Miovision Technologies GmbH.
Gladbacher Str. 44, 50672 Köln, Germany
Miovision Technologies Inc.
137 Glasgow St., Suite 110 Kitchener, Ontario Canada N2G 4X8
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS AND APPLICABLE ATTACHMENTS BEFORE EXECUTING THE ORDER FORM AND BEFORE YOU USE THE PLATFORM SERVICES OR HARDWARE.
If this Agreement involves the sale of access to the Miovision Platform and related systems, then Attachment A – Miovision Platform is applicable and shall form part of this Agreement.
If this Agreement involves the sale of Hardware, then Attachment B – Hardware Purchase is applicable and shall form part of this Agreement.
If this Agreement involves the rental of Hardware, then Attachment C – Hardware Rental is applicable and shall form part of this Agreement.
Customer acknowledges and agrees it has read, understands and agrees to be bound the terms and conditions outlined on the Sales Order Form executed between Miovision and the Customer, and on the terms and conditions and applicable attachments which follow:
General Terms and Conditions
1 Field of application
These General Terms and Conditions (“GTC”) consist of four parts: Part 1 shall apply to all business relationships between Miovision Technologies GmbH (“Miovision”) and its customers. Part 2 contains Special Terms and Conditions for Miovision Online Services and shall apply to Miovision Online Services in addition to Part 1. Part 3 contains Special Terms of Sale and shall apply additionally to the sale of hardware, in particular video capture technology, by Miovision. Part 4 contains Special Rental Conditions and shall apply additionally to the rental of hardware, in particular video capture technology, by Miovision. In the event of contradictions between this Part 1 and the Special Terms and Conditions according to Parts 2, 3 and 4 the provisions in the Special Terms and Conditions shall have precedence.
All deliveries and services of Miovision are exclusively provided on the basis of these GTC. General Terms of the customer which deviate, contradict or supplement these will not be recognised, unless their validity is explicitly approved by Miovision in writing. These GTC shall also apply to all future business between the contractual parties without this requiring a separate explicit inclusion.
Agreements which deviate from the GTC require a written form; this shall also apply to a change in the written form requirement. Employees of Miovision, with the exception of the managing directors and authorized signatories, are not entitled to reach deviating oral agreements.
Offers of Miovision are exclusively addressed to business customers which are considered as entrepreneurs (Unternehmer) in the meaning of Sec. 14 para. 1 BGB (German Civil Code), as well as to legal entities under public law, in particular regional authorities. Entrepreneurs in the meaning of Sec. 14 para. 1 BGB are natural persons or legal entities or partnerships with legal capacity who or which, when entering into a legal transaction, act in exercise of their trade, business or profession.
2 Conclusion of the contract
Offers of Miovision are without obligation and non-binding.
The submission of a customer’s order (albeit online, by email, fax or letter) by the customer shall be deemed as a binding offer for the conclusion of a contract concerning the deliveries and services carried out at the order of the customer.
Miovision can accept the offer of a customer within 14 days after receipt. Offers may be accepted by an explicit declaration or by Miovision providing the contractually owed services.
3 Prices and terms of payment
Prices to apply shall be those as explicitly agreed in the contract, otherwise those stated in the current price list of Miovision. All prices are net plus the applicable rate of value-added tax.
All prices are due for payment immediately unless expressly agreed otherwise between the parties.
The customer will be deemed in default if payment has not been made in full upon expiry of an agreed due date or, in the absence of such agreed date, 30 days upon receipt of an invoice and maturity or earlier upon receipt of a reminder of payment issued by Miovision. During the default, the receivables of Miovision are to bear interest with the statutory default interest rate. The right to assert further damages due to default remains reserved.
If the customer is in default of payment towards Miovision, Miovision is entitled – notwithstanding any other rights owing to the default – to block an existing access of the customer to the Miovision platform (cf.Part 2), after prior notice in text form (e.g. by letter, email or fax) and after the unsuccessful expiry of a reasonable cure period, until all outstanding payments of the customer have been provided in full.
The customer may only offset against payment claims of Miovision with claims that are undisputed or have been established by a final and binding judgment. The customer is only authorized to exercise a right to refuse performance or a right of retention if and to the extent that its counterclaim is based on the same contractual relationship.
If it becomes apparent after conclusion of the contract that the payment claims of Miovision are jeopardised by insufficient payment capability of the customer, Miovision can make the provision of the services owed by Miovision subject to the prior payment of the respective remuneration or to the provision of adequate securities.
4 Intellectual property and confidentiality
The intellectual property of Miovision and/or licensors of Miovision shall in particular comprise all copyrights, patents, trademark rights, business secrets and other associated intellectual property rights relating to the goods sold and rented out by Miovision as well as to the Miovision platform and all modifications, changes, extensions or supplementations or additions in this respect – whether arranged for at the initiative of the customer or otherwise.
The customer undertakes to treat all confidential information of Miovision, which is disclosed to the customer by Miovision or of which the customer gains knowledge over the course of a contractual relationship with Miovision, strictly confidential and in the same manner as the customer protects the confidentiality of its own information and data, at least however with the reasonable, customary business care and attention. Confidential information of Miovision includes all prices agreed with and all quotes made by Miovision. A disclosure or forwarding of confidential information by the customer is only permitted if and insofar as the customer is obliged to do so by law and the customer informs Miovision immediately before the disclosure about the existence and scope of the disclosure obligation so that Miovision can still restrict or prevent the disclosure of the confidential information. Confidential information is all information, which is disclosed, i.e. communicated or made accessible to the customer after this agreement comes into force. Excluded from this is such information, which is already public knowledge, was already lawfully communicated to the customer by a third party and without a non-disclosure obligation or becomes known without a breach by the customer of the non-disclosure obligation.
The liability of Miovision, for any legal reason whatsoever, is limited to wilful intent and gross negligence. In case of ordinary negligence Miovision will only be liable (i) for damages from the injury to life, limb or health, (ii) according to the regulations of the German Product Liability Act, (iii) in case of malicious failure to disclose defects or the assumption of a guarantee of quality and (iv) for damages from the breach of an essential contractual obligation. Essential contractual obligations are those, which need to be fulfilled in order to allow for the due performance of the contract and on the compliance with which the contractual partner may therefore rely upon. In cases of Subclause (iv) the liability of Miovision is however limited to the compensation of the foreseeable and typical damages. Penalties, fixed dates that do not allow for a customary grace period, or any other particular risks of liability arising out of any contracts of the customer with its own clients have to be notified to Miovision in advance, otherwise such damage is not considered as foreseeable.
A potential liability of Miovision for data loss of the customer is limited to the typical restoration work, which would have occurred with the regular production of backup copies, as corresponding with the risks.
The aforementioned limitations and exclusions of liability shall also apply for the benefit of legal representatives, employees and vicarious agents of Miovision.
The extraordinary termination of a contractual module (a contractual module in this meaning relates to service relationships between the parties under Parts 2, 3 and 4) for good cause will automatically lead to the termination of all ongoing contractual modules with the customer if these concern continuing obligations (namely Miovision Online-Services according to Part 2 or hardware rental according to Part 4). The ordinary termination of a contractual module will, on the other hand, only lead to the termination of the contractual module concerned.
7 Reservation of amendments
Miovision reserves the right to amend the provisions of these GTC at all times. For continuing obligations – in particular for the use of the Online-Services and the hardware rent – amendments are also permitted with effectiveness within existing contractual relationships. Miovision will inform the customer about such amendments at least with prior notice of 30 calendar days (“Amendment Notification”). If the customer does not object within 30 days from receipt of the Amendment Notification and also continues to use the Miovision services after the expiry of the objection period, the amendments shall be deemed as effectively agreed as from the expiry of the objection period. In the Amendment Notification Miovision will inform the customer about the right to file an objection and its consequences. To hardware purchase contracts, the GTC being valid at the time when the contract is concluded shall apply exclusively.
Miovision reserves the right to additionally change the GTC, (i) if the change is merely beneficial for the customer, (ii) if the change is purely due to technical or process-related reasons, unless it has essential implications for the customer, (iii) insofar as Miovision or Miovision Inc. is obliged to establish the compliance of these GTC with applicable law, in particular if the applicable legal position changes, (iv) insofar as Miovision thus satisfies a court judgement pronounced against Miovision or Miovision Inc. or a decision of an official authority or (v) Miovision introduces additional services, which require regulations in these GTC. Miovision will inform the customer about corresponding changes.
8 Choice of law and place of jurisdiction
This contract and the entire legal relationships of the parties are subject to the law of the Federal Republic of Germany under the exclusion of the UN Convention on Contracts for the International Sale of Goods.
The exclusive place of jurisdiction for all disputes arising out of and in connection with this contract and its validity is Cologne if the customer is a merchant, legal entity under public law or special funds under public law or has no general place of jurisdiction in Germany. Miovision is also entitled to file action against the customer at the latter’s general place of jurisdiction.
9 Final provisions
All contractual agreements which fall under these GTCs, as well as all rights or obligations arising hereunder may only be assigned by the customer to third parties with the prior written consent of Miovision.
Should certain provisions of these GTC be or become invalid in full or in part this shall not affect the validity of the remaining provisions.
PART 2 – SPECIAL TERMS AND CONDITIONS FOR MIOVISION ONLINE SERVICES
The Special Terms and Conditions for Miovision Online Services of this Part 2 shall apply to Miovision Online Services (“Services”) in addition to Part 1 of the GTC.
Services shall be made available, and processed on behalf of Miovision by Miovision Technologies Inc. with registered seat in Ontario, Canada (“Miovision Inc.”) as operator of a corresponding online platform (“Miovision Platform”) for the use of the services by customers of Miovision (“Customers”).
1 General service regulations
Miovision shall grant the Customer, to the contractually agreed extent, the possibility to use services via online access to the Miovision Platform for the purpose of own use by the Customer during an existing registration relationship for the Miovision Platform (“Access Term“).
The Miovision Platform or the Services are made available to the Customer during the Access Term online (under http://www.trafficdataonline.com or another URL named from time to time by Miovision). Web browsers recommended by Miovision can be used for the online access to the Miovision Platform. Miovision is not obliged to enable the access to the Miovision Platform by other browsers or software.
An entitlement of the Customer to use the Miovision Platform online shall only exist within the scope of technical and operational feasibility. Miovision shall make an effort to ensure, as far as possible, an interruption-free usability of the Miovision Platform. However, temporary restrictions or interruptions can occur due to technical interferences (such as e.g. interruption to the power supply, hardware and software faults, technical problems in the data lines).
2 Customer account
Customers can access the Miovision Platform by means of a customer-specific account (“Customer Account“) by using an individual user login name and a password (“Access Data“) and upload data or make these available on the Miovision Platform for the purpose of using the Miovision Platform or Services, namely video recordings for traffic counting purposes (“Customer Data“).
During registration, Miovision will make Access Data for the Miovision Platform or the Services accessible and available to the Customer. With its first-time dial-in to the Miovision Platform by means of provided Access Data, the Customer once again confirms the validity of these GTC and in particular of the provisions of this Part 2 for Miovision Online-Services.
The Customer is obliged to maintain secrecy and to carefully store its Access Data. The Customer is not entitled to make the Access Data available to third parties and has to reasonably protect the Access Data against access by unauthorized third parties. If it is likely that unauthorized third parties have gained or will gain knowledge of the Customer’s Access Data, Miovision is to be informed immediately. The Customer will be liable according to the statutory provisions for any use and/or other activity, which is carried out under the Customer’s Access Data.
3 Access and right of use
The Customer is granted a simple and non-transferrable access authorisation resp. right of use with regard to the Miovision Platform or Services for own purposes and for the duration of the Access Term. The user is responsible and authorized for the administration of his account by making use of respective administration features of the respective access.
This access authorisation and right of use of the Customer shall include the authorization of Customer to grant partners and/or contacts of the Customer (“Customer Partners”), for the purpose of viewing such Customer’s Customer Data, a reading access to the Miovision Platform and to Customer Data including any evaluations deposited in the Customer Account (“Share Function”); no further authorisation to grant access to Customer Partners and/or other third parties is granted. The Customer is in particular not entitled to use the Services for third parties and/or Customer Clients beyond the scope defined in this Part 2 of the GTC or to make the Services accessible for use by third parties and/or Customer Partners for their own purposes. The customer is informed and has to be aware that he is responsible for the use of the Customer Data made available to Customer Partners when using the Share Function and that any restrictions on use and/or non-disclosure, as the case may be, are subject to direct agreement between the customer and the respective Customer Partner; Miovision is not responsible in this regard.
The Customer shall refrain from all attempts to reverse engineer, decompile, disassemble the source code or underlying ideas or algorithms of the Miovision Platform or to otherwise attempt to get access to the underlying source codes. The Customer is moreover forbidden from modifying or translating the Miovision Platform or from creating derived works from the Miovision Platform. In particular, renting out, leasing, licensing or other commercial use of the Miovision Platform by the Customer to or for third parties are forbidden.
The Customer has to refrain from manipulating and/or endangering the security of the Miovision Platform. The Customer will in particular refrain from uploading virus-infected and/or malware-infected Customer Data onto the Miovision Platform.
4 Principles for use and responsibility
The Customer is responsible for the collection, accuracy, actuality, quality, legality and completeness of its Customer Data. Miovision does not assume any responsibility for checking the Customer Data for completeness, accuracy, legality and actuality.
The Customer is responsible and has to guarantee that Customer Data are free of any third parties’ rights, which oppose or impair an uploading and/or use of the Customer Data as intended on the Miovision Platform or by the Services. The Customer has in particular to ensure that a use of the Customer Data as intended on the Miovision Platform or by the Services does not infringe any copyrights, patent rights, trademarks, business secrets or other rights of third parties. In particular, the Customer ensures that only those Customer Data are uploaded on the Miovision Platform or made available for the Services, the upload and intended use resp. evaluation of which by Miovision or Miovision Inc. will not infringe any personal rights of third parties or data protection law. In connection to using the Miovision Platform or Services, the Customer is obliged to scrutinize and comply with applicable data protection rules, including federal state law and local provisions, in particular the General Data Protection Regulation (GDPR). In any event, the Customer has to ensure that any recordings (most relevant part of Customer Data) to be provided to Miovision are carried out without any infringement of personal rights of third parties or data protection law; the Customer is highly recommended to make use of recording hardware that prevents the storage of personal data by means of anonymization and/or reduced video quality. The Customer shall indemnify Miovision and/or Miovision Inc. on first request from all claims of third parties out of or in connection with the provision of Customer Data to Miovision and/or Miovision Inc. by the Customer.The Customer has to be aware that he is responsible under GDPR as regards the provision of data to Miovision and/or Miovision Inc.
The Customer is not permitted to use the Miovision Platform or the Services for purposes of unlawful communication, in particular to upload offending, racial, pornographic or other unlawful contents or corresponding Customer Data onto the Miovision Platform or to make these available for Services by Miovision.
The Customer shall indemnify Miovision and Miovision Inc. from all claims asserted by third parties, including public authorities, against Miovision or Miovision Inc. due to an infringement of third parties’ rights with regard to the Customer Data uploaded by the Customer on the Miovision Platform and their intended use or evaluation by Miovision or Miovision Inc. The Customer shall bear all costs for the necessary legal defence of Miovision or Miovision Inc. including all court and lawyer’s costs in the statutory amount. This shall not apply if the Customer is not responsible for the infringement of rights. If any claim is asserted by a third party, the Customer is obliged to promptly make a full and honest disclosure to Miovision of all information that is necessary for the examination of the claim and respective legal defense.
The Customer grants to Miovision a free right of use of the respective Customer Data to the extent that is necessary for providing the Services by Miovision as contracted, in particular for storing and integrating the Customer Data on the Miovision Platform, for editing and reproducing, if necessary for the integration of Customer Data on the Miovision Platform or for the provision of Services as contractually agreed and for making Customer Data accessible on Customer’s request (namely for Customer Partners); the right of use includes the use of Customer Data for internal purposes of Miovision and Miovision Inc., namely to improve, to revise, to further develop and to enhance Miovision services. Insofar as the Customer removes uploaded Customer Data from the Miovision Platform, the aforementioned right of use granted to Miovision shall lapse with regard to the affected Customer Data. However, Miovision shall remain entitled to store copies created for backup and/or evidence purposes in line with statutory provisions. However, for the avoidance of doubt, no video recordings will be forwarded to other Customers of Miovision without the Customer’s consent.
The Customer may order analyses via the Miovision Platform, namely of video recordings of the Customer for the purposes of traffic counting (“Analysis Order“).
The type and object of corresponding Analysis Orders will be requested or commissioned by the Customer via the Miovision Platform or the parameters available there. The costs of such analyses are governed by the respective contractual agreements or, as the case may be, by the rates as stated online by Miovision. The modalities for the placement of an order or the respective analyses are detailed on the Miovision Platform. The Customer can initiate a binding order at its cost online via its Customer Account; the acceptance of an order will be confirmed to the Customer by the system.
Miovision will make an effort to carry out any analysis ordered by the Customer via the Miovision Platform and to make the relevant results (“Analysis Results”) available in the described quality and within the processing times chosen by the Customer via the Miovision Platform. Processing times shall be deemed as non-binding target processing times; if and insofar as Miovision envisages additional charges for an accelerated processing requested by the Customer, these will not be due and payable if Miovision culpably does not conclude the processing within an agreed time frame.
If Analysis Results do not correspond with the agreed scope of Services and/or quality level Miovision will, upon receipt of a prompt complaint by the Customer, provide Analysis Results which correspond with the scope of Services and quality level (“Follow-up Processing”). Miovision is, however, not obliged to carry out Follow-up Processing if Miovision is not responsible for a shortfall in the scope of Services and/or quality level, in particular if the data provided by the Customer for respective analyses are incomplete, corrupt, of inferior quality or otherwise faulty. Miovision will point out these circumstances to the Customer in the event that defects of the provided data are detected. Insofar as Follow-up Processing to be provided by Miovision do not correspond with the agreed scope of Services and/or quality level once again, the Customer is entitled to reasonably reduce the remuneration for the Analysis Order or to cancel the underlying order; a remuneration will not be due and payable in the latter case or is to be credited to the Customer.
The analysis methods of Miovision rely on know-how and experience of Miovision, acquired in the context of numerous Analysis Orders. This know-how as well as corresponding expertise or knowledge of facts constitute an essential value for Miovision which can be made available to Customers of Miovision in the context of Analysis Orders to the extent that know-how and experience from previous Analysis Orders can be used for the benefit of Miovision Customers. Miovision as well as Miovision Inc. are and remain entitled to use and exploit know-how contained in and derived from the Analysis Results, in particular underlying concepts, procedures and methods, even if this was acquired during the execution of analyses for the Customer. This shall also and in particular apply to the software solutions used for the purpose of conducting analyses as well as other models, methods, programme modules, programme blocks, techniques, pre-existing and prior materials or other patentable goods of Miovision and/or Miovision Inc. used and/or developed in connection with the fulfilment of the contract. The obligation of Miovision to keep any non-disclosure and confidentiality obligations as well as the merely limited right of use of Miovision with regard to Customer Data as such according to Subclause 4.5 of this Part 2 remain unaffected.
6 Contact portal
Insofar as contacts to providers which produce video recordings by and at the order of Customers for the purposes of a traffic data recording (“Third Party Provider”) are made available on the Miovision Platform, such service of Miovision that is not liable to separate costs is solely limited to the provision of contact details or ways of contact.
If a Customer would like to place orders with Third Party Providers, the Customer has to negotiate such orders individually with the respective Third Party Provider and has to conclude a contract directly with this Third Party Provider. Third Party Providers act independently at their own account and operate neither for, nor by order of Miovision or Miovision Inc. Miovision is neither responsible for a pre-selection of Third Party Providers nor for the proper execution of orders by Third Party Providers.
7 Support and system maintenance
During the times listed on http://www.miovision.com Miovision offers general support with regard to the Miovision Platform (“Support“). Support services do not comprise any individual support, i.e. Miovision is not obliged to provide explanations and assistance specially tailored to the IT systems of the Customer by way of the Support. Moreover, Miovision may refer to existing manuals and other operating instructions, e.g. also online help, in the context of its Support.
Miovision endeavours to continuously develop and provide a state of the art technology of the Miovision Platform and maintains the Miovision Platform accordingly (“System Maintenance”). The focus is insofar placed, among others, on the aspects of data and system security. During a System Maintenance by Miovision or during times, which Miovision requires for the purpose of updating and maintaining the Miovision Platform, the Miovision Platform will not be available or only to a limited extent. Planned downtimes will be communicated to the Customer by email in advance to the email address provided by the Customer.
The consideration for using the Miovision Platform or the Services depends on the type and scope of a Service usage or of the ordered processing of Customer Data by Miovision. The specific remuneration modalities shall be determined according to the type of the tariff option chosen by the Customer. Insofar as not explicitly agreed otherwise Service rates of Miovision are due and payable without any deduction within 30 days from the invoice date.
9 Tariff options
Unless agreed otherwise in an individual case Miovision offers the following tariff options:
Tariff 1: The tariff “Pay-As-You-Go” provides for the Customer to pay for its actual use of the Miovision Platform at the agreed “Pay-As-You-Go”-rates as per the end of each month.
Tariff 2: The tariff “Prepaid” enables the Customer to use the Miovision Platform or Services at a rate determined in advance for volume that is to be acquired (“Prepaid Credit“). Prepaid Credits shall forfait three years after acquisition of the respective Prepaid Credit; the provisions concerning the termination according to Subclause 11 of this Part 2 shall remain unaffected. Once the Prepaid Credit is used up, the use of the Miovision Platform and Services will be invoiced to the Customer monthly at the rates of the tariff “Pay-As-You-Go”; alternatively it is of course possible to acquire a new Prepaid Credit once again.
For damage claims of the Customer due to a slightly negligent breach of essential contractual obligations the following limits of liability shall additionally apply in deviation of Part 1 of the GTC: For an individual damaging event during an ongoing contractual year the liability of Miovision is limited to twice the amount of the remuneration for Services already paid by the Customer in such contractual year until the occurrence of the damages, and for all damaging events within a contractual year the liability of Miovision is limited to twice the remuneration of the total remuneration for Services paid by the Customer during such contractual year.
Should a Customer suffer a damage due to the use of Services made available free of charge on the Miovision Platform (including the call of free contents), Miovision shall only be liable insofar as the Customer’s damage was suffered owing to the use of the free contents and/or Services as contractually agreed and only in case of wilful intent (including fraudulent intent) and gross negligence of Miovision.
Any liability of Miovision irrespective of fault for defects existing upon conclusion of the contract (Section 536a BGB) is excluded.
Apart from this, the liability provisions of Part 1 shall remain unaffected.
11 Term and termination
Access to the Miovision Platform and Services as well as to Support is granted at the beginning of the Access Term. The Access Term shall begin when the Access Data are made available to the Customer.
The Access Term is for an indefinite period and can be terminated by the parties with prior notice of one month to the end of each calendar quarter. The right of the parties to termination for good cause shall remain unaffected. In particular, Miovision shall have good cause to terminate the contract if the Customer uploads illegal and/or infringing Customer Data on the Miovision Platform or makes these available for the processing of Services in breach of the provisions of this Part 2 regarding the principles of use and responsibilities.
The Access Term will end automatically if the Customer is in default of payment for 60 days or has not used the Customer Account for a consecutive period of 365 days.
It the Customer terminates the contract for Services according to this Part 2 in an ordinary manner, Prepaid Credit of the Customer, which may still exist as of the end of the Access Term, shall forfait without compensation; this shall apply accordingly to an extraordinary termination of the contract for Services according to Part 2 by Miovision. If Miovision terminates the contract for Services according to Part 2 in an ordinary manner, Miovision will pay out a remaining Prepaid Credit to the Customer; this shall apply accordingly in the event of an extraordinary termination of the contract for services according to Part 2 by the Customer or an automatic expiry of the Access Term pursuant to Section 11.3 of this Part 2.
When a termination becomes effective the registration relation as well as the Access Term will end. The Miovision-Plattform or the Services will then no longer be available to the Customer. Miovision reserves the right to block the Customer Data and possible Analysis Results when the termination becomes effective. Miovision is moreover entitled to irretrievably delete all Customer Data and Analysis Results within 30 calendar days after the termination has become effective and upon expiration of any statutory time limits; the Customer is recommended to back up stored Customer Data and Analysis Results on the Miovision Platform as of the end of the contractual term.
12 Amendment of Services
Miovision reserves the right to change the Miovision Platform or Services or to offer deviating Services, unless this is not deemed reasonable for the user. Miovision additionally reserves the right to change the Miovision Platform or Services or to offer deviating Services, (i) if Miovision is obliged to establish the compliance of the Services offered by Miovision with the applicable law, in particular in case of changes in prevailing legal norms, (ii) insofar as Miovision complies with a court judgement directed against Miovision and/or Miovision Inc. or a decision of a public authority, (iii) insofar as the respective change is necessary in order to fill existing security gaps, (iv) if the change is merely beneficial for the Customer or (v) if the change is of a purely technical or process-related nature without substantial implications for the Customer. Changes with a merely insignificant influence on the functions of the Miovision Platform or the Services do not constitute any changes in Services in the aforementioned meaning; this shall in particular apply to changes of graphical elements and the mere change to the arrangement of functions. Statutory rights of the Customer will not be limited.
PART 3 – SPECIAL TERMS OF SALE
The Special Terms of Sale of this Part 3 shall apply to the sale of hardware, in particular video capture technology, (“Goods“) by Miovision Technologies GmbH (“Miovision“) to customers of Miovision (“Customers“) in addition to Part 1 of the GTC.
1 Purchase price
All stated prices are quoted ex-warehouse Miovision unless agreed otherwise. The shipment to a location designated by the Customer shall be carried out against a separate charging of the transport costs incurred for this purpose. The purchase price of the Goods is due and payable without any deduction within 30 days from the invoice date, however not prior to delivery of the Goods. If advance payment was agreed in an individual case, the Goods shall only be delivered after the full payment of the purchase price.
2 Shipment and delivery
At the Customer’s request, Miovision shall send the Goods to the place of delivery designated by the Customer. The transport is carried out at the Customer’s costs by a transport company commissioned by Miovision and a cargo insurance will be taken out. The risk of damages beyond the insurance cover from and in connection with the shipment of the Goods shall be borne by the Customer.
The delivery dates stated in the Customer’s order confirmed by Miovision are only quoted approximately, unless a fixed date has explicitly been agreed. The stated delivery date refers to the time of hand-over to the transport company.
Agreed delivery deadlines commence with the order confirmation by Miovision, however, not before all details of the order execution have been clarified and all necessary cooperation has been provided by the Customer; the same applies to delivery dates. The adherence to the delivery date is subject to the punctual supply to Miovision by its sub-suppliers.
Premature deliveries and partial deliveries are permitted if this is not deemed unreasonable for the Customer.
3 Retention of title
The Goods shall remain the property of Miovision until the purchase price has been fully paid. Dispositions of any kind over the Goods subject to the retention of title are only permitted with the written consent of Miovision.
4 Installation and operation
Miovision will enclose operating instructions with the Goods and additionally offer free limited support at the conditions described online under http://www.miovision.com.
The Customer is solely responsible for the installation and operation of the Goods, including obtaining all permits required for the installation or use of the Goods.
The Customer is urgently recommended to comply with the operating instructions of the Goods and/or other instructions for use by Miovision in order to use the Goods as intended and in line with their functions. In order to avoid incorrect settings and/or malfunctions, the Customer is in particular recommended to ensure careful and correct handling of memory cards and rechargeable batteries, the proper installation and positioning of the Goods, an examination of default settings as well as the precautionary performing of test recordings.
The Customer has to ensure that the use of Goods complies with all legal provisions and in particular no recordings are carried out with the help of the Goods which infringe personal rights of third parties or the data protection law. The Customer shall indemnify Miovision on first request from all claims of third parties out of or in connection with the use of the hardware by the Customer.
Claims of the Customer for defects are subject to the Customer’s adherence to the statutory deadlines for inspection and reporting of complaints. Customers, which are not subject to the commercial obligation of examination and notification of defects, must inspect the Goods immediately after delivery for accuracy, completeness and obvious defects and report these to Miovision in writing within 14 days after delivery.
Hidden defects to the Goods, which are identified during the warranty period, are to be promptly reported to Miovision by the Customer by email or telephone, by describing the malfunction as precise as possible. At the request of Miovision the Customer has to send the Goods to Miovision immediately for the purpose of a more detailed inspection.
Should the delivered Goods be defective, supplementary performance will be provided according to applicable law at first either by remedying the defect or delivery of a faultless product at Miovision’s choice. If the supplementary performance fails, the Customer is entitled to reduce the purchase price or to rescind the contract according to the provisions of applicable law; damages can only be claimed in accordance with Subclause 5 of Part 1 of the GTC.
The warranty period is one year after delivery of the Goods. This shall not apply to claims for damages. Claims for damages due to a breach of the obligation for supplementary performance cannot be asserted if the supplementary performance can be lawfully refused by Miovision due to the expiry of the warranty period or breach of the obligation for examination and notification of defects.
The Customer can purchase a one-year extension of the limited warranty period within the first year from delivery of the Goods.
6 Customer service
In the event of malfunction of the Goods, also beyond warranty, support will be available to all Customers of Miovision during regular business hours. The email address and telephone number are published on the website of Miovision.
If it is not possible to identify and remedy a malfunction by email or by telephone Miovision will inform the Customer hereof. In this case the Customer can send the Goods to Miovision for a closer inspection and repair. Miovision will examine the malfunction and inform the Customer of the cause of malfunction and its remedy.
At the Customer’s request Miovision will repair the Goods in the ordinary course of business and make them available to the Customer for pick-up or send them back to the Customer. All costs for repair and shipment are borne by the Customer. The costs for the repair are based on the currently valid price list of Miovision. Upon request of the Customer and against separate consideration a substitute device can be provided to the Customer for the duration of the repair.
PART 4 – SPECIAL RENTAL CONDITIONS
The Special Terms of Rental of this Part 4 shall apply to the rental of hardware, in particular video capture technology, (“Goods”) by Miovision Technologies GmbH (“Miovision”) to customers of Miovision (“Customers”) in addition to Part 1 of the GTC.
1 Rental price
The rental prices are valid for the periods as agreed upon in the Customer’s order and are subject to the provisions in Subclause 6 of this Part 4.
Unless explicitly agreed otherwise, the rent for the Goods is due and payable without deduction within 30 days from the invoice date and delivery of the Goods.
In case the Goods are supplied as agreed, the Customer will owe the full rental price for the entire contractual rental period irrespective of an actual use of the Goods.
The Goods will be provided to the Customer at the agreed starting date of the rental period at the warehouse of Miovision. Upon request of the Customer Miovision shall send the Goods to the place of delivery designated by the Customer. The transport is carried out at the Customer’s costs by a transport company commissioned by Miovision and a cargo insurance will be taken out. The statutory provisions concerning the bearing of risks shall remain unaffected.
The Customer has to inspect the Goods immediately after the delivery or upon receipt for obvious defects and report such defects to Miovision in writing. Otherwise the Goods shall be deemed as delivered in proper condition until proof of the contrary.
If the due delivery of the Goods to the Customer is impossible for Miovision due to the fact that another customer has returned the respective Goods to Miovision late or in a damaged condition without any fault of Miovision, then Miovision is not obliged to provide its services for the duration of the impossibility of performance and Miovision shall only be liable for consequential damages to the extent such damage claims can be realised at the other customer.
3 Installation, use and maintenance
Miovision will enclose operating instructions with the Goods and additionally offer free limited support according to the conditions described online under www.miovision.com. The Customer is solely responsible for carefully installing, maintaining and operating the Goods at its costs and in compliance with the operating instructions, the terms and conditions of this contract and all applicable laws and regulations at all times.
The Goods may only be used by competent and qualified personnel and exclusively for business purposes. The Customer has to protect the Goods against damage and loss with the usual degree of care. The Customer may not change or adjust the Goods without Miovision’s prior written consent. The passing on of the Goods to third parties is forbidden without the prior written consent of Miovision.
The Customer is highly recommended to comply with the operating instructions of the Goods and/or other application instructions of Miovision in the interest of a proper and appropriate use of the Goods. In order to avoid misadjustments and/or malfunctions, the Customer is in particular recommended to ensure careful and correct handling of memory cards and rechargeable batteries, the proper installation and positioning of the Goods, an examination of default settings as well as the precautionary performing of test recordings.
Malfunctions of the Goods during the rental period are to be promptly reported to Miovision by the Customer by email or by telephone by describing the malfunction as precisely as possible. If it is not possible to identify and remedy a malfunction by e-mail or telephone, Miovision will inform the Customer hereof and the Customer has to send the Goods to Miovision immediately. Miovision will examine the malfunction and inform the Customer of its cause and its remedy.
If the malfunction was caused by a user error or other circumstances, for which the Customer is responsible, Miovision will repair the Goods in the ordinary course of business and make them available to the Customer for pick-up or send the Goods back to the Customer. All costs for the repair and shipment are borne by the Customer. The costs for the repair are based on the currently valid rental price list of Miovision. Upon request of the Customer and against payment of a separate remuneration, a substitute device can be provided to the Customer during the repair. The Customer is obliged to continue the contractually agreed rent during the repair.
If the malfunction results from a defect of the Goods or another cause for which the Customer is not liable, Miovision will either remedy the defect or deliver a faultless product at its own option according to the provisions of applicable law. In this case, the costs for the remedy of defects and the transport to the Customer are borne by Miovision. In the latter case the Customer is entitled to reduce the rent by a reasonable amount until the defect has been effectively remedied. Instead of reducing the rent, Miovision can offer a free extension of the rental period of the same duration as the repair period; however the Customer shall have no right to claim an extension of the rental period.
Miovision shall only be liable for damages if Miovision is responsible for the defect to the Goods, even in case of initial defects, or does not duly fulfil its obligation to remedy the defects. Otherwise the liability provisions of Part 1 of the GTC shall apply.
5 Obligations and liability of the Customer
During the rental period the Customer is liable towards Miovision for loss or damages to the rented Goods as well as for any breach of contract according to the general legal provisions.
Any loss of or damage to the rented Goods is to be reported to Miovision immediately. In case of suspicion of a criminal offence of third parties (e.g. damage to property, theft) the Customer has to report the incident proveable to the responsible investigating authorities and to file any necessary criminal complaint of offence.
The Customer has to ensure that the rented Goods are used in compliance with all applicable legal provisions and, in particular, recordings are carried out with the Goods without infringing any personal rights of third parties or the data protection law. The Customer shall indemnify Miovision from all claims of third parties out of or in connection with the use of the hardware by the Customer on first request.
6 Insurance requirement, risk surcharge
The Goods are typically installed in the public domain and are not continuously monitored by the Customer. They are hereby subject to an increased risk of damage and loss. The rental prices of Miovision are calculated based on the assumption that the Customer will maintain insurance during the rental period at its own costs against damage to or loss of the Goods for any reason whatsoever (theft, vandalism, natural hazards, etc.). Miovision can request the submission of the insurance policy at any time.
If the Customer does not want to take out such insurance, it has to notify Miovision accordingly upon return of the signed Customer’s order at the latest. In this case, the rental price shall be increased by a risk premium and excess, which the Customer has to bear in the event of wilful damage to the Goods by third parties (property damage/vandalism) or in the event of theft. The amount of the risk premium and the excess shall be stated in the customer order form.
7 Term and termination
The rental agreement expires at the end of the agreed contractual term or in case of premature termination.
Miovision is entitled to an extraordinary termination of the rental agreement in case of good cause. A good cause is given, in particular, if the Customer culpably breaches an essential contractual obligation and does not remedy the contractual breach upon request by Miovision within a reasonable period of time. The same applies vice versa to the Customer, whereby in case of defects to the Goods the Customer may only terminate the agreement after failure or refusal of remedies or substitute delivery by Miovision.
Upon termination of the rental agreement, the Customer has to make the Goods available for pick-up in a proper condition at the location agreed with Miovision.
The premature return of the Goods by the Customer shall have no effect on its obligation to pay the rental charge agreed for the contractual term.
In the event that the Goods are returned late, the Customer will owe the continued payment of the agreed rent until the actual return or the current rental list price of the Goods, whichever is higher. The Customer shall additionally be liable for all pecuniary prejudices suffered by Miovision due to the late return of the Goods, unless the Customer is not responsible for the delay.
When the Goods are returned by the Customer, Miovision can examine the Goods in order to ensure that they are not damaged, changed, malfunctional and in a bad condition within a period of ten workdays (“Inspection Period”). If Miovision determines and reports to the Customer within the Inspection Period that the Goods are not in the condition as required by the contract, the Customer shall be deemed to have returned the Goods in an improper condition. The Customer reserves the right to prove that the defect has already existed since the beginning of the rental period or that the Customer is not responsible for the defect. The Inspection Period is no term of preclusion for Miovision. However, if damages are reported after the Inspection Period, Miovision will bear the full burden of proof.
If the Customer returns the Goods damaged – except for cases according to Subclause 8.4 Sentence 3 of this Part 4 – or if the Customer is responsible for the impossibility of return of the Goods, the Customer owes Miovision lump-sum damages of 50% of the rental list price for the loss of use until the repair or procurement of a new device/Goods in addition to the damages for the repair or replacement itself. The contractual parties reserve the right to prove higher or lower actual damages.
The limitation period according to Section 548 BGB is extended to one year.