General terms and conditions

1. General, scope of validity

1.1 These Gen­er­al Terms and Con­di­tions apply to all present and future busi­ness rela­tions of Micro­vista GmbH, here­inafter referred to as MICROVISTA, with cus­tomers (here­inafter referred to as CUSTOMERS) who are entre­pre­neurs with­in the mean­ing of § 14 BGB (Ger­man Civ­il Code) or legal enti­ties under pub­lic law or spe­cial funds under pub­lic law.
1.2 By plac­ing the order, at the lat­est, how­ev­er, with accep­tance of the ser­vice or accep­tance of the deliv­ery, the CUSTOMER declares his bind­ing agree­ment to these terms and con­di­tions.
1.3 Devi­at­ing or sup­ple­men­tary gen­er­al terms and con­di­tions of the CUSTOMER shall not become part of the con­tract, even if they have not been express­ly con­tra­dict­ed.
1.4 Amend­ments, sup­ple­ments or oth­er col­lat­er­al agree­ments to con­tracts must be con­firmed in writ­ing in all cases.

2. Conclusion of contract, order execution, prices

2.1 Offers made by MICROVISTA are sub­ject to change with­out notice, unless the com­mit­ment to the offer is stat­ed in writ­ing.
2.2 The con­tract is con­clud­ed by a writ­ten order con­fir­ma­tion from MICROVISTA. Only the writ­ten order con­fir­ma­tion is author­i­ta­tive for the scope of the ser­vices owed under the con­tract. The writ­ten order con­fir­ma­tion will be replaced by the invoice if the order is exe­cut­ed imme­di­ate­ly by MICROVISTA.
2.3 The CUSTOMER must pro­vide MICROVISTA in a time­ly man­ner with all nec­es­sary doc­u­ments, such as draw­ings, plans, cal­cu­la­tions, or cer­tifi­cates, arrange for any nec­es­sary per­mits and approvals, pro­vide order-relat­ed infor­ma­tion at any time, and make the nec­es­sary test prepa­ra­tions pri­or to the start of the test, i.e., above all, make the test objects acces­si­ble. If the CUSTOMER fails to com­ply with these oblig­a­tions despite being set a dead­line by MICROVISTA, the con­tract shall be can­celled upon expi­ra­tion of the dead­line. In this case MICROVISTA is enti­tled to claim com­pen­sa­tion in accor­dance with § 642 BGB (Ger­man Civ­il Code).
2.4 The prices are in Euro, plus the statu­to­ry val­ue added tax, ex works with­out packaging.

3. Dates, deadlines, default

3.1 Deliv­ery dates or peri­ods spec­i­fied by MICROVISTA are gen­er­al­ly non-bind­ing unless bind­ing deliv­ery dates (fixed dates) have been express­ly agreed upon in indi­vid­ual cas­es. If an express fixed date has not been agreed upon, delay in per­for­mance will only occur after a request for per­for­mance with a dead­line (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.
3.2 If MICROVISTA, its legal rep­re­sen­ta­tives or vic­ar­i­ous agents are respon­si­ble for intent or gross neg­li­gence with respect to the occur­rence of the delay, or if a fixed date was agreed upon or the inter­est of the CUSTOMER has demon­stra­bly ceased to exist due to the occur­rence of the delay, MICROVISTA shall be liable in accor­dance with the statu­to­ry pro­vi­sions. If the delay is due to the cul­pa­ble breach of a mate­r­i­al con­trac­tu­al oblig­a­tion, lia­bil­i­ty is lim­it­ed to the fore­see­able, typ­i­cal­ly occur­ring dam­age. Oth­er­wise, lia­bil­i­ty is exclud­ed.
3.3 Each peri­od shall only com­mence after receipt of all doc­u­ments required for the per­for­mance of the ser­vice and after receipt of pay­ment, if 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 per­for­mance peri­od will be extend­ed accord­ing­ly by the demon­stra­ble dura­tion of the imped­i­ment. When cal­cu­lat­ing the exten­sion of the time lim­it, an appro­pri­ate start-up time for resum­ing the per­for­mance activ­i­ties must be tak­en into account. Per­for­mance and sec­ondary claims of the CUSTOMER dur­ing this peri­od are exclud­ed.
3.5 In the event of a sig­nif­i­cant dete­ri­o­ra­tion in the finan­cial cir­cum­stances of the CUSTOMER, in par­tic­u­lar if pay­ments are sus­pend­ed or insol­ven­cy pro­ceed­ings are applied for, MICROVISTA’s oblig­a­tion to deliv­er shall cease. This oblig­a­tion shall also cease to apply in the event of fun­da­men­tal dis­rup­tions of oper­a­tions, in par­tic­u­lar as a result of strikes and lock-outs at MICROVISTA or one of its sup­pli­ers for which MICROVISTA is not respon­si­ble, nat­ur­al dis­as­ters, states of war or oth­er cas­es of force majeure which pre­vent or impair the per­for­mance of the con­tract, for the dura­tion and to the extent of the imped­i­ments aris­ing, also with respect to sub­se­quent per­for­mance.
3.6 MICROVISTA is enti­tled to make par­tial per­for­mance or 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 putting the work into use with­out reser­va­tion or by uncon­di­tion­al pay­ment of the agreed remu­ner­a­tion for the work. As agreed, it is to be assumed that the work has been put into use with­out reser­va­tion if 8 days have passed since the 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 invoice date, 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 indi­ca­tor of readi­ness for deliv­ery (in case of default of accep­tance by the CUSTOMER).
4.3 MICROVISTA draws the atten­tion of the CUSTOMER to the fact that data on busi­ness trans­ac­tions are processed with­in the com­pa­ny and its affil­i­at­ed com­pa­nies and reserves the right to trans­fer the data required to obtain cred­it pro­tec­tion to the insur­er. If insur­ance of the claim is refused, MICROVISTA reserves the right to exe­cute against pre­pay­ment.
4.4 In the event of late pay­ment, MICROVISTA reserves the right to claim dam­ages in excess of the statu­to­ry default inter­est. In this case, the CUSTOMER is per­mit­ted to prove that MICROVISTA has suf­fered no or only minor dam­age.
4.5 The CUSTOMER may set off pay­ment claims of MICROVISTA only against such coun­ter­claims that are legal­ly bind­ing, undis­put­ed and acknowl­edged by MICROVISTA.
4.6 The CUSTOMER is not enti­tled to exer­cise a right of reten­tion against con­trac­tu­al­ly jus­ti­fied pay­ment claims of MICROVISTA based on claims that are not legal­ly relat­ed to this contract.

5. Warranty, liability

5.1 War­ran­ty claims are sub­ject to a lim­i­ta­tion peri­od of one year from accep­tance or deliv­ery. The war­ran­ty peri­od of one year also applies to so-called non-phys­i­cal 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 mov­able objects used for build­ings; the statu­to­ry reg­u­la­tion shall apply here.
5.2 If the CUSTOMER detects dam­age to the pack­ag­ing upon receipt of the deliv­ery, he must have the dam­age con­firmed in detail in writ­ing by the trans­port com­pa­ny upon accep­tance of the deliv­ery. Dam­age in tran­sit that is only detect­ed after open­ing the pack­ag­ing must be report­ed to MICROVISTA in writ­ing with­in 5 cal­en­dar days of receipt of the deliv­ery. To meet the dead­line, time­ly dis­patch of the noti­fi­ca­tion is suf­fi­cient; the CUSTOMER bears the bur­den of proof.
5.3 The CUSTOMER must assist MICROVISTA, to the extent nec­es­sary, in rem­e­dy­ing defects, and in par­tic­u­lar, at MICROVISTA’s request, must send MICROVISTA a data car­ri­er with the rel­e­vant adjust­ments or infor­ma­tion.
5.4 If the CUSTOMER ini­ti­ates an inspec­tion due to alleged defects, the CUSTOMER shall bear the costs incurred if it turns out that there is no defect.
5.5 The war­ran­ty expires for such adap­ta­tions or ser­vices which the CUSTOMER mod­i­fies or oth­er­wise inter­venes in, unless the CUSTOMER proves in con­nec­tion with the noti­fi­ca­tion of defects that the inter­ven­tion is not the cause of the defect.
5.6 Any fur­ther war­ran­ty claims of the CUSTOMER, in par­tic­u­lar due to con­se­quen­tial dam­age caused by defects — unless these result from the absence of war­rant­ed char­ac­ter­is­tics — are exclud­ed. This shall not apply if MICROVISTA is guilty of intent or gross neg­li­gence.
5.7 MICROVISTA does not war­rant the suit­abil­i­ty or usabil­i­ty of the work or oth­er per­for­mance for the pur­pose intend­ed by the CUSTOMER unless an express writ­ten con­fir­ma­tion on the part of MICROVISTA exists.

6. Exclusion of damages

6.1 Sub­ject to the fol­low­ing pro­vi­sions, claims for dam­ages by the CUSTOMER — regard­less of the legal basis, includ­ing claims in tort — for the sim­ple neg­li­gent breach of oblig­a­tions by MICROVISTA, its legal rep­re­sen­ta­tives or vic­ar­i­ous agents are exclud­ed. In the event of a sim­ple neg­li­gent breach of car­di­nal oblig­a­tions, MICROVISTA’s lia­bil­i­ty is lim­it­ed to the val­ue of the order.
6.2 The above exclu­sions and lim­i­ta­tions of lia­bil­i­ty shall not apply in cas­es of strict lia­bil­i­ty, in par­tic­u­lar under the Prod­uct Lia­bil­i­ty Act, in the event of phys­i­cal injury or dam­age to health or loss of life or the absence of war­rant­ed char­ac­ter­is­tics, in the event of intent or gross neg­li­gence.
6.3 In case of loss or destruc­tion of sam­ples, mod­els or prod­ucts pro­vid­ed by the CUSTOMER due to force majeure, MICROVISTA’s lia­bil­i­ty is lim­it­ed to the val­ue of the mate­r­i­al.
6.4 MICROVISTA’s lia­bil­i­ty for loss of data as a result of the use of MICROVISTA’s works or ser­vices is lim­it­ed to the effort required to restore the lost data to the CUSTOMER’s sys­tem using exist­ing back­up copies. The CUSTOMER shall be oblig­ed to make its own reg­u­lar data backups.

7. License and copyrights

7.1 Any copy­rights as well as rights of use and exploita­tion of works pro­duced or ser­vices ren­dered by MICROVISTA shall remain with MICROVISTA regard­less of the deliv­ery to the CUSTOMER, unless oth­er­wise agreed. The repro­duc­tion of indi­vid­ual works or parts of works of MICROVISTA requires the writ­ten con­sent of MICROVISTA. The CUSTOMER may only repro­duce MICROVISTA soft­ware for inter­nal use or for data back­up pur­pos­es.
7.2 For soft­ware not pro­duced by MICROVISTA, the reg­u­la­tions of the respec­tive man­u­fac­tur­er apply.

8. Place of jurisdiction

8.1 The place of juris­dic­tion for all claims aris­ing from the con­trac­tu­al rela­tion­ship is the place of juris­dic­tion respon­si­ble for the reg­is­tered office of MICROVISTA. MICROVISTA is also enti­tled to bring an action before the court which has juris­dic­tion over the reg­is­tered office or the branch office of the CUSTOMER which com­mis­sioned the work.

9. Final clauses

9.1 In the absence of a spe­cial writ­ten agree­ment, the place of per­for­mance for all oblig­a­tions aris­ing direct­ly or indi­rect­ly from the con­trac­tu­al rela­tion­ship, includ­ing pay­ment oblig­a­tions, shall be the reg­is­tered office of MICROVISTA in 38889 Blanken­burg, Ger­many.
9.2 The inva­lid­i­ty of indi­vid­ual pro­vi­sions of these Gen­er­al Terms and Con­di­tions of Busi­ness or their com­po­nents shall not affect the valid­i­ty of the remain­ing pro­vi­sions. The con­tract­ing par­ties are oblig­ed, with­in the scope of rea­son­able­ness, to replace an inef­fec­tive pro­vi­sion by an effec­tive pro­vi­sion that is equiv­a­lent to its eco­nom­ic effect, pro­vid­ed that this does not result in a sig­nif­i­cant change to the con­tent of the con­tract. The same applies if a mat­ter requir­ing reg­u­la­tion is not express­ly reg­u­lat­ed.
9.3 The inclu­sion and inter­pre­ta­tion of these Gen­er­al Terms and Con­di­tions of Busi­ness 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, exclud­ing UN and inter­na­tion­al sales law.
9.4 The CUSTOMER autho­rizes MICROVISTA, waiv­ing noti­fi­ca­tion, to process per­son­al data with­in the scope of the per­mis­si­bil­i­ty of the BDSG and to the extent nec­es­sary for the per­for­mance of the con­trac­tu­al rela­tion­ship, and to trans­mit such data to the enti­ties involved in the per­for­mance of the con­trac­tu­al rela­tion­ship with­in MICROVISTA and with­in its affil­i­at­ed companies.