General Terms and Conditions of Sale and Delivery MIVISiO GmbH
Status 04/2023

Status 04/2023

1. General information

a. Our offers, order confirmations, commercial letters of confirmation, deliveries and services are provided exclusively in accordance with these General Terms and Conditions of Sale and Delivery (hereinafter referred to as "Terms and Conditions"). The customer's general terms and conditions shall not apply.
b. These Terms and Conditions shall apply (i) even if we carry out the delivery to the customer without reservation in the knowledge that the customer's terms and conditions conflict with or deviate from these Terms and Conditions and (ii) also for future transactions with the customer, even if we do not make separate reference to their validity.

2. Offers, Cancellation
a. We are entitled to revoke our offers until receipt of the declaration of acceptance without stating reasons (offers subject to change).
b. If a customer's order is to be regarded as an offer within the meaning of § 145 BGB, we may accept it within two weeks.
c. If we agree to cancel an order as a gesture of goodwill, the costs incurred by us (e.g. for cancelations to our suppliers etc.) and any additional costs incurred shall be borne by the customer. The same applies to changes to orders that we have already accepted, insofar as we agree to this change.

3. Order documents
We reserve all copyrights to plans and documents (drawings, plans, parts lists, calculations, costings etc.) which have been disclosed or made available to the customer. The customer shall only use these plans and documents for the purpose of fulfilling the contract and shall not make them accessible to third parties without our express written consent. They must be returned to us on request; the assertion of a right of retention is only possible in the case of recognized, undisputed or legally established counterclaims.

4. Prices, price adjustments
a. Unless otherwise stated in our offers, order confirmations/confirmation letters, our prices are ex works plus packaging costs and VAT at the statutory rate on the day of invoicing. Any withholding tax shall be borne by the customer.
b. Our prices are subject to change. They are based on the labor, material and overhead costs at the time of the order confirmation/confirmation letter. If the wage, material or overhead costs increase within six weeks between conclusion of the contract and delivery, we shall be entitled to a corresponding price increase, unless we are in default of delivery. We reserve the right to make other price adjustments in cases where the basis of the transaction is disturbed.

5. Terms of payment
a. The customer is not entitled to withhold payment or to set off counterclaims unless these have been legally established, recognized or are undisputed or there are complaints of defects whose justification is obvious and if the counterclaims are not based on the same contractual relationship.
b. In cases of the defense of uncertainty (§ 321 BGB) or in the event of default of payment by the customer in the total amount of more than EUR 2,000.00 gross, we are entitled to revoke all payment terms granted and to make all claims due immediately.
c. Insofar as we grant payment discounts in individual cases, this shall be subject to compliance with our terms of payment. If these are not complied with, we shall be entitled to revoke payment discounts for the future at any time.

6. Delivery, transfer of risk, storage
a. Partial deliveries are permissible insofar as they are reasonable for the customer, whereby the customer's rights due to delayed delivery remain unaffected. Technical or formulation changes are permissible, provided they do not result in a price increase and do not lead to a deterioration in quality.
b. Deliveries shall be made ex works (EXW) Emmendingen (Incoterms 2020). If the customer is in default of acceptance, the risk shall pass to the customer upon notification that the goods are ready for collection.
c. In the event of default of acceptance, we shall be entitled to charge the customer storage fees for the duration of the delay in the amount customary for a forwarding agent in the Emmendingen area. The same applies if the collection or shipment of the goods is delayed at the customer's request.

7. Delivery and performance time, delay
a. Only agreed delivery periods are binding.
b. An agreed delivery period shall commence upon receipt of our order confirmation/letter of confirmation, but not before all technical questions have been clarified and any documents, approvals and releases to be provided by the customer have been provided and any agreed down payment or agreed advance payment has been received. The delivery deadline shall be deemed to have been met if readiness for dispatch has been established and notified by the time of its expiry or, if agreed accordingly, the goods have been handed over to the carrier.
c. Agreed delivery times shall be extended appropriately in the event of operational disruptions for which we are not responsible, such as strikes, lockouts or delays in delivery for which we are not responsible. In such cases, the customer is entitled to withdraw from the contract after setting a reasonable grace period. Claims for damages are excluded in these cases. If the disruption of operations through no fault of our own lasts longer than eight weeks, we shall be entitled to withdraw from the contract without being liable for damages. The same applies to the customer.
d. If we are in default of delivery or performance, we shall be liable, insofar as the customer proves damage, limited to the typically occurring, foreseeable damage. The limitation of liability shall not apply in cases of intent or gross negligence.
e. At our request, the customer is obliged to declare within a reasonable period of time whether he is withdrawing from the contract due to the delay in delivery or performance or whether he insists on delivery.
f. The limitations of liability according to point d. shall not apply if a commercial transaction for delivery by a fixed date has been agreed; the same shall apply if the customer can assert that the immediate assertion of the claim for damages instead of performance can be considered due to the delay for which we are responsible.

8. Reservation of the right to deviation, warranty
a. In the event of only minor defects, the customer shall only be entitled to a reduction in price. No further warranty rights exist in these cases. We reserve the right to deviations in dimensions, quantity, weight, quality, color and other performance data that are customary in the industry, insofar as they do not significantly impair the use of the goods or the agreed quality stipulated in the contract or affect a guarantee assumed by us. In particular, rejects of up to 2% of the delivery quantity do not entitle the customer to make a complaint. In the case of order lots, excess or short deliveries of up to 2% of the delivery quantity are permissible. This also applies to partial deliveries. The price shall be adjusted accordingly in the event of rejects and excess or short deliveries.
b. The customer is responsible for checking whether materials that come into contact with the ordered goods are changed by them. He must inform us immediately of any such changes.
c. The customer must inspect deliveries immediately for missing quantities and recognizable defects and notify us of these in text form immediately, but at the latest within eight days of the transfer of risk. Non-recognizable defects must also be reported in text form immediately after discovery, but no later than eight days after discovery. The notification periods shall apply in the same way to direct deliveries to third parties named by the customer; in such cases, the customer must also ensure that a complaint is made in good time.
d. Insofar as we owe warranty due to defects, we are entitled and obliged, at our discretion, to repair or replace the goods free of charge up to three times within a reasonable period of time, provided that the defect occurs within the limitation period according to Section 8.5 and is notified in good time, provided that the cause of the defect already existed at the time of the transfer of risk. The customer is obliged to provide evidence of this. If the subsequent performance fails, the customer may withdraw from the contract or reduce the remuneration without prejudice to any claims for damages in accordance with Clause 9.
e. Claims for defects shall lapse after one year. This shall not apply in cases of §§ 445a, 445b, 478 BGB, injury to life, body or health, in the event of an intentional or grossly negligent breach of duty or the culpable breach of a material contractual obligation within the meaning of Clause 9.2 by us or our vicarious agents, in the event of fraudulent concealment of a defect, in the event of the assumption of a guarantee or insofar as we are liable under the provisions of the Product Liability Act. The statutory provisions on suspension of expiry, suspension and recommencement of time limits shall remain unaffected.
f. Claims of the customer for expenses incurred for the purpose of subsequent performance, in particular transport, travel, labor and material costs, are excluded insofar as the expenses increase because the goods have been taken to a place other than the customer's branch office.
g. The customer shall only have a right of recourse against us pursuant to § 478 BGB insofar as the customer has not made any agreements with his customer that go beyond the statutory claims for defects. Section 8.6 shall apply accordingly to the scope of the customer's right of recourse.
h. Clause 9 shall apply to claims for damages due to material defects. Section 9, the customer shall not be entitled to any warranty claims.
i. If the customer's notice of defects is unjustified, we shall be entitled in cases of intent or gross negligence to demand compensation from the customer for our expenses incurred.

9. Compensation for damages
a. Claims for damages and reimbursement of expenses by the customer (claims for damages), irrespective of the legal grounds, in particular due to the breach of duties arising from the contractual obligation and from tort, are excluded.
b. The exclusion of liability pursuant to Section 9.1 shall not apply in cases of liability under the Product Liability Act, intent, fraudulent intent, gross negligence, injury to life, limb or health, insofar as we have assumed a guarantee and due to the breach of material contractual obligations. Contractual obligations are essential if their fulfillment makes the proper execution of the contract possible in the first place and if the customer may regularly rely on their compliance.  c. In the event of a breach of material contractual obligations, however, our liability shall be limited to the foreseeable damage typical for the contract, unless there is intent, fraudulent intent or gross negligence, injury to life, limb or health. The limitation of liability to the foreseeable damage typical for the contract shall also apply to cases of loss of profit and other financial losses. A change in the burden of proof to the detriment of the customer is not associated with these regulations.
Claims for damages due to material defects (Clause 8) shall become time-barred in accordance with Clause 8.5.

10. Retention of title, deterioration of assets
a. The delivered goods shall remain our property until all our claims arising from the delivery contract with the customer have been fulfilled. The customer is authorized to sell or process, combine or install the products in the ordinary course of business (goods subject to retention of title), but not to pledge or assign them as security. In the event of a deterioration in the customer's financial circumstances, we shall be entitled to prohibit the sale, processing, installation or mixing.
b. Resale is only permitted under the condition that the customer (reseller) makes the reservation that ownership is only transferred to his customer when he has completely fulfilled his payment obligations with regard to the reserved goods (simple reservation of title). The customer hereby assigns to us all claims arising from the resale up to the amount of our claim.
c. The customer is authorized to collect assigned claims. The authorization to collect expires in the event of default of payment or in the event of a significant deterioration in the customer's financial circumstances. In these cases, we are entitled to inform the other customers of the assignment and to collect the claims ourselves. In order to assert the assigned claims, the customer must provide the necessary information and allow this information to be checked. In particular, he must provide us on request with a precise list of the claims accruing to him with the names and addresses of the purchasers, the amount of the individual claims, invoice date etc. and allow us access to his business premises for verification purposes.
d. If the goods subject to retention of title are combined, mixed or processed with other items, we shall acquire co-ownership of the new item in the ratio of the invoice value of the goods subject to retention of title to the total value.
e. The customer undertakes to notify us immediately in the event of his suspension of payments, a significant deterioration in his financial circumstances and of seizures. Attachment creditors are to be named, stating the address. The customer shall bear all costs that must be incurred in order to prevent access by attachment creditors and to recover the goods.
f. The customer shall store the reserved goods for us free of charge; he shall not be entitled to establish a warehouse keeper's lien. He undertakes to insure the goods against the usual risks such as fire, theft, water and transport damage to an appropriate extent. He hereby assigns to us his claims for compensation to which he is entitled against third parties arising from damage of the aforementioned kind in the amount of the invoice value of the goods.

11. Place of jurisdiction, applicable law
a. The exclusive place of jurisdiction for all direct or indirect disputes arising from the contractual relationships is Emmendingen. However, we are also entitled to bring an action at the customer's place of business.
b. The contractual relationship is subject to German law to the exclusion of international private law. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded. The customer can find our current privacy policy at https://www.mivis.io