- The following General Terms and Conditions of Business in the version valid at the time of placing an order shall apply to all business relations between mPOS Zahlungssysteme GmbH and their customers. Any deviating terms and conditions the customer may have, which mPOS Zahlungssysteme does not expressly accept, are not binding for mPOS Zahlungssysteme GmbH, even if mPOS Zahlungssysteme GmbH does not expressly object to them. These General Terms and Conditions of Business shall also apply if mPOS Zahlungssysteme GmbH unconditionally executes the customer’s orders in full awareness of the customer’s contradicting or deviating terms and conditions.
- These General Terms and Conditions of Business shall also apply to all future business relations with the customer of mPOS Zahlungssysteme GmbH or their legal successor, even if they have not been expressly agreed upon.
- mPOS Zahlungssysteme GmbH shall reserve the right to adapt these General Terms and Conditions of Business after the fact under the condition of an omission in the contract or if the balance between performance and counter-performance is disturbed, insofar as this is reasonable for the customer.
- mPOS Zahlungssysteme GmbH shall inform the customer of changes to the General Terms and Conditions of Business where necessary and, at the same time, point out that they shall apply if they do not object within one month.
- The General Terms and Conditions of Business rank behind all other express agreements with the customers of mPOS Zahlungssysteme GmbH, wherefore they shall not apply in the event that they contradict them.
Products and Services
- Offers made by mPOS Zahlungssysteme GmbH are without engagement and non-committing and are understood subject to our supplier making delivery to us. A contract is not formed until there is a written confirmation of order by mPOS Zahlungssysteme GmbH, at the latest, however, upon acceptance of the delivery by the customer.
- The right shall be reserved to impose upon the customer reasonable technical and design-related deviations from details in prospectuses, catalogues and other documentation as well as model, construction and material changes in the course of technological progress and further research, without the ability to derive rights therefrom against mPOS Zahlungssysteme GmbH.
- mPOS Zahlungssysteme GmbH shall expressly reserve the right to reasonable partial deliveries and the invoicing thereof.
- Agreed delivery dates shall be deemed fulfilled if the product of contract has been handed over to the forwarder by the agreed delivery date, insofar as no other express agreement was made. If the dispatch is delayed for reasons emanating from the customer’s sphere of responsibility, the products of contract can be stored at the customer’s expense and risk.
- Estimated delivery dates shall be determined as per the capacity of mPOS Zahlungssysteme GmbH and are not binding. After conducting a covering purchase, set delivery dates are subject to punctual delivery to ourselves. In the event of delays that mPOS Zahlungssysteme GmbH is not responsible for, in particular force majeure, official action, non-issuance of official approvals, labour disputes, sabotage and unforeseeable shortages in raw materials, the delivery term shall be extended accordingly.
- Insofar as the development/delivery of software is the subject-matter of performance, the customer shall take over the installation, implementation and the parameter-setting at their own responsibility, unless the parties have agreed otherwise.
- The ordering and delivery of hardware is principally always after receipt of payment in advance. Changes to this approach must be in writing. Unless otherwise agreed, the customer shall take over the installation and implementation at their own responsibility.
Records, documents and plans
- In view of the fact that remuneration of services is usually according to time, the parties agree that documentation shall only be drawn up and given to the customer if mPOS Zahlungssysteme GmbH feels it is necessary or if the customer expressly requests such prior to the service being rendered. The request must describe precisely the purpose, extent and the degree of detail of the desired documentation. For the rest, documentation irrespective of the type is not owed.
Prices and Terms of Payment
- All prices stated by mPOS Zahlungssysteme GmbH are to be understood ex works Pullach. Value added tax and other statutory dues in the country of delivery as well as packaging, costs of transportation, transportation insurance, environment and handling fees as well as travel expenses shall be invoiced to the customer accordingly.
- mPOS Zahlungssysteme GmbH shall reserve the right to increase the price appropriately if, after conclusion of the contract increases in costs that mPOS Zahlungssysteme GmbH is not responsible for – especially due to increases in prices on behalf of the supplier or exchange rate fluctuations – are incurred at mPOS Zahlungssysteme GmbH. mPOS Zahlungssysteme GmbH shall provide proof of this at the customer’s request.
- Payments are due within 14 days of the date of invoices strictly net. The invoice shall be issued upon delivery. Cheques shall only be accepted on account of performance.
- Orders of hardware and software shall not be executed until after receipt of payment in advance. mPOS Zahlungssysteme GmbH shall reserve the right to make arrangements deviating therefrom in individual cases. These must be confirmed in writing.
Retention of Title
- mPOS Zahlungssysteme GmbH shall reserve the right to ownership of the items of delivery until receipt of all payments from the business relationship. In the event of behaviour grossly contrary to the contract by the customer, especially in the event of arrears, mPOS Zahlungssysteme GmbH shall be entitled to take back the items of delivery after setting a reasonable deadline. The customer shall be obliged to hand them over. In the event of seizure of items of delivery or other third-party interventions, the customer must inform mPOS Zahlungssysteme GmbH in writing without delay, so that mPOS Zahlungssysteme GmbH can file proceedings as per Section 771 German Civil Procedure Code. Insofar as the third party is not in a position to reimburse mPOS Zahlungssysteme GmbH for the court and out-of-court costs of a lawsuit as per Section 771 German Civil Procedure Code, the customer shall be liable for the losses mPOS Zahlungssysteme GmbH incurs.
- The customer is entitled to re-sell the items of delivery in the proper course of business; however, they assign with immediate effect all receivables amounting to the grand total on the invoice (including VAT) they accrue against their buyer or third party from the re-selling and, in fact, irrespective of whether the items of delivery have been re-sold with or without having been processed. The customer is authorised to collect this receivable after their relinquishment. The authority for mPOS Zahlungssysteme GmbH to collect the receivable themselves shall remain unaffected thereby. However, mPOS Zahlungssysteme GmbH pledges not to collect the receivable as long as the customer meets their payment obligations accordingly and is not in arrears. If this is, however, the case, then mPOS Zahlungssysteme GmbH can demand that the customer of mPOS Zahlungssysteme GmbH announces the relinquished receivables and their debtors, states all details required for collection, submits the corresponding documents and informs the debtor (third party) of the relinquishment.
- The processing or transformation of the items of delivery by the customer shall always be conducted for mPOS Zahlungssysteme GmbH. If the items of delivery are processed with other items not belonging to mPOS Zahlungssysteme GmbH, mPOS Zahlungssysteme GmbH shall thus acquire co-ownership of the new item in the ratio of the value of the items of delivery to the other processed items at the time of processing. For the rest, the same shall apply to the item arising from processing as to the goods subject to retention of title.
- If the items of delivery are combined or compounded inseparably with other items not belonging to mPOS Zahlungssysteme GmbH, mPOS Zahlungssysteme GmbH shall acquire co-ownership of the new item in the ratio of the value of the items of delivery to the other combined or compounded items at the time of the combining or compounding. If the combining or compounding was done in such a way that the customer’s item can be seen as the main item, it shall be deemed agreed that the customer shall transfer the proportionate co-ownership to mPOS Zahlungssysteme GmbH. The customer shall protect the sole ownership or co-ownership for mPOS Zahlungssysteme GmbH.
- The customer shall also relinquish the receivables to secure the receivables of mPOS Zahlungssysteme GmbH against them, which accrue for them against a third party from the combination of the items of delivery with land.
- mPOS Zahlungssysteme GmbH pledges to release securities they are entitled to at the customer’s request when their value exceeds the receivables to be secured by more than 10%, insofar as they have not yet been settled.
Legal Consequences with Impairment of Performance
- mPOS Zahlungssysteme GmbH shall only furnish guarantees and warranties for the nature of the services to the extent this has been expressly agreed upon.
- If the review of a complaint results in the non-existence of a case covered by a warranty, mPOS Zahlungssysteme GmbH shall be entitled to demand the reimbursement of all costs. The costs of the review and repair as well as travel expenses shall be invoiced at the respectively valid service prices of mPOS Zahlungssysteme GmbH.
- Insofar as services are rendered by mPOS Zahlungssysteme GmbH under a service agreement, the following shall apply:
- mPOS Zahlungssysteme GmbH shall not owe the customer any certain degree of success. They will, however, render the services with the greatest of care. If mPOS Zahlungssysteme GmbH does not render services as defined by the contract and if they are responsible for the same, they shall be obliged to render the services at no extra cost for the customer within a reasonable period as per the contract. The requirement for this is a complaint by the customer, which must be made immediately upon recognition or grossly negligent non-recognition. The customer shall be obliged to review and examine without delay all services by mPOS Zahlungssysteme GmbH in detail. If the rendering of essential parts of the service as per the contract is not successful for reasons mPOS Zahlungssysteme GmbH is responsible for within a reasonable grace period expressly set by the customer, the customer shall be entitled to terminate the contract regarding the respective individual order without notice. Insofar as the continuation of all contractual relations or further individual orders between the parties to the contract is unreasonable for the customer due to the performance not being as per the contract and after the unsuccessful expiry of the grace period, they shall be entitled to terminate these as a whole or in part under due consideration of all circumstances of the individual case and under consideration of mutual interests.
- In the event of termination without notice, mPOS Zahlungssysteme GmbH shall be entitled to remuneration for the services rendered up until the validity of the termination. The remuneration shall only be not applicable for such services the customer provides proof of within four weeks of the declaration of termination that they are useless for them and of no interest.
- The right to extraordinary termination for a different important reason shall remain unaffected.
- mPOS Zahlungssysteme GmbH shall also be entitled to remuneration even in such cases for the services rendered up until the validity of the termination. The remuneration shall only be not applicable for such services the customer provides proof of within four weeks of the declaration of termination that they are useless for them and of no interest.
- Insofar as services are rendered by mPOS Zahlungssysteme GmbH under a service agreement, these shall require approval. If services under a service agreement are inadequate, mPOS Zahlungssysteme GmbH shall, as a response to a corresponding complaint, rectify the defects or create a new work (supplementary performance) within an appropriate period. For the rest, statutory regulations shall apply subject to the liability provision in Section 12. The right to cancel, however, is limited to the respective individual performances.
The warranty period shall be twelve months, commencing with the full approval of the work by the customer.
- Insofar as mPOS Zahlungssysteme GmbH renders services under a sales contract and the goods delivered are defective, mPOS Zahlungssysteme GmbH shall as a response to a corresponding complaint, rectify the defects or subsequently deliver immaculate goods (supplementary performance) within a reasonable period. If the supplementary performance fails, the customer is entitled to statutory rights subject to the liability regulations as per Section 12. The right to cancel is, however, limited to the goods delivered.
For the rest, a failure in supplementary performance can only be assumed if mPOS Zahlungssysteme GmbH has been granted sufficient opportunity for supplementary performance or delivery of a replacement without the desired success being achieved, if the supplementary performance or replacement delivery is made possible, if it is refused or delayed unreasonably by mPOS Zahlungssysteme GmbH, if there are founded doubts regarding the chances of success, or if there is unacceptability for other reasons.
The warranty period shall be twelve months, commencing with the delivery of the object of purchase at the customer’s.
- Insofar as services under a tenancy agreement are rendered by mPOS Zahlungssysteme GmbH, liability regardless of negligence or fault shall be ruled out for faults in existence at the time of conclusion of the contract. Statutory regulations shall apply for the rest.
Inspection Obligation and Complaint Requirement
- The customer is obliged to inspect goods delivered, works created and services rendered for obvious defects that an average customer would notice without further ado. Obvious defects also include the lack of manuals as well as significant, easily visible damages. Furthermore, this also includes cases where a different item/a different work or too low a quantity was delivered/created. Such obvious defects must be complained about in writing to mPOS Zahlungssysteme GmbH immediately, within seven days after the delivery/work creation/service rendered at the latest.
- Defects that do not become noticeable until later must equally be complained about to mPOS Zahlungssysteme GmbH within seven days of the customer noticing them.
- Upon breach of the inspection obligation and complaint requirement, the object of service shall be deemed approved under consideration of the defect concerned.
The Customer’s Obligation to Cooperate
The success or failure of the collaboration essentially depends on whether and to what extent the customer cooperates in the realisation of the projects within their capability. They thus pledge to actively support mPOS Zahlungssysteme GmbH as best possible in rendering their services. The customer pledges in particular to:
- Let mPOS Zahlungssysteme GmbH have any information, documents and materials, in particular requirement profiles, specifications, source and object codes, programme flows, data flow and other plans, creation and application documents, etc. needed for the performance of the contract for the purpose and for the duration of the performance of the contract.
- Grant mPOS Zahlungssysteme GmbH and their personnel and vicarious agents employed in the scope of this contract access to any system(s) and installations, in particular hardware and software, as well as to render the required cooperation services for the performance of remote maintenance work.
- Work themselves with sufficient and suitable personnel as well as to provide the system requirements necessary to maintain or induce the smooth functionality of the overall system in the scope of the performance of the contract.
- Report all errors, defects and disturbances in the IT infrastructure to mPOS Zahlungssysteme GmbH.
- Coordinate dates and meetings required for the execution of the contract appropriately with mPOS Zahlungssysteme GmbH and, in cases of doubt, confer with mPOS Zahlungssysteme GmbH.
- Ensure a regular, fundamentally daily, adequate and proper backup of their data.
- If the customer does not observe their obligation to cooperate, any set periods shall be extended in corresponding and appropriate length. Claims by mPOS Zahlungssysteme GmbH going beyond this shall remain unaffected.
mPOS Zahlungssysteme GmbH shall choose the location based on convenience. The performance of work by way of remote maintenance is permitted upon coordination and agreement.
Grant of Rights
Subject to a different individual agreement, all rights to the work results, i.e. to all works created in the scope of this contract due to the activity of mPOS Zahlungssysteme GmbH, shall remain with mPOS Zahlungssysteme GmbH. mPOS Zahlungssysteme GmbH shall, however, grant the customer a simple, non-transferrable right of use, limited to the area of the Federal Republic of Germany and limited in time to the duration of the respective individual order, of the work results. The statutory minimum rights associated with the grant of rights shall remain unaffected so that the customer, with regard to software components, particularly has the right to install them on a non-permanent medium (e.g. hard drive), to copy them for purposes of securing on a different storage medium (e.g. streamer), and to load them in the main memory, in a fast memory, in a cache memory and in the memory of the graphics card. They have, however, subject to the provision in Section 69d German Copyright Law, no right to copy, edit, distribute in unchanged or changed shape, publish or grant sub-licences for them or to transfer the rights of use granted in the scope of this contract in return for money or for free.
Third-Party Property Rights
- Both parties declare that all materials, trade secrets, computer programmes, technical methods, documentation, plans, drawings, graphics etc. to be brought in by them and to be applied in the scope of this contract or to be given to the respective other party are free of third-party rights or that they at least have the right to pass them on to perform the framework agreement of the respective individual orders as well as to allow them to be used and processed by the parties to the contract. Both parties ensure that they have acquired all rights necessary for performing the contract either in their original or by way of corresponding agreements, e.g. with their respective employees, freelancers or other contractual partners or vicarious agents.
- Insofar as a third party asserts breaches of property rights against one of the parties to the contract, the respective other party shall, insofar as they have brought in the object of contract concerned, indemnify the party the claim is against from all claims resulting therefrom, in particular claims for compensation as well as from the costs of legal defence at a reasonable amount. The indemnification shall be provided under the requirement that a settlement or a recognition of the claims asserted by the third party is only given with advance written permission.
- In the event of the assertion of breaches of property rights by third parties, the parties shall inform each other without delay and provide each other with the necessary information and other reasonable support to refute the claim asserted.
Latest update: 01.01.2017