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General Terms and Conditions of Sale MS POS GmbH, Gießerallee 1, 47877 Willich, Germany
§ 1 General, Scope of Application
(1) These General Terms and Conditions of Sale (GTCS) apply to all business relations with our customers ("Purchaser"). The GTCS apply only when the Purchaser is a business person (§ 14 German Civil Code), a legal person under public law or a special fund under public law. The GTCS are available for download at http://www.mspos.net/index.php/avb.
(2) The GTCS apply in particular to contracts of sale and/or the supply of movable objects (Goods), irrespective of whether they have been produced by us or have been bought in from external suppliers (§§ 433, 651 German Civil Code). Unless otherwise agreed, the GTCS or the last version thereof given in text form, valid at the time the Purchaser places an order, apply as a framework agreement, also to similar future contracts without us having to state this in each individual case.
(3) Our GTCS apply exclusively. Differing, conflicting or supplementary general terms and conditions of business of the Purchaser will only become a part of the contract in as far as they have been explicitly agreed to by us. This approval requirement applies in each case, for example also when we carry out a delivery to the Purchaser unconditionally, in acknowledgement of the Purchaser's general terms and conditions of business.
(4) Singular, individual agreements with the Purchaser (including collateral agreements, supplements and amendments) take precedence over these GTCS. For the content of agreements of this kind, subject to proof to the contrary, a written contract or written confirmation is authoritative.
(5) Legally relevant declarations and notifications to be given to us by the Purchaser (e.g. deadlines, notifications of defects, cancellations) must be given in writing in order to be effective.
(6) Notices of legal regulations are only for clarification purposes. Also without such clarification, the regulations apply as long as they are not directly altered or specifically excluded in these GTCS.
§ 2 Conclusion of Contract
(1) Our offers are non-binding and without obligation. This also applies to catalogues, technical documents (e.g. technical drawings, plans, calculations, references to DIN standards) or other product descriptions or data - also in electronic form - we have supplied the Purchaser with to which we retain property rights and copyrights.
(2) The ordering of goods by the Purchaser constitutes a valid contractual offer. Provided that nothing else results from the order, we are entitled to accept this contractual offer within seven days of its receipt.
(3) Acceptance can be declared either in written form (e.g. by order confirmation) or by delivery of the goods to the Purchaser.
§ 3 Delivery Time and Delivery Delays
(1) The delivery time is individually agreed upon or stated by us at the time of receiving the order. Dates stated by us for deliveries and services are approximate unless a specific date or time limit is explicitly confirmed.
(2) If we are unable to honour binding delivery times for reasons beyond our responsibility (unavailability of goods or services), we will inform the Purchaser immediately and at the same time provide a new expected delivery time. If the goods or services are still not available within the new time period, we are entitled to withdraw from the contract either entirely or in part. Any payments already made by the customer we shall refund, without undue delay. A case of non-availability of any goods or services within the scope of this clause is, in particular, due to our supplier‘s failure to supply us in good time, when we have entered into a congruent hedging transaction, neither us nor our supplier is to blame or in the particular case that we are not responsible for procurement.
(3) Any arising delay in delivery is determined according to the statutory regulations. In all cases a reminder from the Purchaser is required.
(4) The rights of the Purchaser according to § 8 of these GTCS and our legal rights, in particular regarding the annulment of contractual obligation (e.g. due to the fulfilment or subsequent fulfilment of obligation becoming impossible or unreasonable) remain unaffected.
§ 4 Delivery, Transfer of Risk, Acceptance and Delayed Acceptance
(1) Delivery is ex Willich, being also the place of fulfilment of delivery and any subsequent fulfilment. If the Purchaser so wishes, the goods will be delivered to another destination at the Purchaser's cost (mail order purchase). Unless otherwise agreed, we are entitled to select the method of delivery (in particular haulier, shipping route, packaging).
(2) The risk of unintentional loss, destruction or deterioration of the goods is transferred to the Purchaser at the time of receipt of the goods at the latest. With mail order purchase the risk of unintentional loss, destruction or deterioration of the goods is transferred to the Purchaser at the time the goods are transferred to the haulier, carrier or whichever person or institution is designated for carrying out delivery. The decisive point for transfer of risk is when acceptance of the goods has been agreed. The statutory regulations of the works contract also apply to the agreed acceptance in accordance with the law. It is deemed equivalent to handover or acceptance if the Purchaser defaults on acceptance of the goods.
(3) If the Purchaser defaults on acceptance of delivery, fails to cooperate or if the delivery of our goods is delayed due to reasons for which the Purchaser is responsible, we are entitled to claim compensation for damages arisen including additional costs incurred (e.g. storage costs). In this case we shall levy an amount of 10.00 EUR per day starting with the delivery date – or if failing – with the notification of the goods’ readiness for dispatch.
§ 5 Prices and Terms of Payment
(1) Insofar as not otherwise agreed in an individual case, our prices, current at the time of delivery shall apply, being ex warehouse plus the applicable rate of value added tax.
(2) In the case of mail order purchase (§ 4 Section 1 of this GTCS) the Purchaser bears the shipping costs ex Willich in addition to any transport insurance the Purchaser requires. If we do not charge the specifically incurred transport costs, a standard transport cost (excluding transport insurance) to the amount of 25.00 EUR will be charged. Any customs duties, charges, taxes and other public duties shall be borne by the purchaser.
(3) The purchase price is due and payable within 14 days from invoicing and delivery or acceptance of the goods. We are however at any time, and also within existing business relationships, entitled to send deliveries of goods in whole or in part only after advance payment has been made or securities provided. This applies in particular if there are indications after entering into a contract that the creditworthiness of the Purchaser is substantially reduced as a result of which the payment of outstanding accounts could be jeopardised.
(4) With the expiry of the above-mentioned payment deadline, the Purchaser will be in default. During the period of default, interest has to be paid on the purchase price at the default interest rate legally valid in each case. We reserve the right to make further claims for default damages. Our entitlement to commercial maturity interest (§ 353 German Commercial Code) remains unaffected regarding business persons.
(5) The Purchaser is only entitled to rights to offset or retention to the extent that its entitlement has been legally determined or is undisputed. In the case of faulty delivery, the reciprocal rights of the Purchaser in particular according to § 7 Section 6 Sentence 2 of these GTCS, remain unaffected.
(6) If there are indications after entering into a contract that our entitlement to the purchase price is at risk through insufficient ability of the Purchaser to pay (e.g. by an application for opening of insolvency proceedings) then according to the statutory regulations we are entitled to refuse service and – if applicable after setting a deadline – to cancel the contract (§ 321 German Civil Code). In the case of contracts concerning the production of unreasonable objects (one-off production) we can declare the cancellation immediately; the statutory regulations concerning the lack of necessity to set a deadline remain unaffected.
§ 6 Retention of Title
(1) Until payment of all our present and future claims from the contract of purchase and an on-going business relationship (secured claims) has been completed we retain title of the sold goods.
(2) Before payment of the secured claims has been completed, the goods subject to retention of title are not to be pledged to third parties, nor are they to be assigned as security. The buyer is to notify us immediately and in written form if and when an application for the opening of insolvency proceedings has been made or if claims on the goods belonging to us have occurred (e.g. seizure).
(3) In the case of conduct in violation of the contract by the Purchaser, in particular non-payment of the purchase price due, we have the right to withdraw from the contract and/or to reclaim our goods under reservation of title according to legal regulations. The reclamation does not constitute a declaration of withdrawal, we are entitled only to claim return of the goods and to reserve the right of withdrawal. If the buyer does not pay the purchase price due, we can only assert these rights after an appropriate deadline for payment has been set and has passed without result or if the setting of such a deadline is dispensable according to law.
(4) Unless revoked in accordance with § 6 Section 4 c) of these GTCS, the Purchaser is authorized to sell on and/or to process the goods under retention of title in due course of business. In this case the following additional conditions apply.
(a) Reservation of ownership shall also apply to goods resulting from the processing, mixing or combining of our goods to their full value whereby we shall be deemed to be the manufacturer. If a third-party's ownership rights apply after processing, mixing or combining with goods from those parties, we shall acquire joint ownership as a proportion of the invoice value of those goods. Furthermore the same applies for the resulting product as for the supplied goods which are subject to retention of title.
(b) The amounts owed by third parties due to the resale of the goods or products are assigned to us as security by the Purchaser as of now, in total or to the extent of our possible co-ownership share according to the previous section. We hereby accept the assignment. The Purchaser's obligations referred to in § 6 Section 2 of these GTCS. also apply, in view of the assigned claims.
(c) In addition to ourselves, the Purchaser remains empowered to collect the claims. We undertake not to collect the claims if the Purchaser has met his payment obligations to us, no indication of shortcomings in his solvency are evident and we are not exercising a right to retention of title according to § 6 Section 3 of these GTCS. If however this is the case, we can demand that the Purchaser informs us of the assigned receivables and the persons owing for these, provides all information needed to collect these receivables, gives us the related documents and informs the debtors (third parties) of the assignment of debts. In addition, we are in this case entitled to revoke the Purchaser's authority to sell on and process the goods under retention of title.
(d) If the value of the securities exceeds our claims by more than 10%, we will release securities of our choice if the Purchaser so demands.
§ 7 Purchaser's Claims for Defects
(1) The statutory regulations shall apply to the rights of the Purchaser in case of defects in quality and title (including wrong and short delivery as well as improper assembly or faulty assembly instructions) insofar as not otherwise determined below. The special provisions on final delivery to a consumer shall remain unaffected in all cases. (supplier recourse §§478,479 German Civil Code).
(2) The primary basis of our liability for defects shall be the agreement made concerning the nature of the goods (quality agreement). All product descriptions serve as an agreement over the nature of the products which are constituents of the individual contracts. It is of no consequence whether the product description originates from the Purchaser, producer or from us.
(3) In the absence of any such quality agreement, the existence or non-existence of a defect shall be assessed according to the statutory provision (Section 434 (1) paragraphs 2 and 3 of the German Civil Code). We shall not be held liable, however, for any public statements made by the manufacturer or other third parties (e.g. advertising messages).
(4) The Purchaser's warranty claims assume him to have fulfilled his statutory duties of examination and notification (Sections 377 and 381 of the German Commercial Code). Any defect discovered during examination or later, shall be notified to us in writing without delay. Notification shall be deemed ’without delay’ if given within ten days; the time shall be deemed observed if the notification is dispatched within the said period. Irrespective of the abovementioned duties of examination and notification, the Purchaser shall notify us in writing of obvious defects (including wrong and short delivery) within ten days from delivery; the time shall be deemed observed if the notification is dispatched within the said period. If the Purchaser fails to report defects as stipulated above, our liability for defects not notified shall be excluded.
(5) In the case that the delivered item is faulty, we may either repair the fault (rectification) or deliver a flawless item (replacement), as we choose. Our right to refuse such subsequent fulfilment under the statutory provisions remains unaffected.
(6) We are entitled to carry out due subsequent fulfilment under the condition that the Purchaser pays the price due. The Purchaser shall, however, be entitled to withhold an appropriate part of the purchase price in proportion to the defect.
(7) The Purchaser shall allow us the necessary time and opportunity for due subsequent fulfilment and shall in particular hand over the goods concerned for inspection. In the case of replacement the Purchaser shall return the defective item to us in accordance with the statutory provisions. Subsequent fulfilment does not include removal of the defective object or fitting a replacement or repaired object in cases where we were not originally responsible for its fitting.
(8) Should a fault be proven to exist, we shall bear the expenses incurred for the purposes of inspection and repair, specifically the costs of transportation, labour and materials (not removal or refitting costs). However, should the Purchaser's demand for repair be proven unjustified, we can demand that the incurred costs (in particular testing and transport costs) be reimbursed by the customer unless the absence of fault was not apparent to the Purchaser.
(9) In urgent cases, e.g. if operating safety is jeopardised or to avert disproportionate damage, the Purchaser shall be entitled to rectify the defect himself and demand reimbursement by us of the necessary expenses incurred. We shall be advised without delay, if possible beforehand, of any rectification of defects by the Purchaser. The right of rectification by the Purchaser shall not apply if we would have been entitled to refuse corresponding subsequent fulfilment in accordance with the statutory provisions.
(10) If subsequent fulfilment is unsuccessful or a deadline set by the Purchaser for subsequent fulfilment has elapsed without result or may be dispensed with according to the statutory provisions, the Purchaser may withdraw from the contract of sale or reduce the purchase price. No right of withdrawal applies in the case of minor defects.
(11) The Purchaser shall be entitled to claim compensation or reimbursement of wasted expenditure only as provided in Section 8, otherwise such claims shall be excluded.
§ 8 Other Liability
(1) Unless otherwise provided in these GTCS including the provisions below, in the case of breach of contractual and non-contractual duties we shall be liable in accordance with the relevant statutory provisions.
(2) We shall be liable to compensate, irrespective of legal ground, in the event of intent and gross negligence. In the case of ordinary negligence we shall be subject to a reduced scope of liability according to statutory provisions (e.g. for due care regarding our own affairs) only:
a) for damages due to injury to life, limb or health
b) for damages due to breach of an essential contractual duty (an obligation that has to be fulfilled to enable the contract to be duly fulfilled and on the satisfaction of which the other party regularly relies and may rely), in this case our liability shall be limited to compensation for the foreseeable damage typically occurring.
(3) The limitations to liability as laid out in § 8 Section 2 of these GTCS also apply to breaches of duty by, or in favour of persons whose actions we are responsible for according to law. The limitations shall not apply if we conceal a defect with intent to deceive or if we have warranted the quality of the goods, nor shall they apply to Purchaser's claims under the Product Liability Act.
(4) The Purchaser may withdraw or cancel on the grounds of a breach of duty that is not a defect only if we are responsible for that breach. The Purchaser's free right of cancellation (in particular in accordance with Sections 651 and 649 of the German Civil Code) is excluded. Otherwise the statutory requirements and legal consequences shall apply.
§ 9 Limitation Period
(1) By way of derogation from § 438 Section 1 no. 3 of the German Civil Code, the general period of limitation for claims based on defects of quality and legal imperfections in title shall be one year from delivery. If acceptance has been agreed the limitation period commences at acceptance.
(2) However, if the object is a building or an entity used as a building as a result of its customary mode of use and has caused its defectiveness (building material), the period of limitation, according to the statutory regulation shall be five years from delivery (§ 438 sub-section 1 no. 2 German Civil Code). Statutory special regulations for period of limitation (in particular § 438 sub-section 1 no. 1, § 444, 479 German Civil Code) remain unaffected.
(3) The aforementioned periods of limitation shall also apply to contractual and extra-contractual claims for damages by the Purchaser based on a defect in the goods unless the application of standard statutory limitation (§§ 195, 199, German Civil Code) would lead to a shorter period in that individual case. Claims to damages by the Purchaser according to § 8 Section 2 Sentence 1 and 2 a) of these GTCS as well as the Product Liability Act are limited according to the statutory period of limitation.
§ 10 Choice of Law and Place of Jurisdiction
(1) These GTCS and all legal relations between us and the Purchaser shall be governed by the law of the Federal Republic of Germany excluding all international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.
(2) If the Purchaser is a merchant as defined by the Commercial Code, a legal entity or special fund under public law, the exclusive place of jurisdiction, including in international matters, for all disputes arising indirectly or directly from the contractual relationship shall be Krefeld, Germany. This applies likewise if the Purchaser is a merchant as defined by § 14 German Civil Code. We shall however, in all cases, also be entitled to sue at the place of fulfilment of delivery obligation according to these GTCS or of an overriding individual agreement or at the Purchaser's place of general jurisdiction. Overriding legal provisions, in particular regarding exclusive authority remain unaffected.
The Purchaser acknowledges that we store data of this contractual relationship according to § 28 Federal Data Protection Act for the purpose of processing the said data and we reserve the right to pass on the data to third parties insofar as it is necessary for the fulfilment of the contract.