General Terms and Conditions of POS support gmbh for legal transactions with clients (part 1) and suppliers (part 2)
Part 1: Legal relationships between POS support and its clients
1. PreambleClients in the sense of these terms and conditions (Part 1) are both consumers and companies. They are referred to below as clients. The sale, delivery and payment terms brought to the client´s attention below become part of the contract when the order is placed. Different conditions require a special written agreement. If the terms of delivery and payment of the contractual parties contradict each other, the following conditions apply exclusively. This also applies if POS support does not explicitly contradict the client’s conditions after receiving its order. An identical exclusion clause in the client’s terms obliges the client to provide a separate written notice. These general terms and conditions are also effective in commercial business transactions if POS support – within a framework of an ongoing business relationship - does not explicitly refer to them in subsequent contracts.
2. Presentation2.1 Any, even partial, use of work and services (presentations) presented or handed over by POS support for the purpose of concluding the contract, be they protected by copyright or not, requires the prior consent of POS support. This also applies to the use in modified or edited form and for the use of the ideas on which the work and services of POS support are based, as long as they were not considered in the previous advertising material and activities of the client.
2.2 The acceptance of a presentation fee does not constitute approval for the use of POS support’s work and services.
2.3 Copyright and ownership rights to the work submitted by POS support during the presentation remain with POS support. If work submitted in the context of presentation is fully paid as agreed, the copyright and property rights are passed on to the client in accordance with clause 9.
3. Scope of services, processing of orders3.1 The scope of services results from the respective current product/service description when concluding the contract. 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 client.
3.2 Meeting minutes sent by POS support are binding if the client does not object immediately after receipt.
3.3 Templates, files, and other works (in particular negatives, models, original illustrations, etc.) that POS support has created itself or has had created to provide the service owed under the contract, remain the property of POS support. There is no obligation to surrender. POS support is not obliged to store them.
3.4 Loyalty to the client obliges POS support to provide objective advice tailored solely to the client's target. This particularly concerns questions of media use and the selection of third parties and staff by POS support, e.g. in the field of advertising media production and in the field of implementation at the POS. Unless the client 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 the interest of the advertiser.
4. Order placement with third parties4.1 POS support is entitled to carry out the work assigned to it itself or to commission third parties with it.
POS support is entitled to place orders for the production of advertising material, the creation in which POS support was contractually involved in, on behalf of the client, unless the client expressly reserves this right and gives POS support this in writing within a time period of two weeks from the conclusion of the contract. If the client has not given an explicit declaration within this period of two weeks, his silence shall be considered to be a power of attorney.
4.3 POS support places orders with suppliers or other third parties in its own name and for its own account. If quantity or frequency discount are used, the client will receive a subsequent charge which is due 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 POS support are fulfilled as soon as the work and services of POS support are dispatched. The client bears the risk of transport or dispatch (for example damage, loss, delay), regardless of the medium used for shipment. The risk passes to the client when the goods are handed over to the freight forwarder or the person responsible for the shipment. This applies regardless of whether the goods are dispatched from the place of performance 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 client.
5.3 Delivery deadlines and delivery dates are only binding and only start to run if the client 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 POS support. From failure to comply with deadlines the client may not derive any rights if POS support 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 POS support are only binding in terms of color, image, stroke or sound design if their respective realization possibility has been expressly confirmed in writing by POS support to the client.
5.5 If POS support’s services are delayed and POS support 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 client can withdraw from the contract. Compensation for damages caused by delay can only be demanded up to the amount of the order value (own performance excluding advance performance and material). Further claims do not exist.
5.6 The delivery deadline will be extended in the event of unforeseen obstacles beyond the control of POS support, 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. POS support will immediately inform the client in writing about the beginning and end of such obstacles.
5.7 Competition audits are only the responsibility of POS support, 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 contribution, customs duties and others, including any subsequent charges, shall be charged to the client.
6.2 POS support’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 client will be in default.
6.3 The client may only offset against claims of POS support with undisputed or legally established claims. The client 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, POS support has the right to issue partial invoices for the services provided at the time the partial invoice was drawn up; these are to be used to delineate the services provided so far.
6.5 In the case of continuing obligations, POS support 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 in the calculation basis.
6.6 Objections to payment statements of POS support shall be made immediately upon receipt of the invoice, but not later than 2 weeks after the settlement or invoice date, without however 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 or the endangerment of a payment claim of POS support, if it becomes apparent after the conclusion of the contract that a claim to the consideration is endangered by an inadequate performance of the other party in the sense of §132 BGB, POS support shall be entitled to make all claims due immediately. Unless otherwise agreed, the client is obligated, upon request by POS support, to provide POS support 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 POS support.
7. Retention of title7.1 POS support 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, POS support is entitled to take back the ordered products after a reminder and the client is obligated to hand over the products.
8. Cancellation costs, termination of the contract8.1 If the client withdraws unjustified from a given order, POS support 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 client retains the right to provide evidence of a lower damage.
8.2 In the case of permanent 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 POS support can declare extraordinary termination of a contract without prejudice to the statutory provisions if the client is in arrears with the payment of due invoice amounts despite a reminder and setting a deadline of 8 calendar days and the payment arrears are considerable. Payment arrears are significant if at least 50% of the value of the contract is reached or in the case of continuing obligations, if the client is in arrears with two due 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, POS support shall transfer all rights for the use of their work and services to the extent agreed upon. In case of doubt, POS support 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 use of the advertising material. Any use beyond this time, in particular processing and modification, requires the approval of POS support.
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 with POS support, unless otherwise agreed.
9.3 In the case that documents and data are provided by the client, the latter alone is liable if the use violates rights, in particular copyrights of third parties. The client must indemnify POS support against all third-party claims for such infringement.
10. Legal notice10.1 With the consent of the client, POS support may reference on all contract documents to POS support in a suitable manner. The client can only refuse consent if he has a legitimate interest in it.
11. Warranty11.1 Work and services provided by POS support must be inspected by the client immediately upon receipt for obvious defects and must be reported immediately. In any case, however, the client is obliged to check them before further processing and to report defects immediately upon discovery. If the immediate inspection or notification of defects is omitted, there are no claims of the client. The goods are considered approved. This also applies to aliud or under deliveries.
11.2 POS support is liable for the contractually agreed quality within the scope of the statutory provisions.
11.3 The warranty obligation of POS support is limited to the rectification of an error within a reasonable period of time. The client is expressly reserved the right to demand a reduction of the payment or cancellation of the contract in case of failure in rectification. A failure in this sense exists in particular if the repair is impossible, if the repairs are seriously and ultimately refused by POS support, if the repairs are unreasonably delayed, if the repairs have been unsuccessfully or if the accumulation 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 required under the contract. If the client or third parties carry out improper repair work or changes, claims for defects are excluded.
12. Limitation of liability12.1 If the error (clause 11.2) is based on a circumstance for which POS support is responsible, POS support shall be liable for any damage incurred to the clients, in accordance with statutory provisions. The liability for damages, except in the case of intent and gross negligence, POS support is limited to the amount covered by the public liability insurance.
12.2 Further claims for damages of any kind against POS support, 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 essential contractual obligations (cardinal duties), POS support is also liable in the event of slight negligence.
12.3 Claims for damages based on the previous paragraph against POS support, which are not based on intentional breach of contract, shall be limited to the foreseeable, typically occurring damage.
12.4 The above limitations of liability also apply in favor of POS support employees.
12.5 Claims for damages of the clients expire after one year without prejudice to the provision of §202 BGB (federal law book). This does not apply if POS support acted with malice, gross negligence or intent.
12.6 POS support is not responsible for service provision delays and service delays due to force majeure and events that significantly hinder and impose on POS support’s work. This includes in particular strike, lockout, governmental orders, communication network failure, even if they are suffered by suppliers or subcontractors. This also applies in the event that deadlines have been agreed. POS support is entitled 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 client is hereby informed in accordance with § 33 Abs.1 of the German Federal Data Protection Act (Bundesdatenschutzgesetz) and §4 of the German Teleservices Data Protection Act (Teledienst Datenschutzgesetz) that POS support processes it’s company name and address (identity), as well as tasks arising from the contract, in machine-readable form. The clients agree to the processing of its data.
13.2 POS support 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 clients, 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 POS support has ensured, by means of suitable contractual agreements that its employees and/or commissioned third parties also refrain from any use, disclosure or unauthorized recording of such business and trade secrets.
13.4 Relevant obligations also apply to the clients with respect to business and trade secrets of POS support, this applies in particular to the ideas and concepts brought to the knowledge of the clients during the development/cooperation phase.
14. Direct assignment of freelancers through POS support14.1 The client guarantees POS support to not directly commission and/or employ freelancer and employees mediated and/or provided by POS support without the prior written consent of POS support. Should the client act contrary to this agreement, the client will pay a contractual penalty in the amount of EUR 10,000 per employee / contracted employee to POS support.
15. Place of performance and jurisdiction15.1 If the client 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 POS support’s head office.
15.2 German law applies exclusively, even if the client 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 client with the written consent of POS support.
16.5 Within the application of the German Telecommunications Clients Protection Ordinance, any mandatory law of different provisions of these provisions takes precedence. The product liability law remains unaffected, as well as the manufacturer's warranties.
16.6 POS support usually only works on the basis of its terms and conditions. Even with first access to the POS support network or use of the services of POS support, these conditions are considered accepted. Counter-confirmations of the user with reference to its business or purchase conditions are hereby contradicted. Agreements that deviate from the points specified here must be in writing.
16.7 The offers of POS support apply. If the client asserts that deviations from the product (brochure) description have been agreed, he must prove this in case of doubt.
Part 2: Legal relationships between POS support and its suppliers
1. Authoritative conditions1.1 The legal relationships between supplier and POS support 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 "object of performance") or the non-contradictory payment by POS support 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 ADDITIONAL AGREEMENTS AFTER CONCLUSION OF THE CONTRACT REQUIRE THE WRITTEN CONFIRMATION OF POS SUPPORT.
2.3 Cost estimates are binding and not to be remunerated.
2.4 POS SUPPORT MAY REQUIRE REASONABLE CHANGES IN CONSTRUCTION AND DESIGN FOR THE OBJECT OF PERFORMANCE. The effects, in particular with regard to 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, POS support is entitled to withdraw.
2.6 If these terms and conditions will be included in a framework contract, an individual contract based on this framework contract 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 deliveries within Germany are ex works duty paid (i.e. Delivered Duty Paid (DDP) according to Incoterms 2010), including packaging. In the case of a cross-border delivery, the prices apply Delivered At Place (DAP) according to Incoterms 2010. If the supplier undertakes the installation or assembly, subject to a deviating written agreement, he shall bear all necessary ancillary costs.
3.2 Unless otherwise agreed, the POS support pays within 90 days from the due date of the payment and after receipt of a proper invoice and faultless provision of the object of performance. ANY PAYMENT IS SUBJECT TO AUDIT.
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, 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 POS support. Unless otherwise agreed, delivery is ex works duty paid (DDP according to Incoterms 2010).
4.2 Deliveries to third parties are, unless otherwise agreed, exclusively delivered with documents from POS support. Insofar as the supplier or its agent violates this regulation, POS support will calculate and claim the damage incurred.
4.3 Partial deliveries and premature delivery are not permitted unless POS support 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 POS support.
4.5 If agreed deadlines are not met, the statutory provisions apply. If the supplier anticipates difficulties that could prevent him from delivering on time or in the agreed quality, he must inform POS support immediately stating the reasons.
4.6 The supplier shall bear the risk of performance until acceptance of the items by the client 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 POS support must be kept secret from third parties as long as and as far as not verifiably publicly know. The information remains the exclusive property of POS support and is only provided to the supplier's employees who must be consulted for the purpose of delivery to POS support 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 POS support, all information originating from it, 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 POS support reserves all rights to such information (including copyrights and the right to register industrial property rights). As far as POS support 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 POS support, such as drawings, models and suchlike, or according to his confidential information or with his tools or reproduced tools, may not be used by the supplier himself or offered or delivered to third parties. This also applies analogously to print jobs.
5.4 The supplier may only advertise his business relationship with the purchaser with the prior written consent of POS support.
6. Packaging, delivery note, invoice, origin of goods, export regulations6.1 For each delivery, POS support must be given a delivery note and a separate invoice. For deliveries in the name of POS support, to third parties, the delivery must be neutral, with the documents provided by POS support (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.