AGBs (General Terms and Conditions of Business)
For the interpretation of the AGBs ADSp and CMR, the German language is definitive. The English versions serve only to promote a better understanding.
General Terms and Conditions of Business
(1) The following General Terms and Conditions of Business apply to all contractual agreements between
Manager: Dieter Jochens
Telephone: +49 531 250949 20
(hereinafter referred to as “Forwarder“) and our clients (hereinafter referred to as ” Principal”)
(2) The following General Terms and Conditions of Business also apply to all contractual agreements between the Forwarder and any third party to be appointed for processing purposes, such as transport companies (hereinafter referred to simply as ” Subcontractor”).
§ 1 ADSp and CMR Applicability
(1) The German Freight Forwarders‘ Standard Terms and Conditions (ADSp 2003) apply as an additional component to these conditions, unless otherwise stipulated in these General Terms and Conditions of Business. A deviation to § 431 German Commercial Code (HGB) is thus made pursuant to § 8 (Liability of Forwarder) of these conditions.
(2) Furthermore, the provisions of the Convention on the Contract for the International Carriage of Goods by Road (CMR) apply.
§ 2 Remuneration and Reimbursement of Expenses
The remuneration and reimbursement of expenses will be agreed in forwarding and transport contracts to be individually concluded.
§ 3 Billing
(1) The Forwarder will provide the Principal with a properly drawn up invoice for the agreed amount once the transport has been implemented.
(2) Any ancillary services rendered will be billed separately for the agreed remuneration. Should any necessary expenses be incurred, these will also be billed separately.
(3) The Subcontractor will provide the Forwarder with a properly drawn up invoice for the agreed remuneration once the transport has been implemented. Payment will ensue 30 days after receipt of the invoice together with the original delivery documents on the Forwarder’s premises, unless otherwise agreed.
(4) In special cases, the Forwarder’s remuneration is dependent on submission of the original delivery documents. The Subcontractor
§ 4 Conclusion of Implementation Contracts
(1) The Forwarder reserves the right to implement the transport according to legal provisions himself (contracting as principal) or to conclude the necessary implementation contracts with third parties (Subcontractors).
(2) The Forwarder is free to select the means of transport and to conclude any implementation contracts in this respect.
(3) A commissioned Subcontractor is also free to conclude implementation contracts with third parties (subcarriers). Should the Subcontractor’s implementation contracts overlap (especially with respect to time and place), the Subcontractor is only permitted to conclude the specific implementation contract with third parties with the Forwarder’s prior consent.
(4) The Forwarder is entitled to reject any subcarriers of the Subcontractor without stating any reason. On request, the Subcontractor undertakes to inform the Principal of the subcarriers used or planned for the implementation of the service.
(5) The Subcontractor and the subcarriers thereof may not act in their own name. The obligations of the Subcontractor listed in this contract apply in full to any subcarriers used, as well as all employees of the subcontractor and his subcarriers.
(6) The Subcontractor is liable for any damage caused by Subcontractors in association with this contract.
§ 5 Transport Processing
(1) PCs, printers, fax machines, telephone systems and e-mail connections are needed to process the service and the communication with the Forwarder’s specialist departments and will be provided by the Subcontractor. The personnel used must have access to the mail system, to avoid any interruption to the Forwarder’s information chain.
(2) The Principal will hand over the goods to be transported to the Forwarder or Subcontractor selected by said Forwarder to implement the transport of the goods. The place and time of transfer will be separately stipulated in the respective forwarding contract.
(3) The time and place of delivery will also be separately stipulated in the respective forwarding contract.
(4) Prior to transferring the cargo, the Principal will inform the Forwarder of any quality specifications and special attributes of the goods, which are relevant to the contractual and legal implementation. This includes, for instance, information on weight, type, quantity, dimensions and weight of individual items, packaging, and whether dangerous goods are concerned.
(5) The Subcontractor undertakes to follow any order-related Forwarder’s instructions with regard to the transport of the goods, which are necessary to substantiate the respective transport orders. In particular, the Subcontractor will comply with the information and instructions issued by the Forwarder regarding loading and unloading times. § 7 (Subcontractor Contracts with Third Parties) remains unaffected. Should any information stated in the specific freight documents differ from that in the transport order (e.g., nature and scope of the cargo, addresses), the Subcontractor will immediately inform the Forwarder thereof, before commencing the transport.
(6) When implementing transports in the courier trip and express delivery service sector, the inclusion of an additional load will only be permitted in consultation with the Forwarder. In the event of any contravention, in particular in the event of non-compliance with the loading and unloading times agreed in the transport order, the Subcontractor will be held responsible for any ensuing damage. This will also apply should any additionally loaded „other“ goods cause any damage to the cargo.
(7) The Subcontractor undertakes to immediately inform the Forwarder of any circumstances essential to the fulfilment of the transport order, in particular of any conveyance and delivery obstacles and as well as any transport obstacles, breakdowns, accidents or other delays in transit. Should such any transport obstacle occur, the Subcontractor is obliged to inform the Forwarder in advance, to the extent actually possible, and to seek his instructions, where appropriate. The information must include the reasons for the delay in transit, as well as the measures taken by the Subcontractor and the expected new delivery time.
(8) In the event of an accident or damage event, the Subcontractor will report any visible transport damage and loss of goods to the Forwarder. The following information is (to the extent actually relevant) will be transmitted to the Forwarder in the form of a written report within a reasonable time period:
– Registration numbers and types of vehicles involved
– Place, time and cause of the accident or damage event
– Name, address of the injured/deceased party
– Extent of spill
– Consignment data
– Measures taken by the Subcontractor
– Recall options.
Should a Subcontractor’s vehicle become incapacitated on the freight route due to a breakdown, immobilized due to the breach of applicable laws (domestic or foreign), traffic accident or for other reasons, the Forwarder will provide a replacement vehicle to ensure the delivery of the freight to the recipient named in the waybill, should the Subcontractor not be in a position to do so itself.All costs incurred and claims for damage compensation on the Principal’s part will be borne by the Subcontractor. The Forwarder will not remunerate any transport order which has not been duly completed by the Subcontractor.
(9) The Subcontractor will structure its IT technology in such a way that it is always aware (supply status) of where the respective consignment within its scope of responsibility is located.
(10) The Subcontractor is obliged to pay attention to the external integrity of the cargo during loading. Any ascertained damage must be immediately reported to the Forwarder and annotated on the waybill. The Subcontractor will ensure that the damage report is countersigned by the shipper. The Subcontractor is also obliged to inform the Forwarder of any complaints by the recipient with regard to the quality or quantity of the goods, and to obtain the Forwarder’s instructions. In addition, the Subcontractor will endeavor to ensure that the recipient annotates his complaints in writing on the receipt.
(11) The delivery of the cargo will be verified by the Subcontractor according to the following standard:
– Date and time of delivery.
– Signature and stamp of the person/department authorized to receive the goods,
– Annotation with the name of the person/department authorized to receive the goods in block letters.
(12) Empties will only be exchanged following agreement between the Principal, Forwarder and Subcontractor. If an exchange of empties has been agreed, non-exchanged empties will be invoiced to the Subcontractor as follows:
EUR 15.00 (fifteen euros) per euro-pallet
EUR 150.00 (one hundred and fifty euros)/pallet cage
EUR 8.00 (eight euros) per KLT small load carrier
EUR 15.00 (fifteen euros) per cover
Empties not listed here are calculated according to the customer’s invoice.
§ 6 Principal’s Right to Instruct
(1) The Principal is entitled to give order-specific instructions for the substantiation of this contract. The Forwarder must comply with the order-specific instructions. These instructions do not require any particular form in order to be effective.
(2) If instructions are insufficient or unenforceable, the Forwarder may act according to his best judgment, whereby he must always act in the best interests of the Principal.
§ 7 Compliance with Legal Regulations by Forwarder
(1) The Forwarder guarantees compliance with all legal and contractual provisions regarding the organization of the shipment.
(2) If the Forwarder enters into implementation contracts, he thus agrees to ensure compliance with the legal and contractual provisions of § 10 para. 1 by the Subcontractors.
§ 8 Liability of Forwarder
(1) The Forwarder is liable in national road transport according to the provisions of the ADSp, unless mandatory legal regulations to the contrary exist; otherwise according to the statutory provisions. In particular, he is liable – without thereby limiting the applicability of other ADSP regulations (§ 3) – pursuant to Clause 23 ADSp as follows:
23. ADSp Limitations of Liability
23.1 The liability of the Forwarder for loss or damage to goods (goods damage), with the exception of the authorized warehousing, is limited as follows:
23.1.1 to EUR 5.00 per kilogram of the gross weight of the consignment.
23.1.2 in case of damage to the goods occurring during transport using a means of transport differing from Clause 23.1.1 to the statutory limit of liability for such transport.
23.1.3 in a transport contract involving multi-modal transport, including sea transport differing from Clause 23.1.1 to 2 SDR per kg.
23.1.4 in any damage event to a maximum of EUR 1 million or 2 SDR per kg, whichever amount is higher.
23.2 If only individual packages or parts of the consignment are damaged or lost, the maximum liability is calculated according to the gross weight:
– of the entire consignment if the whole consignment is rendered valueless,
– of the part of the consignment rendered valueless, when only a part of the consignment is rendered valueless.
23.3 The liability of the Forwarder for claims other than for damage to goods, excepting personal injury and damage to third-party goods, is limited to three times the amount that would be payable in case of loss of the goods, to a maximum of EUR 100,000.00 per damage event. §§ 431 para. 3, 433 HGB (German Commercial Code) remain unaffected.
23.4 The liability of the Forwarder is in any case limited to EUR 2 million, regardless of the number of claims made with regard to any damage event, or to 2 SDR per kg of lost or damaged goods, whichever amount is higher. In the case of more than one claimant, the Forwarder’s liability is proportionate to their individual claims.
23.5 The SDR is calculated according to § 431 para. 4 HGB.
(2) The same liability also applies to the Forwarder when rendering contractual ancillary services.
(3) In deviation to § 431 paras. 1 and 4 HGB, however, the carrier is liable for up to a maximum of 40 SDR kg. If the Forwarder has agreed a lower liability with his Principal in case of loss or damage to goods, the liability of the carrier in relation to the Forwarder is reduced accordingly.
(4) The liability of the Forwarder with regard to cross-border transport is governed by the provisions of the Convention on the Contract for the International Carriage of Goods by Road (CMR).
§ 9 Subcontractor
(1) The Subcontractor is free to enter into contracts with third-party principals and to act on behalf of the latter. The obligations arising from § 12 (Customer Protection) of this contract remain unaffected.
(2) The Subcontractor is liable for any loss or damage caused to the goods between receipt and delivery. The value of the goods is set at the CIF price plus 10%.
(3) The Subcontractor is liable for any damage caused by delay or overshooting of the delivery period of the agreed services. In the event of culpably caused damage, the Subcontractor is liable to the full extent.
(4) Should the Subcontractor infringe §5 (1,4,5-), the Principal may demand a penalty of up to EUR 30,000.00.
(5) This does not affect any damage compensation claims in excess of this.
§ 10 Compliance with Legal Regulations by Subcontractors
(1) The Subcontractor will ensure that its company, the vehicles it uses, as well as the driving personnel it uses fulfill all the legal requirements necessary for the implementation of the transport order issued by the Forwarder, as well as of this Framework Agreement. In particular, the Subcontractor must comply with the driving times and rest periods and familiarize itself with the contents of Tremcards and carry the latter in the prescribed locations in the vehicle.
(2) If necessary for the specific transport order, The Subcontractor will in particular ensure that itself, its driving personnel as well as any subcarriers it uses :
a) have the necessary permission and authorization for the transport pursuant to § 3 and § 6 GüKG (permission, Community license, third country permit and/or ECMT permit) and carry the legally stipulated documentation during the journey;
b) have the liability insurance necessary for the transport according to § 7a Road Haulage Act (GüKG),
c) have the liability insurance necessary for the transport according to § 7a GüKG with coverage of up to 40 special drawing rights;
d) meet the requirements of §§ 7 b, c GüKG. Within the scope of its duty of care, the Forwarder is required and entitled to carry out random checks to ensure compliance;
e) the driving personnel carry a record book according to Article 5 of the ECMT Directive during the journey;
f) only those foreign drivers from third countries (non-EU/EEA countries) and Subcontractors from an EU/EEA country with the required driving license and only with the required work permit are used and that the driving personnel carry the prescribed documents (work permit or negative test) in the original during the journey and, if necessary, with an officially certified translation in German;
g) only those drivers are used who have a valid driving license as well as a valid passport or ID card, which the drivers carry during the journey;
h) waybills and bills of lading are presented upon departure and carried during the journey;
i) the documents to be carried as listed in a) to e) are submitted in the original at the request of the Forwarder or the latter’s contract partners;
j) only those vehicles for which there is a valid road haulage license issued in the home country of the Subcontractor are used;
k) that the driving personnel (including foreign drivers) and any subcarriers used by the Subcontractor are used at all times in compliance with the law regulating a general minimum wage (MiLoG). In the event of an infringement, the Subcontractor will indemnify the Forwarder against any payments. At the Forwarder’s request, the Subcontractor will provide suitable proof that it has fulfilled the duties incumbent upon it under the MiLoG.
l) The Subcontractor and/or the employees thereof are obliged to comply with the necessary labor protection measures in the area of activity (e.g. wearing of warning vests or safety shoes, etc.). The instructions of the loading and unloading personnel should be obeyed.
(3) The Subcontractor will immediately inform the Forwarder in the event of special events associated with the commission, in particular if any criminal acts or police investigations onsite are ascertained.
§ 11 Liability of Subcontractor
(1) The liability of the Subcontractor in cross-border transport is governed by the provisions of the Convention on the Contract for the International Carriage of Goods by Road (CMR).
(2) In national road transport the Subcontractor is liable under the provisions of the German Commercial Code. If the Forwarder and the latter’s Principal have agreed to a standard liability amount in excess of the statutory 8.33 Special Drawing Rights for each kg gross weight of the consignment in case of loss/damage to goods, the Subcontractor is liable accordingly vis-à-vis the Forwarder, but only to a maximum of 40 SDRs per kg.
(3) Furthermore, the Subcontractor is liable
a) for any culpable cause of material damage, unless damage to goods is concerned, and for any personal injury caused by the Subcontractor when rendering its contractually-agreed services to legally protected goods of the Forwarder, the Principal, the recipient and their employees, institutions or other auxiliary persons, as well as other third parties with regard to which the Forwarder has a statutory liability, whereby the Subcontractor is liable for the culpability of its employees or of other persons it uses to render its services to the same extent as for any fault of its own;
b) for other culpably-caused financial losses, unless the latter constitute damage occasioned by delay, the Subcontractor has unrestricted liability within the period of custody within the legal limits of § 433 HGB and outside of the period of custody;
(c) in particular also for all culpably caused damage arising from a breach of the obligations according to § 5 of this Agreement.
§ 12 Customer Protection
(1) The carrier is obliged to provide customer protection for the Forwarder. The carrier may not perform or pass on the following tasks on behalf of any of the Forwarder’s customers that have become known to him within the scope of its activities, whether directly or indirectly via third parties:
transport or forwarding orders in (regional/national/cross-border) freight transport.
(2) The customer is any principal, consignor or recipient in the Forwarder’s field of activity.
(3) If it is unclear whether the Forwarder’s customers have become known to the carrier within the scope of its activities on the Forwarder’s behalf, the carrier must prove that the customers have become known to it independently of its activities on the Forwarder’s behalf.
(4) Customer protection according to § 12 para. 1 terminates 12 months after termination of the contract – regardless of the reason for the termination.
(5) Should the carrier culpably breach the obligation set out in § 12 para. 1 of the contract, it will be obliged to pay an appropriate penalty per case of infringement to be set by the Forwarder and which is verifiable through the relevant county or district court. This does not affect the Forwarder’s right to assert further claims for damages and/or to terminate the contract without notice for important cause.
§ 13 Operating Resources
The operating resources and facilities used by the Subcontractor must be in a perfect, operable and clean condition and must also comply with VDI Guideline 2700 (loading safety).
The constructions and equipment thereof must be suitable for the damage-free implementation of handling and transport of goods. Moreover, the Subcontractor is responsible for the maintenance and care thereof as well as for compliance with all legal provisions.
§ 14 Freight acceptance
By its signature on the waybill, the carrier confirms the acceptance of the cargo in perfect condition. Externally visible defects at the time of freight acceptance will be noted on the waybill and signed separately by the consignor.
After due acceptance of the cargo, the contractor, as carrier, assumes full responsibility for the freight.
§ 15 Cargo Delivery
The carrier is obliged to obtain written confirmation of receipt of the orderly delivery of the cargo with signature and company stamp. The confirmation will be annotated on the waybill and must specify the condition of the cargo (e.g. perfect).
§ 16 Right of Rejection
The Forwarder is entitled to reject employees of the Subcontractor if any reason, such as, inter alia, fraud, theft, embezzlement, drug consumption or other misconduct exist.
§ 17 Non-disclosure
(1) The Subcontractor is obliged to treat all information of which it becomes aware during the cooperation confidentially and to ensure that such data is only made accessible to third parties with the Forwarder’s written consent.
(2) To this end, the Subcontractor ensures that all employees and subcarriers comply with this non-disclosure obligation.
(3) Furthermore, the employees used by the Subcontractor and by subcarriers may only have access to such information required to fulfill the contract.
(4) The information may be used only for the purposes of rendering the service. The non-disclosure obligation applies for the duration of five years beyond the termination of the business relationship between Forwarder and Subcontractor.
§ 18 Right of Lien, Retention or Assignment
(1) The Subcontractor may not offset its claims against the Forwarder’s claims. The Subcontractor waives the exercising of legal or contractual rights of lien to the goods transported on the Forwarder’s behalf. The Subcontractor undertakes to use only those subcarriers to execute the Forwarder’s order that also waive the exercising of legal or contractual rights of lien to the goods transported on the Forwarder’s behalf.
(2) A right to refuse performance or a right of retention may only be asserted by the Subcontractor if the claim on which the Subcontractor bases its right to reject performance or right of retention is explicitly acknowledged by the Forwarder or legally determined.
(3) None of the Subcontractor’s rights and duties may be assigned without the Forwarder’s prior written consent.
§ 19 Compliance with Provisions for Road Haulage and Drivers
(1) The Subcontractor assures the Forwarder that it and its vicarious agents, in particular the executing carriers and the personnel thereof, observe the legal norms relevant to the contractually agreed performances and have the legally prescribed permissions, authorizations, licenses and driver certificates and use them in the proper manner. This in particular also includes compliance with the cabotage regulations in Article 8 of the VO (EC) 1072/2009 or, if using a CEMT approval, the regulations of § 7a GüKGrKabotageV, as well as the legal provisions for the use of driving personnel. The Subcontractor undertakes to use only those foreign drivers from third countries with the required work permit. It also undertakes to ensure that the driving personnel have an official certificate with an officially certified translation in the German language (§ 7b, Par. 1 page 2 GüKG n.F.) and carry them on every journey. The Subcontractor is obliged to structure its personnel and material resources as well as its operational organization in such a way that it is always able to implement the planned transport orders in compliance with the provisions regarding the driving times and rest periods of driving personnel.
(2) On request, the Subcontractor is obliged to surrender the Forwarder or the commissioned agents thereof all the documents to be carried according to legal provisions for review and to answer all the Forwarder’s questions on, inter alia, already implemented or still planned transports (e.g. compliance with the cabotage regulations). Furthermore, the Subcontractor is also obliged to instruct its vicarious agents and, above all, the executing carriers and the personnel thereof accordingly. In addition, the Subcontractor must monitor its subcarriers as regards compliance with these provisions and furnish proof of such at the Forwarder’s request.
(3) The Subcontractor also promises to use only those subcarriers that have also provided the Subcontractor with a written undertaking to comply with the previously cited provisions. At the Forwarder’s request, the Subcontractor will provide suitable proof that it has the adequate personnel and material resources as well as operational organization to comply with the provisions regarding the driving times and rest periods of driving personnel. The Forwarder is entitled to implement corresponding controls on the Subcontractor’s premises.
(4) Upon receipt of the first written request, the Subcontractor undertakes to indemnify the Forwarder against all third-party claims and receivables, provided the asserted claims and receivables result from an alleged infringement of the legal provisions designated in Clauses 1.-3. by the Subcontractor or a subcarrier used by the latter. These include in particular official requirements, such as, e.g. fines, officially issued requirements, as well as any associated legal prosecution and legal defense costs.
(5) In the event of any damage for the Forwarder based on the culpable violation of §§ 3, 6 and 7b GüKG by the Subcontractor or the subcarriers thereof, the Forwarder may demand the payment of a penalty by the Subcontractor. This may amount to up to EUR 25,000.00. The assertion of any claim in excess of this remains explicitly reserved.
§ 20 Applicable Law and Jurisdiction
(1) The law of the Federal Republic of Germany applies in all cases, excluding the UN Convention on the International Sale of Goods (CISG). If the customer places the order as a consumer and has its place of habitual residence in another country at the time of ordering, the application of the mandatory legal provisions of such country remains unaffected by the choice of law made in Clause 1.
(2) If the customer is a businessman and is domiciled in Germany at the time of ordering, the sole place of jurisdiction is the seller’s domicile, Braunschweig. Otherwise, the applicable statutory provisions apply to the local and international jurisdiction.