NP-Channel - Network Visibility & Test Solutions for Security, Network and Application Performance

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General Terms and Conditions of Network Performance Channel GmbH

As of July 9th, 2013
Article 1 - Scope

1.1. The deliveries and services of Network Performance Channel exclusively take place on the basis of the General Terms and Conditions below. They relate to all deliveries and services of Network Performance Channel.

1.2. Terms and conditions of the customer, which contradict or deviate from our General Terms and Conditions are not acknowledged by Network Performance Channel, unless Network Performance Channel has expressly consented to their validity in writing. Amendments and supplements to the contract must be in writing. Our General Terms and Conditions shall also apply if Network Performance Channel carries out the delivery or service without reservation, in awareness of conflicting or deviating terms and conditions of the customer. Commitments and side agreements must be confirmed in writing by Network Performance Channel.


Article 2 - Offer and Conclusion

2.1. The offers of Network Performance Channel are always subject to confirmation and non-binding. A contract is only formed with the written order confirmation by Network Performance Channel, however, not later than with acceptance of the delivery or service by the customer.

2.2. Network Performance Channel is entitled to withdraw from contracts, if events should occur, which show that the customer is not creditworthy.

2.3. The customer is obligated to comply with the respective, valid, national, European and international anti-terrorism regulations, as well as the national (Foreign Trade Law/Foreign Trade Ordinance) and European (Dual Use Regulation 1334/2000 in its respective, valid version) export control regulations. Furthermore, the customer is obligated to comply with US re-export regulations (EAR) and sanctions (OFAC) for the goods/technical data, to which the US regulations apply. If an approval by the respective, responsible authorities should be necessary on the basis of the above mentioned regulations, the customer will be obligated to obtain these at his own expense and notify Network Performance Channel of this.


Article 3 - Delivery and Service

3.1. Network Performance Channel is only bound to delivery dates, if Network Performance Channel has explicitly designated these as binding in written form. Agreed delivery dates are regarded as being met, if the contractual product has been handed over to the freight forwarder on the agreed delivery date, to the extent that no other explicit agreement has been made.

3.2. The expiry of specific delivery dates does not exempt the customer, who intends to withdraw from the contract or demand compensation due to non-fulfilment, from setting an adequate grace period

3.3. Network Performance Channel expressly reserves the right to perform reasonable, partial services, within the specified delivery dates, and their invoicing, as long as disadvantages do not result from this for utilisation.

3.4. If the infeasibility of delivery is due to incapacity of the manufacturer, both contracting parties can withdraw from the contract, if the agreed delivery date is exceeded by more than three months.

3.5. Network Performance Channel shall not be responsible for default or infeasibility of the delivery, if Network Performance Channel or its legal agents are not at fault. The occurrence of force majeure or other unforeseeable circumstances for which Network Performance Channel is not responsible, such as state measures, non-granting of official approvals, labour disputes of any type, sabotage, lack of raw materials, non-culpable, delayed material deliveries, through which Network Performance Channel is prevented from fulfilling its obligations, also extends the delivery period within the default. Such a delay of more than three months entitles the customer to withdraw from the contract.

3.6. Network Performance Channel reserves the right to withdraw from the contract, if the delivery delay caused by one of the above events lasts longer than six weeks and Network Performance Channel is not responsible for this. If the delivery becomes infeasible or unreasonable due to the above mentioned events, Network Performance Channel will be exempted from its obligation.

3.7. Compensation claims by the customer in the case of default or infeasibility not caused by Network Performance Channel are excluded. A claim by the customer for compensation due to delivery default is excluded in the case of ordinary negligence, furthermore, the liability is limited to the amount of the foreseeable loss, however a maximum of 5% of the delivery value. This liability limitation does not apply to grossly negligent or premeditated conduct of the seller.

3.8 If the customer does not attend to one's obligation to co-operate, Network Performance Channel shall be exempt from liability. Does Network Performance Channel executes its obligations yet, the customer is liable for the expenses incurred.


Article 4 - Shipping and Transfer of Risk

4.1. Shipping generally takes place at the expense of the customer. At the request and expense of the customer, the delivery can be insured against breakage, transport damage and fire damage.

4.2. The customer must immediately inspect the goods after receipt for completeness and correspondence to the delivery note / invoice. If a complaint should not take place within six days, the goods shall be regarded as having been delivered properly and completely, unless it involves a defect that was not recognisable during the inspection.

4.3. Insignificant defects, which do not impair the functionality of the delivery object, do not entitle the customer to refuse acceptance.

4.4. The risk of loss or damage to the goods shall be transferred to the customer, with the handover of the same to the freight forwarder, his authorised agents or other persons, who are named by Network Performance Channel. To the extent that shipping is delayed or becomes infeasible without it being the fault of Network Performance Channel, the risk shall transfer to the customer with notification of readiness for delivery. The provisions of 4.1 shall also apply to return shipments to the customer after rectification of defects/paid services.


Article 5 - Payment Terms

5.1. The purchase prices and fees for ancillary services shall fall due for payment upon handover of the delivery object. Differing agreements must be confirmed in writing by Network Performance Channel.

5.2. Checks and promissory notes will only be regarded as a payment upon redemption. The acceptance of promissory notes always requires a prior, written agreement with Network Performance Channel. With the receipt of promissory notes, the bank discount and collection fees are charged. They are immediately payable in cash.

5.3. We charge default interest of 8% above the respective base interest rate of the European Central Bank to merchants, we charge consumers 5% above the respective base interest rate of the European Central Bank. They are to be applied higher or lower, if Network Performance Channel proves a charge with a higher interest rate or if the customer proves a lower charge.

5.4. If the customer enters into payment default, Network Performance Channel is entitled to charge reminder costs. These amount to EUR 5.00; EUR 7.50 and EUR 10.00, depending on the reminder level (1, 2 or 3).

5.5. If the customer is a merchant a legal entity under public law or a special public-sector fund, the retention of payments due to any counterclaims of the customer that are not acknowledged by Network Performance Channel is not permitted, as well as offsetting with such counterclaims. Otherwise, offsetting is only admissible with such claims, which are undisputed or legally established.

5.6. Network Performance Channel reserves the right to increase the price appropriately, if after conclusion of the contract, cost increases - particularly due to price increases by the supplier or exchange rate fluctuations - occur with Network Performance Channel.
This will be proven to the customer by Network Performance Channel, upon request.

5.7. If the customer enters into acceptance default or infringes other cooperation duties, in addition to the loss incurred, Network Performance Channel shall be entitled to demand compensation for the storage and maintenance of the delivery items at a flat rate of 1% of the invoice amount per month or compensation of the loss actually incurred. The customer is entitled to prove that Network Performance Channel has suffered less damage.

5.8. Network Performance Channel is entitled to initially use the customer's payments for amortising his older debts. If costs and/or interest have already been incurred for this, Network Performance Channel is entitled to initially apply payments to the costs, then to the interest and finally to the main claim.


Article 6 - Reservation of Ownership

6.1. Network Performance Channel reserves the ownership of the delivery objects until payment.

6.2. With anti-contractual conduct by the customer, particularly with payment default, Network Performance Channel is entitled to demand return of the goods after issuing a warning and the customer is obligated to return the goods.

6.3. The assertion of the reservation of ownership and the pledging of delivery objects by Network Performance Channel are not regarded as withdrawal from the contract, as long as the regulations regarding consumer contracts do not apply or this is expressly declared in writing by Network Performance Channel. With utilisation vis-á-vis merchants, a legal entity under public law or a special public-sector fund, the following additionally applies:

6.4. The seller reserves the ownership of the goods, until all claims of the seller against the buyer from the business relationship, including the future claims arising, also from contracts concluded simultaneously or later, are settled. This also applies if individual or all claims of the seller having been included in a running invoice and the balance has been drawn and acknowledged.

6.5. The customer is entitled to sell the delivery objects on in the ordinary course of business; however, he already assigns all claims now in the amount of the purchase price agreed between Network Performance Channel and the customer (including VAT), which accrue to the customer from the onward sale, regardless of whether the delivery objects are sold on without or after processing. The customer is authorised to collect these claims after their assignment. Our authority to collect the claims ourselves shall remain unaffected by this; however Network Performance Channel is obligated not to collect the claims, as long as the customer properly fulfils his payment obligations and is not in payment default. However, if this is the case, Network Performance Channel can demand that the customer discloses the assigned claims and their obligors, provides all details necessary for collection, releases the related documents and notifies the assignment to the obligors (third parties).

6.6. The processing or alteration of the goods by the customer will always be carried out on behalf of Network Performance Channel. If the delivery objects are processed with other items not belonging to Network Performance Channel, Network Performance Channel will acquire the co-ownership of the new item in the proportion of the value of the delivery objects to the other items processed, at the time of processing.

6.7. If the delivery objects are inseparably combined with other items not belonging to Network Performance Channel, Network Performance Channel will acquire the co-ownership of the new item in the proportion of the value of the delivery objects to the other items combined. The customer shall keep the co-owned property for Network Performance Channel.

6.8. The customer is not permitted to pledge or assign the delivery objects as collateral. With pledges, confiscation or other directives by third parties, the customer must immediately notify Network Performance Channel of this and provide Network Performance Channel with all information and documents, which are necessary for preserving our rights. Enforcement officials/a third party must be notified of our ownership.

6.9. At the request of the customer, Network Performance Channel is obligated to release the collateral to which it is entitled if their value exceeds the value of the claims secured by more than 20%, if these have not yet been settled.


Article 7 - Warranty

7.1. Network Performance Channel guarantees that the contractual products are not afflicted with significant defects. Insignificant deviations from the service specification shall not be regarded as defects. The technical data and descriptions in the product information alone shall now guarantee a specific quality. An agreed quality must be confirmed in writing by Network Performance Channel.
The manufacturing of the contractual products will take place with the required duty of care. However, the parties are aware that according to the state-of-the-art, it is not possible to rule out errors in the software under all application conditions.


7.2. The delivered goods must be inspected by the customer after receipt for defects, agreed quality and quantity deviations. The notification of defects is only admissible within one week, with obvious defects. The notification must take place in writing. For the calculation of the period, the time of delivery and the date of receipt of the complaint letter are decisive.

7.3. Network Performance Channel has twice the option of supplementary performance in the case of justified notification of defects. If supplementary performance is infeasible or refused by Network Performance Channel in spite of setting an adequate period, the customer shall be entitled to withdraw from the contract or reduce the purchase price.

7.4. With improperly carried out alterations and repair work by the customer, the liability of Network Performance Channel will lapse for resulting consequences.

7.5. If the goods are lacking an agreed quality at the time of risk transfer, the customer will be entitled to a right of withdrawal. He can only demand compensation due to non-fulfilment, if the guarantee of the quality pursues the purpose of securing him against this specific damage. Possible compensation claims by the customer from default on conclusion of the contract, infringement of contractual ancillary obligations, consequential losses/consequential defect losses, particularly also due to loss of recorded data, are excluded, if they are not based on deliberate acts or gross negligence by Network Performance Channel.

7.6. Defects/losses are specifically excluded from the warranty, which are due to: operational wear and tear and regular wear and tear, improper use, operating error, operation with the wrong type of electricity or voltage, fire, lightning strike, explosion, all types of moisture. The warranty also lapses if serial numbers, type descriptions or similar labelling is removed or made illegible.

7.7. The guarantee performance generally applies ex factory Neu-Isenburg. All costs and risks for shipping or collection are borne by the customer.

7.8. If the review of the defect notification results in a guarantee claim not existing, Network Performance Channel is entitled to demand compensation for all costs. Costs of the review and repair will be charged at the respective, valid service prices of Network Performance Channel.

7.9. The warranty period amounts to 12 months vis-á-vis merchants, 24 months with a purchase of consumer goods. Warranty claims are not transferrable. Differing agreements must be confirmed in writing by Network Performance Channel.


Article 8 - Liability

8.1. To the extent that nothing different arises from these provisions or from conflicting and legal prohibitions, further claims of the customer - regardless of the legal grounds - are excluded. Therefore, Network Performance Channel is not liable for losses, which have not occurred to the delivery object itself, in particular, Network Performance Channel shall not be liable for lost profit or other financial losses of the customer. The exclusion particularly also applies to claims arising from default on contract conclusion, infringement of ancillary duties and producer liability pursuant to Article 823 BGB [German Civil Code].

8.2. This liability exclusion does not apply, if the infringement of duty is based on deliberate acts or gross negligence. Network Performance Channel is liable for intentional or grossly negligently caused damage from the contracts fulfillment only to the extent of the typical, foreseeable and attributable damages. Network Performance Channel is not liable for slightly negligently caused damages from the contracts fulfillment, unless it is reflected in a damage caused by injury to body or health or life or by injury of cardinal duties. A cardinal duty is an essential contractual obligation, which is Network Performance Channels particular contractual obligation and which is of particular significance to the achievement of the treaty objectives. This also includes obligations, which in the case of culpable breach of duty result in endangering the achievement of the treaty objectives. Network Performance Channel is also in this case liable only to the extent of the typical, foreseeable and attributable damages.. Furthermore, this liability exclusion will not apply if the customer asserts a claim due to the lack of extensive warranty and quality compensation claims due to non-fulfilment (cf. Subsection 7.5) covering risk of consequential loss.

8.3. If Network Performance Channel negligently infringes a material contractual duty, Network Performance Channel's compensation obligation for material and personal losses is limited to indemnification under product liability insurance. In any case, the compensation obligation is limited to the foreseeable loss at the time of concluding the contract.

8.4. The above mentioned liability exclusions and limitations do not apply to claims pursuant to product liability law or due to initial incapacity or infeasibility for which Network Performance Channel is responsible. If liability is excluded or limited, this shall also apply to the personal liability of our salaried staff, wage-earners, workers, employees, representatives and legal agents.


Article 9 - Software Utilisation

9.1. The customer will receive a non-exclusive right of use to the software programs acquired by him. Rights of use are only granted to the extent, as this is mandatory to the fulfillment of the contract. The grant of additional rights of use needs the express consent of Network Performance Channel and must be in written form. The respective manufacturer is entitled to the copyright. With order processing by Network Performance Channel, regulations deviating from this must be in writing.

9.2. Network Performance Channel does not assume any liability for the contractual products not infringing any industrial property rights or third party copyrights. The customer must immediately notify Network Performance Channel regarding all claims asserted against him for this reasons and help Network Performance Channel on request by supporting its defence against reproaches.


Article 10 - Export and Import Approvals

10.1. Products and technical know-how supplied by Network Performance Channel are intended for being used and remaining in the country of delivery agreed with the customer. The re-exporting of contractual products - individually or in a system-integrated form - requires approval for the customer and is generally subject to the foreign trade regulations of the Federal Republic of Germany/the other country of delivery agreed with the customer. The customer must independently find out about these German regulations from the Federal Export Agency.

10.2. Any onward delivery of contractual products by the customer to third parties, with and without the knowledge of Network Performance Channel, simultaneously requires the transfer of the export approval conditions. The customer is liable for proper compliance with these conditions vis-á-vis Network Performance Channel.


Article 11 - Obligations arising from the Law on the Disposal of Electrical and Electronic Devices (ElektroG)

11.1. The customer ensures Network Performance Channel that he will fully comply with his obligations pursuant to ElektroG.

11.2. After termination of use, the customer assumes the obligation to properly dispose of the delivered goods at his own expense, pursuant to the legal regulations. The customer exempts Network Performance Channel from the obligations pursuant to Article 10 Par. 2 ElektroG (Obligation of the manufacturers to accept return) and associated third party claims.

11.3. The customer must impose a contractual obligation on third parties to whom he passes on the goods, to dispose of these after termination of use, at their own expense, pursuant to the legal stipulations and impose a further obligation in the goods are passed on again. In contrast, if the customer fails to obligate third parties to whom he has passed the goods on accordingly, the customer must accept the delivered goods back at his own expense, after termination of use, and dispose of them in accordance with the legal regulations.

11.4. In no case is the customer permitted to pass on the delivered goods or parts thereof to private third parties, due to their classification as exclusive commercial use, pursuant to ElektroG.




Article 12 - EU Import VAT

12.1. To the extent that the customer has his domicile outside of Germany, he is obligated to compliance regarding the European Union import VAT regulations. This specifically includes the notification of the VAT identification number to Network Performance Channel, without a separate enquiry.

12.2. The customer is obligated to compensate any costs - particularly a handling fee - which is incurred by Network Performance Channel due to insufficient/faulty details provided by the customer regarding import VAT.

12.3. Any liability by Network Performance Channel from the consequences of details provided by the customer regarding import VAT/the relevant data is excluded, as long as deliberate acts/gross negligence does not exist on the part of Network Performance Channel.


Article 13 - Place of Performance and Legal Jurisdiction

13.1. The place of performance is the business premises of Network Performance Channel in Neu-Isenburg.

13.2. For all disputes arising from the contractual relationship, if the customer is a full merchant, a legal entity under public law or a special public-sector fund, the legal action shall be filed with the court responsible for the registered office of Network Performance Channel. Network Performance Channel is also entitled to file legal action at the customer's registered domicile.

13.3. German law shall exclusively apply, excluding the UN Convention on the International Sale of Goods (CISG), even if the customer has his registered office abroad.


Article 14 - Miscellaneous

14.1. Transfers of rights and duties of the customer from the contract concluded with Network Performance Channel require our written consent in order to be valid. This also applies to the waiver of the written form requirement.

14.2. Should any provision or provisions of these Terms and Conditions be or become invalid, the remaining provisions shall remain unaffected. In this case, the parties shall replace the provision that is invalid by a new provision that comes as close as possible to the intended economic purpose of the original provision. The same shall faithfully apply to any potential loopholes of provisions.

14.3. Network Performance Channel is entitled to lead the customer as a reference in the context of marketing activities.
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