General Terms and Conditions of Microvista GmbH
1. General, Scope of Application
1.1 These General Terms and Conditions shall apply to all present and future business relations of Microvista GmbH, hereinafter referred to as MICROVISTA, with Customers (hereinafter referred to as the CUSTOMER) who are entrepreneurs within the meaning of § 14 of the German Civil Code (BGB) or legal entities under public law or special funds under public law.
1.2 By placing the order, but at the latest by accepting the service or delivery, the CUSTOMER declares its binding agreement to these Terms and Conditions.
1.3 Deviating or supplementary general terms and conditions of the CLIENT shall not become part of the contract, even if they have not been expressly objected to. 1.4 Amendments, supplements or other ancillary agreements to contracts must be confirmed in writing in all cases.
2. Conclusion of contract, execution of order, prices
2.1 Quotations from MICROVISTA are subject to change without notice, unless the binding nature of the quotation is stated in writing.
2.2 The contract shall be concluded by means of a written order confirmation from MICROVISTA. The written order confirmation shall be exclusively decisive for the scope of the services owed under the contract. The written order confirmation shall be replaced by the invoice if the order is executed by MICROVISTA immediately.
2.3 The CLIENT shall provide MICROVISTA in good time with all necessary documents, such as drawings, plans, calculations or certificates, shall arrange for any necessary permits and approvals, shall provide information relating to the order at any time and shall make the necessary preparations for the test before the test commences, i.e. in particular shall make the test objects accessible. If the CUSTOMER fails to comply with these obligations despite MICROVISTA setting a deadline, the contract shall be cancelled upon expiry of the deadline. In this case, MICROVISTA shall be entitled to claim compensation in accordance with § 642 of the German Civil Code (BGB).
2.4 Prices are quoted in euros, plus statutory value-added tax, ex works, excluding packaging.
3. Dates, deadlines, delay
3.1 Delivery dates or periods specified by MICROVISTA are not binding, unless binding delivery dates (fixed dates) have been expressly agreed in individual cases. If an express fixed date has not been agreed, default in performance shall occur only after a demand for performance has been made and a deadline has been set (reminder). In this case, the CUSTOMER may only withdraw from the contract or claim damages for non-performance after the expiry of a reasonable period of time.
3.2 If MICROVISTA, its legal representatives or vicarious agents are responsible for intent or gross negligence with regard to the occurrence of the delay, or if a fixed date has been agreed, or if the CUSTOMER’s interest has demonstrably ceased to exist as a result of the occurrence of the delay, MICROVISTA shall be liable in accordance with the statutory provisions. Insofar as the delay is due to the culpable breach of a material contractual obligation, liability shall be limited to the foreseeable, typically occurring damage. Otherwise, liability is excluded.
3.3 Any time limit shall only commence after receipt of all documents required for the performance of the service and after receipt of payment, insofar as advance payment has been agreed.
3.4 If performance or the manufacture or delivery of the work is prevented or delayed for reasons beyond MICROVISTA’s control, the time for performance shall be extended accordingly by the demonstrable duration of the impediment. When calculating the extension of time, a reasonable start-up period for resuming performance activities shall be taken into account. Performance and secondary claims of the CLIENT during the period shall be excluded.
3.5 In the event of a significant deterioration in the CUSTOMER’s financial circumstances, in particular if payments are suspended or insolvency proceedings are instituted, MICROVISTA’s obligation to deliver shall lapse. In the event of fundamental operational disruptions, in particular those resulting from strikes and lockouts at MICROVISTA or one of its suppliers for which MICROVISTA is not responsible, natural disasters, states of war or other cases of force majeure that prevent or impair performance in accordance with the contract, MICROVISTA’s obligation to deliver shall also lapse with respect to subsequent performance for the duration and to the extent of the disruptions that have occurred.
3.6 MICROVISTA is entitled to make partial performance or partial deliveries.
3.7 If a delivery is required, it shall be made for the account of the CUSTOMER. In this case, the risk of accidental loss and deterioration of the goods shall pass to the CUSTOMER when the delivery is handed over to the carrier.
4. Acceptance, Data Processing, Terms of Payment
4.1 Acceptance shall be effected by unconditional use of the Work or by unconditional payment of the agreed remuneration for the Work. In accordance with the agreement, unconditional acceptance of the work shall be deemed to have taken place if 8 days have elapsed after transmission of the intangible work (test report) by remote data transmission or delivery of a data carrier in which the work is embodied, without the CUSTOMER having notified MICROVISTA of a material defect.
4.2 Invoices are payable without deduction within 14 calendar days of the date of the invoice, unless a different payment term has been agreed in writing. The invoice shall be issued under the date of delivery, execution, partial delivery, partial execution or the indication of readiness for delivery (in the event of default in acceptance by the CUSTOMER).
4.3 MICROVISTA draws the attention of the CLIENT to the fact that data relating to business transactions is processed within the company and its affiliated companies, and reserves the right to pass on to the insurer the data required to obtain credit insurance. If insurance of the debt is refused, MICROVISTA reserves the right to execute the order against advance payment.
4.4 In the event of late payment, MICROVISTA reserves the right to claim damages in excess of the statutory default interest rate. In such a case, the CUSTOMER shall be entitled to prove that MICROVISTA has suffered no loss or only a lesser loss.
4.5 The Client may set off claims for payment by MICROVISTA only against counterclaims that have been finally adjudicated, are undisputed and have been accepted by MICROVISTA.
4.6 The CUSTOMER shall not be entitled to exercise any right of retention with respect to contractual payment claims of MICROVISTA based on claims that are not legally connected with this contract.
5. Warranty, Liability
5.1 Warranty claims are subject to a limitation period of one year from the date of acceptance or delivery. The warranty period of one year shall also apply to so-called incorporeal works (e.g. for the preparation of a test report or the development of individual software). The warranty period of one year shall not apply to buildings and to movable objects used for buildings; here the statutory provisions shall apply.
5.2 If the CUSTOMER detects damage to the packaging upon receipt of the delivery, he shall have the damage confirmed in detail in writing by the transport company upon acceptance of the same. Damage in transit that is only discovered after the packaging has been opened must be reported to MICROVISTA in writing within 5 calendar days of receipt of the delivery. Timely dispatch of the notification shall be sufficient to meet the deadline; the burden of proof in this respect shall lie with the CUSTOMER.
5.3 The CUSTOMER shall, to the extent necessary, assist MICROVISTA in remedying any defects, and in particular shall, at MICROVISTA’s request, send MICROVISTA a data carrier containing the relevant adjustments or information.
5.4 If the CUSTOMER arranges for an inspection on account of alleged defects, the CUSTOMER shall bear the costs incurred if it transpires that there is no defect.
5.5 The warranty shall expire for such adaptations or services that the CLIENT changes or otherwise intervenes in, unless the CLIENT proves in connection with the notice of defects that the intervention is not the cause of the defect.
5.6 Any further warranty claims on the part of the CLIENT, in particular on account of consequential harm caused by a defect — insofar as these do not result from the absence of warranted characteristics — shall be excluded. This shall not apply if MICROVISTA is guilty of intent or gross negligence.
5.7 MICROVISTA does not warrant the suitability or fitness for purpose of the work or other performance for the purpose intended by the CUSTOMER unless expressly confirmed in writing by MICROVISTA.
6. Exclusion of Damages
6.1 Subject to the following provisions, the CUSTOMER’s claims for damages — regardless of their legal basis, including claims in tort — are excluded for the simple negligent breach of obligations by MICROVISTA, its legal representatives or vicarious agents. In the event of a breach of cardinal obligations due to simple negligence, MICROVISTA’s liability shall be limited to the value of the order.
6.2 The foregoing exclusions and limitations of liability shall not apply in cases of strict liability, in particular under the Product Liability Act, in the event of bodily injury or damage to health or loss of life or in the absence of warranted characteristics, in the event of intent or gross negligence.
6.3 In the event of loss or destruction of samples, models or products provided by the CUSTOMER as a result of force majeure, MICROVISTA’s liability shall be limited to the material value.
6.4 MICROVISTA’s liability for loss of data resulting from the use of MICROVISTA’s work or services is limited to the amount of effort necessary to restore the lost data on the CUSTOMER’s equipment using existing backup copies. In this regard, the CUSTOMER shall be obligated to make its own regular data backups.
7. Licensing rights and copyrights
7.1 Unless otherwise agreed, MICROVISTA retains all copyrights and rights of use and exploitation in any work produced or services rendered by MICROVISTA, irrespective of delivery to the CUSTOMER. The reproduction of individual works or parts of works of MICROVISTA requires the written consent of MICROVISTA. The CUSTOMER may copy MICROVISTA’s software only for internal use or for backup purposes.
7.2 For software not produced by MICROVISTA, the regulations of the respective manufacturer shall apply.
8.1 The place of jurisdiction for all claims arising out of or in connection with this Agreement shall be the court having jurisdiction over MICROVISTA’s principal place of business. MICROVISTA shall also be entitled to bring an action before the court having jurisdiction over the CUSTOMER’s registered office or the branch office of the CUSTOMER placing the order.
9. Final Provisions
9.1 In the absence of a specific written agreement, the place of performance for all obligations arising directly or indirectly from the contractual relationship, including the obligation to pay, shall be the registered office of MICROVISTA in 38889 Blankenburg.
9.2 The invalidity of individual provisions of these General Terms and Conditions or their constituent parts shall not affect the validity of the remaining provisions. The contracting parties shall be obliged, within the bounds of what is reasonable, to replace an invalid provision with a valid provision that is equivalent in economic effect, provided that this does not result in any significant change to the content of the contract. The same shall apply if a matter requiring regulation is not expressly regulated.
9.3 The inclusion and interpretation of these General Terms and Conditions, as well as the conclusion and interpretation of legal transactions with the CUSTOMER, shall be governed exclusively by the law of the Federal Republic of Germany, to the exclusion of UN and international sales law.
9.4 The CLIENT authorizes MICROVISTA, waiving notification, to process personal data within the scope of the permissibility of the German Federal Data Protection Act (BDSG) and to the extent necessary for the performance of the contractual relationship, and to transmit such data to the bodies concerned with the performance of the contractual relationship within MICROVISTA and within its affiliated companies.