Terms and Conditions

1. General

These General Terms and Conditions of Business, Delivery, Offers and Payment apply to all delivery contracts and to the entire business relationship between NetCo Professional Services GmbH, hereinafter referred to as NETCO, and the buyer. Terms and conditions other than these, in particular the buyer's general terms and conditions, do not apply, even if NETCO does not expressly object to them. The buyer accepts 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 (BGB) and the German Commercial Code (HGB) apply.

2. Conclusion of contract

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

The written order confirmation is replaced by the invoice if the order is executed immediately by NETCO. Offers by NETCO are non-binding 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 insurer refuses to insure the purchase price against the buyer's insolvency or comparable circumstances, NETCO is entitled to withdraw from the order. These General Terms and Conditions form part of every offer made by NETCO.

3. Prices

Prices are quoted in euros, excluding packaging, plus the statutory value added tax applicable on the day of invoicing and 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 to the delivery date. If an expected delivery date indicated by NETCO is delayed to an extent that is unreasonable for the buyer, the buyer has the right to set NETCO a reasonable grace period and, after this period has expired without result, to withdraw from the purchase contract in whole or in part.

In the event of withdrawal, further claims are excluded; claims for damages due to non-performance or 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 is extended by a reasonable period in the event of operational disruptions, strikes, lockouts, non-delivery by the upstream supplier and in other cases beyond NETCO's control. NETCO will, however, notify the customer if it becomes aware of circumstances that extend the delivery date agreed in writing. Delivery is made for the buyer's account. Upon handover of the goods to the carrier, the risk of accidental loss and deterioration of the goods passes to the buyer. NETCO undertakes to take out transport insurance for the goods to the place of delivery specified by the buyer in the amount of the purchase price, unless the buyer expressly waives this transport insurance. The costs of the transport insurance are borne by the buyer. Partial deliveries by NETCO are permitted.

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 title passes, the buyer may neither pledge the goods nor transfer them to third parties as security. Any assignment of the buyer's rights to third parties requires NETCO's written consent. If the goods delivered by NETCO under retention of title are seized or confiscated, the buyer is obliged to notify NETCO immediately. The buyer shall bear all costs incurred in connection with the release of the goods.

The buyer is entitled to sell the goods in the ordinary course of business provided that the buyer is not in default with the fulfilment of its obligations towards NETCO and no other agreements prevent this. The buyer bears the risk of loss, damage or wear and tear during the period of retention of title.
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 termination occurs for reasons that are not NETCO's responsibility, the buyer is obliged to pay the full purchase price for the delivery items already produced and services already rendered at the time the termination is received. For products not yet manufactured or services not yet rendered at that time, the buyer owes NETCO a lump-sum compensation of 60% of the purchase price if the termination occurs within a period of 30 days before the expected delivery date.

In all other cases, the buyer owes NETCO a lump-sum compensation of 40% of the purchase price, unless the buyer proves that the damage is lower. NETCO is entitled to claim the actual, verifiable damage incurred instead of the lump-sum compensation rates. If the customer defaults on payments or on the fulfilment of other obligations under the contract with NETCO, suspends payments, or if an application is made to open bankruptcy or composition proceedings against the customer's assets or those of its legal representatives, NETCO is entitled to terminate the contract with immediate effect and to claim damages for non-performance.

7. Warranty

NETCO warrants that the delivered goods are free from material and workmanship defects that cancel or reduce their value or suitability for ordinary use or for the use assumed under the contract, and that the goods have any characteristics expressly warranted in the order confirmation, unless otherwise provided below. The warranty period is governed by the statutory provisions or must be agreed separately. It begins in the month of receipt of the goods or services.

The provisions of the purchase contract law of the German Civil Code (BGB) apply.

In the case of justified notices of defects, NETCO provides warranty for goods by remedying material and workmanship defects through repair in its own workshop or by replacing the affected parts. If the rectification fails or if the replacement delivery is defective, the buyer has the right to demand a reduction in price or rescission of the contract.

If the buyer does not agree to the fulfilment of any of the above warranty claims by NETCO, any claims for rescission, price reduction or damages, as well as claims for reimbursement of assembly and disassembly costs and for consequential damages, shall lapse. NETCO is not liable for indirect or direct damage incurred by the buyer in connection with defects in the purchased item, unless NETCO is guilty of intent or gross negligence in this respect.

In the case of defects in development services, the buyer must report them in a comprehensible manner. The buyer shall support NETCO in remedying the defects to the extent reasonable. This applies in particular to the handover of the defective program, the provision of operating environments and the installation of updates. Service contract law applies to the delivery of software. If software developed by NETCO does not correspond to the use assumed under the contract and corresponding deviations are reported in writing by the customer, NETCO is obliged to rectify the defects within the statutory or contractually agreed period from delivery.

Product deviations in the sense of market innovations are not considered defects. The customer is only entitled to maintenance and adaptation of the software if the customer has concluded a maintenance contract with NETCO. No warranty is assumed for software not produced by NETCO. In this respect, the rights evident from the respective licence conditions apply.

8. Liability and damages

Claims for damages against NETCO, including its vicarious agents — regardless of the legal basis — that presuppose slight negligence 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 two values, order value or € 100,000; liability for lost profit is excluded.

The customer may demand more extensive 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 was caused by improper use of the product supplied by NETCO. The exemption from liability furthermore does not apply in the event that NETCO manufactures a product according to the customer's instructions without knowledge of the end product or without the possibility of influencing its use. There is no exemption from liability towards the buyer insofar as a ground for exclusion of liability pursuant to Article 7 of the EC Directive applies in favour of NETCO.

9. Licence and copyright

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

The reproduction of NETCO software is only permitted for in-house use or for backup purposes. The respective copyright provisions apply to software not produced by NETCO.

10. Export and re-export

The customer undertakes to export/re-export goods supplied by NETCO only in compliance with the relevant EC provisions and the regulations of German foreign trade law. It is the customer's responsibility to obtain knowledge of these areas of law.

11. Place of jurisdiction

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

12. Final provisions

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

If a buyer falls within the personal scope of protection of the Data Protection Act, the buyer consents to the processing of their 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 replaced by a provision that comes as close as possible to the economic intent of the invalid provision and corresponds to the interests of the parties involved.

The limitations 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 the contract is concluded. The buyer is indemnified against liability under the EC Product Liability Directive insofar as the buyer is held liable for damages caused by the defectiveness of a product manufactured by NETCO.

Removing or eliminating the original technical markings as well as unauthorised interference with goods and services may result in the warranty becoming void. Insofar as NETCO sells used hardware, any warranty for this is excluded unless a deviating agreement has been made in individual cases. NETCO assumes no warranty for defects in the purchased item caused by chance, normal wear and tear or improper handling of any kind by the buyer or its agents. The customer hereby assigns to NETCO as security its claims arising from the resale of the reserved goods in the amount of the respective net invoice value of the reserved goods; NETCO hereby accepts this assignment. NETCO is entitled to assign and sell its claims from deliveries and services to a bank for financing purposes.