Terms and Conditions of the dts Trading GmbH & Co.KG
1. Coverage of the Terms and Conditions
a) Coverage scope
For the use of the dts fuel card – and any subsequently ordered cards – and for the comprehensive control of the business relationship between dts Trading GmbH & Co.KG (hereinafter referred to as dts), Gringler Str. 52, 5020 Salzburg and the dts customers, the following terms and conditions apply to the current version. Opposing or deviating conditions of the dts customers will not be accepted. Even after the termination of the business relationship, the following terms and conditions will continue to be valid, until the complete conclusion of the business relations. This version replaces all previous versions of the General Terms and Conditions.
dts will inform the dts customers about any changes in these terms and conditions in writing without the obligation to mention any details about the changes or the new form of the terms and conditions; it is sufficient to inform about the amendment as such. The written notification can also be done on the invoices. If the dts customer does not object in writing within one month after the notification, the changes will be deemed as accepted; dts will indicate the changes in the Notification About Changes.
2. Law effective beginning of the business relations
The relation between dts and the dts customer begins after the applicant receives a confirmation from dts for his dts fuel cards application which include the general terms and conditions and dts sends one more dts cards. In the confirmation, dts grants the dts customer a certain credit limit and a payment target. The granted credit limits and payment terms are part of the contract.
3. Use of the fuel card
a) Domestic and international use
The dts fuel card entitles the dts customers to refuel at domestic and international dts petrol stations and other dts partner petrol stations which are under contract (hereinafter called partner) and dts service partners (hereinafter referred to as service partners) exclusively for commercial and vehicle-related purposes, without cash and in some cases against cash and to make use of services.
b) The supplies and services are rendered on behalf and for dts.
4. Use of fuel stations
The use of dts fuel stations and partner fuel stations by the cardholder or other third parties who are in contact with them, is entirely at their own risk. It is herewith agreed that any liability of dts Trading GmbH & Co.KG or its institutions, to the extent legally permissible, is hereby excluded. The dts customer confirms that he has been instructed on the behavior of the gas stations.
5. Safety regulations at the fuel stations
The dts customer has to follow the following safety rules at the gas station:
6. Freedom of acceptance; delivery and obligations of dts
a) Customer freedom of acceptance
There are no obligations fort he dts customer to make use oft he dts delivery and services or to buy a certain amount.
b) Freedom of delivery for dts and ist partners
Vice versa, there is no obligation for dts and/or its partner fuel stations to deliver. In particular, no claims can be made in case of supply difficulties, technical problems or changes in the dts fuel stations or the network of dts partner fuel stations or service partners.
7. Liability of dts
a) In scope of the business relations governed by this General Terms and Conditions, the dts is only faulty, i.e. intent or negligence (including negligence and negligence of its agents), and is responsible subject to the following articles 15 and 16.
b) None of the service descriptions mentioned in this General Term and Condtions can be understood as a guarantee provided by dts; dts does not provide any guarantee. Also, dts does not take any separate supply risk within the scope of this business relations.
8. Binding of the dts fuel card and authorization to use
a) dts feul card
The dts fuel card (earlier and hereinafter mainly referred to as “dts fuel card”) is bound to a single dts communicated vehicle of the dts customer including a semitrailer or trailer. The entitled vehicle is identified by the assigned dts number.
If a personal identification number has been assigned to a dts customer, this number hast o be treated confidentially and can only be delivered to entitled third parties.
c) Misuse of the dts fuel card
Unauthorized use the dts fuel card can be prosecuted as fraud or credit card misuse and is punishable with imprisonment or fine.
9. Use of the dts fuel card
a) Delivery of the dts fuel card
The Dieseltankstelle fuel card (hereinafter referred to as dts fuel card) is delivered and administered by dts Trading GmbH & Co.KG, 5020 Salzburg, Gnigler Straße 53. The fuel card remains the property of dts.
b) Issue of the dts fuel card
Without giving any reason, dts can refuse to issue a dts fuel car.
c) Control of the dts fuel card
The dts fuel station and/or partner fuel stations can control the entitlement of the card holder of the dts fuel card; they can refuse the delivery and services and also confiscate the dts fuel card if use the presented fuel card is unauthorized, the card is expired or blocked.
d) Inspection of the delivery note and documents
During refueling, a fuel document is created. It should be controlled if the type and amount information on the document about the respective delivery is correct
e) Paperless use; use of services without presenting the card
In certain wholly or partially automated dts fuel stations and/or partners stations, no debit voucher / delivery note is created due to technical reasons. In such cases the dts fuel card will be used in the card terminal or other technical facilities provided. In case of other fully or partially automated dts partners and service partners, as some toll roads, the use of the service of dts or partners is done only through the proper use of the designated technical equipment (such as Go-Box).
f) Delivery note refueling (instruction by fax)
If the customer (agent of the customer) does not have a dts fuel card, the customer can contact the head office of dts by phone of fax and authorize the agent to refuel. The invoice will be issued in the same was as for a dts fuel card.
10. Loss of dts card and liability of the dts customer
a) Theft, loss or other type of loss
Theft, loss or other type of loss of the dts fuel card have to be reported to dts immediately, stating the circumstances that led to the loss. A theft report issued by the police has to be forwarded to dts. If the card is lost by one of the agents of a dts customer, the name of the agent has to be stated if required.
The dts customer is liable for the non-confirming use or misuse of the dts fuel card. The dts customer did not take all reasonable precautions against the non-confirming use or misuse of the cards, especially if the non-confirming use or misuse of the dts fuel cards is facilitated or made possible, if the below mentioned apply:
ba) if the PIN-Code is noted on the dts fuel card or kept close to it or kept directly connect to it;
bb) if the dts fuel card is not carefully kept;
bc) if the theft or loss notification has not been forwarded to dts directly or
bd) if the dts fuel card has been handed over to third parties or subcontractors.
The dts customer has against violations of due diligence by persons to whom he has left the dts tank card.
11. Prices, fees, payment obligation, accounting and auditing
a) Prices oft he products and services
For the services provided, dts calculates basically the local apparent or taxwise applied usual prices. The fuel prices are calculated by dts on basis of list, zone and column prices informed and invoices issued by the petroleum industry. Depending on individual cases in some countries the prices can vary from the prices indicated at the fuel station column price (pump price) for the local payment (cash or non-cash). In such case the price calculated by dts is different from the debit voucher (fuel receipt) which will be issued for the customer according to article 9 and due to technical reasons this debit voucher can only identify the specified price at the fuel station.
ba) For all the supplies and services of the dts fuel card used by the dts customers according to article 8 and invoiced in the name and on behalf of dts, dts can, apart from the product and/or service prices mentioned in a), calculate additional reasonable fees in form of charges or fix percentage amounts.
bb) dts can raise a unique and/or regular fee fort he usage of the fuel card (card usage fee). This charge will be determined by a separate notification to the dts customer and will be effective in future.
bc) For cross-border use of the dts fuel card and/or other domestic and/or international services rendered in relation to the card relation, dts may calculate separate fees.
bd) In case of expenses arising from the non fulfillment or improper fulfillment of obligations of the dts customer, dts can also determine reasonable fees (for example loss or blocking of card, reminders or chargeback).
be) In case of any bank charges and other costs which may be paid by dts in case of international transfer or check deposits oft he dts customer, dts can ask the dts customer for reimbursement of these charges or other costs, even if these are not listed in the dts list of service surcharges and fees.
c) Adaptation reservation
The dts is entitled to change the service surcharges and fees at its discretion and to introduce or determine charges for any services and/or expenses which have been performed on behalf of the customer and which have been free of charge until present.
d) Payment obligation of the dts customer
The dts customer is obliged to pay dts all requirements - consisting of the prices mentioned in article a) and the fees mentioned in article b) - which have been realized or obtained by the entitled use of the dts fuel card according to article 9, whether or not the underling goods and services are mentioned on the fuel receipt or debit voucher or the requirements have occurred through the entitled use of the dts fuel card or services without presenting the card.
This also applies if the dts customer or its agent uses the dts fuel card for private purposes or contrary to the contract.
e) Offsetting and retention
The dts customer can only offset the demands of dts, if his counterclaim is undisputed or legally valid.
dts is invoicing the supply or services continuously or in time intervals.
Regardless of the currency issued on the delivery note / debit voucher – especially in case of paperless use – regardless of the currency offered and used for delivery or service, dts is preparing the invoice for the claims in Euros. The conversion is done according to the Euro exchange rate on the date of settlement – if this is not possible – according to the quotations on the free market. In case the conversion cannot be done due to some reason, or is done in another currency but Euro, dts is entitled to ask for foreign exchange currency compensation at the date of transaction in order to balance the exchange rate changing risk.
g) Audit oft he invoice and balance statement
The dts customer has to check the dts invoices for accuracy immediately and report any complaints immediately, but not later than 1 month after the invoice date in writing to dts.
After the expiry of one month after the invoice date, any complaint is ruled out and the invoice balance shall be deemed as accepted, unless the audit is not possible without the fault of the dts customer.
h) Complaints about the invoice
If the dts customer wants to assert that an invoiced supply or service was not made to a beneficial owner and/or the debit voucher/delivery note has been prepared by other person violating the regulations of use, and not the dts customer or his agent, he has to inform dts in written or by fax message within one month after the date of invoice latest, stating all the objections in the invoice, especially the amount, invoice position and complete reason of complaint and submit any evidences. The obligation to pay and term of payment will not be effected by such information.
i) Audit of the complaint
dts will work with the diligence of a prudent businessman on the basis of the notification of the dts customer and relevant dts partner and audit the payment obligation.
A non-provisional asserted claim has to be fulfilled as soon as it is certain that a claim of the dts customer on a credit does not exist. According to article 12 a), interest is payable on demand for the non-provisional asserted claim by the dts customer, starting with the maturity date, if the complaint has proven to be unfounded. In case of default, the assertion of a higher default rate in accordance with article 13 c), remains unaffected.
j) Direct debit
dts is entitled to collect any service charges by way of deduction or direct debit authorization. Upon request the dts customer is obliged to issue a debit order or direct debit authorization.
k) Change of bank connection
The dts customer has to inform dts in written form or by fax message in case of any changes of the bank connection.
12. Maturity interest; default due to exceeded the payment target
a) dts calculates maturity interest rate of 5% on Euroibor on the due date or on the next business day, but maximum 9,5 % per year.
b) if a dts customer exceeds the payment target which has been granted to him with the acceptance of the dts fuel card and which is part of the contact and delays the date of payment – which is also remarked on the invoice – the customer is delayed and will not be reminded of it.
13. Consequences of default; maturity interest
a) If a customer is delayed with the payment of a (first) invoice, all other privileges and payment terms for other invoices will become invalid, whether these have been received or not received. Such unpaid invoices have to be paid gross not net, immediately on the date eventually noted on the invoice. If the payment is not received by dts within three days after receipt by the customer and the first payment is delayed (depends on which one occurs later), the dts customer is also delayed with the payment of other unpaid invoices.
b) The dts customer has to compensate dts for the damage due to the delay and especially has to reimburse the payment for the services of lawyers.
c) dts calculates maturity interest rate of 8% on Euroibor on the invoice date, if this is not possible, or on the next business day. The claim for further damages is not excluded.
d) If the debtor is delayes with the payment of several invoices and if the payment performed by him is not sufficient to discharge all debts, the debts (invoices) will be paid off in order of date; especially, if some debts have been addressed, the unaddressed debts will be paid at the beginning. If the debtor has to pay interest rates and costs additionally to the principal payment, a payment which is not sufficient to pay off all the debts will be calculated first for the costs, than the interest rates and finally for the principal payment. Any other unilateral repayment provisions of the dts customer are irrelevant.
14. Prohibition of use, blocking of the card and termination right of dts
a) Prohibition of use, blocking oft he card and termination of business relations by dts with a period of notice
dts can anytime, – without giving a reason – with a reasonable termination period, prohibit the use of the dts card(s), taking into account the legitimate interests of the dts customer, block the dts fuel card(s) at the service partners and/or terminate the business relation with the dts customer.
b) Prohibition of use, blocking of the card and termination of business relations due to important reason
If there is and important reason and the use of one or all dts fuel card(s) and/or the continuation of the business relations, also taking into account the legitimate interest of the dts customer, is unreasonable for dts, dts can prohibit the use of the dts fuel card(s) with immediate effect or a reasonable discretion of a short period, can block the use of the dts fuel card(s) by the service partners and/or extraordinary terminate the business relations to the dts customer. Such an important reason exists in particular, if
ba) the dts customer made false statements about his assets, which are of big importance for dts to start the business relations,
bb) the dts customer did not meet the obligation to provide or increase a security pursuant to article 18 or fails to comply within a reasonable deadline set by dts due to any other agreement,
bc) there are direct debit protests or any other overdue invoices are not paid, unless the dts customer is not responsible for the situation,
bd) the debit or de debit order is revoked,
be) an insolvency proceeding is requested on the assets of the dts customer,
bf) a non- negligible deterioration in the financial position of the dts customer occurs or threatens to occur, especially the information received about him are not only getting worse and but also threaten the fulfillment of the liabilities to dts,
bg) dts fuel card(s) is/are given to unauthorized third parties,
bh) a reasonable suspicion exists that the dts fuel card(s) is (are) used in a way that leads to a breach of contract.
c) Information of the dts service partner
dts is entitled to inform its partners and service providers about the blocking of the dts fuel card(s) and/or termination of the business relation electronic date processing, by sending of blocking lists or and other means.
d) General prohibition of use in certain cases
The dts customer and its employees are prohibited to use the dts fuel card(s) in general, i.e. without a special notification by dts, if
da) an insolvency proceeding is requested on the assets,
db) if he is obliged to submit an affidavit about his financial situation,
dc) if it can be observed that the invoices of dts are not paid at due date or
dd) the business relation is terminated and a possible termination period has expired.
In the cases of self-deliveries which have been done on behalf of and for dts, dts is only liable for the defect freeness in accordance with the following provisions; these are also valid if another thing or too little have been delivered (done) or if the payment has not been done as it had to be:
a) Detailed warranty and service disruption rights of the dts customer assume, that the dts customer has to inspect the goods immediately after delivery, as far as possible in the ordinary course of business, and inform dts or the partner immediately in writing or by fax message in case of any defect. The goods are considered approved if a complaints is not received within 14 days after receipt or, if the defect was not detectable during the investigation, within 5 days after the discovery of the defect in writing or fax message.
b) It is not a deficiency if the description in the debit voucher / delivery note is different from the industry practice description. All warranty claims and warranty rights including any compensation claims for damage don’t exist in case of minor deviations from the agreed conditions or in case of minor impairment of usefulness; this restriction does not apply if and insofar as dts is absolutely liable.
c) In case of justified complaints, the dts customer is entitled to assert his claims towards the dts partner with support of dts with regard to that claim. For that purpose dts assigns his own claims against the dts partner already to the dts customer.
The latter does not apply if the dts customer does not assert his rights against the dts partner, but against dts. dts will use its best efforts to find a satisfactory settlement for the dts customer and to remove the justified complaints caused by the relevant dts partner.
d) In addition, the dts customer can also claim legal compensation under statutory requirements in accordance with the following provision:
e) In the absence of fault, dts is not liable for defect and other realization of agreed services (where the fault of its representatives and agents are the same as their own fault), an exceptionally procurement risk taken by dts or one of its partners in the name of dts refers not to the quality (defect free composition) of the services provided. In case of fault, dts is liable as follows:
f) According to legal regulations, dts is liable if the dts customer claims for damages based on intent or gross negligence, including intent or gross negligence of the representatives or agents of dts. As far as there is no breach of contract can be charged against dts, the liability damage is limited to foreseeable, typically occurring damages.
g) According to legal regulations, dts is liable if dts or the legal representative or agents negligently violate a contractual obligation; in which case the liability for damages is limited to foreseeable, typically occurring damages.
h) In addition, i.e. in case of slightly negligent breach of non-significant contractual obligations, dts is not liable for property damage and asset damage. In case of negligent breach of non-significant contractual obligations dts is not liable for injury of life, limb or health.
i) Liabilities under statutory provisions shall remain unaffected.
16. Total liability
a) Further liability for damages other than in article 15 is ruled out – regardless of the legal nature of the claim. This applies in particular in case of claims for damages for breach of duty, which are not due to deficiency or un-provided services, for delay in performance or tort claims. Also, such damages are limited to one year, calculated from the statutory limitation period of each claim. If the statutory limitation period is shorter or if it runs off earlier, the statutory limitation period for a certain period will be valid in stead of one year. The statutory limitation provided herein does not apply in cases of injury of life, limb or health or if the claim for damages is based on intent or gross negligence of dts or its representatives or agents; in such cased the statutory limitation periods apply.
b) Compensation claims due to impossibility of performance remain unaffected.
c) If the damage compensation liability against dts is excluded or limited, this also applies with regard to the personal liability of employees, workers, representative and agents.
17. Collection of information; notification liability of the customer in case of change in the legal form, and suchlike
a) dts is authorized to obtain information from credit bureaus and the banks named to dts. In the event of default, all the data concerning the customer, which have been given to the creditor within the frame of this business relation – especially to protect the legitimate interests of creditor protection – can be shared with facilities for privileged creditor protection associations, such as credit evidence or debt collection.
b) The dts customer is obliged to inform dts immediately in written about any changes in the company owners (owner of his company), the elimination or addition of shareholders, the elimination or addition of directors, any changed in the legal form of the company, any changes in the address or telecommunication and/or the abandoning of business operations (indication the contact information of the owners and directors).
a) Appointment of securities
For all claims arising from the business relation, dts can ask for the appointment of securities, which secure the risks, particularly under consideration of the credit limit granted to the dts customer, the number of provided dts fuel card(s), the industry in which the dts customer is active, the information received about the dts customer and other risk evaluations. Dts can require such a guarantee, eve if dts partially or totally refrained from it during the establishment of the business relationship.
b) Increase of securities
dts can ask fort he increase of granted securities if situations arise or are known to increase the risk evaluation, especially if
The right to require an increase in the securities does not become invalid only due to the fact that dts does not make use of its right immediately after becoming aware of the circumstances.
c) Deadline to ask for or increase securities
In case of belated appointment of securities according to article a) clause 2 or the increase of such a security according to article b), the dts customer will be granted a reasonable time (usually 14 days).
d) Securities and guarantees
Instead of cash guarantee, dts will also accept – according to his free choice – unconditioned, unlimited securities and guarantees of credit institutions in which the guarantor waived the exemption of liberation by deposit and agrees to pay on fist demand.
19. Termination right of the dts customer
The dts customer can always terminate the business relations with the individually agreed period of notice; in case such an individually agreed period of notice does not exist, the termination can be done without period of notice. In case of termination of the business relations the dts fuel card(s) can no longer be used.
20. Severability Clause
If some parts of this general terms and conditions should become ineffective, the effectiveness of the other provisions will not be affected.
21. Choice of jurisdiction
Austrian law applies. The UN Sales Law (CISG) and any other international agreements, even after their transfer to the Austrian law, shall not apply. In case of dispute dts has the right to make use of the law applied in the country of the customer.
Jurisdiction for all disputes arising from the business relationship – even after its completion – is Salzburg, if the customer is a merchant or legal entity under public law or public sector fund. This jurisdiction has been agreed for all actions against dts exclusively.
23. Validity and interpretation in case of foreign customers
In case of business relations with foreign customers also those general terms and conditions in German language apply. The translation of the same in the local language or English language will be sent to the foreign customer and should allow a better understanding of the same. In case of an interpretation dispute the German text will always be given priority.
dts Trading GmbH & Co.KG
A 5020 Salzburg, Gnigler Str. 52
UID: ATU ATU67317405
Firmenbuchgericht: Landesgericht Salzburg