General Terms and Conditions of POSPOLE GmbH
- Validity of the terms and conditions
1.1. Our terms and conditions apply solely; we do not recognize any terms and conditions of our customer that conflict with or differ from these terms and conditions unless we have expressly agreed to their application.
1.2. Our terms and conditions also apply if we carry out the service/delivery without reservation in knowledge of terms and conditions of the customer that are contrary or deviating from our terms and conditions.
1.3. These terms and conditions apply only to entrepreneurs under § 14 BGB.
- Conclusion of contract
2.1. Our offers are non-binding and do not constitute a binding offer.
2.2. The customer’s order is a binding offer to conclude a contract. We are entitled to accept this offer within two weeks. Acceptance shall be sent by mail, fax or e-mail.
2.3. Should we accept the offer to changed conditions, e.g. a different price, this acceptance is to be regarded an offer to conclude a modified contract. In this case, the customer has the opportunity to accept the offer within 14 days.
2.4. In the case of orders with delivery to third parties, the orderer is our customer, unless otherwise expressly agreed.
3.1. Unless otherwise agreed, delivery is ex works.
3.2. If the goods are shipped upon request of the customer, the risk of accidental destruction and accidental deterioration passes to the customer as soon as we handed the goods over to the forwarder, carrier or other person or body specified to carry out the shipment. Deliveries shall be effected to the address supplied by the customer.
3.3. The delivery period results from the respective contractual agreement between the parties. Stated delivery times or delivery dates reflect the current state of planning and require the timely fulfillment of the customer’s obligation to cooperate.
3.4. Delivery will be made as far as possible in one shipment. However, we are entitled to partial deliveries and partial services insofar as these are reasonable for the customer.
3.5. Named delivery dates are not fixed dates, unless we have a delivery date expressly confirmed as a fixed date.3.6. Specified delivery dates or delivery times are subject to the correct, timely and sufficient self-supply according to para. 4.
3.7. Delays in delivery which occur at our or one of our suppliers / subcontractors due to force majeure or due to circumstances that are equivalent to force majeure (such as currency, trade and other governmental measures, strikes, operational disruptions such as fire, defects in machinery, breakage, shortages of raw materials or energy) and are not our fault, entitle us to postpone the delivery for the duration of the impediment. If the execution of the contract becomes unreasonable for the customer due to the delay, he shall be entitled to rescind. For non-temporary impediments to performance, we are also entitled to rescind from the contract.
3.8. The occurrence of our default in delivery is determined by the statutory provisions. However, in any case, a reminder by the customer is required. If we fall into default of delivery, the customer can demand liquidated damages for damage caused by such default. The liquidated damages for each completed calendar week of default amounts to 2% of the net price (delivery value), but in total not more than 15% of the delivery value of the goods in default for delivery. We reserve the right to prove that the customer has incurred no damage or only a significantly lower damage than the above liquidated damages.
3.9. The customer can exercise rights under § 323 BGB only if the default of delivery is our responsibility. A change of the burden of proof is not connected with this provision.
3.10. The rights of the customer according to para. 10 and our statutory rights, in particular in the case of an exclusion of the obligation to perform (for example, due to impossibility or unreasonableness of the service and / or subsequent performance) remain unaffected.
3.11. We take back packaging within the obligations incumbent on us due to existing packaging regulations. The customer can return packaging to us at our place of business during normal business hours after prior notification in advance, unless he has been referred to another acceptance / collection point. The packaging may also be returned to us upon delivery, unless the customer has been referred to another acceptance / collection point.
Packaging is only taken back immediately after delivery of the goods, in the case of subsequent deliveries only after timely prior notification and provision. The cost of transporting the used packaging is borne by the customer. If a referred to acceptance / collection point is further away than our place of business, the customer will only bear the transport costs that would be incurred for the return to our place of business. The returned packaging must be clean, free of foreign matter and sorted according to different types of packaging.
Otherwise, we are entitled to demand any additional costs incurred during disposal from the customer.
4.1. Each offer is subject to the correct, timely and sufficient self-supply.
4.2. If the goods required for the execution of the contract are not available, because we are unforeseeable and without our fault not supplied by our suppliers at the time of the conclusion of the contract, we have the right to release ourselves from the contract. In this case, we will inform the customer immediately that a delivery is not possible.
4.3. A liability for damages for non-performance is excluded, unless we have acted intentionally or grossly negligent regarding the lack of availability. Liability for pre-contractual negligence remains unaffected.
- Prices, Shipping costs
5.1. All prices quoted are in Euro and are exclusive of VAT.
5.2. Unless otherwise agreed, our prices are EXW (Incoterms 2010). Costs for packaging, freight, postage, insurance and other shipping costs are additionally to be borne by the customer. In the case of deliveries to countries outside the EU, customs fees may also be incurred, which the customer also has to bear.
5.3. The amount of the costs according to para. 5.2 result from the respective contractual agreement. If nothing has been agreed, the customer must reimburse the costs actually incurred against appropriate receipts.
5.4. We do not grant a cash discount. If the customer is granted rebates or other sales discounts, these are not granted for costs of packaging, freight, postage, insurance and other shipping or customs fees.
- Payment, Due date and Default
6.1. Except in case of advance payment, the payment is due within 30 days from the date of invoice and delivery of the goods. In the case of agreed advance payments, these are due upon conclusion of the contract and receipt of the invoice.
6.2. Upon expiry of the above payment periods, the customer is in default. During the default, the customer has to pay interest on the amount in arrears with the applicable statutory default interest rate. We reserve the right to assert further damages caused by default. For merchants, our claim to the commercial maturity interest (§ 353 HGB) remains unaffected.
6.3. We do not accept bills of exchange for payment.
6.4. We are entitled to send invoices exclusively by electronic means, provided that these meet the VAT requirements.
6.5. If the customer does not accept the properly delivered goods, he is in default of acceptance and owes the additional expenses incurred thereby. From the point of default on acceptance we are no longer responsible for negligence. Insofar as the customer unjustifiably, seriously and finally refuses acceptance, we can rescind from the contract and, in particular, claim the lost business profit as compensation for damages form the customer.
6.6. If after conclusion of the contract it becomes apparent that the payment is jeopardized by the customer’s inability to pay (for example by filing for insolvency proceedings), we can demand advance payment from the customer and withhold goods that have not yet been delivered. We are also entitled to these rights if the customer is in default of payment for deliveries based on the same legal relationship. § 321 (2) BGB remains unaffected.
- Assignation and right of retention
7.1. The assignation of a title of the customer against us is legally valid only with our consent or approval; § 354a HGB remains unaffected.
7.2. The customer is authorized to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.
- Right of retention and Retention of title
8.1. We reserve the ownership of the delivered goods (goods subject to retention of title) until complete payment of all titles existing on the invoice date from us against the customer. In the event of breach of contract by the customer, in particular in the event of default of payment, we shall be entitled to rescind from the contract in accordance with the statutory provisions and / or to demand the goods on the basis of the retention of title. The request for return does not at the same time include the declaration of the rescission; we are rather entitled to demand only the return of the goods and to reserve the right of rescission. If the customer does not pay the due price, we may only assert these rights if we have unsuccessfully set a reasonable deadline for payment to the customer or if such a deadline is dispensable according to the statutory provisions.
8.2. The customer is obliged to treat the goods subject to retention of title with care; in particular, he is obliged to insure these at his own expense against damage caused by fire, water and theft to the new value. If maintenance and inspection work is required, the customer must carry it out on time at its own expense.
8.3. The goods subject to retention of title may not be pledged to third parties or transferred as collateral before full payment of the secured claims. The customer must notify us immediately in writing if an application for the opening of insolvency proceedings is filed or if third party access (e.g. seizure) to the reserved goods is made.
8.4. The customer is only entitled to resell the goods subject to retention of title in the ordinary course of business. A resale is not permitted if there is a ban on assignation between the customer and his customer and § 354a HGB does not apply.
The customer hereby assigns his claims from the resale to us.
We accept the assignation.
At the latest in case of default, the customer is obliged to name us the debtor of the assigned claim. If the value of the collaterals existing for us exceeds its claim by more than 10% in total, then we are obliged to release collaterals of our choice at the request of the customer or a third party affected by our overcollateralization.
8.5. When processing the goods subject to retention of title, we are to be regarded as the manufacturer in accordance with § 950 BGB and retain ownership of the goods at any time during the processing. If third parties are involved in the processing, we are limited to a co-ownership share amounting to the invoice value of the goods subject to retention of title. The property thus acquired is considered as property on the goods subject to retention of title.
- Notification of defects, warranty
9.1. Warranty claims of the customer presuppose that he has duly fulfilled his due inspection and complaint obligations.
9.2. The customer is obliged to examine the goods delivered by us for obvious defects. Notification of defects due to obvious defects must be declared to us in writing within two weeks of handing over the goods to the customer. Hidden defects, which can not be determined even after the immediate careful examination, must be reported to us immediately after discovery, at the latest within two weeks of discovery in writing. To meet the deadline, the timely dispatch of the complaint is sufficient.
9.3. In the case of a defect, the warranty is initially only limited to supplementary performance by us. We are entitled at our discretion to either make a repair and / or a replacement. If we do not meet this obligation within a reasonable period of time or if the repair fails despite repeated attempts, the customer is entitled to either reduce or rescind from the contract. In case of a minor defect, however, there is no right of rescission.
9.4. We are entitled to make the supplementary performance dependent on the fact that the customer pays the due price. However, the customer is entitled to retain part of the price that is reasonable in relation to the defect.
9.5. The expenses required for the purpose of testing and subsequent performance, in particular transport, travel, labor and material costs shall be borne or reimbursed in accordance with the statutory provisions if a defect actually exists. Otherwise, we may demand compensation from the customer for the costs arising from the unjustified defect removal request (in particular inspection and transport costs), unless the lack of defectiveness was not recognizable to the customer.
9.6. Defects of a part of the delivered goods do not entitle to the complaint of the entire delivery, unless the partial delivery is of no interest to the customer.
10.1. We are fully liable for intent. Liability for non-intentional acts is limited to the typically foreseeable damage at the time the contract was concluded. In the case of slight negligence, we are only liable for the breach of essential contractual obligations and limited to the typically foreseeable damage at the conclusion of the contract. This limitation does not apply to injury to life, limb and health.
10.2. Any liabilities due to pre contractual breach of duty (culpa in contrahendo) or according to the Product Liability Law shall remain unaffected.
10.3. Irrespective of any fault of ours we shall only accept liability in the event of maliciously concealing any defects or if we have undertaken to provide a guarantee or assurance.
Guarantees given by third parties do not constitute an assumption of a guarantee by us.
10.4. We are also responsible for an impossibility to deliver occurring accidentally during the default period unless this damage would have also occurred in the event of timely delivery.
10.5. Insofar as the liability for damages against us is excluded or limited, this also applies with regard to the personal liability for damages of the officers, employees, assistants, representatives and vicarious agents of us.
10.6. Except in the aforementioned cases liability by us is excluded.
- Data Protection
11.1. All personal data provided by the customer will be processed by us exclusively in accordance with the provisions of German data protection laws.
11.2. If personal data of third parties are transmitted to us by the customer, the customer is responsible for the admissibility of the processing and for the protection of data subjects.
- Export Control
12.1. Deliveries under this contract are subject to the condition that the fulfillment of does not violate any national or international export control regulations, such as embargoes or other sanctions.
The Customer agrees to provide all information and documentation needed for export or shipment. Delays due to export inspections or approval procedures extend these delivery dates and delivery times accordingly. If required permits are not granted, or if the delivery and service are not approved, we are entitled to rescind from the contract.
12.2. In case of rescission according to para. 12.1 the assertion of a claim for damages or the assertion of other rights by the customer is excluded.
12.3. The customer must comply with the applicable regulations of the national and international export control law when forwarding the goods delivered by us to third parties in Germany and abroad.
- Applicable law, jurisdiction, language, final provisions
13.1. The law of the Federal Republic of Germany applies excluding the United Nations Convention on the International Sale of Goods (“CISG”).
13.2. If the customer is a merchant, a legal entity under public law or a special fund under public law, the place of performance and the exclusive place of jurisdiction for all disputes shall be our place of business in Kornwestheim.
13.3. These terms and conditions are provided in German and English. In case of dispute over the content of the contract, the German version has priority.
13.4. Should individual provisions of these terms and conditions be invalid, this does not affect the validity of the remaining provisions.