GENERAL TERMS AND CONDITIONS

OF ASCENDOR GMBH, VALID FROM 1st of April 2020

1. Scope of validity

These General Terms and Conditions form the basis of the contract between Ascendor and the Client, and unless otherwise agreed, all form of deliveries, services and offers from Ascendor will be exclusively based on these Terms and Conditions. Any other conditions which conflict or deviate from those included in these General Terms and Conditions will not be acknowledged unless Ascendor has expressly agreed to their validity in writing. Fulfilment of the contract by Ascendor does not constitute acceptance of conflicting or deviating terms and conditions. These Terms and Conditions shall also be regarded as the framework agreement for all other business and legal transactions between the contractual parties, unless otherwise agreed in writing. The current version of our General Terms and Conditions of Business valid at the time of conclusion of the contract and available on our homepage shall be applicable in each case.

2. offers

2.1. Offers from Ascendor will only be submitted in writing, via email or fax.
2.2. The Client can only accept the Ascendor offer by accepting the entire scope of services offered.
2.3. Ascendor is legally bound by its offer for a period of 8 weeks, commencing from date of issue.
2.4. Plans, sketches, technical documentation as well as cost quotations, and any other documents such as catalogues, samples, presentations, spare parts lists and similar remain the intellectual property of Ascendor. All further use thereof, in particular disclosure to third parties, reproduction and publication shall require the express permission of Ascendor.
2.5. The Client agrees to maintain the confidentiality and non-disclosure to third parties with regard to all knowledge attained from its business relationship with Ascendor.

3. CONTRACT CONCLUSION AND ORDER CONFIRMATION

Purchase orders addressed to Ascendor or orders placed by the Client; require written confirmation from Ascendor for a binding contractual agreement to become effective, unless the order is based on a previously existing and binding written offer prepared by Ascendor.

4. PRICES

4.1. Unless the purchase order is based on an existing binding offer from Ascendor, the prices in the current valid price list shall apply.
4.2. Unless otherwise agreed, the prices provided by Ascendor refer to duty unpaid merchandise from its domestic distribution centre and do not include packaging, loading, insurance, transportation and assembly costs. These services may be performed, on request by Ascendor for an additional surcharge. The actual costs incurred for transport or delivery, including an appropriate administration fee, but not less than the applicable or customary freight and carriage charges for the selected mode of transport that are valid on the day of delivery will be invoiced. The cost of assembly work will be calculated according to the time required and unless otherwise agreed in writing the customary hourly tariff for a qualified worker as is standard in the industry shall be considered as the agreed price.
4.3. The prices do not include VAT. The statutory sales tax will be added to the price at the time of invoicing.
4.4. All products and services are invoiced exclusively in Euros (€).
4.5. If the Client is not a consumer, it is not entitled to offset claims against Ascendor.

5. CHANGES TO AGREED SERVICES, SUBSEQUENT ALTERATIONS

Ascendor is entitled to claim adequate compensation or levy reasonable surcharges for any alterations to previously agreed services or modifications that are made by the Client or a representative may subsequently request and which were not included in the original scope of the order confirmation.

6. PERFORMANCE OF SERVICES

Ascendor is obliged to perform the services agreed in the contract at the earliest possible moment and as soon as all the technical details have been clarified and the Client has fulfilled all of its obligations with regard to all the structural, technical and legal approvals required for performance to proceed.

7. PERFORMANCE DEADLINES AND EXTENSIONS

7.1. The scheduled delivery and completion deadlines shall only become binding when Ascendor has confirmed its agreement in writing. Ascendor is entitled to exceed the agreed deadlines and delivery terms by a period of up to two weeks.  The Client may only cancel the contract after this term has expired and after first setting a reasonable extension.
7.2. If the begin of the performance of services or the services themselves are delayed due to circumstances which are beyond the control of Ascendor, the binding deadlines and terms that were agreed upon, including the terms accepted as „guaranteed“ or „fixed“, shall be delayed accordingly. Any additional costs incurred by the delay shall be borne by the Client if the circumstances that caused the delay are the Clients responsibility.
7.3. If the Client does not resolve the circumstances that cause the delay referred to in provision 7.2. above, within a reasonable period of time set by Ascendor, then Ascendor shall be entitled to charge for the materials and labour already provided for performance of services or to otherwise dispose of the materials and equipment provided for this service elsewhere. The Customer‘s obligation to pay and his obligation to accept the merchandise will remain unaffected. If, following this interruption the performance of services is continued, all previously agreed dates and deadlines must be extended by the period of time required to allow the replacement of equipment and materials used elsewhere.
7.4. The non-fulfilment or delayed execution of the contract does not entitle the Client to assert claims for damages, penalties, or claim compensation for loss of earnings.
 

8. TERMS OF PAYMENT

8.1. Unless otherwise agreed with Ascendor, the Client undertakes to pay the purchase price in full before the merchandise is delivered (cash in advance).
8.2. A separate agreement is required to govern any discount deductions that Ascendor might offer the Client. In the event of default of payment; any such agreement will be deemed to have become invalid this includes default on instalments or part-payments. Payments made by the Client are only recognised from the date of receipt on the Ascendor business account.
8.3. The Client is not entitled to withhold payments for any reason whatsoever; this shall also apply to situations where defects to services or merchandise are evident. Unless the matter at issue is a consumer transaction, the contractual partner is not entitled to withhold the entire sum but in the case of a justified complaint only a reasonable part of the gross invoice amount, excepting in the case of a reverse transaction.

9. DEMANDS AND DEBT COLLECTION

If Ascendor pursues claims for outstanding payments, demands and debt collection itself, the Client is responsible for paying the following administrative surcharges: EUR 12- per each reminder letter (demand) sent and a half-yearly fee of EUR 5- for keeping records of the debt on file. Ascendor is also entitled to claim compensation for any further financial damages that occur as a result of non-payment by the Client, in particular increased interest rates on any Ascendor credit accounts.

10. TRANSPORTATION, TRANSFER OF RISK, NOTIFICATION OF DAMAGE

10.1. In the absence of an express written agreement to the contrary, the Client is solely responsible for bearing the costs and risks of transportation. Unless the Client has reached a written agreement governing a different moment for the transfer of risk, responsibility is assumed at the moment the purchase object has been transferred to the carrier. Unless otherwise agreed, the Client also accepts sole responsibility of transportation risk for the duration of the unloading and handling of the purchase object.
10.2. In the event of a contractual agreement where Ascendor agrees to complete the installation, the deadline governing the transfer of risk is the moment of acceptance of the finished installation. This must be carried out immediately upon completion of installation; minor defects do not entitle the Client to refuse the acceptance of the installation.
10.3. If the acceptance is delayed, or cannot take place for reasons that are beyond the control of Ascendor, the deadline for transfer of risk to the Client shall take place on the day of the notification of the readiness for acceptance.
10.4. If the Client is not a consumer, the merchandise must be immediately inspected by the customer on receipt of delivery; this also applies when the Client acts as an intermediary prior to resale of the merchandise or when the Client has purchased on behalf of third parties. All visible signs of damage and defects are to be reported immediately upon receipt in writing, a detailed description specifying type and extent of damage or defect shall be submitted and also noted in the acceptance documents. Otherwise, the receipt of merchandise will have been considered as approved and all future claims arising from any possible non-fulfilment or defective performance of the delivery are excluded. Unseen or concealed defects are to be reported in written detail immediately, or within a limitation period of two days after discovery. Specify the type and extent of the damage or defect. If this notification is not made or the deadline exceeded, the merchandise will have been considered as approved and future claims arising from any possible non-fulfilment or defective performance of the delivery are excluded.
 

11. CONTRACT CANCELLATION, DELAY OF ACCEPTANCE

11.1. Any failure to complete the contract on the part of the Client or a delay in acceptance for important reasons which include default of payments and in particular due to bankruptcy of the Client or dismissal of a bankruptcy application due to lack of funds that make any further adherence to the contract unreasonable will entitle Ascendor to cancel the contract, provided it has not been fulfi lled in its entirety by either party. In the event of default of payment by the Client, Ascendor is freed from any further
obligations to provide services or deliver materials and is entitled to retain outstanding deliveries or services and demand advance payments or guarantees, or to cancel the contract after setting a reasonable grace period.
11.2. In the event of a cancellation of contract arising from reasons attributable to the Client, Ascendor shall have the option of demanding from the Client either a flat-rate compensation of 15% of the gross invoice amount or compensation equal to the actual sum of the resulting damages. In cases where non-resalable merchandise or custom designs are involved, Ascendor is entitled to seek full compensation for the total costs involved.
11.3. In the event of a cancellation of contract, the object of purchase including all accessories shall be returned to Ascendor at the Client‘s expense.
11.4. If the Client fails to take delivery of the merchandise as contractually agreed (default of acceptance), Ascendor is entitled, after the expiry of a reasonable grace period to either; store the merchandise at its own premises and levy a storage fee of 0.1% of the gross invoice amount for every commenced calendar day or, to store the merchandise at the expense and risk of the Client with an authorised third party. Ascendor is simultaneously entitled to either demand fulfi lment of the contract or having granted a reasonable grace period, to cancel the contract and to dispose of the merchandise elsewhere. This provision will not affect Ascendors’ entitlement to demand payment from the Client for materials and services rendered.

12. Reservation of title

12.1. All merchandise delivered by Ascendor are under reservation of title and remain Ascendor property until full payment has been received. The Client undertakes to apply due and diligent care while storing and handling our property and to ensure that it is appropriately insured. If the merchandise delivered to the Client under reservation of title is intended for resale, the Client shall assign any possible claims to Ascendor that arise from resale payment of the purchase to a third party. The Client shall notify the purchaser punctually and without delay of the assignment and shall provide Ascendor with the name of the purchaser, when requested to do so. The Client must enter the assignment openly in its business books and this must be made evident to the purchaser on delivery notes, invoices, etc. If the Client defaults payments to Ascendor, it is obliged to hold the sales revenue that it receives for Ascendor property separately and exclusively on behalf of Ascendor. Any possible claims against an insurer are already assigned to Ascendor.
12.2. The Client must inform Ascendor instantly of a seizure of or any other claims made by a third party that affect our property. The Client is duty bound to inform Ascendor immediately and to assert right of ownership on our behalf.
12.3. The assertion of Ascendor ownership shall only constitute a withdrawal from the contract if this is expressly declared in writing. Ascendor is entitled to demand compensation from the Client for any transport and handling costs incurred when reclaiming its property.

13. Limitation of scope of services (service description)

13.1. Materials that are subjected to use and wear and tear will only have a service lifespan commensurate to the respective technological and engineering status.
13.2. If the matter is not a consumer transaction, any justifiable and reasonable change in Ascendor performance obligations, in particular with regard to technical progress shall be deemed to be acceptable to the Client. The technical information provided by Ascendor and which can be found in catalogues, brochures, advertisements, price lists, website etc., are approximate values. Ascendor reserves the right to make design changes to its products without issuing prior notification.

14. Warranty

14.1. The duration of the Ascendor warranty period is two years. Any further guarantee obligations expire with the end of this warranty period. Any further recourse for the Client according to § 933b of the Austrian Civil Code (ABGB) due to self-fulfilled warranty obligations is hereby excluded.
14.2. The warranty period begins at the moment of handover to or with the acceptance of merchandise by the Client.
14.3. In all cases, Ascendor will exercise its own discretion as to how it will fulfil any warranty claims made by the Client, either through exchange, repair within a reasonable time limit, a price reduction or modification. Ascendor is also entitled to fulfil the warranty claim by making numerous improvements and attempts to improve the problem. The Client can only demand cancellation of the contract if the defect is so substantial that it cannot be remedied through exchange or repair, and a price reduction is not a reasonable compensation. If the Client maintains that the merchandise is defective, the resulting claims, especially regarding warranty or compensation for damages can only be asserted if the Client provides evidence that the defect was already present at the time of delivery, this also applies within the first six months following delivery of the merchandise.
14.4. Ascendor is obliged to provide the subsequent delivery of all replacements for damaged or defective parts, free of charge for the duration of the warranty period. The Client, if it has resold the purchase object to a customer will undertake, on behalf of Ascendor, the execution of repairs and the replacement of defective parts for its customer at its own expense. Any recourse to compensation for the costs incurred by the Client for this work at the customers’ premises are expressly excluded.
14.5. Ascendor does not provide warranty for defects that are caused by improper handling, installation of foreign parts, circumstances that are outside the normal operating conditions, weather and temperature influences, failure to observe operating and service instructions, unauthorised repair work or any form of intervention by third parties (e.g. vandalism) any claims for damages arising from such defects are also excluded.
14.6. It will be assumed that any defects or damages that occur to Ascendor products that are installed outdoors or located in publically accessible places are caused as a result of intervention by third parties. The Client must provide evidence that such damage or defects existed at the time of delivery.
14.7. Ascendor is entitled to reclaim or forward on to the Client any expenses incurred for work and materials required to remedy damages or defects that are subsequently proven to have been outside the scope of warranty.
14.8. The Client is duty bound to familiarise itself with the operating instructions, service manual and other information provided by Ascendor regarding the use of the product and the attendant risks involved, before completing commissioning and handover. The Client will strictly observe the hazard warnings in the documents provided and is duty bound to pass the information supplied by Ascendor onto the final customer/user and inform them of their obligation to familiarize themselves with the contents of said documents. In the event of a breach of this duty, the Client will indemnify Ascendor from any liability and responsibility with respect to possible legal proceedings and claims resulting from or arising out of the failure to instruct the customer in the correct use of and risks involved with the product. Any compensation claims of the Client for damages that have resulted from a failure to observe Ascendor instructions are excluded.
 

15. Compensation for damages

15.1. All claims for damages in cases involving slight or gross negligence are excluded. This does not however apply to claims for personal injuries.
15.2. The injured party is to present evidence of the existence of slight or gross negligence, unless it is a consumer transaction. If it is not a consumer business transaction, the limitation period for compensation is one year.
15.3. The liability for all subsequent damages, especially for consequential damages caused by a defect and loss of profits is excluded.

16. Product liability

16.1. The product, equipment and services delivered will only offer the degree of safety that can be expected from the valid certification regulations; the information contained in the operating and maintenance instructions, especially the regulations regarding servicing and mandatory inspection of equipment and systems or on any other information provided with the product.
16.2. Any recourse to claims against Ascendor by contractual partners or third parties under the title „Product Liability“ as defined within the Product Liability Directive (PLD) are excluded, unless the party seeking recourse proves that errors that occurred are within the scope of Ascendor warranty and occurred as a result of gross negligence.

17. PLACE OF fulfilment

The place of fulfi lment of contractual obligation is the headquarters of Ascendor Ltd. 4174 Niederwaldkirchen, Austria.

18. Formal requirements, data processing

18.1. All agreements, subsequent amendments, supplements, subsidiary agreements, etc., must be in writing in order to be valid and require an original signature or in a verified electronic format with electronic signature.
18.2. The Client is obliged to notify Ascendor of any changes to its residential or business address as long as the legal transaction that is the subject of the contract has not been completely fulfilled by both parties. If the Client fails to provide a valid address, all communication and declarations that have been sent to the last known address are considered valid and deemed to have been received.
18.3. The Client consents to the automatic and electronic storage of personal data required by Ascendor in the fulfilment of this contract. The Client consents to the processing of personal data (name, company, address, email address) by Ascendor also for the purpose of sending promotional literature concerning Ascendor products. The Client is entitled to revoke this consent at any time by writing directly to Ascendor.

19. Applicable law, contractual language

Austrian substantive law shall apply. The application of the UN Convention on Contracts for the International Sale of Goods is excluded. The contractual language is German.

20. Place of jurisdiction

Any contractual disputes arising out of the provisions in this GTC shall be settled exclusively by the local court of jurisdiction at Ascendor‘s registered office in Linz, Austria. Ascendor is nonetheless entitled to bring an action at any other place of legal jurisdiction. This provision does not apply to consumer transactions.

21. Severability clause

Should one or more of the provisions in these General Terms and Conditions be deemed legally invalid, the remaining provisions shall still apply and remain legally binding and unaffected in their validity.

Ascendor General Terms and Conditions

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