Everest Carbon GmbH ("we," "us," or "our", or "Everest") provides measurement devices, software, and related services ("Products") to you ("Customer" or "you"). These Terms and Conditions ("Terms") govern your purchase and use of our Products.
By placing an order for Products ("Order"), you agree to these Terms (an Order and these Terms together the "Agreement"). These Terms are binding and supersede any prior agreements or representations.
These Terms are intended solely for use by business customers and are not applicable to consumers as defined under the German Civil Code. By accepting these Terms, you represent and warrant that you are acting for purposes relating to your trade, business, or profession, and not as a consumer. If you do not meet these requirements, you are not permitted to access or use the Products.
1. Contract Formation:
1.1. A contract between the Customer and Everest is concluded when Everest issues its written order confirmation ("Order Confirmation").
1.2. The Order Confirmation, the Order and these Terms are the entire agreement between Everest and you with respect to its subject matter and supersedes all prior and contemporaneous agreements, understandings, negotiations, and discussions, whether oral or written. In case of a conflict, the Order Confirmation shall take precedence over these terms.
1.3. Any conflicting or additional terms are expressly rejected unless agreed to in writing by Everest.
2. Pricing and Payment:
2.1. Customer will pay Everest the prices specified in the Order in accordance with the terms therein. Order and invoice prices do not include sales, VAT, withholding, use, property, excise, service, transportation, import or export duties, tariffs, or similar taxes and charges ("Taxes") now or hereafter levied, all of which shall be the Customer’s responsibility.
2.2. If Everest is required to prepay transportation costs or Taxes on behalf of the Customer, the Customer agrees to reimburse Everest for such amounts upon receipt of an invoice.
2.3. All fees and payments are non-refundable and fees for hardware shall be paid upfront.
2.4. The Customer shall effect payment for hardware within 14 calendar days of the date of the Order Confirmation. All other fees are due within 30 days upon receipt of a valid invoice. Everest shall invoice the Customer by attaching the invoice to the Order Confirmation or separately.
2.5. Everest shall have no performance obligations (including but not limited to manufacturing, reservation of components, procurement, or shipment) until full payment has been received and cleared in Everest's bank account.
2.6. If the Customer defaults on a due payment, they shall owe default interest in accordance with the statutory provisions. In addition, Everest may demand reasonable lump-sum reimbursement of expenses for reminder and collection costs customary in the industry. The Customer reserves the right to prove that no or significantly lower expenses were incurred. Further damages causally caused by the delay (e.g., verifiable financing or collection costs, legal costs) may be claimed specifically.
3. Products and Software:
3.1. Our Products include sensors, hardware, embedded software ("Software") and related online services. The Software is licensed, not sold, and is provided solely for use with the purchased Products. Everest grants you a non-exclusive, non-transferable, limited license to use the Software solely as necessary for the normal operation of the Products, subject to these Terms.
3.2. As part of the Products you will gain access to certain data visualisation tools hosted by third-party providers. For this purpose, Customer shall provide Everest with its business e-mail address to allow Everest enabling access. Any other data required for creating or using an account with such a third-party service is processed directly by the respective provider under its own terms and conditions.
3.3. You are prohibited from reverse-engineering, modifying, or redistributing the Products.
3.4. Everest Carbon reserves the right to update or modify the Software and services to maintain or enhance functionality, and such updates to the Software may be mandatory.
3.5. Everest Carbon will provide implementation support only as agreed by the parties in writing (email to suffice).
3.6. Everest Carbon reserves all rights not expressly granted to you in these Terms.
4. Data Rights and Usage:
4.1. Customer owns the raw data generated by the Products in their possession ("Device Data") and the output of the Products provided to Customer (other than any Everest Carbon background technology included therein) ("Output").
4.2. Everest may use the Device Data and Output to provide the services described in the Order and these Terms.
4.3. You agree that Everest may process Device Data and Output to improve our Products, services, and technologies and that Everest may use anonymized and aggregated Device Data for benchmarking, research, and commercial purposes.
4.4. Everest will not disclose identifiable Device Data to third parties without your explicit consent, except as required by law.
4.5. Everest is free to use, at its option and without further obligation, any feedback about the Products provided by you.
5. Warranty and Notice of Defects:
5.1. The Customer is obliged to notify Everest of any defects immediately, at the latest within two weeks of becoming aware of them, and to explain the actual circumstances of the defects. In the case of software, the work steps that led to the occurrence of the defect must be described. Individual quality agreements of the parties, which represent a deviation from objective requirements for the Products, take precedence over the objective requirements in the sense of Section 434 para. 3 BGB.
5.2. The Customer has - within ten (10) working days - after provision of the Products to check these for obvious defects that should be immediately recognizable for an average Customer, as well as for functionality, in particular the basic program functions. Defects that are detected or detectable in this case must be reported to Everest within this period. Defects that cannot be detected during the described inspection must be reported within two (2) weeks of their discovery in accordance with the requirements of section 5.1 and 5.3. In the event of a breach of the obligation to inspect and give notice of defects, Everest has no warranty obligation with regard to the defect that was not notified. The inspection and notification obligations according to Section 377 Commercial Code ("HGB") remain otherwise unaffected.
5.3. A complaint can be made in writing or in electronic form by e-mail to jonte@everestcarbon.com.
5.4. Everest will rectify defects in the Products supplied. This is done by way of free rectification of defects through the repair or subsequent delivery. Everest determines the form of defect rectification at its own discretion. Everest is also entitled to provide a new program version of the software or other hardware with at least the same range of functions, unless this is unreasonable for the Customer, for example if this requires more powerful hardware or a different operating system. A renewed instruction by the Customer in a changed program structure or management is not to be regarded as unreasonable.
5.5. If a material defect cannot be remedied within a reasonable period of time or if the remedy of the defect is deemed to have failed for other reasons, the Customer's further rights shall be limited to the respective order concerned. Claims for damages or claims for reimbursement of futile expenses shall be governed by the provisions of section 6.
5.6. The rectification of defects has failed if Everest has been given sufficient opportunity to rectify the defect without the desired success having occurred, if the rectification of defects is impossible, if the rectification of defects has been refused or unreasonably delayed by Everest, if there are justified doubts about the prospects of success of these actions or if the rectification of defects is unreasonable for other reasons.
5.7. In the event of only an insignificant reduction in the suitability of the services provided for contractual use, the Customer shall have no claims for defects.
5.8. Unless expressly agreed otherwise, in particular in the product-specific contractual provisions or the appendices, Everest does not grant any further warranty.
5.9. Claims for defects (including reimbursement of expenses) in respect of new goods delivered by Everest shall become time-barred one (1) year after delivery to the Customer. The statutory limitation periods remain unaffected:
5.9.1 in cases of fraudulent concealment of a defect;
5.9.2. where we have assumed a guarantee of quality;
5.9.3. for claims for damages resulting from injury to life, body or health;
5.9.4. for claims based on intentional or grossly negligent breaches of duty by us, our legal representatives or vicarious agents; and
5.9.5. for claims under the German Product Liability Act.
5.10. Statutory provisions on suspension, recommencement and extension of limitation periods remain unaffected; measures of subsequent performance do not lead to a new start of the limitation period unless required by law. The customer’s statutory obligations to examine the goods and to give notice of defects without undue delay under commercial law remain unaffected.
6. Limitation of Liability:
6.1. Everest will be liable in accordance with the applicable law: (i) for willfulness and gross negligence; (ii) for damage to life, limb, or health; (iii) for breach of a specific guarantee; (iv) for fraudulent misrepresentation and fraudulent concealment of a defect; and (v) in accordance with the German Product Liability Act (Produkthaftungsgesetz).
6.2. Everest will also be liable in the event of a breach of an essential obligation under the Agreement due to ordinary negligence on the part of Everest or any of its representatives, or vicarious or surrogate agents, but limited to the foreseeable, typical damage. Essential obligations are obligations that necessarily need to be fulfilled to enable performance of the Agreement and on which You regularly rely and may reasonably rely.
6.3. Except as set forth in Sections 6.1 and 6.2, Everest's liability is hereby excluded.
6.4. The exclusions and limitations of liability set forth in this Section 6 (Limitation of Liability) equally apply to Everest's legal representatives, or vicarious and surrogate agents.
7. Delivery and Risk of Loss:
7.1. The Products will be delivered to the Customer using the method deemed most appropriate by Everest, unless specific shipping instructions are provided and agreed upon. Delivery timelines are estimates and are not guaranteed.
7.2. Everest is not responsible for delays caused by factors beyond its control.
7.3. The hardware is delivered to the Customer's premises at the Customer's risk and expense. Delivery is ex works or from a collection point specified by Everest (EXW).
7.4. The risk is transferred to the Customer when the goods leave Everest's premises. Everest will only insure the delivery items against damage and loss during transportation on the basis of an express agreement in the Order.
7.5. The Customer undertakes to pay the purchase price agreed in the Order and Everest undertakes to transfer ownership of any Products, subject to the following provisions.
7.6. Any hardware remains the property of Everest until all claims that Everest is entitled to against the Customer now or in the future have been fulfilled, including all balance claims from current accounts. If the Customer behaves contrary to the Agreement - in particular if they are in arrears with the payment of a fee claim - Everest has the right to withdraw from the Agreement after Everest has set a reasonable deadline for performance. If Everest takes back the Hardware, this already constitutes a withdrawal from the Agreement. The transportation costs incurred for the return are borne by the Customer. It also constitutes a withdrawal from the Agreement if Everest seizes the hardware. Hardware taken back by Everest may be utilized. The proceeds of the realization will be offset against the amounts owed by the Customer to Everest, after deducting a reasonable amount for the costs of the realization.
7.7. If the Customer requests this, Everest is obliged to release the securities to which Everest is entitled insofar as their realizable value exceeds the value of Everest's outstanding claims against the Customer by more than 10%. Everest may, however, select the securities to be released.
8. Third-Party Components:
8.1. Our Products may include third-party components or software ("Third-Party Components").
8.2. Except as otherwise expressly identified by Everest, all Third-Party Components are redistributed to Customer under the terms and conditions under which they were made available to Everest and, accordingly, any warranties, indemnities, and liabilities relating to the use of such Third-Party Components run directly from the licensor of such Third-Party Components to Customer.
8.3. In the case of defects in components from other manufacturers that Everest cannot remedy for licensing or factual reasons, Everest will, at its discretion, assert its warranty claims against the manufacturers and suppliers for the account of the Customer or assign them to the Customer. Warranty claims against Everest exist for such defects under the other conditions and in accordance with the Terms only if the judicial enforcement of the aforementioned claims against the manufacturer and supplier was unsuccessful or, for example, due to insolvency, is futile. For the duration of the legal dispute, the limitation period for the Customer's relevant warranty claims against the seller shall be suspended.
9. Returns and Cancellations:
9.1. Returns are accepted only for manufacturing defects covered under the warranty.
9.2. Customers must initiate returns within 30 days of delivery by providing written notice to Everest.
9.3. Everest reserves the right to inspect the returned Products to verify the defect before processing any repair, replacement, or refund, as determined at our sole discretion.
9.4. Orders cannot be canceled once confirmed.
9.5. Customers are responsible for accepting delivery of the Products.
10. Governing Law and Dispute Resolution:
10.1. These Terms are governed by the laws of the Federal Republic of Germany, excluding its conflict of law principles.
10.2. The exclusive place of jurisdiction for all disputes arising out of, or in connection with, the Agreement is, to the extent legally permissible, Berlin, Germany.
11. Changes to Terms:
11.1 Everest reserves the right to amend this Agreement, provided that the amendment is reasonable for the Customer and that Everest takes the Customer's legitimate interests into account within the scope of the amendment. Changes to the subject matter of the Agreement and the main performance obligations that would lead to a change in the nature of the Agreement as a whole are excluded from the right to amend.
11.2 An amendment to the Agreement by Everest shall be justified, in particular, if Everest is obliged to ensure that Products comply with Applicable Law, especially if the applicable legal situation changes, or if Everest is complying with a court order or an official decision through the amendment.
11.3 An amendment to the Agreement initiated by Everest requires that Everest notify the Customer of the intended amendment via email, in-app notification, or website posting at least four (4) weeks before the proposed date of entry into force. The Customer shall be deemed to have given consent if the Customer has not notified Everest of its rejection prior to the proposed date of entry into force of the amendment. Everest shall be obliged to expressly draw the Customer's attention to the effect of consent by its conduct within the scope of a change request and to separately inform the Customer of the changes in a highlighted manner, e.g., by means of a synoptic comparison, by highlighting the changes in bold, or by means of an addendum to this Agreement.
11.4 If the Customer objects to the new provisions of the Agreement, Everest shall be entitled to terminate the Agreement without notice.
11.5 If the term of an Agreement automatically renews, the terms of this Agreement, the Customer agrees that the latest version of the Agreement will apply to the respective subscription. If the Customer does not agree to the terms of this Agreement or any renewed version, the Customer may terminate the respective subscription.
12. Export Controls:
12.1. The Products may be subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations.
12.2. Customer shall not, directly or indirectly, export, re-export, or release the Products to any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation, in each case without Everest’s prior written consent.
13. Miscellaneous
13.1. No Party may assign the Terms except upon the prior written consent of the respective other Party. Notwithstanding the foregoing, Everest may assign the Agreement without such consent in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of Everest's assets or voting securities. Any attempt to transfer or assign the Agreement except as expressly authorized under this Section 13.1 will be null and void.
13.2. Neither Party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to events that are beyond the reasonable control of such Party and could not be avoided through the exercise of reasonable care and diligence, including, but not limited to, any strike, blockade, war, act of terrorism, riot, natural disaster, or failure or diminishment of power or of telecommunications or data networks or services ("Force Majeure"). In the event that Force Majeure occurs and persists for a period of thirty (30) days, the Customer may terminate this Agreement by providing written notice to Everest. In the event Everest's performance hereunder is affected by Force Majeure, the fees to be paid by Customer will be equitably adjusted to reflect the period of nonperformance.