1.1These General Terms and Conditions for the provision of standard software products and accessories (hereinafter referred to as “GTC”) shall apply exclusively and to all contracts between MVTec Software GmbH (hereinafter referred to as “MVTec”) and the customer to the extent that they concern the provision of software or the purchase of accessories (e.g. dongles, calibration plates) for the operation of the provided software. Any deviating, supplementary or conflicting terms and conditions shall only be accepted by MVTec if such terms and conditions have been expressly agreed to by MVTec in writing.
1.2 These GTC shall also apply exclusively to all future transactions between the parties, even if MVTec has not referred to them again or has not expressly objected to the customer's general terms and conditions, and even if MVTec carries out the delivery of the goods with knowledge of deviating, supplementary or conflicting terms and conditions.
1.3 These GTC shall apply only to entrepreneurs, legal entities under public law or special funds under public law within the meaning of Section 310 (1) of the German Civil Code (BGB).
2. Offer, Acceptance, Reservation of Contract Performance
2.1 The sending of an offer by e-mail by MVTec shall not constitute a legally binding offer within the meaning of Section 145 of the German Civil Code (BGB). A legally binding purchase offer shall be made by the customer by way of an order. The order confirmation by MVTec shall only constitute the acceptance of the purchase offer if MVTec delivers the ordered standard software product together with the invoice or, in case of accessories, the delivery is prepared, and the customer receives the shipment number together with the invoice.
2.2 If the order constitutes an offer within the meaning of Section 145 of the German Civil Code (BGB), MVTec shall be entitled to accept it within a period of two weeks.
2.3 Offers made by MVTec are subject to change.
2.4 MVTec’s obligation to fulfill this agreement is subject to the provision that the fulfillment is not prevented by any impediments arising out of applicable national and international foreign trade and customs requirements or embargoes (or other sanctions).
3. Prices, Payment
3.1 All prices are free carrier (FCA) Munich (Incoterms®2020), exclusive of the respective statutory VAT.
3.2 Software prices do not include remuneration for data carriers, operating materials, accessories, installation, instruction, training, and travel expenses including travel times and shall be charged separately, if applicable, unless this is deviated from in an individual contract.
3.3 The list prices at the time of the order apply. The costs for packaging and shipping (shipping costs) shall be charged separately.
3.4 MVTec reserves the right to increase prices in accordance with cost increases if the delivery period exceeds six (6) months.
Unless otherwise agreed, the invoice amount is due for payment without deduction within 30 days from the invoice date.
3.5 MVTec shall be entitled to charge interest at the statutory rate from thirty (30) days after the due date. MVTec’s other rights shall remain unaffected. The customer shall have the right to provide counterevidence that the damage caused by default was less. If the customer fails to pay on time, MVTec need not formally put the customer in default.
4 Offset, Right to Retain
4.1 The customer shall only have the right to offset insofar as his counterclaims are undisputed or assessed in a legally binding judgement.
4.2 The customer is entitled to claim rights to retain only to the extent such rights are based on the same transaction.
5. Delivery, Delivery Time, Delivery Delay, Transfer of Risk and Customer’s Cooperation Duties
5.1 Unless otherwise agreed, the delivery of software licenses shall generally be made by e-mail and the delivery of hardware (dongles, calibration plates) - if required – shall be made by transport service providers at the expense and risk of the customer. The risk of accidental loss and accidental deterioration shall pass to the customer when the goods are handed over to the first transport service provider.
5.2 If a delivery period has been agreed, it shall commence at the point in time at which MVTec has finally received the information from the customer which is necessary for the proper processing of the delivery. This shall include, in particular, all documents and information to be provided by the customer, any advance payments and, if necessary, approvals and releases.
5.3 Compliance with the delivery period shall be subject to correct and timely delivery to MVTec, unless MVTec is responsible for the incorrect, late or non-delivery.
5.4 Business interruptions and other disturbances in business operations due to force majeure, natural hazards, strikes and comparable events for which MVTec is not responsible shall suspend the delivery period for the duration of the disturbance. MVTec shall inform the customer thereof and make the delivery as soon as possible after the end of the disruption. In the aforementioned cases, the customer shall have the right to withdraw from the contract if he has previously sent a written reminder for the delivery and MVTec does not deliver within a reasonable grace period.
5.5 Partial deliveries are permitted as long as they are reasonable to the customer.
5.6 In the event of export of the goods, the customer shall be responsible for compliance with all applicable export regulations. This also includes the observance of applicable export restrictions, the obtaining of corresponding permits as well as compliance with all laws, regulations and protective rights at the destination location.
5.7 The customer shall be obligated to provide proofs of use and/or end-use confirmations upon MVTec's request even if these are not officially required.
6. Retention of Title
6.1 The goods shall remain the property of MVTec until all payments have been received in full. In case of breach of contract by the customer, including default of payment, we shall be entitled to take back the goods.
6.2 The customer must handle the goods with care and insure them appropriately.
6.3 As long as the purchase price has not been paid in full, the customer shall immediately notify MVTec in writing if the goods are encumbered with rights of third parties or exposed to other interventions of third parties.
6.4 The customer shall be entitled to resell the goods subject to retention of title in the ordinary course of business. In this case, however, the customer hereby assigns to MVTec all claims arising from such resale, regardless of whether such resale takes place before or after any processing of the goods delivered under retention of title. Notwithstanding MVTec's right to collect the claim itself, the customer shall remain authorized to collect the claim even after assignment. In this context, MVTec undertakes not to collect the claim as long as and to the extent the customer meets its payment obligations, no application for the opening of insolvency or similar proceedings has been filed and no cessation of payments has occurred.
6.5 MVTec undertakes to release the aforementioned securities upon the customer's request to the extent that they exceed the claims to be secured by more than 10%.
7. Warranty, Material Defects
7.1 The use of the software products purchased by the customer is exclusively subject to the provisions of the respective product-specific software license agreement (EULA), which is available upon request at firstname.lastname@example.org or, for registered customers in the web shop, in the product overview.
7.2 Precondition for the assertion of warranty rights with respect to hardware products is the proper fulfillment of all inspection and complaint obligations owed under Section 377 German Commercial Code (HGB). Warranty claims can be asserted within 12 months after the transfer of risk.
7.3 Claims for material defects shall not exist if the deviation of MVTec's performance from the contractual quality is insignificant. The warranty shall not cover the elimination of software errors and errors caused by improper use, operating errors, natural wear and tear, inadequate system environment, use of operating conditions other than those specified in the specification, insufficient maintenance by the customer or third parties. Section IX (Liability) shall apply additionally to claims for damages and expenses.
7.4 The customer shall report defects in writing without delay in a comprehensible and detailed form, stating all information useful for the detection and analysis of defects. In particular, the form of appearance and the effects of the defect shall be stated.
7.5 In the event of defects in the goods, the customer shall be entitled to subsequent performance in the form of rectification of the defect or delivery of a defect-free item after setting a reasonable deadline. If the subsequent performance fails, the customer is entitled to reduce the purchase price or to withdraw from the contract.
8. Gewährleistung, Defects of Title
8.1 MVTec shall be liable for infringements of third party rights by its performance only to the extent that the performance is used in accordance with the contract. MVTec shall be liable for infringements of third party rights only within the European Union and at the place of contractual use of the performance. Claims based on defects of title shall not exist if the deviation of MVTec's performance from the contractual quality is insignificant.
8.2 If a third party claims against the customer that a performance of MVTec violates its rights, the customer shall notify MVTec immediately. MVTec shall be entitled, but not obliged, to defend the asserted claims at its own expense to the extent permissible. The customer shall not be entitled to acknowledge claims of third parties before it has given MVTec reasonable opportunity to defend the rights of third parties by other means.
8.3 Section IX (Liability) shall apply additionally to claims for damages and claims for expenses.
9.1 In case of intent or gross negligence on the part of MVTec or its representatives or vicarious agents, MVTec shall be liable in accordance with the statutory provisions. The same shall apply in case of culpable violation of essential contractual obligations. Unless there is an intentional breach of contract, MVTec's liability for damages shall be limited to the foreseeable, typically occurring damage.
9.2 MVTec’s liability for culpable damage to life, body or health as well as MVTec’s liability under the Product Liabiliy Act shall remain unaffected.
9.3 Any liability not expressly provided for above shall be disclaimed.
10. Taking back of packaging according to § 15 VerpackungsG, cost regulation
Notwithstanding Section 15 para. 1 sentence 1 VerpackG, the customer shall bear the costs for the return of the packaging by MVTec.
11. Amendment of the GTC
MVTec shall be entitled to amend these GTC, provided that essential provisions of the contractual relationship are not affected thereby and this is necessary to adapt to developments that could not be foreseen at the time of the conclusion of the contract and the non-observance of which would noticeably disturb the balance of the contractual relationship. Material provisions include, in particular, those relating to the nature and scope of the contractually agreed services and the term of the contract, including the provisions relating to termination. In addition, these GTC may be amended and supplemented to the extent necessary to eliminate difficulties in the performance of the contract due to gaps in the law that arise after the contract has been concluded. This may be the case, in particular, if there is a change in case law affecting one or more clauses of these GTC.
12. Applicable law, Jurisdiction, Severability Clause, Data Protection
12.1 This contract shall be governed by the laws of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
12.2 Place of performance and exclusive place of jurisdiction for all disputes arising out of or in connection with this contract shall be Munich.
12.3 Should individual provisions of this Agreement be or become invalid, this shall not affect the validity of the remaining provisions. The parties undertake to agree on a valid provision in place of the invalid provision, which comes closest to the economic purpose of the invalid provision. The same applies in the event of a gap.
12.4 Information on data protection can be viewed at https://www.mvtec.com/privacy-policy.
Version: January 31, 2023