Terms and Conditions of Mirasoft GmbH & Co. KG
for use by entrepreneurs

 

1. General, clientele

(1) All offers, deliveries, service and other contracts based on inquiries and orders of our customers via our website https://www.anyviz.io or https://portal.anyviz.de are subject to these General Terms and Conditions. We may amend these Terms and Conditions at any time with reasonable notice. The changes shall be deemed approved if the customer does not object to the changes in writing within 14 days.

(2) The product range on our website is aimed at entrepreneurs. For the purposes of these General Terms and Conditions, an “Entrepreneur” is a natural or legal person or a partnership with legal capacity, which is acting in the exercise of its commercial or independent professional activity when concluding the contract.

(3) Customer’s terms and conditions shall not apply, even if we do not separately object to their validity in individual cases.

2. Conclusion of contract

(1) Our offers on our website are non-binding.

(2) By a service inquiry over our web page the customer makes a binding offer for the order with a service offered by us. We can accept the offer until the end of the third working day following the day of the offer.

(3) We will send the customer a confirmation of receipt of the offer, which does not constitute acceptance of the offer, immediately after receipt of his offer. The offer shall only be deemed accepted by us as soon as we declare acceptance to the customer (by e-mail). Acceptance may also be implied by the first act of performance.

(4) Insofar as we use third parties to perform the agreed services, they shall not become contractual partners of the customer. We are entitled to refuse the conclusion of the contract without giving reasons.

3. Contract duration and termination, change of subscriptions

(1) The contract shall commence on the date of the first performance action, unless expressly agreed otherwise. The contract is concluded for an indefinite period and can be terminated by either party with 14 days’ notice to the end of the billing period. The right of both contracting parties to an extraordinary termination (termination for an important reason) remains unaffected. The cancellation can be made by email or letter and becomes effective upon receipt.

(2) The revocation of the SEPA direct debit by the customer is equivalent to an extraordinary termination.

(3) After termination of the contract, the user’s access to the system will be blocked.

(4) Subscriptions may be changed at any time. If a larger subscription is selected within the billing period, the payments already made will be credited to the exact day. When changing to a lower-priced subscription, payments are only adjusted for the following billing period.

(5) The deletion of the customer project by the customer is equivalent to an ordinary termination.

4. Prices and payment

(1) All prices shall be plus the statutory value-added tax, unless expressly agreed otherwise.

(2) The contractual basic fees shall be payable in advance unless otherwise expressly agreed and shall become due upon receipt of the invoice. In the case of invoicing via us, the customer shall issue a SEPA direct debit for the payment to be made. For return direct debits, we are entitled to charge a processing fee of EUR 8.00 per direct debit. If we do not receive the due payments in time, the customer’s access to the system will be blocked. Access to the system will be reopened after the outstanding claims have been paid.

(3) The customer is not entitled to any right of set-off or retention unless the counterclaim is undisputed or legally established.

5. Fair Use of AnyViz VPN

(1) By booking a subscription, the customer is able to use the service AnyViz VPN at no extra charge. Our VPN service is designed for maintenance and diagnostic purposes. Permanent connections or the transfer large amounts of data contradict the intended purpose. We reserve the right to limit the use of AnyViz VPN services if the data transmitted through the VPN service exceeds 2GB per month per project.

6. Limitation of Cloud Adapter connections

A maximum of 5 cloud adapters may be connected to an AnyViz customer project. The limit increases to 10 Cloud Adapters per customer project if a subscription with 50 tags or more is booked.

7. Confidentiality

(1) We undertake to treat as confidential all business and trade secrets which become known to us before or during the execution of the contract as well as information of the customer designated as confidential beyond the end of the contract and not to use these for purposes which do not serve the interest of the customer and which are not required to achieve the purpose of the contract; unless they are publicly known without breach of the obligation to secrecy. The customer shall release us from the obligation of secrecy insofar as we are legally obliged to disclose the information. Corresponding obligations affect the customer with regard to our business and trade secrets.

(2) We make the trade secrets disclosed to us accessible only to employees and other third parties who require access to the execution of the contract. We inform these persons of the need to keep this information confidential.

8. Customer Responsibilities

(1) For the use of the software the system requirements resulting from the product description must be fulfilled by the customer. The customer is responsible for this. The customer must expertly examine the software provided immediately upon delivery or upon making it accessible. The customer shall thoroughly test the intended usability of the software for usability in the concrete situation. Before commissioning, the customer is obliged to carry out sufficient tests in a safe environment. The customer shall immediately notify us in writing of any defects detected, giving a precise description of the defect, and in such detail that we can reproduce the defect. The customer shall provide us with documents on the type and occurrence of the defect and thus cooperate in the containment and elimination of defects. The error message is sent by e-mail and only during normal office hours (Monday to Friday from 9.00 a.m. to 5.00 p.m.).

(2) The customer shall take appropriate precautions in the event that the software does not work properly in whole or in part (e.g. by data backup, documentation of software use, fault diagnosis, regular checking of results, emergency planning). It is the responsibility of the customer to ensure the functionality of the working environment of the software. The customer bears sole responsibility for the selection, installation and use as well as for the intended results.

(3) The customer is obliged to keep all access data, such as user name and password, safe, secret and secure against access by third parties.

(4) Insofar as the customer provides us with protected contents (e.g. graphics, trademarks and other contents protected by copyright or trademark law), he shall grant us all rights necessary for the implementation of the contractual agreement. This includes in particular the right to make the corresponding contents accessible to the public. In this context, the customer assures that he possesses all necessary rights to the customer materials provided in order to grant the provider the corresponding rights.

9. Warranty, Defects

(1) The software has the agreed quality and is suitable for the contractually presumed, in the absence of an agreement, normal use. It meets the criterion of practical suitability and has the usual quality for software of this type; however, it is not free of errors. A functional impairment of the program resulting from hardware defects, environmental conditions, faulty operation, etc. is not a defect. An insignificant reduction of the quality remains unconsidered.

(2) There is no guarantee that the software components meet the customer’s requirements, fulfill the intended purpose and cooperate with all other programs selected by the customer, unless interfaces to these programs are explicitly contractually agreed. The customer bears sole responsibility for the selection, installation and use as well as for the intended results.

(3) A defect shall only be deemed to exist if there is a substantial impairment of normal use. We do not assume any warranty for defects caused by

• improper or inadequate maintenance or parameterization
• operation outside the specifications applicable to the product.
• improper preparation and maintenance of the installation site or
• the interaction with hardware or software not approved by us.

A special guarantee, from which rights beyond that could result, is not taken over.

(4) In the case of defects in the delivered software, we shall be obliged and entitled to correct or replace the software within a reasonable period of time. At our discretion, all those parts of the software delivery which show a defect within the limitation period shall be repaired or replaced free of charge, provided that the cause of the defect already existed at the time of transfer of risk. If the rectification fails after three unsuccessful attempts at rectification, the customer may withdraw from the contract or reduce the remuneration, notwithstanding any claims for damages. We may demand reimbursement of expenses if no defect is found and the customer did not lodge the complaint without negligence. The burden of proof lies with the customer.

(5) Insofar as this is possible and reasonable with regard to the effects of the defect, we shall provide an interim solution for circumventing the defect until the defect has been finally remedied.

(6) If a defect is based on our fault, the customer may claim damages under the conditions specified in Section 10.

10. Defects of title

(1) We guarantee that the contractual use of the software by the customer does not conflict with any rights of third parties. In the event of defects in title, we warrant by providing the customer with a legally flawless option to use the software or equivalent software, at the customer’s option.

(2) The customer shall inform us immediately if third parties assert industrial property rights (e.g. copyrights or patent rights) to the software. We support the customer in his defence against attacks by third parties by providing advice and information.

(3) Section 8 paragraph 4 shall apply accordingly.

11. Liability

(1) In the event of damage to property and financial losses caused by negligence, we and our vicarious agents shall only be liable in the event of a breach of a material contractual obligation, but limited in amount to the damage foreseeable and typical of the contract at the time of conclusion of the contract; material contractual obligations are those whose fulfilment characterises the contract and on which the customer may rely. The limitation of our liability does not apply to intentional conduct or gross negligence, to guaranteed characteristics of quality, due to injury to life, body or health.

(2) Despite all care, computer viruses or similar can be transmitted during communication by e-mail. The customer must take appropriate precautions to prevent damage to his systems. E-mails and faxes can be read by third parties. This risk can be reduced by encryption but not completely excluded. The customer accepts this.

(3) The customer exempts us from all claims of third parties with regard to data provided by the customer.

12. Privacy

(1) We may process and store the data relating to the respective contracts insofar as this is necessary for the execution and handling of the contract and as long as we are obliged to store this data on the basis of statutory provisions. We reserve the right to transfer the data to third parties (e.g. agents working for us) if this is necessary for the performance of the contract. We are also entitled to store the data in a failure system or separate failure computer centre. We shall also be entitled to make changes to the structure of the data or the data format in order to eliminate malfunctions. We regularly back up the customer’s data to an external backup server. If and insofar as the customer processes personal data on IT systems for which we are technically responsible, an order data processing agreement shall be concluded.

(2) We reserve the right to transfer the customer’s personal data to credit agencies insofar as this is necessary for the purpose of a credit check, provided that the customer expressly agrees to this in individual cases. We will not pass on personal customer data to third parties without the express consent of the customer, unless we are legally obliged to do so.

(3) Unless otherwise agreed, the customer permits communication by fax and e-mail.

(4) The collection, transmission or other processing of personal data of the customer for purposes other than those mentioned in this section 11 is not permitted.

13. Customer data and exemption of claims of third parties

(1) As a technical service provider, we store content and data for the customer, which the customer enters and stores when using the software and makes available for retrieval. The customer undertakes not to provide us with any criminal or otherwise absolutely or in relation to individual third parties illegal content and data and not to use any programs containing viruses or other malicious software in connection with the software. In particular, he undertakes not to use the software to offer illegal services or goods. With regard to personal data of himself and his users, the customer is the responsible body and must therefore always check whether the processing of such data on the use of the software is based on corresponding permitted acts.

(2) The customer is solely responsible for all contents and processed data used by him or his users as well as for any legal positions required for this. We are not aware of the content of the customer or his users and do not check the content used with the software.

(3) In this connection, the customer undertakes to indemnify us against any liability and any costs, including possible and actual costs of legal proceedings, if claims are made against us by third parties, including employees of the customer personally, as a result of alleged acts or omissions by the customer. We will inform the customer about the claim and, as far as legally possible, give him the opportunity to defend against the asserted claim. At the same time, the customer shall inform us immediately and in full of all information available about the facts which are the subject of the claim.

(4) Any further claims for damages by us shall remain unaffected.

14. applicable law and place of jurisdiction

(1) The law of the Federal Republic of Germany shall apply to the exclusion of the conflict of laws provisions and the UN Convention on Contracts for the International Sale of Goods.

(2). The exclusive place of jurisdiction for all disputes arising from or in connection with this contract shall be Würzburg, Germany. However, we are entitled to sue the customer at his general place of jurisdiction or at any place of action.

(3) If any provision of this Agreement is or becomes invalid, all other provisions of the Agreement remain in force.