General Terms and Conditions of POS support gmbh for legal transactions with the orderer (part 1) and supplier (part 2)
Part 1: Legal transactions between POSsupport and its orderer
1. Recital clauseOrderer in these Terms and Conditions (Part 1) are both, consumers and costumers. They are referred to below as orderer. The terms of sale, delivery and payment, which are communicated to the orderer below, become part of the contract by placing an order. Different conditions require a special written agreement. If the terms of delivery and payment of the contracting parties contradict, the following conditions apply exclusively. This also applies even if POSsupport does not explicitly contradict the orderer’s conditions after receiving the order. An identical disclaimer in the orderer’s terms obliges them to a separately written notice. In commercial business transactions, these Terms and Conditions apply, even if POSsupport - in the context of an ongoing business relationship - does not expressively refer to it in subsequent contracts.
2. Presentation2.1 Any use or partial use of work and services (presentations) presented or handed over by POSsupport for the purpose of concluding the contract, whether protected by copyright or not, requires the prior consent of POSsupport. This also applies to the use of modified or edited work and for the use of work and services that are based on POSsupport’s ideas, as long as they were not considered in the previous promotional materials and activities of the orderer.
2.2 The acceptance of a presentation fee does not constitute approval for the use of POSsupport’s work and services.
2.3 Copyright and ownership rights to the work submitted by POSsupport during the presentation remain with POSsupport. If work submitted in the context of presentation is fully paid in accordance with the agreement, the copyright and property rights shall be passed on to the orderer in accordance with clause 9.
3. Scope of services, processing of orders3.1 The scope of services results from the current product/service description at the time the contract was concluded. Additional and/or subsequent changes to the product/service descriptions must be made in writing.
Verbal secondary agreements or verbal confirmations that go beyond the written contract are only binding if they have been confirmed in writing by the orderer
3.2 Meeting minutes sent by POSsupport are binding if the orderer does not object immediately upon receipt.
3.3 Templates, files, and other works (in particular negatives, models, original illustrations, etc.) that POSsupport has created by itself or 3rd parties to perform the service under the contract, remain the property of POSsupport. A surrender obligation does not exist. POSsupport is not required to store it.
3.4 Loyalty to the orderer obliges POSsupport to provide objective advice tailored solely to the orderer's target. This particularly concerns questions of media use and the selection of third parties and staff by POSsupport, e.g. in the field of advertising media production and in the field of implementation at the POS. Unless the orderer expressly reserves the right to a say, the selection is made in compliance with the principle of a balance between economic efficiency and the best possible success in terms of the orderer.
4. Ordering with third parties4.1 POSsupport is entitled to carry out the assigned work itself or to commission third parties with it.
4.2 By contract POSsupport is entitled to place orders in the name of the orderer for the production of advertising material, for which POSsupport took part in the creation, unless the orderer expressly reserves this right, he has to submit a written notice within a time period of two weeks from the conclusion of the contract. If the orderer has not made an explicit statement within this period of two weeks, his silence shall be considered to be a power of attorney.
4.3 Orders to producer or other third parties shall be placed by POSsupport in their own name and on their own account. If quantity discounts or frequency discount are used, the orderer receives an additional charge which is payable immediately if the requirements are not met.
5. Delivery, delivery times5.1 Place of fulfillment for deliveries is the executing company, where the goods are produced or from which they are delivered.
The delivery obligations of POSsupport are fulfilled as soon as the work and services of POSsupport are dispatched. The risk of transport or dispatch (for example damage, loss, delay), regardless of which medium is transferred or sent, shall be borne by the orderer. The risk passes to the orderer upon handover to the forwarding agent or the person authorized to submit the order. This applies regardless of where the goods are dispatched from or who bears the freight costs.
5.2 Deliveries are made ex works. They do not include packaging, freight, postage, insurance and other shipping costs. These costs will be charged to the orderer.
5.3 Delivery deadlines and delivery dates are only binding if the orderer has fulfilled all cooperation obligations (e.g. procurement of documents, approvals, providing of information, preparation of catalogues of services / specification sheets) and the dates have been confirmed in writing by POSsupport. From failure to comply with deadlines the orderer may not derive any rights if POSsupport is not responsible for failure, especially in the presence of force majeure, transport delays, involuntary disruption of the production process or similar. Partial deliveries are permitted.
5.4 Templates and designs provided by POSsupport shall not be binding on color, picture, stroke or sound design until their respective realization option has been expressly confirmed in writing by POSsupport to the orderer.
5.5 If POSsupport’s services are delayed and POSsupport is not guilty of intent or gross negligence, a reasonable grace period must be granted of at least fourteen days. After unsuccessful expiry of the grace period, the orderer can withdraw from the contract. Compensation for damages caused by delay can only be demanded up to the amount of the order value (own services excluding advance services and material). Further claims do not exist.
5.6 The delivery period shall be extended in the event of unforeseen obstacles beyond the control of POSsupport, insofar as such obstacles can be shown to have a significant impact on the delivery of the delivery items. The delivery period is extended according to the duration of such measures and obstacles. POSsupport will immediately inform the orderer in writing about the beginning and end of such obstacles.
5.7 Competition audits are only the responsibility of POSsupport, if expressly agreed upon.
6. Terms of payment, default of payment6.1 Agreed prices are net prices, to which the applicable tax value is added. Artists` social security, customs duties and others, including any subsequent charges, shall be charged to the orderer.
6.2 POSsupport’s invoices are due for payment 14 days after the invoice date without any deduction. The invoice is considered as received one day after dispatch. If the payment due date has been passed as well as an additional deadline of 8 calendar days, the orderer will be in default.
6.3 The orderer may only set off counter claims to POSsupport with undisputed or legally established claims. The orderer is only entitled to assert a right of retention for counterclaims in case that they arise from this specific contract.
6.4 For long-term projects, POSsupport has the right to bill for the services provided at the time the partial bill was drawn up; this delimits already provided services.
6.5 In the case of continuing obligations, POSsupport reserves the right to change prices, which are to be announced within a reasonable period. There has to be a period of six months between the conclusion of the contract and the change of the calculation basis.
6.6 Objections to payment statements of POSsupport shall be made immediately upon receipt of the invoice, but not later than 2 weeks after the invoice or payment date, without affecting the due date. The omission of timely objections is considered as approval.
6.7 In the event of a default in payment with a significant part of the invoice amount unpaid, or a POSsupport claim for payment, if after the conclusion of the contract it becomes apparent that a claim for the consideration due to lack of performance of the other party, in the sense of §132 BGB, POSsupport shall be entitled to demand all claims immediately. Unless otherwise agreed, the orderer is obligated, upon request by POSsupport, to provide POSsupport with a security deposit in the amount of the placed order. The security must be provided either in the form of prepayment or alternatively in the form of a bank or credit insurance guarantee.
6.8 The assertion of further claims due to default of payment is reserved for POSsupport.
7. Retention of title7.1 POSsupport reserves ownership of the delivery items until full payment is received. The retention of title extends to the products resulting from processing.
7.2 In the event of a breach of contract by the purchaser, in particular in default in payment, POSsupport is entitled to take back the ordered products after a demand note and the orderer is obligated to hand over the products.
8. Cancellation costs, termination of the contract8.1 If the orderer withdraws unjustified from a given order, POSsupport can demand 10% of the selling price for the costs incurred by processing of the order and for lost profit, without prejudice to the possibility of asserting a higher actual damage. The orderer retains the right to provide evidence of lesser damage.
8.2 In the case of continuing obligations without a minimum term, the contractual relationship can be terminated by both parties within a deadline of 90 calendar days without justification at the end of the year.
8.3 Termination notice must be received by the addressee at least 90 calendar days prior to the effective date.
8.4 The right of the contracting parties to terminate the respective contractual relationship for good cause remains unaffected.
8.5 POSsupport can declare extraordinary termination of a contract without prejudice to the statutory provisions if the orderer is in arrears of 8 calendar days with a significant amount of due invoice payments, despite reminders and deadlines. Payment arrears are significant if at least 50% of the value of the contract is reached or in the case of continuing outstanding debt where the payment of two monthly service charges or a significant portion of two monthly invoices is outstanding.
8.6 The remaining contractual relationships between the contractual partners remain unaffected by the termination of one contractual relationship.
9. Usage rights9.1 With the settlement of all invoices relating to the order, POSsupport shall transfer all rights of use to the orderer required to use their work and services to the extent agreed upon. In case of doubt, POSsupport will fulfill its obligation by granting non-exclusive rights of use in the territory of the Federal Republic of Germany and all other contracted states of the European Union and Switzerland, for a limited period of time, during the period of use, of the advertising medium. Any use beyond this time, in particular processing and modification, requires the approval of POSsupport.
9.2 Contractually granted rights for use of work which have not been fully paid upon termination of the contract or which have not yet been published in the case of settlement on a commission basis, remain subject to any other agreements made with POSsupport.
9.3 In the case that documents and data are provided by the orderer, the latter alone is liable if the use violates rights, in particular copyrights of third parties. The orderer must indemnify POSsupport against all third-party claims for such infringement.
10. Legal notice10.1 On the basis of agreement by the orderer, POSsupport may reference on all contract documents to POSsupport in a suitable manner. The orderer can only refuse consent if he has a legitimate interest in it.
11. Warranty11.1 Work and services provided by POSsupport must be inspected by the orderer immediately upon receipt for obvious defects and must be reported immediately. In any case, before further processing the orderer is obliged to check and to report defects immediately upon discovery. If the immediate inspection or notification of defects is omitted, there are no claims of the orderer. The goods are considered approved. This also applies to wrong or incomplete deliveries.
11.2 POSsupport is liable for the contractually agreed quality within the scope of the statutory provisions.
11.3 The warranty obligation of POSsupport is limited to the rectification of an error within a reasonable period of time. The orderer expressly reserves the right to demand a reduction of the payment or cancellation of the contract in case of failure of the repair. A failure in this sense exists in particular if the repair is impossible, if the repairs are seriously and ultimately denied by POSsupport, if the repairs are unreasonably delayed, if the repairs have been unsuccessfully or if the amount of defects remains unreasonable.
11.4 The warranty period begins with the (partial) acceptance of the products, in other cases, as regulated by law. The warranty period is scheduled for one year from the transfer of risk, without prejudice to the statutory commercial complaint, unless otherwise agreed in writing. For used elements the warranty right is excluded.
11.5 Claims for defects do not exist with insignificant deviation from the agreed quality, neither with insignificant impairment of the usability, with natural wear or tear, with damages that arise after the transfer of risk as a result of faulty or negligent treatment, excessive use and unsuitable equipment nor due to special external influences that are not foreseeable by the contract. If the orderer or third parties perform improper repair work or changes, claims for defects are eliminated.
12. Limitation of Liability12.1 If the error (clause 11.2) is based on a circumstance for which POSsupport is responsible, POSsupport shall be liable for any damage incurred to the orderer, in accordance with statutory provisions. The liability for damages, except in the case of intent and gross negligence, POSsupport is limited to the amount covered by the public liability insurance.
12.2 Further claims for damages of any kind against POSsupport, for example due to conclusion of contract, positive breach of contract or tort are limited to cases of intent or gross negligence. In case of a breach of contractual obligations (cardinal duties), POSsupport is also liable of slight negligence.
12.3 Claims for damages based on the previous paragraph against POSsupport, which are not based on intentional breach of contract, shall be limited to foreseeable, typically occurring damage.
12.4 The above limitations of liability also apply to the employees of POSsupport.
12.5 Claims for damages of the orderer expire after one year without prejudice to the provision of §202 BGB (federal law book). This does not apply if POSsupport acted with malice, gross negligence or intent.
12.6 Performance and performance delays due to force majeure and events that hinder and impose on POSsupport’s work, including, but not limited to, strike, lockout, governmental orders, communication network failure, even if they are suffered by suppliers or subcontractors of POSsupport, POSsupport is not liable for delays. These entitle POSsupport to postpone the service by the duration of the delay, plus an appropriate start-up time if necessary. Otherwise it becomes a case of impossibility.
13. Confidentiality, discretion, data protection13.1 The orderer is hereby informed in accordance with § 33 Abs.1 of the German Federal Data Protection Act (Bundesdatenschutzgesetzes) and §4 of the German Teleservices Data Protection Act (Teledienst Datenschutzgesetzes) that POSsupport processes it’s company name and address (identity), as well as tasks arising from the contract, in machine-readable form. The orderer agrees to the processing of its data.
13.2 POSsupport undertakes to keep all information and documents accessible in connection with the conclusion of the contract, which are clearly stated or can be identified as business or trade secrets of the orderer, confidential - to the extent that this is not a prerequisite to achieve the purpose of the contract - neither to record nor to pass on or exploit.
13.3 POSsupport has ensured, by means of suitable contractual agreements that its employees also refrain from any use, disclosure or unauthorized recording of such business and trade secrets.
13.4 Relevant obligations also apply to the orderer with respect to business and trade secrets of POSsupport, this applies in particular to the ideas and concepts brought to the knowledge of the orderer during the development/cooperation phase.
14. Direct assignment to freelancers through POSsupport14.1 The orderer guarantees POSsupport to not directly commission and/or employ freelancer and employees mediated and/or provided by POSsupport without the prior written consent of POSsupport. Should the orderer act contrary to this agreement, the orderer will pay a contractual penalty in the amount of EUR 10,000 per employed/commissioned employee to POSsupport.
15. Place of performance and jurisdiction15.1 If the orderer is a registered trader or a legal entity under public law, place of performance and place of jurisdiction for all claims arising from the contractual relationship and legal disputes shall be at the location of POSsupport’s head office.
15.2 German law applies exclusively, even if the orderer has its registered office abroad. The provisions of the UN Sales Convention do not apply.
16. Other16.1 Changes and additions to orders must be made in writing. This also applies to the amendment of this clause. Oral side agreements do not apply.
16.2 If a determination is or becomes invalid, the validity of the other determinations shall remain unaffected. In addition, the parties must commit to replacing the void determinations by an effective determination that comes closest to the economic purpose of the invalid determination.
16.3 E-mails are regarded as delivered if they have been accepted by the addressee’s mail server. Encryption or signature of messages and data only occurs if explicitly requested in writing.
16.4 The transfer of rights and obligations under this contract is only permitted to the orderer with the written consent of POSsupport.
16.5 Within the scope of the German Telecommunications Orderer Protection Ordinance, any applicable mandatory provisions of these provisions shall prevail. The product liability law remains unaffected, as well as the manufacturer's warranties.
16.6 POSsupport usually only works on the basis of its terms and conditions. Even with first access to the POSsupport network or use of the services of POSsupport, these conditions are considered accepted. Counter-confirmations of the user with reference to his business or purchase conditions are hereby contradicted. Agreements that deviate from the points specified here must be in writing.
16.7 The offers of POSsupport apply. If the orderer asserts that deviations from the product (brochure) description have been agreed, he must prove this in case of doubt.
Part 2: Legal relations between POSsupport and its suppliers1. Authoritative conditions1.1 The legal relationships between supplier and POSsupport are exclusively based on the following conditions of purchase.
1.2 Conflicting conditions are hereby expressly contradicted.
1.3 The unconditional acceptance of goods or services (hereinafter referred to as the "subject of performance") or the non-contradictory payment by POSsupport does not imply the acceptance of the general terms and conditions of the supplier.
1.4 These Terms of Purchase also apply to all future characteristic transactions of this kind with the supplier.
2. Order2.1 Delivery contracts (orders and acceptance) and delivery schedules must be in writing, orders and delivery schedules can also be made in writing via fax, e-mail, EDI, web EDI.
2.2 ORAL AGREEMENTS AND OTHER UNDERSTANDINGS AFTER CONCLUSION OF A CONTRACT REQUIRE THE WRITTEN CONFIRMATION OF POSSUPPORT.
2.3 Cost proposals are binding and cannot be remunerated.
2.4 POSSUPPORT MAY REQUIRE CHANGES IN CONSTRUCTION AND IMPLEMENTATION FOR THE INQUIRED ITEM. The effects, in particular with regard to the additional or reduced costs as well as delivery dates, are to be regulated adequately and mutually.
2.5 If the supplier does not accept an individual order within two weeks of the order date, POSsupport is entitled to revoke it.
2.6 If these terms and conditions are included in a framework agreement, an individual contract based on this framework agreement will also be concluded if the supplier does not object to a delivery schedule immediately and in good cause; the date specified in the delivery schedule must be adhered.
3. Prices, payment3.1 Without any special agreement, the prices for domestic German deliveries are carriage-free and "duty paid" (ie Delivered Duty Paid (DDP) according to Incoterms 2010), including packaging. In the case of a cross-border delivery, the prices shall be Delivered At Place (DAP) according to Incoterms 2010. If the supplier undertakes the installation or assembly, subject to the deviating written agreement, he shall bear all necessary ancillary costs.
3.2 Unless otherwise agreed, the POSsupport pays within 90 days from the due date, after receipt of a proper invoice and faultless provision of the ordered items. ALL PAYMENT IS WITHIN THE RESERVATION OF THE INVOICE EXAMINATION.
3.3 If premature deliveries or services are accepted (hereinafter referred to as "delivery"), the claim for payment shall become due at the earliest after the agreed payment date / due date, in case of doubt at the earliest after the agreed delivery date. The assertion of reimbursement of expenses, in particular storage costs, remains reserved.
4. Delivery and deadlines, delayed delivery, damage compensation4.1 Agreed dates and deadlines are binding. Decisive for the adherence to the delivery date or the delivery period is the receipt of goods at the delivery address (place of fulfillment) specified or agreed to by POSsupport. Unless otherwise agreed, delivery is carriage-free and "duty paid" (DDP according to Incoterms 2010).
4.2 Deliveries to third parties are, unless otherwise agreed, exclusively delivered with documents from POSsupport. Insofar as the supplier or its agent violates this regulation, POSsupport will determine and claim the damage incurred.
4.3 Partial deliveries and premature delivery are not permitted unless POSsupport has expressly agreed to them in writing.
4.4 The unconditional acceptance of the delayed delivery does not constitute a waiver of the delay claims to POSsupport.
4.5 If agreed deadlines are not met, the statutory provisions apply. If the supplier foresees difficulties that could prevent him from delivering on time or in the agreed quality, he must inform POSsupport immediately stating the reasons.
4.6 The supplier shall bear the risk of performance until acceptance of the items by the orderer or his agent to the place to which the goods are to be delivered, according to the order.
4.7 THE SUPPLIER GUARANTEES A COMPLETE EXAMINATION OF ALL OUTGOING GOODS TO ENSURE ZERO-ERROR QUALITY DELIVERY. An incoming goods inspection takes place only with regard to externally visible damage and / or deviations in identity and quantity. Such defects will be reported to the purchaser without delay. Further deficiencies are claimed as soon as they are determined according to the circumstances of a proper course of business. IN THIS WAY, THE SUPPLIER WAIVES THE IMPLIED LATE DISCLAIMER.
5. Secrecy5.1 All information made available by POSsupport is to be kept secret from third parties as far as and as far as not verifiably publicly know. The information remains the exclusive property of POSsupport and is only provided to the supplier's employees who must necessarily be consulted for the purpose of delivery to the purchaser and who are also obliged to maintain secrecy. Without the prior written consent of the purchaser such information - except for deliveries to the purchaser himself - may not be reproduced or used commercially. At the request of the purchaser, all information originating from the purchaser, regardless of its form or embodiment, must be returned to or destroyed immediately and completely, together with the handing over of a corresponding written declaration.
5.2 POSsupport reserves all rights to such information (including copyrights and the right to register industrial property rights). As far as POSsupport has received such information from third parties, this reservation also applies in favor of these third parties.
5.3 Products manufactured according to documents designed by POSsupport, such as drawings, models and suchlike, or according to his confidential information or with his tools or copied tools, may not be used by the supplier himself or offered or delivered to third parties. This applies in turn to print jobs.
5.4 The supplier may only advertise his business relationship with the purchaser with the prior written consent of POSsupport.
6. Packaging, delivery note, invoice, origin of goods, export regulations6.1 For each delivery, POSsupport must be given a delivery note and a separate invoice. For deliveries in the name of POSsupport, to third parties, the delivery must be neutral, with the documents provided by POSsupport (see 4.2). Each delivery must be accompanied by a neutral packing slip with a detailed table of contents.
6.2 The supplier must comply with all national, European and international customs regulations regarding goods and services.