1 Scope
1.1
micropsi industries GmbH is registered with theCommercial Register of the Local Court of Charlottenburg in Berlin under HRB 161886,with its business address at Möckernstraße 120, 10963 Berlin, Germany (“micropsi”).
1.2
micropsi offers a package of software, controller hardware, light, and camera for specific applications which can control and steer industrial robots, directly and in real-time (the “Kit"). The Kit includes certain software which is installed on the sold hardware and a Software-as-a-Service which is required for deployment of the hardware (“SaaS”.)
1.3
These are the general terms and conditions forthe business relationship between micropsi and Customers (“GTC”).
1.4
micropsi provides its services exclusively to customerswhich are entrepreneurs within the meaning of Section 14 of the German CivilCode (BGB) (“Customers”).
1.5
These GTC apply unless the parties have agreed on different regulations in the specific contract. Deviating, opposing or supplementary general terms and conditions of Customers shall only become integral components of the contract if micropsi agrees to their validity in text form. This requirement of approval also applies if micropsi initiates the performance of services after becoming aware of a Customer’s general terms and conditions.
1.6
micropsi hereby expressly contradicts the inclusion of the Customer's purchasing conditions and Customer’s general terms and conditions.
2 Object of the Contract
2.1
micropsi sells Kits and offers ancillary SaaS.The Kit and SaaS are tools for the creation of manufacturing automation solutions and need to be deployed as part of a consistent engineering effort to provide business results. These business results depend on how the product is being used by the Customer. micropsi is not responsible for the use case(s)implemented with the product, nor in any form for the performance of the overall machine that a Kit may become part of.
2.2
SaaS is provided by means of a special-purpose mobile application (the “App”) provided by micropsi. Such service via SaaS is referred to as the “Deployment Service”.
2.3
micropsi offers access to SaaS for a term of at least 12 months following the purchase of the Kit by Customer.
3 Wear Parts
3.1
The Kit contains various wear parts, including but not limited to cables, lights and a tablet.
3.2
The App can be used with any Android tablet that fulfills the specifications outlined in the MIRAI user handbook (the “Handbook”).
3.3
micropsi may offer replacement of some or all wear parts. micropsi has no obligation do so unless expressly agreed otherwise.
3.4
For sale of wear parts, these GTC apply accordingly, except for Clauses 9 and 12, provided that all references to the “Kit” shall be deemed references to the wear part(s) sold.
4 Resale
The Customer may resell the Kit only if expressly agreed upon with micropsi.
5 Conclusion of the Contract
micropsi may provide Customers with a binding offer to conclude a sale and purchase agreement. By sending back the signed offer, the Customer accepts micropsi’s offer including these GTC. The same applies if Customer places an order with micropsi.
6 Prices and Terms of Payment
6.1
All prices are exclusive of statutory value added tax. Value added tax shall be added where applicable.
6.2
Additional delivery and shipping costs are listed separately in the respective product description.
6.3
Payment shall be due within 30 days after hand-overof the Kit. micropsi may withdraw from the contract in case payment is notreceived within two weeks following due date.
7 Delivery and Shipping Terms
7.1
Delivery is ex works Berlin, Germany (Incoterms2020) (EXW).
7.2
The Kit is deemed delivered (including a fixed delivery date or punctual delivery) and the risk passes to the Customer when the Kit is handed over to the freight carrier.
7.3
When a Kit is sent to the Customer, at the latest when it leaves the factory/warehouse, the risk of accidental loss or accidental deterioration of the Kit passes to the Customer. This applies regardless of whether the Kit is shipped from the place of performance or who bears the freight costs.
8 Liability for Defects
8.1
The Customer's warranty rights presuppose that he has duly fulfilled his obligations to examine and give notice of defects according to § 377 HGB.
8.2
Claims for defects expire 12 months after the Kits are handed over to the Customer. The above provision does not apply if the law pursuant to § 438 Para-graph 1 No. 2 BGB (buildings and items for buildings), § 478 Paragraph 1 BGB (right of recourse) and § 634a Paragraph 1 BGB (construction defects) apply.
8.3
If, despite all the care taken, a Kit shows a defect that was already present at the time of the transfer of risk, micropsi will, at micropsi's option, either repair the Kit or deliver a replacement Kit, subject to timely notification of defects. micropsi must always be given the opportunity for supplementary performance within a reasonable period of time. Claims for recourse remain un-affected by the above regulation without restriction.
8.4
If the supplementary performance fails, the Customer can - without prejudice to any claims for damages - withdraw from the contract or reduce the payment.
8.5
No Claims for defects exist if the Kit only insignificantly deviates from the agreed quality, in the case of only insignificant impairment of usability, in the case of natural wear and tear or damage that occurs after the transfer of risk as a result of incorrect or negligent treatment, use of the Kit for unsuitable purposes, lack of maintenance as specified in Section 12, excessive stress, un-suitable operating resources, defective construction work, unsuitable building ground or due to special external influences that are not provided for in the contract. If the Customer or a third party carries out improper repair work or changes, there are also no claims for defects for this and the resulting consequences.
8.6
Claims by the Customer for the expenses required for the purpose of supplementary performance, in particular transport, travel, labor and material costs, are excluded if the expenses increase because the Kits delivered by micropsi were subsequently sent to a different location than the location of the Customer, unless the shipment corresponds to its intended use.
8.7
The Customer's right of recourse against micropsi only exists insofar as the Customer has not made any agreements with his customer that go beyond the legally mandatory claims for defects. Clause 8.6 also applies accordingly to the extent of the Customer's right of recourse against micropsi.
8.8
If micropsi has made supplementary performance by means of a replacement delivery, the Customer is obliged to return the Kits that were initially delivered to micropsi within 30 days at micropsi's expense. The defective Kits must be returned in accordance with the statutory provisions. micropsi reserves the right to claim damages under the legally regulated conditions.
9 Use of SaaS
9.1
SaaS is used by means of the App.
9.2
The Customer is granted a simple, non-transferable, non-sublicensable, revocable right, restricted to the term of the contract, to use SaaS on micropsi’s IT infrastructure according to these GTC and for the Deployment Service.
9.3
The Customer may only use itself the access to SaaS, and only for the Deployment Service.
9.4
micropsi merely provides the IT functions of SaaS. micropsi is not responsible for establishing and maintaining the data link between the Customer's IT systems and the router exit of the micropsi data centre or its subcontractor's data centre through whose server the software is operated (“Transfer Point”). micropsi is not responsible for malfunctions beyond the Transfer Point.
9.5
The provision of the necessary internet access is not part of the contract. The Customer is responsible for the procurement and maintenance of the necessary hardware and connections to public telecommunications networks. micropsi observes all applicable legal requirements for the protection of user data. However, micropsi is not liable for the security, confidentiality or integrity of the data communication, which is conducted via third party communication networks. micropsi is also not liable for malfunctions in data transmission caused by technical errors or configuration problems on the part of the Customer.
9.6
micropsi uses the data uploaded by the Customer’s robot(s) into SaaS for the purpose of performing and improving the Deployment Service and any additional services according to these GTC and the contract.
10 Cooperation Obligations of the Customer
10.1
The Customer shall
(a) not pass on the access details to the Customer Account to third parties and shall protect them against third-party access.
(b) instruct Authorized User appropriately, particularly if the Customer permits them to use SaaS on their own end device.
(c) inform micropsi in case of suspected abuse without undue delay.
(d) only provide data, texts, pictures and other content to the Customer Ac-count that comply with applicable law, do not infringe third party rights and that the Customer is legally entitled to enter without any restrictions.
10.2
micropsi may monitor the proper contractual use of SaaS by adopting suitable technical measures in compliance with data protection law and enforcing them if necessary, for instance by restricting access or blocking access or deleting content entered by the Customer that infringes applicable law or these GTC. micropsi also reserves the right to change the access details of Customers for reasons pertaining to security; in such cases, micropsi will promptly in-form the Customer of this fact.
10.3
The Customer shall communicate any defect of SaaS to micropsi immediately upon appearance. micropsi shall remedy all duly notified defects appearing in the software within a reasonable period of time.
10.4
Breaches of cooperation obligations can lead to extra expenses for micropsi. The Customer must repay these extra expenses except the Customer is not responsible for the extra expenses.
11 Retention of Time
11.1
micropsi retains title to all Kits until receipt of all amounts invoiced to the Customer including interests and charges. In the event Customer re-sells the Kits before property in the Kits passes to Customer, Customer shall account to micropsi for all of the proceeds of any re-sale and prior to paying such proceeds to micropsi, Customer shall hold the same in a fiduciary capacity keeping the same separate from its other money.
11.2
If micropsi consents to a resale pursuant to Section 4, the Customer is entitled to resell the Kits in normal business transactions. The Customer hereby al-ready now assigns the Customer’s claims from the resale of the reserved Kits to micropsi in the amount of the final invoice amount agreed with micropsi (including sales tax). This assignment applies regardless of whether the Kit has been resold without or after processing. The Customer remains authorized to collect the claim even after the assignment. micropsi remains authorized to collect the claim itself. However, micropsi will not collect the claim as long as the Customer meets his payment obligations from the proceeds received, is not in default of payment and, in particular, no application for the opening of insolvency proceedings has been filed or payments have been suspended.
11.3
Unless mutually agreed in writing, Customer assigns hereby to micropsi the portion of the Customer’s claim against its end-customer to the extent the Kits have been processed, transformed or combined with other products sold by Customer to such end-customer. micropsi shall be entitled to recover directly from Customer’s end-customer any unpaid portion of the product value owed by Customer. Upon request Customer has to notify the assigned claim and the debtor thereof to micropsi, and to make all information and material required for the debt collection available and to notify the assignment to the third-party debtor. If the Kits are attached or otherwise levied upon, Customer shall draw attention to micropsi’s title and immediately inform micropsi of the attachment or levy. micropsi shall be entitled to carry out all applications and registrations as it deems necessary for securing its title and Customer shall assist upon request. The retention of title shall not affect the passing of risk under Clause 7.2.
12 Service Levels
12.1
micropsi grants a minimum technical availability of SaaS of 99% in the monthly average during operating hours. Unless expressly agreed otherwise in the contract, operating hours are on all calendar days with the exception of Saturdays and Sundays, national public holidays and December 24 and 31 of each year in the period from 8:00 a.m. to 6:00 p.m. CET.
12.2
If micropsi plans to decommission SaaS in part or in whole at other times, micropsi must announce this intention three business days before the planned decommissioning. The Customer may only object to this decommissioning if there is good cause, and this objection must be submitted without undue delay. If possible, micropsi will name a replacement time unless the decommissioning cannot be postponed.
12.3
micropsi intends to use state-of-the-art technology and shall be entitled to regularly carry out or introduce updates, new versions or upgrades of the software in order to adapt SaaS to new technical or commercial requirements, to implement new features, or to make changes to existing features in order to improve SaaS.
13 Maintenance
13.1
Customer shall comply with all manufacturer service instructions of all hard-ware components that form part of the Kit. In particular, Customer shall take care to regularly check functionality of all wear parts as set out in Section 4 and replace wear parts if necessary
13.2
Customer shall control proper functioning of the Kit at least once a day.
13.3
Long-term performance of the Kit may be impacted by deteriorating state of the light, and failure of the light may cause severe damage. Customer shall replace the light after 50.000 hours of service the latest.
13.4
Customer shall at all times ensure the Kit is used in physical conditions that do not differ significantly from those during deployment.
14 Liability and Damages
14.1
micropsi assumes unlimited liability for willful intent and gross negligence on the part of micropsi, its agents and legal representatives; micropsi only accepts liability for simple negligence in the event of breaches concerning cardinal contractual duties.
14.2
Liability for breaches of cardinal contractual duties is restricted to the damages which are typical for this type of contract and which micropsi should have been able to anticipate when establishing the contract based on the circumstances known at that time.
14.3
The no-fault based liability pursuant to Section 536 a Paragraph (1) BGB for defects in the software existing at the time of contracting shall be excluded, unless the defect relates to a feature of the software essential for the Deployment Service.
14.4
micropsi is only liable for the loss of data according to the above paragraphs if the Customer could not have prevented this loss by adopting suitable data backup measures.
14.5
The present limitations of liability do not apply if explicit guarantees have been made, for claims due to a lack of warranted qualities or for damages due to injury of life, body or health. Liability according to the product liability law also remains unaffected.
14.6
micropsi accepts no liability for breakdowns of the internet connection. micropsi assumes no liability for any damages caused by the Customer’s failure to comply with its obligations under Clause 13.
14.7
The Customer is obliged to immediately notify any damage pursuant to the above liability provisions to micropsi in text form or to have such damage documented by micropsi, so that micropsi has a chance to mitigate the damage together with the Customer.
14.8
The Customer indemnifies and holds micropsi harmless from all claims by third parties (in particular from claims arising out of breach of copyright, com-petition, trademark or data protection law) that are asserted against micropsi in connection with the Customer’s use of SaaS insofar as such claims do not result from willful or grossly negligent behavior of micropsi or its legal representatives or agents (gesetzliche Vertreter oder Erfüllungsgehilfen). This indemnification obligation comprises the reimbursement for appropriate costs that micropsi incurred in the course of asserting or defending its legal rights in this context.
14.9
This liability arrangement shall also apply in favor of legal representatives and agents of micropsi if claims are asserted directly against them.
15 Limitations of Claims
15.1
Claims of the Customer based on the breach of any duty not consisting of a defect become time-barred, except in the event of intention or gross negligence, within one year from beginning of the limitation period. This shall not apply if the damage in question incurred by the Customer consists in personal injury. Claims for personal injury become statute-barred within the statutory limitation period.
15.2
Any rescission of contract or reduction of payments shall be invalid if the claim to performance or supplementary performance of the Customer has become time-barred.
16 Remuneration and Payment Conditions
16.1
The Customer shall pay micropsi the subscription fee as specified in the offer.
16.2
All prices are listed before legal VAT in the respective amount owed.
16.3
micropsi's claim for remuneration shall be independent of whether the Customer actually makes use of SaaS.
17 Data Protection and Data Security
17.1
micropsi utilizes mandatory and industry standard technical precautions to protect customer data. The Customer is aware of the general risk that transmitted data may be intercepted during transmission. This applies not only to the exchange of information via e-mails that leave the system, but also to all other data transmission. For this reason, the confidentiality of data transmit-ted when using SaaS cannot be guaranteed.
17.2
The Customer is obliged to comply with applicable data protection laws with respect to the personal data of third parties, such as other Customers, which the Customer may obtain when using SaaS. The Customer will only use this data for contractual communication or for communication prior to entering in-to a contract. The Customer will instruct all its customers of executive bodies, employees, representatives, Authorized Users and agents accordingly.
17.3
The Customer agrees that micropsi may freely use, exploit and further develop all non-personal data and feedback provided by the Customer for the purpose of demand-oriented design, marketing, further development, optimization and the provision of its software.
18 Confidentiality
18.1
“Confidential Information” means all business secrets, the existence and con-tent of the business relationship between the parties as well as all other in-formation on SaaS that is non-public, confidential and/or protected.
18.2
The parties are obliged
(a) To treat the other party’s Confidential Information as strictly confidential, and only to use such information for the purpose of fulfilling contractual obligations resulting from the contractual relationship with the Customer,
(b) To refrain from passing on or disclosing the other party’s Confidential In-formation to third parties and to refrain from providing access to Confidential Information for third parties,
(c) To adopt appropriate measures to prevent unauthorized persons from obtaining access to the other party’s Confidential Information.
18.3
The obligations listed in Section 18.2 do not apply to Confidential Information
(a) that was general knowledge or generally accessible to the public before it was disclosed to the other party, or that becomes public without violating any confidentiality obligations;
(b) that was already known to the receiving party before it was disclosed and it can be demonstrated that no confidentiality obligations were violated;
(c) that was developed independently by the receiving party without the use or reference of the disclosing party’s Confidential Information;
(d) that is handed over or made accessible to the receiving party by an authorized third party without violating any confidentiality obligations;
(e) that must be disclosed due to mandatory statutory provisions or a court decision and/or a decision of an authority.
18.4
The parties shall ensure through suitable contractual arrangements that the employees and contractors working for them shall also, for the time period specified in Section 18.6 of this Agreement, refrain from individual use or dis-closure of Confidential Information. The parties shall only disclose to employees or contractors Confidential Information to the extent such employees or contractors need to know the information for the fulfilment of the contract.
18.5
The Customer consents that micropsi may disclose the collaboration between the parties for marketing purposes and may also use the company logo of the Customer in this context. The Customer may revoke this consent at any time by declaration in text form.
18.6
The obligations under Section 18 continue to apply for a period of three years after the termination of the contractual relationship. Statutory provisions concerning the protection of business secrets remain unaffected.
19 Reverse Engineering
The Kits contain valuable business secretes. The Customer must not, directly or indirectly, reverse engineer or aid or assist in the reverse engineering of all or any part of Kit or any associated hardware and software. Reverse engineer-ing includes, without limitation, decompiling, disassembly, sniffing, peeling semiconductor components, any form of shell access or file system access to the hard drive included in the Kit, or otherwise deriving and obtaining of ac-cess to source code.
20 Final Provisions
20.1
The Customer shall only have a right to set-off, reduction and/or retention against micropsi if its counterclaim has been legally established, undisputed or acknowledged by micropsi. Furthermore, the Customer may only exercise a right of retention if the counterclaim is based on the same contractual relationship. The Customer's right to reclaim remuneration not actually owed shall remain unaffected by the limitation of this Section.
20.2
All declarations concerning and amendments to the contract including this form requirement must be submitted in text form (e.g.e-mail). This also applies to amendments of this clause.
20.3
The contract shall be governed by the laws of theFederal Republic of Germany.
20.4
Berlin shall be the place of fulfilment and exclusive place of jurisdiction for all disputes arising out of or in connection with the contract. However, micropsi is entitled to bring legal action at the registered seat of the Customer. In case the registered seat of the Customer is outside the European Economic Area all disputes arising out of or in connection with the contractual relationship shall be finally settled in accordance with the Arbitration Rules of the German Arbitration Institute (DIS) without recourse to the ordinary courts of law. The arbitral tribunal shall be comprised of a sole arbitrator. The seat of the arbitration is Berlin, Germany and the language of the arbitration shall be English.
