GTC
§ 1 Scope of application, conclusion of contract
1. the following General Terms and Conditions of Delivery and Business (hereinafter referred to as GTC) apply to all orders and deliveries carried out by ASCONA Gesellschaft für optische Messtechnik mbH (hereinafter referred to as ASCONA). They shall be deemed to have been agreed upon conclusion of the contract, but at the latest upon acceptance of the delivery or service by the contractual partner/customer (hereinafter referred to as the client, purchaser or buyer).
2 Our offers are subject to change. A contract shall only come into existence upon written order confirmation or upon our delivery.
3. deviating terms and conditions of the customer are expressly rejected. These only apply if they are recognised by ASCONA in writing.
4 These General Terms and Conditions apply as part of an ongoing business condition, even without express inclusion, for all future orders, offers, deliveries and services from ASCONA, unless expressly agreed otherwise.
5. collateral agreements and amendments require written confirmation from ASCONA.
§ 2 Scope of the purchaser's rights, contractual penalty
1. all software programs, software components (both hereinafter referred to as programs) and hardware components are only sold on the condition that the purchaser accepts these General Terms and Conditions in a legally binding manner. With the delivery and payment of the goods, no ownership of the delivered programmes is acquired, but only a simple right to use the programme, limited in content. The programmes remain the property of ASCONA. A program may only be used to the extent agreed (single user licence or open licence). The purchaser is only permitted to reproduce the programmes, in whole or in part, on the same or other media with the written permission of ASCONA. This does not apply to reproductions which the purchaser makes for himself for data backup purposes, unless ASCONA prohibits this in its licence conditions. These reproductions may not be passed on to third parties. They may only be used by the purchaser if the original is no longer usable due to damage or destruction.
2 The purchaser undertakes neither to pass on the ASCONA programmes and the original data carrier(s) to third parties nor to make them accessible in any other form. Third parties in this sense also include branches of the purchaser or companies affiliated with the purchaser. Reproduction of the programme in whole or in part for the purpose of simultaneous multiple use within the purchaser's business and for use on several computer systems is also excluded. Such reproduction, transfer or resale of the programmes is only permitted with the express written consent of ASCONA.
3. a breach of these provisions entitles ASCONA to demand an appropriate contractual penalty from the purchaser for each case of infringement and to the exclusion of the continuation connection, the amount of which shall be determined at the reasonable discretion of ASCONA and may be reviewed by the competent court in the event of a dispute. The amount of the contractual penalty is limited to a maximum of 5 % of the net order amount per infringement. Ascona reserves the right to assert further copyright claims. The contractual penalty shall be offset against any claims for damages against the purchaser arising from the infringement on the part of ASCONA.
4. the provisions of paragraphs 2 and 3 regarding reproduction and transfer, including the contractual penalty, apply to the programme manuals and other documents.
§ 3 Special provisions for resellers, contractual penalty
(1) If the sale to the customer has been made expressly for the purpose of resale, the customer shall be authorised to transfer the right of use to a third party.
2. the reseller is not permitted to reproduce the programme in whole or in part, not even for the purpose of data backup.
3. the reseller may only hand over the programme to the third party if the third party has undertaken in writing to comply with § 2 of these General Terms and Conditions both vis-à-vis the reseller and vis-à-vis ASCONA. The contractual penalty to be paid by the third party in the event of a breach shall fall equally to ASCONA and to the reseller.
4. a breach of these provisions shall entitle ASCONA to demand an appropriate contractual penalty from the reseller for each case of infringement and excluding the continuation of the infringement, the amount of which shall be determined at ASCONA's reasonable discretion and may be reviewed by the competent court in the event of a dispute. The amount of the contractual penalty is limited to a maximum of 5 % of the net order amount per infringement. Ascona reserves the right to assert further copyright claims. The contractual penalty shall be offset against any claims for damages against the reseller arising from the infringement on the part of ASCONA.
§ 4 Delivery
1. the order confirmation issued by ASCONA and these General Terms and Conditions are exclusively authoritative for the content of the delivery obligation. ASCONA is authorised to make partial deliveries.
2. deviations of the delivered goods and services from the offer documents are permissible, provided they are reasonable for the purchaser, taking into account the interests of ASCONA, and the contractually required services of the ordered programme/the ordered goods are fulfilled in full.
3. if the ordered goods are replaced in the manufacturer's delivery programme by new goods which provide all the properties required in the contract just as well or better, ASCONA is entitled to deliver the new goods instead of the ordered goods. In this case, ASCONA can adjust the price by the same percentage by which the manufacturer's price for the new goods exceeds the manufacturer's price for the ordered goods. ASCONA will inform the purchaser of a price adjustment in good time. In the event of a price adjustment, the purchaser is entitled to withdraw from the contract.
4. the risk is transferred to the purchaser when the goods are dispatched. This shall also apply if carriage paid delivery has been agreed. If the goods are to be collected by the customer, the risk shall pass to the customer when the goods are made available and after notification of availability to the customer.
5. if a service is delayed beyond the time promised by ASCONA, rights arising from this can only be asserted after the expiry of a deadline set by the purchaser of at least three weeks, unless the purchaser can prove that its interest has completely ceased to exist due to the deadline being exceeded. If ASCONA is late with the delivery or if the delivery becomes impossible for ASCONA, compensation for indirect damages is excluded, unless the delay or impossibility is due to an intentional or grossly negligent breach of contract by ASCONA. In the event of delivery disruptions that are not within ASCONA's sphere of influence, in particular strikes, lockouts, material failure, force majeure, transport or operational blockages, ASCONA is entitled to withdraw from the contract without incurring any liability for damages.
§ 5 Prices and terms of payment
1. our prices are quoted strictly net free point of despatch. All shipping costs, in particular packaging, transport costs and transport insurance as well as the statutory value added tax shall be borne by the purchaser.
2. payments are due within 30 days of invoicing without deduction. Any bank charges incurred shall be borne by the customer. Bills of exchange and cheques shall only be accepted by us free of costs and charges by special agreement.
3. if the purchaser defaults on payment, ASCONA is entitled to demand default interest of 9% percentage points (annual interest) above the respective base rate. ASCONA is entitled to provide evidence of higher damages.
4 The purchaser can only offset counterclaims if these are undisputed, legally established or ready for judgement.
5. if a debt collection agency or lawyer is commissioned to collect the debt in the event of default of payment, the purchaser shall bear the costs arising from this commissioning in the amount provided for by law.
6. in the event of default in payment, ASCONA is entitled to demand a lump sum for default in the amount of € 40.00 from the purchaser from the time of default. This lump sum for default is to be offset against any costs of legal action (see para. 5).
§ 6 Warranty performance, obligation to give notice of defects
1. the purchaser undertakes to inspect the goods delivered by ASCONA immediately upon receipt and to notify ASCONA in writing of any damage, defects and complaints within 2 weeks (fourteen days) (obligation to give notice of defects). Failure to notify ASCONA in good time will invalidate the purchaser's warranty claim, unless the defect was not recognisable during the inspection and within the deadline. In the case of sales to non-merchants, the obligation to give notice of defects only applies to obvious defects, whereby the notice of defects must be given within a period of 3 weeks (21 days).
2 ASCONA undertakes to rectify defects in the carrier material itself by replacement at its own expense during the first two years after delivery of the programmes.
3. the purchaser is solely responsible for the correct use and data backup of programmes, insofar as ASCONA has not expressly assumed an obligation to do so in writing.
4. a warranty obligation on the part of ASCONA is limited, at our discretion, to replacement delivery or subsequent improvement. If the rectification or replacement delivery fails, the purchaser can demand a reduction in the purchase price or cancellation of the contract at his discretion.
§ 7 Exclusion of liability
1. as a matter of principle, ASCONA shall not be liable to the customer for damages incurred by the customer when using the goods or during and after the fulfilment of the contract. This does not apply to liability for a breach of an essential contractual obligation and for liability for damages to the customer resulting from injury to life, limb or health, nor for damages caused by an intentional or grossly negligent breach of duty by ASCONA, its legal representatives or vicarious agents. Essential contractual obligations are those whose fulfilment makes the proper execution of the contract possible in the first place and on whose compliance the contractual partner may regularly rely.
2. the liability of ASCONA is limited to damages that were foreseeable at the time the contract was concluded and are typical for the contract.
§ 8 Retention of title, assignment as security
1. delivered goods remain the property of ASCONA until full payment has been made. Provisions of these General Terms and Conditions, according to which the purchaser does not acquire ownership, remain unaffected. The Purchaser is authorised to process and sell the goods. The Purchaser is not permitted to pledge the goods, transfer them by way of security or transfer them by way of exchange. ASCONA and the Purchaser agree that the processing ownership, which is created for the Purchaser in accordance with § 950 BGB (German Civil Code), is transferred to ASCONA with its creation in the amount of a co-ownership share, which corresponds to the value of the goods brought in by ASCONA (gross order value). The transfer is replaced by the agreement that the Purchaser will store the new items/the co-ownership share of the items for ASCONA free of charge.
2. if the purchaser sells goods purchased from ASCONA before he himself has paid the payment/purchase price to ASCONA, the purchaser and ASCONA agree that the claims arising from the resale are transferred to ASCONA as security for our payment/purchase price claim as soon as they arise. If the goods are sold together with other items, the assignment of the payment/purchase price claim is limited to the amount of the value of the goods originating from ASCONA (gross order amount). The purchaser is revocably authorised to collect the claim assigned to ASCONA for our account in its own name. ASCONA is authorised to disclose the assignment or to demand that the Customer notifies the debtor of the assignment.
§ 9 Other provisions
1. the place of fulfilment for the mutual services and - as far as legally permissible - the place of jurisdiction is Überlingen.
2 The legal relationship between ASCONA and the purchaser is subject exclusively to the law of the Federal Republic of Germany. The application of international private law and UN sales law is expressly excluded.
(3) Should a contractual provision be wholly or partially invalid, this shall not affect the validity of the remainder of the contract.
(4) All goods are shipped to remain in the country of destination and may not be exported from the country of destination if the respective export regulations of the individual manufacturing countries impose restrictions in this respect.