Terms and Conditions
These 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 purchaser, shall not apply, even if NETCO does not expressly object to them.The purchase acknowledges these General Terms and Conditions 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 purchaser with NETCO shall only become legally effective upon written order confirmation by NETCO.
The written order confirmation shall be 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 obligated 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. These 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 that extend the delivery date agreed in writing. Delivery shall be made for the account of the purchaser. Upon handover of the goods to the carrier, the risk of accidental loss and deterioration of the goods shall pass to the purchaser. 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, pledge, 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 purchaser may neither pledge the goods nor assign them to third parties as security. Any assignment of the purchaser’s rights to third parties shall require the written consent of NETCO. If the goods delivered under retention of title by NETCO are seized or impounded, 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 performance of his obligations towards NETCO and no other agreements are in conflict therewith. The risk of loss, damage or wear during the period of retention of title shall be borne by the purchaser.
If the buyer combines the goods with other items, NETCO shall acquire 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 occurs for reasons that do not fall within NETCO’s sphere of responsibility, the buyer shall be obligated to pay the full purchase price for the delivery items already produced and services rendered at the time of receipt of the termination notice. For products not yet produced or services 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 occurs 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 lump-sum compensation rates. If the customer defaults on his payments or the performance of other obligations under the contract with NETCO, suspends his payments or if an application is filed for the institution of bankruptcy or composition proceedings against his assets or those of his legal representatives, NETCO shall be entitled to terminate the contract with immediate effect and to claim damages for non-performance.
NETCO provides warranty in the event that the delivered goods do not have any material or processing defects that cancel or reduce the value or suitability for the usual or contractually assumed use 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) sales contract law shall apply.
In the event of justified notices of defect, NETCO shall provide warranty for goods in such a way that it shall remedy 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 purchaser has the right to demand a reduction in price or cancellation of the contract.
If the buyer does not agree to the fulfillment of any of the above warranty claims by NETCO, his possible claims for rescission, reduction or damages as well as claims for possible compensation for assembly and disassembly costs as well as for consequential damages shall lapse. NETCO shall not be liable for direct and indirect damages of the purchaser in connection with defects of 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 transfer of the defective program, the provision of operating environments and the installation of updates. Service contract law shall apply to the delivery of software. If software developed by NETCO does not comply with the contractually required 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 shall be limited to the higher of the contract value or € 100,000; liability for loss of profit shall be excluded.
The customer may demand further liability against payment of a risk surcharge.
The exemption from liability shall not apply in the event that the defectiveness of the customer’s product was caused by the improper use of the product supplied by NETCO. The exemption from liability shall further 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 favor 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 purchaser, unless otherwise agreed. The reproduction of individual delivery parts or systems of NETCO requires the written consent of NETCO.
Duplication 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.
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 are exclusively subject to the law of the Federal Republic of Germany.
If a purchaser falls under 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 business liability insurance and the insurer pays. NETCO undertakes to maintain the coverage existing at the time of conclusion of the contract. The buyer shall be released from liability under 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 unauthorized interference with goods and services may void 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 goods that are caused by accident, normal wear and tear or improper handling of any kind by the purchaser or his agents. The customer hereby assigns to NETCO its claims arising from the transfer of the reserved goods in the amount of the respective net invoice value of the reserved goods as security; NETCO hereby accepts this assignment. NETCO is entitled to assign and sell its receivables from deliveries and services to a bank for financing purposes.