General Terms and Conditions (GTCs) of

Nettropolis AG

§ 1 Purview

1. These general terms and conditions apply to all business relations between Nettropolis AG and its commercial or independent professional engaged buyers according to § 14 German Civil Code/BGB (hereinafter referred to as "Customer").
2. Terms and conditions of the client will not constitute part of this contract.  This shall also apply if Nettropolis AG performs a contract with a client, without objecting to the inclusion of terms and conditions of the client.
3. Amendments of and additions to contracts must be in writing to obtain legal effect. This shall also apply to a waiving on the requirements of the written form.
4. In commercial business, in each case the version of terms and conditions of Nettropols AG valid at the time of the conclusion of the contract is applicable. This also applies if the Nettropolis AG does not expressly refer to these GTC in  furhter conclusion of contracts with the client.

§ 2 Conclusion of contract and subject terms of contract

1. Nettropolis AG offers are subject to change. Contracts with customer only become effective with the written order conformation or with the execution of contract by Nettropolis AG.
2. Nettropolis AG may accept the customer's orders within one week after the order was submitted.
3. Nettropolis AG reserves the right to change or deviate from the promised delivery or performance even after conclusion of the contract, provided such modification or deviation is customary in trade or negligible and does not affect guaranteed properties.
4. Product and performance descriptions do not constitute guarantees in the legal sense. Only guarantees submitted in writing and expressly identified as such are effective.
5. If an stipulated upon delivery or performance is not available, Nettropolis AG can be released from an obligation to fulfil the contract by immediately informing the customer of the non-availability and committing to refund a counter-performance rendered by the customer.

§ 3 Payment

1. In regards to compensation the respective price agreed upon with the customer is authoritative. Under non-existence of such agreement, a payment as per the Nettropolis AG price list valid at the time of conclusion of contract is agreed. Prices are quoted plus legal VAT.
2. The care and maintenance of software rendered by Nettropolis AG and the compensation for this service are subject to an additional service and maintenance agreement to be concluded.
3. Amounts billed by Nettropolis are due for payment without deduction within 14 days after rendering the delivery or the performance unless otherwise agreed in writing.
4. In the event of default of payment for commercial transactions, at a minimum Nettropolis AG is entitled to default interest in the amount of 8 percentage points above the current prime lending rate. Nettropolis AG's right to further damages or higher interest on another legal basis remains unaffected.
5. The customer may only offset undisputed or legally established claims against Nettropolis AG. He may only base his right of retention on claims against Nettropolis AG he is entitled to as per the respective contract.

§ 4 Delivery

1. Nettropolis AG renounced software at its own discretion either:
a. on delivery of a data carrier containing the stored software owed,
b. by supplying the software for download and notifying the customer of such or
c. by electronic communication/transmission per e-mail.
2. In the case of  data carrier delivery, the risk of accidental loss or deterioration of the delivery items shall pass to the customer from the time the data carrier leaves the warehouse for the purpose of sending to the customer.
3. Unless otherwise agreed in writing, the information/specification made by the Nettropolis AG in regards to time delivery and time of performance are non-binding.
4. In the event Nettropolis AG is prevented without fault from the delivery or performance due by reason of labour disputes, official intervention, failure of supply by suppliers, illness of staff, force majeure or other unforeseen events, the terms of delivery and performance are prolonged by the duration of the interference and an adequate period for resupplying the services upon end of interference. Section 1 applies correspondingly if Nettropolis is awaiting information or required cooperation by the customer.

§ 5 Usage Rights

1. Any rights in software surrendered or supplied to the customer are solely reserved to Nettropolis AG in relation to the customer.
2. Nettropolis AG permits the customer the non-exclusive right to use the software for his own purposes to the extent specified in the licence agreement or user agreement separately entered into to use.
3. The usage rights as per paragraph 2 commences only upon full payment of the compensation owed for supplying the program. Regardless of effected payment, Nettropolis AG commits not to make claims for injunctive relief against contractual use for a period of four weeks from the time the program is supplied.

§ 6 Provision of servers

1. In cases where the contractual use of the software provided requires access to servers (hereinafter "Nettropolis server") with software stored thereon, Nettropolis AG will provide Nettropolis server according to more detailed provision of specification in the licence agreement to be entered into separately.
2. Nettropolis AG has the right to disable access to its servers for the duration of the customer being in arrears with compensation for the software; however, prior to disabling access Nettropolis AG must notify the customer of such intent in writing and the customer fail to pay within one week of such notification being sent. Nettropolis AG shall not disable services for a period of four weeks uopn supply of the program. All other right Nettropolis AG may be entitled to by reason of the customer´s payment default remain unaffected hereof.

§ 7 Customer Cooperation and Liability

1. The customer shall provide the working environment required for the contractual use of the software rendered. In particular, he is to provide hardware as specified by Nettropolis AG with a suitable operating system and an internet connection at his own expense.
2. For the event of software failure or Nettropolis servers being inaccessible, the customer must take adequate precautions (e.g. data backup).
3. When using the software the customer will refrain from violating legal provisions or the rights of third parties and releases Nettropolis AG from any third party claims directed toward Nettropolis AG based on illegal use of the software. In the event of the customer's violation against the obligations specified in section 1, Nettropolis AG is entitled to disable the connection to their servers. Further rights of Nettropolis AG remain unaffected hereof.

§ 8 Examination and Notice of Non-Conformity (obligation to give notice of defects)

Software purchased by the client through commercial transactions is to be promptly inspected by the customer as per the provisions set forth in § 377 of the German Commercial Code (HGB) and any visible material defects reported promptly and in writing to Nettropolis AG upon delivery, and invisible/latent defects immediately upon their discovery. The customer is to describe the defect in detail within reason.

§ 9 Latent/Material Defects and Defects of Title (Purchase)

1. Nettropolis AG warrants the software to be free of material defects and for the customer to be able to use the software as per the contract and not being hindered from doing so by third party rights. Material defects which only minimally limit the contractual use of the software are not a foundation for liability.
2. Nettropolis AG will provide warranty by supplementary performance at their own discretion either through remedy of defect or replacement material free of defect.
3. Nettropolis AG may also remove defects by providing  the customer with possibilities for avoiding ramifications of a defect without unfavorable impairment of the functionality owed. In the course of supplementary performance the customer must also accept the new program or data base if doing so will result in reasonable customization or conversion efforts.
4. In the event of failure to provide supplementary performance, the customer is entitled at his discretion to request a reduction in payment or to withdraw from the contract. The customer may only claim compensation for damages as per legal provisions and under well-founded liability pursuant to § 11. Other claims by reason of defect are excluded.
5. If the customer has modified the software rendered, Nettropolis AG shall only assume liability for defects if the defect occurred independent of the modifications.

6. In commercial transactions the customer may make claims by reason of such material defects if such defects were previously reported in due form and timely (cf. § 8-9). Netviewer GmbH maintains leads software by providing free versions maintenance in the form of service packs and bug fixes in a for contractual usage that is suitable.  Binding for the scope of Netviewer GmbH obligation of maintenance are the conditions (state of the art,  stipulated and usual functionalities) when a new contract is concluded.  Advanced updates Netviewer GmbH based on a separate service contract to be concluded.

§ 10 Liability

1. Nettropolis AG is only liable for damages incurred by customers on a contractual and non-contractual basis to the following extent:
a. Pay in full under premeditation or absence of a guaranteed condition or durability;
b. in the amount of foreseeable and typical damage in cases of gross negligence;
c. In all other cases only under violation of an obligation essential for achieving the purpose of the contract (cardinal obligation), but limited to the replacement of such foreseeable and typical damag.
2. Nettropolis AG's liability for personal injuries and pursuant to the Product Liability Act remains unaffected.
3. The customer releases Nettropolis AG free from any claims by third parties based arising from the customer's non-contractual use of software.

§ 11 Statute of Limitations for Customer Claims

1. The customer's claims pursuant to § 9-10 and § 11 paragraph 1 are limited to one year subject to the following provisions.
2. The statute of limitations for claims due to material or legal defects begins with the delivery of software, for all other claims for damage or replacement of futile expenditures with the time at which the customer becomes aware of the circumstances or acquired such knowledge without gross negligence.
3. For claims for repayment of purchase price arising from withdrawal or abatement are subject to para. 1 and para. 2 respectively, provided the statute of limitations is no less than three months from the submission of such notification or termination or request for reduction.
4. In all cases, the statute of limitations begins with termination of the maximum terms specified in § 199 of the German Civil Code (BGB).
5. Claims based on intent or gross negligence by Nettropolis AG, the violation of a guarantee specified by Nettropolis AG or malice, as well as in the event of claims for injury to life, body or health or based on the Product Liability Act, the legal statute of limitations applies.

§ 12 Data Protection

1. Nettropolis AG and the customer agree to comply with all legal data protection regulations. In particular, the parties are to obligate all persons entrusted with processing personal data to data privacy pursuant to § 5 clause 2 of the Federal Data Protection Act (BDSG) in writing. They also have in the event of collection, processing or use of personal data, they must further implement all technological and organizational actions required for the compliance with data protection requirements.
2. In the case Nettropolis AG process or uses personal data during the execution of a contract entered into with the client, said must be performed upon the customer's request in terms of § 11 of the Federal Data Protection Act (BDSG). Accordingly, Nettropolis AG will only process or use personal data for the execution of the contract and only within the scope of the customer's instructions. If Netviewer GmbH is of the opinion the customer's instructions violate privacy protection regulations, it will notify the customer of such.

§ 13 Engaging Third Parties

Nettropolis AG is entitled to use third parties (vicarious agents) in the execution of its contractual obligations toward the customer. Nettropolis AG is liable for violations of obligations by vicarious agents as per § 278 of the German Civil Code (BGB) subject to the limitations and exclusions governed by § 10-11.

§ 14 Final Provisions

1. The jurisdiction for any and all disputes related to a contract concluded between Nettropolis AG and a customer is Bruchsal/GERMANY if the customer is a merchant, public corporation or a special fund under public law, or has no general domestically place of jurisdiction.
2. The law of the Federal Republic of Germany under exclusion of the UN sales law applies exclusively.

Status: January/2010 Nettropolis AG, Bruchsal.



The rights of Nettropolis AG to argue further damages or higher interest on another legal basis remains unaffected

News:

23.05. 2018

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~ Verkehrsbetriebe Zürich VBZ, CH-Zürich