General Business Terms of POS TUNING GmbH
- Scope of the General Business Terms
1.1 These Terms and Conditions shall apply to commercial transactions with companies in the sense of Sec. 310 I BGB
(German Civil Code) for all deliveries, services, and offers of POS TUNING GmbH (hereinafter referred to as: POS).
1.2 If offers, order confirmations or other documents of the contractual partner refer to their own Terms and Conditions,
then these are hereby expressly excluded. This applies even if services are performed for the contractual partner with the knowledge of contradictory or deviating conditions.,
1.3 These Terms and Conditions apply for all future contracts as well, even if they are not expressly agreed once again.
1.4 The contractual language is German. If declarations are submitted in multiple languages, then the type and scope of
services shall be determined exclusively based on the German text, in case of doubt.
2. Effectiveness of the agreement
2.1 The agreement shall come into force upon written acceptance of an offer, countersigning of an agreement or a written order confirmation by POS.
2.2 All further agreements and ancillary agreements concluded between the parties in order to carry out the contract shall be recorded in writing. Oral agreements shall be verified by the party which refers to them.
2.3 If POS takes advantage of services from third parties in order to perform its offered services, then these third parties shall not be considered contractual partners, unless this is expressly noted in writing.
3. Object of service/transfer of risk
3.1 The object and scope of services are defined in the contract It. 2.1 in a binding manner.
3.2 Unless otherwise agreed, all services by POS shall be performed ex works.
3.3 Costs for transportation packaging, transportation and any agreed transportation insurance shall be borne by the contractual partner.
3.4 If the goods are shipped at the request of the contractual partner, then the risk of accidental deterioration or destruction shall be transferred to the contractual partner at the time of the shipment, or at the latest when the goods leave the factory/warehouse. This applies regardless of whether goods are shipped from the place of fulfilment or who bears the freight costs.
3.5 Transportation and all other packaging in accordance with the Packaging Act shall not be taken back, except for exchangeable pallets. The contractual partner is responsible for disposing of packaging.
3.6 If the contractual partner wants to select or influence the transportation company or conditions (Routing order), then they must inform POS of this when the contract is concluded.
3.7 Insignificant defects shall not entitle the partner to reject the goods. Partial deliveries are permitted and must be accepted by the contractual partner as partial fulfilment.
3.8 Minor deviations from the ordered quantity are considered in accordance with the contract, when determining the scope of services. The deviation may never be greater than 10 %. The invoiced amount shall be increased or decreased accordingly.
4. Prices and default of acceptance
4.1 The delivery shall always be calculated at the prices valid at the time the contract was concluded in euros, and shall not include VAT applicable on the date of service. If the service is performed over four months after the contract is concluded, partner has control, then the prices valid on the date of service shall apply.
4.2 In case of doubt, the price shall be based exclusively on the agreed written scope, during a smooth process. Additional costs resulting from circumstances for which POS is not responsible shall be invoiced separately. This applies in particular to supplementary, partial, or call-off deliveries requested by the contractual partner, for preliminary work
and trials at the request of the ordering party, and for proper packaging, delivery and insurance of the goods.
4.3 If the contractual partner does not accept the delivery offered to them, then they shall fall into default of acceptance.
This also applies if POS offers the goods to them orally, and the contractual partner has previously declared that it will deny acceptance. POS must offer the goods if the contractual partner fails to perform one of its collaborative obligations, or if any other circumstances which are within its sphere of influence do not come about promptly before the agreed delivery deadline.
4.4 During default, POS’s liability shall be restricted to only intentional action and gross negligence; the risk shall be transferred to the contractual partner. In this case, POS is entitled to request reimbursement of additional expenses it incurs due to the default of acceptance. This includes, in particular, storage costs charged at customary daily rates. The parties are each entitled to verify that the amount incurred was higher or lower.
4.5 Following a warning, POS is entitled to sell the goods freely at the cost of the contractual partner via a publicly authorised trade broker, or allow them to be sold by a person authorised to conduct public sales. Otherwise, the statutory regulations shall apply.
5. Payment conditions
5.1 After POS has performed its services properly, payment shall be due at the latest at the agreed payment deadline.
Discounts shall be granted only if this has been expressly agreed in writing.
5.2 If a payment deadline has not been expressly agreed, then the contractual partner shall be in default of payment at the latest 30 days after the receipt is received. The invoice shall be considered received by the contractual partner 3 days after it is sent, for the purpose of calculating the start of default. POS shall bear the burden of proof for showing it was sent.
5.3 From the start of default, the contractual partner is obligated to pay claims for damages. Unless the damages are verified to be higher, the invoiced amount shall be subject to 8 % interest above APR of the ECB. POS is entitled to halt all ongoing work once the contractual partner falls into default. After providing a further grace period for payment, POS is likewise entitled to withdraw from the agreement and assert claims for damages due to non-fulfilment.
5.4 Payment shall be made in cash or in euros. Bills of exchange, checks or bills of acceptance shall be accepted as fulfilling payment only after they are credited to POS’s account.
5.5 Any right of retention or offsetting is excluded, unless the claim to be offset is undisputed or has been established in a court of law.
6. Service term
6.1 The agreed delivery deadline shall be considered met if notification has been given that goods are ready for handover, or if goods have been transferred to a transportation company. Delays during transportation of the goods shall not be considered the fault of POS. A fixed-term sale in accordance with Sec. 376 HGB (German Commercial Code) shall exist only if the customer expressly notes that it is no longer interested in the delivery after the delivery deadline, or if the contractual partner verifies that POS should have been aware of this based on obvious circumstances.
6.2 Agreed delivery or completion deadlines shall no longer be valid if approvals, permits, documents or other materials to be provided by the contractual partner that are necessary for completion are not received promptly by POS. POS cannot be considered liable for delays of the delivery or completion deadline due to reasons that are the fault of the contractual partner, or due to accident, force majeure or labour disputes, nor shall such issues entitle the contractual partner to withdraw from the agreement. In such cases, the contractual partner shall bear any damages resulting from the delay itself.
6.3 POS shall be liable for delay and deliveries that cannot be completed in accordance with the law, including the deviating regulations on claims for damages under these Terms and Conditions. The delay damages shall be limited to the foreseeable damages, up to 0.5b % of the order value for each day of delay, and a maximum of 5 %.
7. Warranty for defects
7.1 If the sale is considered a commercial transaction for both parties, the contractual partner shall properly inspect the goods upon receipt and in the normal course of business insofar as this is feasible, and notify POS promptly of any defects. If the contractual partner does not submit this notification, the goods shall be considered accepted unless the defect could not be detected during the inspection. Otherwise, Sections 377 et seqq. HGB apply.
7.2 POS shall repair all such parts or deliver replacement parts if the contractual partner can verify during the warranty term that they are defective due to some circumstance that existed before the transfer of risk. If the contractual partner does not give POS an opportunity to review the defect itself, then it shall provide the goods or samples of the goods about which complaints were submitted promptly at the place of performance; otherwise, any claims under the warranty against defects shall be null and void. If supplementary performance or correction are unsuccessful twice, the purchaser is entitled to reduce the compensation or to rescind the contract, at its discretion.
7.3 If POS does not indicate other warranty terms, any claims due to defects in the delivered goods shall expire 12 months after the transfer of risk.
7.4 No further claims shall exist; any claims for damages due to warranties for defects shall exist only in accordance with these General Terms and Conditions.
8. Claims for damages
8.1 POS shall be liable for breaches of contract that result in an injury to life, body or health, as well as for damages subject to the Product Liability Act based on the liability involved under statutory regulations. POS shall be liable for other breaches of duty, including the consequences of defects, in accordance with statutory regulations, and shall be liable under other regulations only in cases of intentional action or gross negligence.
8.2 POS shall likewise be liable for claims for damages and all subsequent damages resulting from such a violation in case of even slight negligence for breaches of a contractual obligation that affects the primary service, significantly influences the contractual purpose, or makes it possible to carry out the agreement. In such cases, however, claims for damages shall be limited to only the damages foreseeable at the time the contract was concluded, up to the order value.
8.3 If POS’s liability is restricted, this shall also apply to the personal liability of employees or other workers, as well as agents and representatives.
9. Provided goods
9.1 In no case shall POS be liable for defects in goods provided by the contractual partner.
9.2 Materials to be provided by the contractual partner shall be delivered free of charge and as specified, free from any third party rights. POS is not obligated to review such goods to ensure they have the correct characteristics or are free from defects. Third-party property shall be stored uninsured at the risk of the owner. Any desired insurance shall be concluded by the owner.,
10. Retention of ownership
10.1 POS shall reserve ownership of the delivered goods until full payment is received. The retention of ownership also applies until all claims, including future and conditional claims resulting from the business relationship between POS and the contractual partner are fulfilled.
10.2 The contractual partner is not entitled to mortgage or pledge the goods, but is entitled to sell reserved goods to other entities in the normal course of business. They hereby transfer any claims against business partners resulting from such sales to POS. The contractual partner shall reserve the conditional ownership of the goods to which they are entitled against their purchasers, until they have paid the purchase price in full. Upon request by POS, they must inform POS of the debtors of the assigned claims.
10.3 If the goods are processed or finished by the contractual partner, then the retention of ownership shall also extend to the new goods. POS shall be entitled to a percentage of co-ownership, corresponding to the ratio between the value of its own goods and the goods delivered by the contractual partner. In this case, the part of the claims resulting from the sale assigned to POS shall be determined based on this fraction.
10.4 POS can notify debtors of the assignment, and is entitled to assert the retention of ownership without withdrawing from the contract.
10.5. If the value of all securities to which the contractual partners are entitled exceeds the existing claims on a longterm basis by more than 10 %, then POS shall release securities at its own discretion upon request by the contractual partner.
11. Changes to the conditions of business/legal consequences
11.1 If the significant circumstances under which services are to be performed change subsequently, and if this changes the economic significance or content of the services for both parties in an unreasonable manner, or if this has such significant impacts on the operations of POS that it is no longer reasonable to maintain the original agreement, then amendments to the agreement can be requested.
11.2 If an amendment is not possible, or if it subsequently becomes impossible to carry out the contract, the parties can withdraw from it. No contractual partner shall be entitled to claims for damages due to such a withdrawal.
11.3 If the contractual partner files for bankruptcy, or if POS otherwise learns that it is over-indebted or may fall into insolvency, then POS is likewise entitled to withdraw from the agreement.
11.4 If POS is entitled to withdraw from the agreement, it may likewise assert claims for damages instead of the service, if the reason for the withdrawal is the fault of the contractual partner, regardless of who declared the withdrawal.
11.5 The right to claims for damages instead of services can be charged at a flat rate of up to 25 % of the agreed purchase price. POS or the contractual partner are entitled to verify that damages were higher or lower.
12. Intellectual property protection and copyrights, confidentiality
12.1 Information provided to the contractual partner, as well as any models, drawings, drafts and other documents provided, whether original versions or copies, shall remain the property of POS, are subject to copyright, or shall otherwise be treated as trade secrets. They are intended only for internal use, and may not be used for other purposes, duplicated, transmitted to third parties or otherwise disclosed. This obligation shall continue to exist even after the end of this agreement; in this case, templates must be returned immediately. In case of doubt, these templates shall be provided free of charge only to compensate the work involved in creating them, and not in return for permanently granting any ownership rights and/or rights of use.
12.2 In case of doubt, POS shall grant the contractual partner only a right to use the solutions to be created in the course of a contract. An exclusive right of use shall be granted only if this is essential to fulfil an order. The scope of the exclusive right of use, including temporal and geographic limits, shall likewise be determined based on what is necessary to fulfil the underlying order. The starting point for the considerations of the parties is their objective intention, in consideration of obligations resulting from the mutual relationship.
12.3 The contractual partner hereby assures that all materials to be provided by it shall be free from any thirdparty property rights, and in particular that use of the materials shall not violate any patents, licenses or other protected rights of third parties. The contractual partner shall release POS with respect to any third party claims resulting from violations of property rights, unless it can prevent damages and all other costs by obtaining a license. The release obligation shall also apply to all expenses which POS incurs as a result or in conjunction with the claim by a third party. The statute of limitations for these claims is ten years, starting at the conclusion of the respective agreement.
References and advertising
POS is entitled to use the business contact as a reference forits own advertising purposes, and to use individual projects in its advertising in its own interest. This also includes the right to use and publish photos and planning sketches of successfully completed orders as reference projects for new customers, in brochures and on the website. POS reserves the right to apply a manufacturer‘s mark and commission number to delivered items.
All claims against POS shall generally expire against companies in the sense of Sec. 310 para. 1 BGB one year after the start of the regular limitation period of Sec. 199 para. 1 BGB, dependant on knowledge, conditional on any express or commercial assurances. Otherwise, the limitation period provided by law shall apply.
15. Place of performance and place of jurisdiction
15.1 The place of performance and payment shall be the headquarters of POS.
15.2 The exclusive responsible court, including for any disputes regarding checks, shall be the district or state court of Bielefeld for commercial transactions. The same applies if the contractual partner fulfils the requirements of Sec. 38 para. 2 ZPO (Code of Civil Procedure) and does not have a general domestic place of jurisdiction.
15.3 German law shall apply exclusively, with the exception of international private law. The UN Convention on the International Sale of goods (CISG) shall not apply.
Invalidity of clauses
If individual clauses above are, or become, invalid, the invalid condition shall be replaced by a regulation coming as close as possible to the economic purpose of the agreement, safeguarding the interests of both parties to a reasonable extent.