ORDERING TERMS AND CONDITIONS (PURCHASING CONDITIONS) of ASCO DRINK MACHINES Produktions– & HandelsgmbH
The following conditions apply, provided no other written agreements have been made:
1. Area of application, general information
Our purchasing conditions apply exclusively. We shall not acknowledge conditions that are contradictory or deviate from our purchasing conditions, unless we have confirmed their validity explicitly in writing. Our purchasing conditions shall also apply if we accept the delivery without any reservations, in spite of our awareness of contrary purchasing conditions or conditions deviating from our purchasing conditions.
All purchasing conditions that are made between us and the customer for the purpose of completing this contract are set out in writing in this contract. Our purchasing conditions shall also apply for all future business with the customer.
Offers from suppliers shall be free of charge to us and shall not obligate us in any way. Silence shall not qualify as acceptance.
We may demand changes to the contractual object, provided this is reasonable for the supplier. Any resulting effects, especially with regard to extra or minimum costs or affecting delivery deadlines, must be considered appropriately.
2. Order issuance and order confirmation
The requirement for the written form shall apply, meaning orders shall only be completed in writing only and any other agreements or changes to the contract that were made shall only become binding following our written confirmation. This shall also apply to waiving the written requirement.
Our order or any request (including partial deliveries), must be confirmed in writing including the binding delivery time by the supplier immediately, but within 5 days at the latest, whereby our order shall expire automatically if this is not the case, unless we accept the delayed confirmation explicitly in writing. The supplier’s confirmation shall apply as unlimited acceptance of our order and acknowledgement of our purchasing conditions. If this confirmation deviates, this shall qualify as a new offer and shall only become the contents of the contract if we confirm this in writing. Our silence concerning a new offer of this kind shall not apply as its acknowledgement. A delivery qualifies much more as retroactive acknowledgement of our purchasing conditions. We are entitled to accept a delivery according to out conditions in these cases, but we are not obligated to do so; we are equally less obligated to return or store goods sent to us that are not requested. The transfer of terms and conditions featuring deviating formulations by the customer, an indication of this, as well as any other declaration in the pre-formulated part of the order confirmation shall not represent refutation of our sales conditions, and may therefore also not be evaluated as a new offer and are insignificant. Any confirmation that explicitly refutes our order and/or our purchasing conditions or explicitly deviates from them shall qualify as a rejection of our order and shall not be binding for us. Our silence shall not qualify as acknowledgement; much more than this, any delivery shall apply as retroactive acknowledgement of our order and our purchasing conditions; in such cases, we shall be entitled to accept the delivery at our own conditions.
3. Delivery scope, acceptance obligation
The delivery must correspond with our delivery in every regard. Our written approval must be collected in case of over or under-deliveries. If more is delivered that was ordered, the acceptance of the excess quantities shall not represent any change to the contract on our behalf. Much more than this, the part that has been delivered in excess by the supplier must be recovered by him at his cost upon request. Minimum quantities must be subsequently be delivered in full at a specific pro rata price reduction, provided a minimum delivery has been explicitly accepted by us.
In case we do not require the ordered goods during the specified period for reasons that we are not responsible for, but rather third parties (our customers for example), then it shall be agreed that we shall be entitled to request these within a period named by us that shall not exceed 6 months. The pricing and other delivery conditions shall remain unaffected by this, and storage conditions shall be borne by the supplier. In case this emergency period is also unable to be maintained, then we may distance ourselves completely or partially from purchasing the goods by paying 30% of the net purchase value.
4. Delivery period
The delivery shall be obligated to provide the service punctually. Circumstances (including force majeure) that make meeting the delivery deadline impossible must be indicated immediately including the reasons and foreseeable delay. In case of culpable failure to meet agreed delivery periods and delivery deadlines, light negligence shall suffice, then we shall reserve the right either to insist on contract completion and demand compensation for damage due to delays or to withdraw from the contract and demand compensation for damage due to delays. Furthermore, we shall also be entitled to purchase replacements for delayed deliveries or minimum deliveries from a third party at the supplier’s cost.
5. Delivery quality
All deliveries must exhibit the properties and suitability required in the order without any limitation, or, if not specifically indicated, industry-standard properties and suitability. The properties and suitability requested by the order qualify as agreed. Specifications must be updated immediately by the supplier in case of changes, but at least once annually, and provided to us. Packaging, labelling, and insurance of the goods shall be the responsibility of the supplier until acceptance. All shipments must be labelled according to the relevant specifications.
Basically, the agreed properties for all delivered products and goods must correspond with all applicable legal specifications, security measures, other security measures, and all other generally accepted standards (e.g. ÖVE, CE, and DIN standards) for the respective country of destination.
The supplier hereby declares his consent that our representative may visit his production operations at any time during normal work times, without prior announcement, and that his completed quality assurance measures (his quality assurance system) may be checked by us and the associated documents may be viewed.
6. Warranty, guarantee
We grant the end customer a 2-year warranty following commissioning of our product and this warranty period shall be transferred to the supplier for the products and works manufactured by him for this reason. The warranty period shall therefore also begin for the supplier with delivery and commissioning of our product by the end customer.
The supplier shall therefore assume a guarantee for his delivery that it possesses the contractually qualitative and quantitative properties that correspond with the relevant legal regulations for the corresponding destination country, that it is free of errors, and fully corresponds with the required use (no reduced suitability), and does not violate the rights of third parties.
In relation to us, any defects in the deliveries that are detected must be indicated to us immediately in writing, as soon as they are determined following the conditions of our regular business transaction. Delivery or service defects that are the subject of a complaint during the warranty period must either be corrected by improvement or a replacement delivery by the supplier immediately and free-of-charge upon request, depending on our own choice. The warranty period vis-a-vis us amounts to 2 years and shall only require sole proof for assertion of our warranty rights that the delivered products or the manufactured products are defective. In case of concealed defects, the warranty period shall begin with the day that the concealed defect is discovered.
In particular, auxiliary costs that must be borne by the supplier shall include costs resulting during troubleshooting, removal of a defective part, and installation of a replacement part, and appraisal and transport costs.
If subsequent improvement or replacement delivery is not possible or is unsuccessful or if it delayed beyond an appropriate period set by us or refused, then we shall be entitled to other legal warranty rights (withdrawal, price, substitute performance by third parties, etc.). Damage compensation claims remain explicitly reserved. This shall also apply for damage compensation claims due to failed fulfilment, including lost profits.
We shall be permitted to correct slight defects ourselves without forfeiting warranty rights. In this case, we shall notify the supplier about this in advance and coordinate this with him. The costs resulting from correcting defects shall be offset to the supplier.
The warranty time for replacement parts amounts to two years following installation or commissioning with the end customer and shall end following transfer of the warranty time, i.e. four years following delivery at the latest. It is explicitly noted that in case of improved or replaced parts, the warranty time shall begin again with the day of the improvement (replacement, subsequent delivery, repairs, etc.). The period of limitation shall be limited until correction of the defect or rejection of correction of defects.
Serial errors: In case the goods produced by the suppliers exhibit serial errors, the supplier must immediately deliver error-free products without any additional costs. Furthermore, the manufacturer shall also be liable for damages resulting from serial defects (delayed delivery, failed fulfilment), including lost profits. We hereby amicably agree that serial defects shall be defined as any significant defect (material defects, assembly defects, software defects, programming defects, etc.), whereby this is present in at least 3 percent of the delivered goods over a period of 6 months.
The correction of serial faults or defect correction within the scope of warranty and guarantee rights must be completed for us, our customers (intermediate merchants), and the end customer by the customer at his own cost and without any additional cost to us.
In order to honour obligations resulting from the clause involving warranty, damage replacement, and customer support, the supplier shall be obligated to hold a store of replacement parts for the goods delivered by him for a period of at least 10 years (starting with the date of the last delivery), which shall include at least 15% of the average annual delivery quantity delivered. The replacement parts storage must possess at least the qualities and dimensions as the goods purchased by the customer.
If the delivery or the service (main and auxiliary obligations) of the supplier is not contractually conform and/or contractually agreed deadlines and periods of the supplier are not adhered to (contractual violation), then he shall be liable vis-a-vis us for any resulting damage. For enforcement on this basis, proof of objective contractual violation and causality for the resulting damages shall be sufficient (assumed culpability).
Provided liability urgently requires culpability on behalf of the supplier or his auxiliary agents or other third parties he is responsible for (suppliers/pre-suppliers), then he may release himself by showing lacking culpability. The supplier shall be responsible for culpability of auxiliary agents and his pre-suppliers in the same way as for himself. In this case, light negligence shall be suitable for liability.
In case we are held liable by a third party for reasons that the third party is responsible for, the supplier shall release us from all third-party claims. The inspection of goods quality by us shall not influence liability of the supplier and shall not interrupt the objective chain of causality.
Product liability: If claims vis-a-vis us are based on the supplier’s failure to observe product-specific safety regulations or claims are made against us due to product liability regulations that can be traced back to goods or products delivered by the supplier, then we shall have the right to demand complete compensation from the supplier. For this reason, the supplier must complete insurance protection both for liability as well as product liability (including the costs for recall activities) possessing an insurance sum of at least 10 million euros and to indicate this to us upon request.
8. Violation of protective rights
The supplier shall observe third-party protective rights while providing his services. He shall release us and our customers from third-party claims resulting from any property rights violations and shall also bear all costs resulting to us in this context upon first request.
During ordering, we shall indicate our delivery address. If this is not observed, then the resulting costs shall be borne by the supplier. Shipping shall take place free to the indicated place of use (free domicile).
10. Payment conditions, prices
If no other agreements have been made, then the price indicated in the order shall be a fixed price, a price increase shall therefore require our explicit written approval. If there is no price indicated in our order, then the binding price indicated by the supplier must be confirmed by us in writing. No contract shall be completed without our confirmation.
11. Reservation of title
Title is reserved by us until payment of the respective invoice for the affected delivery is acknowledged. An extended or expanded reservation of title is also excluded without our explicit rejection.
12. Supplier duty of care for material and documents
With regard to goods, materials, or documents provided by us to suppliers/producers to complete the services, the supplier shall be liable for any subsequent damages. Goods, materials, and documents shall remain our property. Any processing shall take place exclusively for us.
Without our exclusive approval, ASCO DRINK MACHINES may not be used as a reference. If business and company secrets are revealed to the supplier over the course of our cooperation, then he shall be obligated to maintain secrecy and shall also be obligated not to utilise the information gained by him under any circumstances for himself or any third parties. The supplier shall be liable for all damages that result from this non-disclosure agreement and prohibition on exploitation. In case the required non-disclosure agreement is violated, a culpability-dependent contractual penalty amounting to €200,000.00 shall be agreed to, which shall not be below the total order amount.
13. Place of fulfilment
The place of fulfilment for the delivery to us shall be the delivery address indicated by us. If the indicated delivery address is not used as the place of fulfilment, then the delivery location agreed for the respective order shall apply as the place of fulfilment or immediate cooperation must result.
14. Applicable law, court of law
In addition to these general contractual conditions, the legal provisions of the Republic of Austria shall apply exclusively, with explicit exclusion of UN sales law. The course of law shall be the competent course at Linz, Austria.
15. Partial ineffectiveness
If any provision of our purchasing conditions are invalid for any reason or become so, then this shall not affect the validity of the remaining provisions. In place of the invalid conditions, a provision that comes as close as possible to the legal and commercial purpose as intended.