de | en

General business conditions

1. Validity

1.1. The company HGC Forging- & Raw Material Aerospace Industry – hereinafter referred to as HGC – shall execute its services exclusively on the basis of the present General Business Conditions. These shall also apply to all future business relationships, even if reference is not explicitly made to these.
1.2. Side agreements, caveats, amendments or supplements to these General Business Conditions require the written form in order to be valid; this shall also apply to the deviation from the requirement for the written form.
1.3. Conditions of the contractual partner which oppose or diverge from these business conditions shall only be effective, even with knowledge of the same, if they are explicitly acknowledged in writing by HGC.
1.4. Should individual clauses of these General Business Conditions be ineffective, this does not affect the binding nature of the remaining clauses and agreements concluded upon the basis of the same. The ineffective clause must be substituted by an effective clause which approximates to its meaning and purpose as closely as possible.

2. Contract conclusion

2.1. The basis for contract conclusion shall be the respective quotation by HGC or the customer’s order in which the scope of supplies and remuneration are recorded. Quotations provided by HGC shall be without obligation and non-binding.
2.2. In the event of a customer awarding an order, he shall be bound thereto two weeks after its receipt by HGC. The agreement shall come into being at the time the order is accepted by HGC. Acceptance must take the written form (e.g. by order confirmation), unless HGC signifies beyond doubt (e.g. by taking action on the basis of the order) that the order has been accepted.

3. Scope of supplies, order execution and cooperation duties of the customer

3.1. The scope of the services to be performed shall arise from the customer order or the description of services or the information in the agreement. Subsequent amendments to the contents of the service shall require the written form.
3.2. All HGC services must be verified by the customer and authorised within three days. They shall be considered to have been approved by the customer if they are not authorised in a timely manner.
3.3. The customer shall supply HGC with all information and documents necessary for execution of the service in a timely manner. He shall inform HGC of all processes which are of significance for the execution of the order, even if these circumstances only become known during execution of the order. The customer shall bear the cost arising from work needing to be repeated or delayed by HGS due to his incorrect, incomplete or subsequently amended information.
3.4. The customer shall be further obliged to check documentation (photographs, logos, etc.) provided for execution of the order for possible copyright, trademark rights or other rights of third parties. HGC shall not be liable for infringement of such rights. If HGC becomes subject to litigation due to such an infringement, the customer must indemnify and hold HGC harmless; he must recompense HGC for all detriments arising as a result of third parties being held liable.

4. External services / commissioning of third parties

4.1. HGC is entitled, at its own discretion, to execute the service itself, to avail itself of the services of third parties in the execution of services which are the object of the contract and/or to substitute such services (‘agent’).
4.2. Agents shall be commissioned either on their own behalf or on behalf of the customer, but in any event at the customer’s expense.
4.3. HGC shall carefully select agents and ensure that these possess the necessary specialist qualifications.

5. Deadlines

5.1. Agreed deadlines and dates must be recorded or confirmed in writing. HGC shall make every effort to comply with the agreed deadlines. However, non-compliance with deadlines shall only entitle the customer to assertion of the rights legally due to him if he has granted HGC a grace period of an appropriate duration, but lasting at least 14 days. This grace period shall start with the sending of a reminder letter to HGC.
5.2. After fruitless expiry of the grace period, the customer can rescind from the contract. An obligation for the payment of compensation due to default shall only exist in the case of malice or the gross negligence of HGC.
5.3. However, inevitable or unforeseeable events – in particular delays on the part of the agents of HGC – shall release HGC from compliance with the agreed delivery date in any case. The same shall apply if the customer is in arrears with his obligations necessary for the execution of the order (e.g. provision of documentation or information). In this case, the agreed deadline shall be postponed, at least to the extent of the delay.

6. Rescission from the contract

HGC is entitled to rescind from the contract in particular if
· execution of the service is impossible due to reasons for which the customer is responsible or is further delayed despite establishment of a grace period;
· justified concerns exist with regard to the solvency of the customer and he neither makes prepayments on the demand of HGC nor pays a suitable security before performance of the service by HGC.

7. Professional fee

7.1. Unless agreed otherwise, the right of HGC to a professional fee shall arise for each individual service, as soon as this has been performed. HGC shall be entitled to demand prepayments to cover its costs.
7.2. In the absence of a different agreement, HGS shall receive a professional fee amounting to 15% of the advertising budget transacted via HGC for the services executed and payment for copyright and trademark utilisation rights. The professional fee is exclusive of statutory value-added tax.
7.3. All services provided by HGC which are not explicitly settled by the agreed professional fee shall be remunerated separately. All cash expenditure arising for HGC shall be paid by the customer.
7.4. Quotations by HGC are non-binding in principle. If it is foreseen that the actual costs will exceed those estimated by HGC in writing by more than 20%, HGC shall notify the customer of the increased costs. The cost overrun is considered to have been approved by the customer if the customer does not oppose these in writing within three days of the notification while simultaneously notifying more cost-effective alternatives.
7.5. HGC shall levy appropriate remuneration for all HGC works which, for any reason whatsoever, are not carried into effect by the customer. The customer shall obtain no rights to these works upon payment of this remuneration; rather, non-executed concepts, drafts and other documentation shall be returned to HGC without delay.

8. Payment

8.1. HGC invoices shall be due strictly net cash with effect from the date of the invoice and must be paid within ten calendar days of receipt of the invoice, insofar as no alternative agreement has been made. Late payment interest amounting to 12% p.a. shall be deemed to be agreed in the case of delayed payment. Delivered goods shall remain the property of HGC until payment is received in full.
8.2. The customer shall be obliged to bear all costs and expenses associated with the recovery of debts, in particular collection expenses or other costs necessary for appropriate prosecution.
8.3. In the case of default on the part of the customer, HGC can demand that payment for all services and subservices is due immediately within the scope of other contracts concluded with the customer.
8.4. The customer shall not be entitled to offset his own outstanding money against outstanding money of HGC, unless the outstanding money of the customer has been acknowledged by HGC in writing or legally ascertained. The retention right of the customer is precluded.

9. Presentations

9.1. An appropriate professional fee shall be due to HGC for participation in presentations which, in the absence of an agreement, shall cover at least the total personnel and material costs of HGC for the presentation and the costs of all external services.
9.2. Should HGC not be awarded the order following the presentation, all HGC services, especially the presentation documentation and its contents, shall remain the property of HGC; the customer shall not be entitled to utilise these further – regardless of the form; instead, the documents shall be returned to HGC without delay. The transmission of presentation documentation to third parties and its publication, reproduction, dissemination or other utilisation shall not be permitted without the explicit consent of HGC.
9.3. The customer shall also be prohibited from further utilising the ideas and concepts contributed in the course of the presentation regardless of whether the ideas and concepts are granted copyright. The customer shall not acquire any exploitation and utilisation rights to the presented services upon payment of the presentation fee.
9.4. If ideas and concepts contributed during the course of a presentation are not utilised for the solution of communicative tasks in advertising media arranged, HGC shall be entitled to use the presented ideas and concepts otherwise.

10. Property right and copyright protection

10.1. All services of HGC including those from presentations (e.g. proposals, ideas, sketches, preliminary drafts, concepts, negatives, slides), and also individual parts thereof, shall also remain the property of HGC in the same way as the individual work pieces and draft originals and can be demanded back by HGC at any time – especially upon conclusion of the contractual relationship. By payment of the professional fee, the customer shall only obtain the right to utilisation (including reproduction) for the agreed purpose and in the agreed scope of use. Unless an agreement has been made to the contrary with HGC, the customer may only utilise the services of HGC personally, exclusively in Austria and solely for the duration of the HGC contract. The acquisition of exploitation and utilisation rights to HGC services presupposes in any case complete payment of the professional fees invoiced by HGC on account of this.
10.2. Changes to HGC services, such as in particular their further development by the customer or by third parties acting on behalf of the former, shall only be permitted with the express consent of HGC and – insofar as the services are protected by copyright – the author.
10.3. The consent of HGC shall be necessary for the utilisation of services which exceed the originally agreed purpose and scope of usage – regardless of whether this service is protected by copyright. Separate, appropriate remuneration shall be due to HGC and the author in this regard.
10.4. The consent of HGC shall also be necessary for the utilisation of HGC services for which HGC has developed conceptional templates following expiry of the HGC contract and is regardless of whether this service is protected by copyright or not.
10.5. In this regard, in the 1st year following contract end, the full claim to the HGC remuneration agreed in the expired contract shall be due to HGC. In the 2nd and 3rd years after expiry of the contract only one half / one quarter of the remuneration agreed in the contract shall be due. HGC shall no longer be remunerated from the 4th year following contract expiry onwards.

11. Identification

HGC shall be entitled to refer to HGC and, if necessary, the author on all concept papers and presentations developed without a claim to remuneration being due to the customer in this regard.

12. Guarantee and compensation

12.1. The customer shall assert and justify any complaints in writing without delay, but in any case within three days following execution by HGC. In the case of justified and timely complaints only the right to rectification or exchange of the service by HGC shall be due to the customer.
12.2. In the case of justified claims, the defects shall be rectified within an appropriate period, whereby the customer shall cooperate with HGC to facilitate all measures necessary for investigation and defect rectification. HGC shall be entitled to refuse to rectify the service if this is not possible or is associated with disproportionately high expenditure for HGC.
12.3. The reversal of the burden of proof in accordance with § 924 of the General Civil Code to the detriment of HGC shall be precluded. The existence of the defect at the time of handover, the time of ascertainment of the defect and the timeliness of the claim must be proven by the customer.
12.4. Claims for compensation by the customer, especially due to default, impossibility of the service, positive violation of a contractual duty, culpability upon contract conclusion, defective or incomplete service, damage consequential to defects or due to non-permissible actions are precluded, insofar as they are not based on malice or gross negligence by HGC.
12.5. Any claim for compensation can only be asserted within six months of awareness of the damage.
12.6. Claims for compensation shall be restricted in amount to the value of the order excluding taxes.

13. Liability

13.1. HGC shall perform the assigned works with due regard to the generally acknowledged legal principles and shall advise the customer in a timely manner of risks recognisable for HGC. Any liability of HGC for claims raised against the customer based on advertising activities (the use of a mark) shall be expressly precluded if HGC has fulfilled its duty to notify; in particular, HGC shall not be liable for legal costs, the customer's personal lawyers’ fees or the costs of publication of verdicts and for any claims for compensation or similar claims by third parties.
13.2. HGC is solely liable for damages within the scope of statutory provisions, insofar as its malice or gross negligence can be proven. Liability for ordinary negligence shall be precluded. The existence of gross negligence must be proven by the aggrieved party.

14. Applicable law

Solely Austrian law shall be applied to the legal relations between the customer and HGC, precluding international conflict of law rules. The provisions of UN sale of goods law shall not be applicable.

15. Place of fulfilment and competent court

15.1. The place of fulfilment shall be the headquarters of HGC.
15.2. The competent court for all conflicts arising directly between HGC and the customer shall be agreed as the Austrian court locally and objectively responsible for HGC headquarters.