General Terms and Conditions
These general terms and conditions apply to the: ECT Productions GmbH & Co.KG, which will be referred to in the following as “ECT” for short.
ECT Productions GmbH & Co.KG
D – 63911 Klingenberg
Phone: +49 9372 / 98 0 97 – 00
Telefax: +49 9372 / 98 0 97 – 19
1. Subject of these conditions, Scope of application
1.1 These General Terms and Conditions, hereinafter referred to as “GTC”, apply to contracts concluded between ECT and private/business customers as well as to all other agreements made within the scope of this business relationship, unless the parties agree otherwise in writing.
Contracts within the meaning of these GTCs between ECT and the customer may also include the delivery of mouth and nose protection and related accessories. ECT does not recognize any deviating terms and conditions of the Customer. In the event that the customer does not want these GTCs to apply, he must notify ECT in writing in advance.
1.2 These General Terms and Conditions will not apply to future contracts if ECT provides modified terms and conditions prior to the conclusion of these contracts; then the modified terms and conditions will apply.
In all other cases, collateral agreements and contract amendments must be confirmed in writing by ECT in order to be effective. With the release of these terms and conditions by ECT, all terms and conditions previously used by ECT for contracts shall cease to be valid for the future. However, for contracts already effectively concluded before this date, the older terms and conditions on which they were based shall continue to apply.
2. Conclusion of contract (offer and order)
2.1 If the order by the customer is preceded by our offer, the contract is concluded by confirmation of the order. If the customer’s order differs from our offer, the contract is only concluded by our confirmation of the order. In any case, our offers are subject to change without notice and are subject to the reservation of self-supply. If the customer’s order deviates from our offer, the contract shall only be concluded upon our confirmation of the order. In any case, our offers are subject to change and are subject to our own delivery.
2.2 If the customer submits an offer to us, the contract shall only be concluded upon receipt of our order confirmation or invoice or upon delivery of the goods to the customer. Our order confirmation or invoice is decisive for the scope and content of the contract.
Our order confirmation or invoice is decisive for the scope and content of the contract.
2.3 For credit assessment purposes, ECT will, in justified cases, exchange address and creditworthiness data with credit service companies.
2.4 The information contained in brochures and catalogs, such as illustrations, drawings, weights and dimensions, is non-binding unless we have expressly designated it as binding. In particular, the above-mentioned information does not constitute a guarantee of quality and durability of any kind whatsoever. In particular, the aforementioned information does not constitute a guarantee of quality and durability of any kind.
2.5 Minor deviations from the product specifications shall be deemed approved unless they are unreasonable for the contractual partner.
3. Obligations of the customer to cooperate
3.1 The customer will support ECT in providing the service to the extent required.
3.2 The proper and professional preparation of the service to be rendered by ECT that is necessary for the performance of the service, such as the provision of information and documents, licenses/software required for the service, the power supply of the required hardware or access to the hardware in case of a malfunction, is the responsibility of the customer and is to be carried out at the customer’s expense in due time before the agreed start of the service.
3.3 Goods ordered or delivered may be subject to (re-)export restrictions, in particular those of the USA or the UK. For this purpose, the export restrictions communicated by the respective manufacturer must be observed by the customer. The customer must oblige his buyers to also observe the above-mentioned regulations. For this purpose, the export restrictions notified by the respective manufacturer must be observed by the customer. The customer must oblige his customers to also observe the aforementioned regulations. The Customer will provide ECT with all information and declarations that ECT needs to fulfill its obligations under national or international import or export regulations.
4. Rights to documents and embodied service results
4.1 Offer documents (product descriptions, sample documents, etc.) remain the property of ECT and may not be reproduced or passed on to third parties without ECT’s consent. ECT is the sole owner of the copyright to these documents. They may only be passed on with the consent of ECT. Any disclosure may only be made with the consent of ECT.
4.2 Unless otherwise provided for in the respective contract, ECT grants to Customer the non-exclusive, permanent, irrevocable and non-transferable right to use the embodied service results provided under the contract, to the extent that this right results from the purpose and scope of the contract. These rights include the agreed interim results and auxiliary means. Deviations from these usage regulations require agreement in the contract. These rights include the agreed interim results and tools. Deviations from these usage regulations require agreement in the contract.
5. Change of the service
5.1 After conclusion of the contract, the Client may demand changes in the scope of services within the scope of ECT’s capacity, unless this is unreasonable or impracticable for ECT. The modification procedure must be documented.
5.2 ECT has to examine the Customer’s request for modification and has to inform the Customer within ten working days whether the request for modification is unreasonable or not feasible for him. If the request for change is reasonable and feasible, he shall at the same time state whether or not a comprehensive examination is necessary.
5.3 If a comprehensive review of the change request is required, ECT shall at the same time submit a corresponding review offer with details of the remuneration. Within 10 working days, the Customer shall either issue the audit order or reject it. If an extensive review of the change request is not necessary, ECT shall either submit a realization offer specifying the period of performance, planned dates and effects on the remuneration or agree on the realization of the requested changes. The customer shall accept or reject the realization offer ECT within ten working days from receipt of the realization offer. Agreed changes in performance shall be documented in a binding manner by a corresponding adjustment of the contract.
5.4 The customer and ECT may agree that the services affected by the change request will be interrupted until the necessary adjustment of the contractual agreements. Any such agreement must be made in writing. Any such agreement shall be in writing.
6. Liability for material defects
6.1 The characteristics and the conditions of use for the contractual hardware and software are generally derived from the performance descriptions of the respective manufacturer or its technical releases and specifications. ECT itself does not assume any warranty in the legal sense, unless expressly agreed otherwise. In this respect, the corresponding special terms and license terms of the respective manufacturer of the products that are the subject matter of the contract shall expressly apply. ECT itself does not assume any warranty in the legal sense, unless expressly agreed otherwise. In this respect, the corresponding special provisions and license conditions of the respective manufacturer of the products that are the subject matter of the contract shall expressly apply.
6.2 For private customers, the statutory warranty period of 2 years, beginning with the transfer of risk, applies. The warranty period for merchants is 1 year for the delivery of new goods and 6 months for the delivery of used goods and begins with the transfer of risk.
The warranty period for merchants is 1 year for the delivery of new goods and 6 months for the delivery of used goods and begins with the transfer of risk.
6.3 The customer shall inspect ordered goods or other services of ECT for completeness and any defects immediately upon receipt or performance of the service and shall notify ECT in writing of any defects immediately, but no later than within two weeks after receipt of the goods or acceptance of the service. If no complaint is made immediately (two-week period), the goods or the service shall be deemed to have been properly and completely delivered or provided, unless the defect was not recognizable during the inspection. After expiry of the two-week period, the assertion of warranty rights for recognizable defects is excluded. The customer shall bear the full burden of proof for all claim prerequisites, in particular for the defect itself, for the time of discovery of the defect and for the timeliness of the notice of defect. The statutory duties of inspection and notification of defects applicable to merchants pursuant to § 377 HGB (German Commercial Code) shall remain unaffected.
6.4 In the event of a material defect, ECT shall, at its option, remedy the defect or make a subsequent delivery. Parts replaced for the purpose of subsequent performance shall become the property of ECT without compensation. If ECT does not remedy notified defects within a reasonable grace period set in writing, or if two attempts to remedy the defect fail, the customer shall be entitled either to withdraw from the respective individual purchase contract for a device, to demand a reasonable reduction in price or to claim damages. The liability rules of Clause 13 shall apply. However, in the event of only a minor breach of contract, in particular in the event of only minor defects, the customer shall not be entitled to withdraw from the contract. Warranty rights shall become statute-barred one year after receipt of the goods, unless it is a case of fraudulent intent or a warranty expressly assumed by ECT.
6.5 If operating or maintenance instructions are not followed by the customer, if changes are made to the products, if parts are exchanged, if consumables are used that do not comply with the original specifications, if additional equipment not approved by ECT is attached, or if repairs are carried out by persons not authorized by ECT, any warranty will be void unless the customer proves that the defects complained about are not due to this.
6.6 ECT is entitled to refuse subsequent performance until the customer has paid ECT the agreed remuneration less a reasonable part (not exceeding three times the expected costs of remedying the defect as determined by ECT).
6.7 The customer shall cooperate in the containment and elimination of defects. The customer shall be obliged to provide ECT with verifiable documents on the type and occurrence of defects as well as other documents illustrating the defects. If the customer does not comply with this obligation, ECT may refuse subsequent performance.
6.8 The customer shall immediately notify ECT in writing of any defects occurring during the warranty period. Prior to the implementation of the warranty, it is necessary that we are provided with the object complained about for the examination of the defect, at our discretion either at your premises or by sending it to us. The warranty obligation is not applicable if the contractual partner refuses the inspection and thus releases ECT from its warranty obligation.
6.9 If the customer has asserted a claim against ECT for alleged defects and it turns out that either there is no defect or the defect is due to a circumstance that does not justify the assertion of claims for defects, the customer will have to reimburse ECT for the costs incurred thereby.
6.10 If the customer asserts claims for defects, this will not affect any other contracts existing between ECT and the customer.
6.11 The limitation period for claims for defects by the customer shall be one year. In the case of claims due to defects in hardware or software, the limitation period shall begin with the delivery of the hardware and software to the customer. In the case of claims due to defects in work performance, the limitation period shall commence upon acceptance of the respective work performance. The customer’s commercial obligations to inspect and give notice of defects shall remain unaffected.
6.12 Warranty rights are only available to the customer as direct contractual partner of ECT and are not assignable.
6.13 The sale of used products is carried out under exclusion of any liability for material defects.
7. Manufacturer warranty
7.1 If the manufacturer of the contractual goods provides a – usually dependent – warranty, ECT shall pass this warranty on to the customer. The customer shall be responsible for transmitting the warranty cards or other comparable notification documents required for this purpose to the manufacturer in accordance with the respective manufacturer’s specifications. The scope of the warranty issued by the manufacturer, if any, is set forth in the service description, if applicable, in connection with the manufacturer’s warranty card.
7.2 In order to safeguard the warranty claims, the customer will contact the manufacturer directly in the event of the occurrence of defects covered by the warranty. In order not to jeopardize these claims, he will observe the manufacturer’s warranty provisions, in particular with regard to the intactness of the goods, type of notification, etc. In all other respects clause 6 applies.
8. Reservation of title and assignment in advance
8.1 We retain title to the delivery item until all our claims against the purchaser arising from the business relationship, including future claims arising from contracts concluded at the same time or later, have been settled. In the event that the Purchaser acts in breach of the contract, in particular in the event of default in payment, we shall be entitled to take back the object of sale. In this case, the purchaser shall be obliged to assign to us any claims for return which may exist against third parties. The taking back of the object of sale by us shall not constitute a withdrawal from the contract unless we have expressly declared this in writing. The customer shall irrevocably permit us, if the goods are still on his premises, to enter those rooms in which our property is located in order to enable us to take back the goods. In addition, the customer irrevocably permits us to enter those premises in which our property is stored at any time for inspection purposes. The seizure of the object of sale by us shall always constitute a withdrawal from the contract. After taking back the object of sale, we shall be entitled to dispose of it; the proceeds of such disposal shall be credited against the customer’s liabilities – less reasonable costs of disposal.
8.2 The customer shall be obliged to treat the object of purchase with care; in particular, he shall be obliged to insure it adequately at his own expense against fire, water and theft damage at replacement value. If maintenance and inspection work is required, the customer shall carry out such work in good time at his own expense. The customer shall keep the (co-)ownership in safe custody for us free of charge. If maintenance and inspection work is required, the purchaser must carry this out in good time at his own expense. The purchaser shall store the (co-)ownership for us free of charge.
8.3 The goods shall remain the property of ECT in accordance with the above conditions. The customer shall be entitled to sell the goods subject to retention of title in the ordinary course of business subject to retention of title as long as he is not in default. Pledges or transfers by way of security are not permitted. If maintenance and inspection work is required, the purchaser must carry this out in good time at his own expense. The purchaser shall store the (co-)ownership for us free of charge. The claims arising from the resale or any other legal ground (such as insurance, tort) with regard to the reserved goods, including all balance claims from current account, shall be assigned by the customer to ECT in full already at the time of the conclusion of the contract between ECT and the customer by way of security. The customer is authorized and obliged to collect the assigned claim. In case of default of payment by the customer, ECT may revoke the collection authorization at any time and notify the customer’s customers of the assignment and take back the reserved goods or, if applicable, demand assignment of the customer’s claims for return against third parties.
8.4 Processing of the goods subject to retention of title shall be carried out for us without any obligation on our part. In the event of processing, combination and mixing of the reserved goods with other goods by the Customer, we shall be entitled to co-ownership of the new item in the ratio of the invoice value of the reserved goods to the invoice value of the other goods used. If our ownership lapses as a result of combining, mixing or processing, the customer shall already now transfer to us the ownership or expectant rights to which it is entitled in the new stock or item to the extent of the invoice value of the reserved goods, in the case of processing in the ratio of the invoice value of the reserved goods to the invoice value of the other goods used, and shall keep the reserved goods for us free of charge.
8.5 In the event that third parties have access to the goods subject to retention of title, in particular attachments, the customer will draw attention to ECT’s ownership and inform ECT immediately so that ECT can enforce its ownership rights. If the third party is not able to reimburse ECT for the court or out-of-court costs incurred in this context, the customer will be liable for them. Insofar as the third party is not in a position to reimburse ECT for the judicial or extrajudicial costs incurred in this connection, the customer shall be liable for these.
8.6 If the customer is in breach of contract – in particular, if he is in default of payment – ECT will be entitled to take back the goods subject to retention of title or, if applicable, to demand assignment of the customer’s claims for return to third parties. Taking back or seizure of the reserved goods by ECT does not constitute a withdrawal from the contract. Taking back or seizure of the reserved goods by ECT shall not constitute a withdrawal from the contract.
8.7 The customer is obliged to provide the information necessary for the collection of the claims and to hand over the necessary documents. Any costs arising from this which cannot be collected by third parties shall be borne by the customer. Any resulting costs that cannot be recovered from the third parties shall be borne by the customer.
9. Terms of delivery and service
9.1 A delivery date will be agreed upon according to ECT’s expected capacity and is subject to timely delivery by ECT itself and to unforeseen circumstances and obstacles, regardless of whether they occur at ECT or at the manufacturer’s, in particular force majeure, governmental measures, failure to obtain official permits, labor disputes of any kind, sabotage, war, terror, shortage of raw materials, delayed deliveries of materials through no fault of ECT. 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. ECT reserves the right to withdraw from the contract if the delay in delivery caused by one of the above-mentioned events lasts longer than six weeks and ECT is not responsible for it. In this case, ECT will inform the customer immediately and return any consideration already paid. 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. ECT reserves the right to withdraw from the contract if the delay in delivery caused by one of the aforementioned events lasts longer than six weeks and ECT is not responsible for this. In this case ECT shall inform the customer immediately and return any consideration already paid.
9.2 If ECT is more than four weeks behind schedule with a delivery, the customer may withdraw from the contract after setting a reasonable grace period in writing.
9.3 Further claims are – as far as legally permissible – excluded.
9.4 If the delivery or the performance of services is delayed due to circumstances for which the customer is responsible, ECT may demand reimbursement of the resulting damage including additional expenses.
9.5 ECT is entitled to reasonable partial deliveries and partial services.
9.6 As a matter of principle, ECT will provide services during normal business hours, from Monday – Thursday between 8:30 and 17:00 and on Fridays between 8:30 and 16:00, but not during national holidays, unless this has been expressly agreed upon. Additional consulting services and other services outside of these hours will be provided on the basis of a separate order for separate remuneration. Additional consulting services and other services outside of this time shall be provided on the basis of a separate order for separate remuneration.
9.7 The costs for shipping and transport insurance shall generally be borne by the customer, whereby the choice of the shipping route and the shipping method shall be at the discretion of ECT. The customer shall be obliged to inspect the goods immediately upon arrival and to notify ECT immediately in writing of any visible transport damage as well as any damage to the packaging. The same applies to hidden damage. If ECT loses its claims against the insurance company or the sub-supplier due to the omission of this obligation, the customer shall be liable for all costs resulting from this breach of obligation. The risk shall pass to the customer as soon as the goods leave the works or the warehouse of ECT.
9.8 The goods shall be packed by the manufacturer. The Buyer shall bear the costs for packaging and disposal. The buyer bears the cost of packaging and disposal.
10. Prices, terms of payment, offsetting
10.1 Our prices are ex works or warehouse and do not include packaging, freight, postage, value protection and transport insurance, unless otherwise agreed. Value added tax is added. In the case of agreed foreign deliveries, the customer shall bear the customs duty. Discounts, rebates or bonuses will only be granted by separate written agreement. The sales tax is added to this. In the case of agreed foreign deliveries, the customer shall bear the customs clearance. Discounts, rebates or bonuses shall only be granted upon separate written agreement.
10.2 If, between conclusion of the contract and delivery, an increase in costs occurs for which we are not responsible, in particular the costs of wages (e.g. due to collective bargaining agreements), input material, energy, freight or public charges, the agreed price may be increased appropriately in accordance with the influence of these cost factors without a profit mark-up.
10.3 Our prices are calculated based on the agreed order quantities. If no binding order quantities are agreed, our calculation is based on the agreed target quantities. If the target quantity is not reached, we are entitled to increase the price per unit appropriately.
10.4 Payments are to be made in EURO deductions, expenses and free of charge to a bank institute designated by us. If a payment is made in another currency on the basis of a special written agreement, the relevant exchange rate shall be the EURO reference rate of the European Central Bank at the time when payment is due. If a payment is made in another currency on the basis of a special written agreement, the applicable exchange rate shall be the EURO reference rate of the European Central Bank at the time the payment is due.
10.5 If services are agreed upon outside of the offer for hardware products, such as assembly, system integration, or services for hardware and software such as hardware maintenance or software maintenance, these services will be charged separately according to the current service conditions of ECT at the time of performance, unless expressly agreed otherwise. Unless otherwise agreed, travel costs and expenses will be charged according to the actual costs incurred against proof. In all other respects, the respective terms and conditions for further service offers shall apply.
10.6 All payments shall be due immediately after invoicing without deductions. Further arrangements shall be made individually. Payment by bill of exchange requires the written consent of ECT. Discount and other bill of exchange costs shall be borne by the customer.
10.7 ECT is entitled to issue partial invoices according to the progress of performance. Further details are regulated by the respective individual agreements between ECT and the contracting party. Further details are regulated by the respective individual agreements between ECT and the contractual partner.
10.8 All agreed discounts shall lapse without replacement if the customer is in default with its payment or acceptance obligations to ECT in whole or in part. If the customer is in default with its payments in whole or in part, the amount still outstanding at that time shall become due for payment immediately. In commercial business transactions, we shall initially charge interest on arrears at a rate of 5 percentage points p.a. from the due date; from the date of default, we shall charge interest on arrears at a rate of 8 percentage points p.a. above the respective base interest rate. Furthermore, in case of default ECT shall be entitled to withhold further deliveries and services.
10.9 The customer is only entitled to set-off if his counterclaims have been legally established, are undisputed or have been recognized by ECT. He is only entitled to exercise a right of retention if his counterclaim is based on the same contractual relationship. He shall only be entitled to exercise a right of retention if his counterclaim is based on the same contractual relationship.
10.10 Customer’s claims against ECT may only be assigned to third parties with ECT’s consent.
11. Dates of performance, delay
11.1 Performance dates are only deemed to be agreed upon if they have been agreed upon in writing between ECT and the contracting party. Performance dates begin with this agreement or, if the customer is obliged to make a down payment, when the down payment is credited to a business account of ECT. Delivery dates and periods have to be agreed upon anew if changes to the contract occur at a later date, or if it is impossible to meet them due to force majeure or unforeseen events such as riots, operational breakdowns, strikes, lock-outs or delayed delivery by the manufacturer. Delivery dates and deadlines are to be re-agreed if changes to the contract occur later, or if it is impossible to comply with them due to events of force majeure or unforeseen events such as riots, operational disruptions, strikes, lockouts or delays in delivery by the manufacturer.
11.2 ECT’s compliance with periods and deadlines always requires that the customer meets his contractual obligations and his other contractually agreed obligations to cooperate in a timely and complete manner. If the customer fails to do so and if the compliance with periods and dates depends directly or indirectly on the customer’s compliance with such an obligation, agreed periods will be extended and dates will be postponed at ECT’s request at least by the period corresponding to the delay plus a reasonable restart time. In this context, the fact that ECT always uses existing personnel and other resources to full capacity must be taken into account. If it does not comply with this and if compliance with deadlines and dates depends directly or indirectly on compliance with such an obligation of the customer, agreed deadlines shall be extended and dates shall be postponed at the request of ECT at least by the period corresponding to the delay plus a reasonable restart time. In this context, the fact that ECT always uses existing personnel and other resources to capacity shall be taken into account.
12. Acceptance of work services
12.1 Insofar as ECT renders services aimed at achieving a certain success (hereinafter referred to as “Work Services”), the following provisions will apply in addition to the statutory provisions.
12.2 Work services require acceptance by the customer, which shall take place in the presence of both parties to the contract.
12.3 ECT shall notify the Customer in writing of the readiness for acceptance of the work performances. Immediately, within five working days after notification of readiness for acceptance, the contracting parties shall commence the acceptance test, unless otherwise contractually agreed between the contracting parties.
12.4 ECT shall prepare a written record of the acceptance test, the correctness of which shall be confirmed immediately by signature of the employees commissioned by the customer to carry out the acceptance test. If the customer does not refuse the signature in writing within five working days, stating reasons in detail, the findings contained in the protocol shall be deemed approved and accepted. The protocol shall describe all detected defects, subdivided according to defect classes from Clause 12.5, and shall conclusively list the reasons for any refusal of acceptance. If the protocol indicates errors of class 1 from clause 12.5, which prevent acceptance, and if the customer therefore refuses acceptance, the successful elimination of the errors shall be verified in accordance with the preceding paragraphs as soon as ECT has eliminated the errors indicated and has again made the service concerned available for acceptance. Insignificant deviations, are errors of class 2 and 3 from clause 12.5, from the agreed performance characteristics and acceptance criteria do not entitle the contractual partner to refuse acceptance. ECT’s obligation to remedy defects in accordance with the provisions of these Terms and Conditions shall remain unaffected.
12.5 Error Classes Class 1 The appropriate use of a part of the system or the contractual products is not possible or unreasonably restricted. The error has a serious impact on business processing and/or security. These are primarily errors that preclude further processing. Function-related examples: System downtime without restart, data loss / data destruction, incorrect results in time-critical mass processing of data. Measures: ECT or a third party provider possibly commissioned by it shall immediately after written notification of the defect start to process the defect by qualified personnel, shall at least ensure a workaround in the short term and shall as far as possible ensure a correction of the cause of the defect in the short term, e.g. by replacing hardware components, reconfiguring software, remedying software errors by means of patches. Class 2 The purposeful use of a part of the system or the contractual products is restricted. The error has an impact on business processing and/or security, but allows work to continue. Function-related examples: incorrect or inconsistent processing, noticeable undercutting of the agreed performance data of the system or the contractual products, accumulation of short-term disruptions of operation.
Measures: ECT or a third party provider possibly commissioned by it shall start processing the defect by qualified personnel immediately after written notification of the defect, shall at least ensure a workaround in the medium term and shall, as far as possible, ensure a correction of the cause of the defect in the medium term, e.g. by replacing hardware components, reconfiguring software, remedying software errors by means of patches.
Class 3 The purposeful use of the system or the contractual products is possible without restriction. The error has no or only a minor influence on the business transaction and/or security. These are mainly cosmetic errors or errors that can be bypassed by the client’s employees themselves. Function-related examples: Disturbing additional output on the screen, documentation errors / typos.
Measures: ECT or a third party provider possibly commissioned by it shall ensure that the error is rectified within a reasonable period of time without any special priority.
12.6 If ECT provides work services, the Buyer is not entitled to use the work productively before written confirmation of acceptance. If the Purchasing Partner nevertheless puts the work into productive use, this shall be deemed acceptance. If the contractual partner nevertheless brings the work into productive use, this shall be deemed to be acceptance.
13.1 Claims for damages by the Purchaser, irrespective of the legal grounds, shall be excluded. This shall not apply if liability is mandatory under the Product Liability Act, other producer liability or in cases of intent, gross negligence, lack of guaranteed quality or breach of material contractual obligations, in particular injury to life, limb or health.
13.2 Compensation for the breach of material contractual obligations shall be limited to the foreseeable damage typical for this type of contract, unless a case of Sec. 13.1. sentence 2 exists, is limited.
13.3 The above limitations of liability also apply to vicarious agents employed by ECT.
13.4 The above provisions do not imply a change in the burden of proof to the disadvantage of the Buyer.
13.5 To the extent and as long as a case of force majeure exists, ECT shall not be obliged to perform. Force majeure shall be deemed to include, in particular, strikes, war, natural disasters, lock-outs, delay or failure of delivery by suppliers, if caused by an event of force majeure, official or court orders, attacks and attacks from the Internet as well as from users of the application itself (e.g. viruses, worms, denial of service attacks, Trojan horses), which ECT is unable to prevent even with reasonable care under the circumstances of the case.
13.6 The customer shall be responsible for a regular backup of its data. In the event of a loss of data for which ECT is responsible, ECT shall therefore be liable exclusively for the costs of copying the data from the backup copies to be made by the customer and for restoring the data that would have been lost even if the data had been properly backed up. The customer shall bear the burden of proof that ECT is responsible for the loss of data.
13.7 For software installations, test systems have to be provided by the customer; if the customer wishes an installation on a live/production system, ECT will not be liable for operational breakdowns unless they have been caused by ECT intentionally or by gross negligence.
Returns must be made to ECT carriage paid and will only be accepted subject to our inspection. Unless otherwise agreed, returns can only be processed by us if the return is accompanied by a return slip. The customer will receive this return consignment bill upon written or telephone request to ECT. The customer shall bear the risk of the return shipment including the risk of accidental loss. In case of returns for which the customer is responsible, in particular in case of refusal of acceptance, we will charge a restocking fee.
15. Arbitration procedures, steering committees
The parties may agree to form a steering committee in the event of differences of opinion arising out of or in connection with the performance of the contract which they cannot resolve among themselves, or to call upon an arbitration board to resolve the dispute provisionally or definitively in whole or in part in accordance with its rules of arbitration. In order to enable the arbitration, the parties mutually waive the defence of the statute of limitations for all claims arising from the disputed facts from the request for arbitration until one month after the end of the arbitration proceedings. The waiver causes an inhibition of the limitation period. To enable conciliation, the parties mutually waive the defense of the statute of limitations for all claims arising from the facts in dispute from the request for conciliation until one month after the end of the conciliation proceedings. The waiver shall have the effect of suspending the statute of limitations.
ECT and the customer undertake, unless otherwise contractually agreed upon, to keep secret all business and trade secrets of the respective other party for an unlimited period of time and not to pass them on to third parties or use them in any way. The documents, drawings and other information that the other party to the contract receives on the basis of the business relationship may only be used by the other party to the contract within the scope of the respective contractual purpose. The documents, drawings and other information which the other contractual partner receives on the basis of the business relationship may only be used by the latter within the scope of the respective purpose of the contract.
17.1 The provisions of the respective license agreement shall apply to software supplied by us but not produced by us.
17.2 Upon payment of the agreed license amount, Customer shall acquire the non-exclusive and non-transferable right of use in accordance with the current license and use conditions of the respective licensor, which Customer expressly agrees to.
17.3 ECT guarantees only for its own software for a period of six (6) months after receipt of the software that the software will essentially work according to the accompanying product manual. This warranty does not apply if the failure of the Software is due to accident, abuse, misapplication or virus. It is known to the customer that according to the current state of technology, errors in programs cannot be excluded. The customer is aware that, according to the current state of the art, errors in programs cannot be excluded.
17.4 In case of a justified notice of defect, ECT reserves the right to carry out a total of three rectifications or, in case of final failure of the rectification, to grant the customer the right to rescission or reduction. The customer only has the right to rescission or reduction if a program error should prove to be significant and essential for the entire performance and the error cannot be solved by other possibilities of the software. Any further warranty, in particular that the software is suitable for the customer’s purposes, as well as for direct or indirectly caused damages (e.g. loss of profit, interruption of business) as well as for loss of data or damages arising in connection with the recovery of lost data, are expressly excluded, unless intent or gross negligence on the part of ECT or its employees can be proven. ECT reserves the right to have changes made to the programs, even after delivery, which improve the performance of the program and do not affect the rest of the software.
18. Evidence clause
Data stored in electronic registers or otherwise in electronic form at ECT is considered admissible evidence for the proof of data transfers, contracts and payments made between the parties.
19. Final provisions
19.1 The contractual agreements between the parties shall be governed exclusively by the law of the Federal Republic of Germany. This contract shall be governed exclusively by German law, excluding the UN Convention on Contracts for the International Sale of Goods (CISG). This contract shall be governed exclusively by German law to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
19.2 Place of performance is our registered office in Klingenberg am Main.
19.3 Exclusive place of jurisdiction for all disputes arising from this contract shall be Amtsgericht Obernburg a. M. / branch office Miltenberg a. M.
19.4 Changes or amendments to these terms and conditions must be made in writing. If they do not satisfy this, they shall be null and void. This shall also apply to changes to this written form clause. If they do not satisfy this requirement, they shall be null and void. This shall also apply to amendments to this written form clause.
19.5 Should individual provisions of these terms and conditions be or become invalid in whole or in part, the validity of the remaining provisions shall not be affected thereby. In such a case, ECT and the Customer will replace the invalid provision by a valid provision that comes closest to the economic purpose of the invalid provision. The same applies to the closing of contractual gaps. In such a case, ECT and the customer shall replace the invalid provision with a valid provision that comes as close as possible to the economic purpose of the invalid provision. The same shall apply accordingly to the closing of contractual loopholes.
ECT PRODUCTIONS GMBH & CO.KG • (c) Copyright 2020