General Terms and Conditions


§ 1. Particulars
  1. The provider of goods and services according to this contract is Mindjet GmbH, Alzenau, Germany (hereinafter: Mindjet).
  2. Information on the product as well as on guarantees and support are provided by Mindjet on the following website: www.mindjet.com/eu

§ 2. General - Scope

  1. These terms and conditions apply exclusively to all deliveries of goods and services by Mindjet; Mindjet does not recognize any conflicting or deviating provisions of the customer unless expressly agreed in writing. These terms and conditions shall apply even if Mindjet unreservedly executes a customer order despite knowledge of customer provisions that conflict with or deviate from those set forth herein.
  2. All agreements between Mindjet and the customer regarding the execution of an order shall be put into writing. The same applies to any waiver of the written form.
  3. These terms and conditions also apply to all future business transactions with the customer.
  4. If individual provisions of these General Terms and Conditions are or become legally invalid, the validity of the remaining provisions shall remain unaffected. If an invalid provision is relevant to a current contractual relationship, the parties shall replace it with a valid provision that is as close as possible to the original economic intent and to the purpose of the contract.

§ 3. Quotation - Right of Withdrawal - Termination

  1. Information provided via telephone is non-binding. A quotation is only binding if expressly declared as such in the wording of the quotation itself or if the binding nature of pricing or other information is expressly indicated on the electronic ordering page. A contract does not arise until written or electronic confirmation of the order is supplied, whereby the subject matter of the contract is the content set forth in the order confirmation.
  2. THE CUSTOMER HAS THE RIGHT TO WITHDRAW FROM THE CONTRACT BASED ON THESE TERMS AND CONDITIONS INASMUCH AS THE CONTRACT WAS CONCLUDED EXCLUSIVELY VIA TELECOMMUNICATIONS SYSTEMS AND INASMUCH AS THE CUSTOMER IS A CONSUMER IN THE MEANING OF §13 OF THE GERMAN CIVIL CODE (BGB). IN THE CASE OF GOODS, THE PERIOD OF WITHDRAWAL SHALL COMMENCE ON THE DATE OF DELIVERY TO THE CUSTOMER; IN THE CASE OF REPEATED DELIVERIES OF GOODS OF THE SAME TYPE, THE PERIOD OF WITHDRAWAL SHALL COMMENCE NO EARLIER THAN THE DATE OF DELIVERY OF THE FIRST CONSIGNMENT; IN THE CASE OF SERVICES, THE PERIOD OF WITHDRAWAL SHALL COMMENCE NO EARLIER THAN THE DATE OF CONCLUSION OF THE CONTRACT.
  3. THE RIGHT OF WITHDRAWAL DOES NOT APPLY TO SOFTWARE DELIVERIES IF THE MEDIA SUPPLIED TO THE CUSTOMER HAS BEEN UNSEALED.
  4. WITHDRAWAL AS PER ARTICLE 2 DOES NOT REQUIRE JUSTIFICATION BUT MUST BE INDICATED IN WRITING, ON A PERMANENT DATA MEDIUM OR BY RETURN OF THE GOODS WITHIN TWO WEEKS OF THE BEGINNING OF THE PERIOD OF WITHDRAWAL; TIMELY DISPATCH IS SUFFICIENT TO COMPLY WITH THE TIME LIMIT.
  5. If for reasons beyond the responsibility of either party (e.g. force majeure, controversy or other hindrance that Mindjet could not have foreseen and cannot overcome at reasonable expense) Mindjet is unable to provide the agreed goods and services in good time, and if delivery is impossible within a reasonable period of grace, either party is entitled to terminate the contract with immediate effect. In such case, the customer shall retain the right to use any partial delivery already supplied by the time of contract termination, and Mindjet shall be entitled to receive the corresponding pro-rata payment.

§ 4. Prices - Terms of Payment - Delivery

  1. Unless otherwise defined by the order confirmation or by the information indicated as binding on the ordering page, the prices for deliveries ex warehouse Mindjet do not include shipping, taxes and duties (FOB Alzenau, Germany). Shipping costs will be billed separately. If requested by the customer, Mindjet will provide transport insurance cover for the delivery at the customer's account.
  2. The indicated prices do not include the statutory value-added tax unless the price is expressly described as a gross price. The value-added tax legally applicable on the billing date will be indicated separately on the bill.
  3. Deduction of a cash discount is subject to prior separate agreement.
  4. Unless otherwise defined by the order confirmation, the balance is payable immediately and without deduction on receipt of the bill. In case of default of payment by the customer, Mindjet is entitled to demand penal interest at a rate for consumers of 5%, otherwise 8% above the current base rate of the European Central Bank in accordance with § 247 of the German Civil Code (BGB). In case of demonstrably higher damages due to default, Mindjet is entitled to assert a corresponding claim. The customer is entitled to demonstrate to Mindjet that no damage, or considerably less damage, has been incurred by Mindjet as a result of the default of payment.
  5. The customer has no rights of set-off unless the respective counterclaims are legally established, uncontested or recognized by Mindjet. The customer is only entitled to exercise rights of retention inasmuch as the respective counterclaim is based on the same contract.
  6. Compliance with the agreed delivery schedules and obligations is conditional upon the timely and orderly fulfillment of all obligations by the customer.
  7. In case of default in acceptance or breach of other participatory duties by the customer, Mindjet is entitled to claim compensation for any damages thus incurred, including any additional expenses. In such case, the risk of accidental loss or deterioration of the contract subject matter shall pass to the customer at the time that the default in acceptance begins.

§ 5. Scope of Software Use
The permissible scope of use of the software depends on the individually granted use rights and on the provisions of a separate license agreement and/or the general license conditions within the software.

§ 6. Liability for Damages

  1. Mindjet's liability for defects is defined exclusively by the general license conditions for the software or by a separate license agreement.
  2. The following liability limitations apply to other damage claims of the customer:
    1. If the customer asserts claims for other damages, Mindjet shall be liable in accordance with the statutory requirements inasmuch as such claims are based on wrongful intent or gross negligence on the part of Mindjet or its representatives or vicarious agents. Inasmuch as Mindjet or its representatives or vicarious agents cannot be accused of wrongful intent or gross negligence, Mindjet's liability for damages shall be limited to foreseeable, typically occurring damages.
    2. Mindjet shall be liable in case of any culpable infringement of a material contractual obligation, even in case of ordinary negligence, whereby Mindjet's liability shall be limited to foreseeable, typically occurring damages.
    3. In the absence of wrongful intent, gross negligence or infringement of a material contractual obligation, Mindjet's liability to the customer shall not exceed the limit of indemnity of its public liability insurance in each case. The limit of indemnity of Mindjet's public liability insurance is € 2'500'000.00 for personal injury and material damage, € 500'000.00 for IT property damage, damages due to data deletion or data impairment, infringement of data privacy regulations, loss of production, business interruptions and/or loss of profits, and € 50'000.00 for other general pecuniary damages. Mindjet will maintain its public liability insurance at the level described in the above for the duration of this agreement.
  3. Unless otherwise agreed in the above, no further liability of Mindjet can be assumed within the scope of liability for damages in other cases.

§ 7. General Liability Stipulations

  1. For the sake of clarity, please note that the liability limitations according to the above clauses in no way limit legal claims based on product liability legislation. Liability for damages arising from harm to human life, the body or health as the result of a culpable breach of duty on the part of Mindjet or as a result of a willful or grossly negligent breach of duty on the part of a representative or vicarious agent of Mindjet is not affected by the above liability stipulations.
  2. Within the scope of the customer's duties of care, the customer is required before the first use of the software to check whether the installation of the software could give rise to particular interference with software that is already installed, and to ensure that the customer's data is backed up prior to the first installation and during productive use, and to take all additional protective action that can be reasonably expected in case of a suspected software error.
  3. Any further liability for damages going beyond the bounds of the liability stipulations hereinabove is excluded, regardless of the legal nature of the asserted claim. The latter applies in particular with regard to damage claims arising from culpa in contrahendo, other breaches of duty, or from tortuous claims for material damages pursuant to § 823 of the German Civil Code (BGB).
  4. Inasmuch as Mindjet's liability for damages is excluded or limited, the same applies to the personal liability of Mindjet's employees, partners, representatives and vicarious agents.

§ 8. Retention of Title

  1. Mindjet retains the title to the contract subject matter until all payments due according the contract have been received. If the customer acts in breach of contract, especially in case of default in payment, Mindjet is entitled to take back the contract subject matter and to withhold any as yet undelivered parts of the subject matter. Taking back of the contract subject matter does not constitute withdrawal from the contract on the part of Mindjet unless expressly declared in writing. Attachment of the contract subject matter by Mindjet always constitutes withdrawal from the contract. Mindjet is entitled to realize the contract subject matter having taken it back, whereby the proceeds of realization, minus the realization costs, shall be counted against the customer's liabilities.
  2. The customer is obliged to notify Mindjet in case of seizure or other action on the part of third parties in order to enable to Mindjet to file a lawsuit in accordance with § 771 of the German Code of Civil Procedure (ZPO). Inasmuch as the third party is unable to reimburse Mindjet for the in-court and out-of-court expenses of a successful lawsuit in accordance with § 771 of the German Code of Civil Procedure (ZPO), the customer shall be liable for the loss thus incurred by Mindjet.
  3. The customer is entitled to resell the contract subject matter in the ordinary course of business; however, the customer assigns to Mindjet with immediate effect all claims against the buyer or third parties in the amount of the unpaid balance arising from the resale. The customer shall be entitled to collect the balance due even after such assignment. Mindjet's right to collect the balance directly shall remain unaffected. However, Mindjet undertakes to refrain from collecting the balance directly as long as the customer uses the proceeds of the resale to meet its payment obligations, and does not delay or stop payment to Mindjet. In such case, Mindjet is entitled to demand that the customer disclose the assigned claims and the parties liable to pay them, provide all information necessary for collection, hand over the associated documents and notify the parties liable (third parties) that such assignment has been made.
  4. If the contract subject matter is inseparably combined with other items that do not belong to Mindjet, Mindjet will acquire joint ownership of the new article in the proportion to the value of the contract subject matter with respect to the other combined items at the time they are combined. If the combination takes place in such a manner that the customer's article can be considered as the primary article, then it is agreed that the customer will transfer proportionate co-ownership to Mindjet. The customer shall safekeep the sole ownership or co-ownership thus arising for Mindjet.
  5. Mindjet undertakes to release on request of the customer the collateral to which Mindjet is entitled inasmuch as the realizable value of the collateral exceeds the outstanding claims by more than 20%; Mindjet reserves the right to choose which collateral will be released.

§ 9. Legal Venue - Place of Fulfillment - Miscellaneous

  1. These General Terms and Conditions are subject to the laws and statutes of the Federal Republic of Germany, under exclusion of conflict law. The Convention for the International Sale of Goods (CISG) of 11 April 1980 in its valid version shall not be applied.
  2. The legal venue shall be Alzenau provided that the customer is a merchant or special public entity; Alzenau is also the legally valid place of fulfillment. The statutory rules governing questions of jurisdiction apply.
  3. The rights and obligations of any agreement between the parties based on these terms and conditions must not be assigned to third parties without the prior written consent of Mindjet.

General Terms and Conditions Mindjet GmbH, Version: 19 January 2007