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.
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.
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.
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.