General Terms and Conditions
§1 Scope, conclusion of contract
- The following General Terms and Conditions (hereinafter known as GTCs) apply to all contracts and deliveries executed by ASCONA Gesellschaft für optische Messtechnik mbH (hereinafter known as ASCONA). They are considered to be agreed as of the conclusion of contract, but at the latest when the goods or services are received by the contractual partner / customer (hereinafter known as the Customer, Purchaser or Buyer).
- Our offers are subject to change. A contract shall only take effect when an order is confirmed in writing or when we make a delivery.
- Any deviating general terms and conditions of the Customer are hereby explicitly rejected. These shall only apply if they are acknowledged by ASCONA in writing.
- These GTCs shall apply to all future orders, offers, deliveries and services from ASCONA within an ongoing business relationship even if they are not explicitly referenced, unless explicitly agreed otherwise.
- Any side agreements or changes must be confirmed by ASCONA in writing.
§2 Scope of Buyer’s rights, contractual penalty
- All software programs, software components (hereinafter jointly known as Programs) and hardware components shall only be sold on the condition that the Buyer provides a legally binding acknowledgement of these GTCs. The delivery and payment of goods shall not grant ownership of the delivered Programs, merely a non-exclusive, content-related right to use the Program. The Programs shall remain the property of ASCONA. The use of a Program must take place within the agreed scope (single-user license or open license). The Buyer may only reproduce the Programs, in whole or in part, on the same or other carriers with written permission from ASCONA. This excludes reproductions that the Buyer creates for the Buyer’s own data backup purposes, as long as ASCONA does not prohibit this in its licensing conditions. Such reproductions may not be shared with third parties. They may only be used by the Buyer if the original can no longer be used due to damage or destruction.
- The Buyer hereby agrees not to share the ASCONA Programs and the original data carrier(s) with third parties, nor to make these accessible in any other manner. Third parties in this sense also include the Buyer’s branch offices and companies affiliated with the Buyer. The complete or partial reproduction of the program for the purpose of simultaneous multiple uses within the Buyer’s company, and for use on multiple computer systems, is also prohibited. Such reproduction, sharing or reselling of the Programs is only permissible with explicit written permission from ASCONA.
- Any violation of these provisions shall entitle ASCONA to demand an appropriate contractual penalty from the Buyer for each violation, and excluding the continuation of offense. The amount of this penalty shall be determined at ASCONA’s discretion, and may be reviewed by the responsible 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 violation. ASCONA reserves the right to assert further copyright claims. The contractual penalty shall be offset against any damage compensation claims incurred by ASCONA against the Buyer as a result of the violation.
- The Program manuals and other materials are subject to the provisions of Sec. 2 and 3 with regard to reproduction and sharing, including the contractual penalty.
§3 Special provisions for resellers, contractual penalty
- If the sale to the Purchaser explicitly took place for the purpose of reselling, the Purchaser is entitled to transfer the usage right to a third party.
- The reseller is not permitted to reproduce the Program in full or in part, even for the purpose of data backups.
- The reseller may only hand over the Program to the third party if the third party has agreed in writing to comply with § 2 of the present General Terms and Conditions both toward the reseller and toward ASCONA. Any contractual penalty to be paid by the third party in the event of a violation shall be divided equally between ASCONA and the reseller.
- Any violation of these provisions shall entitle ASCONA to demand an appropriate contractual penalty from the reseller for each violation, and excluding the continuation of offense. The amount of this penalty shall be determined at ASCONA’s discretion, and may be reviewed by the responsible 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 violation. ASCONA reserves the right to assert further copyright claims. The contractual penalty shall be offset against any damage compensation claims that ASCONA incurs against the reseller as a result of the violation.
- The contents of the delivery obligation shall exclusively be subject to the order confirmation provided by ASCONA and to these General Terms and Conditions. ASCONA is entitled to provide partial deliveries.
- Deviations in the delivered goods and services from the offer documents are permissible as long as these are reasonable for the Purchaser with consideration for ASCONA’s interests, and as long as the contractually required performance for the ordered Program / goods is completely fulfilled.
- If the ordered goods are replaced in the manufacturer’s delivery program by new goods that provide all of the same properties required by the contract just as effectively or better, ASCONA shall be entitled to deliver the new goods in place 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 shall inform the Purchaser of any price adjustment in a timely manner. In the event of a price adjustment, the Purchaser shall be entitled to withdraw from the contract.
- When the goods are shipped, the risk shall be transferred to the Purchaser. This applies even if freight-free delivery has been agreed. If the goods are to be picked up by the Purchaser, risk shall be transferred when the goods are made available, after the Purchaser has been notified of their availability.
- If a performance is delayed beyond the time agreed to by ASCONA, rights may only be asserted on this basis after a period of at least three weeks, to be set by the Purchaser, unless the Purchaser can demonstrate that its interest no longer applies as a result of the delay. If ASCONA is in default with the delivery or is unable to make the delivery, reimbursement for indirect damage is excluded unless the default or impossibility of delivery are due to an intentional or grossly negligent contractual violation by ASCONA. In the event of delivery disruptions that are outside ASCONA’s control, particularly strikes, lockouts, material failure, force majeure, transport blockades or operational shutdowns, ASCONA shall be entitled to withdraw from the contract without incurring any damage compensation obligations.
§5 Prices and payment conditions
- Our prices are strictly net, free shipping point. All shipping costs, particularly packaging, transport costs and transport insurance as well as statutory value-added tax, shall be borne by the Purchaser.
- Payments shall be due in full within 30 days of invoicing. The Customer shall bear any applicable bank fees. Bills of exchange and checks shall only be accepted free of charge and without costs with special agreement from us.
- If the Purchaser is in default with a payment, ASCONA shall be entitled to request default interest of 9% (annual interest) over the respective base interest rate. ASCONA is entitled to provide proof of higher damage.
- The Purchaser can only offset this with counterclaims if these are undisputed, legally established or ready for a decision.
- If a debt collection agency or attorney is hired to collect receivables in the event of a payment default, the Buyer shall bear the resulting costs at the established statutory rate.
- In the event of default, ASCONA is entitled to request a flat default charge of €40.00 from the Purchaser as of the time when the default began. This flat default charge shall be offset against any costs for legal proceedings (cf. Sec. 5).
§6 Warranty, defect notification requirement
- The Purchaser hereby agrees to inspect the goods delivered by ASCONA as soon as they are received, and to report any damage, defects or complaints to ASCONA in writing within 2 weeks (fourteen days – defect notification requirement). In the event that notification is not provided in a timely manner, the Purchaser’s warranty entitlement shall lapse unless the defect was not noticeable during the inspection and within the specified time period. In the event of a sale to non-merchants, the defect notification requirement shall only apply to obvious defects; in this case, notification must be provided within 3 weeks (21 days).
- ASCONA hereby agrees to rectify any defects in the carrier material itself by providing a replacement during the first two years after delivering the Programs, at its own expense.
- The Purchaser is solely responsible for the proper use and backup of Programs if and to the extent that ASCONA has not explicitly accepted this obligation in writing.
- ASCONA’s warranty obligation shall be limited to our choice of replacement delivery or rectification. If the rectification or replacement delivery fails, the Purchaser can request its choice of a reduction in purchase price or rescission of the contract.
§7 Exclusion of liability
- ASCONA shall fundamentally not be liable to the Customer for any damages that the Customer incurs while using the goods, or during and after the execution of the contract. This shall not apply to any liability due to a violation of a significant contractual obligation, or to liability for damage suffered by the Customer due to a loss of life, bodily injury or damage to health as a result of an intentional or grossly negligent violation of obligations by ASCONA, its legal representatives or vicarious agents. Significant contractual obligations are those whose fulfillment makes it possible to properly execute the contract in the first place, and which the contractual partner may regularly rely upon to be fulfilled.
- ASCONA’s liability shall be limited to the amount of damage that was foreseeable at the time the contract was concluded, and that is typical for this type of contract.
§8 Reservation of title, assignment by way of security
- Delivered goods shall remain the property of ASCONA until they are paid in full. Any provisions of these General Terms and Conditions according to which the Purchaser does not obtain ownership shall remain unaffected. The Purchaser is entitled to process and sell the goods. The Purchaser may not pledge the goods, assign them by way of security or hand them over by way of exchange. ASCONA and the Purchaser agree that any ownership of the processed goods which the Purchaser obtains for the new items as per § 950 BGB [German Civil Code] shall be transferred to ASCONA when this is established, with a co-ownership share for ASCONA corresponding to the value of the goods that ASCONA contributed (gross order amount). Handover shall be replaced by an agreement that the Purchaser shall store the new items / co-ownership share of the items for ASCONA free of charge.
- If the Purchaser sells goods purchased from ASCONA before paying the fee / purchase price to ASCONA itself, the Purchaser and ASCONA hereby agree that the receivables arising from the resale shall be transferred to ASCONA when these are established, as security for our fee / purchase price claim. If the goods are sold together with other items, the assignment of the fee / purchase price shall be limited to the value of the goods obtained from ASCONA (gross order amount). The Purchaser is revocably entitled to collect the receivable assigned to ASCONA on our behalf in its own name. ASCONA is entitled to disclose the assignment or to request that the Purchaser report the assignment to the debtor.
§9 Other provisions
- The place of fulfillment for performance on both sides and – where legally permissible – the place of jurisdiction shall be Tettnang.
- The legal relationship between ASCONA and the Purchaser shall exclusively be subject to the laws of the Federal Republic of Germany. The applicability of international private law and the UN Convention on Contracts for the International Sale of Goods is hereby explicitly excluded.
- If any provision of the contract should be fully or partially invalid, this shall not affect the validity of the remainder of the contract.
- All shipped goods are intended to remain in the country of destination, and may not be exported from the country of destination if the respective export provisions of the individual manufacturing countries establish limitations in this regard.