GTC

1. Gene­ral information

The­se Gene­ral Terms and Con­di­ti­ons of Busi­ness, Deli­very, Offer and Pay­ment shall app­ly to all deli­very con­tracts and to the ent­i­re busi­ness rela­ti­ons­hip bet­ween Net­Co Pro­fes­sio­nal Ser­vices GmbH, her­ein­af­ter refer­red to as NETCO, and the purcha­ser. Terms and con­di­ti­ons other than the­se, in par­ti­cu­lar gene­ral terms and con­di­ti­ons of the buy­er, shall not app­ly, even if NETCO does not express­ly object to them.The purcha­se ack­now­led­ges the­se Gene­ral Terms and Con­di­ti­ons of Busi­ness at the latest upon accep­t­ance of the goods. In all other respects, the rele­vant pro­vi­si­ons of the Ger­man Civil Code (Bür­ger­li­ches Gesetz­buch) and the Ger­man Com­mer­cial Code (HGB) shall apply.

 

2. Con­clu­si­on of contract

All con­trac­tu­al nego­tia­ti­ons bet­ween the par­ties, agree­ments made by tele­pho­ne or other arran­ge­ments, in par­ti­cu­lar amend­ments to the con­trac­tu­al agree­ments, must be in wri­ting and, inso­far as they con­tain devia­ti­ons from the ori­gi­nal­ly agreed purcha­se con­tract, must be appro­ved in wri­ting by NETCO. Orders pla­ced by the buy­er with NETCO shall only beco­me legal­ly effec­ti­ve upon writ­ten order con­fir­ma­ti­on by NETCO.

The writ­ten order con­fir­ma­ti­on is repla­ced by the invoice if the order is exe­cu­t­ed by NETCO immedia­te­ly. Offers made by NETCO are sub­ject to chan­ge unless the bin­ding natu­re of the offer is noted in wri­ting. In par­ti­cu­lar, NETCO is not obli­ged to accept a purcha­se offer if the order is pla­ced on the basis of a cir­cu­lar and/or a pri­ce list. As a rule, NETCO insu­res all con­trac­tu­al ser­vices with a tra­de credit insu­rer. If the lat­ter refu­ses to insu­re the purcha­se pri­ce against insol­ven­cy of the buy­er or com­pa­ra­ble cir­cum­s­tan­ces, NETCO is enti­t­led to with­draw from the order. The pre­sent Gene­ral Terms and Con­di­ti­ons are an inte­gral part of every offer made by NETCO.

 

3. Pri­ces

The pri­ces are in Euro, exclu­ding pack­a­ging, plus the sta­tu­to­ry value added tax valid on the day of invoi­cing, as well as the sta­tu­to­ry deli­very charges.

 

4. Deli­very

Deli­very dates sta­ted by NETCO are gene­ral­ly non-bin­ding unless fixed dates have been express­ly agreed in wri­ting in indi­vi­du­al cases. In this case, NETCO under­ta­kes to noti­fy the buy­er immedia­te­ly in wri­ting of any expec­ted delays in the deli­very date. If an expec­ted deli­very date announ­ced by NETCO is unre­a­son­ab­ly delay­ed for the buy­er, the buy­er shall have the right to set NETCO a rea­son­ab­le grace peri­od and to with­draw from the purcha­se con­tract in who­le or in part after the fruit­less expi­ry of this period.

In the event of with­dra­wal, fur­ther claims are exclu­ded; claims for dama­ges due to non-per­for­mance or due to delay are also exclu­ded, unless a legal repre­sen­ta­ti­ve or vica­rious agent of NETCO is guil­ty of gross negli­gence or intent in this respect.A deli­very date agreed in wri­ting shall be exten­ded appro­pria­te­ly in each case in the event of ope­ra­tio­nal dis­rup­ti­ons, strike, lock­out, non-deli­very by the upstream sup­plier and in other cases that lie out­side the sphe­re of influ­ence of NETCO. NETCO shall, howe­ver, noti­fy the cus­to­mer if it beco­mes awa­re of cir­cum­s­tan­ces which extend the deli­very date agreed in writing.Delivery shall be made for the account of the buy­er. Upon han­do­ver of the goods to the car­ri­er, the risk of acci­den­tal loss and dete­rio­ra­ti­on of the goods shall pass to the buy­er. NETCO under­ta­kes to take out trans­port insuran­ce for the goods to the place of han­do­ver spe­ci­fied by the purcha­ser in the amount of the cover of the purcha­se pri­ce, unless the purcha­ser express­ly wai­ves the con­clu­si­on of this trans­port insuran­ce. The cos­ts of the trans­port insuran­ce shall be bor­ne by the buy­er. Par­ti­al deli­ve­ries by NETCO are permissible.

 

5. Reten­ti­on of tit­le, pled­ging, assignment

NETCO retains tit­le to the deli­ve­r­ed goods and ser­vices until full pay­ment of the purcha­se pri­ce inclu­ding any default inte­rest and legal cos­ts. Until trans­fer of tit­le, the buy­er may neit­her pledge the goods nor assign them as secu­ri­ty to third par­ties. An assign­ment of the purchaser’s rights to third par­ties requi­res the writ­ten con­sent of NETCO. If the goods deli­ve­r­ed under reten­ti­on of tit­le by NETCO are sei­zed or con­fis­ca­ted, the buy­er is obli­ged to noti­fy NETCO immedia­te­ly. He shall bear all cos­ts incur­red in con­nec­tion with the release of the goods.

The buy­er is enti­t­led to sell the goods in the nor­mal cour­se of busi­ness pro­vi­ded that he is not in arre­ars with the ful­film­ent of his obli­ga­ti­ons towards NETCO and no other agree­ments are in con­flict with this. The risk of loss, dama­ge or wear and tear during the peri­od of reten­ti­on of tit­le shall be bor­ne by the buy­er.
If the buy­er com­bi­nes the goods with other items, NETCO acqui­res co-owners­hip of the com­bi­ned items in pro­por­ti­on to the value of the other items com­bi­ned with NETCO’s goods.

6 With­dra­wal, termination

Unless other­wi­se agreed, the buy­er is enti­t­led to ter­mi­na­te the purcha­se con­tract con­clu­ded with NETCO at any time. If the ter­mi­na­ti­on takes place for rea­sons that do not fall wit­hin NETCO’s sphe­re of respon­si­bi­li­ty, the buy­er shall be obli­ged to pay the full purcha­se pri­ce for the deli­very items alrea­dy pro­du­ced and ser­vices alrea­dy ren­de­red at the time of rece­i­pt of the ter­mi­na­ti­on noti­ce. For pro­ducts not yet manu­fac­tu­red or ser­vices not yet ren­de­red at that time, the buy­er shall owe NETCO a lump-sum com­pen­sa­ti­on in the amount of 60% of the purcha­se pri­ce if the ter­mi­na­ti­on takes place wit­hin a peri­od of 30 days pri­or to the expec­ted deli­very date.

In all other cases, the buy­er shall owe NETCO a lump-sum com­pen­sa­ti­on in the amount of 40% of the purcha­se pri­ce, unless the buy­er pro­ves a les­ser dama­ge. NETCO is enti­t­led to demand the actu­al demons­tra­ble dama­ge incur­red ins­tead of the flat-rate com­pen­sa­ti­on. If the cus­to­mer defaults on his pay­ments or the ful­film­ent of other obli­ga­ti­ons ari­sing from the con­tract with NETCO, if he cea­ses to make pay­ments or if an app­li­ca­ti­on for the insti­tu­ti­on of bankrupt­cy or com­po­si­ti­on pro­cee­dings is filed against his assets or tho­se of his legal repre­sen­ta­ti­ves, NETCO is enti­t­led to ter­mi­na­te the con­tract with immedia­te effect and to claim dama­ges for non-performance.

 

7. War­ran­ty

NETCO pro­vi­des a war­ran­ty in the event that the deli­ve­r­ed goods do not have any mate­ri­al or pro­ces­sing defects that nul­li­fy or redu­ce the value or the sui­ta­bi­li­ty for the usu­al use or the use assu­med under the con­tract and that the goods have any pro­per­ties express­ly war­ran­ted in the order con­fir­ma­ti­on, unless other­wi­se sti­pu­la­ted below. The war­ran­ty peri­od shall be gover­ned by the sta­tu­to­ry pro­vi­si­ons or must be agreed sepa­r­ate­ly. It begins in mon­ths from rece­i­pt of the goods or service.

The pro­vi­si­ons of the Ger­man Civil Code (BGB) law on con­tracts of sale shall apply.

In the event of jus­ti­fied noti­ces of defect, NETCO shall pro­vi­de war­ran­ty for goods in such a way that it rec­ti­fies mate­ri­al and pro­ces­sing defects by repair in its own work­shop or by repla­ce­ment of the affec­ted parts. If the repair fails or if the repla­ce­ment deli­very is defec­ti­ve, the buy­er has the right to demand a reduc­tion in pri­ce or can­cel­la­ti­on of the contract.

Inso­far as the buy­er does not agree to the ful­film­ent of any of the abo­ve war­ran­ty claims by NETCO, his pos­si­ble claims to rescis­si­on, reduc­tion or dama­ges as well as claims to pos­si­ble com­pen­sa­ti­on for assem­bly and dis­as­sem­bly cos­ts as well as for con­se­quen­ti­al dama­ges shall lap­se. NETCO shall not be liable for any direct or indi­rect dama­ge suf­fe­red by the buy­er in con­nec­tion with defects in the purcha­sed goods, unless NETCO is guil­ty of intent or gross negli­gence in this respect.

In the event of defects in deve­lo­p­ment ser­vices, the purcha­ser must report the­se in a com­pre­hen­si­ble man­ner. He shall sup­port NETCO in the eli­mi­na­ti­on of defects wit­hin the scope of what is rea­son­ab­le. This app­lies in par­ti­cu­lar to the han­do­ver of the defec­ti­ve pro­gram­me, the pro­vi­si­on of ope­ra­ting envi­ron­ments and the instal­la­ti­on of updates. Ser­vice con­tract law app­lies to the deli­very of soft­ware. Inso­far as soft­ware deve­lo­ped by NETCO does not cor­re­spond to the con­trac­tual­ly assu­med use and cor­re­spon­ding devia­ti­ons are noti­fied by the cus­to­mer in wri­ting, NETCO is obli­ga­ted to reme­dy the defect wit­hin the legal­ly or con­trac­tual­ly agreed peri­od from delivery.

Errors do not inclu­de pro­duct devia­ti­ons in the sen­se of mar­ket inno­va­tions. The cus­to­mer shall only be enti­t­led to the main­ten­an­ce and adap­t­ati­on of the soft­ware if he has con­clu­ded a main­ten­an­ce con­tract with NETCO. No war­ran­ty shall be assu­med for soft­ware not manu­fac­tu­red by NETCO. In this respect, the rights appa­rent from the respec­ti­ve licen­se con­di­ti­ons shall apply.

 

8 Lia­bi­li­ty and compensation

Claims for dama­ges against NETCO inclu­ding its vica­rious agents — irre­spec­ti­ve of the legal grounds — which requi­re slight negli­gence shall only exist if a mate­ri­al con­trac­tu­al obligation/cardinal obli­ga­ti­on has been breached. In this case, claims for dama­ges are limi­ted to the hig­her of the order value or € 100,000; lia­bi­li­ty for loss of pro­fit is excluded.

The cus­to­mer may demand fur­ther lia­bi­li­ty against pay­ment of a risk surcharge.

The exemp­ti­on from lia­bi­li­ty does not app­ly in the event that the defec­ti­ve­ness of the customer’s pro­duct has ari­sen due to the impro­per use of the pro­duct sup­plied by NETCO. Fur­ther­mo­re, exemp­ti­on from lia­bi­li­ty does not app­ly in the event that NETCO manu­fac­tures a pro­duct on the inst­ruc­tions of the cus­to­mer without know­ledge of the end pro­duct or without the pos­si­bi­li­ty of influ­en­cing its use. The­re shall be no release from lia­bi­li­ty vis-à-vis the purcha­ser inso­far as a ground for exclu­si­on of lia­bi­li­ty pur­suant to Arti­cle 7 of the EC Direc­ti­ve app­lies in favour of NETCO.

9. Licen­sing and copyrights

The copy­rights as well as rights of use and explo­ita­ti­on to the sold pro­duct shall remain with NETCO irre­spec­ti­ve of deli­very to the buy­er, unless other­wi­se agreed. The repro­duc­tion of indi­vi­du­al deli­very parts or sys­tems of NETCO requi­res the writ­ten con­sent of NETCO.

The repro­duc­tion of NETCO soft­ware is only per­mit­ted for in-house use or for back­up pur­po­ses. For soft­ware not pro­du­ced by NETCO, the respec­ti­ve copy­right regu­la­ti­ons apply.

10. Export and re-export

The cus­to­mer under­ta­kes to expor­t/­re-export goods deli­ve­r­ed by NETCO only if the rele­vant EC pro­vi­si­ons and the pro­vi­si­ons of the Federal Ger­man For­eign Tra­de and Pay­ments Law are com­plied with. The cus­to­mer is respon­si­ble for obtai­ning know­ledge of the­se legal areas.

11. Place of jurisdiction

The place of juris­dic­tion for all dis­pu­tes ari­sing from con­tracts shall be Wer­ni­ge­ro­de, inso­far as this is effec­tively agreed.

12. Final pro­vi­si­ons

The legal rela­ti­ons bet­ween the par­ties shall be gover­ned exclu­si­ve­ly by the law of the Federal Repu­blic of Germany.

If a buy­er falls wit­hin the per­so­nal pro­tec­tion scope of the Data Pro­tec­tion Act, he agrees to the pro­ces­sing of his data inso­far as it is necessa­ry for the pur­po­se of the con­tract. If a pro­vi­si­on of the­se Gene­ral Terms and Con­di­ti­ons of Busi­ness, Sale and Deli­very beco­mes inva­lid, it shall be deemed to be repla­ced by a pro­vi­si­on that comes as clo­se as pos­si­ble to the mea­ning of the inva­lid pro­vi­si­on in terms of the eco­no­mic result and cor­re­sponds to the inte­rests of the par­ties involved.

The restric­tions do not app­ly inso­far as the dama­ge is cove­r­ed by NETCO’s public lia­bi­li­ty insuran­ce and the insu­rer pays. NETCO under­ta­kes to main­tain the cover exis­ting at the time of con­clu­si­on of the con­tract. The buy­er shall be released from lia­bi­li­ty pur­suant to the EC Direc­ti­ve on Pro­duct Lia­bi­li­ty to the extent that he is held liable for dama­ges due to dama­ge cau­sed by the defec­ti­ve­ness of a pro­duct manu­fac­tu­red by NETCO.

Remo­val or eli­mi­na­ti­on of the ori­gi­nal tech­ni­cal mar­kings as well as unaut­ho­ri­sed inter­fe­rence with goods and ser­vices may inva­li­da­te the war­ran­ty. Inso­far as NETCO sells used hard­ware, any war­ran­ty for this is exclu­ded unless other­wi­se agreed in the indi­vi­du­al case. NETCO shall not assu­me any war­ran­ty for defects of the purcha­sed item that have ari­sen by chan­ce, nor­mal wear and tear or impro­per hand­ling of any kind by the purcha­ser or his agents. The cus­to­mer her­eby assigns his claims from the trans­fer of the reser­ved goods in the amount of the respec­ti­ve net invoice value of the reser­ved goods as secu­ri­ty to NETCO; NETCO her­eby accepts this assign­ment. NETCO is enti­t­led to assign and sell its receiva­bles from deli­ve­ries and ser­vices to a bank for finan­cing purposes.