Terms and conditions
An overview of the terms and conditions of business of Felbermayr Holding
General Terms and Conditions of Felbermayr Transport- und Hebetechnik GmbH & Co KG
for transportation, warehousing, crane usage, installations and removals, recovery work, work platforms and forklift supply
All services rendered by Felbermayr Transport- und Hebetechnik GmbH& Co KG (contractor) are exclusively done so in accordance with these general terms and conditions – published at www.felbermayr.cc. Apart from these terms and conditions, the »Particular terms and conditions for work platforms and forklifts« also apply for the provision of work platforms and forklifts; the »Particular terms and conditions for storage and port handling« also apply for storage/relocation/warehousing extending beyond normal recovery operations; and the contractor’s »Particular terms and conditions of ITB – Internationale Tieflader-Bahntransporte« also apply for rail transportation.
All of the contractor’s terms and conditions are published at www.felbermayr.cc.
Differing terms and conditions of the contractual partner (client) only apply with an express written agreement and in specific cases.
2. Quotation and contract conclusion:
All of the contractor’s quotations are subject to change and – unless otherwise agreed – are valid for 14 days from the quote date. Upon accepting the quote, the client must send an order confirmation acknowledging the validity of these terms and conditions, and any particular terms and conditions. Partial acceptance of the quote is only permitted if this is stated in the quote or confirmed by the contractor.
Client information and sub-agreements facilitated by telephone or verbally only become part of the contract if confirmed in writing by the contractor.
3. Service scope:
The service rendered by the contractor is stated in the quote.
Unless otherwise expressly agreed, work equipment is provided by the contractor in the form of a lease agreement – involving the hiring of temporary staff to operate the machinery if necessary – under which the equipment provided must be used as per the client’s instructions and at the client’s risk.
If the contractor is responsible for performing hoisting work as per the client’s objectives, a freight contract is concluded (§§425ff Austrian Enterprises Code). If the hoisting work is part of transportation under the CMR, the hoisting service is also governed by the CMR.
The quoted prices are based on the information provided by the client. The client must advise all details of the service (nature of the item to be hoisted/transported, suspension points, weight, dimensions, access routes, nature of the work platform, …) bindingly and in full. Any necessary structural analyses must be arranged by the client, who is also liable for incorrect and incomplete information, as well as the consequences thereof.
Official approvals necessary for rendering the services are obtained by the contractor at the client’s risk and – unless otherwise agreed – expense. The type and scope of the generally required approvals are advised at the client’s request.
If the service scope is changed (including as a result of official requirements and specifications), these additional expenses must be paid separately – even if a flat rate has been agreed. The same applies for additional expenses resulting from changes to the setup location, time and duration of order execution, changes to the destination, extension of the service period due to external circumstances, etc. The contractor is entitled to apply price surcharges if the actual item weights/measurements and other properties of the parts due to be transported differ from the client’s data.
The operational information and warnings must always be heeded; any ambiguities must be clarified before commencing work.
4. Service period and delays:
Upon request, the contractor must render the service within the agreed period, and if no agreement has been made, within an appropriate period. In the event of a delay, the client must set the contractor an appropriate extension period. Delay-based claims can only be raised once an appropriate extension period has expired. If the client incurs any damage as a result of the delay, contractual penalties to be paid by the client are only taken into account if the contractor was informed of such consequences in writing prior to the quote being submitted and if the contractor can be accused of gross negligence or deliberate intent.
The risk of delays caused by force majeure or circumstances beyond both contractual parties’ control (transport hindrances; weather; absence of official approvals; natural disasters; threats to materials or health caused by the service, etc.) is borne by the client. The contractor’s service period is thus extended by the duration for which these circumstances last. The client is obliged to pay compensation for the forced downtimes resulting from these circumstances.
If order execution is delayed for reasons caused by the client (e.g. incorrect information when placing the order, delayed provision of the item, unsuitable transport routes or locations, etc.), the contractor is entitled to charge for the resulting overheads and additional expenses (including in the event of flat-rate orders).
5. Contract termination/withdrawal:
Withdrawal/premature contract termination by the client is permitted if the contractor does not comply with its contractual obligations despite being granted an appropriate extension, or if just cause exists as agreed on in writing.
Withdrawal/premature contract termination by the contractor is permitted if the client does not comply with its obligations despite being set an extension, or if circumstances beyond the contractor’s control arise and cause significant hindrances or threaten to damage items and/or injure persons without the client being able to rectify these within an appropriate time frame.
In the event that the official approvals necessary to render the contractual services are not issued, both parties are entitled to withdraw from the contract, whereby the client must pay for the services already rendered by the contractor.
6. Contractual parties’ liability:
The CMR applies exclusively for contractor services governed by the CMR. The client is responsible for adhering to the regulations on load security.
In the event of equipment rentals involving the supplying of temporary staff, the contractor is only liable for ensuring that appropriate equipment and – if applicable – qualified operating staff are provided.
The regulations on the freight contract apply for hoisting work. The contractor offers hook load insurance with an insured total of EUR 75,000.00 for damages to the hoisted item. If the client wishes to have a higher insured sum, it must advise the contractor of this and the value of the hoisted item in writing. If the client takes out this insurance itself, it must co-insure the contractor or ensure the insurance company waives all recourse against the contractor and its assistants. The contractor’s liability for all damages resulting from the damage caused to the hoisted item is always limited to the insurance benefit.
No liability is assumed for damages caused to the item during recovery operations.
The contractor and the assistants it employs are only ever liable for material damages and financial losses caused to the client while rendering the service in the event of grossly negligent or deliberate actions by the contractor or its assistants (temporary workers hired as part of equipment rentals are not considered the contractor’s assistants). Liability for slight negligence is excluded – except for cases of physical injury. Furthermore, the contractor and its assistants are similarly not liable for accidents or force majeure, or for secondary damage, compensation of lost profit or interest, or for damages resulting from third-party claims. The liability of the contractor and the assistants it employs is limited to the insured amount stated in the business liability insurance contract.
The client is exclusively liable for staff not appointed by the contractor, as well as any associated damages; this particularly applies for persons briefing the contractor’s staff. It is a similar case for damages resulting from the delivery and hauling crew, crane operator or truck driver receiving instructions or directives and causing damage while following these (e.g. crane activities using a guide when visibility is poor, actions by the signalmen or site co-ordinators, directives given to truck or crane drivers etc.). If the contractor is liable to third parties through the fault of these persons, the client is obliged to provide full indemnity against claims and actions.
The client is obliged to give notice of the damages caused by the contractor’s service in writing immediately, but at the latest within three working days.
7. Order execution:
The client must keep the transportation or items to be hoisted/recovered in appropriate condition ready for order execution, and must meet and comply with all technical requirements at its own expense and risk when carrying out the order.
The client is bound by a duty of information and disclosure, which stipulates that it will report all circumstances and properties necessary for rendering the service/setting up cranes, particularly soil conditions and load-bearing capacity of the crane site, plus access routes, all fixtures such as canals, shafts, piping, supply lines and all other aspects necessary to conduct a structural analysis of the service.
We assume no liability for damages to the access road (thrust load) and pressure damage in the crane setup area (support pressure). The client is responsible for hook-ups and hoisting.
8. Offsetting and withholding rights:
The client is not entitled to offset its own – alleged or actual – claims against those of the contractor, except if the client’s claim has been acknowledged in writing by the contractor or has been legally established. The client is not entitled to withhold any due payments.
Contractor invoices are payable in full upon receipt. In the event of delays, corporate interest and the costs associated with debt execution must be borne. The contractor is entitled to submit monthly partial invoices for services already rendered. If bankruptcy proceedings are initiated on the client’s assets, the contractor is entitled to submit weekly partial invoices – regardless of any other rights to which it is entitled.
10. Transportation conditions:
The transportation contracts executed by the contractor – except for commercial transport contracts for which the contractor must provide the client with a manned vehicle for any load and at the client’s instruction – are subject to the CMR.
11. Final provisions; Choice of law; Jurisdiction:
Should individual provisions of these general terms and conditions be or become invalid, this shall not affect the validity of the remaining provisions. The invalid provisions will be replaced by an appropriate, valid provision pursuing the same objective as the original.
The place of payment and fulfilment for both parties is the headquarters of the relevant contractor branch office.
The court competent for Wels, Upper Austria is agreed as being the place of jurisdiction.
Austrian law applies exclusively, under exclusion of the conflict of laws rules.
Condizioni generali di contratto della ditta Felbermayr Transport- und Hebetechnik GmbH & Co KG
Le condizioni si applicano ai servizi di trasporto, deposito a magazzino, impiego di gru, spedizione e ricevimento, interventi di ricupero, oltre che all’impiego di piattaforme di lavoro e carrelli elevatori
1. Informazioni generali:
Tutte le prestazioni e i servizi della ditta Felbermayr Transport- und Hebetechnik GmbH& Co KG (mandatario) vengono resi dietro applicazione delle presenti condizioni generali di contratto – pubblicate su www.felbermayr.cc. Per la messa a disposizione di piattaforme di lavoro e carrelli elevatori trovano applicazione oltre a queste condizioni generali anche le »Condizioni speciali per piattaforme di lavoro e carrelli elevatori«, per i servizi di stoccaggio e trasferimento o custodia trovano applicazione anche le »Condizioni speciali per deposito a magazzino e traffico del porto«, mentre per i trasporti su rotaia si applicano anche le »Condizioni speciali ITB – Trasporto ferroviario internazionale« del mandatario.
Tutte le condizioni generali di contratto del mandatario sono pubblicate sul sito www.felbermayr.cc .
Eventuali condizioni divergenti del partner contrattuale (mandante) si applicano solo dietro espresso accordo scritto e solo per il singolo caso.
2. Offerta e stipula del contratto:
Tutte le offerte del mandatario non sono impegnative ed hanno una validità di 14 giorni dalla data dell’offerta, salvo diversamente pattuito. Al momento dell’accettazione dell’offerta il mandante deve inviare una conferma d’ordine, così facendo conferma la validità delle presenti condizioni generali di contratto come pure di eventuali condizioni speciali. E’ ammessa una accettazione parziale dell’offerta solo se questo è previsto nell’offerta sottoposta oppure se l’accettazione parziale viene confermata dal mandatario.
Eventuali indicazioni telefoniche o verbali e accordi accessori del mandante diventano parte inte-grante del contratto solo se confermati per iscritto dal mandatario.
3. Portata dei servizi:
Il contenuto del servizio da prestarsi a cura del mandatario è quello risultante dall’offerta.
Salvo diversamente pattuito in maniera espressa, la messa a disposizione di attrezzature di lavoro da parte del mandatario avviene sotto forma di un contratto di locazione – correlato ad una ces-sione di manodopera nel caso di fornitura di personale – nell’ambito del quale l’attrezzo ceduto può essere impiegato secondo le istruzioni e a rischio del mandante.
Se il mandatario deve provvedere all’esecuzione sotto la propria responsabilità di servizi di sollevamento secondo le indicazioni del mandante, sussiste allora un contratto di trasporto (§§ 425ff UGB). Se l’esecuzione dei servizi di sollevamento è parte di un trasporto soggetto alla Convenzione CMR, anche il servizio di sollevamento è soggetto al CMR.
I prezzi offerti si basano sulle indicazioni messe a disposizione dal mandante, il quale è tenuto a comunicare in modo vincolante e completo tutte le circostanze del servizio che deve essere reso (caratteristiche del bene da sollevare o trasportare, punti di fissaggio, peso, vie d’accesso, ca-ratteristiche luogo di parcheggio …). Il mandante deve provvedere ad eventuali calcoli statici necessari. Il mandante risponde dei dati incorretti o incompleti forniti e delle relative conseguenze.
Tutte le autorizzazioni necessarie per l’esecuzione dei servizi vengono richieste dal mandatario a rischio e a spese del mandante – salvo diversa pattuizione; su richiesta del mandante viene comunicata tipologia e portata delle autorizzazioni necessarie.
Qualora subentrino variazioni alla portata dei servizi (anche in seguito a condizioni e a pre-scrizioni delle autorità competenti) i maggiori servizi che ne derivano – anche nel caso sia pattuito un prezzo forfettario – devono essere pagati separatamente. Lo stesso vale per eventuali servizi aggiuntivi risultanti da variazioni nel luogo d’installazione, tempi e durata dell’esecuzione dell’incarico, variazione della destinazione, proroga del termine di esecuzione dovuta a circostanze esterne ecc. Il mandatario è autorizzato ad addebitare supplementi di prezzo qualora i pesi effettivi o le dimensioni come pure altre caratteristiche dei particolari da movimentarsi divergano dalle indicazioni fornite dal mandante.
Sono comunque da tenere sempre in considerazione le indicazioni d’uso e le avvertenze fornite, in presenza di dubbi sono da richiedere i necessari chiarimenti prima dell’inizio dei lavori.
4. Termini dei servizi e ritardi:
Il mandatario deve fornire la prestazione entro il termine pattuito, in mancanza di accordo entro un termine adeguato, in seguito ad avvenuto sollecito. In caso di ritardo il mandante deve concedere al mandatario una proroga adeguata. Eventuali diritti di mora possono essere esercitati solo dopo la scadenza di una adeguata proroga. Nel caso di eventuali danni subiti dal mandante a causa del ritardo sono da considerarsi le penali contrattuali da pagarsi al mandante solo se il mandatario è stato informato per iscritto di tali possibili conseguenze prima della presentazione dell’offerta e se è imputabile al mandatario dolo o negligenza.
Il rischio di ritardi nell’esecuzione dovuti a forza maggiore oppure a circostanze non imputabili ad alcuna parte contrattuale (ostacoli alla circolazione; condizioni atmosferiche; mancanza delle necessarie autorizzazioni; catastrofi naturali; pericolo per beni o per la salute in seguito alla fornitura del servizio ecc.) è a carico del mandante. Il termine d’esecuzione del mandatario si protrae pertanto della durata di tali circostanze. Il mandante è tenuto al pagamento del corri-spettivo per la durata dei tempi di fermo dovuti a tali circostanze.
Se per ragioni rientranti nella sfera del mandante lo svolgimento dell’incarico viene ritardato (ad esempio a causa di dati sbagliati all’inoltro dell’ordine, ritardo nella messa a disposizione del bene, vie di trasporto inadeguate o luoghi di sosta inadeguati ecc.) il mandatario è autorizzato ad addebitare i maggiori costi o le spese (anche nel caso di commesse a forfait) che ne derivano.
5. Risoluzione o recesso dal contratto:
E’ ammesso un recesso o una risoluzione anticipata del contratto da parte del mandante se il mandatario non rispetta i propri obblighi contrattuali nonostante la concessione di adeguata proroga oppure in presenza di giusta causa pattuita per iscritto.
E’ ammesso un recesso o una risoluzione anticipata del contratto da parte del mandatario se il mandante non rispetta i propri obblighi nonostante la concessione di una proroga oppure se subentrano delle circostanze, non per colpa del mandatario, che si traducono in difficoltà considerevoli o lasciano presupporre il danneggiamento di beni e/o la lesione di persone e il mandante non è in grado di eliminare tali circostanze entro un termine adeguato.
Qualora le autorizzazioni richieste per la realizzazioni dei servizi dovuti non vengano rilasciate, entrambe le parti contraenti possono avvalersi di un diritto di recesso, nel qual caso il mandante dovrà saldare le prestazioni fornite fino a quel momento dal mandatario.
6. Responsabilità delle parti contraenti:
Per i servizi soggetti al CMR del mandatario si applica esclusivamente il CMR. Spetta al mandante il rispetto delle norme per la protezione del carico.
Nel caso di locazioni di attrezzature correlate alla cessione di manodopera il mandatario risponde solo per la messa a disposizione di una attrezzatura conformemente all’accordo ed even-tualmente di personale idoneo.
Per i servizi di sollevamento si applicano le norme relative al contratto di trasporto. Nel caso di danni al bene oggetto del sollevamento il mandatario offre una assicurazione sul gancio che prevede una somma assicurata di EUR 75.000,00. Se il mandante pretende una copertura maggiore, dovrà comunicarlo per iscritto al mandatario congiuntamente al valore del bene da sollevare. Se il mandante dovesse coprire da sé una tale assicurazione, dovrà allora co-assicurare il mandatario oppure provvedere ad una rinuncia al regresso dell’assicurazione nei confronti del mandatario e dei suoi collaboratori. La responsabilità del mandatario per tutti i danni risultanti dal danneggiamento del bene sollevato è limitata in ogni modo alla prestazione assicurativa.
Non viene assunta alcuna responsabilità per i danni che subentrano sul bene ricuperato durante il ricupero.
In ogni modo il mandatario ed i collaboratori da questo impiegati rispondono dei danni materiali e patrimoniali causati al mandante durante l’esecuzione del servizio solo in presenza di dolo o negligenza da parte del mandatario o dei suoi collaboratori (la manodopera ceduta nell’ambito di una locazione di attrezzature non è da ritenersi un collaboratore del mandatario). E’ esclusa la responsabilità per colpa lieve, ad esclusione dei danni alle persone. Il mandatario e i suoi collaboratori non rispondono inoltre del caso o degli eventi di forza maggiore tanto meno dei danni conseguenti, del mancato profitto, della perdita di interessi e dei danni risultanti da diritti di terzi. La responsabilità del mandatario e dei collaboratori da questo impiegati è limitata all’ammontare della copertura del contratto d’assicurazione di responsabilità civile verso terzi stipulato.
Per il personale non messo a disposizione dal mandatario come pure per i danni risultanti risponde esclusivamente il mandante, ciò vale in particolare per le persone che forniscono le necessarie istruzioni al personale del mandatario. Lo stesso dicasi per i danni risultanti dalle indicazioni o istruzioni fornite alla parte che riceve o spedisce, ad un operatore di gru o ad un conducente di camion e per quelli emergenti in seguito all’adempimento di tali istruzioni (ad esempio movimenti della gru con l’aiuto di un incaricato in caso di scarsa visibilità, azioni del coordinatore del cantiere, istruzioni al conducente di un camion o ad un operatore di gru, ecc.).
Se il mandatario dovesse rispondere nei confronti di terzi per la colpa di tale personale, allora il mandante è tenuto alla relativa salvaguardia e tutela.
Il mandante è tenuto a comunicare per iscritto tempestivamente, al più tardi entro tre giorni lavorativi, i danni provocati dalla prestazione del mandatario.
7. Esecuzione della commessa:
Il mandante deve predisporre e mantenere in condizioni adeguate il bene oggetto del trasporto o del sollevamento o ricupero e provvedere per proprio conto e a proprio rischio a tutti i presupposti tecnici previsti per l’esecuzione dell’incarico e a mantenerli durante l’esecuzione dello stesso.
Il mandante ha un obbligo di informazione e chiarimento nel senso che deve comunicare tutte le circostanze e le caratteristiche necessarie per l’esecuzione del servizio o l’installazione della gru, in particolare le caratteristiche del suolo e la portata del luogo di installazione della gru, oltre agli accessi, a tutti gli impianti/costruzioni presenti come canali, pozzetti, tubazioni, condotti di linee e altri aspetti necessari per una valutazione statica dello svolgimento del servizio richiesto.
Non rispondiamo dei danni al raccordo di accesso (carichi assi) e dei danni di compressione nell’area di installazione della gru (pressione di appoggio). Il fissaggio spetta al mandante.
8. Diritto di compensazione e trattenuta:
Il mandante non è autorizzato a compensare eventuali propri crediti (effettivi o presunti) con crediti del mandatario, a meno che il credito del mandante sia stato riconosciuto per iscritto dal mandatario stesso o stabilito giudizialmente. Il mandante non è autorizzato a trattenere eventuali pagamenti in scadenza.
Le fatture del mandatario hanno scadenza al ricevimento, e devono essere saldate senza detrazione alcuna. In caso di ritardo sono da prevedersi interessi di mora come pure i costi connessi al recupero del credito. Il mandatario è comunque autorizzato ad emettere mensilmente fatture parziali per i servizi già resi. In caso di procedura d’insolvenza sul patrimonio del mandante il mandatario è autorizzato ad emettere fatture parziali settimanali, fatti salvi tutti gli ulteriori diritti a questo spettanti.
10. Condizioni di trasporto:
I contratti di trasporto effettuati dal mandatario – ad eccezione dei contratti di trasporto per conto terzi in cui il mandatario deve mettere a disposizione del mandante un veicolo equipaggiato per un carico qualsiasi secondo le istruzioni del mandante, sono soggetti al CMR.
11. Disposizioni finali; Diritto; Foro competente:
Qualora singole disposizioni delle presenti condizioni generali di contratto risultassero invalide o lo divenissero, è fatta salva la validità delle restanti disposizioni. Le clausole invalide dovranno essere sostituite da una disposizione valida corrispondente allo scopo della clausola originaria.
Luogo di pagamento e di adempimento per le parti contraenti è la sede della filiale interessata del mandatario.
Come foro competente viene pattuito il tribunale competente per materia di Wels/Austria.
Trova applicazione esclusivamente il diritto austriaco con esclusione delle norme che regolano i conflitti di legge.
Special terms and conditions of Felbermayr Transport- und Hebetechnik GmbH & Co KG
for warehousing and transshipping in ports
1. Scope of validity:
These storage and transshipping conditions apply to all operating premises and facilities of the port and/or storage rearrangement areas of the Felbermayr corporate group.
2. General provisions:
These terms and conditions cover the so-called direct transshipment of goods and commodities, the indirect transshipment with prior and/or subsequent warehousing of goods, and the pure storage in covered or open storage areas without port handling.
2.1. Unless otherwise stipulated in the following terms and conditions for storage and port handling, the port and storage handling areas operated by the Felbermayr group are subject to the provisions of the Handelsgesetzbuch [German commercial code] per § 416 ff HGB as well as the provisions of the ordinance on warehouse warrants, in particular the regulations of section 2 for the warehousing business regulated there and the liability provisions of the AÖSp [Austrian freight forwarders’ standard terms and conditions] in the respective applicable version.
2.2. Every user of the port, storage and handling facilities, hereinafter referred to as Customer, agrees to be governed by the provisions of the present terms and conditions for storage and port handling.
2.3. All orders shall be submitted in writing. The Felbermayr group does not accept any liability for the execution of verbally placed orders that have not been confirmed by the Felbermayr group in writing.
2.4. The Customer will be held liable for the consequences of incorrect or incomplete information, if any, even if such incorrectness or incompleteness occurs without fault on the Customer’s part. The Customer is obligated to correctly and completely specify the exact dimensions, weight and centre of gravity as well as the sling points of the goods to be handled or stored, since Felbermayr does not verify the weight, dimensions and/or centre of gravity. In the case of incorrect or incomplete information, the Customer shall be solely liable for any resulting costs and damages. Except with a written special agreement, the port handling of goods is limited to a maximum weight of 100 metric tons. The hoisting equipment and/or cranes will be selected based on the weight data provided by the Customer, i.e. this data has to be exact.
2.5. The Customer shall furthermore provide comprehensive information on the type and the properties of the goods to be handled or stored in writing upon placing the order. Unless the Customer expressly orders covered storage, the goods will be stored in an uncovered (open) area where they are exposed to the weather. Any restrictions of the suitability of the goods for storage shall be reported by the Customer in writing, along with any special characteristics (e.g. particular flammability, explosion risk, perishable nature, radioactivity, toxic substances, odorous substances, storage conditions, and similar).
2.6. The Customer shall provide packaging that is suitable for storage. In the event of damage or impairment to the stored goods caused by Felbermayr, the liability provisions of §§ 51 ff AÖSp including liability restrictions and exclusions shall apply. If the liability provisions of AÖSp do not apply for any reason, Felbermayr will substitute this up to a maximum damage sum of EUR 50,000.00 (liability limitation). If a higher insurance cover is required, this shall be reported in writing by the Customer and if desired a higher insurance cover will be arranged at the expense of the Customer.
2.7. Goods will for the most part be stored in uncovered (open) areas that are not entirely closed off and lockable. Permanent surveillance of the stored goods cannot be ensured, neither during operating hours nor at night or on weekends. In the case of danger of theft, sabotage or other detriment, the Customer shall point such danger out upon placement of the order, and if required, a suitable surveillance and/or locking system shall be commissioned at the Customer’s expense.
2.8. Felbermayr reserves the right to modify the storage areas provided or relocate the stored goods for technical or operational reasons, and the Customer gives their consent to any such rearrangement.
3. Handling, loading and storage procedure:
3.1. A port handling officer designated by Felbermayr, who may also be provided by a third party, will be responsible for the loading and unloading and storage of goods. The carrier of the goods (truck driver, sea captain, train driver, etc.) shall supervise the loading and unloading and shall advise on the stability during loading and unloading as well as any product-specific details for the goods to be handled. During the loading and unloading, the supervising freight carrier (truck driver, sea captain, train driver) shall observe the necessary trim of the sea vessel and/or the stability of the lorries and railroad wagons. These persons act as stevedores and have to give instructions as to where the cargo is to be placed in the means of transport during the loading of vehicles. When loading vehicles, Felbermayr will neither ensure nor verify the necessary suitable lashing or other securing of the cargo.
3.2. The handling personnel provided by Felbermayr for this purpose act as vicarious agents of the persons responsible for the respective vehicles. Any special properties, inertia, hazardous properties and possible shifting of the centre of gravity of liquids and other containers have to be pointed out, and the hoisting points of the goods (centres of gravity) have to be specified to Felbermayr before the start of the handling or hoisting.
4.1. The liability provisions of AÖSp shall apply expressly as agreed. If the stored/handled goods are damaged or lost, the burden of proof of such damage or loss lies with the Customer. In the case of a fault on the part of Felbermayr, the value of the stored goods specified upon placement of the order will be compensated up to the limits of liability specified in the AÖSp. If these limits do not apply in a specific case, the value of the goods will be compensated up to a maximum amount of EUR 50,000.00. These limits of liability and the waiver of any recourse exceeding these amounts are expressly agreed.
4.2. Any and all liability claims against Felbermayr expire upon acceptance without objection of the stored and/or handled goods by the recipient or the recipient’s representative (freight forwarder, etc.). Therefore, any liability claim has to be raised upon acceptance at the latest, otherwise, it expires.
5. Payment terms / place of performance:
The payment terms agreed in the respective individual agreement apply. If this agreement does not specify any particular provisions in this respect, the general terms and conditions of the Felbermayr group published at www.felbermayr.cc, apply. Invoices of Felbermayr are payable immediately upon receipt of the invoice without any deduction of cash discounts.
In the event of a default in payment, default interest will be charged in the amount of 9.2% above the relevant base rate. The agreed place of performance and jurisdiction is Linz. Austrian formal and material law shall apply exclusively.
6. Termination / cancellation:
6.1. Unless otherwise agreed, Felbermayr reserves the right to terminate any and all agreements and contracts without indicating a reason with one month’s notice at any time by registered mail to the address last notified to Felbermayr. After the end of the notice period, Felbermayr is entitled to arrange for storage with a third party on behalf of and at the expense of the Customer without further liability for the handling, transport or storage.
6.2. Furthermore, premature termination of the agreements and contracts is admissible if
a) the stored goods are goods that could constitute a hazard to other stored goods or persons and for which no corresponding hazard warning was given,
b) the Customer is in default of payment of the agreed fee for more than one month despite a written reminder, or
c) major contractual provisions were not fulfilled by the Customer despite a written request to this effect.
6.3. The rights of Felbermayr regarding the legally regulated utilisation of the stored goods as pledge, the description and entitlement to warehouse utilisation in accordance with the commercial provisions of the HGB shall remain unaffected by such termination. Furthermore, the Customer shall grant a right of utilisation in the case of default of payment without the need to file a corresponding request with the court.
Any and all costs and fees of any kind arising from the storage agreement and/or the port handling shall be reimbursed by the Customer.
Special Terms and Conditions of Felbermayr Transport- und Hebetechnik GmbH & Co KG
for work platforms and fork lifts
1. General Stipulations:
1.1. The Client is not permitted to transfer the equipment in any way, unless the Contractor has already provided prior written approval of this. The Client is liable to the Contractor for any use or service of the equipment by a third party.
1.2. Offsetting our demands with contested or invalid counter claims is not permitted.
1.3. Only people, over 18 years of age, in possession of the legally required driving license or forklift license, clean from the influence of drugs, medication and alcohol during the time of operation who have received an induction are permitted to
operate the equipment
1.4. In the case of self-driving truck work platforms, attention must be paid to the passage height.
1.5. These Conditions are supplemented by the General Business Conditions of Felbermayr Transport- und Hebetechnik GmbH & Co KG.
2. Start of Contract, Length of Contract, End of Contract:
2.1. The Client must ensure that suitable operating personnel are available for training and operation. Should the equipment be unable to be operated due to the weather conditions or special reasons not represented by the Contractor, this falls into the sphere of the Client and cannot be charged to the Contractor.
2.2.The Client is obligated to notify the Contractor in writing one day before the end of the contract of the completion of works in order to facilitate the hand-back of the equipment. The Client is also obligated to make the equipment ready for collection.
2.3. The equipment must be returned at the agreed location in the presence of the Client or an authorised Representative.
2.4. If not agreed otherwise, the equipment is only available for use from Monday to Friday. The maximum daily time for operation amounts to 9 hours (period from 7:00 a.m. to 17:00 p.m.). For shift work in one or two stages a prior written consent shall be required.
3. Liability of the Client:
3.1. With the take-over and the signing of the hand-over protocol by the Client or his Representative, any danger of accidents with regards to the equipment is transferred to the Client.
3.2. The Client takes over complete liability and warranty for the handed-over equipment. This liability includes all damage to persons, the equipment and any other special damage caused by the equipment.
3.3. The equipment is not insured against theft and, even in the case of correct safekeeping, the Client is liable for any theft or damage caused by third parties as well as losses incurred by the Contractor through the theft or damage of the equipment. The equipment must be secured against unauthorised operation at all times.
3.4. Furthermore, the Client is liable for all damage, which he or his employees cause to the machine, and all machine downtimes arising from this damage.
3.5. The Contractor recommends expanding the Client‘s liability insurance to cover the hired equipment during the length of the hire. The Client is also liable for damage caused by him or operating personnel through the use of third party equipment.
4. Conditions of Use:
4.1. The Client is obligated to use the equipment in a careful way, to protect it from overexposure and to observe all legal pro visions, connected with the possession, use or maintenance of machine and fittings. If the equipment becomes dirty, the Client shall bear the cleaning costs as well as the loss of income caused to the Contractor because of this.
4.2. The Contractor shall instruct one or several employees of the Client in the handling of the machine during the hand-over. The Client must ensure that only skilled personnel who have been instructed by the Contractor operate the machine.
4.3. The equipment must only be used in accordance with instructions. In particular, work platforms and teleforklifts in work tray operation must not be put under strain as a lifting crane and strained over the determined platform weight. Pulling lines with work platforms and teleforklifts in work tray operation is forbidden. Sand jet and spray jet work near the accepted machines is absolutely forbidden. Impurities and damage must be avoided as far as possible. When carrying out abrasive work, the equipment must be sufficiently covered and protected. Charges will be made for any cleaning costs arising through impurities as well as any damage to the tyres.
4.4. Depending on the type of equipment, the Client is obligated to check the engine oil and cooling fluid levels, and the water level of the battery every day. The Client is also obligated to check the hydraulic oil level each day irrespective of what type of equipment is hired. If required, low amounts should be supplemented with suitable operating fluids at the cost of the Client. In addition, the air filter must be checked each day in diesel-operated equipment and, if required, cleaned. The Client is liable for any damage caused through the use of unsuitable operating fluids, air filters or lack of operating fluids. Fuel, which is not replaced by the Client, will be supplemented on return to the Contractor and charged to the Client.
4.5. The Contractor must be immediately informed of any faults or arising damage to the equipment by providing the equipment number, equipment type and the type of fault.
4.6. The Client is responsible for making sure that the work equipment is only erected at locations suitable for use. The Client is solely responsible for the statics and ground conditions as well as the field of application.
4.7. Downtimes, caused by improper use of the equipment, are the responsibility of the Client. We will charge for any additionally required training sessions.
4.8. If the work equipment is not handed over on time, for a reason not caused by and not to be blamed on the Contractor, then the Client is not entitled to claim any compensation. The same applies if the machine, despite being checked for functionality, breaks down during use.
4.9. The Contractor‘s liability is limited to gross negligence and intent. There is no entitlement to claims for any liabilities exceeding this.
4.10. Risk handover from the Client back to the Contractor only takes place when the equipment has been properly handed back and the hand-back protocol has been signed.
4.11. In case of outdoor operation, the maximum permissible wind speeds must be complied with. Operation must immediately cease if the permissible wind speeds are exceeded.
4.12. Operation of the equipment is only permissible if carried out in compliance with the safety conditions.
5. Payment, jurisdiction and cancellation:
Unless otherwise arranged in writing, our invoices shall be due for payment upon receipt and without deduction. Set-offs with counterclaims of any kind shall not be permissible, unless these claims were already established with legal effect at the time of set-off. The place of payment and fulfilment for both parties shall be the Contractor‘s head office. The court competent in rem in Wels, Upper Austria, shall be agreed to have jurisdiction, whereby Austrian formal and material law shall also apply to all foreign orders. Should the Principal cancel an order, even if only in part, before the Contractor commences work, the Principal shall recompense the Contractor for 10% of the order‘s total - but at least EUR 1,100.00. The Contractor reserves the right to assert further claims.
Special Terms and Conditions of Felbermayr Transport- und Hebetechnik GmbH & Co KG
for ITB Internationale low-loader rail transport
All services performed by Felbermayr Transport und Hebetechnik GmbH & Co KG [Felbermayr Transport and Hoisting Technology Inc.] Dept. ITB – International Low-Loader Rail Transports and its subcontractors – hereinafter referred to in short as ITB – are exclusively based on the following special terms and conditions, unless they infringe obligatory statutory regulations or international conventions on shipping goods (e.g. CMR, CLNI, COTIF/ER, CIM, WA). Business terms and conditions of our contractual partners (the Principal) deviating even in only some items shall only apply if arranged expressly and in writing and only for one individual instance. In cases of repeated performance transactions (continuous business relationship) with merchants, agreement at the outset of the business relationship concerned shall be sufficient to establish the continued applicability of our special terms and conditions. These special terms and conditions also apply to additional orders assigned subsequently. We provide our services either in the form of supplying equipment including personnel or in the form of so-called project transactions for handling railway transports and/or other multi-modal shipping orders or subdivided transports (rail/roadway, rail/inland waterway, etc.).
2. Offer and order:
All our offers are non-binding until definitive contractual conclusion, are exclusively valid dependent on freely available transport routes and – unless arranged otherwise – are valid for 14 days as of the offer’s date. Upon accepting a offer, the principal shall undertake to send ITB a filled-in order form as confirmation of acceptance of the offer. Complex offer preparations, e.g. feasibility studies and project planning are subject to a fee and require a separate agreement. Unless arranged otherwise, the transport permits (authorisations) from the authorities or other sources necessary to perform a service shall be acquired at the Principal’s risk and expense within the framework of a non-gratuitous contract for services or work. Any and all amendments or supplements to the order’s scope due to instructions, conditions and regulations from the authorities or other source not expressly set out in the order’s scope must be recompensed separately. In general, the Principal must issue bills of lading which contain all the information required under the law. Should the Principal not prepare a bill of lading by the date for a shipment’s departure, ITB may issue a bill of lading for the shipment on the Principal’s behalf and account. ITB expressly points out that, upon his enquiry, the Principal shall be informed of the type and scope of the authorisation usually required. Unless arranged otherwise, ITB shall acquire the authorisations directly for the Principal. Unless stipulated otherwise in the offer, the price calculation is based on a »simple« application for authorisation without supplementary instructions imposed. Unless otherwise expressly negotiated, instructions, transport security measures, etc. from the authorities or other sources are not included in the offer’s price structuring. Offers are based on the shortest rail route. Should the authorisations (transport permits) required for carrying out the service ordered not be granted, ITB shall be entitled to withdraw [from the contract] and to invoice the services performed to date, any and all claims for damages on the part of the Principal being precluded.
3. Calculation, prices, delimitation of scope of service:
The prices on which our offers are based are founded on the suitability of the shipping goods for transport on low-loader cars (e.g. gooseneck cars) and on the Principal’s information on executing the order, as well as the technical specifications of the means of conveyance used, which the ITB shall provide to the Principal upon the latter’s request. Should the shipping goods become a supporting part of the railway low-loader car, The ITB shall inform the Principal thereof when submitting a offer. The Principal must ensure that the shipping goods plus any and all adapters are geometrically and statically so constructed that the low-loader car can suitably dock at the shipping goods according to the low-loader overview plans available from ITB; at the same time, ITB shall be liable for the shipping goods plus any and all adapters safely leading off the energy and stresses developing during transport and in loading condition. At ITB’s request, the Principal must provide him with the static calculations for reviewing purposes, whereby such a review shall not release the Principal from his liability. The Principal shall also be liable to ITB in the event that ITB constructs special adapters on the basis of the plans and specifications the Principal has provided and uses them for the transport. The adapters shall constitute loading aids which will be given to the Principal and/or sender in the course of providing equipment. The Principal must provide information on special aspects and characteristics of the goods to be transported, such as sensitivity to shock or impact, as well as special aspects of the loading and unloading sites, company-owned railway enterprises or rail routes, etc. If required or necessary, the Principal is to order an inspection of the loading and unloading sites to establish the aspects indicated; if necessary, suitable sketches and/or key plans and ITB stowage and loading plans are to be provided. Unless arranged otherwise, costs of shipping and unloading, insurance, Customs duties, levies, taxes and outlays are not included in our offers. Our offers are calculated on the basis of immediate and punctual provision and acceptance of the shipping goods by the Principal at the loading and unloading sites. ITB shall be entitled to invoice surcharges if the actual unit weights and/or dimensions and/or other aspects of the parts to be moved deviate from the Principal’s information. The Principal must also separately recompense changes to the scope of performance and/or additional orders assigned subsequently to or during performance of service, even in the case of lump-sum price agreements. This shall also apply if the transport takes longer than arranged and/or if the transport route is extended, as well as to any standstill and waiting charges for the train cars and other means of conveyance at the loading or unloading site.
4. Consequences of delay:
Should order-processing be delayed for reasons not attributable to ITB, the latter shall be entitled to invoice resultant outlays and additional expenditures in every instance. However, should delays be caused due to reasons attributable to ITB, the Principal shall set a reasonable period of grace and initially require the ITB to perform the service. Any and all claims for damages due to consequences of delay – in particular fines and other of the Principal’s contractual penalties - can only be imposed on ITB if the Principal has provably drawn attention to such consequences of delay, including the amount thereof, upon placing his order (damages warning). Otherwise, such consequences of delay shall be precluded, unless ITB is at fault due to intent or gross negligence. In any case, claims due to delay may only be asserted after a reasonable period of grace. Damages on grounds of non-fulfilment and damage which is not personal injury shall be expressly precluded. ITB shall not be liable for damage resulting from lateness. Unless expressly committed as fixed deadlines, delivery periods and dates shall be non-binding and dependent upon timely provision of train cars from the railway company concerned and other circumstances. Should the Principal be in arrears in payment of the negotiated fee, ITB shall be entitled to claim both default interest in the amount of the secondary market yield applicable in each instance with a surcharge of 7% per annum and to invoice the costs of out-of-court warning and claiming, as well as prelitigation expenditures.
5. Withdrawal from contract:
The Principal may only withdraw on important grounds, which latter are to be agreed upon in writing, and if ITB does not meet his fulfilment obligation despite a reasonable period of grace, and if this delay is not remedied by third parties. Should circumstances arise in the course of executing an order beyond the foreseeable extent in such transports which entail substantial difficulties or if the deployment thereof could entail the risk of damage to third-party property and/or assets or which make such an occurrence seem likely, ITB shall be entitled either to withdraw from the contract or to suspend service work until the Principal eliminates such difficulties or risks, any and all claims for compensation being precluded. This will interfere with time-periods agreed. In such a case, ITB shall be entitled to invoice the Principal for services performed until that time, notwithstanding the type of contract chosen. Unless expressly arranged otherwise, standstill and waiting charges usual in the transport branch shall be deemed agreed. The Principal shall also be invoiced for standstill time if lumpsum price agreements have been made. Furthermore, in the event of non-payment of accounts due, established with legal effect and not disputed from previous contracts and/or upon the instigation of insolvency proceedings against the Principal, ITB shall be entitled to cease work and/or to withdraw from the contract and confiscate the shipping goods as lien (haulier-company right of lien).
6.1 Contractual parties’ liability in project transactions, insurance:
ITB shall be liable for all direct damage connected with performing services to the extent that such damage is caused due to grossly negligent or intentional acts on the part of ITB or his vicarious agents during work. Liability for minor negligence shall be precluded. Furthermore, ITB shall not be liable for coincidence, force majeure, interference and dispositions by higher authorities, route closure following an accident or according to construction-work schedules, war, strikes, consequential damage, lost profits or other asset damage. The Principal’s personnel, instructors or other employees provided to ITB shall not be deemed vicarious agents of ITB. ITB shall not be liable for consultation or information provided with respect to which he has not been separately commissioned in writing. The Principal must take out his own socalled »all-risk transport insurance« policy for the transport services, including waiver of claims outstanding and knock for knock (insurance for third-party interest). Simultaneously, the Principal shall indemnify ITB for all liability for its own claims for damages and third-party claims asserted in connection with such transport services, unless the damage is attributable to intent and gross negligence on the part of ITB and its employees. At the Principal’s request and expense, ITB shall take out such an insurance policy covering transport, loading and unloading (recourse-exempt goods transport insurance). In such a case, the Principal shall undertake to inform ITB expressly and in writing of the shipping goods’ insurable value and the risks to be insured. Mere statements of value shall not be deemed an insurance order. By accepting the insurance certificate (policy), ITB shall not assume the duties to which the Principal is obligated as policyholder; however, ITB must take all the usual steps to maintain insurance coverage. In the absence of deviating written agreements or instructions on the Principal’s part, ITB shall insure within the framework of the insurance order under the insurance provisions usual at ITB’s place of fulfilment. Provisions and tariffs are available from ITB. The Principal must allow ITB a reasonable period of time for remedying deficiencies or to deliver missing components. To the extent permissible under the law and in every instance of slight negligence, product liability claims shall be precluded. The same shall apply to consequential deficiency damage and to contracts with protective effect to the benefit of third parties. For his part, the Principal shall undertake to bind his contractual partners over to this disclaimer of liability. The Principal is aware that the liability provisions set out in the Railway Conveyance Act apply to rail transport within Austria, and that the liability provisions set out in the CIM apply to international transports, as well as the special provisions set out in the RIP and the LÜ (excess load) authorisation. Attention is expressly drawn to the restrictions set out in these liability provisions; they shall be agreed as liability restriction between the Principal and ITB. Subsequent regulations of the aforementioned railway provisions, e.g. the GTC of the RCA, shall apply to the same effect. The scope of liability agreed via these special terms and conditions shall also apply to non-contractual claims. Commissioned subcontractors and all personnel involved in implementing this order may also invoke these liability restrictions. The Principal shall be obligated to report without delay any damage caused through ITB’s performance. The Principal must fully describe the facts and circumstances within a period of three days following an occurrence of damage. ITB must receive written reports of outwardly imperceptible damage without delay following the discovery thereof, and by no later than seven days following delivery and/or cessation of our performance. Complaints and/or deficiency reports made at a later date will not be acknowledged.
6.2 Contractual parties’ liability for equipment, rail-car and personnel:
The term »equipment and rail-car provision« means that ITB shall provide equipment to the Principal in the form of railway cars, accompanying crew cars (i.e. private railway cars) and the like and, additionally, will make personnel available to the Principal upon the latter’s request (labour provision). This shall constitute a combined provision of vehicles and personnel, whereby the personnel shall be integrated into the Principal’s enterprise and shall work according to the Principal’s instructions and at the latter’s risk. Similarly, loading and unloading is to be carried out exclusively according to the Principal’s instructions. Attention is expressly drawn to the Austrian Federal Railways’ general authorisation provisions and those on dispatch with excess load and other railway enterprises; they shall also apply in ITB’s relation to the Principal and the regulations set out therein are to be complied with. Freight orders when equipment is provided shall be concluded directly between the Principal and the railway enterprise concerned. ITB insures its equipment within the EU against collision damage. In such a case, the Principal shall bear a deductible of 1.0% of the equipment’s value, not less than EUR 730.00 and not more than EUR 16,350.00. Furthermore, the Principal shall be liable for the undamaged return of the equipment upon termination of the contractual relationship. There shall be no ITB knock-for-knock with regard to any damages claimed against the Principal connected with tasking out the collision policy.
7. Execution of order:
The Principal shall be exclusively liable for damage be caused by persons who are not ITB’s vicarious agents in the course of performing a service. This shall apply in particular to damage resulting from ITB following instructions given to them during loading and unloading. The Principal must state the corresponding special factors such as weights, dimensions and tensor points of the goods to be moved or transported bindingly and completely upon each order assignment. Attention is expressly drawn to the special provisions of the railways concerned on loading-procedure excess, including the waiver of knock-for-knock set out therein; they shall also be deemed as agreed between the Principal and ITB. The Principal is also expressly aware of this waiver of knock-forknock vis-à-vis ITB. Third-party information provided at the Principal’s instigation shall be deemed to be the Principal’s. Should the Principal fail to comply with this duty to provide information and directions, he shall undertake to indemnify ITB for all third-party damage caused thereby and/or to effect compensation to ITB for its own damage incurred. The Principal shall warrant and assume the risk for the properties of the goods to be transported, the railway access road and the loading and unloading sites being suitable so that the order can be carried out duly and properly. In particular, the Principal shall be liable for all damage occurring due to a shipment being loaded, reloaded or organised in an improper manner attributable to him or due to the personnel or staff to be instructed by him improperly carrying out their duties during conveyance and/or loading or unloading. This liability shall also extend to cover damage caused to ITB and/or the railways concerned by third parties in the same manner. Attention is drawn to the fact that, in cases of damage due to loading or positioning a shipment which a railway enterprise performs itself or causes to be performed, the latter shall only be liable continent upon the obligatory carefulness reasonably expectable during reloading or positioning a shipment, restricted according to the applicable provisions set out in the Railway Conveyance Act and the CIM.
8. Special provisions for providing private low-loader cars and other equipment:
ITB shall provide the Principal with a private railway car for a specific period of time for a correspondingly arranged fee for the purpose defined in the shipping contract. At the same time as the obligation to pay the fee, the usage relationship shall commence on the day ITB dispatches the car from the departure railway station as confirmed by the Railway Office and shall cease on the day the car is duly and properly returned to ITB on the day agreed at the departure railway station or other contractually arranged return site. Should maintenance work, Railway Office inspections or cleaning beyond the usual scope be necessary after the car is returned, the usage relationship shall cease upon the conclusion of such work, which ITB is to instigate without delay. When rail-cars are provided, the Principal shall be liable that the private rail-car provided by ITB is returned untarnished and undamaged, and the Principal shall be liable – irrespective of which party is at fault – for all damage and other detriment to the rail-cars provided during provision thereof, with the exception of wear and tear resulting form the contractually stipulated use.
9. Payment, jurisdiction and cancellation:
Unless agreed otherwise in writing, our invoices shall be payable upon receipt and without deduction. Set-offs shall only be permissible with counterclaims which are undisputed or which are legally effective. German shall be the contractual language. The location of ITB’s head offices shall be the place of payment and fulfilment for both parties, including bill of exchange and cheque transactions. Austrian formal and material law shall be deemed applicable in every instance, to foreign orders as well, unless supranational statutes (CMR, CLNI, CIM, WA, COTIF/ER) are in opposition thereto. Should the Principal cancel an order, even if only in part, before ITB commences work, the Principal shall recompense the ITB for 10% of the order’s total – but at least EUR 5,000.00, notwithstanding further claims which the ITB shall be entitled to assert.
10. Application provisions:
Until the time all its entitlements have been paid, ITB shall have the right to withhold goods received during the course of handling an order, or released to third parties or held for safekeeping. Should individual provisions set out in these special terms and conditions be or become invalid, the effectiveness of the other provisions set out therein shall remain unaffected thereby. In place of the invalid provision, a valid contractual provision shall be inserted which corresponds to the intention of the original regulation. All information and/or other technical data contained in this offer (plans, static calculations, and the like) are the intellectual property of ITB and may not be used or passed to third parties without ITB’s express written consent. Contravention shall entail a contractual penalty in the amount of 30% of the offer’s total shall be due for payment, ITB’s entitlement to claim further damages held in reserve. Without express technical or static confirmation, the technical drawings provided are non-binding and shall be understood as suggestions and/or recommendations.
Assembly conditions of Felbermayr Transport- und Hebetechnik GmbH & Co KG
For the use with:
1. a person who, at conlcusion of the contract, acts in the exercise of their commercial or self-employed business (businessperson);
2. public-law legal persons or such under public-law special funds.
I. Area of application
These assembly conditions apply to all assembly carried out by Felbermayr Transport- und Hebetechnik GmbH & Co KG (contractor), unless different arrangements were made and unless it concerns purely basic assembly work in the context of transport preparation or handling within the frame work of the general terms and conditions of Felbermayr Transport- und Hebetechnik GmbH & Co KG (see www.felbermayr.cc).
II. Directory of services, assembly prices
The assembly service shall be subject exclusively to the service specifications of the orderer, upon which the call fortenders, 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 applicable statutory rate.
III. The technical assistance of the customer
1. Unless otherwise agreed upon, the orderer is obliged to provide technical assistance at own costs, especially
a) for all preparation work, especially earth, construction, ballast and scaffolding work, including the sourcing of the required building materials.
b) provision of heating, power and lighting, compressed air, water, including the necessary connections.
c) provision of necessary, dry and lockable rooms for the storage of tools and the assembly personnel‘s operating supplies and auxiliary materials.
d) appropriate, theft-proof common rooms (with heating and lighting), washing facilities, sanitary facilities) and first aid for the assembly personnel.
e) provision of all auxiliary materials and execution of all other actions necessary for the adjustment and alignment of the object to be assembled and for the conduction of contractually agreed testing.
f) protection and securing of the assembly site and materials against adverse influences of all kinds, cleaning of the assembly site.
2. The orderer‘s technical assistance must assure that assembly work can start immediately after the arrival of the assembly personal and can be carried out without delay until final inspection can be conducted by the orderer. In case special plans or instructions by the orderer are required the latter must provide them in due 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 Felbermayr Transport- und Hebetechnik Gmbh & Co KG shall otherwise remain unaffected.
IV. Assembly deadlines, assembly delays
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, if such hindrances demonstrably effect assembly to a large degree. 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. For each full week of the delay, this amount shall be of 0.5%, in total however a maximum of 5% of the value of that part of the total assembly price that cannot be used on time. 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 the orderer sets the contractor a reasonable deadline for performance after the due date - taking account of the statutory exemptions - and this deadline is not met, the orderer shall be entitled to rescind the agreement in the framework of the statutory provisions. Further claims arising from delay are determined exclusively according to paragraph 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 the installation work is not in accordance with the contract, the contractor isobligated to remedy the defect at their own cost. If an immaterial defect exists, the customer shall not be entitledto refuse acceptance
2. If acceptance is delayed due to no fault of the contractor‘s, acceptance is considered completed after a period of two weeks following announcement that the installation is finished.
3. If the orderer accepts the assembly work without reservation despite being aware of the defect, the orderer shall forfeit all rights tosupplementary performance, substitute performance against reimbursement of expenses, and price reduction, as well as the right to withdraw from the contract.
VI. Claims for defects
1. After acceptance of the service work, the contractor shall be liable for defects in the service work excluding all otherclaims of the customer without prejudice to No. 3 and article VII. in such a way that it must remedy the defect. The orderer shall notify the contractor immediately of a detected defect.
2. If the contractor - taking account of thestatutory exceptions - allows a reasonable deadline it has been set to fruitlessly expire the orderer shall have a right within the framework of the statutory provisions to reduce the remuneration. The orderer‘s right to reduce the purchase price is also applicable to other incidents of an unsuccessful remedy of defects. Only if the assembly is demonstrably without interest for the orderer, despite the reduction in remuneration, is the client entitled to withdraw from the contract.
3. Further claims arising from delay are determined exclusively according to paragraph VII.2 of these terms and conditions.
VII. Client‘s liabilities, liability exclusion
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 claimsunder 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. With the culpable breach of essential contractual dutiesthe contractor shall also be liable withgross negligence of non-executive employees and with slight negligence, in the latter case limited to thetypical, reasonably foreseeable damages.
3. Further claims are excluded. In the event that the contractor seeks recourse the orderer shall indemnify the contractor fully within the internal relationship, insofar as the latter did not cause the damage with intent or through gross negligence.
VIII. Orderer‘s duties
1. The orderer is obliged to provide all the technical requirements that are necessary for the proper and saferealisation of the assignment at his/her own account and riskand maintain these for the duration of the project. In particular, the orderer is obliged to put and maintain the object to be assembled in a condition that allows for for the execution of the assembly work. The orderer is obliged to indicate the correct dimensions, weights and special attributes of the commodity (e.g. centre of gravity, type of material, etc.) as well as the load fastening point in due time. The orderer must provide unrequested and timely information on any particular hazards that could occur duringperformance of the assembly work because of the nature of the goods being assembled and the local conditions(e.g., hazardous materials, contamination, etc.).
2. The orderer is to take care of the necessary approvals from the owners for driving to foreign premises, private streets, roads andsquares and to indemnify the contractor from any claims of third parties which could result out of unauthorised use of foreign premises.
3. Furthermore, the orderer is responsible for ensuring that the ground, place and other conditions at the unloading location as well as the access roads - except for public streets, roads and squares - allow a proper and safe execution of the assembly order. In particular, the orderer is responsible for making sure the ground at the assembly site, possible storage and pre-assembly locations as well as on the access roads can withstand the accruing earth pressures and other stress caused by assembly vehicles and machines (e.g. cranes, heavy loads, lifting gear etc.) The orderer is also responsible to provide all relevant details regarding subterraneancable ducts, service pipes, other underground pipelines and cavities that could impair the load-carrying capacity of the ground on-site or the access road ways. The orderer is obliged to inform the supplier without request of the location and existence of underground ducts, shafts andother cavities without having to be asked to do so. If the orderer should ignore the duty to provide the required information,he will be held liable for all damages resulting from the omission, including material damages and secondary damages to vehicles, equipment and devices of the supplier as well as financial damages.
4. The orderer is also to inform the assembly supervisor about specific security regulationsthat exist as far as these are of importance for the installation personnel. The orderer is to notify thecontractor about violations caused by the installation personnel against such security regulations (e.g.instructions by outside companies, special safety and protective clothing, etc.).
IX. Limitation period
All claims of the orderer - irrespective of the legal grounds - come under the statute of limitations in 12 months. Compensation claims according to section VII. 2. a) - d) are subject to the statutory periods. If the contractor effectsassembly work at a building and thereby causes its imperfection, the statutory time periods similarly apply.
X. Replacements provided by the orderer
If the appliances or tools supplied by the contractor are damagedat the working place without his default, or if they get lost without his default, the orderershall indemnify him for such damage or loss.
XI. Final provisions
1. The „Werkvertrag“ (Contract Law for Work and Labor) law forlegal relations between domestic parties of the Republic of Austria exclusively applies to all legal relations between the orderer and the contractor under exclusion, even if the assembly site is located abroad.
2. The performances of the contractor are preliminary performances and not eligible for discount deductions. Received accounts have to be settled immediately by the client after acceptance and receipt of invoice, unless otherpayment targets have been agreed upon at placement of order. Netting or withholding isonly permissible with counterclaims that are uncontested or established with lawful finality.
3. Place of jurisdiction shall be the place of the contractor‘s domicile However, the contractor is also entitled to file suit at the orderer‘s court of jurisdiction.
4. In the event of a provision in these business conditions or a provision in the context of otheragreements proving to be or becoming ineffective,the effectiveness of all other provision or agreements remains unaffected. 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 the German Federal Working Group Heavy Haulage and Crane Work of Felbermayr Deutschland GmbH
Crane and Haulage 2020 (AGB-BSK Crane and Haulage 2020)
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 service in the meaning of these terms and conditions is the commercial transportation of goods and moving or relocating goods, especially by means of special auxiliary transportation gear such as e.g. heavy load rollers, armoured rollers, 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 items are 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 is agreed with open deck loading for shipment by sea.
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 of Felbermayr Deutschland 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 break- down 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 Felbermayr Deutschland GmbH
for heavy equipment assembly
Terms and Conditions of Assembly of the German Federal Working Group Heavy Transport and Crane Work (BSK)
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 of Felbermayr Deutschland 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
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.
3.1.1. Addresses, type and quality of the goods, the gross weight (including packaging and Loading Means) or otherwise bspecified 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
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 unaffected.
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), currency conversion 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:
20.2.1. 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 purpose of 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.
Special Terms and Conditions of Felbermayr Deutschland GmbH
for Storage and Port Handling at the Felbermayr Heavy Goods Port Krefeld
1. Scope of application
These terms and conditions for storage and port handling apply for the premises and facilities of the port and/or storage handling areas in the port of Krefeld. The applicability of conflicting terms and conditions of the Customer, if any, is refused.
2. General provisions
These terms and conditions cover the so-called direct transshipment of goods and commodities, the indirect transshipment with prior and/or subsequent warehousing of goods, and the isolated storage in covered or open storage areas without port handling.
2.1. Unless otherwise stipulated in the following terms and conditions for storage and port handling, the port and storage handling areas operated by Felbermayr are subject to the provisions of the Handelsgesetzbuch [German Commercial Code] on warehousing and the liability provisions of the ADSp [German Freight Forwarders’ Standard Terms and Conditions] as amended.
2.2. Every user of the port, storage and handling facilities, hereinafter referred to as Customer, agrees to be governed by the provisions of the present terms and conditions for storage and port handling.
2.3. All orders must on principle be submitted in writing. Felbermayr does not accept any liability for the execution of orally placed orders that have not been confirmed by Felbermayr in writing.
2.4. The Customer will be held liable for the consequences of incorrect or incomplete information, if any, even if such incorrectness or incompleteness occurs without fault on the Customer’s part. The Customer is obligated to correctly and completely specify the exact dimensions, weight and centre of gravity as well as the sling points of the goods to be handled or stored, since Felbermayr does not verify the weight, dimensions and/or centre of gravity. In the case of incorrect or incomplete information, the Customer shall be solely liable for any resulting costs and damages. The hoisting equipment and/or cranes will be selected based on the weight data provided by the Customer, i.e. this data has to be exact. Except with a written special agreement, the port handling of goods is limited to a maximum weight of 100 metric tons.
2.5. The Customer shall furthermore provide comprehensive information on the type and the properties of the goods to be handled or stored in writing upon placing of the order. Unless the Customer expressly orders covered storage, the goods will be stored in an uncovered (open) area where they are exposed to the weather. The Customer shall indicate any restrictions of the suitability of the goods for storage in writing. Any storage or handling of goods that are classified as hazardous materials according to the provisions of the ADNR or the IMO is expressly excluded.
2.6. Goods will for the most part be stored in uncovered open areas that are not entirely closed off and lockable. The Customer shall provide packaging that is suitable for storage. Permanent surveillance of the stored goods cannot be ensured, neither during operating hours nor at night or on weekends. In the case of danger of theft, sabotage or other detriment, the Customer shall point such danger out upon placement of the order, and if required, a suitable surveillance and/or locking system shall be commissioned at the Customer’s expense.
2.7. Felbermayr reserves the right to modify the storage areas provided or relocate the stored goods for technical or operational reasons, and the Customer gives his consent to any such rearrangement.
3. Handling, loading and storage procedure
3.1. A port handling officer designated by Felbermayr, who may also be provided by a third party, will be responsible for the port handling, loading and unloading and storage of goods. The carrier of the goods (truck driver, sea captain, train driver, etc.) shall supervise the loading and unloading and port handling by means of cranes, if any, and indicate the stability and any product-specific details of the goods and commodities to be handled. During the loading and unloading, the supervising freight carrier (truck driver, sea captain, train driver) shall observe the necessary trim of the sea vessel and/or the stability of the lorries and railroad wagons. These persons act as stevedores and have to give instructions as to where the cargo is to be placed in the means of transport during the loading of vehicles. When loading vehicles, Felbermayr will neither ensure nor verify the necessary suitable lashing or other securing of the cargo. The Customer is responsible for the loading, stowing and lashing of the cargo.
3.2. The handling personnel provided by Felbermayr for this purpose act as vicarious agents of the persons responsible for the respective vehicles. Any special properties, inertia, and possible shifting of the centre of gravity of liquids and other containers have to be pointed out, and the hoisting points of the goods (centres of gravity) have to be specified to Felbermayr before the start of the handling or hoisting.
4.1. With respect to any temporary storage and forwarding-related handling (e.g. with port cranes) required during transport, the applicability of the liability provisions of the ADSp as amended is expressly agreed. Any isolated port handling is subject to the liability provisions in the General Terms and Conditions of Felbermayr for Crane Usage and Heavy Goods Transports - service type 2 - as published at www.felbermayr.cc/agb. Storage orders placed are subject to specific liability provisions under the respective individual agreement to be concluded. If the stored/handled goods are damaged or lost, the burden of proof of such damage or loss lies with the Customer. In the case of a fault on the part of Felbermayr, the value of the stored or handled goods specified upon placement of the order will be compensated up to the limits of liability specified in the ADSp; if these limits do not apply in a specific case, the value of the stored or handled goods will be compensated up to a maximum amount of EUR 50,000.00. These limits of liability and the waiver of any recourse exceeding these amounts are expressly agreed.
4.2. Any and all liability claims against Felbermayr expire upon acceptance without objection of the stored and/or handled goods by the recipient or the recipient’s representative (freight forwarder, etc.). Therefore, any liability claim has to be raised upon acceptance at the latest; otherwise, it expires.
4.3. Felbermayr is not obligated to insure the goods for their own or a third party’s account.
5. Payment terms/place of performance
The payment terms agreed in the respective individual agreement apply. If this agreement does not specify any particular provisions in this respect, the General Terms and Conditions of Felbermayr for Crane Usage and Heavy Goods Transports, published at www.felbermayr.cc/agb, apply. Invoices of Felbermayr are payable immediately upon receipt of the invoice without any deduction of cash discounts. In the event of a default in payment, default interest will be charged in the amount of 9.2% above the relevant base rate. The agreed place of performance and jurisdiction is Düsseldorf. German law applies exclusively.
6.1. Unless otherwise agreed, Felbermayr reserves the right to terminate any and all agreements and contracts without indicating a reason with one month’s notice at any time by registered mail to the address last notified to Felbermayr. After the end of the notice period, Felbermayr is entitled to arrange for storage with a third party on behalf and for the account of the Customer without further liability for the handling, transport or storage.
6.2. Furthermore, premature termination of the agreements and contracts is admissible if
a) the stored goods are goods that could constitute a hazard to other stored goods or persons and for which no corresponding hazard warning was given,
b) the Customer is in default of payment of the agreed fee for more than one month despite a written reminder,
c) major contractual provisions were not fulfilled by the Customer despite a written request to this effect.
6.3. The rights of Felbermayr regarding the statutory utilisation of the stored goods as pledge pursuant to the provisions of the HGB [German Commercial Code] shall remain unaffected by such termination. Furthermore, the Customer shall grant a right of utilisation in case of default of payment without the need to file a corresponding request with the court.
Any and all costs and fees of any kind arising from the storage agreement and/or the port handling shall be reimbursed by the Customer.