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General terms and conditions

Terms and Conditions of Sale, Service, Delivery and Payment of ASCOT GmbH, Beverstedt, Germany

1.     For use with – Hereinafter called Customer:

a.     Any person acting at the time of conclusion of contract in exercise of his/her business or self-employed professional activity (entrepreneur);

b.     Legal entities under public law or special asset funds under public law as well as societies and registered cooperatives

2.     Scope of validity, offers, order conformations

a.     All supplies and deliveries of ASCOT GmbH shall be governed exclusively by the terms and conditions of sale, delivery and payment set forth below (the “Terms and Conditions”); any terms and conditions of the Customer which deviate from or conflict with these Terms and Conditions will not be recognized by us unless we have expressly agreed to them in writing. These Terms and Conditions shall apply even if we should affect supply or delivery without reservation despite knowing of terms and conditions of the Customer that conflict with or deviate from these Terms and Conditions.

b.     These Terms and Conditions shall also apply for all future business transactions with the Customer.

c.     Unless stated otherwise in our order confirmation, our offers are without engagement and may be revoked at any time.

3.     Delivery

a.     Any delivery times or dates stated shall be deemed approximate only and shall not be binding on us.

b.     Any unforeseen obstacles to delivery, such as Acts of God, shortage of raw materials, strikes, disruptions to our own business operations or those of any of our suppliers, shall entitle us to defer delivery for the duration of the obstacle. In the case of any such unforeseen obstacles to delivery as aforesaid, we may also repudiate the contract to the extent that it has not already been fulfilled. This shall give rise to no claims for compensation on the part of the Customer.

c.     In case the delivery of goods or services will be restricted or forbidden due to (changed) export control laws, rights and obligations of the customer will be suspended for the estimated duration of this change, or even the contract may be cancelled.

4.     Shipment and packing

a.     Unless stated otherwise in these Terms and Conditions or agreed other wise in writing with the Customer, delivery is ex works. With the start of shipment, all risk (breakage, shrinkage etc.) shall pass to the Customer even where delivery has been agreed carriage paid.

b.     Transport will be effected by the UPS or another mode of transport has been expressly agreed.

5.     Prices and terms of payment

a.     Prices are quoted in EURO, free carrier Beverstedt (Germany), exclusive of value added tax, freight, packing and insurance. In the case of domestic transactions (within Germany) with a net order value of EURO 5000.00 or more, we will effect delivery free house.

b.     Our invoices are due and payable net and without any deduction within 14 days from date of invoice.

c.     We will grant 2% cash discount for payment within 7 days from date of invoice.

d.     Payment will only be deemed made when the amount in question has been credited to our account. In the case of any delay in payment, we shall, without prejudice to our right to claim for any additional loss or damage, charge interest on arrears at a rate of 8 percentage points above the base interest rate (Art. 288 Para. 2 BGB [German Civil Code]) unless we are ourselves subject to interest at a higher rate. We further reserve the right to claim for any additional loss or damage.

e.     The Customer shall only have the right to make offset if his counterclaims have been finally and absolutely established at law, are undisputed or have been recognized by us. The Customer shall only have a right of withholding insofar as his counterclaim relates to one and the same con tactual relationship.

f.       We reserve the right to reasonably increase our prices in line with any cost increases, especially as a result of changes in material and wage costs, occurring after conclusion of contract.

g.     In the case of any delay in payment, all our claims existing at such time shall become due and payable immediately.

6.     Reservation of title

a.     We reserve title to the item of sale until receipt of all payments arising from the business relationship with the Customer. Claims arising from the business relationship shall also encompass interest, ancillary claims and costs of any legal action as well as costs of intervention in the case of seizure of the item of sale by any third party. Checks and bills shall be deemed payment only when irrevocably honored.

b.     The Customer is entitled to resell the item of sale in the ordinary course of his business. In the case of such resale he hereby already assigns to us, until such time as all our claims have been met in full, his own claims against his own customer arising from resale of the item of sale. We hereby accept the said assignment. The assignment shall also encompass any balance claims on open account, if agreed. Until revocation of such entitlement by us, the Customer is entitled to collect the assigned claims in his own name.

c.     The Customer shall have a duty, on our request, to inform us of the names of his customers against whom he has acquired claims through resale of the item of sale as well as of the amounts owed by such customers and to allow us to inspect his books and accounts in respect thereof. The Customer shall have a duty to inform us without delay of any seizure of the item of sale or of any other such intervention by third parties.

d.     Any processing or transformation of the item of sale by the Customer shall be deemed done on our behalf. Should the item of sale be processed together with other items not belonging to us, we shall have co-title to the new item so created in the same proportion as that between the value of the item of sale (total invoice amount including value added tax) and the value of the other items involved at the time of processing. The same shall also apply in the case of any combination of the item of sale with other items not belonging to us.

e.     Should the realizable value of the securities existing in our favor exceed the value of our claims by more than 20%, we shall have a duty, on the Customer’s request, to release securities of our choice in the amount of the said excess.

f.       If, in the event that the law of another country should apply, our reservations of title should not be effective in that country or if, for example, in addition to the contractual agreement, they should also require to be registered, the Customer shall have a duty to assist, at his expense, in all necessary measures and in particular to make all declarations as may be necessary on his part in order to render our reservation of title effective or in order to provide us with security which is equivalent to reservation of title.

7.     Liability

a.     Our liability in the event of willful intent or gross negligence or for loss or damage resulting from culpable injury to life, limb or health of the Customer or arising under a warranty of quality or warranty for durability/ shelf life shall be as specified in the statutory regulations.

b.     In the case of any culpable breach of a material contractual duty, the amount of our liability shall, except in any of the cases referred to under letter a above, be limited to the amount of loss or damage foreseeable and typical in the case of a contract of the kind in question.

c.     Other than in the cases referred to under letters a and b above, our liability shall be limited to the amount of the contractually owed remuneration or at most EUR 10,000.00.

d.     The foregoing shall be without prejudice to our liability under the German Product Liability Act.

e.     Insofar as our liability for compensation or damages is barred or limited, this shall also apply to the personal liability for compensation or damages of our employees, representatives and vicarious agents.

8.    Warranty

a.     In the event of any defect in the item of sale, the choice of remedy shall lie with us. Any expenses connected with the remedying of defects arising from the fact that the item of sale has been sent or taken to a place other than the place of performance shall be borne or refunded by the Customer. For claims to compensation on account of a defect, section 7 of these Terms and Conditions shall apply.

b.     The period of limitation for claims for defects shall be 2 weeks (Arts. 377 HGB). This shall not apply in the case of fraudulent misrepresentation, willful intent or the cases specified in Arts. 478 and 479 BGB. This shall not affect the limitation period for recovering from the supplier as provided for under Arts. 478 and 479 BGB. The start of the limitation period shall be as specified in the law (Arts. 121 BGB).

c.     Warranty shall be excluded if the Customer has processed or resold the item of sale after he has discovered, or ought to have discovered, a defect unless he is able to prove that the processing or resale was necessary in order to prevent greater loss or damage.

d.     Natural wear and tear and damage through improper treatment, handling or storage is excluded from warranty.

e.     The customer may return goods only after having obtained an RMA number from ASCOT GmbH.

9.    Industrial property rights, moulds, tools, confidentiality

a.     Insofar as we provide technical documentation, illustrations, moulds, tools, samples or also tender documents, we reserve title and all copyright and other industrial property rights thereto even if the Customer should have borne all or part of the costs therefore. The aforesaid may not be made accessible to any third party and must be returned to us without delay in the event of an order not being placed. The Customer is prohibited from producing the item of sale, or having it produced by any third party, with the aid of the technical documentation, illustrations, moulds, samples and/or tender documents.

b.     If the item of sale is produced in accordance with documents supplied by the Customer, the Customer warrants, and shall have liability therefore, that production and/or supply does not infringe the industrial property rights or other rights of any third party.

10.    Place of performance and legal venue, final provisions

a.     The place of performance and legal venue is Beverstedt (Germany). We shall, however, also have the right to bring legal action against the Customer at his own general place of jurisdiction.

b.     German law only shall apply; application of the UN Convention on Contracts for the International Sale of Goods (CISG) is barred.

 


November 2013