(Terms of engagement)
(1) Customers’ orders are placed exclusively on the basis of these general terms and conditions. They also apply to all future business relations, even if they are not expressly agreed to again. Counter-confirmations by the contractor with reference to its terms and conditions are hereby rejected.
(2) Any deviations from these general terms and conditions shall only be effective if confirmed in writing by the customer. All other agreements must also be made in writing.
(3) These general terms and conditions remain binding even if individual parts thereof are not effective for any reason.
(4) The provisions of the Convention on Contracts for the International Carriage of Goods (CMR) and the AÖSp apply as a subsidiary to the following provisions. There is increased interest in accordance with CMR Art. 26 Para. 1.
II .: PRICE OFFERS
(1) Prices stated in the customer’s offer are fixed prices, with the proviso that the order data underlying the offer remain essentially unchanged. Surcharges shall not be recognised.
(2) Should the place of loading and unloading change, the contractor undertakes to execute the changed transport order; the freight price shall be adjusted accordingly.
(3) Verifiable cancellations by the customer release the ordering party from paying downtime costs or other compensation. A 24-hour period free of demurrage charges at loading and unloading point is deemed to be agreed.
III .: TERMS OF PAYMENT
(1) Payment (net price plus VAT) must be made in full within 45 calendar days of receipt of the invoice.
(2) The contractor may not set off any claims.
IV .: INSURANCE
(1) The contractor shall bear the cost of CMR insurance with a maximum liability limit of at least €300,000 incl. Art. 29. The contractor shall be liable for damage resulting from a lack of insurance coverage. The customer shall be immediately informed of any changes.
(2) The contractor, upon the customer’s request, shall promptly provide evidence of the insurance portfolio, at the latest within three days. Failing this, the customer shall be entitled to deduct 4% from the invoice, regardless of the occurrence of damage. The assertion of further damage remains unaffected.
V .: INVOICE
The freight invoice shall only be recognised if accompanied by the originally acknowledged CMR/KVO consignment note stating the tour number; in the case of third-country transport, a copy of the customs documents or proof of proper presentation shall be enclosed. Proof of cash expenses shall be provided by means of copies of receipts. If a separate instruction regarding delivery documents is noted on the freight order, this shall also be followed.
VI .: LOADING EQUIPMENT
(1) Euro pallets are generally to be exchanged until further notice. Where no exchange takes place, the customer shall be immediately informed so as to respond appropriately. Objections made at a later date cannot be recognised.
(2) The original loading receipt shall also be enclosed with the freight invoice if loading equipment is to be dispatched. Pallet receipts brought in at a later date cannot be accepted after two (2) months have elapsed.
(3) For each pallet that is not demonstrably exchanged or brought in within 14 days, €13.50 plus €15.00 by way of processing fee shall be charged or deducted from the freight invoice (set-off).
VII .: DELAYS
All dates shall be considered fixed dates. The customer shall be immediately informed should there be delays or other deviations from the agreed terms.
VIII.: FURTHER AGREEMENTS
(1) Goods may only be unloaded at the recipient address or delivery address specified on the consignment note. Changes may only be made with the express approval of customers. If the information in the consignment note deviates from our order, this must be coordinated before execution with the customer. All accompanying documents may only be handed over to third parties in accordance with the customer’s specifications and only against confirmation.
(2) The acceptance of quantities is deemed to be agreed. If loading and unloading are prohibted, the contractor shall be independently liable for any kind of overloading and indemnify and hold the customer harmless in this regard.
(3) Orders may not be passed on to third parties without the knowledge and consent of the customer, with the exception of freight forwarders.
(4) It is firmly agreed that employees, in particular drivers of the contractor or its agents, comply with all relevant permits, for example, in accordance with the Aliens Employment Act or the Aliens Act and other relevant legal provisions and regulations, and also provide relevant information to third parties, where necessary. Otherwise, the customer must be immediately informed and the order is deemed not to have been placed. The contractor shall be directly liable for damage resulting from the violation of this clause, in particular towards third parties, or shall indemnify and hold the customer harmless.
(5) Contractors for transport of dangerous goods undertake to ensure that their staff is appropriately trained and that vehicles are in a proper condition pursuant to statutory provisions.
(6) Strict customer protection for the ordering party and neutrality are deemed to be agreed. For injuries, a damage-independent penalty of €15,000.00 each as agreed, which can be deducted from open freight invoices. The unauthorised contacting of the loading or
unloading point is also a violation of customer protection. The customer reserves the right to claim further damage.
(7) If we have not made our own agreement on the type of truck for the order, orders shall be executed with so-called “13.6 m flatbed semis”
(8) Transports for which an agreement has been made for transport with a low-platform 13.6 m vehicle must also be carried out accordingly. Cover tarpaulins or tarps shall be used if required. Contractors shall be liable for damage.
(9) Transportation may only be executed by drivers authorised for that purpose under the statutory provisions on the employment of alien personnel. For transports from, to, through and within Germany, the following applies: if the driver is not a national of an EU/EEA country, he or she must, in accordance with the German Act on Combating Illegal Employment in Commercial Road Haulage in Germany, carry an original work permit together with a certified translation into the German language, or an official certificate with a certified translation to indicate that the driver is exempt from the permit requirement.(10) Contractors undertake to check customs documents for accuracy and completeness. Presenting goods at the EU’s external borders or the responsible inland customs office must be confirmed in writing by the contractor, who is fully liable for proper presentation and handling.(11) It is expressly agreed that customers can offset all claims of the contractor.
IX .: OBLIGATIONS BEFORE THE OCCURRENCE OF DAMAGE
Contractors undertake to:
(1) select and monitor employees and other vicarious agents (in particular subcontractors) with the care of a prudent businessman, to ensure that only flawless vehicles, swap bodies/containers, cranes, technical equipment (including ropes, belts, chains, etc.) and other equipment suitable for the respective order are used, necessary approvals for order execution are available, and requirements of authorities are met. Cargo spaces shall be kept swept clean and odourless; the floor of the cargo space must be accessible with a forklift truck; vehicles without wooden floors are only loaded if expressly agreed.
(2) ensure that the vehicle driver performing the transport holds a valid driver’s license and the has required physical and mental aptitude. Vehicle drivers shall also observe the code of conduct on the company premises; if they are not familiar with them, they shall request them independently upon entering the company’s premises.
(3) ensure that loaded motor vehicles are properly locked each time they are parked (even if briefly), that two independently functioning anti-theft devices are operational and that no freight documents are left in in unmanned vehicles.
(4) ensure that loaded motor vehicles including trailers, semi-trailers, swap bodies/containers, etc. are properly guarded when parked, in particular during waiting times or rest breaks, and are only parked at night (between 10:00pm and 06.00am), on weekends and public holidays, on guarded parking lots, customs yard, etc., or secured (fenced and sufficiently guarded) premises. Contracts may only be released from compliance with this provision if, despite proper transport route planning, none of the parking facilities specified in this point are available. Contractors must provide proof in this respect.
(5) ensure that subcontractors commissioned by them to carry out the transport have taken out a current, market-standard transport liability insurance according to CMR.
(6) inform their employees and other vicarious agents (in particular subcontractors) demonstrably in writing of the obligation to comply with the provisions of points (1) to (5) and to ensure with the care of a prudent businessman that these provisions under (19) to (5) are also observed.
X .: OBLIGATIONS IN THE EVENT OF DAMAGE
Contractors undertake to:
(1) immediately notify the customer and insurance company in writing of any damage or claims for compensation made against it.
(2) for damages likely to exceed €3,000 or the amount of which cannot be reliably estimated, immediately instruct the responsible damage appraiser, who may be asked by the insurancy company to determine the damage, and follow his or her instructions.
(3) report any traffic accident, fire damage, robbery, break-in or theft damage to the responsible police authorities immediately.
(4) ensure that the damage is averted and mitigated, obtain and follow instructions from the customer, provide complete and truthful information, and obtain and submit damage notifications and damage documents required by the insurance company.
(5) refrain from fully, partially or comparatively recognising, satisfying or assigning a claim without the prior written consent of the customer.
(6) maintain recourse claims against third parties and meet the deadline for complaints
XI .: SPECIAL OBLIGATIONS FOR REFRIGERATED TRANSPORT
(1) Drivers shall absolutely verify the condition of the goods and enter obvious defects and complaints in the consignment note before starting the journey. This is particularly the case if the truck driver has reason to suspect that the goods may have already spoiled if they have not been sufficiently pre-cooled, and whenever the truck driver is prevented from checking the temperature of refrigerated goods.
(2) Truck drivers shall ensure that the sender enters the cooling temperature in the consignment note and that he or she must switch the cooling thermostat to the required temperature. It is essential to ensure that a new temperature recorder sheet or temperature monitor is inserted.(3) Truck drivers shall reject the load if they discover clear damage caused by spoilage upon acceptance.
(4) Goods shall be loaded in such a way that air can reach the goods from all sides and the cooling flow can circulate. If the refrigeration unit proves to be defective, and this cannot be remedied at short notice with your own on-board resources, you must drive to the nearest cold store and store the goods, or reload the goods into a suitable vehicle, in accordance with legal and technical possibilities.
(5) Upon a possible claim for damages on the part of a customer of the customer, the contractor must attach an existing temperature recorder sheet or temperature monitor for the respective transport to the documents.
XII .: APPLICABLE LAW; PLACE OF FULFILLMENT; JURISDICTION
(1) Austrian material law applies. The contractual language is German. The place of performance is the headquarter of the customer.
(2) The place of jurisdiction for legal disputes concerning the existence or otherwise of a contractual relationship that is subject to these terms and conditions of delivery and payment, or for legal disputes arising from such contractual relationships, shall be the contractor’s place of jurisdiction, the general place of jurisdiction of the customer, at the customer’s choice, the general place of jurisdiction of the customer for lawsuits against the customer. Kufstein is agreed as such, regardless of the
XIII .: CONVENTIONAL PENALTY
If the transport order is not or not properly fulfilled, the contractor undertakes to pay a contractual penalty of €100.00 per claim with regard to the administrative activities (telephone calls, correspondence, etc.) that arise for the customer, whereby the assertion of a any further damage remains unaffected. The customer is expressly authorised to offset such claims.