General Terms & Conditions

HC-Concepts Engineering GmbH

5151 Nussdorf am Haunsberg, Gewerbestrasse 10, Austria

In the following terms and conditions called HCC for short

1. Scope

Orders, as well as follow-up orders resulting therefrom, will be handled exclusively according to the following terms and conditions, unless otherwise expressly agreed. Unregulated circumstances are subject to the relevant legal provisions. The nature and scope of the agreed services are set out in the respective contract and the “General Terms and Conditions”. General terms and conditions of the customer are only valid in so far as HCC has expressly agreed to this in writing.

Ancillary agreements must be in writing and confirmed by HCC.

2. Offers

Unless otherwise specified in the offer, offers made by HCC are subject to change without notice, with regard to all data provided, including the fee for the service offered (fees).

Offers are valid for 6 weeks. The order is considered accepted by HCC only by an express and written order confirmation.

The client will not make available to third parties the offer made to him either in whole or in part, not even in a processed version, without the prior written consent of the contractor.

For technical data and material specifications, the industry-standard (approximate) values ​​apply, unless they have been declared binding in the offer. A notification in case of change will only be made for properties declared as binding.

All information must be checked by the client before use for suitability for the intended application.

HCC is not obliged to check the customer’s requirements and / or specifications for their correctness and / or legal conformity. The guarantee is provided exclusively to the client.

The client warrants that the performance of the order does not entail any infringement of intellectual property rights by provided products, by drawings or samples or by the application itself. Any defenses and / or legal costs are borne by the client and replace us with related expenses.

HCC retains full ownership and copyright exploitation rights on cost estimates, drawings and other documents. The documents may only be made accessible to third parties with prior consent and, if the order is not placed, they must be returned to us immediately upon request together with any copies.

Drawings, drafts and contributions to discussions made in the course of the contract negotiations are not binding. The customer cannot assert claims of any kind whatsoever from such documents or services to HCC, unless HCC has acted deliberately or through gross negligence.

3. Order

 HCC provides only the services described in the contract. Orders are valid only by a written order.

4. Change of Services

If changes or expansions on the part of the client or details of the client, which is reasonably regarded by HCC as a change in performance, have an effect on dates and / or costs, HCC will inform the client or submit an offer.

The change requests must be submitted in writing and in detail by the client upon request by HCC. If the client agrees, any changes to the dates and / or costs become part of the contract. If a change or extension affects a document already accepted by the client, the contractor will also copy it in these documents with the approval of the client.

As long as the contracting parties fail to reach an agreement, HCC will continue the work under the existing contract without the corresponding change.

5. Obligations of the Contractor

If HCC recognizes that the task is faulty, ambiguous or not executable, it shall inform the client immediately. As a result, the client and HCC decide mutually on the further course of action.

It is clarified that it is the sole decision of HCC whether and to what extent HCC insures the risk, in particular the liability risk for the activities to be performed according to the order (order confirmation). Neither the contract nor the “General Provisions” can be used to derive a duty to insure HCC for the commissioned activities.

6. Fee / Index Adjustments
Remuneration, Salary Adjustment:

The fee to be paid by the client is based on the prices specified in the offer. HCC reserves the right for current orders to adjust prices twice a year, subject to a 30-day notice period, due to changes in the calculated costs (such as foreign exchange rate changes, subcontractor price changes, KV increases, …).

Expenses

Unless otherwise offered in the offer, costs for travel, flight, day and overnight money will be charged separately to the client on a monthly basis. Travel times to the customer are considered working hours.

Reminder Fees and Collection Costs

In case of breach of contract by the client, in particular default of payment, the latter undertakes to pay the following fees to HCC: attorney’s fees, costs for collection agencies, court costs, as well as own collection charges of HCC, which are related to default of payment by the client.

7. Organisation

The contractor and HCC designate the respective contact persons for the professional and commercial coordination between the contracting parties. These persons and their area of ​​responsibility are listed in the contract.

8. Information Obligation

The contracting parties will exchange important information concerning the subject matter of the contract on an ongoing basis. As soon as circumstances become apparent from HCC or the client, which could call into question the fulfillment of the contract in accordance with the contract, he shall inform the contractual partner without delay of these circumstances and of any measures to be considered by him.

If the customer fails to inform HCC of the obligation to inform, if circumstances relevant to the project are delayed or hindered by HCC, and HCC incurs additional costs, HCC shall be entitled to the resulting additional costs for increased efforts and / or change work on the basis of the underlying contract.

HCC is also entitled to settle the services provided up to this point in time and to demand a postponement of the final date if the project continues.

9. Subcontracting Services

HCC remains free to engage third parties (subcontractors) for the provision of services and / or to subcontract the contract in whole or in part, whereby HCC always remains directly liable to the client.

HCC decides at its own discretion which employees or subcontractors it will use or exchange. These employees or subcontractors remain in employment and / or contract with HCC at all times.

The client is not entitled to give these persons instructions.

10. Execution of work by third parties

Non-external persons / contract employees who have to carry out work on the premises of HCC for the fulfillment of the contract must adhere strictly to the provisions of the operating / house rules and to the accident prevention measures.

Non-compliance entitles HCC to immediately discontinue the related activities and, in extreme cases, to remove the respective person or groups of persons from the factory premises. Furthermore, the non-resident person (s) is obliged to be sufficiently insured for health and accident and to prove or prove this on the instructions of HCC.

A liability of HCC for the accidents of non-resident persons / service contract employees on the factory premises is excluded, as far as this was not caused deliberately or a grossly negligent breach of duty of our legal representatives or vicarious agents.

In particular, it refers to the use of in-house test facilities and the dangers in the field of prototype and prototype construction and the machines used for this purpose.

All equipment and machines are to be used only for the intended purpose. The associated operating instructions and the instructions for accident prevention must be observed and adhered to.

The non-external personnel / contract staff members must have the necessary qualifications to carry out the work properly and professionally, in accordance with the requirement profile of the work to be performed. HCC is not obliged to check the qualification.

This regulation also applies to persons / contract employees who are commissioned by the client for the contractual activity at HCC to carry out the work.

11. Provision of work equipment

Equipment provided by HCC remains the property of HCC. These may only be used as intended and disposed of according to the manufacturer’s instructions.

12. Prototype parts / Experimental Engines

For (prototype) parts, (prototype) assemblies or complete test engines and / or complete vehicles, which are made available to HCC for testing and / or test bench tests, HCC can´t guarantee that they will not be damaged by the tests and / or tests Get damaged. Damage can not be charged to HCC or deducted from the underlying order.

The client is aware that these components could be used for such experiments and could also be destroyed to 100%. Further use after completion of the tests or test bench test can`t be guaranteed by HCC

Likewise, HCC is not responsible before the start of the test series to check in what state are the client provided parts, engines and / or vehicles and how far the parts were already in use before the start of work and what previous damage already existed.

The drawings created by HCC are sample drawings or drawings for preliminary approval, and are used exclusively for the production of sample components and prototypes.

Subscriptions for pre-approval are again checked by the client for production-compliant design. The release of the serial drawings is carried out exclusively by the client, for damages caused by the use of sample drawings in a series no liability is assumed by our side.

The movement of the engine or the sample parts in road operation requires a mature testing by the client, for property damage and personal injury and for consequential damage of any kind, we assume no liability.

The testing is carried out by the client, for property damage and personal injury is not accepted by our side.

13. Delivery time and scope

The delivery period begins with the complete technical and commercial clarification and ends with the shipment or the notification of readiness for shipment.

HCC will do its utmost to meet the client’s deadlines. Times in which the client is in default with obligations to cooperate, extend the duration in any case and postpone promised appointments..

If changes are required by the client, the delivery time begins again with the date of the changed order confirmation.

HCC assumes no liability for delivery delays, in particular due to force majeure, strike or due to delivery times of our suppliers. Delivery periods extend at least by the period of disability.

HCC is entitled to partial deliveries and partial services, as well as to a provision of services before the due date.

14. Place of delivery and transfer of risk

Deliveries are made ex works HCC at the expense and risk of the customer (Ex works). The choice of shipping method is made, as far as the client does not specify, at the discretion of HCC. At the written request of the client, a transport insurance can be taken out for the shipment. The costs are borne by the client.

In the case of delivery with assembly / assembly, the risk with respect to the delivery item shall pass to the customer on the day of the takeover.

15. Rights of third parties

The client guarantees that, if HCC carries out the order according to its specifications, this does not violate the rights of third parties. If HCC is claimed by a third party for a violation of its rights, the client is obliged to exempt HCC from these claims. The indemnity also applies to all applications that HCC necessarily incurs in connection with the claim of a third party.

16. Early dissolution / withdrawal from the contract

Early termination or withdrawal from the contract is only permitted for good cause. An important reason is a material breach of the contract, despite a reasonable grace period for the fulfillment of the contract. This applies to both the client and HCC. The period of grace must be set by registered letter.

In addition, HCC is entitled to immediately terminate the contract with:

a) Default of payment (as of 45 days) of the client despite a written reminder by HCC

b) Significant and / or persistent violation of (co-operation) obligations of the client

c) initiation of liquidation or bankruptcy proceedings over the assets of the client or

d) Rejection of an application for opening of the settlement / bankruptcy proceedings due to insufficient assets

If HCC is entitled to withdraw from the contract, HCC reserves the right to claim the entire agreed fee. This also applies as agreed upon unjustified withdrawal of the client. In this connection, we refer to §1168 ABGB, which states, among other things, that the services provided by the HCC are to be reimbursed even if the principal has a legitimate resignation.

17. Acceptance

Subject to acceptance are technical or functionally related and as such declared work packages. Individual services from the contract are divisible and can also be purchased separately. There is no affiliation of the service (s) to be performed under the contract of HCC with any services of the client to be provided.

After completion of the contractual service, the person in charge of HCC declares readiness for acceptance to the respective person in charge of the client or the person nominated by him, and agrees to a take-over date. The acceptance date must be carried out by the client as soon as possible, but no later than 15 working days after declaration of readiness for acceptance. A postponement of the acceptance date is only possible in mutatis mutandis cases, under determination of a new acceptance beginning.

If the client fails to provide feedback on readiness for acceptance or participation in acceptance within the specified deadlines, the service is deemed accepted. Likewise, a service is considered accepted if it is already used by the customer.

Results of the inspection are to be recorded by the client in an acceptance report.

The conformity of the test results with the agreed requirements is recorded as a positive report in the acceptance report, errors or deficiencies as a negative message, with insignificant defects of a (partial) acceptance are not precluded. A defect is essential if the appropriate use of a part of the system is not possible or seriously restricted and the defect has a significant impact on the transaction and / or security. All other defects are immaterial.

The acceptance report (with the positive and negative messages) is sent by the client to the person responsible for HCC. If no transmission of the acceptance protocol takes place within 20 working days after the jointly executed acceptance date, the service is considered as accepted.

18. Prices

All prices quoted are net prices and are ex works, excluding all additional costs such. Freight / postage, packaging, insurance, customs duties and VAT.

Additional deliveries / services will be charged separately.

HCC is bound to the prices agreed for an order for 6 months from the conclusion of the contract. For longer agreed delivery or service periods HCC is entitled to increase the material, labor or other costs z. Eg by increasing the tariff on the basis of the original price calculation, to make the pro rata surcharge for the increase in costs that has occurred – cf. for index adjustments as per item 6.

If the order is canceled by the customer, HCC is entitled to charge the costs for already ordered material and / or work already performed.

19. Payment

Unless otherwise agreed, the invoice amount is payable in euros within 30 days of delivery and receipt of an invoice or equivalent request for payment without deductions. Danger and costs of the payment transaction shall be borne by the client.

In case of default of payment from 45 days (calculated from the date of dispatch of the invoice), HCC will discontinue the commissioned services without additional justification. The client will be informed in writing.

The compensation with any counterclaims, for whatever reason, is inadmissible. In case of late payment, default interest of 5% above the base lending rate of the Austrian National Bank will be charged by HCC. The client reserves the proof of a lesser damage. The customer has the right to offset only with undisputed or legally established claims.

HCC reserves the right to demand a down payment of at least one third of the total order value for development orders of customer-specific solutions. The agreed delivery dates are only valid upon receipt of payment. If the period between commissioning and receipt of payment is longer than 14 days, the agreed delivery dates are only calculated from the date of receipt of payment.

For partial deliveries and partial services, HCC is entitled to submit corresponding invoices (partial invoices). After completion of the total services, HCC will issue a (final) invoice for the entire scope of services, less the (partial) payments already made by the customer. The number and dates for the TLR depend on the progress of the project / payment plan or on the prototypes already manufactured and / or delivered at this time.

Unless a detailed payment plan was agreed when the contract was awarded, the amount of the partial invoices amounts to at least 20% of the total order amount until the total order amount has been paid.

If it concerns exclusively a constructive service provision (in the sense of construction) reserves itself HC

20. Right of Retention

Justified complaints do not entitle the client to withhold the entire, but only a reasonable part of the invoice amount. HCC has until the complete settlement of his claims a right of retention to the documents provided to him by the customer.

21. Asset deterioration / bankruptcy

If facts become known after the conclusion of the contract that call into question the solvency of the client, HCC is entitled to demand full payment or corresponding security payments prior to further execution of the order or to withdraw from the contract after setting a reasonable deadline for full payment or security.

Facts that question the solvency of the client are seizures or other foreclosures and or the application for opening insolvency proceedings. The client is obliged to inform HCC immediately.

22. Liability and material defects

The client checks the products immediately after receipt for any defects and notifies HCC in writing within five working days. Hidden defects must also be reported in writing to HCC five days after discovery.

Unless otherwise agreed by contract, HCC excludes any liability in the event of incompatibility with components of the client. The systems, assemblies and / or components supplied by HCC are only prototypes. Therefore, they are not subject to statutory product liability. The testing is carried out by the client, for damage to property and personal injury is not accepted by HCC.

The created sketches, construction documents and / or calculations are sample bases or documents for pre-release and serve exclusively for the production of sample components and prototypes. Subscriptions for pre-release must be checked by the customer for production-compliant design. The release of the serial drawings takes place exclusively by the client. No liability is assumed by HCC for damage caused by the use of sample drawings in the series.

The movement of the engine or the sample parts on the test bench and / or in road traffic needs a mature testing by the client z. B. on suitable test equipment or test benches. A warranty for a certain lifetime of the sample parts or prototypes supplied by HCC, especially under difficult and previously unknown operating conditions, is not accepted by HCC.

For prototypes made by HCC or a service provider / supplier of HCC according to the customer’s drawing or specification, HCC assumes only a material defect liability to specification in accordance with specifications. Liability for material defects is excluded if they do not or only insignificantly impair the value or serviceability.

23. Liability

Design data, drawings, calculations, which are subsequently used as a basis for the manufacture of prototype parts, which are created or manufactured within the scope of HCC’s activity, by HCC itself or by a subcontractor appointed by HCC, shall not be included in life-sustaining Systems are used. A functional connection to safety-critical or life support equipment is not permitted and releases HCC from any resulting liability.

Claims for compensation and reimbursement of expenses of the client, for whatever legal reason, including those from tort or for compensation of defects or consequential damages, for culpable breach of contractual secondary obligations or for lost profit, are excluded. This does not apply if HCC intent or gross negligence can be proven

In the case of a breach of essential contractual obligations, which are not due to intent or gross negligence and which is not a guarantee of quality, the liability is limited to the replacement of the contract-typical, foreseeable damage.

If the customer for his part provides material for the production or testing of components, component groups or complete vehicles, these are only insured against theft at HCC. A liability for the loss or deterioration of this material exists only in cases of intent or gross negligence on our part.

If the client requires developments and / or prototypes which go beyond the application of the above-mentioned standard of technology at the time of the order, the client is obliged to indemnify HCC against all damages resulting from the application of the contract or the fulfillment of the contract. to indemnify and keep free.

The statutory provisions on the burden of proof remain unaffected.

24. Retention of title

Delivered design documents and prototypes remain our property until full payment.

The concepts, prototypes, procedures, methods etc. produced or elaborated by HCC are protected by copyright. Unless otherwise agreed, no rights to reproduction or duplication are transferred to the client.

25. Copyright patent rights / Intellectual property

Copyright patent rights and other intellectual property rights to services provided by HCC or by third parties for HCC, regardless of their nature, remain with HCC and do not pass to the customer upon delivery of the agreed service. HCC reserves all rights and uses to the documents it has prepared (in particular, plans, technical documentation, etc.).

If industrial property rights, such as patents or utility models are affected by HCC, the customer receives the express license for the personal use of the prototype supplied by HCC and / or the developed process. A transfer to third parties is not permitted. Any use (eg processing, execution, duplication, distribution, public presentation, etc.), or disclosure of the documents or parts thereof to third parties is only permitted with the express consent of HCC. All documents may therefore only be used for purposes expressly specified when placing the order or by a subsequent agreement.

In the event of breach of these provisions for the protection of documents, HCC shall be entitled to a fine equal to twice the appropriate remuneration for the unauthorized use, subject to the assertion of a further claim for damages. This penalty is not subject to the judicial moderation law. The burden of proof that the client did not use the documents of HCC is the responsibility of the client.

26. Confidentiality

HCC is obliged to keep confidential all information provided by the client.

HCC is also obliged to keep confidential its planning activities, if and as long as the client has a legitimate interest in this secrecy. After completion of the order, HCC is entitled to publish the contractual work wholly or partly for advertising purposes, unless otherwise agreed in the contract.

The HCC discloses business and company secrets disclosed by HCC to third parties only to the extent that HCC requires them to fulfill the service owed.

27. Assignment

HCC is entitled to assign claims from the present contract and, in accordance with legal framework conditions, in particular the purchase price claim to third parties. The client is subject to an assignment ban.

28. Prohibition

All claims under the contract are subject to a set-off

29. Legal Succession

Both Contracting Parties undertake to transfer the rights and obligations arising from and in connection with this Contract to assignees, whether in the course of organizational changes, reorganization measures or other measures.

30. Penalty

If the client violates the provisions of this contract, the client commits himself to pay HCC a contractual penalty amounting to twice the gross order value. Any further compensation remains reserved. The judicial moderation right is excluded in relation to fully qualified traders.

31. Limitation

Claims under the contract can only be asserted by both parties within three years unless shorter limitation periods, in particular warranty periods and shorter statutory provisions, exist.

32. Joint and several liability

Several clients are liable to the contractor for an undivided hand.

33. Writing

Verbal agreements are not valid. Changes and additions to these General Terms and Conditions or the contract must be made in writing and must be explicitly designated as changes to the GTC or the contract. There is an undeniable presumption that this requirement of written form can never be deviated from by verbal agreement. The written form is also granted by fax / e-mail etc.

34. Timeliness and form of communications

Important communications are made, unless otherwise stipulated in individual cases, in writing by e-mail or by fax and must be addressed to a qualified contact person of the recipient. Notifications shall be deemed to have been sent in due time if the document has been mailed to the Post Office before the end of the respective deadline (date of the postmark).

35. Jurisdiction

The contract language is German For all disputes arising from this contract, the jurisdiction of the competent court at the headquarters of HCC is agreed. HCC is also entitled to the clients to sue at his domicile or place of business.

36. Severability clause

Ineffectiveness of individual provisions of our terms and conditions has no influence on the validity of the other points. Should a provision be or become ineffective, the parties to the contract shall replace the ineffective provision by an effective provision that comes as close as possible to the economic and legal purpose of the ineffective provision.