General Terms and Conditions of Business

as of 12.11.2020

1. Scope of application

1.1 The deliveries and services of ECOS Technology GmbH (ECOS) are exclusively subject to the following General Terms and Conditions (GTC), unless otherwise agreed in writing. The General Terms and Conditions shall only apply if the customer is an entrepreneur (§ 14 BGB – German Civil Code), a legal entity under public law or a special fund under public law. ECOS does not deliver to consumers. Reference is made to the manufacturer's license terms enclosed with the contractual products.

1.2 These GTC of ECOS apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the customer will only become part of the contract if and to the extent that ECOS has expressly agreed to their validity. This requirement of consent applies in any case, for example even if ECOS carries out the delivery to the customer without reservation in knowledge of the customer's GTC.

1.3 Individual agreements made with the customer in individual cases (including collateral agreements, supplements and amendments) shall in any case take precedence over these GTC. A written contract or written confirmation by ECOS is decisive for the content of such agreements.
 

2. Deliveries and services

2.1 Unless otherwise stated, ECOS' offers are subject to change and non-binding and are subject to delivery by ECOS' own suppliers. A contract is only concluded with the written order confirmation by ECOS, at the latest however with the delivery of the goods. 

2.2 We reserve the right to make technical and design deviations from the information contained in brochures, catalogs and written documents as well as model, design and material changes in the course of technical progress and further development, that are reasonable for the customer, without any rights against ECOS being able to be derived therefrom. ECOS will inform the customer about such changes before the conclusion of the contract.

2.3 Delivery dates are agreed individually or are specified by ECOS when the order is accepted. Agreed delivery dates are deemed to have been met if the contractual product has been handed over to the carrier on the agreed delivery date, unless otherwise expressly agreed in writing. If the shipment of goods ready for dispatch is delayed for reasons for which ECOS is not responsible, the contractual products can be stored at the customer's expense and risk.

2.4 The delivery date will be agreed according to ECOS' expected capacity and is subject to timely delivery by its own suppliers and unforeseen circumstances and obstacles, irrespective of whether these occur at ECOS or at one of its suppliers, in particular force majeure, government measures, failure to obtain official permits, industrial disputes of any kind, sabotage, shortage of raw materials, delayed deliveries of materials through no fault of ECOS. Such events extend the delivery date accordingly, even if they occur during a delay that has already occurred. In this case, any grace period set by the customer shall also be extended by the duration of the unforeseen event. If ECOS is more than six weeks behind schedule with a delivery, the customer can withdraw from the contract after a reasonable grace period set in writing, excluding any further claims. If ECOS is in default of delivery, the customer can demand lump-sum compensation for damages caused by the delay. The lump-sum compensation shall amount to 0.5% of the net price (delivery value) for each completed calendar week of delay, but in total no more than 5% of the delivery value of the delayed goods. ECOS reserves the right to prove that the customer did not suffer any damage at all or that the damage was significantly lower than the above lump sum.
 

3. Testing and transfer of risk

3.1 The customer shall inspect the goods immediately upon receipt for completeness and conformity with the delivery bill and invoice. If no complaint is made within three days, the goods shall be deemed to have been delivered properly and completely, unless the defect is one that could not be detected during the inspection.

3.2 Delivery shall be ex warehouse, which is also the place of performance. At the request and expense of the customer, the goods will be shipped to another destination (sale to destination). Unless otherwise agreed, ECOS is entitled to determine the type of shipment (in particular transport company, shipping route, packaging) itself. The risk is transferred to the customer when the contractual product is handed over to the carrier, his agent or other persons named by ECOS. If shipment is delayed or becomes impossible through no fault of ECOS, the risk is transferred to the customer upon notification of readiness for shipment. The provisions of 3.2 also apply to returns after rectification of defects or service against payment to the customer.
 

4. Prices and terms of payment

4.1 The prices resulting from the currently valid price list are ex delivery warehouse or ex delivery warehouse of the subcontractors of ECOS, plus statutory value added tax. Value added tax and other legal charges in the country of delivery as well as packaging, transport costs, transport insurance, environmental and handling fees will be charged to the customer according to the price list valid at the time.

4.2 The purchase price is due and payable without deduction within 14 days of invoicing and delivery or acceptance of the goods. Invoices are issued upon dispatch of the goods. If the payment dates are exceeded, ECOS is entitled to default interest at a rate of 8% above the prime rate of the European Central Bank applicable at the time without further notice. The right to assert claims for further damages remains unaffected.

4.3 The Customer shall only be entitled to set-off or retention rights to the extent that his claim has been legally established or is undisputed. In the event of defects in the delivery, the customer's counter rights shall remain unaffected.

4.4 If the above terms of payment are deviated from without justifiable reason, ECOS may at any time request delivery versus cash, advance payment or security. All outstanding claims including those for which payment by instalments has been agreed are due immediately.

4.5 The granted terms of payment shall apply to the credit limit granted by ECOS for each individual order. If the currently defined credit limit is exceeded, ECOS reserves the right to request advance payment of the remaining order value. In case of a subsequent change in creditworthiness ECOS is entitled to request payment step by step against delivery or corresponding securities and to withdraw from the contract in case of non-performance.
 

5. Reservation of title

5.1 The contractual product remains the property of ECOS until all claims, including future claims, arising from this contract and beyond it from the entire business relationship with the customer have been fulfilled.

5.2 The customer shall be revocably entitled to pass on the reserved goods in the ordinary course of business under reservation of title, provided that he in turn resells the goods under his own reservation of title, but not to pledge them or assign them as security in any form. In case of access of third parties to the goods subject to retention of title, the customer must point out the ownership of ECOS and inform ECOS immediately.

5.3 If the goods subject to retention of title are combined, processed or mixed with goods not belonging to ECOS, ECOS will acquire co-ownership in proportion to the invoice value of the goods subject to retention of title to the other goods. Processing of the goods subject to retention of title is carried out for ECOS as the manufacturer within the meaning of § 950 BGB (German Civil Code) without any obligation on the part of ECOS. The processed goods become the co-ownership of ECOS in the sense of the above provisions.

5.4 If the customer acts in breach of the contract, in particular if the purchase price due is not paid, ECOS is entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand the return of the goods on the basis of the reservation of title. The demand for return does not include the declaration of withdrawal; ECOS is rather entitled to demand only the return of the goods and to reserve the right of withdrawal. If the customer does not pay the due purchase price, ECOS may only assert these rights if the customer has been unsuccessfully set a reasonable deadline for payment or if such a deadline is dispensable according to legal regulations.

5.5 The assertion of the reservation of title or the attachment of the delivery item by ECOS shall not be deemed a withdrawal from the contract if the customer is a merchant.

5.6 The customer hereby assigns to ECOS by way of security all claims against third parties arising from the resale of the goods or product in total or in the amount of the possible co-ownership share of ECOS. ECOS accepts the assignment. The aforementioned obligations of the customer also apply with regard to the assigned claims.  The customer remains entitled to collection even after the assignment. Notwithstanding this, ECOS is entitled to collect claims in the ordinary course of business, but will only make use of this right in the event of default of payment or if the customer files for bankruptcy or composition proceedings. At the request of ECOS the customer will name the assigned claims, provide the necessary information, hand over documents and inform the debtors of the assignment. ECOS may disclose this assignment at any time to secure its payment claims.

5.7 ECOS is responsible for selecting the securities to be released. In the case of goods subject to retention of title the net list price of ECOS applicable at the time of the request for release is decisive for the valuation of the securities; in the case of assigned claims the net invoice amount less a security discount of 30% is to be assumed. In the case of claims where the customer's customer is already in default of payment or where facts are known which give justified reason to believe that a default is to be feared, the discount shall be 50%. In the case of securities existing only in the form of co-ownership due to combination, mixing or processing, the net list price of the goods delivered by ECOS minus a discount of 30% shall be assumed.

5.8 If the realizable value of the securities exceeds the claims of ECOS by more than 10%, ECOS will release securities of its choice upon request of the customer.

5.9 Items delivered for testing and demonstration purposes remain the property of ECOS. They may only be used by the customer beyond the test and demonstration purpose on the basis of a separate agreement with ECOS.
 

6. Warranty

6.1 ECOS warrants that the contractual products are free from material defects, including the absence of warranted characteristics. The contractual products are manufactured with due care. 

6.2 ECOS warrants that the contractual products are described in the product information in a generally applicable manner and that they are basically fit for use within this framework. The technical data and descriptions in the product information alone do not constitute a guarantee of certain properties. A warranty of properties in the legal sense is only given if the respective specifications have been confirmed in writing by ECOS. ECOS does not guarantee that the program and hardware functions will meet the customer's requirements or that they will work together in the selection made by the customer.

6.3 The Buyer's claims for defects require that he has complied with his statutory obligations to inspect and give notice of defects (§§ 377, 381 HGB). If a defect is discovered during the inspection or later, ECOS must be notified of this in writing without delay. Such notification shall be deemed to be without delay if it is made within two weeks, whereby timely dispatch of the notification shall be sufficient to comply with the deadline. Irrespective of this obligation to examine and give notice of defects, the buyer must give written notice of obvious defects (including wrong and short delivery) within two weeks of delivery, whereby timely dispatch of the notice is sufficient to meet the deadline. If the buyer fails to carry out a proper inspection and/or report defects, ECOS is not liable for the defect not reported.

6.4 In the event of a warranty claim, ECOS may choose to remedy the defect by removing the defect (repair) or by delivering a replacement. Replaced parts become the property of ECOS. The right of ECOS to refuse subsequent performance under the statutory conditions remains unaffected. If ECOS does not remedy defects within a reasonable period of grace set in writing, the customer is entitled to demand either the cancellation of the contract or a reasonable reduction of the purchase price. In the case of an insignificant defect, however, there is no right of withdrawal.

6.5 In case of rectification ECOS will bear the labor costs. All other costs of the repair as well as the incidental costs associated with a replacement delivery, in particular the transport costs for the replacement part, will be borne by the customer. Subsequent performance does not include the removal of the defective item nor the reinstallation if ECOS was not originally obliged to install it. ECOS is entitled to make the subsequent performance owed dependent on the purchaser paying the purchase price due. However, the buyer is entitled to retain a reasonable part of the purchase price in relation to the defect.

6.6 If the examination of a notice of defect shows that there is no case of warranty, ECOS is entitled to demand compensation from the customer for all expenses incurred. The costs of the inspection and repair will be charged at ECOS' current service prices.
 

7. Liability

7.1 Unless otherwise provided for in these GTC including the following provisions, ECOS is liable for any breach of contractual and non-contractual obligations in accordance with the relevant statutory provisions.

7.2 ECOS is liable for damages - regardless of the legal basis - in case of intent and gross negligence. In case of simple negligence ECOS is only liable
    a) for damages resulting from injury to life, body or health,
    b) for damages resulting from the breach of a material contractual obligation (an obligation the fulfilment of which is essential for the proper performance of the contract and on the fulfilment of which the contractual partner regularly relies and may rely); in this case, however, the liability of ECOS is limited to compensation for the foreseeable, typically occurring damage.

7.3 The limitations of liability resulting from 7.2 shall not apply if ECOS has fraudulently concealed a defect or has assumed a guarantee for the quality of the goods. The same applies to claims of the buyer under the Product Liability Act.

7.4 The Buyer may only withdraw or terminate the contract due to a breach of duty which does not consist of a defect if ECOS is responsible for the breach of duty. A free right of termination by the purchaser (in particular according to §§ 651, 649 BGB) is excluded. In all other respects the legal requirements and legal consequences apply.
 

8. Statute of limitations

8.1 Notwithstanding § 438 para. 1 No. 3 BGB (German Civil Code), the general limitation period for claims arising from material defects and defects of title shall be one year from delivery. If acceptance has been agreed, the limitation period shall commence upon acceptance.

8.2 Special statutory provisions for in rem restitution claims of third parties (§ 438 para. 1 No. 1 BGB), in case of fraudulent intent of the Seller (§ 438 para. 3 BGB) and for claims in supplier recourse in case of final delivery to a consumer (§ 479 BGB) shall remain unaffected.

8.3 The aforementioned limitation periods of the law on the sale of goods shall also apply to contractual and non-contractual claims for damages of the Buyer based on a defect of the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in individual cases. The limitation periods of the Product Liability Act shall remain unaffected in any case. Otherwise, the statutory limitation periods shall apply exclusively to the Buyer's claims for damages pursuant to Section 7.
 

9. Export

9.1 The export or re-export of goods, software and technology under this Agreement may be subject, in whole or in part, to the export control and sanction provisions of the European Union, the Federal Republic of Germany and/or the United States of America (USA) However, in the event of sanction provisions of non-EU states, the rights and obligations set forth in the following paragraphs shall only exist to the extent that sanctions are imposed on states against which the United Nations or the European Union have also imposed sanctions and to the extent that compliance with such sanctions is permissible under European law.

9.2 ECOS shall be released with immediate effect from the obligation to export or re-export goods, technologies, know-how or individual components if ECOS does not receive the necessary permits for the export or re-export or does not receive them in time In this case ECOS is entitled to withdraw from an already concluded contract. In this case the buyer is not entitled to claim damages or reimbursement of expenses.

9.3 ECOS is free at any time to refuse the performance of the contract for reasons of export control or sanctions law and to withdraw from contracts already concluded In this case the buyer is not entitled to claim damages or reimbursement of expenses.

9.4 The Buyer and the End User undertake to comply at all times with all applicable export, re-export and import laws and regulations in the USA, the European Union and the Federal Republic of Germany in connection with the use, transfer, sale, export, re-export and import of the scope of supply and services of the Buyer. Exceptions to this require prior examination and subsequent written confirmation by ECOS.

9.5 ECOS has the right to inspect the Buyer with regard to compliance with the obligations under this paragraph. For this purpose the Buyer shall provide ECOS with all information, such as documents, data, etc., which the Seller deems necessary or helpful to verify compliance with the provisions of this Clause 9.
 

10. Choice of law and place of jurisdiction

10.1 These General Terms and Conditions and all legal relations between ECOS and the purchaser are governed by the law of the Federal Republic of Germany to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods. The prerequisites and effects of the reservation of title according to clause 5 are subject to the law of the respective location of the goods, insofar as the choice of law made in favor of German law is inadmissible or ineffective.

10.2 If the buyer is a merchant as defined in the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive - also international - place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is the registered office of ECOS in Mainz, Germany.