Terms of Conditions

These General Terms and Conditions relate to the provision, supply and sale of research and development services, including relevant documentation concerning test patterns, prototypes, testing equipment, exploitation of inventions and granting of industrial property rights in the area of technical sciences performed by AC2T research GmbH, hereinafter referred to as AC²T.

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Status: 01.01.2021

1 General Provisions

1.1 AC²T accepts commissions, sells, rents and supplies goods on the basis of these General Terms and Conditions. The terms specified below apply to all services performed by AC²T or a subcontractor named specifically by AC²T as part of its business activities for a client. The client’s terms and conditions will not be acknowledged for AC²T’s legal transactions on the basis of these General Terms.

1.2 Deviations from these General Terms and Conditions and in particular the client’s terms and conditions will be valid only after an expressed, written acknowledgement confirmation in the AC²T confirmation of order by AC²T. This also applies to annulment of the written form.

1.3 The place of performance of the supply or service and payment is the head office of AC²T.

2 Prices and Cost Estimates

2.1 All prices are in Euros (€, EUR), and, if not specified, do not include the costs of transport, insurance, installation or setup, or value-added tax. The client will be invoiced these amounts specifically, if necessary.

2.2 Prices are calculated on the basis of prices and cost rates valid on the day of the commission, insofar as the written confirmation of the contract does not specify otherwise.

2.3 Calculations of a price quote and cost estimates are made according to expert knowledge. However, there is no guarantee of their correctness.

2.4 If preliminary discussions concerning a project are conducted with a potential client for the purpose of definition of a task to be performed by AC²T and they take on the character of a search for solutions or consultation, the actual amount of time and effort involved will be invoiced in the event of a commission as part of said commission, or it will be invoiced by AC²T should no commission result.

2.5 If a client is informed in advance that preparation of an offer or a cost estimate would involve certain costs for the offer preparation, and the client requests such an offer, AC²T will be entitled to invoice said costs.

2.6 Should the costs of labour between conclusion of the contract and provision of the service change due to internal transactions, or should other cost centres necessary for the calculation or provision of the service, such as those for materials, power, transports, third-party labour, financing, etc. change, AC²T will be entitled to raise or lower the prices accordingly. This provision does not apply to consumer transactions.

2.7 Additional work made necessary by changes that are not the responsibility of AC²T and require additional work on certain portions of services or reworking or alterations of certain portions of the commission, particularly as a result of official requirements, changes in relevant regulations/laws, shall be compensated according to the increase in the scope of performance.

2.8 If with the client’s agreement AC²T provides certain services above and beyond what was originally agreed upon, or if the client accepts such services, AC²T’s commission shall be enlarged to include said services, and the client shall remunerate AC²T for said additional services.

3 Scope of Performance

3.1 The task to be performed, the specific procedure to be employed in doing so and the nature of the service results to be produced will be determined in AC²T’s offer as far as this is not defined in separate written agreements or supplementary stipulations of the involved parties. Changes, supplements and/or extensions of the task, the procedure and the nature of the service results must be specified in a separate written agreement.

3.2 The contract relevant to an offer in which the specific service to be provided by AC²T is defined will come into existence when the client sends or delivers within the time period for acceptance either a written commission or some type of materials relevant to the contract (patterns, samples, etc.) and when AC²T in return sends confirmation of acceptance of the commission to the client or, in agreement with the client, demonstrably begins performing the activities specified in the offer.

3.3 All offers are subject to change. Any oral assurances, subsidiary agreements, etc. that deviate from these General Terms and Conditions or any other written declarations of intent, particularly those provided by employees, contractors, etc. will not be binding for AC²T. The content of brochures that AC²T use, advertising claims, etc. will not become an integral component of the contract.

3.4 Awarding a contract constitutes acceptance of these General Terms and Conditions in their entirety.

3.5 All agreements regarding software-related work (organisation, programming, system software, etc.) will represent separate legal transactions and require the conclusion of specific contracts with AC²T.

3.6 All provisions listed in an enclosure to an offer will be considered agreed upon, regardless of whether they are physically present in said offer.

4 Supply

4.1 Supply will be ex AC²T for the account and at the risk of the client. Deliveries to AC²T from the client will be for the account and at the risk of the client.

4.2 If AC²T arranges transport, the specific method and means employed will be left to AC²T’s discretion. In the event the client has special demands with regard to the means of transport, any additional costs that arise as a result will be at the expense of the client.

4.3 If dispatch by mail is not possible, the costs of packing the goods for transport will be at the expense of the client.

4.4 Partial deliveries will be acceptable.

4.5 The client must inform the forwarding company and AC²T of any complaints with regard to damage resulting from transport in writing and immediately after receipt, within eight days at the latest.

4.6 Storage and the costs thereof made necessary by reasons that lie in the client’s realm shall be borne by the client and shall be considered valid delivery.

4.7 Objectively justified and reasonable changes in the service and supply obligations of AC²T, particularly reasonable delays in delivery, are considered approved by the client in advance.

4.8 In the event that a transaction for supply by a fixed date has not been agreed upon, announced dates of delivery shall be considered approximate estimates. Force majeure and other unforeseen obstacles affecting AC²T or its subcontractors will release AC²T from observing the agreed delivery times.

4.9 Interruptions of operations or traffic and improper deliveries by subcontractors shall be considered force majeure and will exempt AC²T for the duration of the problem or, if so chosen by AC²T, definitely from the obligation to make a delivery without claims for the client arising from AC²T’s withdrawal.

4.10 If the announced delivery date is exceeded by more than thirty days and after a grace period of at least ninety days is set, the client will be entitled to withdraw from the contract by means of registered letter. AC²T will be entitled to withdraw in the event that fulfilment of the delivery is made impossible by an act of God, labour conflicts or other obstacles beyond AC²T’s control, such as interruptions of transport or production. In all such cases, AC²T is obligated solely to refund free of interest any sums of money it has received.

4.11 Before the delivery of testing equipment, the client shall in due time and at his expense make available a suitable setup location in conformity with AC²T’s specifications which offers the required hook-ups. AC²T can be commissioned to provide the necessary expert advice for this purpose for remuneration. In addition, the client shall examine the suitability of the means and route of transport from AC²T’s place of business to the setup location or, if necessary, create them at his expense. The installation and storage conditions must be considered in this case.

5 Terms of Payment

5.1 Accounts will be rendered immediately at delivery, if possible.

5.2 Payments are due after the rendering of accounts without any deduction and free of expense for AC²T as arranged in the payment conditions laid out in the AC²T offer or the AC²T confirmation of order. In particular, all fees relating to bank transfers will be at the client’s expense. The terms of payment set for the commission as a whole will apply analogously to partial payments.

5.3 Should the client employ public funds for a portion of the payment or the payment in its entirety, he obliges himself to inform AC²T of the amount employed at the time payment is made.

5.4 In the case of commissions that involve several partial deliveries (units), AC²T will be entitled to issue partial invoices after delivery of each unit or provision of each service.

5.5 The client is not entitled to withhold payments due to incomplete deliveries, guarantee or warranty claims, or complaints.

5.6 Payments received by AC²T will first discharge compound interest, interest and ancillary expenses, costs before proceedings, costs arising from consultation of an attorney and a collection agency, and then the outstanding principal, beginning with the oldest liability.

5.7 In the case of payment by means of bank transfer, credit card or check, the day AC²T’s account is credited will be considered the day payment is made.

5.8 In the event of a delay in payment, AC²T will charge default interest in an amount in accordance with according §352, UGB – 8 %/year interest above the base rate. In the event that two partial invoices are not paid, AC²T will be entitled to demand immediate payment in full and accelerate maturity of any accepted bills.

5.9 Payment by means of bill of exchange is subject to previous agreement and will be accepted as payment conditionally. All costs related to this type of payment will be at the expense of the client. AC²T will be entitled to demand collateral for such payments from the client.

5.10 Force majeure or other unforeseen obstacles in AC²T’s realm will release it from observation of the agreed-upon obligations without resulting in claims for the client to a reduction in price.

5.11 To the extent that this is not prohibited by the client in writing with regard to the commission, AC²T is entitled to employ its costs involved with providing the R&D service (commissioned research and development) ordered by the client in determination of the Austrian research allowance (“Forschungsprämie”).

5.12 Costs of Payment Reminders and Collection

5.12.1 In the event of a delay in payment, the client will be obliged to refund AC²T for all costs arising to it before a court proceeding, such as attorney fees and the cost of a collection agency.

5.12.2 To the extent that AC²T pursues the payment reminders itself, the client shall pay for each reminder € 20,- (tax-free) plus all interest and other costs.

5.12.3 In addition, the client shall compensate all other losses, particularly those losses caused by the correspondingly higher interest on any credit account held by the contractor as a result of non-payment, regardless of his responsibility for delay in payment.

6 Reservation of Title

6.1 AC²T reserves full title to its work (including interest and the costs of payment reminders and collection) or until checks or a bill of exchange provided as payment are honoured. The client must ensure for this period of time proper upkeep (maintenance and repair) at his expense. Hypothecation or transfer of ownership as security on a debt before payment is made in full will not be possible.

6.2 The client may neither use, sell nor permit a third party to use the work provided with reservation of title, except with the written consent of AC²T.

6.3 Should the client fail to properly fulfil his obligations arising from the contract, AC²T will be entitled to regain possession of its property at the expense of the client, who is obliged to surrender it. The client is obliged in this case to keep separate all earnings already obtained through the work and transfer them to AC²T immediately.

6.4 If the client fails to properly fulfil his obligations arising from the contract, AC²T will be released from all obligations to maintain secrecy and will be entitled to find another use for or sell the commissioned work.

6.5 In the event that the goods are attached or seized, the client will be obliged to inform AC²T within three days and provide AC²T with all information necessary for asserting its property right.

6.6 In the event that a third party seizes or successfully asserts claims to the goods to which AC²T possesses property rights, the client will be obliged to point out the fact that the goods in question are the property of AC²T.

6.7 The assertion of a property right by AC²T will not entail AC²T withdrawing from the contract.

7 Usage of Work, Industrial Property Rights, Commissioned Inventions

7.1 The work produced by AC²T (e.g. test results, analyses, evaluations, methods, plans, sketches, models, other kinds of records and written documents) is protected by copyright. All rights to results produced by AC²T’s dependents in the course of the commissioned rendering of services will be the property of AC²T. Authorisation or a right for the client to use the work will not derive solely from the fact that a commission was extended. In the event that the contract was fulfilled in its entirety only will the client receive the right to use the work for its contractually specified purpose.

7.2 Remuneration of the work compensates solely its use for the agreed purpose. Industrial property rights applying to the work results (patent rights, trademark property rights, design copyrights, copyrights, in particular mention in publications, etc.) will remain the property of AC²T in the absence of agreements to the contrary. AC²T, as the holder of rights as defined in Article 7.1, will for a fee grant the client a right of use and sublicensable exploitation right, in particular industrial property rights, to the results – if necessary exclusive and unlimited by time– for clearly defined areas of application or market areas.

7.3 The employees and subcontractors of AC²T are obligated by contract to immediately inform AC²T of results capable of being protected by industrial property rights that are produced in the course of their activities and transfer all rights to AC²T without limitation for the purpose of an application for industrial property rights.

7.4 Solely in the course of commissions with the express purpose of producing research and development results that are capable of being protected by industrial property rights does AC²T oblige itself to immediately inform the client of results produced in the course of the commission that are obviously capable of being protected by industrial property rights (see Article 7.3) and, assuming payment in full for the commission and inventor royalties, to transfer these rights to the client without limitation for the purpose of an application for industrial property rights. In such a case, the client shall assume all costs of the inventor royalties.

7.5 Either the legal provisions with regard to inventor royalties or the client’s relevant provisions with regard to inventor royalties, depending on which provisions are more favourable for the inventor, apply to remuneration for commissioned inventions for AC²T’s employees and subcontractors as specified in Article 7.3.

7.6 If the client commissions AC²T to perform a detailed analysis (formula) of a material (sample), the client guarantees AC²T that he is authorised to use (e.g., holder of patent) the sample (formula) so that no third-party rights (e.g., patent rights, trademark rights, rights of use or other industrial property rights) might be violated by analysis of the sample, disclosure of its composition, or its utilisation and processing. This guarantee will also apply should the client become aware of third-party rights (e.g., industrial property rights) after the fact (i.e., after the commission has been extended and processing of the sample). The client shall indemnify AC²T and hold it harmless with regard to any and all claims and demands of third parties that result from a violation of rights stemming from analysis of a sample, and will impose this indemnification on its legal successor.

7.7 AC²T will be entitled to make unlimited use of the generally available data and information it discovers (including in digital form) in the course of rendering the service. Such data and information can also be used in fulfilling another commission.

8 Withdrawal from Contract (does not apply to distance-selling transactions (see Article 9))

8.1 In the event of default in acceptance or another important reason, especially the opening of insolvency proceedings involving the client or their rejection due to the absence of assets, and in the event the client is delinquent in making a payment, AC²T shall be entitled to withdraw from the contract to the extent that it has not yet been fulfilled in its entirety by both parties.

8.2 In the event the client is delinquent in making a payment, AC²T will be released from all other obligations with regard to service and supply.

8.3 If the client withdraws from the contract without a legitimate reason or desires its annulment, AC²T will have the choice of insisting on its fulfilment or agreeing to its annulment.

9 Distance-selling Transactions

9.1 “Distance-selling” involves a contract concerning a consumer transaction which is concluded without the client being physically present, e.g. by means of order forms, advertisements, telephone, fax, internet, e-mail, etc.

9.2 A distance-selling transaction with the client is valid only after AC²T offers or confirms the commission in writing, indicating the company’s name, its address and the most important characteristics of the goods involved, the price and cost of delivery.

9.3 If the client is a consumer, he can withdraw from a contract concluded as part of a distance-selling transaction within seven business days, whereby Saturday is not considered a business day. If AC²T fails to provide the required information, the time period will amount to three months.

9.4 Expressly excluded from the consumer’s right to cancel a contract in a distance-selling transaction are goods and services that conform to the client’s specifications, audio and video recordings and software, when the seal has been broken. Furthermore, this also applies to services for which performance has begun according to the agreement within seven working days after conclusion of the contract, newspapers and magazines, except for contracts concerning other periodicals. Contracts listed in Art. 5b of the Consumer Protection Act are also excepted.

9.5 Otherwise, the relevant provisions of the Consumer Protection Act will apply to distance-selling transactions.

10 Returns of Goods

10.1 Returns of goods will be accepted only in the event of an error in their delivery and if they are returned in perfect, unused condition within eight days after receipt by the client.

10.2 When goods are returned, the client will be entitled to invoice any costs of shipping and handling.

11 Assignation of Claims and Offsetting

11.1 In cases of supply with reservation of title, AC²T’s client assigns his claims against third parties with the acceptance of the delivery, to the extent that they arise from the sale or use of AC²T work, until the final payment of AC²T claims in return. The client shall upon AC²T demand name his clients and inform him of the assignment in due time.

11.2 Claims against AC²T may not be assigned by the client without express consent.

11.3 Offsetting an alleged counterclaim on the part of the client against claims of AC²T will not be possible, unless such counterclaim has been established by a court or acknowledged by AC²T in writing.

12 Guarantee, Warranty and Liability

12.1 No guarantee, warranty or liability will be assumed for research and development services in the form of knowledge or results.

12.2 In the case of delivery of test patterns, prototypes, testing equipment or software programs:

12.2.1 The client recognises the fact that the deliveries/services involve test patterns, prototypes, testing equipment or software programs in the form of special machines and one-of-a-kind fabrications. Guarantees or warranties are not possible to the extent they are not detailed explicitly in the confirmation of order.

12.2.2 If a client supplies materials or semi-finished products intended for the production of test samples or prototype parts free of charge to be processed at AC²T, and if this processing leads to a loss in value of said supplies, no guarantee, warranty, or liability shall be granted by AC²T if not explicitly mentioned in the confirmation of order.

12.2.3 While guarantees or warranties may be detailed explicitly in the commission, all wearing parts, accessories and repairs made necessary by third-party actions are excluded. If the subjects of the contract are employed together with third-party equipment and/or programs, a guarantee will be in force for faulty function and service of the subjects of the contract only when such faults or defects appear regardless of such a combination.

12.2.4 If the supplied goods prove to be faulty or defective, the client will at first be entitled solely to demand their improvement or exchange, unless such improvement or exchange is impossible or would involve unreasonable expense or effort for AC²T compared with other remedies. Whether this is the case will also be decided in part by the value of the goods in question when free of defect, the seriousness of the defect and inconveniences other remedies would involve for the transferee. AC²T obliges itself to make improvement or exchange within a reasonable period of time after the client hands over the goods.

12.2.5 Are both improvement and exchange impossible, or would they involve disproportionately high expense or effort for AC²T, the client will be entitled to a reduction in price or, to the extent that more than solely minor defects are involved, conversion. The same applies in the event that AC²T refuses to make improvement or exchange or fails to do so within a reasonable period of time, these remedies involve considerable inconvenience for the client, and they would be unreasonable for sound reasons involving AC²T.

12.2.6 The client must assert his right to a warranty for movable and immovable property as defined by Art. 933 of the General Civil Code in court within a period of six months. This provision does not apply to consumer transactions as defined in the Consumer Protection Act.

12.2.7 Additional guarantees can be commissioned above and beyond the warranty. The conditions in question apply to these services also. Should such a guarantee be provided, AC²T declares that this guarantee will not limit the client’s right of warranty.

12.2.8 If AC²T must resolve a considerable defect of a software program, the client is obliged for the purpose of more detailed examination of any errors to make available to AC²T the computer system he uses, the software program, logs, diagnosis data and data to a reasonable extent for testing purposes. They must be available during AC²T’s normal working hours and at no expense, and the client will support AC²T in these efforts.

13 Product Liability

13.1 Demands for recourse pursuant to Art. 12 of the Product Liability Act will not be possible unless the party entitled to recourse is able to prove that the error is in the realm of AC²T and is the result of gross negligence at the least.

14 Confidentiality

14.1 AC²T is obliged to maintain confidentiality concerning all knowledge, results, written documents, etc. that become known to it in connection with a commission or that come into its possession, and also to impose a similar obligation on its dependents. AC²T shall apply to maintaining confidentiality the usual care it applies to its own affairs at the least.

14.2 The client is obliged to maintain confidentiality concerning all knowledge, results, written documents, etc. from AC²T not involving the commission that become known to him in the course of cooperation or that come into his possession.

14.3 The obligation to maintain confidentiality pursuant to Art. 15 of the Data Protection Act also applies notwithstanding any other obligations or other declarations concerning confidentiality relating to projects AC²T is working on.

14.4 Documents held by AC²T may not be removed from its place of business in any way, physically or in electronic form, without AC²T’s approval.

14.5 All these obligations to maintain confidentiality also apply for a period of three years after completion of the commission. The client can request the return of written records he has made available after completion of the commission at the latest. Test patterns, prototypes, etc. will remain in the possession of AC²T if no other arrangements have been agreed upon in contractual form.

14.6 Every grossly negligent violation of the provisions concerning confidentiality will entitle AC²T or the client to dissolve the contract and assert claims for compensation. The right to legal prosecution will remain reserved.

14.7 AC²T, and in the same way the client, will be entitled to make note of their cooperation for marketing purposes, assuming that no other arrangements have been agreed upon in contractual form.

14.8 Excluded from the obligations to maintain confidentiality are knowledge and results that can be proven to belong to the state of the art when knowledge of them was obtained and therefore to already be public knowledge, or that became widely known without any action on the part of one of the contractual parties or any of their dependents after knowledge of them was obtained, the contractual party was already in possession of such knowledge, such knowledge was provably obtained legitimately from third parties, or such knowledge was publicised elsewhere without reservation or was approved for publication.

14.9 Communications to third parties that involve information subject to confidentiality are permissible only to the extent that the other contractual partner has provided written consent or such communication is vital to work on the commission in question, and only then provided that the third party involved has been obliged to maintain confidentiality. Companies legally affiliated with the contractual parties shall not be deemed third parties.

15 Publications

15.1 Publication represents any and all forms of publicising knowledge or results, particularly in print or electronic media, through presentations or lectures or any other means.

15.2 Regarding publications it shall be noted that trade secrets that have become known to the dependents of the client or of AC²T during the course of their cooperation shall be kept strictly confidential.

15.3 Publication of results obtained in the course of a commission will be possible only after clarification of the relevant details or application of all industrial property rights and in consideration of the obligations to maintain confidentiality.

15.4 Publication by AC²T of knowledge or results obtained in the course of a commission requires the written consent of the client. If the client has failed to refuse consent within six weeks after presentation of a publication proposal, publication is permissible. Consent will not be required in the event the client has failed to make payment in due time and in full for a completed commission, the publication relates to solely a portion of the commission that AC²T produced independently, and the publication does not contain any other confidential knowledge of the client from the commission in question.

15.5 AC²T must be notified of publications by the client involving knowledge or results produced by AC²T in due time so that AC²T is able to advise the client concerning any possibly misleading or unclear formulations.

15.6 For publications as defined in Article 15.4 or 15.5, the other contractual party can determine the form in which the party is mentioned. In any scientific publications concerning knowledge or results produced by AC²T, AC²T must be mentioned.

15.7 The main author will provide the client and AC²T a copy each, preferably in electronic form, of each scientific publication (of knowledge and results obtained in the course of a commission).

15.8 University students who as part of their studies work on AC²T’s commissions with the client’s approval will be enabled to use their research work in the form of internship reports, theses or dissertations. A publication ban of said papers will be possible on the basis of statutory university regulations and, if necessary, can be enforced in coordination with the client for a customary time period, particularly for clarification and application of applicable intellectual property rights.

16 Jurisdiction and Applicable Law

16.1 In the absence of agreements to the contrary, the relevant provisions for fully qualified merchants will apply. This contract will be governed by and construed according to the laws of Austria.

16.2 In the event of disputes, contractual parties can apply to a court of arbitration according to Austrian arbitral proceedings.

16.3 In the event of disputes, the contractual parties agree to submit to the local jurisdiction of the responsible court of Wiener Neustadt.

16.4 Austrian substantive law will apply to the exclusion of every other legal system.

17 Protection of Data and Change of Address

17.1 The client consents to automated storage and processing by AC²T of personal data contained in the sales contract in fulfilment of said contract.

17.2 The client is obliged to inform AC²T of changes of his address and other data that affect his legal personality as long as the legal transaction that constitutes the subject matter of this contract has not yet been fulfilled in its entirety by both parties. If this is not done, a declaration devoted to the client and sent to the last address made known will be considered received.

18 Final Provisions

18.1 The provisions above apply to sales to consumers pursuant to the Consumer Protection Act solely to the extent this act does not contain other obligatory provisions that conflict.

18.2 This version of the Terms and Conditions is valid from January 1, 2021 and replaces all previous versions.

18.3 If any provisions of these Terms and Conditions be or become invalid or ineffective, all other provisions will remain in full force and effect.

18.4 In case of necessary clarifications or interpretations of the English language version, in doubt, the German version of the General Terms and Conditions is legally binding.