General Terms and Conditions
of the Protolis ltd, companies’ register no.51254339 of Hong Kong in the following referred to as “Protolis”.
Preamble
Protolis, is a leading company in prototyping and modeling, specializing in the production of prototypes, models, and small series in plastic and metal.
- Application
These General Terms and Conditions shall exclusively apply. Deviating or conflicting conditions are not acknowledged unless expressly agreed upon by Protolis in writing. These General Terms and Conditions shall also govern all future transactions between the parties. The customer is an entrepreneur, and the legal transaction subject to this contract is part of their company’s operations.
- Offers, Conclusion of the Contract, Cost Estimate
Protolis’ offers are non-binding unless explicitly referred to as binding and become invalid after a time limit of one (1) month. Customer orders are considered accepted only upon confirmation. Cost estimates are made to the best of Protolis’ expert knowledge, and while efforts are made to be accurate, they are not guaranteed. If costs increase by more than 15% after the contract award, Protolis shall promptly inform the customer. Order modifications or additional orders may be charged at reasonable prices unless otherwise agreed upon.
Protolis retains title, copyrights, and exploitation rights to all feasibility studies, drawings, images, and other documents provided to the customer. Third-party access, use, or reproduction of these materials without Protolis’ express consent is prohibited.
- 3D Data Sets, Suitability, Product Tests, Approval, Risk
Based on customer-supplied 3D data sets, Protolis makes offers and carries out orders. Customers are responsible for the construction and functionality of the workpiece, even if advised by Protolis during development. Customers must ensure that the workpiece is suitable for its intended purpose, conduct product tests, gain necessary approvals, and assume responsibility for risks, including property and personal injury.
Workpieces produced under the contract are prototypes and intended for product tests and further development, not for sale or end-customer use. The customer guarantees that no third-party intellectual property rights are infringed due to the order fulfillment and workpiece production, holding Protolis harmless from third-party claims.
For contracts involving injection molds and plastic injection-molded parts, the customer has the right to review and approve a workpiece concept. Failure to request or approve a concept deems the injection mold accepted as free of defects, starting workpiece production.
The customer consents to the destruction of samples and work material after 12 months from the last use, unless requested.
- Production Remedies, Prices, Payment
Production remedies are not delivered to the customer, and Protolis may dispose of them after 36 months from the last use. Prices, unless otherwise agreed, are ex-works plus applicable sales tax. Shipping and packaging costs are not included. Payment terms are written on the quotation. Partial payments are due immediately upon invoicing.
Protolis may charge appropriate expenses for default on payment, including reminder costs, debt collection agency intervention, attorney-at-law fees, and storage costs.
Received payments are first used to cover the longest outstanding claims and associated expenses and default interests.
- Delivery, Default in Delivery
The delivery requires the customer to fulfill the agreed obligations to pay and cooperate in due time and form. The right to object to unfulfilled contract shall be reserved.
The customer shall be obliged to accept the deliveries provided by Protolis. When the delivery ex works is completed, the delivered workpieces shall be deemed accepted. Deliveries can always be carried out in partial deliveries. In case of partial deliveries, partial acceptances shall always be permissible.
When orders for injection molds are received, under or over deliveries of up to 5 (five) % are permissible; in such a case, the purchase price is adapted in an aliquot way in accordance with the actual quantity delivered.
In case of default of acceptance or another culpable violation of obligations to cooperate by the customer, Protolis shall be entitled to claim compensation for the thereby caused damage, including possible extra costs. The risk of accidental loss or deterioration of the workpieces shall in this case be transferred to the customer at the time of the default of acceptance or of the other violation of obligations to cooperate.
Delivery periods or dates are only binding if they have been agreed upon in the individual case as binding between the customer and Protolis in writing. In all other cases, they are non-binding. The customer shall only have the right to withdraw from the contract because of default in delivery after having set an appropriate period of grace.
The withdrawal has to be made in writing by post and/or fax and/or email. When choosing to send an email, it is necessary to request a reconfirmation of the receipt of the message. The right to withdraw from the contract does only refer to the part of the delivery which is in default.
- Transfer of Risk, Default of Acceptance
The risk of accidental loss or deterioration of the workpieces is transferred to the customer upon acceptance , in case of shipping of the workpieces upon request of the customer at the time of dispatch.
Workpieces which are not accepted at the agreed time are stored for a period of 6 (six) weeks at the risk and expense of the customer for what Protolis will invoice storage charges of EUR 20.00 per commenced calendar day and per entirely or partly used pallet space. Moreover, Protolis shall be entitled to either insist on fulfilling the contract or, after having set an appropriate period of grace, to withdraw from the contract and to exploit the workpieces otherwise.
- Reservation of Title
Until full payment is received, the workpieces shall remain the property of Protolis. If the contract is violated by the customer, also by default in payment, Protolis shall be entitled to take back and/or fetch back the workpieces.
The customer shall be obliged to handle the workpieces with care, to insure them appropriately and, if necessary, to carry out maintenance.
As far as the purchase price has not been fully paid, the customer has to notify Protolis about it in writing without delay if the workpieces are encumbered by third party rights or exposed to other interventions of third parties.
The customer shall have the right to resell the workpieces delivered under reservation of title in the ordinary course of business. In this case, however, already at this moment, they assign all claims arising from such a resale to Protolis regardless of whether these are resold before or after a possible processing of the workpieces that were delivered under reservation of title. The claim against the bank which issued or confirmed a letter of credit in favor of the customer in the course of the resale also belongs to the claims arising from a resale. The assignment is hereby accepted by Protolis.
- Warranty, Guarantee
The warranty period is 6 (six) months.
If no tolerances are specified in the data submitted by the customer (clause C. 1.), the following principles apply: Tolerances differ from each other according to the Protolis manufacturing technology. Current tolerance specifications can be found on the production method pages on the website www.protolis.com and shall be deemed agreed. Given the case that no such specifications can be found on the website www.protolis.com, in particular for rapid tooling projects, the tolerances which were mutually agreed upon when the order was accepted apply. If no tolerances are defined, those tolerances will apply that can be achieved within the limits of the manufacturing technology .
The workpiece that has to be produced is, unless otherwise agreed upon, a prototype and not determined or intended to be a final product to be used by end customers. The manufacturing of a prototype also serves to find out how a workpiece (depending on the design and work material) behaves.
Provided that several workpieces are ordered as an assembly, Protolis shall not be liable if the individual workpieces do not fit together as an assembly.
The customer has to prove that defects exist and to notify Protolis in writing by specifying them within 14 (fourteen) days upon delivery at the latest.
In case of warranty, Protolis shall have the right to choose the type of warranty (improvement, replacement, price reduction or conversion) on their own. The customer has to acquiesce to at least two improvement attempts. The improvement attempts may respectively be made within a time limit which corresponds to the same time period agreed upon for the original delivery date.
A guarantee about the features of the workpieces or parts of them is only considered granted if it is agreed expressly and in writing before the contract is concluded.
- Confidentiality
The contractual parties mutually undertake to maintain silence regarding all trade and business secrets to which they were allowed access by one another, which were provided by one another, or which became known to them otherwise in connection with or due to the business relationship or the contact, and not to allow third parties access to them in any way whatsoever without the respective other contractual party consenting to it.
An exception to point 1 is the transfer of information to partner companies. If Protolis is not able to perform a service itself, but there is a corresponding offer within Protolis’s network, it is allowed to involve that company in a respective project. In any case, Protolis must ensure that the confidentiality of the company involved is maintained.
The confidentiality obligation shall be valid for 5 years after the business relationship was ended.
- Liability
Protolis shall be liable in case of intent or gross negligence; unless there is an intentional breach of contract, the liability for damages is limited to the amount of the contract value. Protolis shall not be liable for indirect damages, loss of profit, interest losses, missed savings, consequential and property damages, damages arising from third-party claims.
The liability for damages resulting from tortious injury to life, body, or health remains unaffected by the aforementioned limitations.
Unless otherwise explicitly stipulated in the aforementioned clauses, liability is excluded.
- Final Provisions, Applicable Law, Place of Jurisdiction
The contractual parties waive their right to challenge the contract on the grounds of error, laesio enormis (concept of voidability of a contract if the consideration given in exchange for a certain thing is worth more than twice as much as the fair market price) or frustration of contract (concept that a contract ceases to be obligatory as soon as the state of facts out of which it arose has changed) or to claim them by way of objection or to demand a price reduction or a contractual adaptation due to one of these reasons.
Should a provision of the contract be or become ineffective, the validity of the remaining provisions shall not be affected thereby. In such a case, the contractual parties undertake to replace the invalid provision by a provision which comes closest to its economic purpose.
Modifications of the contract require the written form to be valid; this does also apply if the contractual parties agree not to require the written form.
It shall always be permissible to employ subcontractors.
This contract shall be governed by the law of Hong Kong, China.
Place of performance for all disputes arising from or in connection with this contract shall be Hong Kong.