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.