General Terms and Conditions
1.1 These conditions shall only apply to entrepreneurs, corporate bodies regulated by public law or fund assets governed by public law in terms of section 310 paragraph 1 of the German Civil Code (BGB). Regulations to the contrary or regulations that differ from our conditions of sale will only be accepted by us if we explicitly accept the validity in written form.
1.2 These genereal terms and condition shall also apply to all future business dealings with the purchaser as long as the legal transaction is of similar nature.
§2 Offer and conclusion of the contract
If an order constitutes an offer according to §145 BGB, you accept the order with an advance payment or within a period of two weeks. In general all ordered goods will be produced only like the sample provided and invoiced. We expressly reserve that deviations in the execution of the articles and deviation in the ordered quantity of 10% are allowed and need no further authorization by customer.
§3 Provided Documents
3.1 We retain all rights of ownership and copyright to all records and data provided to the purchaser in connection with placing the order, such as calculations, drawings, etc.. These documents and records must not be made accessible to a third party unless we grant our explicit permission in written form to the purchaser. If we do not accept the purchaser's offer within the time limit stated under § 2, these documents must be returned to us immediately.
3.2 Developments in relation to placed orders like drawings, samples, pictures of products from development and production of contractual relationships between Pole Position and the purchaser are exclusively owned by Pole Position even if they contain tradmarks of the purchaser. The purchaser may not use or forward these documents without explicit permission in written form. All designs are protected by copyright and are exclusively owned by Pole Position and may only be made accesible to the public by Pole Position GmbH.
3.3 Developments in relation to placed orders are not for free and has to covered by customer. There will be additional costs which can be charged up to 10 years after the contract. Only by written assurance by the company Pole Position GmbH these costs can be omitted.
§4 Prices and Payment
4.1 Providing nothing to the contrary has been agreed in writing, our prices are ex works and do not include packaging and the respective amount of applicable value added tax. Costs for packaging and shipping shall be charged separately.
4.2 Payment of the purchasing price is to be made exclusively to the account specified on the invoice. The deduction of any discount is only permissible in the event of a special agreement in writing.
4.3 Unless otherwise agreed, 50% of the purchase price shall be payed upfront – before the start of the production – and the rest before shipment ex works. Default interest will be charged at a rate of 8 percentage points above the base interest rate at that time. The assertion of a higher loss as a result of delay shall remain reserved.
4.4 Unless a fixed price agreement was reached, appropriate price change due to changes in wages, materials and distribution for deliveries executed 3 months or more after conclusion of the contract shall remain reserved.
4.5 By acceptance of the invoice and upon payment the customer accepts our General Terms and Conditions!
§5 Set Off and Rights of Retention
The purchaser only has the right of set off against our demands if his counterclaims have been legally determined or are uncontested. The purchaser will only have the right of retention when his counterclaim is based on the same contractual relationship.
§6 Delivery Period
6.1 The period of delivery determined by us shall only commence after the timely and orderly fulfilment of the obligations of the purchaser.The plea of non-performance of the agreement remains reserved.
6.2 If the customer fails to accept the goods or if he culpably infringes any other duty to collaborate, we shall be entitled to claim damages incurred by us to this extent and also to recover any additional costs. Further claims shall remain reserved. Provided that the aforesaid conditions exist, the risk of an unexpected loss or an unexpected deterioration of the item purchased transfers to the customer at the point at which the customer falls into default of acceptance or payment.
6.3 In the event of a delay in delivery not brought about by intent or gross negligence on our part, we shall accept liability for every full week of defaultint the context of a lump sum compensation in the amount of 1.5% of the delivery value, however no more than an overall amount of 5% of the value of the delivery.
6.4 Additional legal claims and rights of the buyer concerning delivery default shall be reserved.
§7 Transfer of Risk upon Shipment
If the goods are sent to the purchaser at the purchaser's request, the risk of accidental loss or accidental deterioration of the goods transfers to the purchaser upon dispatch to the purchaser the latest with the goods leaving factory / warehouse. This applies regardless of whether shipment is made from the place of performance or regardless of who bears the freight costs.
§8 Reservation of Proprietary Rights
8.1 We reserve the title to the goods supplied by ourselves until the complete payment of all claims from an ongoing business relationship. This also applies to all future deliveries, even if we do not constantly and expressly refer to this fact. We are entitled to retrieve the goods if the Buyer is in breach of contract.
8.2 The purchaser is obligated to handle the object of purchase with care until ownership has transferred to the purchaser. He agrees in particular to insure them adequately at his own cost at the original value against damage by fire, water and theft. (Note: allowed only upon the sale of quality goods). If maintenance and inspection work has to be carried out, the purchaser must do this in good time at its own expense. As long as title has not been transferred, the customer is obliged to inform us without delay in writing, if the delivered goods are distrained or otherwise subjected to the intervention of any third party. To the extent to which the third party shall not be able to reimburse judicial and extra-judicial costs of an action according to § 771 ZPO, the purchaser shall be liable for our loss.
8.3 The purchaser is entitled to resell the goods that are subject to retention of title within the ordinary course of business. The customer shall now assign to us any claims he may have against third parties arising from the sale of the goods subject to retention in the amount of the final amount of the stipulated invoice (including value-added tax). This assignment is valid no matter whether the purchased products have been resold without or after processing. The purchaser remains authorized to collect the receivables even after assignment. Our authorisation to collect the receivable ourselves shall remain unaffected by this. We will not, however, collect the receivables as long as the buyer fulfils his obligations to pay the proceeds collected, is not in default of payment and in particular has not filed a petition for the opening of insolvency proceedings and payments have not been suspended.(note: This clause does not apply if an extended reservation of title is not wanted.)
8.4 Processing and manufacture, or remodelling of the ordered goods made by the customer may only be done in our name and on our behalf. In this case, the reversionary interest of the purchaser in the goods purchased will continue in the reconstructed object. In the event that the purchased product is processed with other articles which do not belong to us, then we shall acquire co-ownership of the new item created in the ratio of the value of the goods supplied under reservation of title to the value of the other goods processed at the time of processing. The same shall apply when materials provided by us are combined or mixed with other goods not owned by us.
8.5 We engage to release securities we are entitled to to the business partner upon demand, if their value exceeds the claims to be assured by more than 20%.
§9 Warranty, Notice of Defects, Recourse, Manufacturer's Recourse
9.1 The Customer's warranty rights are subject to the fact that the Customer has properly fulfilled its obligations of examination and complaint within 1 week after receiving the goods.
9.2 Warranty claims expire 1 months after the goods we have supplied have been delivered to the purchaser. The above provisions do not apply if the law according to Section 438 para. 1 No. 2 (structures and items for structures), Section 479 (claims under right of recourse) and Section 634 a para. 1 No. 2 (working on a structure and structure-related planning and supervision services) of the German Civil Code, prescribes longer periods. Our consent must be obtained prior to any return of goods.
9.3 If in spite of all due care, the shipped product should have a defect, which was already present at the time of the transfer of the risk, we will at our choice, either repair the goods or provide supplementary performance, provided the claim was raised in good time. We must be given an opportunity to provide cure within a reasonable period. Recourse claims shall remain unaffected by the above regulation without restriction
9.4 If our repair or replacement fails to remedy the defects, purchaser shall be entitled to either adjust the purchase price or withdraw from the contract.
9.5 There will be no claims for defects in the case of only slight variation from the agreed quality, in the case of only slight impairment of serviceability, where there is natural wear and tear or in the case of damage, which occurs after the transfer of risk due to incorrect or negligent handling, excessive loads, [...] unsuitable equipment, imperfect workmanship, unsuitable building ground or which arise due to special external circumstances, which are not presupposed in accordance with the contract. Claims based on defects attributable to improper modifications or repair work carried out by the Purchaser or third parties and the consequences thereof shall be likewise excluded.
9.6 The purchaser's is not entitled to claim expenditures required for the purpose of the rectified performance, in particular carriage, road costs, labour cost and cost of materials, as far as the expenditures are increased because the object of the delivery has been forwarded afterwards to another place than the purchaser's establishment, unless the transfer would correspond to its designated use.
9.7 The purchaser can only assert rights of recourse against us insofar as no agreements have been made between the purchaser and the purchaser's buyer that go beyond the mandatory statutory rights relating to defects. Furthermore, as for the scope of the purchaser's right of recourse against the supplier, Paragraph 6 applies accordingly.
10.1 This contract, as well as the entire legal relationship between the parties, is subject to the law of the Federal Republic of Germany, to the exclusion of UN purchase law (CISG).
10.2 Place of fulfilment and sole court of jurisdiction for all disputes arising from this contract is our place of business, insofar as not otherwise agreed upon in the order confirmation.
10.3 All agreements that are made between the parties for the purpose of the execution of this contract are stipulated in this contract.
10.4 Should individual terms of this contract be or become inoperative, this will not affect the remaining terms of this contract. The parties undertake to reach an agreement in place of the invalid clause, which corresponds as closely as possible to the commercial purpose of the invalid clause.