General terms and conditions

Gene­ral Busi­ness Terms of POS TUNING GmbH
(Status: 29/04/2011)

1. 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.

13. 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.

14. Limi­ta­tion period

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.

16. 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.