Orders, as well as follow-up orders and future agreements are exclusively subject
to the following General Terms and Conditions (hereinafter referred to “GTC”). Unregulated circumstances are subject to the relevant legal provisions. The nature and scope of the agreed service are specified in the respective contract and these GTC. The applicability of General Terms and Conditions or other conditions of the Client or contract partner (hereinafter referred to as “Client”) is expressly excluded. This exclusion shall also apply if the Client transmits General Terms and Conditions or other conditions to HCC and HCC does not expressly object to them and/or unconditionally accepts the services of the Client. Deviating contractual provisions shall only apply if the respective provision of the GTC is provided with the addendum that it takes precedence over these GTC and this has been acknowledged by HCC expressly and in writing.
Unless otherwise specified in the quote, offers made by HCC are subject to change without prior notice with regard to all data provided, including the fee for the service offered.
Offers are valid for 6 weeks.
The order is only considered accepted by HCC upon a specific written order confirmation.
The Client shall not make the offer made available to him available to third parties either wholly or in part, not even in an edited version, without the prior written consent of HCC.
The (approximate) values customary in the industry shall apply to the technical data and material specifications, unless they have expressly been declared binding in the offer. HCC must only inform the Client about modifications to technical and material specifications if these have been declared as binding.
Prior to use, the Client must check all data and information for suitability for the Client’s intended purpose.
HCC is not obliged to check the Client’s specifications and/or requirements for correctness and/or legal conformity. The Client is liable to HCC for correctness.
HCC reserves unlimited proprietary and copyright utilisation rights to cost estimates, drawings and all other documents. These documents may only be made accessible to third parties upon prior consent and, if the order is not placed, must be returned to HCC without delay together with any copies.
Drawings, drafts and contributions to discussions made in the course of contract negotiations, are not binding. The Client cannot assert claims of any kind against HCC from such documents or services.
HCC exclusively provides the services described in the contract.
Orders are only accepted upon written order confirmation. The text of the order confirmation together with these GTC shall be decisive for the content of the contract thereby concluded, as well as the type and content of the order. The Client is obliged to check all parts of the content and to notify any deviations in writing.
HCC commits itself to proper execution of the assigned order according to the generally accepted rules of technology and principles of economy.
Before placing an order, the Client is obliged to specify all laws, standards (in particular ÖNORMEN [Austrian standards], DIN, ISO, EN, etc.) and other provisions on the basis of which he wants the services to be rendered.
All relevant data, documents and other information that is necessary for execution of the order or should be taken into account, is made freely available to HCC by the Client in a suitable and processable form (data format).
Changes and additions to the order can only be agreed jointly and in writing.
The agreed delivery times shall be postponed at least by time necessary to make the changes.
The Client undertakes to issue a written order for the changes.
All deliveries and services shall be rendered at the locations specified in the order confirmation. If no location for provision of deliveries and services is agreed, the registered office of HCC shall be deemed agreed. The place of performance is thus the location specified by HCC or the registered office of HCC. The place of performance for payments is also the registered office of HCC.
If changes, extensions or details on part of the Client, which HCC can regard as a change of performance, have an effect on dates and/or costs, HCC shall inform the Client accordingly or submit an offer.
When required by HCC, change requests must be submitted by the Client in writing and in detail. If the Client agrees, any changed dates and costs shall become a part of the contract. If a change or extension affect a document already accepted by the Client, HCC will also copy these in the documents already accepted.
As long as the contract parties fail to reach an agreement, HCC shall continue the work in accordance with the existing contract without the corresponding change.
If HCC detects that the order is faulty, ambiguous or infeasible, HCC shall immediately notify the Client accordingly. Subsequently, the Client and HCC mutually agree on the further procedure. If no agreement can be reached, HCC is entitled to withdraw from the contract. All work performed so far must be fully compensated to HCC. In this case, the Client is not entitled to damage claim or other compensation.
It is to be pointed out that it is the sole decision of the HCC, whether and to what extent HCC will insure the risk, in particular liability risk for activities to be performed in accordance with the written order (order confirmation). An obligation for HCC to insure for the commissioned activities can neither be derived from the contract, nor from the “General Terms and Conditions”.
Fee, fee adjustment
The fee payable by the Client is based on the prices specified in the quote. HCC reserves the right to adjust the prices for current orders twice a year, subject to a 30-day notice period, due to changes in calculated costs (e.g. exchange rate fluctuations for foreign currencies, subcontractor fee changes, CT increases, CPI index fluctuations, etc.).
Expenses
Unless otherwise specified in the quote, costs for travel, flight, daily allowances and accommodation expenses will be charged separately to the Client on a monthly basis. Travelling times to the Client’s site are considered working hours.
Reminder fees and collection costs
In the event of breach of contract by the Client, in particular in case of default payment, the Client undertakes to pay the following fees to the HCC: legal costs, attorney fees, collection agency fees, court costs, as well as all expenses arising for HCC in connection with the Client’s default in payment.
Upon conclusion of the contract, the Client and HCC shall appoint the respective contact persons for technical and commercial coordination between the contracting parties. These persons and their scope of responsibility are specified in the contract.
The contract parties shall share important information concerning the subject matter of the contract on a regular basis. As soon as HCC or the Client become aware of circumstances which could call the contractual fulfilment of the order into question, the contract partner shall immediately be notified about these circumstances and any measures to be considered by him.
If the Client fails to inform HCC of the occurrence of project-related circumstances, which delay (impede) meaningful progress by HCC or make progress appear meaningless at the respective time, thereby creating additional costs for HCC, the latter is entitled to charge the resulting additional costs for increased expenses and/or alterations on the basis of the underlying contract.
HCC is also entitled to charge the services rendered up to this point and to demand postponement of the deadline if the project continues.
HCC is free to appoint third parties (subcontractors) for the provision of services and/or to subcontract all or part of the contract, whereby HCC always remains directly liable to the Client.
HCC shall decide on hiring or replacing employees or subcontractors at its own discretion. The employees or subcontractors remain in an employment and/or contract relationship with HCC throughout.
The Client is not entitled to give instructions to employees, workers, subcontractors or contract partners of HCC.
External persons, performing work on the HCC premises for fulfilment of the contract, must strictly adhere to the provisions of the company/house regulations, accident prevention measures and all other directives by the HCC.
Violations authorise HCC to immediately discontinue the related activities and, in extreme cases, also to expel the respective person or group of persons from the business premises. Furthermore, the external person(s) is/are obliged to have sufficient health and accident insurance and must prove this accordingly upon instruction by HCC.
HCC shall not be liable for accidents involving (an) external person(s) on the business premises, insofar as this is legally permissible. This applies in particular to insurance benefits provided for accident-related consequences.
Special mention in this regard is made to the use of in-house test facilities and dangers involved in the prototype and sample construction areas and the machines in use for this purpose.
All equipment and machines may only be used for the intended purpose. The associated operating instructions and information on accident prevention must be strictly observed and adhered to.
External staff must be qualified for proper and professional execution of the work in accordance with the requirements profile of the activity to be performed. HCC is not obliged to verify the qualifications.
This provision shall also apply to persons who are commissioned by the Client to carry out contractually agreed activities at HCC.
Work equipment provided by HCC remain HCC property. This equipment may only be used for the intended purpose and must only be disposed of in accordance with the manufacturer’s instructions.
HCC assumes no liability for (prototype) parts, (prototype) modules or complete test engines and/or complete vehicles, which are made available to HCC for tests and/or test bench tests from the Client. Damages cannot be charged to HCC or deducted from the underlying order.
The Client is aware that these components are used for such tests and that they might be destroyed completely. HCC cannot guarantee further use after completion of these tests or test bench tests.
Likewise, before starting the tests, HCC is not responsible to check the condition of the parts, engines and/or vehicles provided by the Client and to what extent the parts were already in use before commencement of work and what possible previous damage already existed.
Drawings created by HCC are sample drawings or drawings for pre-approval and are used exclusively for the production of sample components and prototypes. Drawings for pre-approval are checked by the Client for production-compliant design.
Series drawings shall be approved exclusively by the Client. HCC accepts no liability for damage caused by using sample drawings.
Moving of engines or sample parts in road traffic requires sophisticated testing by the Client. Insofar as this is legally permissible, HCC shall not assume any liability for damage to property or personal injury or consequential damage of any kind.
HCC is not obliged to deliver or notify readiness to deliver until all commercial and technical questions have been completely clarified.
HCC shall do everything in its power to comply with the requested deadlines of the Client. Times when the Client is in default of fulfilling his duties to cooperate, shall always extend the duration and postpone the expected deadlines accordingly.
If changes are required by the Client, the delivery time will change according to the changed order confirmation.
HCC accepts no liability for delayed deliveries, in particular by force majeure, strikes, delays by suppliers or other circumstances beyond HCC’s control. Delivery times extend at least by the period of impediment.
HCC is entitled to partial deliveries and partial services, as well as to render services before the due date.
Deliveries are made ex HCC business premises at the expense and risk of the Client (EXW, INCOTERMS 2010). The choice of the shipping mode shall be at HCC’s discretion, unless the Client specifies otherwise. A transport insurance can be concluded for the shipment upon the Client’s written request. The cost shall be borne by the Client.
As soon as the goods are handed over to the carrier, the risk shall be passed to the Client. In case delivery includes mounting or assembly, the risk is passed to the Client on the day of handover.
The Client is liable for and guarantees that products, drawings, samples or other deliveries or services provided according to his specifications, will not violate any rights of third parties. If a claim is made against HCC due to infringement of rights of third parties, the Client is obliged to indemnify and hold HCC completely harmless. The obligation to indemnify also applies to all applications that accrue to HCC in connection with third-party claims.
Premature dissolution or withdrawal from the contract is only permissible for good cause. An important reason is a material breach of contract terms, despite setting a reasonable grace period of at least 2 weeks for fulfilment of the order. This applies for both the Client and HCC. The grace period must be set via registered letter.
In addition, HCC is entitled to terminate the contract immediately in case of:
If HCC is entitled to withdraw from the contract, HCC reserves the right to the entire agreed remuneration. This agreement also applies in case of unjustified withdrawal of the Client. In this context, reference is made to §1168 ABGB [Austrian General Civil Code], which states, inter alia, that the services provided by HCC are to be remunerated even in the event of justified withdrawal of the Client.
The subject of an acceptance is technically or functionally related work packages which are declared as such. Individual services from the contract are divisible and can be inspected and accepted separately. There is no affiliation between the contractual service(s) to be provided by HCC and any services to be provided by the Client.
After completion of the contractual service, the person in charge at HCC declares readiness for inspection to the respective person in charge of the Client or the person designated by the Client and agrees on an inspection date. The inspection date is to be carried out by the Client as soon as possible, but no later than 15 working days after declaration of readiness for inspection. Postponement of the acceptance date is only possible in justified cases, upon determination of a new acceptance date.
If the Client fails to provide feedback on readiness for inspection or cooperation during inspection within the specified deadlines, the service is considered accepted. Likewise, a service is considered accepted if it is used by the Client.
Inspection results must be recorded by the Client in an inspection protocol.
Compliance of the inspection results with the agreed requirements are recorded as a positive report in the inspection protocol, while errors or defects are recorded as a negative report, whereby insignificant defects do not prevent (partial) acceptance. A defect is considered significant if the intended use of the system is not possible or seriously restricted. All other defects are insignificant.
The Client submits the inspection protocol (containing positive and negative notes) to the person in charge at HCC. If the inspection protocol is not submitted within 20 working days after the date of the jointly executed inspection, the service is considered accepted.
HCC shall immediately start rectifying defects detected during inspection and swiftly execute the corrective actions. After elimination of an error, the procedure must be carried out again, starting with declaration of readiness for inspection, but only if the defect was of material nature. Otherwise, the inspection procedure is omitted. An inspection unit is considered accepted upon a positive notification of the entire unit.
The present services are considered accepted upon payment of the invoices by the Client.
All prices quoted are net prices and ex works, excluding any ancillary costs such as freight / postage, packaging, insurance, customs duties and statutory value-added tax.
Additional deliveries / services will be charged separately.
HCC is bound to the prices agreed for an order for 6 months as from conclusion of the contract. For longer agreed delivery or service deadlines, HCC is entitled to increase material, labour and other costs e.g. through rate increases on the basis of the original price calculation, to reflect the pro rata surcharge for the cost increase that has occurred – see also item 6.
If the Client cancels the order, HCC is entitled to charge the costs for material already ordered and services already rendered.
Unless agreed otherwise, the invoice amount has to be settled in EURO and without deductions within 30 days after delivery and receipt of an invoice or equivalent request for payment. The Client shall bear the risks and costs of the payment transaction.
In the event of default of payment as from 45 days (calculated from the date of sending the invoice), HCC shall discontinue the commissioned services without additional justification. The Client shall be informed in writing accordingly.
Compensation of any counter-claims for whatever reason, is inadmissible. In case of late payment, HCC shall charge interest on arrears at 5% above the base rate of the Austrian National Bank. The Client reserves the right to prove a lesser damage. The Client has the right to set off only those claims that are undisputed or legally determined.
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 from order to receipt of payment exceeds 14 days, the agreed delivery dates are only calculated from the date of receipt of payment.
For partial deliveries and services, HCC is entitled to issue corresponding invoices (partial invoices). After completion of the total services, HCC shall issue a (final)invoice for the entire scope of services, less the (partial) payments already made by the Client. The number and dates for the partial invoices depend on the progress of the project / payment schedule or on the prototypes that have already been produced and / or delivered at this time.
Unless a detailed payment schedule was agreed when the contract was awarded, the amount of the partial invoices shall at least amount to 20% of the total order amount until the total order amount has been settled.
If exclusively construction services are rendered, HCC reserves the right to submit monthly partial invoices. The amount of the partial invoices depends on the services already rendered. If the partial service cannot be precisely defined, at least 20% of the total order amount is charged.
Even justified complaints do not entitle the Client to withhold even a part of the agreed remuneration. Until full settlement of its claims, HCC shall have a right of retention to the documents provided to HCC by the Client.
If, after conclusion of the contract, facts become known that question the solvency of the Client, HCC is entitled to demand full payment or corresponding securities before further execution of the order or to withdraw from the contract after setting a reasonable deadline for full payment or securities.
Seizures or other enforcement measures and/or application for initiation of insolvency proceedings are considered facts that question the solvency of the Client. The Client is obliged to notify HCC immediately.
HCC exclusively delivers work results of all kinds “as is” without any warranty. HCC is only liable for ensuring compliance of the delivered work results with the agreed specifications. The warranty period is limited to 6 months after acceptance of the work results, whereby any claims can only relate to expressly promised features or agreed specifications. Conversion, replacement and price reduction are expressly excluded. The Client has the exclusive right to improvement by HCC.
The Client shall inspect the products for defects immediately upon receipt and shall notify HCC thereof in writing within five working days. Hidden defects must also be reported to HCC in writing within five days after detection.
HCC excludes any liability in the event of incompatibility with the components of the Client, unless contractually agreed otherwise. Systems, assemblies and/or components supplied by HCC are exclusively prototypes. Testing is carried out by the Client, HCC shall not accept any liability for damage to property or personal injury.
The sketches, design documents and/or calculations created are sample bases and/or documents for pre-release and serve exclusively for production of sample components and prototypes. Drawings for pre-approval must be checked by the Client to ensure production-compliant design. Series drawings shall be approved exclusively by the Client. HCC accepts no liability for damage caused by using sample drawings in series production.
Moving the engine or the sample parts on the test bench and/or in road traffic requires sophisticated testing by the Client, e.g. on suitable test facilities or test benches. HCC does not warranty a certain lifetime of the sample parts or prototypes supplied by HCC, especially under difficult and previously unknown operating conditions.
For prototypes manufactured by HCC or a service provider / supplier of HCC, according to drawings or specifications of the Client, HCC shall only assume liability for material defects for execution to specification-compliant design. Liability for material defects is excluded if they do not or only insignificantly impair the value or the usability.
Construction data, drawings, calculations which are subsequently used as a basis for the production of prototype parts, produced or manufactured within the scope of the activity by HCC itself or by a supplier (subcontractor) commissioned by HCC, may not be used in life-sustaining systems. The functional connection to safety-critical or life support equipment, is not permitted and releases HCC from any resulting liability.
HCC shall be fully liable in cases of intent, malice and gross negligence as well intentional or negligent injury to persons.
In accordance with the relevant statutory provisions, HCC shall be liable for claims under the Product Liability Act and all other mandatory and illimitable statutory liability.
Otherwise claims for damages and reimbursement of expenses of the Client, irrespective of the legal basis, including claims for tort or for compensation for direct, indirect, consequential defects or consequential damage, due to culpable breach of secondary contractual obligations or for loss of profit, are completely excluded. However, should it be determined, that HCC is liable, this will be limited by mutual agreement to an amount of € 2,500.00 per claim.
In the event of breach of essential contractual obligations, which cannot be attributed to intent or gross negligence, liability is limited to compensation for contract-typical, foreseeable damage. The contract-typical damage shall not exceed the value of that part of the order that was executed by HCC at the time the damage occurred. If this value cannot be determined, the parties mutually agree on an amount of € 2,500.00 as maximum contractually anticipated damage.
If the Client in turn provides material for production or testing of components, component assemblies or complete vehicles, these only have theft insurance with HCC. HCC is only liable for loss or deterioration of this material in the event of intent or gross negligence.
If the Client demands developments and/or prototypes which go beyond the application of generally accepted technical rules at the time of the order, the Client is obliged to indemnify and hold HCC completely harmless from and against any damage resulting from application of non-recognised techniques in the execution or performance of the contract.
Design documents and prototypes provided remain property of HCC until full payment has been received.
Concepts, prototypes, procedures, methods, etc. developed or produced by HCC are copyright protected. Unless otherwise agreed, no reproduction or duplication rights are transferred to the Client.
Copyright and patent rights and any other industrial property rights in services provided by HCC or third parties for HCC of whatever kind, remain with HCC and are not transferred to the Client upon delivery of the agreed service. HCC reserves all right and uses for documents and work results produced by HCC (in particular plans, technical documentation, etc.).
If industrial property rights, such as patents or registered designs by HCC are involved, the Client receives the express licence for personal use of the prototype and/or process developed by HCC. Disclosure to third parties is not permitted. Any use (e.g. editing, implementation, duplication, dissemination, public presentation, etc.) or disclosure of the documents or parts thereof to third parties is only permitted upon express consent by HCC. All documents may thus only be used for the purposes expressly specified when the order is placed or by subsequent agreement.
In order to protect the documents and work results, in the event of violation of these provisions, HCC is entitled to a contractual penalty for unauthorised use amounting to twice the appropriate fee, whereby the assertion of a claim for damages in excess thereof remains reserved. The onus of proof that the Client did not use the documents of HCC, is incumbent on the Client.
Both parties are obliged to confidentiality regarding all information provided by the other party.
Both parties are further obliged to maintain confidentiality in their planning activity, if and as long as there is a legitimate interest in such confidentiality. The duration of this confidentiality is agreed in a separate order-related NDA [non-disclosure agreement]. If the term for the confidentiality is not expressly defined, this ends without additional consent of the Client, after project end, however, latest after 12 months. After execution of the order, HCC is entitled to publish the contractual work in whole or in part for advertising purposes, unless otherwise agreed in the contract.
HCC shall only make business and trade secrets, disclosed to HCC by the Client, accessible to third parties to the extent required by HCC to provide the services owed.
The Client is also obliged to absolute confidentiality towards HCC regarding trade and business secrets.
The Client consents to electronic data processing by HCC regarding personal data of the Client and his employees, workers, contract partners and consultants who may come into contact with HCC. Processing includes, inter alia, the right to store, transfer and pass on to third parties. HCC must at all times consider and comply with the provisions and guarantees of the General Data Protection Regulation (GDPR).
Data processing primarily takes place to fulfil the contract. The Client also expressly agrees that his personal data, as well as personal data of his employees, workers, contract partners and consultants, who may come into contact with HCC may be used for advertising purposes and passed on to third parties to this end. Pursuant to § 107 of the German Telecommunications Act (TKG), the Client further agrees to receive telephone calls, SMS, MMS, postal mail, faxes and e-mails for advertising purposes.
The Client guarantees that all employees, workers, contract partners and consultants who may come into contact with HCC, have given their consent to the processing, use and disclosure of their personal data by HCC and have been informed and apprised about the nature and categories of the processed personal data, as well as about the purposes of data processing.
Responsible for processing of this data is: HC-Concepts Engineering GmbH, FN 228851x, Gewerbe Street 10, Weitwörth industrial park, 5151 Nußdorf / Salzburg / Austria, Tel +43 6272 20272-0, Fax +43 6272 20272 1012, E-mail: office@hc-concepts.at.
A data protection officer is not legally required. The consent of the persons concerned and fulfilment of the contract form the legal basis for processing (Art. 6 para. 1 (b) GDPR). The purpose for processing is communication and exchange of services and information with the persons concerned in connection with the contract concluded with the Client.
Categories of data processed:
Personal data will be disclosed to the following persons:
Disclosure shall only be made to the extent necessary or expedient to achieve the above-mentioned purpose and with due diligence.
The following data sources are used:
No transmission shall take place to third countries or international organisations, unless the third country or the international organisation provides an adequate level of data protection on the basis of an adequacy decision by the European Commission.
Automatic decision making is excluded.
All personal data collected for achievement of this purposes remain stored only for the period absolutely necessary. In the event that claims are asserted against HCC, personal data may be stored up to 30 years from conclusion of the respective contract end and will subsequently be irrevocably deleted.
Legal advice:
HCC expressly states that parties involved are entitled to rights of information, correction, deletion, restriction, data portability and objection. Those affected can contact HCC in this regard. If persons concerned believe that processing of their data violates the Data Privacy Law, or if their data protection claims have otherwise been violated in a way, they can lodge a complaint with the supervisory authority. In Austria, the data protection authority is the responsible body. It is pointed out that the consent granted for the processing of personal data can be revoked informally by the person concerned at any time.
HCC is entitled to assign claims from the present contract to third parties in accordance with the statutory framework, in particular claim for work or purchase price. The Client is subject to prohibition of assignment.
All claims from this contract are subject to a set-off Prohibition.
Both contracting parties undertake to transfer the rights and obligations under and in connection with this contract to legal successors, whether by way of organisational changes, restructuring measures or other measures.
If the Client violates the provisions of this contract, the Client is obliged to pay a contractual penalty to the amount of double the gross order value to HCC. Any further compensation remains reserved.
Claims under the contract can only be asserted by both contract partners within three years, unless shorter limitation periods, in particular warranty periods, have been agreed or shorter statutory provisions exist.
Several Clients are jointly liable to HCC.
Verbal ancillary agreements are not valid. Changes and additions to the GTC or the contract must be done in writing and must be explicitly designated as changes to the GTC or the contract. The irrefutable presumption applies that this requirement of written form can never be deviated from by verbal agreement. The written form requirement is also permitted via fax / mail, etc.
Unless otherwise agreed in individual cases, important notifications shall be made in writing via e-mail or fax and must be addressed to a qualified contact person of the recipient. Notifications are considered to have been sent in due time if the document was mailed via post before expiry of the respective deadline (date of postal mark).
The Austrian law shall apply exclusively (excluding the UN Sales Convention (UNCITRAL Sales Convention). The contract language is German. The jurisdiction of the competent court for all disputes arising from this contract is agreed at the registered office of HCC. HCC is also entitled to file court action against the Client at the court at the Client’s domicile or place of business.
The invalidity of individual provisions from the GTC shall not affect the validity of the other points. Should a provision be or become invalid, the contracting parties shall replace the invalid provision with a valid provision that comes as close as possible to the economic and legal purpose of the invalid provision.