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Terms & Conditions

TermsGeneral Terms and Conditions, November 2006, V4
General Terms and Conditions of Telematik und Telemetrie Netcom Dataservice und Vertriebs AG for Hardware and Software

I. Applicability

1. The General Terms and Conditions shall be applicable to all transactions concluded by Telematik und Telemetrie Netcom Dataservice und Vertriebs AG (hereinafter referred to as "T+T NETCOM") involving movable goods, in particular to all types of transaction involving hardware, hereinafter referred to overall as “devices”, and the operating software sold by T+T NETCOM and user software, the latter hereinafter referred to overall as “software”. The General Terms and Conditions shall further apply for the delivery of the operating software. They shall also apply for future transactions without this having to be expressly agreed. If individual provisions of the General Terms and Conditions are inoperative in non-commercial transactions, this shall not affect their applicability in relation to businesspersons.
2. T+T NETCOM’s General Terms and Conditions apply exclusively; T+T NETCOM does not recognize any conditions of the customer opposed to or deviating from the General Terms and Conditions, unless T+T NETCOM has expressly agreed in written form to their applicability. T+T NETCOM’s General Terms and Conditions shall also apply when T+T NETCOM, in the knowledge of conditions of the customer opposed to or deviating from the General Terms and Conditions, executes delivery to the customer without reservations.
3. Agreements on hardware, and operating software on one hand side and those on user software (software) on the other hand side constitute two legally autonomous and mutually independent contracts, even if they have been concluded within the framework of a harmonized purchase order and/or have been specified in a harmonized order confirmation. All general arrangements laid down in these General Terms and Conditions not relating specifically to a product category shall apply both for the devices, the operating software and for the software. Legal defects and/or defaults in performance in the one contractual relationship shall not affect the other unless the explicitly expressed will of the customer when placing the purchase order had been directed on acquiring a harmonized purchase object.
4. If separate guarantee provisions should apply for hardware, operating software and/or software, their contents shall take precedence over the General Terms and Conditions.

II. Quotations

1. Quotations from T+T NETCOM are subject to alteration, unless anything to the contrary has been explicitly agreed.
2. Illustrations and drawings, plus technical data in quotations, prospectuses or other informational material constitute approximate values only, and do not need to conform to the latest status involved. They shall not form grounds for warranted qualities nor are they relevant for contractual determination of the deliveries and services concerned. In regard to changes due to technical progress, T+T NETCOM shall be entitled to replace or modify specifications of the devices ordered prior to delivery if this does not entail any significant change in the function of the devices concerned.
3. Purchase orders shall not become binding for T+T NETCOM until a written order confirmation has been issued, unless the order concerned has already been executed by T+T NETCOM.
4. Prices specified by T+T NETCOM are net prices. They contain neither value added tax nor other taxes, customs duties, fees and governmental levies connected with the purchase of products by the customer.
5. T+T NETCOM reserves the right to alter the prices appropriately if after the agreement has been signed cost reductions or cost increases occur, in particular due to collectively bargained wage agreements or changes in material prices. T+T NETCOM shall provide the customer with appropriate evidence on request. If the list price applying on the date of delivery lies above the price agreed with the customer, this higher list price shall apply if delivery takes place later than four months after the agreed delivery date for reasons within the customer’s responsibility, unless the invoice has already been issued by reason of the default in acceptance and has been paid by the customer. In non-commercial transactions, T+T NETCOM reserves the right to increase or reduce the prices in accordance with cost changes occurring, particularly due to collectively bargained wage agreements or changes in material prices, in the case of contracts with an Agreed delivery time of more than four months; if the increase is more than 5 % of the price agreed, the customer shall be entitled to dissolve (terminate or withdraw from) the contract.
6. The prices are to be understood exclusive of packing and exclusive of postage, freight and insurance for transporting the devices from their place of storage to the customer.

III. Delivery

1. Delivery shall be made at the customer’s expense from the domestic production or storage location. When the devices are handed over to a carrier or some other person, company or institution entrusted with the transport, risk shall pass to the customer. T+T NETCOM shall be entitled, but without explicit written instructions from the customer not obligated, to insure the transport at the customer’s expense.
2. Delivery times and dates specified in the order shall not be construed as fixed dates. If preparatory actions by the customer are necessary for performing the delivery, the delivery time shall not commence until these actions have been completed.
3. The customer shall be obligated on request to confirm in writing prior to delivery his willingness to accept the goods and completion of any required preparatory actions. If he refuses to do so, or if he declines acceptance of the programs delivered, this shall be construed as default in acceptance.
4. T+T NETCOM shall be entitled to make part-deliveries.
5. Erection and connection of the devices to the power supply shall be invoiced separately in accordance with the rates of the currently valid price list for service work. Creation of the requisite electrical connections and the other installation preconditions in accordance with the currently valid installation guidelines is the customer’s obligation.
6. In the event of default of delivery, the customer shall have a right of rescission under the statutory provisions. The requisite fixing of a final deadline must be made in writing, and grant a period of at least four weeks. T+T NETCOM shall be liable under the statutory provisions if the default of delivery is entailed by an intentional or grossly negligent breach of contract on the part of T+T NETCOM; culpability of representatives or vicarious agents of T+T NETCOM shall be ascribed to T+T NETCOM. If default of delivery is not attributable to an intentional breach of contract on the part of T+T NETCOM, then T+T NETCOM’s liability for damages shall be limited to the foreseeable typically occurring damage. T+T NETCOM shall be liable under the statutory provisions, insofar as the default of delivery which is T+T NETCOM’s responsibility is attributable to culpable infringement of an essential contractual duty; in this case, however, the liability for damages shall be limited to the foreseeable typically occurring damage. If the default of delivery is merely attributable to a culpable infringement of a non-essential contractual duty, the customer shall be entitled to demand lump-sum compensation for damage due to delay amounting to 3 % of the delivery value for each completed week of delay, maximally, however, not more than 15 % of the delivery value.
7. If the customer commits default of acceptance or if he infringes other duties to cooperate, T+T NETCOM shall be entitled to demand compensation for the loss or damage incurred for this reason by T+T NETCOM, including any additional expenses. The right to assert further claims is reserved. In the event of default of acceptance on the part of the customer, T+T NETCOM can schedule a new delivery time at its own discretion, taking its other delivery obligations into account. Insofar as the preconditions of Sentence 1 apply, the risk of an accidental loss or an accidental impairment of the purchased goods passes to the customer at the moment at which the latter is in default of acceptance or in debtor’s delay.

IV. Reservation of title

1. Title in the goods delivered shall be reserved until all claims arising from the business relationship with the customer have been paid in full. If the customer is not a businessperson, then the goods delivered shall remain the property of T+T NETCOM until all payment obligations arising from the contract have been met in full.
2. The customer shall be entitled to sell the devices, operating software and the software within the framework of his proper business operations, if they have been purchased for the purpose of resale and the customer likewise agrees reservation of title with the third party concerned. Pledging and assignment as security shall not be permissible. The customer shall be obligated to repulse attempts by third parties on the reserved ownership by pointing out our rights, and shall inform T+T NETCOM immediately. The customer hereby assigns to T+T NETCOM his claims arising from the resale or re-letting of the devices in regard to a first-ranking part-amount corresponding to the size of our receivables from the delivery concerned, also insofar as the goods have been processed. If the devices have been linked up, particularly installed, T+T NETCOM shall become the coowner of the new object created by such linkage and installation, with the proportion of co-ownership being determined by the value of the reserved property in relation to the value of the new object involved.
3. In the event of breach of contract or default of payment by the customer, the customer shall be obligated to surrender the devices immediately to T+T NETCOM on request.
4. The costs for all measures to obtain or assure our property shall be borne by the customer.
5. A demand for surrender shall be construed as withdrawal from the contract only if T+T NETCOM declares this explicitly in writing. Otherwise, the reserved property will be utilized elsewhere by T+T NETCOM, with the proceeds being offset with its claims against the customer.
6. T+T NETCOM undertakes to release the securities due to it on the customer’s request insofar as the realizable value of the securities for T+T NETCOM exceeds the secured receivables by more than 10 %; the choice of the securities to be released rests with T+T NETCOM.

V. Copyrights

1. In so far as the scope of delivery includes licensed operating software and/or software, T+T NETCOM shall grant the customer, upon payment in full of his invoice arising from the delivery, a single, non-exclusive (and in the case of operating software transferable only in conjunction with the associated hardware) right to use this operating software and software on the system supplied in the program status (release) valid on the date of delivery, unless in the case of a delivery involving solely software another arrangement has been agreed.
2. The customer recognizes that operating software and software may contain or embody proprietary rights and other industrial property rights, know-how and other intellectual property, and that these rights are vested in T+T NETCOM or its suppliers.
3. The customer is prohibited from making the operating software and the software accessible to third parties without T+T NETCOM’s explicit prior consent. The customer shall in this context ensure that his staff also do not make the operating software and the software accessible to third parties without T+T NETCOM’s explicit prior consent. This consent shall be either issued in writing by T+T NETCOM or contractually Agreed with T+T NETCOM. Insofar as T+T NETCOM as a reseller or intermediary in an individual case (for whatever reasons) does not grant the right of use in its own name, but communicates it directly from the manufacturer, the customer equally undertakes to comply with the above conditions of use and, insofar as these do not contain formulations to the contrary, the manufacturer’s conditions of use.

VI. Infringements of industrial property rights

1. T+T NETCOM assures that to its knowledge the hardware, operating software and software supplied (hereinafter referred to overall as the “product”) are free from rights of third parties, and that their contractual utilization does not interfere with other parties’ industrial property rights.
2. If third parties assert claims against the customer due to infringement of an industrial property right on the grounds that he is using a product provided by T+T NETCOM, the customer shall inform T+T NETCOM thereof immediately in writing. T+T NETCOM will, at its own discretion, meet these claims at its own expense, rebuff them or conclude the disputes by a settlement. The customer must support T+T NETCOM in this defense in every reasonable manner. T+T NETCOM will bear all financial burdens arising from a ruling against the customer, including damages awarded to a third party and the costs of the proceedings involved. T+T NETCOM shall bear the costs of a settlement if T+T NETCOM consents to the settlement. The customer shall grant T+T NETCOM the sole authority to decide upon the legal defense and upon settlement negotiations. He shall grant T+T NETCOM the requisite powers of attorney in the individual case concerned.
3. If T+T NETCOM becomes convinced that a product may possibly be the object of an industrial property right complaint, T+T NETCOM shall be entitled, at its discretion, a) to obtain for the customer at its own expense the right to continue using the product concerned, b) to replace the product to a reasonable extent at its own expense, or to modify it in such a way that it no longer infringes third parties’ rights, or c) to take back the product or parts thereof, and to refund to the customer the purchase price minus a reasonable utilization fee.
4. T+T NETCOM shall incur no obligations if the devices, software and/or operating software, machines or parts thereof are modified by the customer or linked to programs or data not provided by T+T NETCOM, and claims from third parties arise there from.

VII. Acceptance test

1. After the devices have been erected and connected, their operational readiness shall be verified by a trial run with standard test programs. The customer shall then be obligated to accept the devices, operating software and/or software supplied by T+T NETCOM or the manufacturer/supplier as vicarious agents, and to confirm acceptance on the acceptance report submitted. An acceptance declared to the manufacturer/supplier shall be construed as also applying to T+T NETCOM. If the devices are connected or erected by the customer or his vicarious agents, acceptance testing shall be performed by acceptance of the delivery.
2. If two weeks after completion of the installation work the customer has not yet returned the signed acceptance report, the acceptance test shall be construed having been conducted, unless the customer has asserted beforehand in writing, stating reasons, that the delivery was not in conformity with the agreement.
3. By acceptance, the customer recognizes that the devices delivered conform to his purchase order; a delivery deviating from the purchase order shall be construed as approved and contractually recognized by acceptance. The warranty period commences with acceptance.
4. Training and familiarization for the customer’s employees shall be invoiced separately at T+T NETCOM’s currently valid cost rates.

VIII. Conditions of payment

1. Generally the customer has to give a letter of credit from his bank institute to T+T NETCOM to assure the correct payments in due time. The equivalent for the letter of credit can also be payment in advance by the customer.
2. Unless something to the contrary has been agreed, invoices shall be due for payment 10 days after the invoice date, without deduction. From the 11th day, after the invoice date, default shall apply, without a reminder from T+T NETCOM being required. The interest rate on defaulted payment shall be 5 % above the current base interest rate under the German Discount Rate Transference Act (Diskontsatz-Überleitungs-Gesetz). The current base interest rate shall be ascertained by inquiring either at the Deutsche Bundesbank or under the Internet address http://www.bundesbank.de/. T+T NETCOM reserves the right to assert damage caused by delayed performance above and beyond this. Part-deliveries can be invoiced separately.
3. In the event of the customer being in default of acceptance, the purchase price claim shall become due for payment irrespective of the still-outstanding delivery.
4. In the case of a first-time order, or if a credit check has not yet been conducted, cash in advance or cash on delivery can be demanded, likewise if the credit limit granted is exceeded. If T+T NETCOM becomes cognizant of facts which justify doubts as to the customer’s solvency, and which are of a nature to substantially endanger T+T NETCOM’s entitlement, then by a unilateral written declaration all claims (including conditional, time-limited, deferred claims and those for which bills have been given) can become due for immediate payment. Likewise, T+T NETCOM can release itself from an agreed advance performance obligation or a contemporaneous performance by a unilateral written declaration, and demand cash in advance or security before providing the performance. If the customer does not comply with this request, T+T NETCOM can set by a written declaration a two-week period of grace with threat of rejection and following its fruitless expiry in particular demand damages for nonperformance or withdraw from the contract.
5. Checks and bills of exchange will be accepted only on the basis of a special agreement and only as conditional payment. Discount costs and bank charges shall be borne by the customer. Payment shall be deemed as made only when T+T NETCOM has been irrevocably credited with the amount on one of its accounts. In the case of more than one claim against the customer, T+T NETCOM can (irrespective of any provision of the customer to the contrary) freely decide against which of several undisputed claims the payment received shall be offset.
6. If the customer defaults on due payments, T+T NETCOM shall be entitled to retain the delivery from other purchase orders of the customer. Insofar as then payment is made for the amounts outstanding, T+T NETCOM shall be entitled to schedule a new delivery at its own discretion, taking its other delivery obligations into account.
7. Set-off and retention shall be permissible under the preconditions of Section X.

IX. Warranty

1. T+T NETCOM warrants that the devices at the moment of passage of risk are free of material and manufacturing defects. In the case of EDP systems, T+T NETCOM also guarantees the functional performance of the operating software and the software. The customer is aware that in the case of operating software and software to the state of the art the occurrence of program errors cannot be absolutely ruled out. The warranty does not cover defects which are caused by deviation from the conditions of use envisaged and stated in writing for the goods purchased. The customer must check the product delivered, created or installed by T+T NETCOM immediately, and inform T+T NETCOM in writing of any defects by 10 days at the latest after receipt/completion of the object. Damage in transit which is externally detectable (e.g. housing damaged) shall be asserted immediately to the transport person and to T+T NETCOM. Hidden defects which despite careful examination could not be detected within this period, must be reported to T+T NETCOM immediately after being discovered.
2. Fundamentally, the warranty shall be limited to remedying of defects, i.e. T+T NETCOM shall be entitled and obligated to replace or to repair defective parts. If the remedying of defects or replacement delivery fails in a repeated case and further remedying of defects or replacement deliveries are unacceptable for the customer, he shall be entitled to reduction or withdrawal from the contract by means of a written declaration. T+T NETCOM shall be entitled to have the remedying of defects or replacement deliveries carried out by the manufacturer/supplier.
3. The warranty period shall be six months, unless something to the contrary has been agreed.
4. The warranty shall not apply for equipment and parts subject to natural wear and tear or for damage due to excessive or improper use of the devices, neglected or improper care and maintenance, non-compliance with erection conditions or data backup regulations, damage in transit, or other occurrences which are unusual or lie outside T+T NETCOM’s responsibility.
5. All warranties shall expire if the customer affixes non-approved additional devices or performs interventions in and/or repairs to devices and operating software and/or software without explicit agreement with T+T NETCOM, or has this carried out by third parties not authorized by T+T NETCOM.
6. Service and repair work performed by T+T NETCOM due to unjustified complaints shall be paid for by the customer in accordance with the currently valid cost rates of T+T NETCOM for service and repair work.

X. Set-off, retention A set-off against receivables due to T+T NETCOM shall be permissible only in so far as the counter-claim is undisputed, nonappeal able or has been acknowledged by T+T NETCOM. A right of retention under § 273 BGB (German Civil Code) can be exercised only on the base of existing claims arising from the same legal relationship. Commercial right of retention under §§
369 ff. HGB (German Commercial Code) is ruled out.

XI. Liability

1. T+T NETCOM shall be liable under the statutory provisions, in so far as the customer asserts claims for damages which are based on intention or gross negligence, including intention and gross negligence of T+T NETCOM’s representatives and vicarious agents. In so far as T+T NETCOM is not accused of any intentional breach of contract, liability for damages shall be limited to the foreseeable typically occurring damage.
2. The customer shall indemnify T+T NETCOM against claims from third parties which may arise from integration of the products into the systems or system groups of the customer and of third parties and from any resultantly reduced performance capabilities of the products involved.
3. T+T NETCOM shall be liable in accordance with the statutory provisions, insofar as T+T NETCOM culpably violates an essential contractual duty; in this case, however, liability for damages shall be limited to the foreseeable, typically occurring damage.
4. Otherwise liability for damages is ruled out; in so far T+T NETCOM shall in particular not be liable for damage not caused to the delivery object itself. T+T NETCOM shall in particular not be liable for lost profits, lost savings, damage from claims by third parties, and other indirect loss or damage and consequential damage, and for the loss of recorded data.
5. T+T NETCOM shall be liable for replacement of data only if the customer has ensured that these data can be restructured from other data material at reasonable outlay.
6. Any further liability for damages than that provided for in the above paragraphs is ruled out – irrespective of the legal nature of the claim being asserted. This shall in particular apply to claims for damages arising from culpa in contrahendo, positive breach of contract or from claims under § 823 BGB (German Civil Coded). Claims for damages based on impossibility due to T+T NETCOM’s responsibility or on initial incapacity shall not be affected. The same shall apply in so far as the liability is mandatory under the provisions of the German Product Liability Act (Produkthaftungsgesetz). In so far as the liability in relation to T+T NETCOM is ruled out or restricted, this shall also apply in regard to the personal liability for damages of T+T NETCOM’s employees, staff, workforce, representatives and vicarious agents.

XII. Final provisions

1. The purchase contract involved (including these General Terms and Conditions, the order confirmation and all other documents to which reference is made in the purchase contract) constitutes the entire agreement between the customer and T+T NETCOM on the purchase of products.
2. Supplements and alterations to these agreements, and the waiving of rights arising from this agreement, must be made in written form. This also applies for a change in the provision of the preceding sentence, particularly for waiving the requirement for written form.
3. This agreement is subject to German law. The UN’s Contracts for the International Sale of Goods (UNCITRAL) shall not apply.
4. The place of performance for all obligations arising from this agreement shall be Munich.
5. The place of jurisdiction for all disputes arising in connection with these agreements shall be Munich, provided this can be permissibly agreed under the law. Each party shall additionally have the right to file suit against the other party at the latter’s main place of business.