General Terms and Conditions
of miraminds GmbH | Rödingsmarkt 14 | 20459 Hamburg | Germany
I. Area of application
- These general terms and conditions („GTC“) govern the use of the web pages http://www.miraminds.com and http://www.miraminds.de (together the „Webpage“) and shall also apply to all contracts and transactions as well as any agreements regarding the use of software concluded via the Webpage or the online-shop of the Webpage between miraminds GmbH, Rödingsmarkt 14, 20459 Hamburg („miraminds“) as well as yourself as customer, irrespective of whether you are a consumer (Verbraucher) or entrepreneur (Unternehmer) in the sense of the German Civil Code (Bürgerliches Gesetzbuch) or a merchant (Kaufmann) in the sense of the German Commercial Code (Handelsgesetzbuch). Furthermore, these GTC apply to all offers, deliveries and services of miraminds, which are made or rendered in the context of the use of the Webpage or its online-shop.
- These GTC apply exclusively. Standard business conditions of a Customer do not apply, regardless of whether or not we expressly object to them in a particular case.
- Our contracts with the Customer shall be made exclusively in the German or English language, in each case depending on whether the Customer makes the relevant purchase on the English language or on the German language Webpage. Therefore, if the order is made on the German Webpage, exclusively the German version of these GTC shall apply. If the order is made on the English Webpage, exclusively the English version of these GTC shall apply. If the English version of these GTC contain German terms in brackets, this German term is decisive and not the English term it refers to.
II. Conclusion of a contract / agreement
- The presentation and advertising of software or other products on the Webpage does not constitute a binding offer for the conclusion of a contract.
- Upon sending an order via the Webpage by clicking on the button „buy now“ you place a binding offer to conclude a contract. You are bound by this offer for a duration of two (2) days after the placement of the respective order; this does not affect your right to withdraw as per cypher III.
- miraminds will confirm the receipt of an order made via the Webpage via e-mail. Such e-mail does not constitute a binding acceptance of the offer made by the customer, unless such e-mail explicitly states that together with such confirmation of receipt an acceptance is made as well.
- A binding contract is only concluded once miraminds accepts your order by a declaration of acceptance or by delivering the respective ordered article (e.g. by way of disclosing a activation key for the ordered software).
- In case the delivery of a product ordered by you is not possible, miraminds will not make a declaration of acceptance. In such case, no contract is constituted. miraminds will in such case inform you accordingly and will reimburse any payment already made by the customer.
III. Right to withdraw
- In case you are a customer in the sense of section 13 German Civil Code (Verbraucher), i.e. a natural person which makes the respective order for a purpose which does not serve its professional or self-employed job activity), you are entitled to a right to withdraw as per the statutory regulations.
- In case you as a customer in the sense of section 13 German Civil Code (Verbraucher) make use of your right to withdraw, you will have to bear the usual costs for sending back the respective item you ordered (in case such costs arise).
- In addition to III.1 and III.2, with respect to the right to withdraw the following rules apply:
Instruction regarding the right to withdraw
Right to withdraw
You are entitled to withdraw from the contract within fourteen days without giving reasons.
The period of time within which you have to declare the withdrawhal is fourteen days as of the day on which you installed the software or you or a third party nominated by you which is not the carrier has taken the respective product into his possession.
In order to exert your right to withdraw, you have to notify us (miraminds GmbH, Rödingsmarkt 14, 20459 Hamburg, e-mail: firstname.lastname@example.org, phone: +49 40 228 58 147) of your decision to withdraw by way of an explicit declaration. In case you make such declaration, miraminds will without undue delay (e.g. via e-mail) confirm the receipt of such withdrawhal.
In order to meet the deadline for the withdrawhal, it suffices that you send the notification regarding the exertion of the right to withdraw prior to the end of the aforementioned period of time within which you have to exert the right to withdraw (fourteen days).
Consequences of the right to withdraw:
In case you withdraw from the contract, miraminds will pay back all payments received by you without undue delay (unverzüglich) and at the latest within fourteen days as of the day on which the notification of your withdrawhal is received by miraminds. Such repayment will be facilitated by the same payment method which you employed initially, unless a deviating payment method was specifically agreed with you. In no event you will be charged for the repayment.
Once miraminds has received the notification regarding the withdrawhal, miraminds will de-activate the Softwarekey, so that you will henceforth not be able to use the software. No further action is required by you.
You will only have to compensate a potential loss in value of any goods in case such loss in value is attributed to handling of the respective goods by you which does not serve the purpose of checking the nature, quality and functionality of the respective goods.
-End of the Instruction regarding the right to withdraw-
IV. Download of software
- Once miraminds has accepted your order, you will receive via e-mail a link to download the software; furthermore, you will receive an activation key; both will be sent to the e-mail-address you notified us of.
Once the download has occurred, you may activate the software for use with the activation key. This does not apply for free trial software, which can be used after the download without any activation key.
- You are responsible to ensure that your e-mail-address is valid and you are obliged to inform miraminds in case you e-mail address changes so that miraminds can fulfil its contractual obligations vis-à-vis you completely. We are entitled to process and store the personal data of the respective contract to the extent this is required for the execution as well as processing of the respective contract and as long as we are obliged to store such data due to applicable law.
- You agree that we can send you information regarding updates, new releases of new functionalities as well as further download links for updates or new releases via your e-mail address.
V. Right to use
- miraminds is the owner of all intellectual property rights as well as any other industrial property rights regarding the software that is advertised on the Webpage and reserves all rights regarding this software, unless and to the extent that you are granted such rights by way of these GTC.
- miraminds grants you upon purchase of the respective software a simple right to use such software for an unlimited period of time (the „License“). This License allows you to install the software and to use the software in accordance with applicable laws and regulations as well as these GTC.
- If you have chosen a free trial period, the License is limited in time in the sense that the right to use is limited to the time span of the trial period. The trial phase start with the receipt of the activation key and ends with the end of the trial phase. The free trial phase does not affect the right to withdraw as per section III. above.
- You may only use the software in accordance with applicable laws and regulations as well as these GTC. You may in particular not duplicate, rent out or lease the acquired software and you may neither translate the acquired software, edit it or make any other change to it; you may furthermore not sub-license the software, display it publicly or make it publicly available. Additionally, you may not decompile or reverse-engineer the software, unless you are entitled to do so based on coercive copy right laws.
- The rights regarding the source code are owned by miraminds exclusive. You have no right to receive the source code. Section 69e Copyright Administration Law (Urheberrechtsgesetz) remains unaffected.
VI. Customer’s obligations
- You are obliged to store the software in such a way that any unauthorised access or any prohibited duplicating of the software is prevented.
- You are not allowed to circumvent technical measures which protect the software.
- Furthermore, statutory law applies, in particular the German Copyright Act (Urheberrechtsgesetz).
VII. Prices and shipping costs.
- All prices on the Webpage are exclusive VAT and exclusive of potential shipment costs. Any customs duties and similar public charges shall be borne by the Customer.
- If shipment costs occur, these are listed on the Webpage. The price including VAT and shipment costs will be displayed in the order form prior to finalization of the order.
VIII. Terms of payment, set-off and retention rights
- You may pay the purchase price (and potential shipping costs) by making use of the payment methods listed on the Webpage.
- You are not allowed to set-off claims against miraminds, unless your claim has been finally asserted (rechtskräftig festgestellt) by a court or your counterclaims are unchallenged.
- In case there is a defect of the software, you as customer may during the statutory warranty period demand that we make good such defect or provide you with a software that is free of defects. However, in case you are an entrepreneur (Unternehmer), we can chose whether we are making good the defect or provide you with software that is free of defects, however, this right to choose must be executed by us within three business days by written message (fax or e-mail suffices) vis-à-vis the customer once we have been notified of the respective defect. We may reject the customer’s claim for defect rectification in case such rectification causes unreasonable costs.
- miraminds does not warrant that the purchased software meets your requirements and does not accept any warranty for technical particulars or the suitability of the software for a certain purpose, unless this is explicitly foreseen in the description of the software. Specifications of the software do not constitute any guarantee, unless they are explicitly specified as such.
- In case a defect (in the sense of the German Civil Code – Bürgerliches Gesetzbuch) occurs, miraminds will (in case the customer does not demand rectification of the respective defect by delivery of new software) at its own choice remedy such defect either by making good such defect, replacement, update or release of a new version of the software. In case the remediation of such defect cannot be facilitated within an adequate period of time, you are entitled to reduce the purchase price reasonably. In case the defect is of material nature, you are entitled to rescind from the contract (Rücktritt).
- You do not have any warranty claims, if
– the software is not used in accordance and/or compliance with laws and regulations or is used in an abusive way or
– the software is modified or changed without the prior written consent by miraminds or
– a defect (in the sense of a Mangel in the meaning of the German Civil Code – Bürgerliches Gesetzbuch) is based on the fact that the software is used with programs or in a hardware environment which is not compatible with the software, unless you prove that the respective defect originates from the software as such.
- To the extent you are entitled to damage claims or claims for the compensation for vain expenditures (Schadensersatzansprüche oder Ansprüche auf Ersatz vergeblicher Aufwendungen), such claims are subject to the limitations as per the subsequent cypher X.
- Only vis-à-vis entrepreneurs (Unternehmern) the following applies: The customer must duly and carefully check the software upon delivery without undue delay (unverzüglich). The software is deemed accepted by the customer unless a defect is not notified to us by the customer either (i) in case of obvious defects within five working days upon delivery or (ii) otherwise within five working days after the respective defect has been found.
- In all cases of contractual and other liability in case of intent or gross negligence, miraminds is liable as per the respective statutory laws regarding damages or compensation for vain expenditures (Schadensersatz oder Ersatz vergeblicher Aufwendungen).
- In all other cases, miraminds is – unless regulated differently in cypher X. sub-cypher 3. and 4. – only liable in case of breach of a contractual obligation, the fulfillment of which enables the proper execution of the contract at all or on the fulfillment of which you as a customer could regularly rely on (so called material obligations). In any case, the liability of miraminds is limited to the compensation of the foreseeable and typical damage. In all other cases – safe for cypher X. sub-cypher 3. – the liability of miraminds is excluded.
- With respect to a free trial version of the software, miraminds is only liable in case of intent or gross negligence.
- The preceding limitations of liability do not apply with respect to any liability for damages which are caused by an injury of life, bodily harm or health as well as any breach of the Produkthaftungsgesetz.
- The laws of the Federal Republic of Germany apply under exclusion of the UN Convention on the International Sale of Goods (CISG). In case you make an order as a private customer (Verbraucher) and you have your usual place of residence at the time of such order in another country, the applicability of mandatory rules of law of such country remain unaffected.
- In case you are a merchant (Kaufmann) and your place of residence at the time of the order is in Germany, the exclusive place of jurisdiction is at the seat of miraminds in Hamburg. Additionally, the local and international rules of law regarding the competent court apply.
- There is a German and an English version of these GTC. The English version is only a non-binding translation
In case one or more regulations of these GTC are void or unenforceable or should become void or unenforceable, this does not affect the remaining part of these GTC. The same shall apply if these GTC do not contain an essential provision. In place of the invalid or unenforceable provision, or to fill a lacuna in these GTC, such valid and enforceable provision shall apply which reflects as closely as possible the commercial intention of the respective invalid, unenforceable or missing provision. The legal principle contained in § 139 of the German Civil Code (BGB), including in the sense of a reversal of the burden of proof, shall not apply.