Terms and Conditions

1. SCOPE

1.1.The following general terms and conditions (hereinafter "GTC") apply to services, consulting, training, workshops, or lectures that thirdmind GmbH (hereinafter "thirdmind") provides to the customer (hereinafter "contractual partner") for orders or contracts.

These General Terms and Conditions apply regardless of whether they are referred to in the order or contract. They also apply to future contracts between thirdmind and the contractual partner, even if they are not expressly agreed again.

1.2.The current version of these General Terms and Conditions at the time the contract is concluded always applies. The contractual partner can view and download the General Terms and Conditions online at www.thirdmind.at. On request, thirdmind will send them to the contractual partner.

1.3.Deviating or supplementary terms and conditions of the contractual partner will not become part of the contract, even if thirdmind is aware of them, unless their validity is expressly agreed to in writing. By ordering from thirdmind or accepting an offer from thirdmind or by otherwise concluding a contract with thirdmind, the contractual partner waives the application of its own terms and conditions, in particular any defensive clauses.

1.4.If the contract concluded with the contractual partner deviates from these General Terms and Conditions, the provisions of the contract take precedence.

1.5.thirdmind is entitled to change or supplement these General Terms and Conditions at any time. If the contractual partner does not object in writing within two weeks of sending the change notification, the change will come into force at the end of this period and will then apply to all contracts concluded from this point onwards.

1.6.thirdmind points out to the contractual partner that thirdmind employees are not authorized to make verbal additional agreements or to give verbal assurances that go beyond the content of the respective contract or these General Terms and Conditions.

2. CONCLUSION OF THE CONTRACT

2.1.The basis for concluding the contract is thirdmind's offer, which specifies the scope of services and remuneration. Offers and cost estimates from thirdmind are always subject to change and non-binding until the contract is concluded with the contractual partner.

2.2.By placing an order with thirdmind, the contractual partner makes a binding contract offer. The contractual partner is bound by its contract offer for 14 days.

2.3.A contract between the contractual partner and thirdmind is concluded when thirdmind has sent written confirmation or delivery to the address last provided by the contractual partner after receipt of the order or offer from the contractual partner.

3. SUBJECT MATTER OF THE CONTRACT

3.1. General

3.1.1.The subject matter of the contract is the provision of the respective service by thirdmind, which is specified in more detail in the offer. thirdmind owes no further services.

3.1.2.The type and scope of the services to be provided by thirdmind depend on the provisions of the (framework) contract concluded in the individual case or the offer.

3.1.3.thirdmind selects the employees who provide the services. thirdmind is entitled to replace assigned employees at any time with other employees with appropriate qualifications. thirdmind is also entitled to have the services provided by qualified third parties.

3.1.4.thirdmind reserves the right to change the services contractually agreed with the contractual partner or to make improvements to the extent that such a change or improvement is customary in the trade, necessary due to legal regulations or is reasonable for the contractual partner taking into account the interests of thirdmind.

3.1.5.To the extent that thirdmind provides free services and benefits, these may be discontinued at any time without prior notice.

3.1.6.To the extent that thirdmind acquires copyrights to work results as part of the provision of services, it grants the contractual partner, after full payment, a simple, non-transferable, and non-exclusive right to use the work results in the contractual partner's company. All other rights to the work results remain with thirdmind.

3.2. Special provisions for consulting services, workshops, training, and lectures

3.2.1.For contractually commissioned consulting services, thirdmind provides know-how for optimizing IT processes. thirdmind may analyze and create raw content, technical concepts, and strategic or administrative plans and concepts. The contractual partner acknowledges that extensive changes and/or a complete realignment of the respective IT processes can also be the result of the consulting services.

3.2.2.Consulting services are not project-based and must be viewed separately from any projects of the contractual partner.

3.2.3.thirdmind provides the consulting services, workshops, training, and lectures through the use of its appropriately trained staff. thirdmind is responsible for exercising due care. The contractual partner is not entitled to a specific outcome (e.g. achievement of certain key figures, savings) or a specific completion date, unless expressly agreed and paid for.

3.2.4.thirdmind provides the services without being integrated into the contractual partner's organization.

3.2.5.Consulting services are provided within the agreed timelines. If no timelines are agreed, thirdmind will provide them within a reasonable period of time.

3.2.6.thirdmind grants the contractual partner the non-exclusive right to use the documents for internal training purposes for an unlimited period of time. The contractual partner is not entitled to use the documents for any other purpose, in particular to transfer, sublicense, edit, reproduce or publish.

3.3. Obligations of the contractual partner to cooperate and provide assistance

3.3.1.The contractual partner is obliged to provide thirdmind with all data and information required to provide the contractual services. thirdmind is not obliged to check this information for its logical content (accuracy, completeness, etc.). If thirdmind incurs additional work due to incorrect or incomplete information or for other reasons for which the contractual partner is responsible, this will be invoiced separately by thirdmind at the applicable hourly rates.

3.3.2.The contractual partner is obliged to provide thirdmind with all systems required for the provision of the contractual services, such as interfaces, servers, and databases, at the required time and to ensure the availability of these systems for the entire period in which they are required. If thirdmind incurs additional work due to faulty or unavailable systems, this will be invoiced separately by thirdmind at the applicable hourly rates.

3.3.3.The contractual partner is obliged to perform interim acceptance of the project, such as the acceptance of drafts, designs, and interim results, at times determined by thirdmind.

3.3.4.If the service is provided on the contractual partner's premises, the contractual partner must, upon thirdmind's request, provide the spatial and technical infrastructure required for the provision of the service.

3.3.5.If a service from thirdmind cannot be provided or cannot be provided on time for reasons for which the contractual partner is responsible, in particular because the contractual partner has not fulfilled its obligations to cooperate, has not reported defects or disruptions in a timely manner, or has not adhered to agreed deadlines, the contractual partner must reimburse the resulting additional expenses. In addition, in such a case, the deadlines agreed for the provision of the service are extended by the length of the delay for which the contractual partner is responsible.

4. DELIVERY / PERFORMANCE PERIOD / ACCEPTANCE

4.1.The completion date for the services to be provided by thirdmind depends on the provisions of the respective contract concluded.

4.2.Force majeure includes all circumstances over which thirdmind has no influence, such as operational disruptions or restrictions in the supply of production material to thirdmind or a subcontractor. The occurrence of such circumstances extends the agreed service deadlines appropriately and does not entitle the contractual partner to withdraw from the contract or to assert other claims of any kind against thirdmind.

4.3.Official and other third-party approvals required for the delivery or provision of services must be obtained by the contractual partner. If such approvals are not received in time, the agreed deadlines for the provision of the service will be extended accordingly; in this case, the contractual partner is neither entitled to withdraw from the contract nor to assert other claims of any kind against thirdmind.

4.4.If the delivery or provision of services is impossible due to the circumstances mentioned in points 4.2 and 4.3, thirdmind is entitled to withdraw from the contract without the contractual partner being entitled to any claims whatsoever. This also applies in the event that the aforementioned circumstances occur during an already existing default.

4.5.After the order has been placed, any changes requested by the contractual partner will extend the agreed service periods accordingly and will be invoiced separately by thirdmind at the applicable hourly rates.

4.6.For orders that include several units, thirdmind is entitled to make partial or advance deliveries and to invoice after delivery of each individual unit or service.

4.7.Unless otherwise provided for in the (framework) contract, the following acceptance procedure applies: The contractual partner undertakes to check concepts, designs, other materials, and software immediately after the service has been provided and to accept them within two weeks. If deviations between the agreed service and the project result are discovered during acceptance, these must be listed in a table by the contractual partner. If the contractual partner does not notify thirdmind of any deviations within this period, the services are deemed to have been accepted. thirdmind is responsible for setting a deadline for eliminating the defects identified during acceptance. Delays in acceptance for which the contractual partner is responsible entitle thirdmind to demand immediate payment of the outstanding amount.

4.8.thirdmind provides all services from its headquarters or branch. Any shipping will only take place upon order and at the expense and risk of the contractual partner. At the contractual partner's request, thirdmind will take out transport insurance for the goods at the contractual partner's expense.

5. PRICES / PAYMENT TERMS

5.1.The prices to be paid by the contractual partner result from the respective contract. Unless otherwise stated in the contract, the prices apply from the place of business or branch and do not include VAT and other duties, packaging and shipping costs, or installation costs.

5.2.In addition to the prices stated in the contract, the contractual partner must reimburse thirdmind for all cash expenses and other expenses incurred in fulfilling the contract (e.g. mileage allowance, tickets, accommodation costs) at the rates agreed in the (framework) contract. Travel times are considered working hours.

5.3.The regular fees increase to the extent of the change between the index number of the Consumer Price Index 2014 (CPI 2014) announced for January of the reference year and the index number of the CPI 2014 announced for January of the previous year, with effect from the first of each calendar year. The starting point is the index number announced for January 2014. thirdmind can waive an increase in fees due to index changes during a calendar year, but this does not affect the permissibility of future adjustments.

5.4.If the contractual partner requests services outside of normal business hours (Monday to Friday from 9:00 a.m. to 6:00 p.m.), a surcharge of 100% of the hourly rates agreed in the contract will be charged for these services.

5.5.Unless otherwise agreed in the (framework) contract, invoices issued by thirdmind must be paid without deductions within 14 days of the invoice date. A payment is deemed to have been made on the day on which thirdmind has access to the funds. The payment terms specified for the entire order apply accordingly to partial invoices.

5.6.The offsetting of the contractual partner's claims against thirdmind, the retention of payments due to counterclaims asserted by the contractual partner but not recognized by thirdmind, as well as any retention of contractual services by the contractual partner are excluded. This does not apply to counterclaims that have been expressly acknowledged in writing or legally established by a court.

6. DEFAULT IN PAYMENT

6.1.In the event of late payment, thirdmind is entitled, without prejudice to its other rights, to (i) postpone the fulfillment of its own obligations until such payment or other service has been obtained, (ii) claim an appropriate extension of the delivery period, (iii) make all outstanding claims from this or other transactions with the contractual partner due, (iv) charge default interest of 9 percentage points above the base interest rate for the outstanding amounts from the respective due date, provided thirdmind does not incur higher additional costs and (v) to withdraw from the contract if a reasonable grace period is not met.

6.2.If partial payment has been agreed, thirdmind is entitled to declare the payment term forfeited if the second installment is not paid on time and to demand the entire outstanding invoice amount due.

6.3.In the event of late payment, the contractual partner is obliged to reimburse thirdmind for the reminder and collection costs incurred by a lawyer or debt collection agency as well as all other additional costs associated with late payment.

6.4.A right of offsetting and retention can only be exercised by the contractual partner against thirdmind due to counterclaims that are undisputed or have been legally established by a court.

6.5.The contractual partner is responsible for all fees, charges, and taxes resulting from the conclusion of the contract and the use of the services.

7. RETENTION OF OWNERSHIP

7.1.Delivered goods and software remain the unrestricted property of thirdmind until all of thirdmind's claims arising from the business relationship with the contractual partner have been paid in full. The contractual partner is not entitled to pledge the reserved goods or to assign them as security.

7.2.In the event of late payment, impending suspension of payment or in the event of compulsory enforcement against the contractual partner, thirdmind is entitled to remove and/or otherwise take back the reserved goods without this representing a withdrawal from the contract. The contractual partner is obliged to hand them over.

7.3.In the event of seizures or other access by third parties to the reserved goods, the contractual partner is obliged to indicate thirdmind's ownership and to notify thirdmind immediately. The contractual partner shall bear all costs incurred by thirdmind as a result of such third-party access.

8. LIABILITY

8.1.With the exception of personal injuries and claims under the PHG, thirdmind is only liable for damages in the event of intent or gross negligence.

8.2.thirdmind's liability for loss of or damage to data or information, business interruption damage, lost profits, indirect damage, frustrated expenses and other consequential damage is excluded in any case, to the extent permitted by law.

8.3.Claims for damages by the contractual partner against thirdmind expire one year after delivery or provision of services.

8.4.Any liability of thirdmind towards the contractual partner is in any case limited to the amount of the order value.

8.5.The contractual partner is responsible for proving that damage was caused by thirdmind.

8.6.Any recourse claims that the contractual partner or third parties make against thirdmind under product liability within the meaning of the Product Liability Act (PHG) are excluded unless the person entitled to recourse proves that the error was caused by thirdmind or at least due to gross negligence.

9. PRIVACY / DATA SECURITY

9.1.thirdmind is entitled to store, process and transmit personal data in compliance with the relevant data protection regulations (in particular the Data Protection Act 2010, §§ 160 ff TKG 2021, GDPR) as part of the contract processing and for the purposes arising from the contract. The contractual partner cannot derive any legal consequences from the transfer of data due to a legal obligation.

9.2.The contractual partner acknowledges that thirdmind is not obliged or entitled to store specific content data (from third parties) for the contractual partner for an indefinite period of time and to keep it available for retrieval. If the contractual partner does not access such data within three working days, thirdmind assumes no liability for further retrieval.

9.3.thirdmind will take all technically possible and reasonable measures to protect the data it stores. thirdmind is not liable if third parties still manage to obtain the data in an unlawful manner. In order to ensure the necessary protection of data, the contractual partner is obliged to keep passwords secret. The contractual partner is liable for all damages resulting from any breach of this obligation. Unless otherwise agreed, the contractual partner is responsible for securing its data. thirdmind recommends that the contractual partner use a firewall and antivirus system.

10. OTHER PROVISIONS

10.1. Severability clause:Should individual provisions of the General Terms and Conditions be or become ineffective, invalid and/or unenforceable, this will not affect the effectiveness, validity and/or enforceability of the remaining provisions of the General Terms and Conditions. The invalid provision must be replaced by an effective, valid or enforceable provision that comes as close as possible to the economic purpose of the invalid provision. The same applies to the supplementary contract interpretation in the event of contractual gaps.

10.2. Confidentiality:The contractual partner is obliged to treat the conclusion of the contract confidentially. thirdmind is granted the right to name the contractual partner as a customer on the thirdmind website and in other advertising materials using the company name, logo, and website. References by the contractual partner to business connections to thirdmind are only permitted with the written consent of thirdmind. The contractual partner allows thirdmind to use its name as well as the name and description of the goods and services provided as part of the cooperation in press releases and publications for advertising purposes.

The contractual partner is obliged to treat all non-obvious commercial or technical details that become known to it through the business relationship with thirdmind as strictly confidential as thirdmind's business secrets. Employees and other vicarious agents must be obliged accordingly by the contractual partner.

10.3. Non-solicitation clause:During the term of the contract and for a period of 12 months thereafter, the contractual partner undertakes not to employ or poach, directly or indirectly, any of the contractual partner's employees or other third parties who are used to provide thirdmind's services. For each case of violation of this point, the contractual partner is subject to a contractual penalty payable to thirdmind in the amount of two annual gross salaries of the employee. The assertion of damages exceeding this contractual penalty remains unaffected.

10.4. Succession:thirdmind is entitled to transfer rights and obligations from a contractual relationship with the contractual partner to companies in which thirdmind holds at least 50%. The contractual partner has no right of termination due to such a transfer.

10.5. Written form:Declarations, notifications, etc. to thirdmind must be in writing and have an original signature to be legally valid. Agreements on the waiver of this formal requirement must also be in writing. Verbal additional agreements are invalid.

10.6. Place of performance / place of jurisdiction / applicable law:Place of performance is Vienna. The competent court for 1010 Vienna has exclusive jurisdiction to decide all disputes arising from the contract between thirdmind and the contractual partner, including those regarding the existence or non-existence of the contract. The contract is subject to Austrian law, excluding conflict-of-law rules and the UN Convention on Contracts for the International Sale of Goods.

10.7. Address changes:The contractual partner must notify thirdmind immediately of any changes to its business address. Documents are deemed to have been received by the contractual partner if they were sent to the last known address.