GENERAL TERMS AND CONDITIONS OF USE

General Terms and Conditions of Business

of actimondo eG, In den Benden 13, 52459 Inden, Germany

1 General

1.1 These General Terms and Conditions of Business (GTC) of actimondo eG, In den Benden 13, 52459 Inden, Germany (hereinafter also referred to as: „us“ or „we“) shall apply to all our business transactions with entrepreneurs within the meaning of the German Civil Code (BGB). Unless otherwise agreed, these General Terms and Conditions shall also apply to all future business transactions with our customers, even if they are not expressly agreed again. If the customer’s terms and conditions contradict or deviate from these terms and conditions, they shall not be recognized unless we expressly acknowledge them in writing. Our GTC shall also apply if we perform the service for the customer without reservation in the knowledge of conflicting or deviating conditions of the customer. Our GTC apply in particular to contracts for services (e.g. coaching, marketing, training, consulting, seminars online and offline, operation of the atomondo Hub, consulting videos, newsletters). With our services we exclusively address entrepreneurs in the sense of § 14 BGB. By concluding the contract, you confirm that you are an entrepreneur in this sense.

1.2 If we make individual agreements with the customer in individual cases (including ancillary agreements, supplements, amendments), these take precedence over these GTC. Individual agreements such as collateral agreements, special assurances as well as subsequent amendments to the contract shall – subject to proof to the contrary – require the written form or our written confirmation.

1.3 Any legally relevant declarations and notifications by the customer which apply to the contract with us (e.g. notification of defects, withdrawal from the contract) must be made in writing, i.e. in written or text form (e.g. letter or e-mail). This shall not affect statutory formal requirements and further proof, in particular in the event of doubts about the legitimacy of the person making the declaration. All comments regarding the applicability of statutory provisions shall only have clarifying significance in this context. Insofar as they are not directly amended or expressly excluded in these GTC, the statutory provisions shall apply even without such clarification.

 

2 Offers, contracts and services

2.1 All our offers are in principle subject to change and non-binding, unless specific services have already been agreed in a specific offer. Our Internet presence and the other information materials (reports, whitepapers, brochures, advertisements, brochures, etc.) are not offers in the sense of German law, it is an invitation to make an offer. This condition shall apply even if we have provided the customer with materials (e.g. drawings, reports, calculations, etc.) to which we generally reserve ownership rights and copyrights.

2.2 The conclusion of the contract between us and the customer can take place by telephone (video chat, telephone, etc.) or in writing (contract offer). If the contract is concluded by telephone, the customer shall not be entitled to receive the contents of the contract from us again in written form, unless otherwise agreed. Contracts concluded between us and the customer by telephone are concluded by concurrent declarations of intent. In this case, the customer agrees that we record the video call or the telephone conversation with him for purposes of proof and documentation. In this respect the legal regulations apply. These are applicable to contracts concluded using electronic means of communication (including in the area of e-commerce).

2.3 We shall not assume any liability for errors of comprehension in non-written communication. Declarations of intent made orally or by telephone shall always require our written confirmation.

2.4 If a customer sends us a contract offer (e.g. by form via our website) and it is received by us, it will be confirmed promptly in writing by e-mail by us. This confirmation of receipt shall only constitute acceptance of the offer if we confirm acceptance expressly or by sending the access data for the ordered service (login data). If the acceptance by us does not take place at the same time as the confirmation of receipt, we shall declare the acceptance or rejection of the contractual offer within three weeks after receipt of the contractual offer. The customer is bound to his offer for three weeks, unless otherwise stated in the offer. A contract shall only be concluded upon receipt of our order confirmation (written declaration of acceptance, e.g. in text form) or upon commencement of performance by us.

2.5 The customer had an obligation to cooperate in our services. He shall provide the necessary cooperation immediately upon first request by us. If the customer does not fulfill his cooperation in time and completely, this can lead to the fact that we cannot fulfill the service or not completely. In the case of services that cannot be provided after the order has been placed, we will inform the customer of this in a timely manner. In this case, we shall be entitled to withdraw from the contract within two weeks of order confirmation and to refund any consideration already paid, without this triggering any further claims for compensation against us.

2.6 We provide services in particular in the area of consulting and training within the meaning of § 611 BGB. We also offer seminars and special consulting services. The scope of services shall be based on the order confirmation as well as the service description or any other agreements made between us and the customer. The services are provided in various ways, e.g. by video, multimedia, by telephone or in premises provided by us. The content of the services is otherwise defined in the respective service description of the contract. Unless expressly agreed otherwise in writing, we do not owe the provision of a work in this respect either. In particular, we can only forecast the success of certain measures (e.g. marketing) based on our experience. The customer is aware that we do not owe any success in this respect. If a separate payment is agreed for the achievement of a specific success of a measure, this will be settled with the customer as a success-dependent payment. In principle, however, there is no entitlement to the achievement of a specific success.

2.7 With regard to the contents of a service contract entered into with us, we shall have a right to determine performance in accordance with Section 315 of the German Civil Code (BGB).

2.8 Our services, materials and methods are (partly) based on third party products (Google, LinkedIN, eloomi). With regard to these products or services of third parties, we assume no liability for a specific performance success.

2.9 We will perform the agreed services in accordance with the contractual provision with due care. We are entitled to use the help of third parties / service providers for this purpose. Force majeure, strike, inability to perform through no fault of our own or caused by one of our service providers shall extend the performance period by the duration of the hindrance, plus a reasonable start-up period of at least 1 week. Alternatively, we may withdraw from the contract in whole or in part due to the unfulfilled part of the delivery or service.

3 Term and termination

3.1 The contract is firmly concluded for the term agreed in the respective main contract. Early or free termination rights of the customer within the contract term are excluded.

3.2 Unless otherwise agreed between us and the customer, the term of the contract shall be extended by the duration of the initial term in each case unless one of the contracting parties has terminated the contract no later than 4 weeks before the expiry of the initial term or the extended term (= notice period). Terminations must be in writing to be effective.

3.3 The right to terminate without notice in the event of good cause, both by the customer and by us, shall remain unaffected.

3.4 In the event of premature termination by the customer for good cause, our claim to remuneration shall remain unaffected. The customer reserves the right to prove that we have incurred no damage or significantly less damage.

4 Prices, terms of payment, SEPA direct debit and invoice

4.1 All prices quoted by us are in principle net prices and do not include the statutory value added tax.

4.2 We shall be entitled at any time to demand advance payment from our customers in accordance with § 321 of the German Civil Code (BGB), i.e., at our discretion, only against advance payment.

4.3 Unless a separate payment term has been agreed between us and the customer, invoices shall be due for payment within 14 days without deduction. Should a discount be agreed, this shall require a written declaration. In the event that a direct debit authorization is granted, we will generally debit the account at the time of the due date. Once granted, a direct debit authorization shall also apply to invoices from further services until revoked.

4.4 We shall be entitled at any time to declare all outstanding invoices due for payment without reminder, in particular if we become aware that our claim for payment is at risk. We exclude the set-off of our claims with claims of the customer that are not recognized or not legally established. This shall also apply to a right of retention due to such counterclaims, insofar as these claims are not based on the same contractual relationship.

4.5 Invoice complaints shall be notified to us without delay in accordance with § 121 of the German Civil Code (BGB). Complaints will not be accepted after a period of 14 days from receipt of the invoice. In the event that we have concluded an installment agreement with the customer, all installments shall be paid by the customer in due time. If the customer is in arrears with the payment of an installment, we shall be entitled to terminate the installment agreement and to demand payment of the entire amount still outstanding.

4.6 We shall charge the statutory interest rate (9 percentage points above the base interest rate) as interest on arrears to customers who are not consumers. We reserve the right to prove higher damage caused by default.

4.7 Payment for the contractually agreed services is also possible by way of advance payment using the SEPA direct debit procedure. For this purpose, you are obligated and declare your consent to send us a written SEPA direct debit mandate signed by you immediately after the video call or telephone call to: info@actimondo.com (in advance) and actimondo eG, In den Benden 13, 52459 Inden (by post after the call). The following sample is to be used by you for this purpose:

I hereby authorize actimondo eG, In den Benden 13, 52459 Inden, Germany, represented by the Board of Management Dr. John Kettler, and its vicarious agents, to make recurring payments due from the following business account

IBAN:

by means of SEPA basic direct debit. At the same time, I instruct my credit institution to honor the direct debits drawn on my account by actimondo eG, In den Benden 13, 52459 Inden. I can demand reimbursement of the debited amount within eight weeks, beginning with the debit date. The conditions agreed with my credit institution for payments by direct debit in the SEPA Core Direct Debit Scheme apply.

First name and surname of the account holder:

Street and house number:

Postal code and city:

Credit institution (name and BIC):

IBAN:

Place, date

Signature of the managing director/ authorized representative

5 Events, atomondo Hub, Platforms, Cancellations and Rebookings

5.1 Customers participating in events organized by actimondo eG may also be consumers/private individuals, in derogation of the provision above. Depending on the format, the events are held in presence, online only or as a hybrid event. The event program and information provide information on this.

5.2 If the customer takes part in events organized by actimondo eG, the prices stated shall apply here. In addition to the prices stated, prices can also be agreed individually. The prices stated for events include the event services and the documents for the event according to availability, unless otherwise individually stated by us. Unless expressly stated in the offer, catering is not included in the price.

5.3 The customer shall owe the participation fees immediately after booking the event with actimondo eG. The customer will be denied participation in the event if the corresponding participation fee has not been paid by the start of the respective event.

5.4 Additional costs in connection with the event, such as accommodation and travel costs, shall be borne by the customer. If the customer only participates in the event temporarily or does not appear, he is not entitled to a reduction of the participation fee.

5.5 If illness or other reasons prevent the customer from participating in a booked event, the customer is entitled to transfer the service claim booked by him to a third person. For this, however, we require that the full participation fee has been paid.

5.6 If an event cannot take place as a presence event at the event location due to force majeure, we will generally offer an online event on the same or an alternative event date. The alternative event date will be communicated to the customer in advance by e-mail. If the customer does not wish to participate in this, he must notify us immediately after we have informed him.

5.7 In the case of customers who are not consumers within the meaning of Section 13 of the German Civil Code (BGB), we shall be entitled to charge a flat-rate default fee of EUR 50.00 in the event of default in payment (Section 286 (5) of the German Civil Code (BGB)).

5.8 If the customer declares his withdrawal from the event in writing in the event of an important reason up to 6 weeks before the start of the event, processing costs in the amount of 30% of the respective participation fee will be incurred. If the cancellation is made less than 6 weeks and up to 3 weeks before the start of the event, 50% of the participation fee will be charged. In the event of a cancellation notice that is demonstrably received by us less than 3 weeks before the start of the event, the full participation fee will be charged. However, the customer retains the right to prove that we have incurred no damage or significantly less damage than the amount of the aforementioned lump sums.

5.9 The customer will be notified in advance of the venue of the event and this is specified in the current event description or in the confirmation of participation.

5.10 In the event of an official ban on events already booked and confirmed by the customer or official restrictions or requirements (e.g. during pandemics, force majeure), actimondo eG is entitled to offer the customer a replacement event within 12 months of the date of the cancelled event, giving 4 weeks‘ notice. Only if actimondo eG does not make a replacement offer within this period is the customer entitled to withdraw or cancel participation. An exception to this is the withdrawal or cancellation in the event of good cause. We recommend taking out cancellation insurance (e.g. with ERGO at www.erv.de).

5.11 We reserve the right to unilaterally adjust event times announced in advance within reasonable limits. The adjustment will be communicated to the customer, if possible, at least 1 week in advance. This does not imply a shortening of the contract period.

5.12 Customers who act as sponsors at an actimondo eG event undertake to pay for the sponsorship in accordance with the amounts and payment conditions specified in the sponsorship contract. Unless otherwise agreed and stipulated in the sponsoring contract, the sponsoring must be paid within 30 days of the invoice being issued. All invoices issued to the sponsor by actimondo eG shall state the payment terms. Payments by bank transfer: All bank charges incurred for bank transfers are to be borne by the sponsor.

5.13 If the customer cancels the sponsorship 3 months before the event, a cancellation fee of 50 % of the sponsorship amount is due. If a sponsor cancels within 3 months before the event, the sponsor agrees to pay 100% of the contracted sponsorship as a cancellation fee. If a sponsor cancels with an outstanding balance, the sponsor remains responsible for the entire balance due, plus reasonable legal fees for collection. Cancellations must be received in writing by actimondo eG. The Customer hereby acknowledges that the cancellation fee is a reasonable estimate of the anticipated losses and costs that actimonodo eG will incur as a result of the Sponsor’s cancellation and is not a penalty. For the avoidance of doubt, actimondo eG shall not be obliged to reduce its losses and/or costs in such circumstances and the cancellation fee shall remain payable even if actimondo eG finds a new sponsor.

5.14 By booking a virtual stand, the customer declares that his company agrees to our General Terms and Conditions. Registrations will be processed and confirmed in the order in which they are received using an address file. The booking of a virtual stand on the atomondo Hub or another platform of actimondo eG can be made in writing via the online registration form, by e-mail, by fax or recording of a video call. The customer first receives an e-mail confirmation that your registration form has been received. Shortly thereafter, the customer will receive a written confirmation of the registration to the address provided in the registration form, along with our invoice. 100% of the booking fee is due 30 days after receipt of the invoice. The due date for payment is indicated on the invoice.

5.15 The decision on admission to the exhibition and the approval of the documents, videos, etc. issued shall be made by actimondo eG. There is no legal claim to approval. actimondo eG is entitled to exclude exhibited documents, videos, etc. that have not been approved and are not eligible for approval from the online exhibition. A competing exclusion cannot be asserted. The customer must ensure that the content is free of violence, incitement to crime or lewd content. actimondo eG accepts no liability for the content provided by the customer. The period of use of the virtual stand on the atomondo Hub or the platform of actimondo eG is specified on the invoice.

5.16 The customer may cancel the booked virtual stand at any time. However, in this case only the stand will be switched offline. The customer has no legal claim to a refund of the fees for the virtual stand. Cancellation of the contract for the virtual stand must be made in writing (by e-mail to info@actimondo.com), otherwise it is invalid.

5.17 actimondo eG aims to provide an optimum service for its customers. If, despite this, there is no access to the atomondo Hub or the platform of actimondo eG for a period of 10 consecutive days, the customer will be refunded the contractually agreed usage fee on a pro rata basis for the period in which the atomondo Hub or the platform is not available. In the case of shorter periods during which the atomondo Hub or the platform is not available, these are maintenance periods that do not result in any reimbursement of costs.

5.18 actimondo eG offers customers access to a media library with recorded content. The period of use is contractually regulated with the customer. Unless otherwise agreed, the use of online access for the media library is only permitted for the acquire customer. Multiple use of the access data by other persons is not permitted. If actimondo eG learns that several persons are sharing illegally, actimondo eG is permitted to block the access data, whereby no repayment claim arises by the customer.

6 Liability

6.1 Insofar as nothing to the contrary arises from these GTC of actimondo eG or other provisions, we shall be liable for a breach of contractual and non-contractual obligations exclusively in accordance with the statutory provisions.

6.2 We shall be liable for damages (irrespective of the legal grounds) within the scope of fault liability in the event of intent and gross negligence. In the case of simple negligence, we shall be liable, subject to a milder standard of liability in accordance with statutory provisions (e.g. for diligence in our own affairs), only for damages arising from injury to life, limb or health and for damages arising from the not inconsiderable breach of a material contractual obligation (an obligation the fulfillment of which is a prerequisite for the proper performance of the contract and the observance of which the customer regularly relies on and may rely on); in this case, however, our liability shall be limited to compensation for the foreseeable, typically occurring damage.

6.3 The limitations of liability resulting from clause 6.2 shall also apply in the event of breaches of duty by or in favor of persons whose fault we are responsible for according to statutory provisions (e.g. service providers). The customer may only withdraw from or terminate the contract if we are responsible for the breach of duty, which does not consist of a defect in the service.

6.4 We shall not be liable for the implementation of the contents conveyed by us in seminars, consultations and coaching sessions. At this point, the customer is responsible for the implementation of this content. We cannot guarantee that the implementation of our contents conveyed in seminars, consultations and coachings will lead to the desired success. In this context, we expressly point out the service character of our services.

7. Property rights; contractual penalty; conduct and consideration

7.1 We reserve the right that all exploitation rights resulting from copyright law to the materials used and/or published by us (photos, videos, audio recordings, texts, brochures, webinars) are ours. Any use (in particular copying, distribution, use for the purposes of teaching, translation, reprinting and public reproduction) without the express written consent of actimondo eG is prohibited. Any requests for permission regarding copyright must be sent to actimondo eG in writing by e-mail or by post. We will send the corresponding permission to the customer in writing, in the event of our consent.

7.2 The customer’s right to use the aforementioned materials is otherwise limited to use within the scope of the purpose of the contract (e.g. possibility of using the password-protected member area during the term of the contract – without authorization to reproduce or distribute). We hereby do not grant any rights of use with regard to our advertisements/texts published on our websites or within forums/groups.

7.3 If the customer reproduces or distributes our materials protected under Section 7.1 or uses them in any other way outside of the agreed contract, a reasonable contractual penalty – taking into account the scope of the infringement and the resulting damage – to be determined by us and, in the event of a dispute, to be reviewed by the competent court, shall be forfeited. We hereby do not exclude the possibility of claiming damages in addition thereto.

7.4 In addition to the forfeiture of the contractual penalty, a violation pursuant to sec. 7.3 shall as a rule be brought to the attention of the competent investigating authority for the purpose of criminal investigation (criminal complaint). This applies in particular in the event of unauthorized use of our materials or methods by customers. Civil law claims (in particular damages) remain unaffected.

7.5 We reserve the right to temporarily or permanently exclude customers from participating in our communities and groups if (e.g. as a result of business-damaging statements) our interests are more than insignificantly violated or impaired by the customer.

7.6 Within the scope of his duties to cooperate, the customer is obligated to provide us exclusively with such image/video/sound material that is free of third-party rights. In this respect, the customer shall fully indemnify us against any claims of third parties due to the infringement of intellectual property.

7.7 The customer is not entitled to pass on the login data or user account to our platforms, program and training content provided by us to third parties, unless we have expressly agreed to such a transfer (for example, for permanent employees of the customer). Unauthorized sharing of the customer’s account is a criminal offense, which we will have prosecuted under civil and criminal law.

7.8 We are entitled to permanently monitor customer access to our IT systems via IP comparison. We hereby prohibit the use of technologies that disguise, otherwise falsify or anonymize the IP address and/or MAC address of the user when accessing our IT systems as well as program and training content (for example Tor browser).

7.9 If the customer culpably violates the obligations under 7.7 and 7.8, we shall be entitled to block the customer’s account to our systems temporarily or permanently at our reasonable discretion. The customer’s contractual obligations towards us shall remain unaffected in this case.

7.10. We prohibit our customers from any actions that lead to a disruption or impairment of our coaching, training and program processes or the customer experience of other customers. We reserve the right, in the event of repeated culpable infringement by the customer, to temporarily or permanently block the customer’s account and access to our content, programs, platforms, coaching, training, etc. at our reasonable discretion. The contractual obligations of the customer towards us remain unaffected in this case.

8. Compliance with the principles of actimondo eG.

8.1 We expect our customers to ensure the usual conduct of an honest businessman towards us and other customers. actimondo eG reserves the right to pursue any unlawful or improper or factless statements about actimondo eG and its services, whether by customers, competitors or any third parties, in particular untrue statements of fact and defamatory criticism, under civil law and furthermore, if necessary, to bring criminal charges without prior notice.

8.2 We treat our employees and customers with respect. Likewise, we expect our customers to treat other customers and our employees with respect at all times.

8.3 We reject inhuman and radical world views (especially right-wing extremism and left-wing extremism). Furthermore, we reject any worldview that is not compatible with the basic democratic order of the Federal Republic of Germany.

8.4 We prohibit customers who promote an inhuman and radical worldview as defined in section 8.1 from participating in our events. We expressly point out that we do not tolerate criminal acts of any form by customers.

8.5 We are entitled to exclude customers from events for the remaining time in the event of violations of our moral principles after a single warning. If the customer has demonstrably committed or is committing criminal acts, we reserve the right to exclude the customer concerned from actimondo eG events without prior warning. The contractual obligations of the customer towards us remain unaffected in this case.

 

9 Contacting Customers of actimondo eG

9.1 In individual cases, we allow our customers to contact customers of actimondo eG who are made acquainted with in the course of events, coaching sessions, consulting meetings, training seminars for their own orders and to initiate business. However, systematic customer acquisition is prohibited. No customer of actimondo eG may be harassed by acquisition attempts that are demonstrably based on contact made during events organized by actimondo eG.

9.2 In the event of culpable infringement, actimondo eG is entitled, after a single warning in the event of repetition, to exclude the customer temporarily or permanently from participation in online and offline events, platforms, training courses, etc. of actimondo eG at its reasonable discretion. The contractual obligations of the customer towards us remain unaffected in this case.

10. Revocation

actimondo eG concludes contracts exclusively with entrepreneurs within the meaning of § 14 BGB. The customer has no right of revocation, even if the contract is concluded exclusively using means of distance communication.

 

11 Data Protection, Disclosure of Information and Trade Secrets

11.1 actimondo eG stores and uses personal customer data (e.g. application form: Name, address, telephone number, e-mail address, personal interests, financial circumstances, hobbies, character questions) in accordance with the applicable data protection laws. By submitting the offer to conclude the contract, the customer gives revocable consent to the storage and processing of his personal data transmitted to actimondo eG.

11.2 By submitting the offer to conclude the contract, the customer revocably consents to being contacted by actimondo eG employees by means of remote communication (e-mail, SMS; telephone; messenger services etc.). The consent also includes the transmission of advertising. The customer must specify with his revocation to what extent the consent is revoked (e.g. only for advertising).

11.3 Each person affected by the data processing has the right to information according to Article 15 GDPR, the right to rectification according to Article 16 GDPR, the right to erasure according to Article 17 GDPR, the right to restriction of processing according to Article 18 GDPR, the right to object from Article 21 GDPR and the right to data portability from Article 20 GDPR. The restrictions pursuant to Sections 34, 35 BDSG apply to the right to information and the right to erasure. In addition, there is a right of appeal to a data protection supervisory authority (Article 77 DSGVO in conjunction with Section 19 BDSG). A declared consent to data processing or use can be revoked at any time. The customer will also receive a separate data protection declaration. The customer can contact the data protection officer of actimondo eG at any time via the e-mail address compliance@actimondo.com.

11.4 During our video calls, events and training/consulting sessions, other customers may disclose internal company information and business details. In this respect, complete silence must always be maintained with regard to external parties and third parties. Dissemination of this information is prohibited.

12. Final provisions

12.1 If the customer is a merchant, our place of business shall be the place of jurisdiction. However, we shall also be entitled to sue the customer at the court of his place of residence.

12.2 The law of the Federal Republic of Germany shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods.

12.3 The language of the contract shall be German or English.

12.4 Unless otherwise stated in the order confirmation, our place of business shall be 52459 Inden.

12.5 Should any provision of these GTC be or become void, ineffective or unenforceable in whole or in part, or should any provision which is necessary in itself not be contained therein, the validity and enforceability of all other provisions of these GTC shall not be affected thereby. In place of the void, invalid or unenforceable provision or in order to fill the gap in the provision, the parties shall agree on a legally permissible provision which corresponds as far as possible to what the parties intended or would have agreed in accordance with the meaning and purpose of this agreement if they had recognized the invalidity or the gap in the provision. It is the express intention of the parties that this severability clause does not result in a mere reversal of the burden of proof, but that §139 BGB is waived in its entirety.

 

Status: June 2022