General Terms and Conditions of Delivery of Wimmer Maschinentransporte GmbH. for haulage operations

Transcription

1 General Terms and Conditions of Delivery of Wimmer Maschinentransporte GmbH for haulage operations General German Freight Forwarders Terms and Conditions (ADSp), as at 2003 PREAMBLE These terms and conditions are recommended for use as from 1st January 2003 by the organisations Bundesverband der Deutschen Industrie, Bundesverband des Deutschen Groß- und Außenhandels, Bundesverband Spedition und Logistik, Deutschen Industrie- und Handelskammertag, Hauptverband des Deutschen Einzelhandels. This recommendation is non-binding. The parties to the contract are entitled to enter into agreements which differ from the content of this recommendation. 1. Safeguarding of interests and duty of care The freight forwarding company must safeguard the interests of the client and carry out its operations with the due care of a prudent businessman. 2. Sphere of application 2.1 The ADSp apply to transport contracts in respect of all kinds of operations, regardless of whether they involve forwarding, freight, warehousing or other activities normally associated with the shipping business. The also include forwardingrelated logistics services, provided these are in connection with the shipment or storage of goods. 2.2 In the case of operations relating to a forwarding contract as provided by 453 to 466 German Commercial Code, the freight forwarding company is only obliged to conclude the relevant contracts for the provision of these services provided compelling legal regulations, or those fixed in the T&Cs, do not provide otherwise. 2.3 The ADSp do not apply to transactions, the object of which is exclusively a) Packaging activities, b) The carrying or storage of removals effects, c) Crane or assembly works and heavy or large-volume transportation, with the exception of the freight forwarder s own handling activities, d) The carrying or storage of goods to be towed or for salvage. 2.4 The ADSp do not apply to transport contracts with consumers. A consumer is an individual who concludes the contract for a purpose that cannot be associated with his commercial activity through a business or as a sole operator. 2.5 If general commercial usage or legal provisions differ from the ADSp, the ADSp take priority, unless the legal provisions are compelling or fixed in the T&Cs. In the case of contracts for transport by air, sea, inland waterways or multi-mode transport, differing agreements may be concluded in accordance with any special forwarding conditions that have been laid down. 2.6 The freight forwarding company is authorised to agree to the standard terms and conditions of business of third parties. 2.7 In a relationship between a primary and secondary freight forwarding company, the ADSp apply as General Terms and Conditions of Business of the secondary freight forwarder. 3. Order, transmission errors, content, special types of goods 3.1 Orders, instructions, declarations and information are valid regardless of form. Retrospective changes must be clearly marked as such. The burden of proof for the content and the correct and complete transmission is on whoever invokes it. 3.2 Insofar as declarations are required in writing, remote data transmission and any other readable form shall be considered equally acceptable, provided that the author of the declaration is clearly identifiable.

2 3.3 The Client must inform the fright forwarder on placing an order if the object of the transport contract involves: a) Hazardous goods b) Live animals and plants c) Fragile goods d) Especially valuable goods or goods at risk of theft 3.4 The client must show in the order the addresses, reference indicators, numbers, quantity, type and content of the individual package items, the properties of the goods pursuant to subsection 3.3, the value of the goods for insurance purposes and any other noteworthy details necessary for the proper processing of the order. 3.5 In the case of hazardous goods, the client must, on placing an order, tell to the freight forwarder in writing the precise nature of the hazard and so far as necessary any precautionary measures to be taken. If these are hazardous goods as provided by the law on the shipping of hazardous goods or other goods, the transportation or storage of which are covered hazardous substance, access or disposal regulations, the client must provide all information needed for the proper processing of the order, in particular the classification in accordance with the relevant hazardous goods law. 3.6 In the case of especially valuable goods or those particularly susceptible to theft (e.g. money, precious metals, jewellery, watches, precious stones, works of art, antiques, cheque or credit cards, valid telephone cards or other means of payment, bonds, securities, documents, spirits, tobacco products, electronic communication devices, telecommunication appliances, computer equipment and accessories) and in the case of goods with an actual value of EUR 50.00/kilogram and over, the client must inform the freight forwarder in good time before handover that the freight forwarder has the option of deciding whether to accept the goods and has the opportunity to take measures to ensure that the order is carried out safely and without damage to the goods. 3.7 If the order given to the freight forwarder does not comply with the conditions set out in subsections 3.3 to 3.6, the freight forwarder is entitled, a) to refuse to accept the goods, b) to return or make ready for collection and goods already accepted, c) to dispatch, ship or store the goods without informing the client, and to charge a reasonable additional amount, provided the secure, damage-free processing of the order incurs higher costs. 3.8 The freight forwarder is not obliged to check or add to the information given pursuant to subsections 3.3 to The freight forwarder is not obliged to check the signatures or authorisation of the signatory on any notifications or other documents relating to the goods, unless there are grounds for doubting the genuineness or the authorisation. 4. Packaging, provision of loading aids and packaging materials, weighing and inspection of the goods 4.1 Unless agreed otherwise, the order placed with the freight forwarder does not include The packaging of the goods, Weighing or inspecting the goods, measures to preserve or improve the goods or their packaging unless this is normal business practice, The provision or replacement of pallets or other loading aids and packaging materials. If these are not replaced one-for-one, they will only be collected when a new order is placed. This does not apply if the freight forwarder declines replacement. 4.2 Activities described in subsection 4.1 must be paid for separately. 5. Customs 5.1 An order for dispatch to a destination abroad includes the order to complete all customs requirements if forwarding to the destination would not be possible without them. 5.2 The freight forwarder may charge additional payment over and above the actual costs incurred. 5.3 An order to carry out forwarding of bonded goods or to deliver carriage paid include authorisation for the freight forwarder to decide on how to deal with the necessary customs formalities and interpret the charges demanded by the customs authorities.

3 6. Client s packaging and marking obligations 6.1 The packaged items must be clearly and indelibly marked with the parking necessary for handling in accordance with the order, such as addresses, reference indicators, numbers, symbols indicating handling requirements and properties; old markings must be removed or rendered indecipherable. 6.2 The client is moreover obliged, To mark all items making up a package so they can easily be recognised as belonging together; To make up packages in such a way that it is not possible to access the contents without leaving a visible trace (adhesive tape, straps or similar are only sufficient if they are of an individual design or otherwise difficult to imitate; film wrapping only if welded); In the case of a consignment being part of a forwarder s consolidation made up of multiple items or units with a strap length (largest circumference plus longest side) is less than 1 metre, to group these into larger units; To combine a consignment of hanging garments consisting of several individual units into wrapped units for easier handling; To mark packing units with a gross weight of at least 1,000 kilograms with the weight specification as prescribed by law for heavy loads to be transported by ship. 6.3 Packages are single packages or units of packages formed by the client for the purpose of being forwarded in accordance with the order, e.g., boxes, wireboxes, pallets, handling units, enclosed loading units such as covered wagons, wagons with tarpaulin covers, semi-trailers, swap bodies, containers or igloos. 6.4 If the packages do not comply with the conditions specified in 6.1 and 6.2, subsection 3.7 shall apply accordingly. 7. Freight forwarder s duty to inspect 7.1 At interfaces the freight forwarder is obliged To check packages regarding their quantity, identity and apparent good order and whether seals and fastenings are intact, and to record any irregularities (e.g. in the accompanying papers or by specific notification). 7.2 An interface is any point at which the responsibility for the packages is passed on to another legal entity, or the handing over point at the end of each stage of the transportation process. 8. Receipt 8.1 On request by the client, the freight forwarder shall issue a certificate of receipt. With this certificate the freight forwarder confirms the quantity and type of packages, but not their contents, value or weight. In the case of bulk goods, full loads and similar, the certificate of receipt does not state in cases of doubt the gross weight or any other description of the quantity of the goods. 8.2 As proof of delivery the freight forwarder requests from the recipient a receipt for the packages as named in the forwarding instruction or other accompanying transport documents. Should the recipient refuse to sign for the receipt of the goods, the freight forwarder must request further instructions. If the goods have already been unloaded at the recipient s premises, the freight forwarder is entitled to regain possession. 9. Instructions 9.1 An instruction remains valid for the freight forwarder until revoked by the client. 9.2 In the case of insufficient or impractical instructions the freight forwarder may use his professional discretion. 9.3 An instruction to hold goods at the disposal of a third party cannot be revoked after instructions from the third party have been received by the freight forwarder. 10. Freight payment, cash on delivery 10.1 Notification by the client that the instruction is to be executed freight unpaid or that the costs are to be paid by the recipient or a third party does not affect the client s obligation to the freight forwarder to pay the charges plus expenses.

4 10.2 Notification as provided by section 10.1 does not contain cash on delivery instructions. 11. Deadlines 11.1 In the absence of specific agreements, neither loading or delivery deadlines are guaranteed, nor a specific sequence of the handling of goods carried by the same means of transport his does not affect the freight forwarder s statutory liability with regard to missed deadlines. 12. Obstacles 12.1 Obstacles beyond the freight forwarder s control release him, for their duration, from the obligations that are affected by these obstacles. In the release as provided by the previous sentence, the freight forwarder or the client have the right to withdraw from the contract even if it has already been partially performed. If the freight forwarder or client withdraws, the freight forwarder s costs that were deemed necessary or were incurred in the interests of the client shall be reimbursed The freight forwarder is only obliged to advise the client about legal or official restrictions concerning the shipment (e.g., import/export restrictions) within the scope of his duty of care. If, however, the freight forwarder, through public statements or in the course of the contractual negotiations, created the impression that he has expert knowledge about specific types of transaction, he has fulfil accordingly the obligations to inspect and inform Governmental and/or official acts beyond the freight forwarder s control do not affect the rights of the freight forwarder towards the client; the client is liable towards the freight forwarder for all consequences of such events. This does not affect any claims the freight forwarder may have against the state or third parties. 13. Delivery Delivery is deemed to have been effected once the goods have been handed over to any person present on the premises of the recipient, unless there are reasonable doubts about their authority to receive the goods. 14. Freight forwarder s obligation to provide information 14.1 The freight forwarder is obliged to provide the client with all necessary information, to inform him, on request, about the status of the transaction and to account for the transaction after completion; however, he is only obliged to reveal the costs incurred if he acted on behalf of the client The freight forwarder is obliged to reveal to the client everything he obtains while carrying out the transaction and any remuneration obtained. 15. Storage 15.1 The freight forwarder is free to choose whether to store goods at his own or third-party premises. If the freight forwarder uses a third-party warehouse, the freight forwarder must notify the client immediately in writing of the name and location warehouse company and its address, or, in case of a warehouse warrant, to mark these on the warrant The client is free to inspect the warehouse premises or have them inspected. Any objections or complaints about the storage of the goods or choice of warehouse premises must be made immediately. If the client does not exercise the right of inspection, he waives all rights to object against the storage and choice of warehouse, provided the choice and type of storage is in line with the due diligence of a freight forwarder Access to the warehouse is only granted to the client during the normal working hours of the freight forwarder and in his company If the client handles the goods (e.g. sample taking) the freight forwarder may demand that the number, the weight and the status of the goods be inspected together with the client. If the client does not agree to this, the freight forwarder is not liable for damage discovered later, unless the damage was clearly not caused by such handling of the goods The client is liable for all damage caused by him, his staff or agents to the freight forwarder, other warehouse clients or third parties whilst on the premises of the warehouse, unless he, his staff or agents are not responsible for such damage.

5 15.6 In case of inventory discrepancies, the freight forwarder is entitled to balance out shortages and surpluses of the stock belonging to same client If the freight forwarder has reasonable doubt that his claims are covered by the value of the goods, he is entitled to set a reasonable time limit for the client either to secure the claims of the freight forwarder or to make alternative provisions for the storage of the goods. If the client does not comply with this, the freight forwarder is entitled to terminate the contract without further notice. 16. Offers and payment 16.1 Quotations by the freight forwarder and agreements with him regarding price and services always refer to specified own services or those of third parties, and only to goods of normal size, weight and nature; they presume normal unaltered transport situations, unimpeded access, the possibility of immediate onward shipment and that freight rates, exchange rates and tariffs upon which the agreement is based remain valid, unless changes could have been foreseen under the circumstances. The note plus the usual ancillary charges entitles the freight forwarder to charge separately for supplements and surcharges All quotations given by the freight forwarder are valid only for immediate acceptance and immediate execution of the order in question, unless otherwise specified in the quotation, and provided reference is made to the quotation when the order is placed If an order is cancelled or withdrawn, the freight forwarder is entitled to claim as provided by 415, 417 of the German Commercial Code In case of a COD or other collection order being withdrawn retrospectively or if the money is not paid, the freight forwarder is still entitled to his collection fee If the recipient refuses to accept a consignment or if delivery is impossible for reasons beyond the control of the freight forwarder, the freight forwarder is entitled to the carriage charges for the return of the consignment up to an amount equal to the delivery charges. 17. Freight forwarder s expenses, exemption from third party claims 17.1 The freight forwarder is entitled to reimbursement for outlays which he could reasonably consider appropriate under the circumstances The instruction to accept incoming consignments entitles the freight forwarder but does not oblige him to advance freight costs, COD sums, duties, taxes and other dues in connection with such consignments The client must release the freight forwarder immediately from demands regarding freight, average contributions, customs duties, taxes or other dues directed against the freight forwarder in particular in the capacity of agent for or possessor of third-party goods, provided the freight forwarder is not responsible for such payments. The freight forwarder is entitled to take reasonable appropriate measures appropriate to protect himself. If the circumstances do not require immediate action, the freight forwarder must obtain instructions The client must inform the freight forwarder in an appropriate way in good time about all public/legal obligations, e.g. regarding customs regulations or third-party rights, e.g. trademark obligations, arising from the possession of the goods, unless it may reasonably be deduced from the quotation of the freight forwarder that he is aware of such obligations. 18. Invoices, foreign currencies 18.1 The freight forwarder s invoices are due immediately The freight forwarder can demand payment from foreign clients or recipients either in local or German currency If the freight forwarder owes foreign currency amounts, or if he advances sums in foreign currencies, he is entitled to demand payment either in German or foreign currency. If he demands payment in German currency, the officially set exchange rate on the date of payment will be used, unless it can be proven that a different rate of exchange should be used or was used.

6 19. Offset, retention Claims arising from the forwarding contract and other related non-contractual claims may only be off set or retained against counter claims which are undisputed. 20. Lien and retention 20.1 The freight forwarder has a right of lien and retention on all goods in his possession or other valuables in connection with any claims against the client, whether due or not, for any services carried out in accordance with section 2.1. This right of lien and retention does not exceed the legal right of lien and retention The freight forwarder may only exercise his right of lien or retention for claims arising out of other contracts with the client if these are undisputed or if the financial situation of the debtor puts the claims of the freight forwarder at risk The time limit of one month as specified in 1234 of the German Civil Code is superseded in all cases by a time limit of two weeks If the client is in arrears, the freight forwarder is entitled, after due notice, to sell on the open market such a portion of the client s goods or valuables in his possession as is necessary, at his reasonable discretion, to meet his claims The freight forwarder is entitled to commission at the usual local rate on the net proceeds of a sale resulting from exercising the right of lien or self-help sale. 21. Insurance of the goods 21.1 The freight forwarder shall arrange for the insurance of the goods (e.g. transit or warehousing insurance) with an insurer of his choice if instructed to do so by the client before the goods are handed over. If the freight forwarder is unable to effect insurance cover, due to the nature of the goods or for any other reason, he must inform the client immediately The freight forwarder is entitled, but not obliged, to insure the goods if this is in the interest of the client. The freight forwarder may assume that insurance cover is in the interest of the client in particular if: a) the freight forwarder has taken out insurance cover in respect of previous freight forwarding orders, b) the client has declared the value of the goods in the order (subsection 3.4). This assumption about the arrangement of insurance cover may not be made in particular if: c) the client expressly forbids such insurance cover, d) the client is a freight forwarder, carrier or warehousing company The freight forwarder shall decide, using reasonable discretion, on the type and scope of the insurance and shall arrange cover at the usual market rates, unless the client instructs the freight forwarder differently in writing, specifying the insured sum and the risks to be covered If the freight forwarder is the insured and has acted on behalf of the client, he is obliged, if requested to do so, to account for it in accordance with subsection In such a case the freight forwarder shall treat the premiums for each order separately, record them and ensure that the amount in full for the appropriate cover is paid to the insurer on this basis The freight forwarder is entitled to a special fee, in addition to reimbursements, for arranging the insurance, handling claims and other administrative tasks in connection with insurance cases and averages. 22. Liability of the freight forwarder, cessation of claims 22.1 The freight forwarder is liable in accordance with the legal regulations for all services provided (subsection 2.1). Unless otherwise provided in compelling legal regulations or fixed in the T&Cs, the following shall apply If the freight forwarder is only responsible for arranging the contracts required for the contractual services, his liability is limited to the careful choice of such third party service providers In all cases where the freight forwarder is liable for loss of or damage to goods, his liability for compensation of value and cost will be in accordance with 429, 430 of the German Commercial Code.

7 22.4 To the extent that 425 ff and 461 (1) of the German Commercial Code do not apply, the freight forwarder is liable for damage resulting from: insufficient packaging or marking of the goods by the client or third parties; agreed or customary outdoor storage; theft or robbery ( 243, 244, 249 German Criminal Code); force majeure, weather conditions, failure of appliances or wiring, influence of other goods, damage by animals, inherent vice, provided and to the extent that the freight forwarder can be proved to have been at fault. If the damage could have arisen from one of the above circumstances it shall be deemed to have arisen from it If the freight forwarder has a claim against a third party for damage for which he is not liable, or if the freight forwarder has claims in excess of the sum for which he is liable, he must, on request, cede such claim to the client, unless the freight forwarder, by special agreement, has undertaken to pursue such claims at the cost and risk of the client. The client may also demand that the freight forwarder cedes all claims against third parties to the client. This shall not affect 437 of the German Commercial Code. If the client s claims have been met by the freight forwarder or by the forwarders insurance, the claim against third parties to be ceded is limited to that portion which exceeds what has already paid by the freight forwarder or the insurance. 23. Limitation of liability 23.1 The liability of the freight forwarder for loss of or damage to goods, with the exception of authorised warehousing, is limited: to EUR 5.00 per kilogram of the gross weight of the consignment; in the case of damage occurring to goods in transit, notwithstanding subsection , to the legally-limited maximum amount specified for this type of carriage; in case of a contract of multi-mode transport, including sea transport, notwithstanding subsection , to 2 SDR per kg; to EUR 1 million or 2 SDR per kg per claim, whichever is the higher If only individual packages or parts of the consignment are damaged or lost, the maximum liability is calculated on the basis of the gross weight a) of the whole consignment if it is rendered valueless, b) if only part of the consignment is rendered valueless, of that part The liability of the freight forwarder for damage other than to goods, excepting personal injury and damage to third-party goods, is limited to three times the amount payable for the loss of the goods, up to a maximum of EUR 100, per event. 431 (3) and 433 of the German Commercial Code remain unaffected The liability of the freight forwarder, irrespective of the number of claims per event, is limited to EUR 2 million per event, or 2 SDR per kg of lost or damaged goods, whichever is the greater; in the case of more than one claimant the freight forwarder s liability is in proportion to their individual claims The SDR is calculated in accordance with 431 (4) of the German Commercial Code. 24. Limitation of liability in the case of authorised warehousing 24.1 The liability of the freight forwarder for loss of or damage to goods in the case of authorised warehousing is limited to EUR 5.00 for each kg gross weight of the consignment; to a maximum of EUR 5,000 per claim; if the claim of a client is based upon the difference between the nominal and actual inventory (subsection 15.6) the liability is limited to EUR 25,000.00, irrespective of the number of events causing the inventory discrepancy. In both cases, Section is not affected Section 23.2 applies accordingly In the case of authorised warehousing, the liability of the freight forwarder for claims other than for damage to goods, excepting personal injury and damage to third-party goods, is limited to EUR 5, per claim Irrespective of the number of claims arising from an event, the liability of the freight forwarder is limited to EUR 2 million per event; in the case of more than one claimant the freight forwarder s liability is in proportion to their individual claims.

8 25. Burden of proof 25.1 In the case of loss or damage, the client must provide evidence that goods of a specific quantity and condition were handed to the freight forwarder in apparent good order ( 438 German Commercial Code). The freight forwarder must prove that he delivered the goods as he received them The burden of proof that goods were damaged while being carried in the particular means of transport (subsection ) lies with the party making the claim. If the place where the damage occurred is unknown, the freight forwarder must specify the sequence of transportation by documenting the interfaces (Section 7) if requested to do so by the principal or the recipient. If the freight forwarder cannot provide an incontrovertible receipt for a stage of transportation, it will be assumed that the damage occurred during that stage The freight forwarder is obliged to ascertain, through making enquiries and obtaining evidence, where the damage occurred. 26. Non-contractual claims The aforementioned releases from and limitations of liability also apply, by application of 434, 436 of the German Commercial Code, to claims not arising from the contract. 27. Qualified liability The aforementioned releases from and limitations of liability do not apply, if the damage was caused: 27.1 By malicious intent or gross negligence on the part of the freight forwarder or his management staff or through breach of essential contractual obligations, in which case damage claims shall be limited to foreseeable, typical damage; 27.2 In cases covered by 425 ff, 461 (1) of the German Commercial Code, by the freight forwarder or by persons specified in 428, 462 of the German Commercial Code acting with malicious intent or recklessly, knowing that damage to the goods would be probable. 28. Notification of claims Claims must be notified in accordance with 438 of the German Commercial Code. 29. Freight forwarder s liability insurance 29.1 The freight forwarder is obliged to take out and maintain liability insurance subject to the usual market rates and conditions, covering his liability under the transportation contract in accordance with the ADSp and as legally required to cover standard liabilities, with an insurer of his choice Agreements for maximum compensation per claim, event and year are permitted; also on the amount of any contribution towards the claim by the freight forwarder The freight forwarder may only rely on the ADSp in dealings with the client if he has arranged sufficient liability insurance cover at the time the order is placed If requested by the principal, the freight forwarder must provide proof of this liability insurance cover in the form of confirmation from the insurer. 30. Place of performance, legal venue and applicable law 30.1 The place of performance for all parties is the location of the branch office of the freight forwarder to which the order is addressed The legal venue for all disputes arising from or in connection with the order is, for all parties provided they are business people, the location of the branch office of the freight forwarder to which the order is addressed; this legal venue applies exclusively to claims against the freight forwarder.

9 30.3 The legal relationship between the freight forwarder and the client or his successors in title is governed by the law of the Federal Republic of Germany. January 2003