Â§ 1 Scope
(1) The terms and conditions of the firm Polygon – Produktdesign, Konstruktion, Herstellung GmbH, hereafter Polygon, shall apply exclusively. Any deviating terms and conditions upheld by the ordering party/customer shall only be valid if confirmed in writing.
Â§ 2 Object of the agreement
(1) The offer submitted by Polygon, in conjunction with its terms and conditions, shall constitute the object of the agreement. Offers submitted by Polygon shall be subject to change and are non-binding unless stated as a binding commitment.
Â§ 3 Remuneration and default
(1) The remuneration agreed by contract is payable immediately and in full upon receipt of the invoice. The ordering party shall carry all costs of transferring payment in Germany and abroad. Polygon is entitled to invoice for each stage of contractual fulfilment upon completion thereof, provided the offer specifies that fulfilment will be provided in stages. Polygon is also entitled to demand advance payment totalling 50 % of the agreed amount before fulfilment of the agreement.
(2) Ordering parties shall be considered in default of payment 14 days after the invoice date without the necessity of a reminder.
(3) Ancillary services such as transport, packaging, travel expenses and the like shall be charged separately.
(4) It is not permitted to withhold payments or to offset payments with claims to payment unless such claims are undisputed by Polygon or upheld in a court of law.
(5) Polygon is entitled initially to book payments by the customer against the oldest receivable. Polygon is entitled to proceed as follows insofar as costs and default interest have already accrued: payments shall be booked initially against costs, then against interest and finally against the principal.
(6) Polygon shall not be required to undertake any further deliveries or services from ongoing agreements insofar as the ordering party is in default of payment.
(7) Polygon is entitled to invoice for verifiable, additional costs up to the amount of 15 % accrued in connection with contractual fulfilment without any further agreement becoming necessary.
Â§ 4 Contractual fulfilment
(1) Polygon endeavours to adhere to contractually agreed development and delivery schedules. Nevertheless, insofar as for technical reasons with respect to development it shall not be possible to adhere to agreed schedules, Polygon shall be entitled to exceed the scope of the schedule for up to six weeks in each stage. The ordering party shall be entitled to declare that Polygon is in default once this period has passed.
(2) Polygon shall not be liable for a failure to adhere to delivery schedules insofar as Polygon does not receive components purchased from suppliers on time or in the required quality, provided Polygon shall carry no blame in this respect. Polygon assigns to the ordering party any possible claims to compensation.
(3) Liability for damages caused by default delivery shall be permitted only in the event of intent or gross negligence on the part of Polygon. The ordering party shall not be entitled to demand delivery in the event of withdrawal from the agreement or claims to compensation for damages. Polygon shall be liable for typical and predictable damage only insofar as the exclusion of liability for slight negligence with respect to cardinal obligations shall be invalid in the event of default damage.
(4) The ordering party shall require written consent from Polygon to assign claims from existing contractual relationships with Polygon.
Â§ 5 Handover, acceptance and transfer of risk
(1) The ordering party agrees to accept the contractual service within six workdays of receiving notice of its readiness from Polygon. Acceptance shall be considered as issued insofar as neither acceptance nor complaint is issued by the ordering party within a period of an additional six workdays. Risk is transferred to the ordering party upon acceptance.
(2) Insofar as the ordering party requests shipping, risk shall be transferred to the ordering party no later than upon handover of the consignment to the shipping agent. Risk shall be transferred to the ordering party upon notification of readiness for shipping insofar as shipping is delayed due to circumstances for which the ordering party must carry responsibility.
Â§ 6 Reservation of title
(1) Further, Polygon reserves title to the development/purchased object until receipt of all payments specified in the agreement. Polygon is entitled to forbid production of the object that Polygons developed, or to take back the purchased object, insofar as the ordering party behaves in breach of contract.
(2) The ordering party must notify Polygon immediately and in writing in the event of seizures or other interventions by third parties.
(3) Any processing or remodelling of the purchased object by the ordering party is at all times performed on behalf of Polygon. Insofar as the purchased object is processed with other objects that do not belong to Polygon, a co-ownership right to the new object shall be assigned to Polygon in a proportionate relationship between the value of the purchased object and the value of the other objects at their time of processing.
(4) Polygon is obliged on request of the ordering party to release all collateral to which it is entitled as soon as the value of the collateral exceeds the claims for which collateral is provided by more than 20 %.
Â§ 7 Liability and warranty
(1) Polygon shall be liable for damages exclusively within the scope of the order commissioned, caused by intentional or grossly negligent breach of contract, and only within a scope predictable according to the current state of science and technology. This shall apply equally to consequential damage. The ordering party recognises that according to the current state of technology, it is not possible to exclude the eventuality of defective hard and/or software under all conditions of its or their application. Polygon shall not be liable for the innovative nature of the manufactured product. Liability shall be restricted to the good working order of the prototype in the event that merely prototype construction is owed. Polygon shall only be liable for faults in engineering diagrams in the event of intent or gross negligence. Polygon shall not be liable for damage caused by implementation of the engineering diagrams.
(2) It shall be at the discretion of Polygon to repair defects or provide replacements in the event that there are defects in objects manufactured and sold by Polygon for which Polygon must accept responsibility. The ordering party is obliged to ship the defective purchased object to the business address of Polygon and to pay for the cost of shipping. Polygon shall carry the cost of return shipping to the ordering party. The ordering party shall be obliged to dismantle and install in a professional manner and on its own cost any required components insofar as the defects apply only to individual components.
(3) The ordering party shall be entitled to withdraw from the agreement or demand a reduction in the purchase price in the event that repair of the defect is in vain, if Polygon is unable or unwilling to repair the defect or provide a replacement delivery or in the event that for reasons for which Polygon must accept responsibility, repair or replacement delivery are delayed beyond a period that can be reasonably considered acceptable.
(4) All other claims raised by the ordering party, in particular claims to compensation for damages and including loss of profit or other material damage on the part of the ordering party, shall be excluded, provided the cause of damage is neither intent nor gross negligence.
(5) The liability of Polygon shall be limited to foreseeable, typical damage in the event of the violation of a cardinal obligation of the agreement.
(6) The warranty period shall be 12 months from handover of the purchased object. The same period shall apply to the claims to replacement of any consequential damage insofar as no claims can be raised based on liability in tort.
Â§ 8 Credit
(1) Polygon is entitled to attach to the respective purchased object in a permanent form and visible to an onlooker its own company logo, provided it is a Polygon product and no other provision was agreed in the individual contracts. Furthermore, Polygon is entitled to make reference in publications to its cooperation in the respective contractual object.
Â§ 9 Transfer of the design to other objects
(1) The design or elements thereof may only be transferred to objects other than those agreed by contract if Polygon provides consent in this respect.
Â§ 10 Free copy
(1) Polygon is entitled to a free copy of objects produced based on its design, provided the production costs incurred by the ordering party do not exceed â‚¬1,000.00. Polygon shall – insofar as it insists on the receipt of a reference copy – pay to the ordering party all costs above this amount in the event that the production costs are higher.
(2) Polygon shall be entitled to demand professionally taken digital photographs in a quality of at least 5 mega pixel total resolution insofar as it waives the right to a free copy.
Â§ 11 Miscellaneous
(1) Should any of these provisions be or become invalid under law, this shall not affect the validity of the remaining provisions. The relevant provision must be interpreted in such a way that it comes as close as possible to the intentions of the parties in a lawful manner.
(2) The laws of the Federal Republic of Germany shall apply exclusively to legal disputes between the contractual parties.
Â§ 12 Place of fulfilment and jurisdiction
(1) The place of fulfilment is the registered business address of Polygon.
(2) The place of jurisdiction to file suit for all disputes arising from this contractual relationship shall be at the place of jurisdiction responsible for the headquarters of Polygon or the Polygon branch that performed delivery, provided the ordering party is a registered trader, a legal person under public law or a public law body. Polygon is also entitled to file suit at the ordering party's place of jurisdiction.
(valid from 1 September 2008)