Terms and conditions
An Overview of the terms and conditions of business of Wimmer Maschinentransporte
General Terms and Conditions of the German Federal Working Group Heavy Haulage and Crane Work of Wimmer Maschinentransporte GmbH
Crane and Haulage 2019 (AGB-BSK Crane and Haulage 2019)
I. GENERAL SECTION
Field of application/scope and essential contractual obligations
1.1. Field of application/scope
All our crane and haulage services, as well as rough assemblies, are subject to the following terms and conditions unless otherwise stipulated by mandatory statutory regulations (e.g. German Commercial Code [Handelsgesetzbuch - HGB] or CMR, CMNI/CLNI, CIM/COTIF or Montreal Convention/Warsaw Convention [Montrealer Übereinkommen/Warschauer Abkommen - MÜ/WA], in the latest version [new version]).
1.2. Essential contractual obligations
The essential contractual obligations of the contractor can be derived from Subclauses 2 to 4 of these terms and conditions. These are the obligations, the fulfilment of which makes the proper execution of the contract possible at all and on the compliance with which the contractual partner may, as a rule, rely and depend upon.
The obligations of the customer to provide assistance in Subclauses 18 to 22 are also such essential contractual obligations.
2. Crane services within the meaning of these terms and conditions are provided in two categories:
2.1. Category 1 – Crane hire
Crane hire means the provision of hoisting equipment with operating personnel to the customer for carrying out work in accordance with the customer’s instructions and arrangements.
2.2. Category 2 – Crane work
Crane work refers to the carriage of goods, especially hoisting, moving and relocating loads and/or persons for the purpose of working with a mobile hoist and relates to accomplishing one or several contracted hoisting manoeuvres by the contractor according to the instructions and arrangements. This especially also includes isolated marshalling of heavy objects by means of a crane.
3. Transport services
Transport services within the meaning of these AGB-BSK are so-called heavy haulage services and large volume transports.
Heavy haulage services in this case are the commercial carriage or relocation (vertical, horizontal or three-dimensional) of so-called heavy cargo with transport units, which do not correspond with the generally admissible axle loads and/or total masses. This also includes special auxiliary transportation gear such as heavy load rollers, armoured rollers, heavy duty roller gears, lifting jacks, air cushions, hydraulic lifting scaffolding and lifting portals, Self-Propelled Modular Transporters (SPMTs).
Large volume transports are commercial carriages with transport units, which do not correspond with the generally admissible vehicle dimensions and/or the generally admissible load dimensions.
The heavy haulage services and large volume transports also include the thus associated interim storages required due to the transport.
Heavy cargo and large-volume goods are usually transported unpacked and without a tarpaulin cover. Unless explicitly otherwise agreed, the contractor shall be responsible for packaging and covering the loads with tarpaulin, loading, stowing, lashing and unloading, except in the case of sea freight. In the case of carriage by sea, the customer agrees to open deck loading.
4. Rough assembly and disassembly, other additional services
4.1. Rough assembly and disassembly
These are components of the crane or transport service if this is agreed. This includes fitting together or disassembling and fastening or loosening the load for preparing or carrying out the transportation. The BSK Terms and Conditions of Assembly in the latest version shall apply for assembly services which go beyond this (final assembly, trial run, fine adjustments, etc.).
4.2. Additional services
These are all services that are to be remunerated separately, which do not directly belong to the essential contractual obligations, however round off the entire range of services, such as e.g. all traffic direction measures, structural changes or static calculations of traffic routes, route checks, police escorts.
5. Site inspections
Results of site inspections and special agreements, e.g. with regard to the loading and unloading locations, crane location, etc. must be recorded by the parties in writing.
6. Conditions subsequent of the contract – public law permits and approvals
The execution of large volume and heavy transports or moving cranes in public road traffic requires the permission or approval of the responsible authority, in particular pursuant to Sections 29 III and 46 I No. 5 Federal Road Traffic Regulations [Straßenverkehrsordnung - StVO] as well as Section 70 I Federal Road Traffic Registration Act [Straßenverkehrszulassungsordnung - StVZO] and, if applicable, further special use permits in accordance with road and route law as well as other necessary public law permits. The contracts concluded under these terms and conditions are subject to a condition subsequent and will end if the permission or approval is refused by the responsible authority. Remuneration claims for services provided until this time shall remain unaffected hereby.
7. Traffic direction measures and secondary provisions
Insofar as traffic direction measures (police escort, auxiliary police, administrative assistants, entrusted companies, etc.) or other conditions and secondary provisions are ordered by official authorities in order to maintain safety and the smooth flow of road traffic and/or to protect the road construction substance, the contracts concluded under these terms and conditions shall also be subject to the condition subsequent of the timely availability of the security forces and the ability to implement the official security measures in time. The contractor undertakes to apply for the necessary official permissions and approvals in writing in time according to the relevant administrative regulations and to inform the customer without delay about such conditions and secondary provisions for the execution of the transport, which could render more difficult or impede the transport flow. In this respect we refer to the BSK information leaflet „Traffic Direction Measures“ in the latest version.
8. Subcontractors and change in the mode of transport
Unless agreed otherwise, the contractor is entitled to employ other enterprises and/or modes of transport to fulfil the assumed contractual obligations.
9. Termination of contract
The contractor is entitled to withdraw from the contract without any claims for damages if, after careful examination before or during the use of vehicles, equipment or working devices of any kind has revealed that significant damage to third party and/or own property and/or assets or injury to persons will very probably be inevitable despite all reasonable efforts to avoid such damage. The exclusion of damage compensation claims is void if the contractor failed to comply with the due diligence required of a proper merchant (carrier). In the case of rescission, the remuneration for crane services is charged pro rata and transport services are subject to the statutory provisions.
10. Regulations relating to unavoidable impediments to services, interruptions due to weather conditions
The contractor is entitled to interrupt the deployment immediately in case of hazard to equipment, load, personnel and/or third parties. It shall not lose its claim for remuneration in case of force majeure or, if the obstacles could not be avoided despite making reasonable efforts and applying extreme care and attention.
Interruptions due to weather conditions shall not reduce the claim for remuneration.
11. Scope of the service
Decisive for the contractor’s service are the crane, crane frame or transport contract or the agreements in the international
consignment note. The contractor shall be responsible for that which is respectively necessary for the individual services
according to Subclauses 2 to 4. Services or activities beyond this, in the broader sense, are either to be agreed or shall become a new content of the contract according to the following regulations by way of amendments to the contract. Only if agreed, the contractor shall also provide the necessary posting, instruction and other personnel at the cost of the customer.
In addition, the contractor shall inform the customer about the relevant device data, such as wheel, chain and support pressures and the resulting floor loads.
II. SPECIAL PART
12. Obligations and liability of the contractor
Obligations of the contractor
The contractor shall owe the provision of a hoist that is suitable for the order, which has been tested according to the relevant
statutory provisions and the applicable rules of technology and occupational safety and is ready for operation. Unless explicitly agreed otherwise, the contractor shall not be responsible for attaching the load or for providing suitable lifting gear, such as sling chains, sling ropes or lifting straps. The contractor is only liable for supplied personnel within the scope of the applicable principles for a fault in the selection of personnel. Except in the case of an obvious inaccuracy or incompleteness of the details the contractor is not obliged to check or supplement the details to be provided by the customer, in particular with regard to weight, dimensions, quantities and other relevant special features of the loads that are to be transported.
12.1. Exclusion of liability
Liability, in particular for the late provision, is excluded in case of force majeure, civil commotion, warlike or terrorist acts, strike and lock-out, blockades of transport routes, circumstances due to weather conditions, road block as well as other unforeseeable, unavoidable and serious events.
12.2. Limitation to liability
Except in the case of wilful intent and gross negligence of the contractor and its vicarious agents the liability of the contractor, in particular with the late provision, is limited to the damages that were foreseeable upon conclusion of the contract and which are typical for the contract.
This limitation to liability shall not apply to the injury to life, the body and the health of persons.
Crane work and transport services
13. Obligations of the contractor
The contractor undertakes to properly and expertly execute all orders placed with it with all means and technical possibilities at its disposal by complying with the relevant rules of technology.
14. Selection of means of transport, hoisting equipment and personnel
The contractor in particular undertakes to deploy suitable transport means and hoisting equipment which are ready for operation, safe to operate and tested in accordance with the applicable provisions. Furthermore, the contractor undertakes to provide, in particular, suitable operating personnel (crane operators and vehicle drivers) who are familiar with the operation of the transport means or hoisting equipment.
15. Liability of the contractor
15.1. Basic regulation
The statutory regulations governing the freight business shall apply in this Section. The liability of the contractor during the safekeeping for damages to goods is - except in cases of qualified culpability pursuant to Section 435 HGB - limited to 8.33 Special Drawing Rights (SDR) per kilogramme of the damaged or lost property.
In the case of carriage by sea, the contractor will be liable for damage to goods at 2 SDR per kilogram gross weight of the consignment or a maximum of 666.67 SDR per package or unit, depending on which amount is higher. In case of national inland waterway transports the customer will be liable with a maximum of 2 SDR per kilogramme gross weight of the shipment. The same shall apply with multimodal transports with a vessel transport share if the damage location is unknown.
15.2. Liability extensions for the benefit of the customer
For the benefit of the customer the contractor will be liable in deviation from Subclause 15.1 for damages to goods up to the amount of EUR 600,000.00 as well as for other financial losses, for which liability is fundamentally assumed by law, up to the amount of EUR 125,000.00, respectively per damaging event under the lapse of the limitations to liability in terms of amount. The statutory regulations shall apply to damage amounts in excessive of this.
15.3. Exclusions of liability for carriage by sea and international inland waterways
15.3.1. Carriage by sea
Pursuant to Section 512 Para. 2 No. 1 HGB it is agreed that the contractor, in its position as transport agent shall not be responsible for a fault of its employed staff and the vessel crew if the damage due to a conduct during the steering or the other operation of the vessel, however not with the execution of measures, which were primarily taken in the interest of the load, or was caused by fire or explosion on board a vessel.
15.3.2. International inland waterway transport
The contractor, as carrier or executing carrier shall not be liable either pursuant to Article 25 Para. 2 CMNI if the damage
- was caused through an act or omission of the captain, pilot or other person in the service of the vessel or of a pusher or towboat in the nautical command or the assembly or disassembly of a pusher or towboat, presuming that the carrier has satisfied its obligations in accordance to Article 3, paragraph 3 of CMNI with regard to the crew, unless the act or omission is committed with the intention of causing the damage or recklessly and with knowledge that such damage would probably occur;
- was caused by fire or explosion on board of the vessel without it being proven that the fire or the explosion was caused by a fault of the carrier, the executing carrier or its employees or authorised agents or through a defect of the vessel,
- is a result of defects to its or to a rented or chartered vessel, which existed before commencement of the journey, if it proves that the defect could not be discovered before commencement of the journey despite applying the required care and attention.
15.4. Limitations to Liability
Incidentally, the following shall apply outside of the safekeeping of the contractor as well as for other breaches of obligations:
Except in the case of wilful intent and gross negligence of the contractor and its vicarious agents, the liability of the contractor shall be limited with respect to the amount to the damages, which are foreseeable upon conclusion of the contract and that are typical for the contract.
This limitation to liability shall not apply to the injury to life, the body and the health of persons.
16. Declaration of higher value
If the customer requires a higher amount than that specified in Subclause 15.2, this must be explicitly so agreed before the order is placed and the contractor is entitled to charge the customer for the costs of insuring correspondingly higher liability.
17. Insurance of the goods
17.1. Request for cargo insurance
The contractor shall only be obligated to insure the goods insofar as an explicit written order has been submitted for this purpose, stating the insured value and the risks to be covered. The mere declaration of value is not to be understood as an order for insurance.
17.2. Special regulations in case of cargo insurance
Acceptance of the insurance policy does not signify that the contractor assumes the obligations incumbent on the customer as policyholder; however, the contractor must take all usual measures in order to uphold the right to claim from the insurance.
17.3. Agreement of customary insurance terms and conditions
In the absence of any deviating written agreements, the contractor shall insure under the customary insurance terms and conditions at its registered seat at the expense of the customer.
Obligations and Liability of the Customer
18. General obligations of the customer and assistance of the contractor
The customer must create all technical prerequisites necessary for the proper and safe execution of the order at its own account and risk and must maintain these during the assignment. The customer is especially obligated to maintain the goods to be handled in a condition ready and suitable for executing the order. The customer is moreover obligated to state correctly and in good time the dimensions, weights and special features of the goods (e.g. centre of gravity, type of material), as well as the load fastening points in the case of crane work. Unless otherwise agreed, the customer owes the slinging of the load and shall provide the appropriate slinging equipment.
The customer in particular has to comprehensively pass on its special know-how as well as information that is not generally known (together with documents) in writing.
Statements and declarations by third parties employed by the customer to fulfil the obligations of the customer are deemed to be own statements of the customer.
The contractor has, if necessary, beyond the information obligations regulated in Subclause 11, to support the customer and, in addition, to provide the individual acts of assistance regulated in the following Subclauses.
19. Special obligations relating to access routes
The customer must obtain the necessary permission of the owners for the use of third party properties, private roads, paths and squares and must indemnify the contractor against any third party claims that may arise from unauthorised use of a third party property.
The customer shall bear the risk of the construction road connection owing to the obligation to ensure public safety for which it is responsible.
20. Special obligations with regard to ground conditions, access routes, crane workstation, place of deployment
20.1. Ground conditions at the place of deployment and access routes
The customer shall be responsible for ensuring that the ground, site and other conditions at the place of deployment as well as the access routes - with the exception of public roads, paths and squares - permit proper and safe execution of the order. The contractor has to assist hereby and to provide the acts of assistance regulated in Subclause 11.
20.2. Reference to special risks
The customer always has to point out special risks and to remedy these either itself or to have these remedied, insofar as they stem from the scope of the customer. The customer has, in particular, to provide the details which are necessary in order for the contractor to be able to sufficiently assess the special requirements.
20.3. Ground conditions
The customer shall be responsible for ensuring that the ground conditions at the place of loading and unloading or at the site of operation as well as at the access routes are able to withstand the occurring ground pressures and other stresses. If applicable, the contractor also has to give indications of possibilities of the ground investigation in case of unknown ground conditions, as well as indications for making ground conditions possible for safe operation. The contractor also has to give other suitable indications, which are typically known to it as an operator, insofar as this is recognisably required by the customer.
20.4. Construction field
With regard to the place of deployment and access route the customer has, if necessary, in particular depending on the communicated wheel, chain and support pressures, to establish the possible construction field to a suitable extent. Insofar as the contractor intends to use parking spaces that deviate from the agreed, instructed or recognisable construction field, it has to accordingly involve the customer and to determine the suitability in the interaction with the customer.
20.5. Shafts, cavities or other undetectable obstacles
The customer is responsible for all information on underground cable ducts, supply lines, other underground lines and cavities which could impair the load-bearing capacity of the ground at the site of operation or the access routes. The customer is obligated to draw attention to the location and presence of open and overhead lines, underground cables, conductors, shafts and other cavities or to other undetectable obstacles which could impair the stability and operational safety of the vehicles and equipment used at the site of operation. The contractor shall explicitly point out typical risks occurring in the concrete situation, such as shafts or cavities in public roads, paths and squares, insofar as the customer recognisably requires or explicitly asks for such information. The customer is obligated to point out any particular hazards that may arise during the execution of the crane or transport services with regard to the goods to be transported and their surroundings (e.g. hazardous goods, contamination damage). The contractor also has to give the indications in this case that are possible for it as an operator, e.g. of typical and special risks known to it, insofar as these are not recognisably known to the customer.
20.6. Details of the customer
By complying with the above, the contractor may rely on all details of the customer with regard to the ground conditions and is not obligated to check the information that is made available, unless this is obviously inaccurate or incomplete or it is derived from the nature of the matter that special features exist with regard to the ground conditions.
21. Instructions of the customer
After placing the order, the customer is not permitted to give instructions without the contractor’s consent to the personnel of the contractor that deviate in type and scope from the contractual agreements or that are in contradiction to the purpose of the contract.
22. Liability of the customer
If the customer culpably breaches the aforementioned obligations, especially its obligation regarding preparation, information and assistance, then the customer is liable towards the contractor for any damages arising as a result. This does not affect the regulation of Section 414 Para. 2 HGB. The customer must indemnify the contractor against third party damage compensation claims arising from a breach of the obligations of the customer. In the event of the assertion of a claim against the contractor under the German Environmental Damage Act [Umweltschadensgesetz - USchadG] or other comparable public-law, national or international regulations, the customer must indemnify the contractor in the internal relationship to the full, unless the contractor caused the damage wilfully or due to gross negligence. The plea of co-fault shall remain unaffected hereby for both parties.
III. FINAL PROVISIONS
23. Regulations relating to remuneration including invoicing, offsetting / retention, right of lien and right of retention of the contractor
23.1. Bases of the remuneration
Unless agreed otherwise, settlements will be carried out according to time units (hourly or daily rates). Unless agreed otherwise, the remuneration obligation shall begin to apply with departure of the lifting or transport vehicle from the contractor’s depot and ends when said vehicle returns. If hourly or daily rates are agreed, then these also apply for outbound and homebound travelling times and for rigging times. In case of hourly rates settlement will be carried out for each started half an hour, in case of settlement according to daily rates each started workday.
Fees and costs for official expenses as well as all procurement costs and costs, which are incurred by official conditions and other secondary provisions, as well as police escort fees or costs for auxiliary police, for administrative assistants and for company-own transport safety and other costs for officially ordered safety precautions will be borne by the customer, insofar as not otherwise agreed.
The agreed amounts do not include VAT, which is to be paid to the contractor additionally, insofar as owed by law.
The services of the contractor are preliminary services and do not entitle to the deduction of cash discount. After fulfilment of the order, the invoices of the contractor must be settled immediately following invoice receipt, unless agreed otherwise when the order was placement.
23.2. Offsetting, retention
Offsetting and retention is only permitted against claims from the contract and thus associated non-contractual claims if the due counter-claims are undisputed, ready for decision or have been declared final and binding, unless the customer concerns a consumer.
23.3. Right of lien and right of retention
The contractor has a right of lien and a right of retention to the goods or other values at its power of disposal, owing to all due and not due claims, to which it is entitled against the customer from the activities stated in Subclause 2 to 4. However, the right of lien and of retention does not go beyond the statutory right of lien of a carrier or lessor and the general right of retention.
With regard to a right of lien and retention owing to claims from other contracts concluded with the customer Section 366 Para. 3 HGB shall apply.
The contractor may only exercise a right of lien or right of retention due to claims from other contracts concluded with the customer if these claims are disputed or have been declared final and binding or if the debtor’s asset situation puts the claim of the contractor at risk.
The due period of one month stipulated in § 1234 German Civil Code for threatening to sell pledged items is replaced in all cases by a due period of one week.
The customer is entitled to object to the exercising of the right of lien if it grants the contractor an equivalent means of collateral with regard to the claim, e.g. an absolute bank guarantee. This shall also apply to rights of retention.
24. German law, place of jurisdiction
Place of performance and place of jurisdiction, also for cheque and bill of exchange legal actions between merchants, is exclusively the registered seat of the contractor. All contracts concluded by the contractor are subject to German law. This also applies to foreign customers.
25. Regulations regarding the written form
Where statements are required in writing, electronic communication and any other readable form is considered as equivalent provided that it clearly identifies the issuer.
26. Severability regulation
Should parts of these General Terms and Conditions be invalid or not applicable in an individual case, for any contractual or legal reason, this shall have no effect on the remaining provisions.
General Terms and Conditions of Business for heavy transport and crane work
General Terms and Conditions of Business of Wimmer Maschinentransporte GmbH
for heavy transport and crane work General Terms and Conditions of the German Federal Working Group Heavy Transport and Crane Work AGB-BSK Crane and Transport, as at 2013
I. GENERAL SECTION
1. All our crane and haulage services, as well as rough assemblies, are subject to the following terms and conditionsu nless overriding statutory regulations stipulate otherwise (e.g. German Commercial Code (HGB) or CMR, CMNI/CLNI,CIM/COTIF or MÜ).
2. Crane services in the meaning of these terms and conditions are provided in two categories:
2.1. Category 1 - Crane hire
Crane hire means the provision of hoisting equipment with operating personnel to the customer for carrying out work in accordance with the customer’s instructions and arrangements.
2.2. Category 2 - Crane work
Crane work refers to the carriage of goods, especially hoisting, moving and transporting loads and/or persons for the purpose of working with a mobile hoist and relates to accomplishing one or several contracted hoisting manoeuvres by the contractor according to the instructions and arrangements. This includes especially isolated marshalling of heavy objects by means of a crane.
3. Transport service in the meaning of these terms and conditions is the commercial transportation of goods and movingor relocating goods, especially by means of special auxiliary transportation gear such as e.g. heavy load rollers, armouredrollers, heavy duty roller gears, lifting jacks, air cushions, hydraulic lifting scaffolding and lifting portals or similar(so-called ground or transfer transports) including interim storage in connection with the transportation. Heavy itemsare usually transported unpacked and without tarpaulin cover. Packaging or covering the load with tarpaulins, loading,stowing and lashing – excepting sea cargo – are only owed by the contractor if this is contracted. The customer isagreed with open deck loading for shipment by sea.
4. Rough assemblies and disassemblies are components of the crane or transport service if this is contracted. This includes fitting together or disassembling and fastening or loosening the load for preparing or carrying out the transportation. The BSK Terms and Conditions of Assembly in the latest version apply for assembly services going beyond this (finalassembly, trial run, fine adjustments, etc.).
5. Results of site inspections and special agreements, e.g. with regard to the loading and unloading locations, crane location, etc. must be recorded in writing by the parties.
6. Contracts for carrying out large volume and heavy transports or moving cranes in public road traffic require thepermission or approval of the responsible pubic authority, especially with regard to § 18 I 2 and § 22 II, IV and § 29 III and § 46 I No. 5 of the Federal Road Traffic Regulations (StVO) as well as § 70 I Federal Road Traffic Registration Act (StVZO). These contracts are concluded exclusively under the condition precedent that the required permission or approval is granted in good time.
7. If the authorities order traffic direction measures (police escort, etc.) or decree other requirements and ancillary stipulations to comply with road safety and unimpeded traffic circulation and/or to protect road surfaces, then these contracts are also concluded under the condition precedent that the escort and/or safety personnel is available in good time and that the official traffic safety measures can be implemented in good time. The contractor commits to inform the customer immediately of such requirements and ancillary stipulations for executing the transport which could handicap or hinder the transport. In this respect we refer to the BSK information leaflet “Traffic Direction Measures”.
8. Unless otherwise agreed, the contractor is entitled to employ other enterprises to fulfil the assumed contractual obligations.
9. The contractor is entitled to withdraw from the contract without this giving rise to damage compensation claims if a careful examination before or during the deployment of vehicles, equipment or working devices of any kind has revealed that significant damage to third party and/or own property and/or assets or injury to persons will very probably be inevitable despite all reasonable efforts to avoid such damage. The exclusion of damage compensation claims is void if the contractor ignored the due diligence required of a proper merchant (carrier). In the case of withdrawal, the remuneration for crane services is charged pro rata and transport services are subject to the statutory provisions.
10. The contractor is entitled to interrupt the deployment immediately in case of hazard to equipment, load, personnel and/or third parties. Interruptions caused by weather conditions do not diminish the entitlement to claim remuneration while taking saved expenditure into account if the impediments due to adverse weather conditions were insurmountable despite reasonable endeavours.
11. The service by the contractor is determined according to the crane or transport order or the agreements in the international consignment note. Only if so agreed does the contractor also supply necessary auxiliary, instruction and other personnel and the possibly necessary slingers at the cost of the customer. Unless otherwise agreed, billing is according to time units (hourly or daily rates). Unless otherwise agreed, the remuneration obligation comes into being with departure ofthe lifting or transport vehicle from the company grounds of the contractor and ends when said vehicle returns. If hourly or daily rates are agreed, then these also apply for outbound and homebound travelling times and for rigging times. Hourly rates are accounted as per started half-hour and daily rates as per started working day. Unless otherwise agreed, the customer bears the charges and costs for official charges and all procurement costs and costs incurred due to official requirements and other ancillary stipulations, as well as police escort fees or the costs for the company’s own safety measures and other costs for safety precautions ordered by the authorities. The agreed amounts are understood as without VAT, which must be paid to the contractor in addition in the respective statutory amount.
II. SPECIAL SECTION
Obligations and liability of the contractor
12.1 If the main service performed by the contractor consists of the designated supply to the customer of lifting equipment with operating personnel in order to carry out work in accordance with the customer’s instructions and arrangements, then the contractor is under the obligation to provide a generally and particularly suitable hoist that complies with the applicable statutory provisions and valid regulations for technical equipment of the Safety Standards Authority (TÜV) and is approved pursuant to the Accident Prevention Regulations (UVV) and is ready for operation. The contractor is only liable for supplied personnel within the scope of the applicable fundamentals for a fault in the selection of personnel.
12.2 Liability for failure to provide equipment in good time is excluded in cases of force majeure, strikes, roadblocks and other unavoidable occurrences, unless the contractor could have avoided their consequences if the contractor had taken the necessary due care usual in the business.
12.3 The liability of the contractor in all other cases of failure to provide equipment in good time is limited to the typically foreseeable damage. This limitation is null and void in cases of intent or gross negligence.
Crane work and transport
Obligations and liability of the contractor
13. The contractor commits to execute all orders placed with him properly and expertly with all means and technical possibilities at his disposal in observance of the applicable rules of technology.
14. The contractor commits especially to deploy generally and particularly suitable transport means and suitable hoisting equipment that comply with the applicable statutory provisions and valid regulations for technical equipment of the Safety Standards Authority (TÜV) and Accident Prevention Regulations (UVV). Furthermore, the contractor commits to provide generally and particularly suitable operating personnel (crane operators and vehicle drivers) who are familiar with operating the transport means or the hoisting equipment.
15.1. If the main service performed by the contractor consists of crane work and/or transportation, then the statutory regulations governing the freight carrying business apply. The liability of the contractor for damage to goods is – excepting in cases of qualified culpability – limited to 8.33 special drawing rights (SDR) per kilogramme of the damaged or lost property. For transportation by ship the contractor shall be liable in these cases to a maximum of 2 SDR per kilo-gramme gross weight of the consignment or a maximum of 666.67 SDR per packaging piece or unit.
15.2. The contractor waives the right to object to the limitation of liability in sum total pursuant to section 15.1 for damages to goods up to the amount of € 500,000.00 and for other pecuniary damages up to the amount of € 125,000.00, each per damage occurrence.
15.3 The contractor has no liability if the damage is caused due to the conduct of his people, the ship crew or other persons in the service of the ship in their navigation or other operation of the ship or caused due to fire or explosion on-board the ship.
16. If the customer requires a higher amount than that specified in section 15.2, this must be explicitly so agreed before the order is placed and the contractor is entitled to charge the customer for the costs of insuring a correspondingly higher liability.
17.1. The contractor is only obligated to insure the goods insofar as an explicit written order has been submitted for this stating the insurable value and the risks to be covered; merely stating the declared value shall not be understood as an order for insurance cover.
17.2. Acceptance of the insurance policy does not signify that the contractor assumes the obligations incumbent on the customer as policyholder; however, the contractor must take all usual measures in order to uphold the right to claim from the insurance.
17.3. In the absence of any deviating written agreements, the contractor insures to the insurance conditions usual at his registered business domicile.
Obligations and liability of the customer
18. The customer must create all technical prerequisites necessary for proper and safe realisation of the order at his own account and risk and must maintain these during the assignment. The customer is especially obligated to maintain the goods to be handled in a condition ready and suitable for executing the order. The customer is moreover obligated to state correctly and in good time the dimensions, weights and special characteristics of the goods (e.g. centre of gravity, type of material, etc.), as well as the load fastening points in the case of crane work.
19. The customer must obtain the necessary permission for the use of third party properties, private roads and places and must indemnify the contractor against any third party claims that may arise from unauthorised use of a third party property.
20. Furthermore, the customer is responsible that the ground, place and other circumstances at the deployment site, as well as the access paths – except public roads, paths and places – allow an orderly and safe execution of the assignment. The customer is especially responsible that the ground structure at the place of loading and unloading or where the crane stands and access roads can support the ground pressure loads and other loads. Finally, it is theresponsibility of the customer to state all positions of underground cable conduits, supply pipelines and other lines and cavities that could impair the load-bearing capacity of the ground at the deployment site or on the access roads. Without being specially requested to do so, the customer must indicate the positions and existence of exposed and overhead conducting lines, underground cables, conduits, shafts and other cavities or other unrecognisable impediments that could impair the standing and operating safety of vehicles at the deployment site, as well as other particular hazardous situations (e.g. hazardous substances, contamination damages, etc.) which could arise while carrying out crane work or transportation with regard to the transported goods and the surroundings. Statements and declarations by third parties employed by the customer to fulfil the obligations of the customer are deemed to be own statements of the customer.
21. After placing the order, the customer is not permitted to give instructions without the consent of the contractor to the personnel of the contractor that deviate in type and scope from the contractual agreements or that are in contradiction to the purpose of the contract.
22. If the customer culpably offends against the aforesaid obligations, especially his obligation regarding preparation, information and cooperation, then the customer is liable to the contractor for any damages arising as a result. This does not affect the regulations of § 414 paragraph 2 German Commercial Code. The customer must indemnify the contractor fully against third party damage compensation claims arising from a breach of the obligations of the customer. In the case of recourse to the contractor under the Environmental Damage Act (USchadG) or other comparable public, national or international law, the customer must indemnify the contractor in the internal relationship to the full, unless the contractor caused the damage wilfully or in gross negligence. This does prejudice the plea of co-culpability for both parties.
III. CONCLUDING PROVISIONS
23. The performances of the contractor are preliminary performances and do not entitle discounts. After the assignment is fulfilled, the invoices of the contractor must be settled immediately following acceptance and invoice receipt, unless otherwise agreed at order placement. Netting or withholding is only permissible with counterclaims that are uncontested or established with lawful finality, unless the customer is a consumer. For all claims, whether due or not due, to which the contractor is entitled against the customer from the activities stated in sections 2 to 4, the contractor has a right of lien and a withholding right to the moveable items or other assets in his possession. However, the right of lien and withholding does not go beyond the statutory right of lien of a freight carrier or lessor and the general withholding right. Rights of lien and withholding due to claims from other transportation contracts concluded with the customer are governed by § 366 paragraph 3 German Commercial Code. The contractor may also only exercise a right of lien or withholding right due to claims from other contracts concluded with the customer if these claims are uncontested or established with lawful finality or if the debtor’s assets situation puts the claim of the contractor at risk. The due period of one month stipulated in § 1234 German Civil Code for threatening to sell pledged items is replaced in all cases by a due period of two weeks. If the customer is in default, then after sale is threatened the contractor can freely sell that quantity of the goods and values in his possession which he deems at his own dutiful discretion to be sufficient to obtain satisfaction. In all cases the contractor can charge a locally usual sales commission from the net proceeds of the sale of pledged items or self-help sale.
24. Place of jurisdiction, also for cheque and bill of exchange protests between merchants, is exclusively the court of law with jurisdiction at the registered place of business of the contractor. All contracts concluded by the contractor are subject to German law. This also applies for non-German customers.
25. Where statements are required in writing, electronic data transmission and any other readable form is considered as equivalent provided that it clearly identi-fies the originator.
26. Should parts of these general terms and conditions be invalid or impracticable for any contractual or legal reasons, this shall not affect the remaining provi-sions: in this respect § 139 German Civil Code is regarded as null and void.
General Terms and Conditions of Business of Wimmer Maschinentransporte GmbH
for the hire of lifting platforms and stackers General Terms and Conditions of the German Federal Working Group Heavy Transport and Crane Work AGB-BSK Platforms and Stackers, as at 2014
1. Application scope
1.1 Work platforms (platforms) and industrial trucks (forklift and telescopic stackers etc.) are hired out exclusively on the basis of the following General Terms and Conditions of Hire. Contradicting or deviating terms and conditions of the Lessee are explicitly refuted. In continuing business relations with contractors the once-only explicit referral to these General Terms and Conditions of Hire suffices also for future contractual relations.
1.2 These General Terms and Conditions of Hire apply towards consumers as well as towards contractors, corporate bodies under public law and special funds under public law, unless a distinction is drawn in the respective clause. Clauses that apply towards contractors also apply towards corporate bodies under public law and special funds under public law.
2. Proposal, Contract conclusion, Hire price
2.1 A contract first comes into being when the order is confirmed in writing.
2.2 The prices stated in the order confirmation shall be binding. The hire rate shall consist of the equipment costs only and without operating personnel – excepting those cases in No. 4 – and without fuel or energy costs. Unless explicitly agreed otherwise, the stated hire prices relate exclusively to a maximum daily period of use of nine hours per calendar day, unless explicitly agreed otherwise. Operation over two or more shifts is only permitted after prior arrangement with us and with our written consent.
3.1 The Lessor shall be obligated to provide to the Lessee, for the period stated in the hire contract, a reliable and roadworthy hire device which is tested and approved according to Technical Inspection Association (TÜV) standards and § 10 Industrial Safety Regulation (BetrSichV) for the contractually agreed purpose.
3.2 The Lessee – unless this is a consumer – shall bear the responsibility for ensuring that the requested hire device is suitable for the purpose for which it is hired. On request, the Lessor provides working diagrams, load curves and other technical specifications for the individual hire devices to enable the suitability of the devices to be determined.
3.3 However, the Lessee has no entitlement to a specific hire device unless a separate agreement has been made. The Lessor shall at all times be entitled to select a hire device which is technically equivalent and at least equally suitable for the operational requirements of the Lessee.
3.4 The Lessee bears sole responsibility for trouble-free accomplishment of the work he intends to carry out, ensuring unrestricted access to land and premises, obtaining all necessary official permits and cordoning off the area(s) in question, and ensuring that the hire item can be used safely with regard to ground conditions, the environment and other operational risks. The Lessee shall be obligated to inform the Lessor, without special request, of the presence of buildings and obstacles in the operating area, such as underground canals, conduits, shafts, trenches, underground car parks and any weight restrictions applicable to road structures etc. and/or, if the Lessee is operating the equipment himself, he shall be obligated to independently find out about such obstacles prior to starting the works he intends to undertake.
3.5 The Lessee has no claim for damage compensation if the hire item cannot be deployed punctually due to reasons for which the Lessor is not answerable. The same applies if despite prior functionality inspection the hire item fails during use for no fault of the Lessor. Unless contractually agreed otherwise, the Lessee bears the costs of the downtime during which the hire item cannot be deployed due to bad weather or due to other circumstances for which the Lessor is not answerable.
3.6 Work platforms may only be used to carry persons within the scope of the respective permitted maximum load. Work platforms may not be used for pulling loads or cable assemblies or similar. This kind of work is therefore strictly prohibited. Exempt from this are lifting platforms with power-lift systems for simultaneous load transport specifically approved for this purpose. Industrial conveyors may not be used to carry persons unless they are specifically approved and prepared for this purpose.
4.1 In the case of hire with specialist operating personnel, the Lessor shall provide a trained operator together with the hire item. Hire devices which are rented together with specialist personnel may only be operated by these personnel.
4.2 For the period of the hire, the specialist operating personnel shall work exclusively for and under the instruction of the Lessee within the context of a service procurement contract. Lessor is therefore only liable for the provided operating personnel according to the principle of fault in selecting an agent.
4.3 If it is contractually agreed that the Lessor is to deliver and collect hire devices, this shall be understood to be exclusively to/from the construction site, insofar as this site can be accessed by the towing vehicle. The agreed transportation price shall especially not include setting up and equipping the work platform on the construction site, or in rear courtyards or rooms etc.
4.4 Transportation of self-propelled hire devices outside the construction site shall be undertaken exclusively by the Lessor.
5. Conditions of use for self-drivers
5.1 Self-drive devices shall only be hired out on condition that the Lessee and/or the Lessee‘s operating personnel are aged 18 or over and fulfil the applicable occupational health and safety protection laws and accident prevention regulations. Instruction regarding the operation of the hire devices shall only be given on presentation of valid proof of competence and – if necessary – a valid driving licence.
5.2 Only those persons we have instructed shall be entitled to operate the hire item and the Lessee must have explicitly authorised them to do so.
5.3 When the hire item is handed over the Lessee will be given the vehicle documentation, operating instructions, maintenance notes and an information leaflet concerning the action to be taken in case of accident. Before first operation of the equipment Lessee is obligated to inform the operating personnel in a suitable manner about the contents of all provided documents and must order these persons to observe all instructions concerning industrial and health safety contained therein.
5.4 The Lessee undertakes to handle the hire item with care, not to overload it, and to observe all statutory provisions in connection with the possession or use of the hire item and pertaining equipment, in particular with regard to the applicable industrial safety and accident prevention regulations. In the case of rough work, the hire item must be adequately covered and protected against dirt. This applies especially in the case of painting and decorating, welding and cleaning work using acids. The hire item may not be used in close proximity to areas where painting or sandblasting work is being carried out, nor may it be exposed to extreme heat or cold.
5.5 The hire item may not be sublet or transferred to third parties without prior written permission. Furthermore, the Lessee shall not be entitled to move the hire item to a site of operation other than that specified in the hire contract.
5.6 The Lessee is obligated to check the operating consumables and the water level of the battery on a daily basis and to replenish these where necessary at his own expense. The Lessee shall be liable for damage caused as a result of insufficient quantities of operating consumables.
6. Terms of payment
6.1 The hire charges must be paid as from the time when the hire item leaves our depot until its return. Transport of the hire item from the depot to the site of operation and back shall – if carried out by the Lessor – be charged according to the actual time spent at the agreed hire rates and/or at agreed flat rates. The accounting shall be based on the order confirmation and the hire rates and/or hourly rates stated therein. Each day of hire or part thereof shall be charged at the full rate.
6.2 The agreed device hire rates shall be payable strictly net with no deductions on receipt of the invoice. Statutory default interest shall be charged if the payment deadline is overrun.
6.3 The Lessor shall be entitled to request a reasonable advance payment prior to provision of the hire device and/or to request reasonable instalment payments during the hire period.
6.4 In the event that the Lessee fails to meet his payment obligations under the hire contract or if damage to the hire item is suspected, the Lessor shall have the right to gain access to the site of operation at which the hired device is located and to take possession of the hire device by way of self-remedy.
6.5 The Lessor is moreover entitled to withhold any outstanding services until arrears are paid. The Lessor may as he chooses either refuse to continue to provide hire devices until the corresponding contract value is paid in full or, at his own option – without the Lessee being entitled to claim any compensation – withdraw wholly or partially from performance of the contract and charge a flat rate of 25% of the contract value, insofar as the Lessor can prove higher damages or the Lessee can prove that no or significantly lower damages were incurred.
6.6 The Lessee shall only be entitled to offset if his counterclaims are undisputed or have been established as final and absolute. The Lessee shall only be entitled to exercise a right of retention if his counterclaim is based on the same contractual relationship.
7.1. The Lessee must inform the Lessor without delay of any defect or any interruption in the operation of the hire item during the period of deployment and shall immediately shut down the hire item if necessary. The period for giving notice of defects shall be deemed to have been observed if notice of a defect is sent promptly.
7.2. The Lessor shall be obligated to remedy any reported faults or malfunctioning of the hire item as soon as is technically and practically possible, insofar as the Lessor is responsible for such faults or malfunctioning.
7.3 All warranty rights of the Lessee shall be forfeit if defects are not notified promptly.
8. Liability; Insurance
8.1 The hire item passes into the custody of the Lessee as from the moment it is handed over to him. The Lessee bears the cost of all damage caused to the hire item as a result of its use. The period of assumption of risk by the Lessee shall not end until the device is duly returned and the return inspection report is signed. On acceptance of the hire item, the Lessee shall assume the entire operational risk for the duration of the hire contract and shall in particular warrant that the ground conditions at the site of operation are such that they permit safe use of the hire item. In this respect, the Lessee shall indemnify the Lessor against third-party claims within the internal relationship. This shall also apply in the event that recourse is sought against Lessor under the Environmental Damage Act (USchadG) or other comparable public-law, national or international regulations, insofar as the Lessor did not cause the damage with intent or through gross negligence.
8.2 Unless agreed otherwise, the Lessor takes out machinery breakdown and comprehensive insurance which also insures the material usage interests of the Lessee and includes the Lessee under the coverage offered by the machinery breakdown and comprehensive insurance policy. The Lessee must however bear the contractual deductible per damage claim in every case.
8.3 In otherwise, the Lessee shall be liable for all damage that he or his operating personnel cause to the hire item, and for all downtime arising as a result. In case of doubt, the costs for repairs and downtime shall be charged to the Lessee on the basis of the opinion of a sworn publicly accredited expert.
8.4 The Lessee shall be liable in each case and to the full extent for all damage caused by any one of the following as a result of using the hire item, whereby recourse to the provider of the machinery breakdown and comprehensive insurer is permitted:
a) any accident or damage to the hire item caused through gross negligence or wilful conduct,
b) damage to superstructures caused by failure to observe the clearance height,
c) damage caused by failure to observe the safety and deployment conditions or due to unsuitable anti-theft measures,
d) unauthorised subletting of the hire item, or letting to unauthorised persons,
e) in all other cases in which the insurer provides no coverage under the machinery breakdown and comprehensive insurance contract.
8.5 The machinery breakdown and comprehensive insurance policy taken out by the Lessor (section 8.2) does not include liability insurance to cover the business operation risks of the Lessee. Hire devices subject to mandatory official registration shall only have liability insurance cover within the scope of statutory compulsory liability insurance and with the prescribed minimum amounts of coverage. It is therefore strongly recommended that the Lessee extend the coverage offered by his business liability insurance to include the hired device for the duration of hire.
8.6 The Lessee may assert further claims for compensation against the Lessor, to the full extent, in particular compensation for damage not sustained to the hire item – irrespective of the legal grounds – only in the event of
a) wilful conduct or gross negligence
b) culpable injury to life, limb or health
c) defects which the Lessor has maliciously concealed or which the Lessor has guaranteed do not exist
d) cases where liability exists under the Product Liability Act (ProdHaftG) for bodily injury and property damage to privately used items. In the event of culpable breach of essential contractual obligations, the Lessor shall also be liable for minor negligence, but limited to damage which is reasonably foreseeable and typical for this kind of contract. Further claims shall be excluded.
9. Further obligations of the Lessee
9.1 No claims whatsoever of the Lessee may be assigned, whether with regard to performance, any kind of warranty or otherwise to compensation.
9.2 If a third party should assert rights in the hire item by way of confiscation, levy of execution or the like, the Lessee shall be obligated to notify the Lessor immediately in writing and to inform the third party in writing of the property rights of the Lessor.
9.3 The Lessee must take reasonable steps to protect the hire item against theft.
9.4 The Lessee must inform the Lessor in the event of any accidents and – except in the case of impending danger – await instructions from the Lessor. The police must be involved in cases of road accidents or theft.
9.5 If the Lessee culpably fails to abide by the above provisions (sections 9.1 to 9.4), he shall be obligated to pay compensation for all damages incurred by the Lessor as a result, unless said damages are covered by a statutory compulsory insurance policy.
10. Termination of the hire contract
10.1 The Lessor shall be entitled to declare the hire contract terminated without observing a notice period if
a) the Lessee is in default for more than 14 calendar days after a written reminder has been issued or a cheque or bill of exchange from the Lessee is protested.
b) it first becomes apparent after conclusion of the contract that the entitlement to be paid the hire fee is at risk due to inability to pay on the part of the Lessee.
c) the Lessee uses the hire item or a part thereof for a purpose other than the intended purpose or moves the item to another site or transfers it to unauthorised third parties without our permission.
d) if the Lessee culpably violates the provisions under section 5.4 and sections 9.1 to 9.4.
10.2 The Lessee may terminate the hire contract without observing a notice period if the hire item cannot be used due to circumstances for which the Lessor is answerable.
11.1 On expiry of the hire period the Lessee shall be obligated to return the hire item to the Lessor at the agreed location in the same condition as it was in when accepted by the Lessee, with the exception of normal wear and tear to the hire item sustained through use in accordance with the contract.
11.2 Unless agreed otherwise, the hire item must be returned during the usual hours of business of the Lessor at a time which is early enough to allow the Lessor to inspect the hire item for functionality and damage on the same day. If the hire item is returned outside usual hours of business or parked at the Lessor‘s depot without prior notice, this shall be at the expense and own risk of the Lessee. The Lessee shall remain responsible for ensuring safe custody of the hire item until it is accepted back by the Lessor.
12. Concluding provisions
12.1 Should any provision of these terms and conditions of hire be or become invalid or impracticable, this shall not impair the validity of all other provisions or agreements herein. Section 139 of the German Civil Code (BGB) shall be waived in this respect.
12.2 For all disputes arising in connection with the contractual relationship, including claims for bill of exchange and cheque receivables, if the Lessee is a merchant, a corporate body under public law or a special fund under public law, legal proceedings may as the Lessor chooses also be initiated before the court with jurisdiction over the head office of the Lessor or the branch office of the Lessor which is conducting the hire process.
12.3 It is agreed that the hire contracts concluded between the contracting parties shall be subject to German rental law, even if the site of operation of the hire item or the registered office of the Lessee are located outside Germany.
12.4 All disputes arising from or in connection with this contract or concerning its legal force shall be settled by an ordinary court of law.
Terms and Conditions of Assembly of Wimmer Maschinentransporte GmbH
for heavy equipment assembly Terms and Conditions of Assembly of the German Federal Working Group Heavy Transport and Crane Work (BSK), as at 2008
For use with respect to:
1. Any person who on conclusion of the contract is acting in the execution of their commercial or independent professional activities (entrepreneur);
2. Corporate bodies under public law or a special fund under public law.
These Terms and Conditions of Assembly shall apply to all assembly work undertaken by a company in the heavy transport sector (contractor) unless agreements have been made to the contrary in individual cases and insofar as the assembly work does not constitute purely basic assembly work in connection with transport preparations or procedures as defined in the General Terms and Conditions of Business of the German Federal Working Group Heavy Transport and Crane Work (AGB-BSK).
II. Service specifications, assembly fee
The assembly service shall be subject exclusively to the service specifications of the orderer, upon which the call for tenders, the cost estimate and/or the quotation from the contractor have been based. Unless otherwise agreed, the contractor shall be obligated to ensure that the assembly is successful. The billing for the assembly work shall be based on units of time except where a flat-rate fee has been expressly agreed. The agreed amounts shall be understood to be exclusive of VAT, which shall be paid to the contractor at the statutory rate.
III. Technical assistance from the orderer
1. Unless otherwise agreed, the orderer shall be obligated to provide technical assistance at his own expense, including but not limited to: a) The execution of all preparatory activities, in particular excavation, construction, foundation and scaffolding work, including the procurement of the necessary building materials. b) The provision of heating, power and lighting current, compressed air and water, including the necessary connections. c) The provision of any required dry and lockable rooms for the storage of tools and the auxiliary and operating materials of the assembly personnel. d) The provision of appropriate, theft-proof recreation rooms (with heating, lighting, washing facilities, sanitary facilities) and first aid for the assembly personnel. e) The provision of any auxiliary materials and the execution of all other activities which are required to enable the adjustment and calibration of the item to be assembled and the performance of a contractually agreed pre-commissioning inspection. f) The protection and safeguarding of the assembly site and materials against harmful influences of any kind, and the cleaning of the assembly site.
2. The technical assistance provided by the orderer must ensure that the assembly can be commenced immediately following the arrival of the assembly personnel and can be continued without delay until the time of the acceptance by the orderer. Insofar as special plans or instructions from the contractor are required, the latter shall make these available to the orderer in good time.
3. In the event that the orderer fails to fulfil his obligations, the contractor shall be entitled but not obligated, after stipulating a time limit, to carry out the activities for which the orderer is responsible at the orderer's site and at the orderer's expense. The statutory rights and claims of the assembly company shall otherwise remain unaffected.
VI. Assembly deadline, assembly delay
1. The assembly deadline shall be deemed to have been met if by the time of its expiry the assembly work is ready for acceptance by the orderer or, in the event of a contractually agreed pre-commissioning inspection, ready for its execution.
2. If the assembly is delayed as a result of force majeure, instructions from higher authorities or measures connected with industrial action, including but not limited to strikes and lock-outs, or the occurrence of circumstances for which the contractor is not responsible, a reasonable extension of the assembly deadline shall be granted insofar as such obstacles can be proven to have considerable influence on the completion of the assembly work. The same shall apply if such circumstances occur after the contractor has defaulted.
3. If the orderer suffers damages as a result of the default of the contractor, he shall be entitled to demand lump-sum compensation for default. This compensation shall amount to 0.5% for each full week of the delay, but in total no more than 5% of the assembly fee for that part of the system to be assembled by the contractor which cannot be used on time as a result of the delay. The assertion of any further damages caused by default shall be excluded unless the contractor caused the damages with intent or through gross negligence.
4. If after the due date the orderer sets the contractor a reasonable deadline for performance of the service, taking into account statutory exceptions, and if the deadline is not observed, the orderer shall be entitled to withdraw from the contract within the scope of the statutory regulations. Further claims resulting from default shall be determined exclusively in accordance with section VII. 2. of these terms and conditions.
1. The orderer shall be obligated to accept the assembly work as soon as he is notified of its completion and as soon as any contractually agreed pre-commissioning inspection of the assembled item has taken place. If on acceptance the assembly proves to be not in accordance with the contract, the contractor shall be obligated to remedy the defect. The orderer may not refuse acceptance in the event of an insignificant defect.
2. If the acceptance is delayed through no fault of the contractor, acceptance shall be deemed to have occurred after a period of two weeks has elapsed since notification of the completion of the assembly work.
3. If the orderer accepts the assembly work without reservation despite being aware of the defect, the orderer shall forfeit all rights to supplementary performance, substitute performance against reimbursement of expenses, and price reduction, as well as the right to withdraw from the contract.
VI. Warranty claims
1. Following acceptance of the assembly, the contractor shall be liable for defects to the exclusion of all other claims on the part of the orderer, notwithstanding No. 3 and section VII., to the extent that he shall be required to remedy the defects. The orderer must inform the contractor in writing and without delay of any defects that are discovered.
2. If the contractor allows a reasonable time limit which has been set to allow him to remedy the defect to elapse without success – taking into account statutory exceptions – the orderer shall have the right to a price reduction within the scope of the statutory regulations. The right of the orderer to a price reduction shall also apply in other cases of failure to remedy defects. The customer may only withdraw from the contract if it can be proven that the assembly is of no interest to the orderer despite the price reduction.
3. Further claims shall be determined exclusively in accordance with section VII. 2. of these terms and conditions.
VII. Liability of the contractor, exclusion of liability
1. If through the fault of the contractor, the assembled item cannot be used by the orderer in accordance with the contract as a result of omitted or defective execution of proposals and guidance specified prior to or after conclusion of the contract, and other contractual auxiliary obligations, the warranty claims under section VI. and the following provisions shall apply, to the exclusion of further claims on the part of the orderer.
2. Unless otherwise stated in this contract or in legislation, the contractor shall be liable for damage not sustained to the assembly item itself, irrespective of the legal grounds, only in the event of a) wilful intent b) gross negligence on the part of the owner/agencies or executive employees c) culpable injury to life, limb or health d) defects which the contractor has maliciously concealed e) or within the scope of a guarantee promise.
In the event of gross negligence on the part of simple vicarious agents, the liability of the contractor shall be limited to damage which is foreseeable and typical for this kind of contract, unless the contractor can contract out of such liability by virtue of commercial custom. In the event of culpable violation of essential contractual obligations, the contractor shall also be liable for gross negligence on the part of non-executive employees and for slight negligence, but limited to damage which is foreseeable and typical for this kind of contract.
3. Further claims shall be excluded. In the event that the contractor seeks recourse under the Environmental Damage Act (USchadG), or other comparable public-law, national or international regulations, the orderer shall indemnify the contractor fully within the internal relationship, insofar as the latter did not cause the environmental damage with intent or through gross negligence.
VIII. Obligations of the orderer
1. The orderer must at his own risk and expense meet all the technical requirements which are necessary to enable proper and safe execution of the assembly contract, and maintain these throughout the period of the deployment. The orderer shall in particular be obligated to keep the goods to be assembled in a condition that is appropriate and ready for execution of the assembly contract. The orderer shall be obligated to state correctly and in good time the dimensions, weights and any special characteristics of the goods to be assembled (e.g centre of gravity, type of material etc.), as well as suitable lashing and attachment points. The orderer must indicate, without special request and in good time, any particular hazardous situations which could arise during execution of the assembly work with respect to the goods to be assembled and the environment (e.g. hazardous substances, contamination etc.).
2. The orderer must obtain any necessary authorisations from the owners concerned if required in order to access property owned by third parties, or private roads, paths or spaces, and must indemnify the contractor against third-party claims which might arise as a result of unauthorised use of third-party property.
3. Furthermore, the orderer shall be responsible for ensuring that the ground conditions, space availability and other circumstances at the assembly site as well as on the access routes – with the exception of public roads, paths and spaces – will permit proper and safe execution of the assembly contract. The orderer shall in particular be responsible for ensuring that the ground at the assembly site, in any storage and pre-assembly areas and on the access routes is able to withstand the pressures and other stresses that it will be exposed to by the assembly vehicles and equipment (e.g. crane, heavy transport vehicles, lifting gear etc.). Finally, the orderer shall be responsible for stating all the locations of underground cable shafts, supply pipes and other underground lines and cavities which could impair the load-bearing capacity of the ground at the assembly site or on the access routes. The orderer must indicate, without special request, the positions and existence of underground cables, shafts and other cavities. In the event that the orderer culpably fails to fulfil this duty to inform, he shall be liable for all damages arising as a result, and for property damage and consequential property damage caused to vehicles, equipment and apparatus belonging to the contractor, and for financial losses.
4. The orderer must also inform the site supervisor about any existing safety regulations insofar as these are of significance to the assembly personnel. The orderer shall inform the contractor of any instances of violation of such safety regulations (e.g. special instructions applicable to external companies, special safety and protective clothing etc.) by the assembly personnel.
IX. Limitation period
All claims on the part of the orderer – irrespective of the legal grounds – shall become time-barred in 12 months. The statutory time limits shall apply in the case of compensation claims pursuant to section VII. 2. a) – d). If the contractor performs the assembly work on a building and causes the building to become unsound as a result, the statutory time limits shall also apply.
X. Compensation from the orderer
If through no fault of the contractor the equipment or tools supplied by him become damaged at the assembly site of if they become lost through no fault of the contractor, the orderer shall be obligated to pay compensation for all damages arising as a result.
XI. Final provisions
1. All legal relations between the contractor and the orderer shall be subject exclusively to the legislation of the Federal Republic of Germany concerning works and services which is applicable to legal relations between domestic parties, even if the assembly site is located outside Germany.
2. The services of the contractor shall constitute advance performance and shall not be eligible for any cash discount deduction. The invoices of the contractor must be paid immediately after acceptance and receipt of the invoice except where other payment terms were agreed at the time of the awarding of the contract. The orderer shall only be entitled to offset or withhold payment if his counter-claims are undisputed or have been established as final and absolute.
3. The place of jurisdiction shall be the court with jurisdiction over the registered place of business of the contractor. The contractor shall however be entitled to institute legal proceedings in the location of the head office of the orderer.
4. Should any provision of these terms and conditions of business or a provision in other agreements be or become invalid or unenforceable in individual cases, this shall not affect the validity of the remaining provisions or agreements. Section 139 of the German Civil Code (BGB) shall be waived in this respect. In such a case, the contractor and the orderer shall together replace the invalid provision with a valid provision which corresponds as closely as possible to the economic purpose of the invalid provision.
General Terms and Conditions of Delivery by Wimmer Maschinentransporte GmbH
for haulage operations
General German Freight Forwarders Terms and Conditions (ADSp), as at 2017
The German Freight Forwarders’ Standard Terms and Conditions 2017 (Allgemeine Deutsche Spediteurbedingungen 2017 – ADSp 2017) are recommended for use as of 1 January 2017 by the Federal Association of German Industry (BDI), the Federal Association of German Wholesale, Foreign Trade and Services (BGA), the Federal Association of Road Haulage, Logistics and Disposal (BGL), the Federal Association of Furniture Forwarders and Logistics (AMÖ), the Federal Association of Transport and Logistics in Industry and Trade (BWVL), the Association of the German Chambers of Industry and Commerce (DIHK), the Federal Association of German Freight Forwarders and Logistics Operators (DSLV) and the German Retail Federation (HDE). This advice is non-binding and the contract parties are free to make agreements that deviate from the contents of this recommendation.
(For user-friendliness, Section 1 ADSp 2017 (“Definitions”) is sorted in alphabetical order. The numbering is according to the German version of the ADSp 2017.)
Legal person to whom the goods shall be delivered according to the Freight Forwarding Contract or valid instruction of the Principal or other persons authorised to dispose of.
1.11 Damage Case/Damage Event
Damage Case means, when, due to an external process, a claimant raises a claim on the basis of a Freight Forwarding Contract or in lieu of a freight forwarding claim; Damage Event means, when, due to an external process, several claimants raise claims on the basis of several Freight Forwarding Contracts.
1.6 Dangerous Goods
Dangerous Goods are goods that have the potential to endanger people, Vehicles or legal interests of third parties during the course of standard transportation, warehousing or other activities. In particular, hazardous goods are defined as goods that fall in the scope of application of statutes and regulations relating to hazardous goods, such as provisions covering dangerous materials, water or garbage.
The term of Delivery includes also the delivery in the warehouse business.
1.13 Freight Forwarder
Legal person, which concludes a Freight Forwarding Contract with the Principal. Freight Forwarders are particularly carrier according to section 407, Freight Forwarder according to section 453, warehouse keeper according to section 467 and sea freight carrier according to sections 481, 527 HGB
1.14 Freight Forwarding Contracts (“Verkehrsverträge”)
The ADSp cover all Freight Forwarding Contracts undertaken by the Freight Forwarder as contractor for all activities, regardless of whether they are freight forwarding, carriage of goods (by sea), warehousing or other, typical services pertaining to the freight forwarding business, such as customs handling, tracking of goods or cargo handling. These terms and conditions also apply to all typical logistical services included in freight forwarding, if these are in relation to the transport or warehousing of goods, in particular to activities such as the creation of loading units, consignments, labelling, weighing of goods and returns processing. Contracts about the presentation of manned motor Vehicles for use on instruction by the Principal shall also be deemed as Freight Forwarding Contracts (“Lohnfuhrverträge”).
After acceptance and before Delivery of the goods by the Freight Forwarder, Interfaces are defined as any transition of the goods from one legal person to another any transhipment from one Vehicle to another, any (temporary) storage.
1.7 Loading Means
Means for the aggregation of Packages and for the creation of loading units, such as pallets, container, swap trailers, bins.
1.16 Material Contractual Obligations
Material Contractual Obligations are defined as those that initially enable the contractually agreed fulfilment of the Freight Forwarding Contract and on which the contracting partner is entitled to reasonably rely on.
Single items or units formed by the Principal for the fulfilment of the order with or without Loading Means, which the Freight Forwarder must handle as one ensemble (freight item as defined by sections 409, 431, 504 German Commercial Code (HGB).
1.8 Place of Loading/Discharge
The postal address, if the parties have not agreed on a more precise location.
1.19 Point of Time
Agreed Point of Time for the arrival of the Freight Forwarder at the Place of Loading or Place of Discharge.
Legal person which concludes a Freight Forwarding Contract with the Freight Forwarder.
Legal Person, which hands over the goods for transportation according to the Freight Forwarding Contract or on a valid instruction.
1.3 Theft-Sensitive Goods
Theft-Sensitive Goods are those exposed to an increased risk of robbery and theft, such as money, precious metals, jewellery, watches, precious minerals, art, antiques, check books, credit cards and/or other payment means, stocks and security papers, documents, spirits, tobacco, entertainment electronic goods, telecommunications goods, IT equipment and accessories as well as smart cards.
1.18 Time Frame
Agreed Time Frame for the arrival of the Freight Forwarder at the Place of Loading or Place of Discharge.
1.9 Time of Performance
The time (date, time of day) up to a particular performance must be taken place, for example a Time Frame or Point of Time.
1.17 Valuable Goods
Good, at the time and place of taking over, with an actual value of at least 100 Euro/kg.
Means of transport for the transportation of goods on traffic routes.
2. Scope of application
2.1 The ADSp cover all Freight Forwarding Contracts undertaken by the Freight Forwarder as contractor.
2.2 Statutory provisions which cannot be modified by pre-formulated standard terms and conditions take precedence over the ADSp.
2.3 The ADSp do not apply to businesses that are exclusively dedicated to:
2.3.2 transportation and warehousing of towed or salvaged goods,
2.3.3 transportation and warehousing of removal goods according to section 451 HGB,
2.3.4 storage and digitalisation of files; files are all types of embodied and digitalised business papers, documents, data storage mediums and similar objects for information collection,
2.3.5 abnormal and heavy-load transports, which require a transportation regulation permission or exception, crane services and associated assembly work,
2.4 The ADSp do not apply to Freight Forwarding Contracts with consumers as defined in Section 13 German Civil Code (BGB).
3. Obligation of the Principal regarding placing of orders, information requirements, special goods
3.1 The Principal shall inform the Freight Forwarder about all relevant parameters affecting the carrying out of the order. These include
3.1.1 addresses, type and quality of the goods, the gross weight (including packaging and Loading Means) or otherwise specified quantities, marks, numbering, quantities and type of Packages, specific characteristics of the goods (such as live animals and plants, perishability), the value of the goods (for example for customs purposes or the insurance of goods according to clause 21 ADSp) and Delivery times,
3.1.2 all public-legal duties and safety regulations, such as duties relating to customs, foreign trade regulations (particularly those relating to goods and people as well as specific country embargos) and legal safety obligations.
3.1.3 in case of carriage of goods by sea, all relevant data in the compulsory form relating to safety statutes (e. g. International Convention for the Safety of Life at Sea (SOLAS).
3.1.4 intellectual property rights of third parties, such as trademark and license limitations which are connected to the possession of the goods, including legal or regulatory hindrances capable of prejudicing the processing of the order.
3.1.5 specific technical requirements for the means of transport and particular cargo securing means to be supplied by the Freight Forwarder.
3.2 In case of Dangerous Goods, the Principal must inform the Freight Forwarder in due time and in text form about the quantity and specific nature of the hazard including - if required - the necessary safety measures. If Dangerous Goods fall into scope of the law on the transport of dangerous goods (Gesetz über die Beförderung gefährlicher Güter (GGBefG) or if other transported and stored goods fall into scope of other Dangerous Goods or garbage related statutes or regulations, the Principal must provide the relevant information, in particular the classification according to the relevant Dangerous Goods laws, and, at the latest, during the handover of the goods, supply the required documentation.
3.3 In case of valuable or Theft-Sensitive Goods, the Principal must inform the Freight Forwarder in text form regarding the type and value of the goods and the current risks involved to enable the Freight Forwarder to assess the acceptance of the order or take appropriate measures for the safe and damage-free completion of said order. In case of acceptance of the order, the Freight Forwarder is obliged to undertake appropriate safety measures for protecting the goods.
3.4 The Principal is responsible for supplying the Freight Forwarder with all information, certificates and other documentation required, such as customs classification, for the correct processing of customs or other statutorily required handling of the goods, including, but not limited to, security checks for air freight shipments.
4. Rights and duties of the Freight Forwarder
4.1 The Freight Forwarder shall act in the interest of the Principal, check the placed order for obvious faults and immediately inform the Principal, if required, about all dangers known bythe Freight Forwarder for the fulfilment of the order.
4.2 The Freight Forwarder takes care that the Vehicles, loading safety means and, if their presentation is agreed, Loading Means are in a technically perfect condition, comply with statutory provisions and the requirements of the Freight Forwarding Contract. Vehicles and Loading Means shall be equipped with the typical appliances, equipment or methods for the protection of the goods, in particular loading safety means. Vehicles shall have low emissions and noise as well as low energy consumption.
4.3 The Freight Forwarder shall deploy reliable, appropriate and, for the particular task in question, suitable and duly employed, qualified and trained drivers and, if required, with a driver certification.
4.4 On foreign premises, the Freight Forwarder shallt comply with the house rules, plant or construction site regulations in force, if they were announced to the Freight Forwarder. Section 419 HGB remains unaffected.
4.5 The Freight Forwarder is entitled to make customs clearance dependent on issuance of a written power of attorney that assigns direct representation.
4.6 If the Freight Forwarder is assigned with the cross-border transportation of the goods or the import or export customs clearance, the Freight Forwarder is, in case of doubt, also entitled to act in regards to the customs or other statutorily required handling of the goods, if the transport of the goods to the agreed destination would be impossible without such action. The Freight Forwarder is hereby entitled
4.6.1 to open Packages whenever such action is necessary to comply with statutorily required controls (for example, Freight Forwarder as regulated agent), and, subsequently, to undertake all measures necessary to complete the order, such as repackaging the goods.
4.6.2 to advance payments required by customs.
4.7 In case of damage to or delay of the goods and upon request by the Principal or Consignee, the Freight Forwarder must procure immediately all required and known information for securing their compensation claims.
4.8 In the absence of a separate agreement in the order supplied to the Freight Forwarder, the service does not include:
4.8.1 the supply or replacement of pallets or other Loading Means,
4.8.2 the loading and unloading of goods, unless otherwise indicated by circumstances or common practice.
4.8.3 a transhipment ban (Section 486 HGB does not apply),
4.8.4 the allocation of a shipment tracking system, unless it is in line for this sector of industry. Clause 14 ADSp remains
4.8.5 returns, detours and hidden additional cargo. If in deviation to the actual order, one or more Packages are handed over and accepted for transportation by the Freight Forwarder, then the Freight Forwarder and the Principal concludes a new Freight Forwarding Contract about these goods. In case of returns or hidden additional cargo and in absence of a separate agreement, the terms and conditions of the original Freight Forwarding Contract will apply. Clause 5.2 ADSp remains unaffected.
4.9 Further service and information obligations, for example quality management measures and their auditing, monitoring and evaluation systems as well as key performance indicators needs to be expressly agreed.
5. Contact person, electronic communication and documents
5.1 Upon request of a contracting party, each side will nominate one or more contact persons to receive information, explanations and enquiries regarding the fulfilment of the contract and exchange names and addresses. This information needs to be updated in case of changes. If either contracting party fails to provide details for a contact person, then the relevant signatory to the contract shall be the designated contact person. Information obligations, which exceeds the obligation in statutory provisions, for example measures of the Freight Forwarder in case of disruptions, in particular, an imminent delay during takeover or Delivery, obstacles to carriage and Delivery, damages to the goods or other disruptions (emergency concept) needs to be agreed separately.
5.2 In the absence of an expressly agreement, contractual statements by warehousing or transport personnel require approval from the respective party to be considered valid.
5.3 The Principal takes care of the required declarations to be supplied by the Principal’s Shipper or Consignee during the fulfilment of the contract at the Place of Loading and Place of Delivery, and of real actions, such as Delivery and receipt of the goods.
5.4 If agreed between the Principal and the Freight Forwarder, the parties will transmit and receive the shipping details, including the creation of the invoice, by electronic means (electronic data interchange / remote transmission). The transmitting party carries the responsibility for the loss, completeness and validity of any sent data.
5.5 In case of an agreement according to clause 5.4 ADSp, the parties ensure that their IT system is ready for operation and that data can be processed appropriately, including the usual safety and control measures, to protect the electronic data exchange and prevent unauthorized access, modification, loss or destruction by third parties. All parties are obliged to give timely notification of any changes to their IT systems that could affect the electronic data interchange.
5.6 Electronic or digital documents, in particular proof of deliveries, shall be considered equal to written documents. Furthermore, each party is entitled to archive written documentation in exclusively electronic or digital format and to eliminate originals, the latter always in consideration of the legal regulations regarding the same.
6. Packaging and labelling duties of the Principal
6.1 The Principal shall pack the goods, and if required, clearly and permanently label all Packages with their required identifications, such as addresses, marks, numbers and symbols relating to the handling and characteristics of the goods. Old identification marks must be removed or garbled. The same applies for Packages.
6.2 Furthermore, the Principal is responsible for:
6.2.1 identifying all items belonging to the same shipment, to ensure easy recognition,
6.2.2 ensuring that Packages, if required, cannot be accessed without leaving external traces.
7. Securing cargo and supervisory duties of the Freight Forwarder
7.1 In all cases where loading and discharge occurs at more than one location, the Freight Forwarder takes care for the security of cargo until the last Place of Discharge and at all times, but not before the completion of loading in a transport safety manner.
7.2 The Freight Forwarder shall conduct controls at all Interfaces. The Freight Forwarder shall check completeness and identity of the goods, their apparent good order and condition as well as all seals and locks and record any irregularities in the accompanying documents or via separate notification.
8.1 The Freight Forwarder shall issue a certificate of receipt with reservations noted, if necessary.
In case of doubt, the certificate of receipt issued by the Freight Forwarder only confirms the number and type of Packages, but not their content, value, weight or other measurements.
8.2 Previously loaded or sealed loading units, such as containers or swap bodies and previously transmitted data, the accuracy of the certificate of receipt regarding quantity and type of loaded Packages is vitiated, if the Freight Forwarder notifies the Principal on differences (in quantity) or damages, immediately after unloading the loading unit.
8.3 The Freight Forwarder must request proof of Delivery from the Consignee in form of a Delivery receipt listing all Packages as outlined in the order or other accompanying documentation. Should the Consignee refuse to issue a Delivery receipt, the Freight Forwarder must request instructions from the Principal.
The Principal can demand the Delivery receipt for a period of one year after the goods have been delivered.
8.4 As receipt for takeover or Delivery of the goods counts any signed document which gives evidence for fulfilment of the order, such as Delivery notes, forwarders certificate of receipt, consignment note, sea way bill, consignment bill or a bill of lading.
8.5 The certificate of receipt and Delivery receipt can also be issued electronically or digitally, unless the Principal requests the issuing of a consignment note, sea way bill, consignment bill or bill of lading.
Upon conclusion of the contract, the Freight Forwarder must follow all instructions regarding the cargo, unless carrying out such instructions poses disadvantages to his business or damages to consignments of other Principals or Consignees. If the Freight Forwarder intents not to follow an instruction, then the Freight Forwarder shall inform the instructor immediately.
10. Freight payment, cash on Delivery
10.1 Notifications by the Principal to the effect that the order should be executed freight collect or for the account of the Consignee or a third party, for example according to Incoterms, do not exempt the Principal from his obligation to pay the Freight Forwarder its remuneration and outlays, including freights, customs charges and other expenses. Freight collect instructions, for example according to section 422 HGB, Article 21 CMR, remain unaffected.
11. Default of loading and Delivery times, demurrage
11.1 In cases where the Principal must load or unload the Vehicle, the Principal has the obligation to do so within the agreed, otherwise within a reasonable loading and unloading time.
11.2 If, in case of carriage of goods by road, the parties agree on a Time Frame or Point of Time or is such notified by the Freight Forwarder without objection by the Principal, Shipper or Consignee, the loading and unloading time - irrespective of the number of shipments per Place of Loading and Discharge - for full truck loads, but with the exception for bulk goods, for Vehicles with 40 tons maximum permissible weight shall be maximum 2 hours for loading and unloading in general. The times shall be reduced appropriately for Vehicles with a lower maximum permissible weight in the individual case.
11.3 The loading or unloading time begins with the arrival of the road vehicle at the designated Place of Loading and Discharge (for example, by notifying the gate keeper), and ends when the Principal has completed all its duties. However, if a Time of Performance has been agreed for the arrival of road Vehicles at the Place of Loading and Discharge, the loading and unloading time does not begin before the agreed presentation time.
11.4 In cases where the contractually agreed loading and unloading time are not maintained due to reasons beyond the Freight Forwarder’s scope of responsibility, the Principal must pay the Freight Forwarder the agreed, otherwise commonly accepted, demurrage fees.
11.5 The aforementioned provisions apply accordingly, when the Freight Forwarder is obliged to load and unload the goods, and when the Principal is exclusively committed to prepare the goods for loading or to accept them after unloading.
12. Performance hindrances and force majeure
12.1 If the Freight Forwarder is unable to take over the goods, or unable to take them over on time, the Freight Forwarder must immediately notify and seek instruction from the Principal. Section 419 HGB applies accordingly. The Principal remains entitled to terminate the Freight Forwarding Contract, whereas the Freight Forwarder is not entitled to ask for compensation according to section 415 (2) HGB.
12.2 Performance hindrances that do not fall within the scope of responsibility of either contracting party, free said parties of their performance duties for the duration of the hindrance and the extent of its impact.
Such performance hindrances are defined as force majeure, civil unrest, war or acts of terrorism, strikes and lock-outs, transport route blockades, and any other unforeseeable, unavoidable and serious events.
In case of a performance hindrance, the contracting parties are obliged to notify the other party immediately. Additionally, the Freight Forwarder is obliged to ask the Principal for instructions.
13.1 If, after arrival at the Place of Discharge, it becomes apparent that the unloading cannot take place within the time of unloading, the Freight Forwarder must immediately notify the Principal and request for relevant instructions. Section 419 HGB applies accordingly.
13.2 If the Freight Forwarder cannot adhere to the agreed Time of Performance or - in the absence of an agreement - to a reasonable time for Delivery, the Freight Forwarder shall request instructions from the Principal or the Consignee.
13.3 In cases where the Consignee is absent at the designated home, business or shared location address and if the Consignee lives therein, the goods, always assuming there are no obvious doubts regarding the entitlement to receive the goods of the person in question, may be delivered to:
13.3.1 an adult family member; a family employee; or an adult with permanent residence at the designated home address,
13.3.2 an employee at the designated business location,
13.3.3 a manager or representative authorised to receive the goods at the designated shared location.
13.4 In cases where the Freight Forwarder and Principal have agreed on Delivery without the presentation to an actual person (for example, night, garage or assembly line deliveries), Delivery is deemed to have taken place on the actual physical deposit of the goods at the agreed location.
13.5 The Delivery can only take place under supervision of the Principal, Consignee or a third party authorised for reception. Clauses 13.3 and 13.4 ADSp remain unaffected.
14. Information and restitution duties of the Freight Forwarder
14.1 The Freight Forwarder has the duty to supply the Principal with the required information and, upon request, with the status of the business as well as to demand accountability upon completion. However, the Freight Forwarder is only obliged to reveal costs, if the Freight Forwarder works on Principal’s account.
14.2 The Freight Forwarder has the duty to give anything to the Principal what he has received by carrying out and managing the business.
15.1 The Principal has the duty to pack and mark the goods, if required, and to make available all documents and information to the Freight Forwarder for an appropriate storage.
15.2 The Freight Forwarder decides in its sole discretion if warehousing takes place in its own facilities or, if not otherwise agreed, those of third parties. Whenever warehousing take place at third party warehouses, the Freight Forwarder must supply timely information regarding its name and location to the Principal or, whenever a warehouse warrant has been issued, to make a note of the information on the same.
15.3 The Freight Forwarder takes care for the duly maintenance and care of the warehouse and storage space, the drives on the premises and for securing the goods, in particular theft protection. Additional security measures, for example measures exceeding the statutory fire protection laws, must be explicitly agreed.
15.4 Unless otherwise agreed:
15.4.1 takeover of the goods for warehousing begins with the unloading of the goods from the Vehicle by the Freight Forwarder and ends with the completion of the Delivery by the Freight Forwarder.
15.4.2 inventory management is via the Freight Forwarder’s inventory accounting,
15.4.3 there is one physical inventory inspection per year. On instruction of the Principal, the Freight Forwarder shall conduct further physical inventories against compensation.
15.5 With taking over the goods and if appropriate examination means are available, the Freight Forwarder is obliged to conduct a receiving inspection on types, quantities, marks, numbering, quantities of Packages as well as outer visible damages according to section 438 HGB.
15.6 The Freight Forwarder shall conduct regular inspections with appropriate personnel for securing the goods.
15.7 In case of stock shortfall and imminent changes at the goods, the Freight Forwarder shall immediately inform the Principal and ask for instructions. Section 471 (2) HGB remains unaffected.
15.8 Additional service and information obligations require an explicit agreement.
16.1 The services according to the Freight Forwarding Contract are compensated with the agreed remuneration, if this remuneration includes the costs for transportation and warehousing. Supplemental claims for costs occurred during regular transportation or warehousing and which were not foreseeable at the time of the offer, cannot be claimed separately, unless otherwise agreed. Calculation errors are at the expense of the calculator. sections 412, 418, 419, 491, 492, 588 until 595 HGB and comparable provisions of international conventions remain unaffected.
17. Compensation claims and right of recourse
17.1 The Freight Forwarder is, if not caused by him, entitled to ask for refund of expenses properly incurred, in particular those relating to average contributions, detention or demurrage charges, including additional packaging for protecting the goods.
17.2 If the Principal instructs the Freight Forwarder to receive goods and if, on reception of the goods by the Freight Forwarder, freight, cash on delivery, customs duties, taxes, or other expenses and charges are demanded, the Freight Forwarder is entitled - but not obliged - to pay these costs according to the circumstances he has properly assessed, and to claim reimbursement from the Principal, unless otherwise agreed.
17.3 On request, the Principal must immediately indemnify the Freight Forwarder for expenditures, such as freight, average contributions, customs duties, taxes and other fees demanded from the Freight Forwarder, in particular acting as a person authorised to dispose or as possessor of goods belonging to third parties, unless the Freight Forwarder is not responsible for their accrual.
18. Invoices, foreign currencies
18.1 Remuneration claims of the Freight Forwarder require the reception of an invoice or payment schedule in accordance to statutory requirements. If not otherwise agreed, the maturity is not dependent on presenting a delivery receipt in case of an uncontested Delivery.
18.2 Regarding foreign Principals or Consignees, the Freight Forwarder is entitled to ask whether to receive payment in the relevant foreign currency or in Euro (EUR).
18.3 If the Freight Forwarder owes foreign currency or has advanced foreign currency amounts, the Freight Forwarder is entitled to ask for payment in either the relevant foreign currency or in EUR (EUR). In case of Euro (EUR), currencyc onversion is made according to the official exchange rate on the day of payment, which shall be evidenced by the Freight Forwarder.
18.4 Payment according to a credit memo procedure must be expressly agreed. In case of doubt, all credit memos are to be issued immediately, upon completion of services. Clause 18.1 1st sentence ADSp is not applicable for credit memo procedures.
19. Set-off, Retention
In the face of claims arising from the freight forwarding contract and associated non-contractual claims, set-off or retention is only permitted when the claim is uncontested, ready for decision or legally established.
20. Lien and retention rights
20.1 The Freight Forwarder is entitled to secure its demands arising from freight forwarding services according to the legally permitted regulations regarding lien and retention rights.
20.2 Lien rights can be exercised according to the legally established provisions, providing:
20.2 Lien rights can be exercised according to the legally established provisions, providing:
20.2.1 the threat and the required notifications about the lien exercise and the sale of the pledged items by the carrier shall be forwarded to the Consignee,
20.2.2 the time limit of one month as specified in section 1234 BGB is superseded by a time limit of two weeks.
20.3 The Principal is entitled to prohibit the exercise of the lien by granting an equivalent security for its claims, such as a directly enforceable bank guarantee.
21. Insurance of goods
21.1 The Freight Forwarder arranges the insurance of the goods (c. f. goods in transit or warehousing insurance) with an insurer of its choice, when the Principal assigns the Freight Forwarder to do so prior to handing over the goods.
21.2 The Freight Forwarder shall arrange insurance for the goods, if this is in the interests of the Principal. The Freight Forwarder can assume that insurance is in the interests of the Principal, in particular when:
21.2.1 the Freight Forwarder has arranged insurance for a previous Freight Forwarding Contract for the same Principal in the course of an ongoing business relationship,
21.2.2 the Principal has declared a value of the goods for the purposeof insurance.
21.3 The assumption that insurance is in the interest of the Principal according to clause 21.2 ADSp can be discounted, in particular when:
21.3.1 the Principal has prohibited the purchase,
21.3.2 the Principal is a Freight Forwarder, carrier or warehouse keeper.
21.4 In case of purchasing insurance cover, the Freight Forwarder shall observe instructions of the Principal, in particular the amount insured and risks to be covered. In the absence of such an instruction, the Freight Forwarder must assess the type and scope of insurance in its sole discretion and purchase insurance cover at the usual market conditions.
21.5 If, due to the nature of the goods to be insured, or for another reason, the Freight Forwarder is unable to purchase insurance cover, the Freight Forwarder will notify the Principal immediately.
21.6 If the Freight Forwarder purchases an insurance after conclusion of the Freight Forwarding Contract and upon instruction of the Principal or recovers a claim or acts otherwise on behalf of the Principal regarding carrying out insurance claims or averages, the Freight Forwarder is entitled to a reasonable remuneration according to local standards, otherwise, an appropriate remuneration, in addition to the compensation of its expenses, even in the absence of a prior agreement.
22. Liability of the Freight Forwarder, Subrogation of claims of reimbursement
22.1 The Freight Forwarder is liable for damages according to the statutory provisions. However, the following provisions shall apply, in as much as they do not contradict mandatory regulations, in particular the law of pre-formulated terms and conditions.
22.2 In all cases, where the Freight Forwarder is fault-based liable for losses or damages to the goods (“Güterschaden”) according to clause 23.3 and 24, the Freight Forwarder must only pay the value and reimburse the costs according to sections 429, 430, 432 HGB instead of damage compensation.
22.3 In case of inventory divergences, the Freight Forwarder is entitled to balance the inventory with positive stock balance differences and stock shortfall of the same Principal for value evaluation in cases as set out in clause 24 ADSp.
22.5 If the Freight Forwarder has claims, for which the Freight Forwarder is not liable for, against a third party in case of damages, or in cases when the Freight Forwarder has claims exceeding the sum for which the Freight Forwarder is liable, the Freight Forwarder must subrogate such claims to the Principal upon request, unless the Freight Forwarder has a separate agreement to pursue claims on behalf and at the expense of the Principal. sections 437, 509 HGB remain unaffected.
23. Liability limitations
23.1 Except in case of damages during carriage of goods by sea or ordered warehousing, the Freight Forwarder’s liability for damages to goods is limited according to Section 431 (1), (2) and (4) HGB, to:
23.1.1 8,33 Special Drawing Rights (SDR) for every kg, whenever the Freight Forwarder is:
- a carrier, as defined by Section 407 HGB,
- acting as principal (“Spediteur im Selbsteintritt”), fixed costs freight forwarder (Fixkostenspediteur) or consolidator
(“Sammelladungsspediteur”), according to sections 458 to 460 HGB or
- care, custody and control Freight Forwarder (“Obhutsspediteur”) according to Section 461 (1) HGB.
23.1.2 2 instead of 8.33 SDR for every kg, whenever the Principal has agreed to a Freight Forwarding Contract which is subject
to a variety of transport means and includes carriage of goods by sea and an unknown damage place.
In case of a known damage place, the liability according to section 452a HGB is subject to the liability exclusion and
liability limitation of the ADSp.
23.1.3 Whenever Freight Forwarder’s liability according to clause
23.1.1 ADSp exceeds an amount of EUR 1,25 million per Damage Case, this liability is furthermore limited to EUR 1,25 million per Damage Case, or to 2 SDR for every kg, whichever amount is higher.
23.2 The liability of the Freight Forwarder for damages to the goods in its custody for Freight Forwarding Contracts which are subject to carriage of goods by sea and cross-border transportation is limited to the maximum statutory liability amount. Clause 25 ADSp remains unaffected.
23.3 For all cases out of scope of clauses 23.1 and 23.2, such as section 461 (2) HGB, 280 ff BGB, the liability of the Freight Forwarder for damages to goods is limited according to Section 431 (1), (2) und (4) HGB to a maximum of:
23.3.1 2 SDR per kg for Freight Forwarding Contracts relating to carriage of goods by sea or a transportation by a variety of transport means, but including carriage of goods by sea,
23.3.2 8.33 SDR per kg for all other Freight Forwarding Contracts.
23.3.3 Furthermore, the Freight Forwarder’s liability is limited to the maximum amount of EUR 1,25 million for each case of damage.
23.4 The liability of the Freight Forwarder for all other damages than damages to the goods with the exception of damages during ordered warehousing or damages to personal injury or goods of third parties is limited to three times the amount that would be payable for the loss of goods according to clauses 23.3.1 or 23.3.2 ADSp. Furthermore, the Freight Forwarder’s liability is limited for each case of damage to the maximum amount of 125,000 Euros.
23.4.1 Sections 413 (2), 418 (6), 422 (3), 431 (3), 433, 445 (3), 446 (2), 487 (2), 491 (5), 520 (2), 521 (4), 523 HGB as well as any relevant liability provisions in international conventions shall remain unaffected.
23.4.2 Clause 23.4 ADSp is not applicable on statutory provisions, such as Article 25 Montreal Convention (MC), Article 5 Règles uniformes concernant le Contrat de transport international ferroviaire des marchandises (CIM) or Article 20 Convention de Budapest relative au contract de transport de marchandises en navigation intérieure (CMNI), which extend Freight Forwarder’s liability or permit to extend.
23.5 If Freight Forwarder’s liability according to Articles 23.1, 23.3 and 23.4 ADSp exceeds the amount of EUR 2,5 million per Damage Event, then Freight Forwarder’s liability is, irrespective of how many claims arise from a single Damage Event, further limited to a maximum amount of EUR 2,5 million per Damage Event or to 2 SDR per kg for lost or damaged goods, whichever amount is the higher. When there is more than one claimant, the Freight Forwarder’s liability shall be proportionate to individual claims.
24. Liability limitations for ordered warehousing, inventories and declaration of value
24.1 In the case of ordered warehousing, the liability of the Freight Forwarder for damages to goods is limited to:
24.1.1 8.33 SDR for every kg corresponding to 431 (1), (2) and (4) HGB,
24.1.2 a maximum of EUR 35,000 per Damage Case.
24.1.3 70,000 Euros per year, in cases where the damage claimed by the Principal bases, contrary to clause 24.1.2 ADSp, on a difference between calculated stock and actual stock of the inventory, irrespective of the amount and type of inventory taking and the amount of Damage Cases causing the difference in inventory.
24.2 Upon payment of an agreed supplement and prior to warehousing of goods, the Principal can specify a value in text form for an increased liability that differs from the maximum amounts stipulated in clause 24.1. In this case, the specified value replaces the relevant maximum amount.
24.3 In case of warehousing upon instruction, the Freight Forwarder’s liability for other damages, excluding damages to personal injury or goods of third parties, is limited to EUR 35,000 per case of damage.
24.4 In case of warehousing upon instruction, but excluding personal injury or damages to goods of third parties, the Freight Forwarder’s liability is always limited to EUR 2,5 million per Damage Event, irrespective of how many claims arise from a single Damage Event. When there is more than one claimant, the Freight Forwarder’s liability shall be proportionate to individual claims. Clause 24.2 ADSp remains unaffected.
25. Exclusion of liability for carriage of goods by sea and inland waterway transportation
25.1 In accordance with section 512 (2) No. 1 HGB, it is agreed that:
The Freight Forwarder in its position as carrier is not responsible for any fault or neglect on the part of its servants or of the ship’s company, insofar as the corresponding damage was caused in the course of steering or otherwise operating the ship, or was caused by fire or explosion on board the ship and the measures taken were not predominantly for the benefit of the cargo.
25.2 According to Article 25 (2) CMNI it is agreed that the Freight Forwarder in its position as carrier or actual carrier is not liable for damages:
25.2.1 caused by an act or omission by the master of the vessel, the pilot or any other person in the service of the vessel, pusher or tower during navigation or in the formation or dissolution of a pushed or towed convoy, provided that the Freight Forwarder complied with the obligations set out for the crew in Article 3 (3) CMNI, unless the act or omission results from an intention to cause damage or from reckless conduct with the knowledge that such damage would probably result,
25.2.2 caused by fire or an explosion on board the vessel, where it is not possible to prove that the fire or explosion resulted from a fault of the Freight Forwarder or the actual carrier or their servants or agents or a defect of the vessel,
25.2.3 the defects existing prior to the voyage of his vessel or of a rented or chartered vessel if he can prove that such defects could not have been detected prior to the start of the voyage despite due diligence.
25.3 Clause 22.4 ADSp remains unaffected.
26. Non-contractual liability
In accordance with sections 434, 436 HGB, the above mentioned liability exclusions and limitations also apply to non-contractual claims. Clause 23.4.1 ADSp applies accordingly.
27. Qualified fault
27.1 Liability exclusions and limitations listed in clauses 22.2, 22.3, 23.3 and 23.4 in conjunction with 23.5, 24 as well as 26 ADSp do not apply when the damage has been caused by:
27.1.1 intent or gross negligence of the Freight Forwarder or vicarious agents or
27.1.2 infringement of Material Contractual Obligations, whereby such claims are limited to predictable and typical damages.
27.2 Divergent from clause 27.1.2 ADSp, the liability limitations of clause 24.1 and 24.2 ADSp only apply in case of gross negligent or intentional infringements of material contractual duties.
27.3 Sections 435, 507 HGB remains applicable within their scope of application.
27.3 Clause 27.1 ADSp is not applicable on statutory provisions, such as Article 25 MC, Article 36 CIM or Article 20, 21 CMNI, which extend Freight Forwarder’s liability, allows extending or expanding the imputation of fault of servants or third parties.
28. Liability insurance of the Freight Forwarder
28.1 The Freight Forwarder is obliged to purchase and maintain liability insurance at the usual market conditions with an insurer of his choice that, as a minimum, covers the ordinary liability amounts of its freight forwarding liability according to ADSp and statutory provisions. The agreement of maximum insurance amounts per Damage Case, Damage Event and year is permitted as well as the agreement of reasonable deductibles for the Freight Forwarder.
28.2 Upon request, the Freight Forwarder is obliged to provide evidence of the liability insurance and its validity by presentation of an insurance confirmation within a reasonable Time Frame. In absence of such a presentation, the Principal is entitled to terminate the Freight Forwarding Contract extraordinarily.
28.3 The Freight Forwarder is only entitled to rely on the liability limitations of the ADSp, when the Freight Forwarder provides an appropriate insurance cover at the time of order.
29. Liability of the Principal
29.1 The liability of the Principal pursuant to sections 414, 455, 468, and 488 HGB is limited to EUR 200,000 per Damage Event.
29.2 The aforementioned liability limitation does not apply in case of personal injuries, such as injury of life, body and health, if the damage was caused by gross negligence or wilful intent of the Principal or its vicarious agents, or infringement of Material Contractual Obligations, whereas the latter is limited to predictable and typical damages.
30. Applicable law , place of fulfilment, place of jurisdiction
30.1 The legal relationship between the Freight Forwarder and Principal is governed by German law.
30.2 The place of fulfilment for all involved parties is the location of the Freight Forwarder’s branch office dealing with the order or the enquiry.
30.3 The place of jurisdiction for all disputes and all involved parties arising from the Freight Forwarding Contract, an enquiry or in relation to it, is the location of the Principal or Freight Forwarder’s branch office dealing with the order or enquiry, as far as all these parties are merchants. The aforementioned place of jurisdiction shall be deemed as an additional place of jurisdiction pursuant to Article 31 CMR and Article 46 § 1 CIM, but not in case of Article 39 CMR, Article 33 MC, Article 28 Convention for the Unification of certain rules relating to international carriage by air (WC).
31.1 Contractual parties are obliged to maintain confidentiality regarding all unpublished information received during the execution of the freight forwarding contract. This information can only be used for the exclusive purpose of contract fulfilment. The parties shall commit other legal persons with an equivalent confidentiality obligation, if these legal persons are deployed for contract fulfilment.
32.1 The Freight Forwarder shall comply with minimum wage provisions and minimum conditions for workplaces and confirms the compliance in text form upon request of the Principal. The Freight Forwarder indemnifies the Principal for its liability for minimum wages, if the Freight Forwarder, its subcontractor or hirer during the course of fulfilment of the Freight Forwarding Contract, does not pay the minimum wages and the Principal is demanded to pay.
32.2 The Freight Forwarder shall ensure in case of transportation services, that its executing subcontractor
32.2.1 possesses, within the scope of application of the Güterkraftverkehrsgesetz (GüKG), a permission according to section 3 GüKG, an entitlement according to section 6 GüKG or a community license or does not use such a permission, entitlement or license unlawfully.
32.2.2 deploys driving personnel, which comply with the requirements of section 7b (1) sentence 1 GüKG, if applicable,
32.2.3 upon request provides all documents, which must be carried during transportation according to statutory provisions, when the Principal or third parties must comply with statutory controlling obligations,
32.3 In case of transportation, the Freight Forwarder or its executing subcontractor is obliged to organise the activities of its driving personnel according to the compulsory working, driving and recreation times. During the driving of Vehicles, alcohol and drugs are generally prohibited.
32.4 Both contracting parties commit to carrying out their contractual duties and to act according to the legal regulations covering their business and to support and obey the principles of the United Nations Global Compact (UNGC), the United Nations Declaration of Human Rights, and the Declaration of the International Labour Organization regarding the 1998 Declaration on Fundamental Principles and Rights at Work, in accordance with national laws and customs. In particular, both parties will commit to:
32.4.1 no child or forced labour,
32.4.2 comply with the relevant national laws and regulations regarding working hours, wages, salaries and to comply with any other obligations for employers,
32.4.3 to comply with the current regulations on health and safety at work, and to provide a safe and healthy workplace to ensure the health of employees and to avoid accidents, injuries and work-related illness,
32.4.4 prohibit all discrimination based on race, religion, disability, age, sexual orientation or sex,
32.4.5 comply with international standards on corruption, such as those published in UNGC and to adhere to local anticorruption and bribery laws,
32.4.6 adhere to all current environmental protection laws and regulations,
32.4.7 engage its business partners and subcontractors according to the aforementioned principles.l Republic of Germany.