Terms and Conditions

1. Gene­ral

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.


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 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.


7. War­ran­ty

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.

11. 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 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.