PDF-Download AGB MyTOS GmbH (German)

General Terms and Conditions as of 07/2011

1. General

1.0 Prevailing Language. These General Terms and Conditions are executed in both English and German. In the event of any conflict between the two languages on the meaning or interpretation of a word, phrase, or clause in these General Terms and Conditions or the more definitive agreement or contract covered by this document, the German language version shall prevail.

1.1. All deliveries and services of MyTOS GmbH (hereinafter referred to as “MyTOS”) are based on these conditions in addition to any separate contractual agreements. Deviating terms and conditions of purchase of the Customer shall not be recognised even if the order is accepted, unless MyTOS has expressly agreed to their validity in writing. All order changes or additions by the Customer require a written confirmation.

1.2. MyTOS reserves its intellectual and property rights to samples, cost estimates, drawings, and other such information of physical and intangible nature – even in electronic form. They may not be made available to third parties. MyTOS commits to make information and documents designated as confidential by the Customer accessible to third parties only with the Customer’s consent.

2. Prices and Terms of Payment

2.1. Unless otherwise agreed, the prices are Ex Works (EXW), but excluding packaging and loading. Prices are exclusive of any legally mandated value-added tax (VAT), which shall be applied to all invoices. Furthermore, in the case of delivery from or to foreign countries, quoted prices are exclusive of any charges and customs duties incurred.

2.2. Payments are to be made within 10 days of the date of the invoice, in full, without deductions, to the nominated account of MyTOS, unless other terms of payment have been expressly agreed.

2.3. If the agreed payment period is exceeded, MyTOS may charge default interest amounting to 8 percentage points above the base rate of the European Central Bank p.a. without the requirement of a prior payment reminder.

2.4. The right to withhold payments or offset against counterclaims is only granted to the Customer to the extent that their counterclaims are undisputed or have been legally established.

2.5. The Customer assumes ownership and rights of use of the delivered service only after full payment of the agreed amount.

3. Order Placement

3.1. In placing the order, the Customer shall provide to MyTOS all information relevant to the goods provided by him such as product name, quantity, dimensions, material, workpiece number and / or material composition, any pretreatment and regulations concerning the coating surfaces, coating specifications, heat treatment, specify international standards and individual value of supplementary items. This also includes information on other treatment regulations and requirements for the storage of the items provided. MyTOS is to receive from the Customer all components, documentation, information and data required for its work based on the performance framework. These must be in final and binding form at the beginning of the work or at the date agreed in the order confirmation. MyTOS is not obliged to check that the goods are free from defects.

3.2. The Customer is to inform MyTOS at the time of placing the order about all relevant requirements and functions that the items to be provided or the tools to be produced must fulfil in the Customer's production processes.

4. Delivery Time, Delays

4.1. Delivery times are approximate and are therefore not binding. Adherence to delivery estimates by MyTOS requires that all commercial and technical issues between the parties have been clarified. In particular, information, required permissions and approvals as well as drawings and plans with suitable dimensions must be provided by the Customer in good time before the start of MyTOS’s work. If these conditions are not met, the deadlines will be extended accordingly; this does not apply if MyTOS is responsible for the delay.

4.2. Compliance with the delivery period is subject to a correct and timely delivery by the Customer.

4.3. The delivery lead time begins on the date specified in the offer or in the order confirmation. The scheduled lead time is determined to the best of our knowledge, as long as the Customer is involved as agreed.

4.4. If MyTOS discovers that the agreed lead time for handling the work order is insufficient, MyTOS will provide the Customer with suggestions for changes to the delivery time in writing. In this case, MyTOS and the Customer will agree on an extension of the lead time. If an extension is not reasonable for the Customer, they may exercise their right of termination.

4.5. Any failure to meet the deadlines due to force majeure, e.g. mobilisation, war, riots, or similar events, e.g. strikes, lockouts, will extend deadlines accordingly.

4.6. Both claims for damages of the Customer due to delay of the delivery as well as claims for damages instead of performance are excluded in all cases of delayed delivery, even after expiry of the period for delivery. This does not apply if liability is mandatory in cases of intent, gross negligence or injury to life, limb or health. The Customer can only withdraw from the contract, as far as the delay of delivery of MyTOS is responsible. A change in the burden of proof to the detriment of the Customer is not connected with the above regulations.

4.7. At the request of MyTOS, the Customer is obliged to declare within a reasonable period of time whether they withdraw from the contract due to the delay in delivery, and/or demand damages instead of the service, or insist on the delivery.

5. Transfer of Risk

5.1. The risk is transferred to the Customer if the delivery item has left the factory, even if partial deliveries are made or if MyTOS also provides other services, e.g. has assumed the shipping or delivery costs.

5.2. If shipping or delivery is delayed for reasons for which the Customer is responsible or if the Customer is for any reason in default of acceptance, the risk shall pass to the Customer as soon as MyTOS indicates readiness for shipment.

5.3. For services, the risk passes to the Customer upon termination of the respective service.

6. Scope of Services

6.1. The services are listed by MyTOS in the order confirmation. Insofar as an order confirmation is missing or delivery note and / or invoice from MyTOS is deemed to be a confirmation of order, the undisputed order placement of the Customer shall be decisive.

6.2. MyTOS reserves the right to change the content of the delivery at any time if the Customer does not provide any or only incomplete or incorrect information pursuant to Art. 3.1 and 3.2, which are necessary for the submission of a final offer. Any costs and delays resulting from incorrect or incomplete information will be charged to the Customer.

7. Delivery of Goods and Incoming Goods Inspection

7.1. The Customer must specify the quantity, name and value of the goods on an accompanying document (delivery note) upon delivery of the items to be prepared according to the individual order or the order confirmation from MyTOS. Furthermore, the goods must be accompanied by all information required for processing, in particular detailed treatment instructions. This also applies to any particular requirements for the storage of highly sensitive parts. Compliance with such requirements shall be separately compensated to MyTOS, unless expressly agreed in writing.

7.2. MyTOS is not liable for losses, delays in delivery, confusion, etc., which arise as a result of inaccurate labelling and marking of the goods by the Customer’s shipping carrier.

7.3. The delivered goods must be labelled by the Customer in a suitable manner, correspond to the specifications specified in the order, and be in a condition to be processed.

7.4. Delivered goods that do not meet the above requirements, MyTOS can return at the expense and risk of the Customer. The Customer is obliged to reimburse all damages, including lost profit, which result from the provision of goods that are not suitable for the contracted service.

7.5. The goods delivered by the Customer are subject to an incoming goods inspection by MyTOS, which is limited to the rough examination (external integrity, identity, quality). Defects found shall be communicated to the Customer without delay.

8. Acceptance

8.1. Deliveries are to be accepted by the Customer, even if they have negligible defects. If the Customer does not reject the service within 2 weeks after notification of completion, acceptance shall be deemed to have taken place insofar as the Customer was about this acceptance by default. The acceptance shall also be deemed to be in effect if the Customer refuses acceptance without being entitled to do so.

8.2. If shipping or delivery is delayed by more than one month after notification of readiness for despatch at the request of the Customer or for other reasons for which the latter is responsible, the Customer may be charged a storage fee amounting to 0.5% of the value of the service rendered each month, but not more than 5% of the total invoice amount. Both contracting parties shall have the opportunity to prove differing storage costs.

9. Material Defects

9.1. MyTOS assumes responsibility for all defects existing at the time of risk transfer, unless a defect is due to a circumstance attributable to the Customer; this applies in particular with regard to parts provided by the Customer.

9.2. MyTOS assumes no responsibility for the maintenance of prescribed dimensions of the items provided.

9.3. Claims for defects do not apply:
- For differences and damages due to missing, incorrect, incomplete or inaccurate information provided by the Customer when placing the order or due to processing regulations declared by MyTOS before the order is executed.
- For damages resulting from an unsuitable quality of the goods handed over. (Material defects, dimensional deviations, surface treatments, processing residues and other foreign bodies, improper heat treatment, rust stains, non-removable residues, solder joints, etc.). This only applies if the inappropriateness of the items provided for processing was not obvious to MyTOS.
- For the reduced corrosion resistance of stainless steel caused by machining.

9.4. Unless expressly stated to the contrary in the order confirmation by MyTOS, MyTOS shall not be liable in particular for the fact that the machined parts are suitable for a purpose other than ordinary use or fulfil further expectations of the Customer. This applies in particular to expressly agreed test procedures or trial and pre-series.

9.5. In the case of complaints, the Customer may withhold payment to an extent that is proportionate to the defects that have occurred.

9.6. In the first instance, MyTOS always has the opportunity to provide supplementary performance within a reasonable period of time. To rectify the defect, the Customer grants a reasonable deadline. If this is refused, MyTOS is released from liability for defects.

9.7. MyTOS bears the necessary costs of supplementary performance, which are incurred in particular for material, labour, transport and travel times at MyTOS. If the costs increase as a result of the deliveries having been delivered to a destination other than the agreed place of delivery, the additional costs incurred for this shall be borne by the Customer. Costs for sending the defective goods to MyTOS are also to be borne by the Customer.

9.8. If supplementary performance fails repeatedly, the Customer may – without prejudice to any claims for damages under Art. 12 – withdraw from the contract or reduce the amount owed.

9.9. Claims for defects do not exist unless there is significant deviation from the agreed quality, with only insignificant impairment of usability, with natural wear or damage after the transfer of risk as a result of faulty or negligent treatment, excessive stress, unsuitable equipment, chemical, electrochemical, electrical or other external influences , which are not required by the contract, arise. Insofar as claims for defects relating to the wear of coated parts are asserted, the liability for defects of MyTOS under normal wear and tear is void. In case of doubt it is up to the Customer to prove that no normal wear exists. If changes or repairs are carried out improperly by the Customer or by third parties, there are no claims for defects for these and the resulting consequences.

9.10. Before shipment MyTOS will check the processed goods, as per standard procedure. If the Customer requires further tests, these must be agreed separately and paid by the Customer. Goods that arrive at MyTOS that have faults in their functional areas are sorted out and marked accordingly. The processing of these faulty goods will not be invoiced.

9.11. Legal recourse claims of the Customer against MyTOS exist only insofar as the Customer has not made any agreements with their own Customer in excess of the legal claims for defects. Incidentally, Art. 7 applies mutatis mutandis to the scope of the Customer’s right of recourse.

9.12. For damage claims, Art. 12 applies (Other Claims for Damages). Further claims by the Customer against MyTOS and its partners that are regulated in this article (9) because of a material defect are excluded.

10. Industrial Property Rights and Copyrights; Defects in Title

10.1. Unless otherwise agreed, MyTOS is obliged to deliver the goods free of industrial property rights and copyrights of third parties (hereinafter referred to as property rights) only in the country of the place of delivery. If a third party makes legitimate claims against the Customer due to the infringement of property rights by products used by MyTOS and used in accordance with the contract, MyTOS shall be liable to the Customer as follows:
a) MyTOS will change them so that the property right will not be violated or substitute them. If this is not possible for MyTOS under reasonable conditions, the Customer is entitled to the statutory right of withdrawal or reduction.
b) The obligation of MyTOS to pay damages is governed by Art. 12.
c) The aforementioned obligations of MyTOS shall only exist if the Customer immediately informs MyTOS in writing of the claims asserted by the third party, does not acknowledge an infringement, and reserves all defensive measures and settlement negotiations to MyTOS. If the Customer suspends the use of the product for reasons of mitigation or other important reasons, he is obliged to inform the third party that the cessation of use does not constitute acknowledgment of a breach of rights.

10.2. Claims of the Customer are excluded insofar as they are responsible for the property rights.

10.3. Claims of the Customer are further excluded if the violation of property rights is caused by special requirements of the Customer, by an application not foreseeable by MyTOS or by the product being modified by the Customer or used together with products not supplied by MyTOS.

10.4. In case of other legal defects, the provisions of Art. 9 apply accordingly.

10.5. Further claims or claims of the Customer against MyTOS and its vicarious agents other than those regulated in this Art. 10 because of a legal defect are excluded.

11. Impossibility, Contract Adjustment

11.1. Inasmuch as the delivery is impossible, the Customer is entitled to demand compensation, unless MyTOS is not responsible for the impossibility. However, the claim for damages of the Customer is limited to 10% of the value of that part of the delivery which cannot be put into proper operation due to the impossibility. This restriction does not apply insofar as liability is mandatory in cases of intent, gross negligence or injury to life, limb or health; a change in the burden of proof to the detriment of the Customer is not connected with this. The right of the Customer to withdraw from the contract remains unaffected.

11.2. If unforeseeable events in the sense of Art. 9.2 significantly change the economic meaning or the content of the delivery or have a significant effect on the operation of MyTOS, the contract will be adapted in good faith. Insofar as this is not economically justifiable, MyTOS has the right to withdraw from the contract. If MyTOS wishes to make use of this right of withdrawal, this must be communicated to the Customer immediately after the realisation of the significance of the event, even if an extension of the delivery period was initially agreed with the Customer.

12. Other Claims for Damages

12.1. Claims for damages and reimbursement of expenses of the Customer (in the following: claims for damages), for whatever legal reason, in particular due to violation of duties from the obligation and from tort, are excluded.

12.2. This does not apply if liability is mandatory, e.g. under the Product Liability Act, in cases of intent, gross negligence, injury to life, limb or health, due to the breach of material contractual obligations.

12.3. However, the claim for damages for the breach of essential contractual obligations is limited to the foreseeable damage typical of the contract, unless there is intent or gross negligence or liability for injury to life, limb or health. A change in the burden of proof to the detriment of the Customer is not connected with the above regulations.

12.4. Insofar as the Customer is entitled to claims for damages pursuant to this article (12), these shall become time-barred upon expiry of the limitation period applicable to liability for material defects in accordance with Art. 9.3. Claims for damages under the Product Liability Act shall be subject to the statutory limitation provisions.

13. Export Regulations

The possibility for exportation of the objects and documents covered by the contract – depending on their nature or their purpose of use – is subject to approval (see also notes in delivery note and invoice). Unless otherwise agreed, the Customer is responsible for the fulfilment of the conditions and the obtaining of the corresponding permits at their own expense.

14. Applicable Law

German law shall apply to the contractual relationship to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG). In all cases in which, for whatever reason, ordinary legal recourse is opened, if the Customer is a registered trader, the sole state of face of all disputes arising directly or indirectly from the contractual relationship is Aachen.

15. Obligation of the Contract

In the event any term or provision hereof is declared by a court of competent jurisdiction to be illegal or invalid for any reason whatsoever, such illegal or invalid term or provision shall not affect the balance of the terms and provisions hereof, which terms and provisions shall remain binding and enforceable. The ineffective clause shall be replaced by a clause that comes as close as possible to the economic purpose of the invalid clause. This does not apply if the adherence to the contract would constitute an unreasonable hardship for a party.

MyTOS GmbH, Grüner Winkel 1, 52070 Aachen, Germany