valid for Hödlmayr International AG (FN 144567 z), Hödlmayr Logistics GmbH (FN 76945 f), Hödlmayr High & Heavy GmbH (FN 89549 s) and Hödlmayr Rail Logistics GmbH (FN 463903 k)
1.) CONTRACTUAL AGREEMENT AND AREA OF APPLICATION
These General Terms and Conditions of Business apply to all quotations and contracts where Hödlmayr International AG, Hödlmayr Logistics GmbH, Hödlmayr High & Heavy GmbH or Hödlmayr Rail Logistics GmbH (“HÖD” for short) are the offerors, or contractual partners. Written or verbal orders received by HÖD from the contractual partner (“CP” for short) are valid as a customer offer, which will first be accepted through a written order confirmation from HÖD. Under no circumstances shall silence on the part of HÖD be seen as agreement or acceptance. The application of the general terms and conditions of business of the CP is expressly excluded even when these are referred to.
Unless expressly stated, the agreed price shall not contain the value added tax to be paid separately, unforeseen expenses, insurance or packaging, which will be included individually in the invoice. The price shall only be valid for the concrete contract and is limited in time to the agreed date of performance. Quotations and contracts shall apply solely to the agreed service; deviations therefrom will be invoiced separately.
3.) CONDITIONS OF PAYMENT
HÖD retains the right to make partial deliveries and present part invoices. All invoices are to be paid promptly in cash without deductions and free of charges. In the case of payment defaults, interest on arrears will be levied at the standard bank rate, but at a minimum at least 7% above the discount rate of the National Bank, or an equivalent successor system on the day after the due date for payment. In the case of a payment default, the CP undertakes an obligation to compensate for all pre-litigation costs, e.g. reminder and collection expenses in particular. HÖD shall also have a special entitlement to charge the customer an amount of EUR 15.00 for each of its reminders.
4.) TRANSPORT, STORAGE AND FORWARDING ORDERS
These Terms and Conditions of Business shall apply, unless mandatory legal provisions are to be employed, or special regulative aspects exist in this Item 4. The uniform legislation contained in the Convention on the Contract for the International Carriage of Goods by Road (CMR) and the Contract for the International Carriage of Goods by Rail (CIM) is to be applied to all forwarding orders, including those of a national nature, and in addition, the General Austrian Forwarders Terms and Conditions (AÖSp) are also taken as agreed, unless these contradict mandatory legal provisions contained in the CMR and CIM. At the latest, separate transport insurance must be applied for in writing 3 days prior to the completion of the contract.
a. Reservations relating to the delivery of the goods transported shall contain detailed information with regard to damage. Should the cargo not have been examined jointly and written notification of damage is provided punctually, HÖD, or a third party that it has commissioned, shall be provided with an immediate opportunity to view the damage and be informed in writing when and where such an opportunity will be possible. Failing this, it will be assumed that the damage was not incurred during the custody of HÖD.
b. An obligation to pay compensation on the part of HÖB for all damage resulting from the agreed use of transport not covered by tarpaulins such as dents, scratches, paintwork splintering and damage is expressly excluded.
c. All special, non-standard equipment parts, accessories and other objects contained in vehicles, etc. are to made known in writing upon the allocation of the contract, otherwise it will be assumed that these items were not present at the time of the handover.
d. If the vehicles to be transported are not ready or safe to be driven or operated, or if other special features are to be taken into account, this shall be made known in writing upon the allocation of the contract. In addition the CP shall provide the goods to be transported in a condition that allows the problem-free, unassisted loading of the cargo and safe transportation. In the case of transports involving veteran and special vehicles, upon the allocation of the contract it shall be made known in writing if this will require a special service. The suitability of vehicles for transportation in open transport units (wind-, weather- resistance, etc.) not covered by a tarpaulin shall be assessed by the customer and if necessary the transport goods must be packaged appropriately and in a manner that does not interfere with loading on and unloading off our transport units. The customer shall be liable for any damage arising from a lack of suitability, or the defectiveness of the transport goods. If due to local conditions, an unhindered completion of transportation prove impossible, the customer shall ensure the removal of such obstacles, or accept the additional costs emanating from a change of route.
e. The CP shall not provide vehicles ready for collection in a dirty, ice- or snow-covered condition, otherwise an examination of the cargo with respect to damage and its suitability for transportation will not be possible. HÖD shall not be obliged to free a vehicle from dirt, ice or snow prior to handover. Complaints regarding defects from the recipient upon delivery shall not be seen as having occurred during the custody of HÖD, if for the reasons stated these were not visible upon collection. In the case of escapes of liquid or loose parts on the vehicle to be transported, the CP shall be liable for the resultant costs.
f. The transport is completed with an open means of transport not covered by a tarpaulin.
Resultant damage and losses are excluded from an obligation to pay compensation.
g. The loading and unloading of the cargo is not covered by the transportation contract. In the case of truck transports, for this purpose HÖD provides the sender and the recipient with the respective driver or third persons free of charge, who act solely according to the instructions of the sender or the recipient. The sender and the recipient shall ensure that they are present during loading and unloading, otherwise the personnel provided will complete loading and unloading with standard due care at the risk of the CP.
h. Written claims regarding defects must be made immediately upon acceptance otherwise they will be excluded. The recipient shall ensure that during delivery an authorised representative is present and accepts the transported goods. Failing this, demurrage will be charged in addition to the agreed transport price. In such a case, HÖD shall also be entitled to deposit the transported goods at the place of delivery. At the latest, claims relating to deliveries in absentia shall be submitted in writing by 12 noon on the following work day and are limited to damage that has clearly occurred during HÖD custody. The burden of proof shall lie with the CP and further damage shall be seen as not having occurred at this time. In all cases, HÖD shall be immediately provided in writing with an inspection opportunity.
i. For delays regarding collection, transportation or delivery for which the CP, or persons with which it is associated are responsible, the HÖD shall be entitled to compensation for the additional expense and in particular, demurrage at a rate of €65 per hour.
5.) RETENTION OF TITLE
Until payment in full has been completed, the goods delivered shall remain the property of HÖD. The goods may neither be conveyed nor indemnified without the prior consent of HÖD. The CP shall only be entitled to make a further sale prior to the complete payment of the agreed price, if it has been released from the retention of title through the simultaneous payment of the portion of the delivery price that corresponds with the volume of the goods sold. Should the CP fail to fulfil its contractual obligations in an orderly manner, at the expense of the CP HÖD shall be entitled at any time to reclaim its property, which the CP is duty bound to release. In this case, at the request of HÖD, the CP shall be obliged to compensate for any type of disadvantage caused by circumstances within its sphere of influence.
6.) PLACE OF PERFORMANCE, DELIVERY TIME AND TYPE
Unless otherwise agreed, the place of performance for the delivery/service, as well as payment shall be the business seat of HÖD. The delivery period commences with the legally valid conclusion of the contractual agreement and ends on the day on which the goods are delivered, the service is provided, the goods are kept in readiness for collection or delivery, or the service was offered correctly. No warranty or guarantee is accepted for a specified delivery period. Instead agreed delivery periods are basically only approximations, unless fixed dates are expressly contained in the contractual content. HÖD makes every effort to adhere to the agreed delivery dates as precisely as possible. If the given delivery date is exceeded by more than 30 days, following the setting of a further, reasonable extension of at least 90 days in line with the type and scope of the order, the CP shall be entitled to withdraw from the contractual agreement by means of registered letter. HÖD shall also be entitled to withdraw when owing to force majeur or other insurmountable obstacles beyond its sphere of influence, the delivery/service is impossible.
In both cases, HÖD shall be entitled to demand the agreed price, where this does not result in enrichment. The delivery/service shall take place at the expense and risk of the CP, and partial deliveries and services are possible. In all cases, unless otherwise agreed or precluded by statutory provisions, the loading, transport and delivery of the goods to be supplied take place at the risk of the CP. Transport insurance is only undertaken at the express wish of the customer.
7.) ACCEPTANCE DELAY
The CP shall be obliged to accept the agreed delivery/service without delay. In the case of a default on the part of the CP, HÖD shall retain its right to consideration (payment). The delivery/service shall be regarded as provided on the day on which acceptance was due in accordance with the contract.
8.) WARRANTY AND DAMAGE COMPENSATION
According to law, HÖD provides the CP with a warranty that the goods are defect-fee at the time of handover. Warranty and guarantee claims are in all cases excluded when the object of purchase has been altered or incorrectly handled. Upon acceptance, the CP shall examine deliveries and services and immediately register recognisable defects in writing. Warranty and guarantee commitments of the manufacturer or other third parties cannot be asserted against HÖD. The special right of regress against HÖD pursuant to § 933b of the Austrian Civil Law Code is excluded. HÖD shall not be liable for damage compensation in the case of minor and gross negligence. In addition, HÖD shall not be liable for lost profits or consequential damages. No liability is accepted for damage and disadvantages emanating from late deliveries or services. Should the claim to compensation be otherwise lost, the CP shall request HÖD to repair the damage within a reasonable period. Damage repairs or attempts at correction shall be completed solely by HÖD or its representatives and a claim to replacement shall only exist should rectification prove impossible. Claims for damages shall be limited to the amount of the business liability insurance payment.
9.) PRODUCT WARRANTY
The compensation obligation of HÖD and its suppliers (sub-suppliers) pursuant to the Austrian Product Liability Act or other product liability regulations is excluded with regard to any damage to items used by a business person within the scope of his/her company, which results from defective products and raw materials brought into circulation by HÖD. In the case of the passing on of products or parts of products from HÖD by the CP, the latter is obliged to transfer fully such exclusion of liability to the recipient and through this inclusive obligation also to all further recipients. The CP waives in advance all rights to regress against HÖD or its suppliers/sub-suppliers to which it would be entitled according to §12 of the Product Liability Act. Should products or parts of products from HÖD be passed on by the CP, it shall be obliged to transfer this waiver in its entirety to the recipient and through this inclusive obligation, also to all further recipients. HÖD does not guarantee that the defect-free products passed on by it to the CP are also defect-free pursuant to the Product Liability Act when used as parts manufactured by the CP or its recipients.
Offsetting or the assertion of the retention of a right of title against any claims by HÖD by the CP shall only be permitted with a legally determined or uncontested counterclaim.
11.) CANCELLATION CONDITIONS
Should a contract be cancelled after we have begun to fulfil the contract, to which preparation work also counts, in every case 40% of the contractual amount will be invoiced as a cancellation charge, without prejudice to the assertion of any additional claims.
12.) DATA PROTECTION
The same basic principles apply to the confidentiality of data transferred electronically as those applicable to other business dealings between the contractual partners. Electronically communicated data may only be employed for the contractual object. The basis principles of correct data processing and storage shall be observed. Data subject to protective legislation shall be handled accordingly.
13.) FINAL PROVISIONS
It is agreed that depending upon judicial competence, all disputes arising from this contract shall be dealt with solely by the District or Regional Court at Linz an der Donau and where transport contracts are affected this shall also be seen as an additional judicial seat pursuant to Article 31 CMR. Primarily, the General Terms and Conditions of Business for HÖD’s “Riola” repair method shall apply to “Riola” repair orders. Should individual provisions of these General Terms and Conditions of Business be or become ineffective or invalid, this shall not affect the validity of the remainder of the contract. In accordance with
§ 864 of the Austrian Civil Law Code, the provisions affected shall be replaced by terms, which serve the originally intended purpose to the best possible extent. The mandatory stipulations of the Austrian Protection Against Dismissal Act remain unaffected by these General Terms and Conditions of Business. The legal validity and interpretation of these General Terms and Conditions of Business, as well as all legal relationships between HÖD and the CP will be exclusively subject to Austrian law.
As at: July 2017