General Business Terms of
POS-TUNING Udo Voßhenrich GmbH & CO KG
(Status 29. 4. 2011)
1. Scope of the General Business Terms
1.1 These Business Terms shall apply in the business transactions with companies within the meaning of § 310 I BGB [German Civil Code] to all deliveries, services and offers of POS-TUNING Udo Voßhenrich GmbH & CO. KG (hereinafter referred to as: POS).
1.2 If offers, order confirmations or other letters of the contractual partner refer to own Business Terms, these are hereby explicitly objected to. This shall also apply if services are provided towards the contractual partner in the knowledge of contradictory terms and conditions of the contractual partner of terms and conditions which deviate from our terms and conditions.
1.3 These Business Terms shall also apply to all future contracts without an explicit agreement once again.
1.4 The contractual language is German. In case of declarations submitted in several languages the type and the scope of the service will exclusively be determined by the German text in case of doubt.
2. Conclusion of the contract
2.1 The contract shall be concluded with the written acceptance of an offer, countersigning of a contract or a written order confirmation by POS.
2.2 All further agreements and collateral agreements, which are reached between the parties for the execution of the contract, are principally to be recorded in writing. Agreements reached orally are to be proven by the respective party, which refers hereto.
2.3 Insofar as POS uses third parties to provide the offered services these will not become a contractual partner, unless reference is explicitly made hereto in writing.
3. Object of service / passing of risk
3.1 The object and scope of the service shall be stipulated and binding in the contract according to 2.1.
3.2 Without any agreement to the contrary all services of POS shall be carried out ex works.
3.3 The costs for the transport packaging, the transport and possibly agreed transport insurance shall be borne by the contractual partner.
3.4 If the goods are shipped at the request of the contractual partner the risk of accidental loss or the accidental deterioration of the goods shall pass to the contractual partner when they are sent, by no later than when they leave the plant / warehouse. This shall apply irrespective of whether the goods are shipped from the place of performance or who bears the freight costs.
3.5 Transport and all other packaging according to the packaging regulations will not be taken back, excluded are exchangeable pallets. The contractual partner is responsible for the disposal of the packaging.
3.6 If the contractual partner intends to determine or influence the choice of the conveyor or the transport conditions (Routing Order) it is to inform POS hereof upon conclusion of the contract.
3.7 Insignificant defects do not entitle to refuse the goods. Partial deliveries are permitted and to be accepted by the contractual partner as a partial fulfilment.
3.8 Slight deviations from the ordered quantity are deemed as per contract for the scope of the service. The deviation may in no way amount to more than 10 %. The invoice amount will be increased or reduced accordingly.
4. Prices and default of acceptance
4.1 The charging of the delivery will also be carried out at the prices in Euro which are valid upon conclusion of the contract and are deemed plus the respective applicable rate of value added tax on the day of the service. If the service is carried out more than four months after the conclusion of the contract and if this is due to circumstances from the control of the contractual partner then the prices valid on the day of service are to be used as a basis.
4.2 In case of doubt, the price shall exclusively refer to the scope agreed in writing with a smooth flow. Additional costs, which are not a result of circumstances for which POS is responsible, will be charged separately. This shall in particular apply to follow-up, partial or release order deliveries requested by the contractual partner, to preliminary work and attempts at the request of the orderer as well as to proper packaging, delivery and insurance of the goods.
4.3 If the contractual partner does not accept the delivery offered to it, it shall be deemed in default of acceptance. This shall also apply if the goods are offered to it orally by POS and the contractual partner had previously declared the refusal of acceptance. An offer of the goods is dispensable for POS if an act of assistance owed by the contractual partner is not performed or other circumstances, which are to be attributed to its scope, do not occur in time before the agreed delivery date.
4.4 During the default the liability of POS is limited to wilful intent and gross negligence, the risk shall pass to the contractual partner. In this case POS is entitled to request reimbursement of the additional expenses, which are incurred by the default of acceptance. This shall in particular comprise storage costs, which will be charged daily at customary rates. The parties can respectively prove a higher or lower amount.
4.5 After a prior threat POS may sell the goods at the account of the contractual partner by private sale through a publicly authorized trade broker or have these auctioned through a person who is authorized for public auction. Incidentally, the statutory regulations will continue to apply.
5. Terms of payment
5.1 After POS has properly provided the service the payment is due and payable by no later than with the achievement of the agreed term of payment. Cash discount will only be granted with an explicit written agreement.
5.2 If a payment deadline has not been explicitly agreed default shall occur by no later than 30 days after receipt of the invoice by the contractual partner. The invoice shall be deemed as received by the contractual partner 3 days after the sending of the invoice for the calculation of the start of the default. The burden of proof for the dispatch lies with POS.
5.3 The contractual partner is obliged to pay damages from the occurrence of the default. If no higher damages are proven interest is to be paid on the invoice amount in the amount of 8 % points above the respective base lending rate of the ECB. With the occurrence of the default POS is entitled to suspend all ongoing activities. After expiry of a further payment deadline POS is also entitled to cancel the contract and assert damages owing to non-fulfilment.
5.4 The payment principally has to be made in cash or cashless in Euro. The presentation of bills of exchange, cheques or acceptances will only be accepted as satisfaction of payment after these have been credited on the account of POS.
5.5 Retention or offsetting are excluded unless the claim, against which the amount is to be offset, is undisputed or has been declared final and binding.
6. Time of service
6.1 The agreed delivery date shall be deemed as adhered to as soon as provision for take-over has been announced or the goods have been handed over to the conveyor. Delays during the transport of the goods shall not be for the expense of POS. A fixed period commercial purchase according to § 376 HGB [German Commercial Code] will only exist if the customer explicitly points out that it will no longer be interested in the delivery after the expiry of the delivery date or the contractual partner proves that this should have been recognised from the point of view of POS owing to obvious circumstances.
6.2 Agreed delivery or completion dates shall cease to apply if permits, releases, documents or other materials, which are to be provided by the contractual partner, and are necessary for the execution are not received by POS in time. A liability of POS cannot be substantiated by delays in the delivery or completion dates, which stem from the control of the contractual partner or are due to chance, force majeure and industrial dispute measures, nor do these entitle the contractual partner to cancellation. In this case the contractual partner principally has to bear all damages ensuing from the delay itself.
6.3 POS shall be liable for default and failure according to the statutory provisions by including the deviating regulations relating to damages according to these Business Terms. The compensation for default is limited to the foreseeable damages up to an amount of 0.5 % of the order value for each day of the delay, a maximum however to 5 %.
7. Warranty for defects
7.1 If the purchase is a trading business for both parties then the contractual partner has to inspect the goods immediately after receipt, insofar as this is useful according to the proper course of business, and, if a defect is determined, to report this to POS immediately. If the contractual partner fails to submit this report, then the goods shall be deemed as approved, unless it concerns a defect, which was not identifiable during the inspection. Incidentally, §§ 377 et seq. HGB shall apply.
7.2 POS shall improve all those parts or deliver these new at its own choice, for which the contractual partner proves within the warranty period that they are faulty as a result of a circumstance that existed before the risk was passed. If the contractual partner does not give POS the opportunity to convince itself of the defect, if in particular upon request it does not make the goods for which a complaint was made or samples thereof available at the place of service immediately, all claims for warranty due to defects shall cease to apply. If the subsequent satisfaction or subsequent improvement fails twice the buyer is entitled, at its choice, to request reduction of the remuneration or reversal of the contract.
7.3 Insofar as no guarantee periods to the contrary were named by POS claims owing to defects of the goods delivery shall become statute-barred from the passing of the risk in 12 months.
7.4 There are no further claims, claims for damages owing to the warranty for defects shall only exist within the framework of these General Business Terms.
8.1 POS shall be liable for contractual breaches of duty, which lead to an injury to the life, the body or the health as well as for damages, which are subject to the liability according to the Product Liability Act according to the statutory regulations. POS will only be liable for other breaches of duty including consequential damages due to defects within the framework of the statutory regulations and subject to further regulations in case of wilful intent or gross negligence.
8.2 POS shall also be liable for the breach of a contractual duty, which relates to the main service, essentially determines the object of contract or makes the execution of the contract possible at all, with slight negligence already for damages including those consequential damages due to defects, which are a result of a breach of such a duty. In these cases the entitlement to damages is however limited to the damages, which were foreseeable upon conclusion of the contract up to the amount of the order value.
8.3 Insofar as the liability of POS is limited this shall also apply to the personal liability of employees or other workers as well as representatives or vicarious agents.
9. Provided articles
9.1 In no way will POS be liable for defects to articles provided by the contractual partner.
9.2 The materials, which are to be provided by the contractual partner, are to be delivered free house specified free of rights of third parties. POS is not obliged to an examination for lack of defects and condition. Third party property will be stored not insured at the risk of the owner. Possibly requested insurances are to be concluded by the owner.
10. Reservation of title
10.1 POS reserves the right to the ownership of the delivered goods until the payment in full. The reservation of title shall also apply until all, also future and conditional claims from the business relationship, have been fulfilled between POS and the contractual partner.
10.2 The contractual partner is not authorized to assign the goods as collateral or pledge the goods, however is entitled to resell the reserved goods in the proper course of business. It hereby assigns the claims established from this towards its business partners to POS. The contractual partner has to reserve the conditional ownership to which it is entitled to the goods towards its buyers, until these have paid the purchase price in full. At the request of POS it has to inform the debtor of the assigned claims.
10.3 If the goods are processed by the contractual partner the reservation of title shall also cover the whole new object. POS shall acquire co-ownership to the fraction, which corresponds with the ratio of the value of its goods to that of the goods delivered by the contractual partner. In this case the part of the claims produced from the sale assigned to POS will be assessed according to this fraction.
10.4 POS can report the assignment to the debtors and is entitled to assert the reservation of title without cancelling the contract.
10.5. If the value of all collateral existing for the contractual partner exceeds the existing claims by more than 10 % in the long-term, POS shall release collateral at the choice of POS at the request of the contractual partner.
11. Change in the business basis / legal consequences
11.1 If the essential circumstances, under which the service is to be provided, change subsequently and if the financial significance or the contents of the service are hereby changed unreasonably for both parties or if this hereby leads to such substantial implications on the operation of POS that it is not deemed reasonable to adhere to the original contract, then adjustment to the contract can be requested.
11.2 If an adjustment is not possible or if the execution of the order subsequently becomes impossible, the parties can cancel the contract. The contractual partner has no claims for damages owing to such a cancellation.
11.3 If the contractual partner reports insolvency or if POS finds out otherwise of an over-indebtedness or of impending insolvency, then POS is also entitled to cancel the contract.
11.4 If POS is entitled to cancel the contract then POS can also assert damages instead of the service insofar as the reason for the cancellation stems from the scope of the contractual partner irrespective of who declared the cancellation.
11.5 The entitlement to damages instead of the services can be determined as a flat rate up to 25% of the agreed purchase price. Higher or lower damages can respectively be proven by POS or the contractual partner.
12. Industrial property rights and copyrights, non-disclosure obligation
12.1 Details towards the contractual partner as well as models, drawings, blueprints and other templates, which are made available, no matter whether it concerns originals or reproductions, shall remain the property of POS, are subject to copyright or are otherwise to be treated as a business secret. They are only determined for own use and may not be used for other purposes, reproduced or transmitted to third parties or otherwise disclosed. This obligation shall also continue to exist after the processing of this contract and the templates are to be refunded immediately in this case. A provision of these templates against payment will be carried out in case of doubt for the remuneration of the creation work and not as consideration for the permanent granting of ownership and/or rights of use.
12.2 In case of doubt POS shall merely grant the contractual partner a simple right of use to the solutions which are to be created within the framework of an order. An exclusive right of use will merely be granted if this is essential for fulfilling an order. The scope of the exclusive right of use including the time and geographical limitation shall also be determined according to that which is necessary for the fulfilment according to the underlying creation of order. The starting point of the determination of the parties is that which is objectively intended by taking the duties in the reciprocal relationship into consideration.
12.3 The contractual partner assures that all materials, which are to be provided by it, are free of property rights of third parties and in particular that no patents, licences or other property rights of third parties are infringed by the use of the materials. The contractual partner has to indemnify POS owing to claims of third parties from possible infringements of property rights, unless it can prevent damage as well as all other costs by the procurement of a licence. The indemnification obligation shall also refer to all expenses, incurred to POS from or in connection with the assertion of a claim by a third party. The statute-of-limitations for these claims is ten years, beginning with the conclusion of the respective contract.
13. Marks or Indications in own interest
POS is entitled to use the business contact as a reference for its own presentation in advertising and to conduct advertising in its own interest with the execution of individual projects. This includes the right to use and publish photos and planning sketches of successfully executed orders as reference projects towards new customers or in brochures and on the website. POS reserves the right to affix a manufacturer’s notice and the commission number on the delivered articles.
All claims against POS shall become statute-barred towards companies within the meaning of § 310 Par. 1 BGB, subject to explicit or advertising promises, principally in one year from the start of the regular statute-of-limitations dependent on knowledge of § 199 Par. 1 BGB. Incidentally, the statute-of-limitations according to the statutory regulations shall apply.
15. Place of service and place of jurisdiction
15.1 The place of service and payment is the registered seat of POS.
15.2 The exclusive court of jurisdiction – also for cheque disputes – in commercial transactions is the County or Regional Court of Bielefeld. The same shall apply insofar as the contractual partner satisfies the pre-requisites of § 38 Par. 2 ZPO [German Code of Civil Procedure] and has no general place of jurisdiction in the domestic country.
15.3 German law shall apply exclusively with the exception of the international private law. The UN Convention on the International Sale of Goods (CISG) will not apply.
16. Invalidity of clauses
Should individual ones of the afore-mentioned clauses be or become invalid, the invalid terms and conditions shall be replaced by such regulations, which shall as far as possible correspond with the financial purpose of the contract by reasonably safeguarding the mutual interests.