Terms and Conditions of ECCO Consulting
Article 1 General information, Scope
(1) Ecco Consulting (hereinafter referred to as “Ecco”) sells the goods it markets, in particular technical furnishings, and provides the services related hereto, in particular the assembly of the goods supplied, solely on the basis of the terms and conditions stated hereunder (the “Terms and Conditions”). The Terms and Conditions shall apply to any and all of our business relationships with our customers (hereinafter referred to as the “Buyer”). The Terms and Conditions shall only apply if the Buyer is an entrepreneur (article 14 BGB – German Civil Code), a legal entity of public law or a special fund under public law.
(2) The Terms and Conditions shall particularly apply to contracts involving the sale and / or the supply of goods (“Goods”), regardless of whether we manufacture the goods ourselves or procure them from third party suppliers (articles 433, 651 BGB, German Civil Code). Unless otherwise agreed, the Terms and Conditions shall apply as in force at the time when the order is placed by the Buyer or in any case in the last version which was communicated to the Buyer in writing and shall be regarded as a framework agreement for similar future contracts, without us having to refer to them again in each individual case. The current version of the Terms and Conditions can be accessed on our website http://www.ecco-consulting.eu/terms/.
(3) Our terms and conditions shall apply exclusively. Differing, conflicting or additional Terms and Conditions of the Buyer shall only become part of the contract as we have expressly agreed to their applicability. This requirement of approval shall apply in any case , for example, even if we are aware of the Terms and Conditions of the Buyer and execute the delivery to the Buyer without reservation.
(4) Individual agreements made with the Buyer in an individual case (including side agreements, additions and amendments) shall in any case take precedence over these Terms and Conditions. For the content of such agreements, subject to proof of the contrary, a written contract or written confirmation from Ecco shall be mandatory.
(5) Legally relevant declarations and notifications which are to be provided to us by the Buyer after conclusion of the contract (e.g. setting of deadlines , notice of defects, declaration of withdrawal or reduction), shall be made in writing to become effective. An implicit waiver of Ecco to compliance with the written form in the past does not constitute a waiver of compliance with the provisions of the present conditions affected hereof.
(6) References to the applicability of statutory provisions are only intended for clarification purposes. Even without such clarification the statutory provisions shall apply, unless they are directly modified in these Terms and Conditions or expressly excluded.
Article 2 Conclusion of Contract
(1) Our offers are non-binding. This shall also apply in case we provided the Buyer with catalogs, technical documentation (e.g. drawings, plans, calculations, cost estimates, references to DIN standards), other product descriptions or documents – also in electronic form – for which we reserve property and copyrights. They must not be made available to third parties without written permission.
(2) Pictures, measurements and weights in our brochures are approximate only. We do not take over any guarantee regarding their compliance. Information about goods and services communicated by Ecco shall only be part of the contract if they are stated in a written order confirmation or a written contract. Information and offers shall refer to regular standard quality and design. General information on quality and design are only to be regarded as an average.
(3) The ordering of goods by the Buyer is considered as a binding contract offer. Unless otherwise stated in the order, we are entitled to accept this contract offer within 2 weeks after its reception.
(4) The acceptance can be declared in writing (e.g. by order confirmation) or by delivery of the goods to the Buyer, respectively.
Article 3 Terms of Delivery and Delay in Delivery
(1) The delivery period is agreed on individually or provided by us upon acceptance of the order. If this is not the case, the delivery time is approximately two weeks after the contract was concluded.
(2) The delivery period begins on the date of the order confirmation but not before clarification of all execution details and all conditions the Buyer has to fulfill.
(3) In case we are unable to meet the binding delivery deadlines for reasons beyond our control (impossibility of performance), we will inform the Buyer immediately and at the same time indicate the expected new delivery period. If the performance is also impossible within the new delivery period, we are entitled to withdraw completely or partially from the contract; any consideration already paid by the Buyer will be reimbursed immediately. As a case of impossibility of performance in this sense particularly applies the non-timely delivery by our suppliers in case we have concluded a congruent hedging transaction, neither we nor our supplier are at fault or we are not obliged to procure the goods or services in a particular case.
(4) The rights of the Buyer in accordance with article 8 of these Terms and Conditions and our statutory rights, especially in view of the exclusion of the liability to perform (e.g. due to the impossibility or unreasonableness of performance and / or supplementary performance) shall remain unaffected.
Article 4 Delivery, Transfer of Risk, Acceptance, Default of Acceptance
(1) Delivery shall be carried out ex stock Düsseldorf, where there is also the place of performance for the delivery and any supplementary performance. Upon request and at expense of the Buyer the goods are shipped to another destination (sales shipment). Unless otherwise agreed, we are entitled to determine the type of shipment (in particular transport companies, shipping, packaging) by ourselves.
(2) The risk of accidental loss and accidental deterioration of the goods shall be passed on to the Buyer upon handover of the goods at the very latest. In case of a sales shipment, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay is already transferred upon delivery of the goods to the carrier, the freight forwarder or another person or institution determined to carry out the dispatch. If acceptance has been agreed upon, this is decisive for the transfer of risk. In addition, the statutory provisions on contracts for works and services (“Werkvertragsrecht”) shall apply mutatis mutandis for this acceptance agreed upon. It is deemed equivalent to the handover or acceptance if the Buyer is in default of acceptance.
(3) If the Buyer is in default of acceptance, omits an act of cooperation or delays our delivery for other reasons in the control of the Buyer, we are entitled to a compensation for the resulting damage including additional expenses (e.g. storage costs). As a compensation, we charge a lump sum in the amount of 80.00 EUR per calendar day, starting with the delivery date or – in the absence of a delivery period – with the notification of readiness for shipment of the goods.
Evidence of greater damage and our legal claims (especially compensation for additional expenses, reasonable compensation, termination) shall remain unaffected; the lump sum is, however, to be offset against further monetary claims. The Buyer shall retain the right to furnish evidence that we have not incurred any damage or incurred a damage that is lower than the above lump sum.
Article 5 Pricing and Terms of Payment
(1) If not otherwise agreed in a particular case, our current prices according to the price list valid at the date the contract is concluded shall apply, namely ex stock Düsseldorf plus applicable VAT. Unless otherwise agreed, the prices exclusively refer to the goods to be delivered. The cost for additional services , as e.g. installation, wiring, etc. are not included.
(3) The purchase price is due and payable within 2 weeks from the date of invoice and delivery or acceptance of the goods. However, we are entitled, also within the framework of an ongoing business relationship, to carry out shipments, in whole or in part, on a cash with order basis only. A corresponding reservation will be declared by us with the order confirmation at the latest.
(4) Upon expiry of the above payment period, the Buyer is in default. The purchase price during the delay shall be deemed to include a default interest at the current statutory rate. We reserve the right to claim further damages. Our claim for commercial interest on maturity (article 353 HGB, German Commercial Code) vis-à-vis merchants shall remain unaffected thereof.
(5) The Buyer shall only be entitled to set-off or to exercise any rights of lien or retention to the extend its claim is recognized by declaratory judgment or undisputed. In case of defects of delivery, the rights of the Buyer, in particular according to article 7, section 7, clause 2 hereunder, shall remain unaffected.
(6) If after conclusion of the contract there is evidence (e.g. application for the initiation of insolvency proceedings) that our claim to the purchase price is jeopardized due to the Buyer’s lack of performance, we shall be entitled to withhold performance and – if necessary after setting a deadline – to withdraw from the contract (article 321 BGB, German Civil Code) in accordance with the statutory provisions. As for contracts regarding the production of specific items (individual production) we shall be entitled to declare our withdrawal immediately; the statutory regulations concerning the dispensability of setting a deadline remain unaffected.
Article 6 Retention of Title
(1) Until full payment of all our present and future claims arising from the sales contract and an ongoing business relationship (secured claims) we shall retain the title to the goods sold.
(2) The goods under retention of title shall neither be pledged nor be assigned by way of security to third parties before full payment of the secured claims is made. The Buyer shall be obliged to inform us immediately in writing if an application for the initiation of insolvency proceedings is made or if third parties attempt to seize or attach the goods belonging to us.
(3) In case of a breach of contract by the Buyer, especially in case of non-payment of the purchase price due, we are entitled to withdraw from the contract and / or to claim the return of the goods due to the retention of title in accordance with the statutory provisions. The claim to return the goods does not automatically imply a declaration of withdrawal; rather, we are entitled to only reclaim the goods and reserve the right to withdraw from the contract. If the Buyer does not pay the purchase price due, we may only assert these rights if we have previously set a reasonable deadline for payment to the Buyer to no avail or such a deadline is dispensable in accordance with the statutory provisions.
(4) Until further notice as mentioned below under (c) the Buyer has the right to resell and / or process the goods under retention of title in the ordinary course of business. In this case, the following provisions shall apply additionally.
(a) The retention of title extends to the products resulting from the processing, mixing or combination of our goods at their full value, whereby we are considered to be the manufacturer. If in the event of processing, mixing or combining with goods from third parties the latter’s property rights persist, we shall acquire a co-ownership in proportion to the invoice value of the processed, mixed or combined goods. Otherwise, the same applies for the resulting product as for the goods delivered under retention of title .
(b) For reasons of security and in accordance with the section above, at that time the Buyer shall already assign us any claims against third parties incurred from the resale of the goods or products in total or in the amount of our share of co-ownership. We accept the assignment. The obligations of the Buyer mentioned in section 2 shall also apply with respect to the assigned claims.
(c) To collect the claim the Buyer remains authorized besides us. We undertake not to collect the claim as long as the Buyer meets his payment obligations vis-à-vis us, there is no deficiency of the Buyer’s performance and we do not assert a right to the retention of title according to section 3. If this is the case, we have the right to request that the Buyer notifies us of the assigned claims and their debtors, provides all information necessary for collection, hands over the pertinent documents and informs the debtors (third parties) of the assignment. In addition, we are entitled to revoke the authority of the Buyer to further resale and processing of the goods under retention of title in this case.
(d) In the event that the claims of the Buyer arising from the resale are deposited in a current account, the Buyer hereby also assigns his claims from the current account vis-à-vis his customer. The assignment shall correspond to the amount of the resale price including VAT.
(e) If the realizable value of the securities exceeds our claims by more than 10%, we shall release securities at our discretion upon the request of the Buyer.
Article 7 Buyer’s Warranty Claims
(1) Unless not otherwise stipulated hereunder, the statutory provisions shall apply to the Buyer’s rights regarding defects of material and defects of title (including wrong and short delivery as well as improper installation or faulty mounting instructions). In any and all cases, the special statutory provisions for final delivery of goods to a consumer remain unaffected.
(2) Our liability for defects is especially based on the agreement made regarding the quality of the goods. All product descriptions which are the subject matter of the individual contract shall be considered as an agreement on the quality of the goods.
(3) If the quality has not been agreed upon, it must be assessed, according to the statutory regulation, whether there is a defect or not (article 434 section 1 clause 2 and 3 BGB, German Civil Code). Ecco does not assume any liability for public statements of the manufacturer or other third parties (e..g advertising statements).
(4) The Buyer’s warranty claims require that he has observed his statutory obligations to inspect and give notice (articles 377, 381 HGB, German Commercial Code). If during the examination or later a defect reveals, we must be given notice in writing immediately. A notice within two weeks is deemed immediately, whereby the timely dispatch of the notice is sufficient to observe the deadline. Regardless of this obligation to inspect and give notice the Buyer must report obvious defects (including wrong and short delivery) in writing within two weeks after delivery, whereby it is also deemed sufficient to timely dispatch the notice to meet the deadline. If the Buyer fails to properly inspect and / or give notice of defects, liability for this unreported defect shall be excluded.
(5) The warranty claim does not apply if the sales object has been altered by third parties or by incorporating parts of foreign origin and there is a causal connection between the damage and the alteration or if the Buyer fails to comply with the rules on the treatment of the sale object, or wear or damage is due to negligence or improper handling.
(6) If the goods supplied are defective, we first have the right to choose whether we provide supplementary performance by remedying the defect (repair) or by delivery of a faultless item (replacement delivery). Our right to refuse supplementary performance under the legal conditions shall remain unaffected thereof.
(7) We are entitled to make the supplementary performance owed subject to the Buyer paying the purchase price due. However, the Buyer shall be entitled to retain a reasonable part of the purchase price in relation to the defect.
(8) The Buyer has to give us the necessary time and opportunity to carry out the subsequent performance owed, in particular, to hand over the rejected goods for examination purposes. In case of replacement, the Buyer must return the defective item according to legal regulations. Supplementary performance shall neither entail the extension of the defective goods nor the re-installation, if we were not initially obliged to carry out the installation.
(9) The costs and expenditures required for the purpose of examination and supplementary performance, in particular transport, travel, labor and material costs (not: dismantling and installation costs) shall be borne by us in case there is actually a defect. Otherwise we are entitled to claim compensation from the Buyer for the costs incurred from the unjustified request for remedy of defects (particularly testing and transportation costs), unless the lack of defects could not be detected for the buyer.
(10) In urgent cases, for example, if operational safety is at risk or to avert disproportionate damage, the Buyer has the right to remedy the defect himself and claim reimbursement for the objectively necessary expenses from us. We have to be notified immediately, and if possible in advance, of such self-remedy. The right of self-remedy does not apply if we would be entitled to refuse an appropriate remedy under the statutory provisions.
(11) If the supplementary performance has failed or a reasonable deadline set by the Buyer for such a supplementary performance expired to no avail or is not necessary according to statutory provisions, the Buyer shall be entitled to withdraw from the purchase contract or reduce the purchase price. In case of a minor defect, however, there shall be no right of withdrawal.
(12) A warranty for the goods supplied shall only exist if it has been explicitly stated in the order confirmation of the respective products. In this case, the warranty terms communicated to the Buyer shall apply.
(13) Claims of the Buyer for damages or compensation for fruitless expenditure shall exclusively apply in accordance with article 8, also in case of defects, and are otherwise excluded.
Article 8 Other Liability
(1) Unless specified otherwise hereunder, we shall be liable for any breach of contractual and non-contractual obligations in accordance with the statutory provisions.
(2) For damages we shall be liable – for whatever legal reason – in the context of fault-based liability for intent and gross negligence. In case of simple negligence, we are liable subject to a milder liability standard according to statutory provisions (e.g. for diligence exercised in our own matters) only
a) for damages resulting from injury to life, body or health
b) for damages resulting from the not insignificant breach of an essential contractual obligation (obligation, the fulfillment of which ensures a correct execution of the contract and on whose compliance the contractual partner regularly relies and may rely); in this case, our liability shall be limited to compensation for the foreseeable, typically occurring damage and the amount covered by our public liability insurance in the amount of EUR 1 million.
(3) The limitations of liability resulting from section 2 hereunder also apply to breaches of duty by or for the benefit of persons whose negligence we are liable for according to legal provisions. They do not apply if we have fraudulently concealed a defect or taken over a guarantee for the quality of the goods and for claims of the Buyer according to the Product Liability Act (“Produkthaftungsgesetz”).
(4) Due to a breach of duty which does not consist of a defect, the Buyer may only withdraw from or terminate the contract if we are responsible for the breach of duty. An unrestricted right of termination of the Buyer (especially according to articles 651, 649 BGB, German Vivil Code) is excluded. Furthermore, the statutory requirements and legal consequences shall apply.
Article 9 Limitation
(1) Notwithstanding article 438, section, 1 clause 3 BGB (German Civil Code), the general limitation period for claims from defects of goods or title is one year after delivery. If acceptance has been agreed, the limitation period begins with the acceptance.
(2) However, if the product supplied is a building or an item that has been used in accordance with its usual purpose for a building and caused its defectiveness (building material), the limitation period is 5 years from delivery in accordance with the statutory provisions (article 438 section 1, clause 2 BGB, German Civil Code). Additional special statutory provisions relating to limitation (esp. article 438 section, 1 clause 1, section 3, articles 444, 479 BGB, German Civil Code) shall remain unaffected.
(3) The foregoing limitation of the sales law shall also apply to contractual and non-contractual claims for damages by the Buyer based on a defect of the goods, unless the application of the regular statutory limitation (articles 195, 199 BGB, German Civil Code) would lead to a shorter period in individual cases. However, claims for damages of the Buyer according to article 8 section 2 clause 1 and clause 2 (a), as well as under the Product Liability Act shall lapse exclusively in accordance with the statutory limitation periods.
Article 10 Supplementary Provisions for Workmanship
(1) If workings are performed e.g. as part of the installation of a facility or of individual devices, the provisions of article 10 shall apply additionally.
(2) If Ecco carries out workings free of charge these shall be considered as a goodwill and we generally shall assume no liability for their execution – except for intent or gross negligence. If workings will be charged separately, we shall be liable in accordance with article 8.
(3) The compensation for all workings shall be at actual cost based on the working hours and materials required plus fees and travel expenses in accordance with Ecco’s current rates at the moment of conclusion of the contract.
(4) The Buyer and the ordering party of the workings have to carry out all necessary measures at their own expense so that the workings can be started in time and performed without interruption. Before starting of the workings, he has to inform the vendor and contractor about the position of concealed electric power, gas, water and similar installations. In particular, he has to inform the seller about any accident prevention regulations to be observed. Any approvals required are to be obtained by the customer. Should an approval be obtained by Ecco, we do so only acting as a representative of the customer.
(5) If the workings are interrupted for more than 2 weeks due to circumstances that Ecco is not responsible for, the risk for the services already provided is transferred to the Buyer for the duration of the interruption.
(6) The warranty for workings effected begins with the initial operation of the installation by the Buyer. If the initial operation is delayed for more than 2 weeks due to circumstances for which the seller is not responsible for, the warranty is shortened by the duration of the delay. Any warranty claims against the seller for workings performed shall expire in accordance with article 9 of these Terms and Conditions.
Article 11 Confidentiality and Privacy
(1) Without our prior written consent the Buyer shall not exploit or disclose to third parties any business and trade secrets of Ecco which have or will become known to him for the purpose or during the execution of the contract and / or the negotiations. In particular, the Buyer shall not make available any offers, designs and the like to third parties.
(2) We observe the relevant data protection regulations.
Article 12 Choice of Law and Place of Jurisdiction
(1) For these Terms and Conditions and the contractual relationship between us and the Buyer the law of the Federal Republic of Germany shall apply; the application of the international uniform law, especially the United Nations Convention on Contracts for the International Sale of Goods (CISG) shall be expressly excluded.
(2) If the Buyer is a merchant as defined in the German Commercial Code (HGB), a legal entity under public law or a special fund under public law, the exclusive – also international – place of jurisdiction for all legal disputes directly or indirectly arising from the contractual relationship shall be our registered place of business in Düsseldorf, Germany. The same applies if the Buyer is an entrepreneur according to article 14 German Civil Code (BGB). In any case, however, we are also entitled to file suit at the place of delivery according to these Terms and Conditions or an overriding individual agreement or at the general place of jurisdiction of the Buyer. Overriding statutory provisions, in particular regarding exclusive competence, shall remain unaffected.
Last edited: November 2015