Scope of validity
All mutual claims arising from and in connection with the conclusion of a contract between business customers who are not consumers in the sense of Section 13 of the German Civil Code (BGB), and ECS GmbH & Co. KG shall always be governed by these General Terms and Conditions in the version valid at the time of the conclusion of the respective contract. The GTC apply only if the customer is an entrepreneur (Section 14 BGB), a legal entity under public law or a special fund under public law.
- General provisions
1.1 The GTC in their current version shall also apply as a framework agreement for future contracts with the same customer without us having to refer to them again in each individual case; we shall inform the customer promptly of any changes to our GTC in such cases.
1.2 These GTC shall apply exclusively, even if the customer refers to alternative or supplementary terms and conditions in its order or in a letter of confirmation. Deviating, conflicting or supplementary general terms and conditions of our customers shall only form part of the contract if and to the extent that we have expressly agreed to them in writing. This consent requirement shall apply in any case, for example even if we are aware of the customer’s GTC and carry out the delivery or service to the customer without reservation.
1.3 Legally relevant declarations and notifications to be made to us by the customer after conclusion of the contract (e.g. setting of deadlines, notifications of defects, declaration of withdrawal or reduction, notices of termination) shall only be valid if made in writing.
- Proposals and contract conclusion
2.1 All proposals made by ECS GmbH & Co. KG are subject to change and non-binding. This shall also apply if we have provided the customer with product descriptions and technical documentation (e.g. drawings, plans, calculations, costings, presentations) in advance of the conclusion of the contract, unless a commitment is expressly agreed in writing.
2.2 If no contract is concluded for the performance of services based on our advice and/or planning, all planning documents prepared by us shall be returned without delay.
2.3 An order placed by a customer shall be considered a binding contractual proposal. Unless otherwise stated in the order, we shall be entitled to accept this contractual proposal within 14 days of receipt.
2.4 Acceptance may be confirmed either in writing (e.g. by order confirmation) or by conclusive action (in particular unconditional performance of the order).
2.5 All side agreements and amendments to the purchase contract shall require the written confirmation of ECS GmbH & Co. KG.
2.6 The content of each contract shall be governed exclusively by agreements made and these GTC.
2.7 When executing orders based on drawings, designs or other specifications provided by the customer, the customer warrants that no industrial property rights or other rights of third parties are infringed by the manufacture and delivery according to such specifications. If claims are asserted against us by a third party due to an infringement of such rights, the customer shall be obliged to indemnify us against any such claims upon first request.
- Scope of delivery and services
3.1.1 The written order confirmation of ECS GmbH & Co. KG shall be decisive in determining the scope of delivery and services.
3.1.2 We design and develop components, assemblies, systems, devices, and machine parts for a wide range of applications. The scope of our services includes in particular the development of component concepts, the selection of suitable manufacturing processes and materials, 3D CAD assembly designs, test execution/supervision, and complete product developments. Furthermore, we draft production strategies, plan entire production lines, and supervise the series production start-up. The manufacture of prototypes also falls within our scope of services. The aforementioned services are hereinafter referred to as “services”.
3.1.3 The determination of the type and scope of the services to be provided by us shall always require an agreement in writing (letter, fax, e-mail, etc.), in particular by an order confirmation. We shall not be responsible for services that have not been explicitly agreed upon in writing.
3.1.4 Should it become apparent during the performance of a service that it is practically or legally impossible, we shall advise the customer of this without delay. If, following such advice, the customer does not amend the order to the required extent or does not establish conditions to enable performance, we shall be entitled to terminate the respective contract. The customer shall reimburse any costs incurred by us up to such point in time.
3.1.5 Unless otherwise expressly agreed in writing, the customer shall bear the packaging, shipping, and transport costs for deliveries.
3.1.6 The customer shall provide all information required for the provision of the respective service in a timely manner.
3.1.7 There is no warranty of success for research and development projects.
- Remuneration, invoicing
4.1.1 The prices shall apply to the agreed scope of services and delivery. Any additional or special services shall be charged separately. All prices are in EUR plus statutory sales tax.
4.1.2 Unless a fixed or another type of remuneration has been agreed upon, we shall receive a time-based remuneration calculated by hours, based on our current price list. Insofar as our services are to be provided on weekends or public holidays at the customer’s request, we shall be entitled to set a reasonable increase in remuneration for such hours.
4.1.3 Should faults or disruptions occur for which the customer is responsible, or should the customer retroactively request changes or additions to the service, we shall be entitled to charge for the additional time spent as a result in accordance with the above provision and for any other costs incurred as a result, based on expenditure.
4.1.4 Our invoices shall be due without deduction and payable within 14 days of the invoice date. The customer shall be in default upon expiry of the aforementioned payment deadline. During any period of default, interest shall be charged on the outstanding invoice amount at the statutory default interest rate applicable at the time. We reserve the right to claim any further damages caused by such default.
4.1.5 Compliance with the agreed payment dates is a material basis for the provision of the services. Should these not be complied with, we shall be entitled to suspend the work in progress and to terminate the contract. All associated costs and loss of profit shall be borne by the customer. In the event of late payment, interest shall accrue at a rate of 8 percentage points above the base rate from the date of default.
4.1.6 The customer may only offset claims by ECS GmbH & Co. KG and may only assert a right of retention due to other claims if these are undisputed, legally established, or acknowledged by ECS GmbH & Co. KG. In addition to the foregoing, the customer may only exercise a right of retention if this is based on the same contractual relationship.
- Delivery time, delays
5.1.1 Information on dates of delivery and service are non-binding unless they have been confirmed by us in writing as binding. If shipment has been agreed, delivery deadlines and delivery dates refer to the time of handover to the forwarding agent, carrier or other third party commissioned with the transport.
5.1.2 Compliance with delivery deadlines shall be subject to the timely receipt of all documents to be provided by the customer, necessary authorizations and approvals, in particular of plans, as well as compliance by the customer with the agreed terms of payment and other obligations. If these conditions are not fulfilled on time, the deadlines shall be extended accordingly; this shall not apply if we are responsible for the delay.
5.1.3 If additional services are later agreed upon that impact on agreed deadlines, such deadlines shall be extended by a reasonable period of time.
5.1.4 Any extension period set by the customer must be reasonable. A period of less than 10 working days is only reasonable in cases of particular urgency.
- Defects, acceptance, warranty, liability, time-barring
6.1.1 We warrant that the service provided by us is of the agreed quality, is free of material defects that nullify or reduce its suitability for the intended or customary use and is free of third-party rights. No warranty beyond this shall be assumed. Non-material deviations from the agreed quality shall not constitute a defect.
6.1.2 The customer shall be obliged to immediately and thoroughly examine each individual service provided by us that contains contractual work elements before it is used in live operation. The customer shall immediately notify us in writing of any defects and provide sufficient documentation so that the defect can be remedied as quickly as possible and also to enable us to take all measures necessary to investigate and eliminate the defect. If there are no material defects, the performance shall be accepted by the customer. The customer shall accept the service no later than four weeks after it has been provided or delivered. If the customer allows the aforementioned deadline to expire, the service shall be deemed accepted. Acceptance shall also be deemed to have taken place if the customer commences live operation without acceptance. If there are material defects that make it impossible to commence live operation, a new acceptance test shall be carried out after the defects have been remedied, for which the above provisions shall apply. Insofar as a service consists of the delivery of an object of purchase, the obligation to inspect and give notice of defects pursuant to Section 377 of the German Commercial Code (HGB) shall apply with the respective legal consequences.
6.1.3 We shall only be liable for damages, regardless of the legal grounds, in the event of willful misconduct or gross negligence. In the event of ordinary negligence, we shall only be liable
- a) for damages arising from injury to life, limb or health;
- b) for damages arising from the breach of a material contractual obligation, the fulfillment of which is a prerequisite for the proper execution of the contract and on whose fulfillment the contractual partner generally relies and may rely; in this case, however, our liability shall be limited to compensation for damages that are foreseeable and typically occur;
- c) in accordance with the provisions of mandatory statutory liability regulations;
- d) for damage caused by defects resulting from the absence of guaranteed properties and for the consequential damage caused by defects against which the guarantee was intended to protect the customer.
6.1.4 The personal liability for negligence of our legal representatives, vicarious agents and employees is excluded.
6.1.5 ECS GmbH & Co.KG has covered its liability risk by taking out business and professional liability insurance for consequential damages. The amount insured is a total of EUR 3,000,000 for financial loss, personal injury, and property damage. Any liability in excess of this amount is excluded.
6.1.6 Except in the aforementioned cases, we shall not be liable, i.e. all other
claims and rights of the customer (e.g. termination, reduction, adjustment of the contract, reimbursement of expenses, etc.) shall be excluded, unless and to the extent this is in violation of statutory regulations.
6.1.7 All claims against us shall become time-barred within one year from the provision of the service.
- Retention of title
7.1.1 The retention of title agreed below shall serve to secure all current and future claims against the customer arising from the contractual relationship between the contracting parties (including balance demands from a current account that is limited to this contractual relationship). The goods delivered by us remain our property until payment in full has been received for all secured claims. The goods, as well as the goods covered by the retention of title that replace them in accordance with the following provisions, are hereinafter referred to as “reserved goods”. The customer shall store the reserved goods for us free of charge. The customer shall be entitled to process and sell the reserved goods in the normal course of business until such time as a claim is made against them. Assignments as security and pledges are not permitted.
- Industrial property rights, usage rights
8.1.1 To the extent that our services produce work results that may be protected by industrial property rights, we shall advise the customer accordingly. The parties shall then mutually agree by whom and in what manner the work results shall be protected.
8.1.2 No agreement between the customer and us may be understood or interpreted as transferring or licensing industrial property rights to the customer unless an agreement is reached in individual cases as per Section 8.1.1 or a separate transfer or license agreement is concluded.
8.1.3 The customer may only use the services provided by us in the manner stipulated in the contract. Any alternative use is only permitted with our prior written consent.
8.1.4 The customer is obligated to maintain strict secrecy with regard to any and all matters relating to our services.
The customer shall only be permitted to cancel an order with our written consent. If this is granted, we shall be entitled to charge a cancellation fee of up to 30% of the order value in addition to the services provided and costs incurred by us.
- Data protection
The customer agrees that we may archive the customer’s personal data (stock and usage data) in accordance with the relevant data protection provisions, insofar as this is necessary for the performance of the order.
- Applicable law and place of jurisdiction
11.1 The place of performance for deliveries and payments is the registered office of ECS GmbH & Co. KG in 64668 Rimbach, Germany.
11.2 These GTC and all legal relationships between us and the customer shall be governed by the laws of the Federal Republic of Germany, excluding international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.
11.3 The venue for all disputes arising directly or indirectly from the contractual relationship shall be our registered office. ECS GmbH & Co. KG is also entitled to bring an action against the customer at any other legal venue. The same shall apply if the customer does not have a general legal domicile in Germany or if the customer’s domicile or usual place of residence is unknown at the time the action is filed.
- Conflict with other terms and conditions
12.1.1 If the customer also uses GTCs, the contract shall be concluded even without express agreement on the inclusion of general terms and conditions. Insofar as the contents of the different general terms and conditions correspond, they shall be deemed to be agreed. Individual conflicting provisions shall be replaced by the provisions of standard contract law. The same applies in the event that the customer’s terms and conditions contain provisions that are not included in the scope of these terms and conditions. If these terms and conditions contain provisions that are not contained in the customer’s terms and conditions, these terms and conditions shall apply.
Provisions that are not contained in the customer’s terms and conditions, these terms and conditions shall apply.
- Terms and Conditions of Purchase
13.1 All deliveries, services and proposals from our suppliers shall be made exclusively on the basis of these General Terms and Conditions of Purchase. These form an integral part of all contracts we conclude with our suppliers for their deliveries or services. They shall also apply to all future deliveries, services, or proposals to the customer, even if they are not expressly agreed upon again.
13.2 These General Terms and Conditions of Purchase shall apply exclusively, even if the supplier refers to alternative or supplementary terms and conditions in its letter of confirmation.
13.3 The price stated in the order is binding.
13.4 The supplier shall confirm orders placed by ECS GmbH & Co. KG without delay. If the confirmation is not received within 8 days by ECS GmbH & Co. KG, we reserve the right to cancel the order without charge.
13.5 Quotations to ECS GmbH & Co. KG shall include delivery “free domicile”, packaging, insurance, sales tax, and any customs duties and taxes, unless expressly stated otherwise.
13.6 The delivery time (delivery date or deadline) specified by us in the order or otherwise as per these General Terms and Conditions of Purchase shall be binding. Early deliveries shall only be possible with written approval by ECS GmbH & Co. KG.
13.7 Any amended or additional services provided by the supplier must be ordered in writing by the purchasing department of ECS GmbH & Co. KG or persons authorized for this purpose.
13.8 The supplier is obliged to inform us immediately in writing if any circumstances occur or become apparent because of which the delivery time cannot be met.
13.9 If the latest day on which delivery is to be made can be determined under the contract, the supplier shall be in default upon expiry of this day even if we do not issue a reminder.
13.10 In the event of a delay in delivery, we shall be entitled to assert statutory claims without limitation, including the right to terminate the contract and the right to claim damages in lieu of performance after a reasonable grace period has expired without result.
13.11 In the event of delays in delivery, we shall be entitled, after giving prior written notice to the supplier, to claim a contractual penalty in the amount of 0.5 % of the respective order value for each commenced week of delay in delivery, up to a maximum of 5 %. The contractual penalty shall count towards the damage caused by delay to be compensated by the supplier.
13.12 Even if shipment has been agreed, the risk shall only pass to us once the goods have been handed over to us at the agreed place of delivery. However, if acceptance of the goods is required, then the risk shall only pass to us upon acceptance.
13.13 We reserve the title or copyright to orders placed by us, as well as for drawings, illustrations, calculations, descriptions, and other documents made available to the supplier. The supplier may neither make them accessible to third parties nor use or reproduce them themselves or through third parties without our express consent. Upon request, the supplier shall return these documents to us in full if they are no longer required in their normal course of business or if negotiations do not lead to the conclusion of a contract. In this case, copies made by the supplier shall be destroyed; the only exceptions to this are retention within the scope of statutory obligations to retain data and the storage of data for backup purposes within the scope of normal data backup.
13.14 Any retention of title by the supplier shall only apply to the extent that it relates to our payment obligations for the respective products to which the supplier retains title. Extended or prolonged retentions of title are not permitted. Ownership of the delivered goods shall be transferred to ECS GmbH & Co. KG immediately upon payment.
13.15 If we notify the supplier of deviations in quality and quantity within seven working days of receipt of the goods, such notice shall be deemed to have been given in due time. If we notify the supplier of any concealed material defects within seven working days of discovery, such notice shall be deemed to have been given in due time.
13.15 Upon supplier’s receipt of our written notice of defects, the time-barring of warranty claims shall be suspended until the supplier rejects our claims, declares the defect remedied, or otherwise refuses to continue negotiating our claims.
13.16 The supplier shall be responsible for all claims asserted by third parties for personal injury or property damage that can be attributed to a defective product supplied by them and shall be obliged to indemnify us against any liability resulting therefrom. If we are obliged to issue a recall to third parties due to a defect in a product supplied by the supplier, the supplier shall bear all costs associated with such recall.
13.17 As stipulated in paragraph 24, the supplier warrants that the products delivered do not infringe any third party industrial property rights in countries of the European Union or other countries in which they manufacture the products or have them manufactured.
13.18 The supplier is obliged to indemnify us against all claims made against us by third parties due to the infringement of industrial property rights referred to in paragraph 23 and to reimburse us for all necessary expenses relating to this claim. This requirement applies irrespective of any fault on the part of the supplier. Any further legal claims we may have due to defects in title of the products delivered to us shall remain unaffected.
13.19 The contracts concluded between us and the supplier shall be governed by the laws of the Federal Republic of Germany including the UN Convention on Contracts for the International Sale of Goods.
13.20 The supplier agrees that we may archive the supplier’s personal data (stock and usage data) in accordance with the relevant data protection provisions, insofar as this is necessary for the performance of the order.
- Severability clause
Should individual provisions of these General Terms and Conditions be or become invalid, the validity of the remaining clauses remains unaffected. The invalid clause shall be replaced by a valid clause that accomplishes the commercial purpose of the invalid clause as far as possible. Alternatively, statutory provisions shall replace the invalid provision.