All services rendered by ACS Logistics shall be exclusively rendered subject to these General Terms and Conditions. Stipulations of the contractor which differ here from, even if only regarding individual points, shall apply only upon express written agreement and only on a case-by-case basis. In our activity as forwarding agent and/or warehouse keeper the rendering of our services shall be subject to the General Austrian Forwarders' Terms and Conditions (AÖSp), each as amended, as described under point II. In the case of conflicts with the present General Terms and Conditions the latter shall prevail over the AÖSp. Any general terms and conditions used by the customer will not be accepted and shall therefore not be deemed to have been agreed upon, even to the extent such do not contradict our general terms and conditions. Verbal collateral agreements are ineffective.
The current version of the "General Austrian Forwarder’s Terms and Conditions" (AÖSp) as is available at www.wko.at/spediteure/ shall apply unless there is a per se conflict with any statutory provisions or international conventions (e.g. CMR, Montreal Convention, Warsaw Convention, CIM, Hague Rules, etc.). Even in cases of gross negligence or willful intent, Section 51b) of the AÖSp may not be construed as agreement of an aggregate limit of liability above the limit provided in the applicable international convention; therefore, section 51b) of the AÖSp in particular does not constitute an agreement to a higher aggregate limit of liability pursuant to article 25 of the Montreal Convention. It is further agreed that Section 51b) of the AÖSp does not cause a shift of the burden of proof within the meaning of Section 1298, sentence two of the Austrian General Civil Code. The limits of liability according to the applicable transport regulations (such as CIM, CMR, Hague Rules etc.) apply even if the documents accompanying the goods or issued by us cite a goods or insurance value higher than the liability limits set by the above mentioned regulations. These liability limits can only be exceeded by means of a written agreement between the customer and us, submitted before the goods are handed over for shipment; entries in the bill of lading or any other written or oral information about then goods value or expressing an interest by the customer or by third parties do not override or increase the limits of liability and therefore do not represent a declaration of value or interest. It is generally not possible to agree to any increase or waiver of liability limits laid down in contractual terms or in international conventions. Regarding the AÖSp: It is expressly pointed out that the provisions of the AÖSp, in particular the disclaimers and limitations of liability of the AÖSp, are only applicable in cases of deliberate recklessness and intent (and not in cases of gross negligence). The burden of proof for this qualified form of fault (deliberate recklessness and intent) lies with the customer. The limitation period pursuant to § 64 AÖS p shall apply irrespective of the degree of fault. We are entitled to have a domestic or foreign partner company of our choice execute any of the orders placed with us. All air freight shipments are subject to security checks, unless the customer is a "known consignor”. The customer agrees that goods handed over for shipment are manually checked and the packaging may be opened for this purpose. Our liability is limited to intent or deliberate recklessness, evidence of which is to be provided by the customer. However, an obligation on our part to perform such a security check is not implied. We are entitled to issue shipping documents, in particular bills of lading, air waybills etc.; in this case, we always act on behalf of and at the risk of the customer or sender. Our duties resulting from this contractual relationship shall at any time be subject to the adherence to and compliance with national and international statutory provisions and/or mandatory requirements (in particular compliance with European and U.S. embargo measures). In case of a conflict between the contractual provisions and the statutory provisions and/or mandatory requirements, the statutory provisions and/or mandatory requirements shall prevail, even in cases of doubt. Without prejudice to our rights under these terms and conditions, responsibility for compliance with foreign trade legislations (prohibitions and limitations regarding import, export or transit) lies with the customer. We shall not be under an obligation to check that such legislations are complied with and responsibility to make us aware of any limitation or prohibition with respect to the goods to be shipped lies with the customer, who will inform us timely and in writing and hold us harmless from any and all claims. The customer shall also be obliged to guarantee the safety of the supply chain to us.
All offers made by ACS Logistics are based rates, tariffs and exchange rates applicable at the time of conclusion of the contract and on ACS Logistics‘ free choice of means and routes of transport, shipping companies and airlines. In addition and even if a certain means of transport is stated, ACS Logistics shall be entitled to select a different means of transport without any effect on the agreed price, provided that due processing of the order is warranted. Despite of any agreed transportation by air- and/or ocean freight, single transport legs can be alternatively operated by land transportation. Offers of ACS Logistics shall be subject to change until binding conclusion and may be revoked by ACS Logistics at any time. In addition we reserve the right to adopt air- and/or ocean freight rates at any time without pre-notification. Our offers are subject to secrecy vis-à-vis third parties and must be treated as strictly confidential. They may not be passed on to third parties in any form without our written consent. Only the costs incurred in the case of a normal course of transport are included in the prices. Unless stated separately in the offer or expressly agreed in writing, the costs for insurance premiums, customs clearance in the country of dispatch and the country of destination, customs duties and official charges, costs of bill of lading and consular charges, warehouse charges, commissions on advances, demurrage and other unforeseen expenses, fuel surcharges, tolls (road pricing) and any costs which have not been caused by ACS Logistics are not included. ACS Logistics shall be entitled to invoice surcharges for additional expenses incurred, provided that the actual weights and dimensions of the items and other properties of the items to be moved differ from the details furnished by the customer. ACS Logistics is also entitled to ask for separate remuneration in the case of differences in the scope of performance and/or in the case of additional orders given after or during the rendering of the service.
Information about duration of transport, booking confirmations, flight details, customs duties, prices and other details and communications shall be non-binding. Booking entries and account information as well as statements on admission of liability and payment commitments shall only be binding if confirmed by ACS Logistics in writing. Furthermore, ACS Logistics guarantees no fixed delivery times and promises no fixed dates. In general, payments in cases of damage or loss are made subject to recovery and constitute no acceptance.
A separate order is required for the transfer of dangerous goods pursuant to ADR/RID/IMCO/DGR and so on, which must be accepted by us. Dangerous goods must be packed and marked in such way that they comply with the statutory provisions and international conventions with respect to carriage, handling and storage and be accompanied by the required set of papers. Hazardous goods, in particular goods of ADR classes 1 and 7, may not be handed to us. Returns of packaging within the meaning of the packaging ordinance as well as recovery and/or exchange of pallets, pallet cages, etc. will only be accepted if such have been specifically agreed upon in writing. In case of the provision of a truck or a container transport, demurrage shall be invoiced per hour or part thereof in excess of the max. two hours granted for both loading and unloading. No liability is assumed for loss of or damage to goods in open wagons or open top containers. If empty containers are made available for loading in accordance with the order ("Shipper's load, stow and count"), they must be inspected immediately upon delivery for external intactness and suitability for loading, in particular for odour contamination. In the event of complaints, these must be reported immediately in writing/electronically to ACS Logistics. In the absence of such notification, the container(s) shall be deemed undamaged and suitable for carriage. ACS Logistics shall then not be liable for any cargo damage that occurs as a result of such defects in the container that are present during loading. Unless otherwise agreed, the client is responsible for the return of the empty containers in an internally cleaned condition to the location specified by the carrier within 2 days. If the containers are not returned within 2 days, the Principal shall be liable for delay and demurrage in accordance with the customary local rates for container delay charges (demurrage) or container rental (detention) as well as additionally for other damage and costs due to this return not carried out or carried out too late, including the damage and costs incurred by the carrier or his authorized representative in the retrieval of the containers. In the event that ACS Logistics has assumed responsibility for the return of the empty containers, the client shall reimburse all costs, charges and expenses of any kind incurred as a result of the return of the empty containers due to actions, omissions by the client, third parties (consignees) attributable to a contractual partner of the client and the client and/or delays of any kind (including official acts, e.g. customs). Furthermore, the Client shall indemnify ACS Logistics against all Demurrage-Costs/Detention-Costs etc. regardless of fault. The client shall be responsible for the proper securing of the load, packaging suitable for transport and stowage in the container. When using solid wood packaging, the International Standards before Phytosanitary Measures (ISPM 15) must be observed. Furthermore, ACS Logistics accepts no liability whatsoever for packaging wood provided by the client - this applies in particular to packaging produced/performed by ACS Logistics and containing packaging wood provided by the client. Should complaints (of any kind whatsoever, in particular from the US authorities) arise, ACS Logistics's liability shall be completely excluded, except in the case of intent or deliberate recklessness on the part of ACS Logistics. The burden of proof lies with the client. Packaging services, stowage services, etc. shall only be provided by the Contractor on the basis of an express written order and additional payment. The provisions of the AÖSp are also expressly agreed for such services.
As a forwarding agent ACS Logistics is obliged to take out a forwarder's risk insurance policy (SVS) and cartage (haulage) insurance policy (RVS) for the customer. The customer is free to declare itself a "Verbotskunde" (customer waiving insurance protection). This must be done in writing to ACS Logistics. Transport insurances will be taken out by ACS Logistics when the relevant order is placed. Upon your express written request, we will take out transport insurances and insurances for goods in stock against risks such as fire and damages from burglary and storm. We recommend you to take out a transport insurance for goods worth more than EUR 10,- per kg, for sensitive goods (i.e. fragile or theft-prone goods) as well as well as for cross well as border transports. As regards warehouse insurance reference is made to applicability of the AÖSp. Possible insurance coverage must not be provided for if sanctions of the United Nations and/or the European Union and/or other relevant national economic or legal provisions are an obstacle to shipment. Neither such an insurance order nor an order for a higher insurance value, in accordance with SVS/LVS, represents a declaration of value or interest and therefore do not lead to increased limits of liability under the applicable transport regulations.
The customer grants the contractor the unlimited right to include the name and the logo of the customer in the internal data base and to use it free of remuneration for advertising, marketing and sales purposes. Consequences resulting from the use of the name and/or logo cannot be attributed to the contractor. The customer shall indemnify the contractor from any claims by third parties which may be asserted against the contractor resulting from reference materials.
Unless agreed otherwise in writing, invoices of ACS Logistics shall be due for payment upon receipt without deduction. Any claims against our invoices have to be provided in writing to us, as otherwise the invoice applies to be accepted. The laws of Austria, excluding international private law principles, shall apply. Linz (AT) and the location of our commissioned branch subsidiary shall be agreed as place of jurisdiction. We reserve the right to assert a claim against the customer before any other legally permissible court.
GmbH & Co. KG
LG Linz, FN358385m
ACS Logistics GmbH, FN3358386p