General Terms and Conditions for Customers of byrd technologies GmbH (Shipping from Austria) – Version from 5.3.2018
(hereinafter referred to as the “GTC”)
1. Scope of Application
byrd technologies GmbH with its registered office in Vienna, registered in the commercial register of the Commercial Court Vienna under FN 456560m (“byrd”) is a company that operates software-supported packaging and fulfillment services in an organised form. byrd renders all services to its customers (the “Customer” and each customer together with byrd the “Parties”) on the basis of these GTC, in each case in the version valid at the time of conclusion of the contract. The services offered by byrd are aimed exclusively at companies and not at private individuals.
These GTC are binding for all present and future business transactions between the parties, even if not explicitly referred to. Deviations from these GTC, supplementary agreements or any conflicting terms and conditions of the customer shall only be effective if this is confirmed in writing by byrd or referred to in these GTC (e. g. contract for the storage of goods).
2. Provision of Services
byrd is entitled to perform the services itself or by commissioning other companies (e. g. carriers or couriers) (“logistics service providers”). Unless otherwise agreed, byrd will select the logistics service provider. If certain service providers are to be excluded or preferred, this must be agreed separately.
byrd reserves the right to divide shipments into several parcels if this makes sense for an optimal shipping process. Orders entered in the byrd system and released by the customer can be adapted or cancelled by the customer only until processing by byrd has begun.
The fee to be paid by the customer to byrd (“fee”) shall, in the absence of an explicit agreement, be based on byrd’s respective valid tariffs at the time of placing the order (see link). The basis for invoicing is the service ordered or rendered in each case according to the currently valid tariffs or, as the case may be, separate agreements.
The fee is made up of costs for shipping, packaging and a service fee.
4. Items Prohibited from Shipping
byrd reserves the right to exclude certain items from shipment or to make the shipment of certain items dependent on special packaging or other restrictions. The exclusion and restrictions on the dispatch of certain items are based on the exclusion list valid at the time of the dispatch order, which can be found here (“excluded items“).
The dispatch of dangerous objects in the sense of the European Agreement concerning the International Carriage of Dangerous Goods by Road (ADR) or Dangerous Goods Regulation (DGR) of IATA regulations is not permitted.
Unless expressly agreed otherwise, the items sent may not exceed the following maximum values (“maximum values”):
Maximum weight: 31.5 kg when packed;
Maximum side length in packed condition: 120 cm;
Maximum girth size (2x width + 2x height + longest side): 300 cm.
In the event of exceeding the maximum values or shipping of excluded items, the customer shall reimburse byrd for any additional costs incurred as a result thereof and, if the goods are returned to the customer, pay a return delivery fee of EUR 14.90 net to byrd. Damage caused by the dispatch of excluded items shall be borne by the customer.
At the customer’s request, byrd will collect the items to be shipped at a place to be named by the customer. The collection is to be booked electronically via the byrd customer account. Unless expressly agreed otherwise, pick-ups outside the business areas defined by byrd (“business area“) are not possible. The current business areas are defined in the customer account.
Within the business area, pickups can be booked on a monthly basis or individually. The payment for the collection is based on byrd’s rates valid at the time of placing the order (see link). The pickup rates are valid for a maximum weight of 50 kg and a maximum of 50 items per pickup. Above these maximum values or if more than one courier is necessary for the collection of the goods due to the condition of the goods, special conditions must be agreed upon. From a waiting time of more than 10 minutes, byrd reserves the right to charge EUR 10.00 net per 10 minutes waiting time.
6. Storage of Goods
At the customer’s request, byrd keeps the customer’s goods in stock and processes shipments directly from its warehouse. The storage of goods shall be subject to the terms and conditions of the contract concluded with the customer separately for this purpose.
The packaging must be capable of withstanding a fall from a height of 120 cm without damage. In the event of packaging by the customer, the customer must ensure that the packaging is suitable for shipping and byrd shall not be liable for damage resulting from inappropriate packaging (see also point 8 of the Terms and Conditions). At the customer’s request, byrd will pack the items to be shipped appropriately. Byrd guarantees the appropriate packaging for items packed by byrd.
byrd shall only be liable for damages caused by gross negligence or wilful intent. The liability of byrd for slight negligence is excluded – with the exception of personal injury. In the event of liability on the part of byrd, the net purchase/production value or, in the case of used items, the current value shall be reimbursed as damage. Subject to mandatory statutory provisions, liability shall in any case be limited to EUR 500 net per shipment.
Shipments from pickups that do not take place in the byrd business area are an exception. For these orders, the liability is limited to EUR 10 gross per kilo.
If transport insurance exists, the customer is obliged to demand compensation for the damage and to have the compensation paid by the transport insurance taken into account. If the sum insured exceeds the amount of damage, a maximum of the actual damage incurred will be refunded (taking into account the above limitations of liability).
There is no entitlement to reimbursement of shipping costs, compensation for lost sales or compensation in the event of late delivery or non-delivery of delivery notifications.
In the case of time-definite deliveries (e. g. Express 12 h service, Express 9 h service) the express surcharge on the standard price will be refunded in case of delay of the shipment. Compensation for damages caused by the delayed delivery or the remaining compensation is excluded.
If the items to be shipped are already packaged and handed over to byrd by the customer, byrd shall not be liable for any damage caused as a result of inadequate packaging; this shall also apply to only partial packaging by the customer (e. g. inner packaging). Also in the event of subsequent alteration or repackaging of the items by the customer, byrd shall not be liable for damages resulting from inadequate packaging. The burden of proof for the faultlessness and suitability of the packaging shall lie with the customer.
Liability shall be excluded if the damage is due to circumstances which byrd or the logistics service providers could not avoid and the consequences of which they were unable to avert. Liability for damage to glass, porcelain and similar fragile goods or parts of equipment is excluded, unless expressly agreed otherwise individually. In the case of films, DVDs and other data carriers, liability is limited to the material value. Clarifyingly, it is stated that in the case of damage to electronics – in particular entertainment electronics – the burden of proof for the cause of damage on the transport route lies with the customer.
Obvious damage to the shipment must be reported in writing to the delivery person or by non-acceptance immediately upon acceptance of the shipment. In the case of non-obvious damage, the notification must be made in writing to byrd within three working days of delivery. If a damage is reported late, the claims for compensation of this damage are forfeited.
9. Procedure for Reclamations and Damages
In order to process a reclamation (e. g. delay, loss of consignment, damage) the customer is obliged to transmit the following information to byrd within 15 working days of delivery or, in cases where no delivery has taken place, as of knowledge of the problem:
- Shipment number, type and description of the problem, in case of damage including photos
- For sales or other business transactions: Delivery note and customer invoice as well as proof of net purchase value or production costs
- Other shipments that do not involve a sale: Original invoice of the damaged or lost item
If the above-mentioned information and documents are not transmitted to byrd within 15 working days, all claims of the customer in connection with the complaint shall lapse.
10. Transit Times and Delivery to Post Boxes / Packing Stations
If byrd picks up items to be shipped or, in the case of goods stored at byrd’s warehouse, if the customer transmits an order to byrd before 12:00 noon, byrd processes and hands over the consignment to the logistics service provider on the same working day. Excluded from this are – unless expressly agreed otherwise – orders with more than 30 shipments, without prior notice at least 24 hours before placing the order.
All specified transit times are regular transit times. byrd does not assume any guarantee for meeting these transit times. Byrd shall not be liable for damages resulting from an actual transit time exceeding this regular transit time.
Delivery to P. O. boxes cannot be guaranteed by byrd. When shipping to DHL packing stations, special instructions must be observed when placing an order (see link). If the data entered is not in line with these guidelines, delivery to DHL packing stations cannot be guaranteed.
11. Returns and Undeliverable Shipments
In the event of non-delivery, the customer shall reimburse byrd for the costs incurred as a result (e. g. return shipment costs, storage costs, expenses for address clarification in the case of incomplete or incorrect address data) plus a processing fee amounting to an additional 50% of these costs. The costs are based on byrd’s return tariffs (see link) valid at the time of placing the order.
In order to avoid these costs, byrd advises the customer to indicate a contact option of the recipient (email address and telephone number) with each order of a shipment and to track the progress of his parcels in the app in order to be able to act promptly in case of delivery problems.
In the case of address clarifications due to address inconsistencies or questions, a response from the customer is required within 72 hours of the request by byrd. If this is not received in time, the package will be returned to byrd. Storage fees apply from the 5th day of storage. If no instructions of the customer regarding the further procedure (re-shipment / restocking, etc.) are given to byrd within 30 days after return of the goods to byrd, byrd is entitled to restock the shipment, return it to the customer at his own cost or to dispose of it at the customer’s expense. The customer shall not be entitled to compensation for the loss caused by the disposal.
12. Payment and Settlement
The customer agrees to the delivery of invoices exclusively in electronic form. At the customer’s request, an invoice in paper form will be sent to the customer free of charge.
Unless expressly agreed otherwise, invoices are generally issued monthly on the basis of the expenses incurred in the respective month. The monthly service fee will be charged in advance and the other costs (e. g. shipping, packaging and storage costs) will be charged retrospectively. The fee is due upon receipt of the invoice to the customer and must be paid within ten working days from the due date.
In the event of a one-off order by the customer, the invoice shall be issued immediately after the dispatch has been carried out and the fee shall be due on receipt of the invoice to the customer and shall be paid within ten working days from the due date.
Unless otherwise agreed, the fee is to be paid by credit card (Visa, Mastercard and American Express). The customer must ensure that the credit card information is correct and up-to-date. Additional costs incurred in case of payment problems (e. g. credit card refused) are to be reimbursed by the customer.
If the customer is in default of payment, byrd shall be entitled to charge interest on overdue payments in the amount of 9.2 percentage points above the base interest rate from the respective due date. Furthermore, the customer undertakes to reimburse costs in the event of his default of payment, dunning and collection expenses as well as all costs necessary for appropriate legal proceedings. In any case, this includes two reminders from an authorised collection agency as well as a reminder from a lawyer charged with collecting the debt.
13. Customs Clearance
byrd takes care of the customs clearance itself or has it carried out by authorized third parties.
The costs associated with export are included in the fee. If the value of a shipment exceeds EUR 1,000.00, additional costs may be incurred which are to be reimbursed to byrd by the customer. The costs incurred during the import (e. g. customs duties, import sales tax, handling costs, etc.) are to be borne by the recipient himself. byrd reserves the right to charge the client for pre-financed costs which the recipient and contractual partner of the customer abroad does not bear.
The customer must provide all information required for customs clearance correctly and completely and is liable for all damages and costs resulting from incomplete or incorrect information or documents.
Unless otherwise agreed (e. g. in warehousing contracts) the customer may terminate this contractual relationship with byrd by giving written notice of termination at the end of each calendar month, subject to a notice period of five working days. The General Terms and Conditions shall remain in force for shipment orders already submitted at the time of termination. Changes to the monthly subscription can be made by the customer in their own customer account, whereby changes always take effect with the following calendar month.
byrd may terminate this contractual relationship with the customer by giving written notice – whereby e-mail fulfills the requirement of written form – at the end of each calendar month subject to a notice period of five working days.
This does not affect the right of termination for good cause.
15. Reservation of Right to Change
The provisions of these GTC can be changed by byrd at any time without indication of reasons, whereby such changes are announced on the byrd website at least 30 days before coming into effect and by sending the contract text to the e-mail address last provided by the customer. If the customer does not object to the changes within 30 days of receipt of the aforementioned announcement in writing by e-mail to firstname.lastname@example.org, the changes shall be deemed accepted. In the event of a customer’s timely objection, the contractual relationship between this customer and byrd shall continue to exist in accordance with the terms and conditions as amended prior to the change made known.
16. Limitation of Claims
All claims against byrd, on whatever legal grounds, shall become time-barred after one year.
17. Applicable Law, Place of Jurisdiction
These GTC are subject to Austrian law, excluding the UN Convention on Contracts for the International Sale of Goods and the conflict of laws rules of private international law.
For all disputes between the parties, the exclusive jurisdiction of the court responsible for Vienna, Innere Stadt shall be agreed upon.
18. Final Provisions
Place of performance is the registered office of byrd.
These GTC are final. Verbal ancillary agreements do not exist at the time of the conclusion of these GTC. Amendments to these General Terms and Conditions must be made in writing in order to become effective. This also applies to any deviation from this written form requirement.
Should individual provisions of these GTC be or become invalid or unenforceable, this shall not affect the validity and enforceability of the remaining provisions. An invalid or unenforceable provision shall be replaced by the parties in good faith in such a way that the intended economic purpose of the invalid or unenforceable provision is achieved in the best possible way. The same applies to the filling of undetected loopholes.
If there are any ambiguities in the interpretation of this contract, the German version shall prevail.