General Terms and Conditions
I. General information
1. These General Terms and Conditions apply to all business transactions, i.e. deliveries and services, of ASCO Drink Machines Produktions- & Handels GmbH, FN 131041h, Steyrer Straße 80, 4470 Enns (hereinafter referred to as “ASCO”), unless otherwise agreed to in writing. In the event of contradictions between these Terms and Conditions and the applicable order or conditions of the order, the former shall apply. Conditions of the customer or contracting party (hereinafter referred to as “customer”) that conflict with or deviate from these Terms and Conditions do not apply unless ASCO specifically agrees to them in writing. Actions undertaken by ASCO in performance of the contract and as part of our contractual duties do not constitute consent to the customer’s terms and conditions, especially not to those that deviate from these Terms and Conditions.
2. These Terms and Conditions shall also apply to all future transactions between the contracting parties. This also applies in individual cases, including future supplementary or follow-on orders, even if not expressly referred to.
II. Terms of Payment
1. Cost estimates are provided by ASCO with no guarantee whatsoever. This is specifically noted. All offers by the company are provided in writing. ASCO is bound to the terms of the offer for four weeks from the date of the offer.
2. The purchase price does not include packaging, shipping, or installation costs. Unless otherwise specified, the purchase price is payable within 14 days after receipt of the invoice without any deductions. ASCO does not grant discounts. Any discounts therefore require specific agreement in writing. Any discount rates granted to a buyer will be cancelled if the buyer is in default on payment. This will also apply to any discounts previously granted for partial invoices. Payments by the customer will not be considered to be fully discharged until they have been irretrievably received by the ASCO business account and are freely available to ASCO. If the payment deadline is not observed, even for just one (partial) payment, then all previously granted reductions (rebates, discounts, etc.) are considered null and void and must be paid/repaid in full by the customer. In the case of payment default, the customer will be charged default interest which will be calculated as 9.2% above the current base interest rate (§ 456 UGB). In the event of payment default, ASCO has the right to withdraw from the contract after issuing a written warning to the customer (email, fax, etc.) and after granting a grace period of at least eight days. In the event that ASCO withdraws from the contract, the customer is required to return the purchased goods and pay a flat-rate compensation for damages at a rate of 30% of the gross invoice amount to ASCO. ASCO also retains the right to issue claims for further damages against the customer. If the customer does not return purchased goods at their own cost in the event of ASCO’s withdrawal from the contract, ASCO retains the right to disassemble the goods at the place of installation or to have a third party disassemble the goods and pick them up or have a third party pick them up at the customer’s expense. The customer grants ASCO (or the third party commissioned by ASCO for this purpose) the right to access the areas in which the material goods are located for the purpose of disassembling, uninstalling, and pick-up at any time without prior consultation. ASCO assumes joint liability for a joint contract with several customers. In the case of partial deliveries, ASCO retains the right to submit partial invoices for already delivered goods (partial order delivery). In the case of payment default, the customer must reimburse ASCO for any reasonable and appropriate legal fees for costs over € 300.00 plus VAT. The right to a setoff against any claim the customer may have on ASCO is excluded.
3. In the event that payment in installments has been agreed upon, a missed payment of just one installment will immediately cause default of payment in accordance with the
agreement. This applies if the customer does not pay an installment within the time specified or in full.
4. CANCELLATION FEES: in the event that an order is canceled after it has been placed by the customer, ASCO retains the right to charge the customer a contractual penalty of 30% of the gross value of the order. This imposes no effect or restriction on any claims for further damages (regardless of what type, e.g. financial loss etc.).
III. Delivery and Installation
1. ASCO has the right to make partial deliveries of material goods underlying an order at their own discretion. In addition to the agreed purchase price, the associated domestic and foreign packaging, shipping, transportation, and installation costs will be calculated and added to the fee. The customer is aware that these costs are not previously determined and therefore cannot be definitively calculated ahead of time. The customer commits to paying ASCO for the actual packaging, shipping, transportation, and installation costs incurred by ASCO upon invoicing.
2. Delivery dates are only considered to legally binding when they have been confirmed in writing by ASCO.
3. The customer is responsible for and bears the costs of ensuring that all electrical and utility connections are installed and available at the time of equipment delivery. The customer is responsible for ensuring that all measures necessary for the installation of the equipment have been taken and are completed in a proper and professional manner, especially with regard to the specifications required by ASCO. ASCO is under no obligation to verify the proper completion of installations or measures (connections, lines, etc.). ASCO may rely on the assumption that the arrangements for installation have been undertaken in a proper and professional manner. The customer has accepted and taken into consideration the measurements, weights, and installation instructions provided. The customer will reimburse ASCO for all damages that may occur as a result of incorrect or inadequate preparation for the delivery and installation of the equipment (this includes any damages incurred due to delays or additional costs that may result).
IV. Ordering and delivery of filling products
The ordering of filling products is based on the respectively applicable price list. Delivery will be undertaken at the customer’s expense from the nearest ASCO warehouse. ASCO determines the shipping method. Any costs for necessary packaging will be charged to the customer.
V. Transfer of risk
1. Unless otherwise agreed upon, the goods are considered to be sold ex-works. The customer therefore assumes all shipping risks. The risk is transferred to the transport company when the material goods are transferred to them. If material goods are picked up by the customer, then the transfer of risk occurs when the notification of readiness for delivery is dispatched to the customer. If the goods are delivered by ASCO themselves, then the risk is transferred when the delivery is made.
2. In other respects, the Incoterms 1953 valid on the day of contract agreement apply.
VI. Operator training
The customer commits to using the delivered equipment in accordance with the operating instructions and to abide by all other product information, maintenance guidelines, and any other guidelines, etc. provided by ASCO. The customer commits to training all personnel. ASCO is not liable for any costs or damages incurred by failure to follow these instructions, information, guidelines, etc. Any such costs or damages are the full responsibility of the customer. The customer is fully aware that training by ASCO is not included in the purchase price. If the customer requests or commissions training by ASCO, then payment for these services must be made separately to ASCO.
VII. Report of defects, warranty, guarantee
1. The ordered goods must be inspected immediately upon delivery in accordance with § 377 UGB. Any defects which are found must be noted on the bill of delivery or on the bill of lading. ASCO must be notified of the defect by registered mail within seven days after delivery. If the customer does not submit written notification (by registered mail), or does not submit it within the required timeframe, then all warranty claims and claims for damages and consequential damages resulting from the defect are excluded. The customer may no longer invoke a claim for an error regarding the absence of defects against ASCO.
2. Hidden defects which were not found during the initial inspection despite exercising due care according to § 377 UGB must be documented and ASCO must be notified accordingly by registered mail within 7 days of their discovery. If the customer does not submit written notification (by registered mail), or does not submit it within the required timeframe, then the goods shall be deemed to be approved and all warranty claims and claims for damages on account of the defect, as well as additional damages resulting from the defect, will be excluded. The customer may no longer invoke a claim for an error regarding the absence of defects against ASCO.
3. ASCO provides a warranty for the delivered goods for 12 months after receipt by the customer. There are no assured properties of the goods on the part of ASCO; a tacit extension of the warranty period is therefore excluded in any case. This warranty is restricted without exception to the free supply of replacement parts for defective equipment. The burden of proof for the existence of a defect at the time of delivery lies with the customer.
4. The warranty does not include defects resulting from improper operation, use, or maintenance by non-authorized personnel or from common signs of wear. Repairs made within the framework of special agreements will be carried out without exception at ASCO facilities by ASCO technicians. In this case, the customer is responsible for the cost of transporting the equipment to ASCO and assumes the risk thereof. Any parts that may have been exchanged (i.e. rebuilt and replaced) remain on ASCO premises and become the property of ASCO without any compensation to the customer.
5. If the maintenance procedures prescribed by ASCO do not take place, or if the replacement parts or filling products recommended or delivered by ASCO are not used, and if these actions cause a problem (of any kind) with the equipment or damages, then there is no cause for a claim under the warranty and ASCO is not liable. ASCO also assumes no liability or warranty for repairs or changes to the equipment undertaken by personnel not authorized by ASCO and if any problems (of any kind) with the equipment or damage occurs as a result of these actions. This personnel is equated with persons who are certified to have completed a technical training program with the ASCO company.
6. The customer’s warranty rights are not transferable and end when the equipment is resold or otherwise transferred or passed on.
7. All work will be completed during ASCO’s normal business hours. ASCO is not liable for any damages that may occur as a result of service interruptions or delays in maintenance and repair that may arise. Expended consumables belonging to the customer will not be replaced by ASCO.
8. REPLACEMENT PART GUARANTEE:
ASCO provides their customers with a replacement part guarantee. The content and scope of the guarantee are based on either the certificate of guarantee presented to the customer, or on the guarantee statement provided on the website www.asco.at at the time that the contract is signed. The guarantee is valid for 12 months after the equipment is delivered. The guarantee only includes providing replacement parts. The customer is responsible for the cost of packaging, transportation, and shipping (payable to ASCO), and for installation and repair (travelling time, labor hours, etc. payable to the company providing the repairs).
VIII. Liability
1. ASCO’s liability for slight negligence – with the exception of personal damages and claims based on product liability – is excluded. In cases of gross negligence, ASCO’s liability is limited to a maximum of €10,000.00. Any liability claims for damages in excess of this are ruled out. Compensation for a loss of profit or any other consequential damage (business interruptions, etc.) is also ruled out. If several customers are involved, then the indicated maximum amount is evenly divided among them. All claims against ASCO for the specific damages expire six months after discovery of the loss and the party causing it, unless a shorter statutory expiration time or preclusion period applies.
2. Furthermore, all liability towards the customer for damages caused by third parties in connection with the purchase or the use of goods, as well as the provision of service and repair work, either directly or indirectly, is excluded.
IX. Reservation of ownership
1. All delivered goods shall remain the property of ASCO until payment has been made in full and all ancillary claims have been paid. In case of non-payment of the invoice/partial invoice submitted by ASCO, ASCO retains the right to disassemble and pick up the equipment and/or have a third-party disassemble and pick up the equipment from the customer at the customer’s expense. The customer grants ASCO (or the third party retained by ASCO for this purpose) the right to access the areas in which the material goods are located or installed for the purpose of disassembling and pick-up at any time without prior consultation.
2. The customer has the right to re-sell material goods for which ownership is reserved. In return, the customer now assigns all claims against third parties resulting from the resale to ASCO and commits to immediately notifying the third-party debtor thereof and entering the assignment for security in his business accounts.
3. As long as ASCO retains ownership of the purchased goods, the customer is obligated to inform third parties of ASCO’s ownership rights, especially in the following cases, and to immediately inform ASCO of this:
a. if third parties enforce their rights to the goods through confiscation, seizure, etc.
b. if judicial compensation or bankruptcy proceedings relating to the assets of the customer have been applied for or opened, or if an out-of-court settlement has been applied for.
X. Final provisions
1. Changes or additions to completed contracts or their material conditions must be made in writing to be considered valid. The same shall apply to any departure from the written form.
2. The contractual relationship between ASCO and the customer is subject to Austrian substantive law. The applicability of UN purchasing rights is excluded. The place of performance is Enns. For legal disputes arising from or in connection with a completed order or these Terms and Conditions, the court of exclusive jurisdiction is the competent court of jurisdiction for 4470 Enns.
3. If a condition (or portions thereof) of a completed order or of its material conditions proves invalid, in full or in part, or becomes invalid as a result of legal provisions, then the remaining conditions or the remaining portions of the conditions will remain in effect with no changes. The parties undertake to reach an agreement to replace the invalid condition with a valid condition. which most closely approximates it. the invalid condition.