proof for compliance with and timeliness of the obligation to give notice of defects, as well as for the existence and time of discovery of a defect.
3. collective mind warrants that the contractually agreed software will possess the functions specified in the contract or service description during the term of the contract.
   
   

Service disruptions in purchase agreements

1. Warranty claims by the customer require that the customer has duly complied with its obligations to inspect and give notice of defects in accordance with § 377 HGB.
2. Should the delivered goods, despite all due care, exhibit a defect that was already present at the time of the transfer of risk, collective mind will, subject to timely notification of defects, at its option, either repair the goods or deliver replacement goods. collective mind must always be given the opportunity to remedy the defect within a reasonable period. Rights of recourse remain unaffected by the above provision without restriction. If the subsequent performance fails, the customer may – without prejudice to any claims for damages – withdraw from the contract or reduce the remuneration.
3. Claims for defects do not exist in the event of only insignificant deviation from the agreed quality, in the event of only insignificant impairment of usability, in the event of natural wear and tear, or in the event of damage occurring after the transfer of risk as a result of faulty or negligent handling, excessive strain, or unsuitable operating materials that are not required under the contract. If improper repair work or modifications are carried out by the customer or third parties, there are also no claims for defects for these and the resulting consequences.
4. Claims by the customer for expenses incurred for the purpose of supplementary performance, in particular transport, travel, labor and material costs, are excluded to the extent that the expenses increase because the goods delivered by collective mind are subsequently transported to a location other than the customer's branch, unless the transport corresponds to their intended use.
   
   

Service disruptions in contracts for work and services

1. collective mind is entitled, in the event of reproducible software errors, to first provide the customer with a workaround (temporary solution). collective mind is obliged to eliminate the error with the next update. In the case of errors that significantly impair the use of the software, even with a workaround, collective mind is obliged to eliminate the error immediately. If collective mind fails to meet this obligation to remedy the defect within a reasonable period, the customer may either remedy the defect itself and demand reimbursement of the necessary expenses, reduction of the remuneration or damages in lieu of performance, or withdraw from the contract.
2. In all other cases not covered by clause 1, collective mind is obliged, if the service was not performed in accordance with the contract and collective mind is responsible for this (service disruption), to perform the service in accordance with the contract in whole or in part without additional costs for the customer within a reasonable period, unless this is only possible with disproportionate effort. This obligation of collective mind exists – unless otherwise agreed – only if the customer notifies the service disruption in writing and without delay, but at the latest by the expiry of two weeks after gaining knowledge of the non-contractual service provision. For this purpose, the customer must adequately observe the service provision by collective mind.
3. If collective mind is responsible for a non-contractual service and collective mind fails to provide the contractual service even within the grace period set by the customer for reasons for which collective mind is responsible, the customer is entitled to either remedy the defect itself and demand from collective mind reimbursement of the necessary expenses, reduction of the remuneration or damages in lieu of performance, or to withdraw from the contract.
   
   

Liability

1. collective mind excludes liability for slightly negligent breaches of duty, unless damages resulting from injury to life, limb, health, the assumption of guarantees for the quality of a thing or claims under the Product Liability Act are affected.
2. collective mind shall be liable, limited to the amount of the contractually typical foreseeable damage, for damages resulting from the breach of duties, the fulfillment of which is essential for the proper execution of the contract and on the observance of which the customer may regularly rely. The same applies to breaches of duty by vicarious agents commissioned by collective mind.
   
   

Contract duration / Termination / Project completion

1. Unless otherwise agreed in the contract, the contract for monthly recurring services (e.g. maintenance contracts) begins on the day work commences and has a minimum term of 1 year. The contract is automatically extended by one year, unless it is terminated with a notice period of 1 month before the expiry of the minimum term or extension.
2. One-off services begin upon conclusion of the contract. Unless a separate acceptance is agreed, the contract is deemed terminated and the project completed when the customer uses the services provided by collective mind. If the customer cancels one-off services in whole or in part, collective mind is entitled to charge, in addition to the services rendered and costs incurred, a cancellation fee of 20% of the outstanding order value of the overall project.
3. The right to terminate for good cause remains unaffected by the above provisions. An important reason exists in particular if:
   1. 1. the customer is in default with due payments despite a reminder, in whole or in part.
      2. even after written warning, there is a violation of any other material provision of the contract or these GTC.
      3. there are justified concerns regarding the customer's ability to pay and, within a reasonable period upon request, neither makes advance payment nor provides reasonable security.
      4. the execution of an order is significantly delayed or impossible due to reasons for which the customer is responsible.
         
         

Limitation

1. Claims for damages by the customer – regardless of the legal basis – shall become statute-barred within one year from the commencement of the statutory limitation period.
2. Notwithstanding clause 1, the statutory limitation periods shall apply in the following cases:
   1. 1. for claims for defects if collective mind has fraudulently concealed the defect or has assumed a guarantee for the quality.
      2. for claims for damages resulting from injury to life, limb or health or under the Product Liability Act
      3. for other claims for damages based on an intentional or grossly negligent breach of duty
      4. for claims for damages arising from the breach of obligations, the fulfillment of which is essential for the proper execution of the contract and on the observance of which the customer may regularly rely.
         
         

Data protection and confidentiality obligation

1. Both collective mind and the customer are obliged to maintain confidentiality regarding business and trade secrets as well as other information designated as confidential that becomes known in connection with the contractual relationship or the resulting contractual relationship. The transfer of such information to persons who are not involved in the conclusion, execution or processing of the contractual relationship may only take place with the written consent of the contractual partner. These obligations continue to apply after termination of the contractual relationship. The contracting parties will also impose these obligations on their employees and any third parties used.
2. Insofar as collective mind can access personal data that is stored on the customer's systems, collective mind will act exclusively as a data processor (Section 11 (5) BDSG) and process and use this data only for the execution of the contract. collective mind will observe the legal requirements for data processing and instructions from the customer (e.g. for compliance with deletion and blocking obligations) for the scope of handling this data. The customer bears any adverse consequences of such instructions for the execution of the contract. Details for handling personal data will be agreed in writing by the contracting parties prior to the possibility of access by collective mind, insofar as this is necessary in accordance with Section 11 (2) BDSG or other legal norms. The contracting parties will also impose these obligations on their employees and any third parties used.
3. collective mind and the customer are aware that electronic and unencrypted communication (e.g. by e-mail) is subject to security risks. With this type of communication, neither collective mind nor the customer will therefore assert claims that are justified by the lack of encryption, unless encryption has been agreed beforehand.
   
   

Written form clause / Partial invalidity

1. Amendments and supplements to all contracts concluded between the parties shall only be agreed in writing. Verbal agreements are only valid if they are confirmed in writing by collective mind within seven days. A fax or e-mail is sufficient to meet the written form requirement.
2. . Should individual provisions of these terms and conditions be or become invalid or contain a loophole, the remaining provisions shall remain unaffected. The parties undertake to replace the invalid provision with a legally permissible provision that comes as close as possible to the economic purpose of the invalid provision, or to fill this loophole.
   
   

Applicable law / Place of performance and jurisdiction

1. All contractual relationships between the parties are exclusively subject to the law of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
2. Place of performance for all obligations arising from the contractual relationships between the parties is the registered office of collective mind.
3. The place of jurisdiction for all disputes arising from the contractual relationships between the parties as well as for disputes relating to the creation and effectiveness of these contractual relationships is the registered office of collective mind.