Terms and Conditions of Business
You, your vintage car and us - and what binds us
We refer to the General Terms and Conditions of Business of HÖDLMAYR INTERNATIONAL AG as well as HÖDLMAYR Logistics GmbH as well as those issued by the Austrian Chamber of Commerce.
General Terms and Conditions of Business
1.) CONCLUSION OF CONTRACT AND SCOPE
These General Terms and Conditions of Business shall apply for all offers and agreements insofar as Hödlmayr Logistics GmbH or Hödlmayr International AG (abbreviated as “HÖD”) are providers or contractual partners. Written or verbal orders received by HÖD from the contractual partner (abbreviated as “VP”) shall apply as the client’s offer, which shall be initially accepted via written confirmation of order by HÖD, silence on HÖD’s part shall neither be deemed as consent nor acceptance. The applicability of the VP’s General Terms and Conditions of Business shall be expressly excluded – even if reference is made thereto.
Excluding in cases of express reference, the agreed price shall not contain the value added tax, unanticipated expenses, insurance or packaging to be separately remunerated, which shall be invoiced separately. It shall only be valid for the specific agreement and shall be restricted with respect to time to the agreed date of performance. Quotes and agreements shall apply exclusively for the agreed service, deviations from this shall be settled separately.
3) PAYMENT CONDITIONS:
HÖD reserves the right to partial deliveries and partial settlements. All invoices shall be promptly paid in cash without deduction and free of expenses. In the event of delayed payment, interest on arrears shall be charged in the standard banking amounts, at least, however, 7% above the discount rate of the national bank or a successor underlying of equal value from the date following the applicable due date. The VP shall be obligated in the event of its delayed payment to reimburse all of the pre-litigation expenses, such as in particular dunning and collection expenses. HÖD shall in particular be entitled for its own dunning letters to request an amount of 10.90 euros from the client for each issuance of a reminder as well as an amount of 3.60 euros per half year for record keeping of the obligation in the dunning process. If payment via bill of exchange or cheque is agreed then all bill of exchange and discount expenses shall be borne by the VP.
4.) TRANSPORT, STORAGE AND SHIPPING ORDERS:
The provisions of these General Terms and Conditions of Business shall apply insofar as the Convention on the Contract for the International Carriage of Goods by Road [CMR] or the General Austrian Forwarders' Terms and Conditions [AÖSp] do not apply or special regulations do not exist in this Paragraph 4. The Convention on the Contract for the International Carriage of Goods by Road [CMR] shall be applicable to all contract of carriage agreements, also national, moreover the General Austrian Forwarders' Terms and Conditions [AÖSp] are agreed – insofar as they do not conflict with mandatory provisions of the Convention on the Contract for the International Carriage of Goods by Road [CMR]. A separate transport insurance must be applied for in writing at the latest 3 days prior to the execution of the order.
a. Reservations upon delivery of the transport goods must contain detailed information regarding damages. In the case of non-joint inspection of the cargo and timely written notification of a damage, HÖD or a third party it has authorised shall be immediately granted the possibility to inspect the damages and notified in writing, when and where such inspection is possible, failing which is shall be assumed that the damage has not occurred while in HÖD’s custody.
b. For all damages resulting from the agreed use of open vehicles not covered with tarpaulins, such as bumps, scratches, paint chips and paint damages etc., HÖD’s obligation to compensate for damages shall be expressly excluded.
c. All non-standard special equipment parts, accessories, other objects found in vehicles etc. shall be reported in writing when placing the order, otherwise it shall be assumed that these objects were not present upon acceptance.
d. If the vehicles to be transported are unsafe or not roadworthy and operational or if other particulars are to be observed, this shall be reported in writing when placing the order. In addition, the VP shall make the transport goods available in such condition as to enable problem-free loading by one’s own efforts and secure transport of the transport goods. In the case of vintage car transports and special vehicles, it must be disclosed in writing when placing the order if special handling is required. The client shall determine the suitability of the vehicles for transport in open, transport units not covered by tarpaulins (for example, resistance to wind, weather etc.) and if need be correspondingly package the transport goods without thereby compromising the loading and unloading ability on or of our transport units. The client shall be liable for damages, which arise due to insufficient suitability or defectiveness of the transport goods. If unimpeded execution of the transport is not possible due to local conditions the client shall handle the removal of the obstacles or assume additional costs resulting from route changes.
e. The VP shall ready the vehicles for collection free from dirt, ice and snow, otherwise an inspection of the transport goods for damages or suitability for transport will not be possible. HÖD shall not be obligated to free the vehicle from dirt, ice or snow prior to acquisition. Upon acquisition damages reported by the recipient shall not apply as have arisen during HÖD’s custody if they were not visible upon collection for the aforementioned reasons. If the VP’s vehicle to be transported shows fluid discharges or loose parts it shall be liable for the consequential costs incurred.
f. The transport shall be carried out with open vehicles not covered by tarpaulins. Damages and losses caused by this shall be excluded from the obligation to pay compensation.
g. The loading and unloading of the transport goods is not included in the transport order. HÖD shall to this end provide the respective lorry driver or third persons free of charge to the consignor or recipient, who shall act exclusively at the instruction of the consignor or recipient. Consignor and recipient must ensure that they are present at the loading and unloading, otherwise the persons provided shall undertake the loading and unloading with the customary diligence at the VP’s risk.
h. Defects must be reported in writing immediately upon acquisition or be otherwise excluded. The recipient shall ensure that an authorised person is present at delivery and accepts the cargo, otherwise demurrage shall be due in addition to the agreed transport price. HÖD shall in this case also be entitled to park the transport goods at the place of delivery. Complaints shall be immediately asserted in writing upon delivery in absentia by 12 noon of the next workday at the latest and shall be limited to damages obviously occurring during HÖD’s custody, the VP shall bear the burden of proof for this. Damages in excess thereof shall not apply as having arisen during this time. In any event HÖD must be immediately granted the possibility of inspection in writing.
i. For delays in the collection, transport or delivery, for which the VP or its assigned persons are responsible, HÖD shall be entitled to compensation for additional expenses, in particular also a demurrage fee of €45 per hour.
5.) RETENTION OF TITLE:
Delivered goods shall remain HÖD’s property until full payment. The goods may neither be pledged nor assigned as security without HÖD’s consent. The VP shall be entitled to resell the delivered goods prior to complete payment of the agreed price only if it the sold goods are released from the retention of title by simultaneously paying the delivery price percentage, which corresponds to the volume of goods. If the VP does not duly meet its contractual obligations then HÖD shall be entitled at any time to reclaim its property at cost to the VP and the VP shall be obligated to surrender it. In this event the VP shall be obligated at HÖD’s request to compensate for disadvantages of every kind it has caused, due to circumstances within its sphere.
6.) PLACE OF PERFORMANCE, PLACE and TYPE OF DELIVERY
Place of performance for the delivery/service as well as for payment – insofar as not otherwise agreed – shall be HÖD’s head office. The delivery period shall begin upon the legally valid conclusion of the contractual agreement and shall end on the date, on which the good are delivered and/or service has been rendered or the goods have been made available for collection or delivery or the service has been duly offered. No warranty or guarantee shall be assumed for a specific delivery date but rather the agreed delivery dates are fundamentally only approximate values, insofar as fixed dates are not expressly set forth in the contractual content. HÖD shall endeavour to as closely as possible adhere to the agreed delivery dates precisely. If the stated delivery date is exceeded by more than 30 days the VP shall be entitled to withdraw from the contractual agreement, after setting an additional grace period appropriate to the type and scope of the order – at least however 90 days – by means of registered letter. HÖD can also withdraw if the delivery/service is impossible, due to force majeure or other unavoidable obstacles not within the sphere of HÖD. In both cases HÖD shall remain entitled to demand the agreed price, insofar as this does not result in unfair enrichment. The delivery/service shall be effected at cost and risk to the VP, partial deliveries and services are possible. The loading, transport and shipment of the goods to be delivered shall in all cases be effected at the VP’s risk if not otherwise agreed or statutory provision do not oppose this. Transport insurance policies shall only be purchased at the client’s express request.
7.) DELAYED ACCEPTANCE:
The VP shall be obligated to immediately accepted the agreed delivery/service. In the case delay on the part of the VP, HÖD shall reserve its entitlement to consideration (payment). The delivery/service shall be deemed rendered on the date on which the acceptance should have been contractually effected.
8.) GUARANTEE AND COMPENSATION FOR DAMAGES:
HÖD shall guarantee to the VP according to law that the goods are free from defects at the moment of acquisition. Claims under warranty and guarantee shall be in any event excluded if the object of purchase has been altered or improperly handled. Upon acquisition the VP shall inspect deliveries and services and immediately report any recognisable defects in writing. Assurances of warranty or guarantee by the manufacturer or another third party cannot be asserted vis-à-vis HÖD. The special right of recourse vis-à-vis HÖD under § 933b of the Austrian Civil Code [ABGB] shall be excluded. HÖD shall not be liable for compensation for damages in the case of slight and gross negligence. Moreover HÖD shall not be liable for loss of profits or consequential damages. Liability shall not be assumed for damages and disadvantages due to delayed delivery and/or service. The VP shall call upon HÖD by setting an appropriate deadline for damage repairs or otherwise forfeit the compensation claim. Damage repairs and attempted improvements shall be exclusively carried out by HÖD or its authorised agents and a right to replacement shall not exist until improvements prove impossible. Rights to compensation shall be limited to the amount of compensation of the business liability insurance.
9.) PRODUCT LIABILITY:
HÖD’s and its supplier’s (vendor’s) obligation to compensation under the Austrian Product Liability Act [PHG] or other product liability provisions shall be excluded with respect to those damages, which are caused by HÖD’s defective products and raw materials put into circulation, to objects that are used by a business person in the framework of its company. If HÖD’s products or parts of products are passed on by the VP then it shall be obligated to fully transfer this exclusion of liability to its buyer, and in fact also to obligate all further buyers with this binding obligation. The VP hereby waives in advance all rights of redress against HÖD or its suppliers, to which it would be entitled pursuant §12 of the Austrian Product Liability Act [PHG]. In the event HÖD’s products or parts of products are passed on by the VP, said party shall be obligated to fully transfer this waiver to its buyer, and in fact also to obligate all further buyers to this binding obligation. HÖD shall not guarantee that the products, which have been passed on by the VP, are free from defects or that parts of the products manufactured by the VP or by its buyers are free from defects in terms of the Austrian Product Liability Act [PHG].
The VP’s offsets or assertion of a right of retention against any of HÖD’s claims shall only be permissible with a legally determined or undisputed counterclaim.
11.) DATA PROTECTION:
For the confidentiality of electronically transmitted data the same principles shall apply as for the other business transactions of the contractual partners. Electronically transmitted data may only be used for the contractual purpose. The principles of proper data processing and storage shall be adhered to. Data subject to data protection laws, shall be treated correspondingly.
12.) FINAL PROVISIONS:
Exclusively the Linz an der Donau District or Regional Court shall be agreed for all conflicts under this agreement, depending upon jurisdiction for the subject matter, insofar as relating to the transport orders, this shall apply as additional jurisdiction, acc. to Art. 31 of the Convention on the Contract for the International Carriage of Goods by Road [CMR]. For Riola repair orders primarily the General Terms and Conditions of Business for the HÖD “Riola” repair method shall apply. If individual parts of these General Terms and Conditions of Business are or become ineffective or invalid it shall not affect the remaining agreement. The relevant provisions shall be replaced via interpretation, pursuant § 864 of the Austrian Civil Code [ABGB] using such provisions that best satisfy the originally intended purpose. The mandatory provisions of the Austrian Employment Protection Act [KSchG] shall not be affected by these General Terms and Conditions of Business. The legal effectiveness, interpretation and satisfaction of the General Terms and Conditions of Business as well as all legal relationships between HÖD and the VP shall be exclusively subject to Austria Law.
Version: March 2009