General Terms and Conditions of NETKUM AG (GTC)

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1 Application

These General Terms and Conditions govern the business relationships of and with NETKUM AG (hereinafter referred to as NETKUM).

The business partners' terms and conditions shall only apply if they have been accepted in writing by NETKUM.
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2 Assignment

2.1 Orders must be placed in writing or electronically.

2.2 The order confirmation must be legally signed by the customer and received by NETKUM before the order begins.
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2.3 Delivery of orders is subject to the availability or deliverability of the products from the manufacturer. Delivery dates are provided to the best of our knowledge, but without guarantee. This applies in particular in the event of delivery delays on the part of the manufacturer. If a delivery is delayed beyond a delivery date guaranteed in writing by NETKUM
, the customer may, after expiry of an additional period of at least four weeks to be set by him in writing, declare NETKUM to be in default and, after expiry of a reasonable further grace period, subsequently withdraw from the order in question. In this case, NETKUM cannot be held liable.
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2.4 Any changes or cancellations to orders requested by the customer require a written agreement with NETKUM. NETKUM may charge the customer for any costs that have already been incurred.
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2.5 NETKUM is entitled to make partial deliveries.

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3 Acceptance and testing

3.1 The customer is obliged to check the products and services delivered by NETKUM immediately after delivery or collection for completeness and correctness and to notify NETKUM in writing of any damage, defects, or complaints immediately after discovery, but no later than 10 days after delivery or collection.

3.2 If notification is not provided in a timely manner, any warranty and any other claims by the customer shall lapse, unless the damage or defect was not apparent during the required initial inspection.

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4 Transfer of benefits and risks

4.1 Upon delivery of the products, the benefits and risks are transferred to the customer.
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4.2 If the customer fails to collect the products on the agreed date, the products will be stored for 5 days at the customer's expense and risk and then forwarded to the customer.

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5 Returning products

5.1 Any return of products by the customer requires the prior consent of NETKUM and is at the expense and risk of the customer. The products must be returned in their original packaging, accompanied by a detailed description of the fault/defect and the proof of purchase. Opened software cannot be returned.

5.2 NETKUM reserves the right to return products with missing, defective, or labeled original packaging, or products that are no longer in perfect condition, to the customer at the customer's expense and risk. If the product is returned without a description of the defect, NETKUM may perform a troubleshooting procedure at the customer's expense (minimum charge of one hour).
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5.3 In any case, the procedures defined by NETKUM and the manufacturer shall apply.

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6 prizes

6.1 The prices of NETKUM's products and services are quoted strictly net in Swiss francs (CHF), excluding value added tax, customs duties, and ex NETKUM's domicile. Additional costs such as packaging and shipping/delivery (freight/transport) are not included in the prices and, like value added tax, are borne by the customer. Unless otherwise agreed, accessories are not included in the price. Support services are not included in the product price and will be invoiced to the customer separately and according to expenditure in accordance with the rates in the currently valid service prices or in accordance with a special agreement at
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6.2 The prices of the products and ancillary costs are generally calculated according to the price list valid at the time of order confirmation. If NETKUM has received assurance from the manufacturer or supplier that price reductions will be passed on to customers, the prices valid at the time of delivery or handover of the products shall apply. Conversely, this also applies in the event of price increases by the manufacturer or supplier.
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6.3 For the reasons mentioned above and in order to respond to changing market conditions, NETKUM may adjust prices at any time. This also applies to current service contracts. These adjustments are made transparently and take into account clearly defined additional reasons such as inflation, technological developments, exchange rate fluctuations, regulatory requirements, and improvements to the range of services offered.

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7 Terms of payment

7.1 Unless otherwise stated, all invoices issued by NETKUM are payable within 14 days of the invoice date. After this period, the customer is in arrears. NETKUM may charge interest on arrears at a rate of 5%.

7.2 If payment for work performed and invoiced is not made, NETKUM may immediately discontinue its services. Any costs incurred as a result shall be borne by the client. The debtor shall bear the costs and consequential expenses of deactivating and reactivating the services.

7.3 If the customer fails to settle their debts or ensure their fulfillment within a grace period set by NETKUM, NETKUM is entitled to definitively refuse all further services to the customer and to claim damages. In addition, NETKUM is also entitled to proceed in accordance with the general legal provisions of the Swiss Code of Obligations (CO).
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7.4 All claims by NETKUM, including those for which installment payments have been agreed, shall become due immediately if (a) the customer repeatedly fails to comply with the terms of payment or (b) fails to provide the necessary collateral immediately upon request by NETKUM in order to dispel justified doubts on the part of NETKUM regarding its liquidity/solvency, e.g. in the event of debt collection or other
signs of payment difficulties on the part of the customer. The customer is obliged to notify NETKUM if liquidity bottlenecks are foreseeable.
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7.5 At NETKUM's request, the customer shall assign its claims against end customers arising from the sale of goods delivered by NETKUM to NETKUM for payment (Art. 172 OR).
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7.6 Checks will only be accepted by NETKUM on account of payment and after prior special written agreement and on condition that all costs and expenses are borne by the customer.

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8 Offsetting / Right of retention

8.1 The customer is not entitled to offset any counterclaims against claims by NETKUM.

8.2 Any right of retention or return on the part of the customer with regard to NETKUM property is excluded in its entirety.
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8.3 The customer is obligated to pay the invoice regardless of whether they can deliver, invoice, or collect payment for the products from their end customer as part of the resale.

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9 Retention of title / Contractual relationship

9.1 The products delivered by NETKUM remain the property of NETKUM – as long as they remain within the customer's sphere of influence – until NETKUM has received the purchase price in full and in accordance with the contract. Until this point in time, NETKUM is entitled to enter the retention of title in accordance with Art. 715 of the Swiss Civil Code (ZGB) in the retention of title register (
) at the customer's respective place of residence. At NETKUM's request, the customer undertakes to immediately give their written consent to the entry of a retention of title in all points essential for the entry (cf. Art. 4 para. 4 of the Federal Supreme Court Ordinance).
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9.2 Until the purchase price has been paid in full, the customer is obligated to maintain the products delivered by NETKUM, treat them with care, and insure them against all usual risks.

9.3 The material provided under the service contract and included in the rental agreement remains the exclusive property of NETKUM. It cannot be purchased out of the contract. The contractor has no claim to administrative or system access to components that are part of the service model. The material covered by the service must be returned to NETKUM within 14 days of receipt of the notice of termination. The dismantling of the equipment installed under the contract shall be at the expense of the contractor (customer). NETKUM or third parties commissioned by NETKUM shall be entitled to access the premises concerned for the purpose of dismantling and collecting the material. The contractor is obliged to insure the material provided under the service relationship at its own expense against theft, fire, water, natural hazards, and transport risks, and to provide proof of such insurance at NETKUM's request. The contractor is liable to NETKUM for loss or damage to the material provided under the service contract, regardless of whether insurance benefits are paid or not.
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9.4 If the minimum contract period is not fulfilled or a contractual relationship is terminated, the full amount up to the contract expiry date will be invoiced immediately and must be paid within 14 days. Likewise, any material currently in service must be returned to
within 14 days of receipt of the notice of termination. The contractor (customer) is responsible for dismantling the equipment. The equipment must be returned in perfect, working condition. Any damage or missing parts will be charged to the contractor.
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9.5 Unless otherwise stated, all contracts are automatically extended by the minimum contract term. The standard notice period must be observed.

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10 warranty

10.1 Responsibility for the selection, configuration, deployment, and use of products, as well as the results achieved with them, lies with the customer or purchaser of the products, i.e., the end customer. The customer acknowledges that NETKUM does not perform any incoming inspections of the products delivered by manufacturers or suppliers.

10.2 NETKUM's warranty for the products it supplies is determined in every respect by the warranty provisions of the respective manufacturer or supplier. NETKUM's sole obligation is to assign any warranty claims it may have against the manufacturer/supplier to the customer.
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10.3 The customer acknowledges that, based on the applicable warranty provisions, the warranty is generally limited to the repair or replacement of defective/faulty products at the discretion of the respective manufacturer/supplier and only applies if the products remain in Switzerland or the Principality of Liechtenstein.
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10.4 Furthermore, the customer acknowledges that a defect shall only be deemed to exist if it is reported to NETKUM in writing in detail immediately after discovery and involves a relevant and reproducible error. The warranty does not cover defects caused by any of the following:
- inadequate maintenance
- failure to observe the operating and installation instructions
- improper use of the products
- use of unauthorized parts and accessories
- natural wear and tear
- Transport, improper handling or treatment
- Modifications or repair attempts
- External influences, in particular force majeure (e.g. failure of the power supply or air conditioning system, damage caused by natural forces), as well as other reasons for which neither NETKUM nor the manufacturer/supplier are responsible. Warranty services not covered by the manufacturer/supplier and additional costs incurred by the customer will be charged to the customer. If there is no or insufficient description of the fault, NETKUM will carry out troubleshooting at the customer's expense.
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10.5 In any case, the customer shall adhere to the procedures defined by NETKUM or the respective manufacturer/supplier when processing any warranty claims.

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11 Termination

The contracting parties are entitled to terminate the contractual relationship at any time in accordance with the billing cycle, subject to the minimum contract term. Unless otherwise specified in the signed document, the notice period is three months from the date of the billing cycle.
Termination must be in writing and sent by registered mail to the contact details of the contracting parties specified in the contract in order to be effective. Timely dispatch of the termination within the notice period (postmark) is sufficient to meet the deadline.
In the event of ordinary termination, claims already incurred shall remain valid until the end of the contractual relationship and shall be settled accordingly.
After termination of the contractual relationship, the contractor shall have no claim to the surrender or restoration of data, including backups, system or log data. All data stored or processed within the scope of the service contract shall be deleted or anonymized after the expiry of the statutory retention periods. It is the responsibility of the contractor to back up or export their own data in good time before the end of the contract.

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12 Liability

NETKUM shall be liable for immediate and direct damages culpably caused by NETKUM in the performance of the contract up to a maximum total amount of CHF 1,000,000 (one million Swiss francs). Any further liability for damages of any kind and for any legal reason is excluded to the extent permitted by law
, in particular liability for indirect and consequential damages, unforeseeable damages, and pure financial losses (e.g., loss of revenue, loss of profit, loss of savings, recourse claims, etc.). Liability for personal injury remains unlimited
. The right of rescission is excluded in all cases.

If, contrary to standard practice, administration rights or passwords for purchased items are provided at the customer's request, NETKUM accepts no liability for any resulting operational disruptions, data loss, security issues, or consequential costs. Such access cannot be provided for service model components.

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13 patents and other intellectual property rights

If a third party asserts or asserts claims against the customer or its end customers for infringement of a patent, copyright, or other industrial property right by delivered products or products from their operation, the customer shall inform NETKUM in writing and without delay of such infringement notices or claims made. NETKUM shall immediately forward these notices to the supplier or manufacturer and request them to resolve the situation. The customer waives any warranty or liability claims against NETKUM.

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14 Re-export

The products distributed by NETKUM are subject to the respective export regulations of the countries of origin and Switzerland. The customer undertakes to apply for a special export license from the competent authority (currently the Import and Export Section of the Federal Department of Economic Affairs) before any re-export of the products. This obligation must be transferred to the respective purchaser upon sale or other transfer of the products, with the obligation to pass it on.

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15 software programs

15.1 The terms of use and warranty conditions relating to the software products, programs, manuals, and other documentation supplied by NETKUM are governed by the specific provisions of the respective software manufacturer, which are contained in particular in the software license agreement between the software manufacturer and the user/end customer.

15.2 When reselling or otherwise transferring the software products, the customer undertakes to transfer the obligations arising from the software manufacturer's terms of use and warranty to the respective purchaser, together with the obligation to pass on these obligations.

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16 Manufacturer reporting, data protection

16.1 The customer acknowledges that NETKUM processes customer-related data such as sales prices and quantities as well as names and addresses of customers and passes this data on to manufacturers/suppliers as part of periodic manufacturer reporting.

16.2 Furthermore, the customer agrees that NETKUM may process customer-related data for the purpose of checking the customer's creditworthiness and disclose it to the credit insurance company commissioned by NETKUM.

17 Transfer
Rights and/or obligations arising from individual contracts (deliveries, services) may only be transferred by the customer with the prior written consent of NETKUM.

18 Place of jurisdiction and applicable law
The exclusive place of jurisdiction is the registered office of NETKUM. However, NETKUM is also entitled to sue the customer at their registered office.
The legal relationship is governed exclusively by Swiss substantive law. The provisions of the Vienna Sales Convention (CISG) and the conflict of law rules of the Federal Act on Private International Law are expressly excluded.

19 Validity
These terms and conditions are valid until further notice. They may be amended by NETKUM at any time.

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