1.1
AVUS worldwide claims service GmbH is an Austrian company with its head office at A-4020 Linz, Blumauerstrasse 25/I and entered in the commercial register kept by Landesgericht Linz at number FN 83543h. It also maintains branches at A-8010 Graz, Rechbauerstrasse 4 and at A-1030 Vienna, Ungargasse 64-66, Stiege 1, Top 210. These three sites together are referred to hereinafter as AVUS Österreich.
1.2
There are, in addition, other offices operating as legally independent entities. These offices are referred to jointly as AVUS Gruppe or AVUS Group. A summary of these branches and offices can be found at https://www.avus-group.com/en/locations-contact/. Please note that the offices, as legally independent entities, are responsible in their own right for what they do and do not do. AVUS Österreich consequently accepts no liability for any actions or omissions by these offices.
1.3
The core business of AVUS Österreich is the settlement of cross-border claims in accordance with
a) the provisions of the fourth Motor Insurance Directive of the European Parliament and of the Council (2000/26/EC), replaced by Directive 2009/103/EC, hereinafter referred to as the 4th Motor Insurance Directive,
and
b) the provisions of the Internal Regulations of the Council of Bureaux (formerly: London Agreement and Multilateral Guarantee Agreement), hereinafter referred to as the Green Card,
c) pursuant to individual requests for recourse actions and other services
and is explicitly not designed for consumers.
These Terms and Conditions are to be treated – unless their application has been explicitly waived in writing – as an integral component of the contracts concluded between AVUS Österreich and the client. These Terms and Conditions constitute a framework agreement for all legal transactions between the parties.
1.4
1.4. AVUS Österreich does not recognise any conflicting conditions formulated by the other party or any terms and conditions applied by the other party insofar as they diverge from the Terms and Conditions of AVUS Österreich, unless AVUS Österreich has explicitly granted written consent to the divergent contractual terms. The current Terms and Conditions can be downloaded at http://www.avus-group.com/en/terms .
The services provided by AVUS Österreich are governed solely by these Terms and Conditions. AVUS Österreich does not recognise any conflicting conditions or any conditions which diverge from the Terms and Conditions of AVUS Österreich, unless AVUS Österreich has explicitly consented in writing to their application. Any action taken by AVUS Österreich in the performance of a contract cannot be interpreted as consent to contractual terms which deviate from those of AVUS Österreich.
The contract is considered to have been concluded if AVUS Österreich has sent out a written order confirmation or if the service requested has been performed. AVUS Österreich reserves the right to reject offers and requests without providing reasons, in particular if the data transmitted are incomplete or implausible or give rise to doubts about their accuracy or if the other party has in the past not settled payment obligations to AVUS Österreich or if a past contractual relationship with that party was terminated on the grounds that the client breached material contractual obligations or if performance of the request appears from the outset to be economically unreasonable or to lack prospects of success. In the event of a rejection, the client has no entitlement to compensation for any damages and/or expenditure incurred in the process.
Requests which are not accepted or handled directly by AVUS Österreich can on grounds of competence be passed on to the AVUS office responsible (see https://www.avus-group.com/en/locations-contact/). If the request is passed on in this manner, the AVUS office responsible will send the client a legally binding letter of acceptance or rejection within 14 days. In such cases no contract is concluded with AVUS Österreich, regardless of whether the other AVUS office accepts the request or not. AVUS Österreich accepts no liability on grounds of culpa in eligendo, and in particular no liability for anything done or not done by the AVUS office. No liability can be accepted for any ordinary negligence or for compensation in respect of consequential or pecuniary damages, loss of profit or damage resulting from third-party claims in connection with the forwarding of a request from AVUS Österreich. In the event that the AVUS office accepts the request, any contract is explicitly and without exception concluded between the client and the AVUS office responsible.
In order to perform the contract diligently and conscientiously, AVUS Österreich requires all the information and documents relevant to the matter which are available to the client. The client consequently has an obligation to provide AVUS Österreich fully and in good time with all the documents and information required for the performance of the contract and to inform AVUS Österreich of any circumstances which might be relevant to the performance of the contract.
The client has a duty to review all the services performed on his/her behalf without delay and to notify AVUS Österreich in writing of any shortcomings within eight days of the performance of the service, otherwise the client will forfeit any claim for redress. AVUS Österreich will only accept liability for breach of contract in the event of wilful intent or gross negligence.
Unless otherwise agreed, AVUS Österreich will receive in fee 15 % of the settlement amount but no less than € 250. The “settlement amount” is understood to mean the compensation received by the client or the compensation paid to third parties on behalf of the client. Any third-party services will be invoiced separately by AVUS Österreich, subject to the requirement that the client’s written consent must be obtained before a third party is contracted. AVUS Österreich is entitled to invoice for the minimum amount of € 250.00 in the event of a delay caused by the client.
AVUS Österreich will invoice for its services upon final completion. Partial invoicing is admissible if AVUS Österreich incurs expenditure of more than € 500.00 or if any compensation outlay or costs were incurred more than 4 months previously. Fees and reimbursements of outlaid compensation are due in full within 30 calendar days of the invoice date. Any payments for which no specific deadlines have been agreed must be settled without undue delay. If a payment deadline is agreed, payment of a monetary debt by bank transfer will be deemed punctual if the monetary value is definitively credited to the business account of AVUS Österreich by the date of the deadline.
In the event of a late payment, default interest will be charged from the date of invoice onwards at the rate of 12 % above the basic interest rate.
7.1
Either party can withdraw from the contract if, despite a warning, the other party fails to meet its contractual obligations before an appropriate grace period of not less than 1 week has elapsed.
7.1.1
Non-performance of contractual obligations by the client:
If AVUS Österreich withdraws from the contract on grounds of non-performance of contractual obligations by the client, AVUS Österreich can invoice for the settlement of services hitherto provided. These include, in particular, external costs and the minimum fee of € 250. This provision is without prejudice to any further claims for compensation in accordance with item 7.1 of these Terms and Conditions.
7.1.2
Non-performance of contractual obligations by AVUS Österreich:
If the client withdraws from the contract on grounds of non-performance of contractual obligations by AVUS Österreich, AVUS Österreich remains bound by its duty of compensation in accordance with item 8 of these Terms and Conditions.
7.2
Either party can withdraw from the contract if continued performance is not economically reasonable or lacks prospects of success:
7.2.1
The performance of the contract will, in particular, be considered not economically reasonable if the costs required are significantly greater than the potential outcome, or if performance would significantly delay the period normally to be expected for the handling of the claim in question.
7.2.2
The performance of the contract will, in particular, be considered to lack prospects of success:
7.3
If the client terminates the contract early without justified reason, AVUS Österreich can invoice for the settlement of services hitherto provided. These include, in particular, external costs and the minimum fee of € 250. This provision is without prejudice to any further claims for compensation.
8.1
Unless otherwise provided here, the mutual liability of the parties is limited in all cases to damages incurred in the course of performing the contractually agreed services. Additional claims, in particular for consequential damage, will not be considered. Moreover, in keeping with the statutory provisions applicable in the jurisdiction, the liability of the parties is limited to wilful intent and gross negligence.
8.2
AVUS Österreich cannot be held liable for any third-party damages, lost profit, or indirect or collateral damage. The exemptions from liability listed under Item 7 apply likewise to any claims against employees, contractors, shareholders, officers or agents of AVUS Österreich.
AVUS Österreich reserves all rights to any drafts, offers, projects, etc. of which it makes use. The client must not use these documents, including any which did not originate with AVUS Österreich, in any manner not covered by the contract. In particular, they must not be reproduced or made available to third parties and they must be returned immediately if so requested by AVUS Österreich.
The client has an obligation to indemnify and protect AVUS Österreich against any third-party claims in relation to violations of copyright, neighbouring rights, other industrial property rights and privacy rights.
The client is not permitted to offset any receivables currently or purportedly owed to it against receivables invoiced by AVUS Österreich. The client waives any option to balance accounts by netting.
The parties undertake mutually to maintain confidentiality with regard to any company or business secrets to which they are given access or which are made available to them or which come to their knowledge in connection with or on the basis of their commercial relationship.
AVUS Österreich observes all data protection regulations when processing the personal data of the individuals concerned in the performance of services on behalf of the client.
Austrian law applies. The parties consent to Austrian, domestic jurisdiction.
The parties agree that the court at the domicile of AVUS Österreich shall have jurisdiction over any disputes arising from the contract or indirectly derived from it.
If any individual provision or item in these General Terms and Conditions is deemed to be void, the remainder of their content shall be no less binding. In the event that this gives rise to a gap in the contract requiring clarification, the ineffective provision will be replaced by an admissible provision which most closely reflects the intention of the parties.
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