OUR GENERAL TERMS AND CONDITIONS
GENERAL TERMS AND CONDITIONS OF DAHER PROJECTS GmbH
FOR THE VOLUMINOUS LOADS, HEAVY HAULAGE AND FORWARDING BUSINESS
1.1 DAHER PROJECTS provides forwarding services, especially in the field of voluminous loads and heavy haulage, as follows:
- Complete forwarding services by rail, road and water
- Transport under our own name, including transshipment
- Other forwarding services
These services are provided under the conditions agreed in the assignment and in addition to these General Terms and Conditions.
In addition, the Special Terms and Conditions listed below shall apply in their respective current version.
Mandatory statutory provisions shall remain unaffected.
These General Terms and Conditions and the Special Terms and Conditions listed below can be viewed on the DAHER PROJECTS website www.daher.com.
These will be transmitted to the customer in text format upon request.
1.2 For the hire of low-loader wagons, the “General Terms and Conditions for the Hire of Low-loader Wagons from DAHER PROJECTS” shall apply.
1.3 The customer’s General Terms and Conditions of Purchase will only apply if expressly accepted in writing by DAHER PROJECTS.
1.4 In addition, the following Special Terms and Conditions will apply:
1.4.1 For heavy haulage, voluminous consignments and crane work, the “General Terms and Conditions of the German Federal Working Group Heavy Haulage and Crane Work – AGB/BSK” shall apply– and also the German Freight Forwarder’s Standard Terms and Conditions (ADSp) according to the following section 1.4.2
1.4.2 For other forwarding, freight, storage and any other services generally associated with the forwarding industry, “German Freight Forwarder’s Standard Terms and Conditions – ADSp” shall apply in the version dated 01.01.2016.
2. OFFER / CONTRACT, LIABILITY OF THE CUSTOMER
2.1 The basis for the services to be rendered by DAHER PROJECTS is fundamentally a contract in writing.
Subsequent changes must also be made in writing.
2.2 The offer by DAHER PROJECTS upon which the contract is based, including the quoted price, is based on the details supplied by the customer of the weight, centre of gravity, dimensions and technical nature of the goods, including dimensioned diagrams and requirements for the service.
2.3 DAHER PROJECTS will produce a transport concept based on the customer’s details and requirements, which will form the basis for any transport permits that will have to be obtained from the authorities, railway infrastructure managers or railway transport companies.
2.4 The offer is non-binding until the order is confirmed by DAHER PROJECTS. It is subject to the reservations set out therein and to the following reservations
- the availability of routes and timetable paths,
- inspection and approval procedures of authorities, infrastructure managers,
railway companies or other third parties whose involvement is compulsory, which – according to the best judgement of DAHER PROJECTS – do not cause any expense beyond what is usual,
- no conditions being imposed by aforementioned third parties that leads to increased costs or an increase in the time required compared to the offer, and
- the availability of the required equipment
2.5 If dimensions, weight or other characteristics of the goods deviate from the details given by the customer, DAHER PROJECTS can, at their professional discretion, either make the efforts required to render their services and invoice the customer the resulting additional costs or terminate the contract.
§ 417 of the German Commercial Code (HGB) applies correspondingly; DAHER PROJECTS must only grant the customer a period of grace if, according to the professional estimate of DAHER PROJECTS, this will allow the services to be rendered in accordance with the contract.
Furthermore, DAHER PROJECTS will bill the customer any additional costs that result from circumstances that are the subject of the reservations referred to in Paragraph 2.4.
2.6 The customer shall be liable for all damage and expenses that arise for DAHER PROJECTS due to incorrect or omitted details by the customer concerning dimensions, weight and other characteristics of the goods, such as dangerous goods in particular.
The legal liability of the customer in his capacity as sender in terms of the law concerning the carriage of goods shall remain unaffected.
2.7 For the preparation and coordination of services that demand special efforts for planning and implementation, DAHER PROJECTS creates feasibility studies, the scope of and remuneration for which must be agreed separately.
3.1 DAHER PROJECTS provides its own or hired equipment for consignments, sometimes including qualified operating staff.
The equipment also includes any necessary escort vehicles and tool and gear wagons.
3.2 The customer may not leave the equipment to third parties.
3.3 If not otherwise agreed, the customer shall be responsible for loading and unloading the equipment in a safe and secure manner.
He must examine the equipment provided by DAHER PROJECTS for loading for its suitability for the planned transport and report any defects immediately.
3.4 The customer agrees to his goods being transported on open vehicles that are not covered by tarpaulin covers.
If the customer issues no instructions to the contrary, loading on deck is permitted on river vessels and sea-going ships.
4. EXECUTION OF ASSIGNMENT, ADHERENCE TO DEADLINES
4.1 DAHER PROJECTS renders its services with the due diligence of a prudent businessman.
4.2 The customer shall undertake to guarantee that the characteristics of the goods to be transported permit the assignment to be undertaken in an orderly manner.
He must ensure that the load is ready to be loaded without delay onto the transport vehicle and that the loading and unloading points are fully accessible.
4.3 DAHER PROJECTS is entitled to subcontract the service fully or in part to suitable subcontractors.
4.4 If the execution of the assignment is delayed for reasons that lie within the customer’s sphere, the customer shall bear the resulting costs incurred by DAHER PROJECTS.
DAHER PROJECTS is authorised to charge reasonable demurrage.
4.5 Deliver deadlines are expressly not agreed for voluminous and heavy haulage consignments; any details from DAHER PROJECTS about delivery deadlines are non-binding and subject to the proviso in section 2.4 above.
5.1 As long as no compelling legal regulations intervene, the liability of DAHER PROJECTS in their capacity as forwarder and carrier is governed by the ADSp as defined in section 1.4.2 above.
These contain liability regulations, which deviate to some extent from the statutory regulation.
Particular reference is made to sections 22 – 25 of the ADSp.
5.2 Insofar as the customer desires an amount that exceeds the aforementioned liability, he can commission DAHER PROJECTS to provide supplementary insurance cover at his own cost.
5.3 Provided that claims for damages by the customer are in all other respects not caused by intent or gross negligence on the part of DAHER PROJECTS or DAHER PROJECTS is not liable under mandatory legislation, claims for damages of any kind against DAHER PROJECTS, their employees and subcontractor that exceed the entitlements set down in the contract and the present GTC are excluded.
This does not apply to the violation of essential contractual obligations, that is of such obligations whose fulfilment makes the proper execution of the contract at all possible and on compliance with which the customer may regularly rely; compensation in such cases is limited to the typical, foreseeable damages.
5.4 The customer’s employees shall not be regarded as subcontractors of DAHER PROJECTS.
5.5 The statutory provisions shall apply to notifications of damage by the customer.
He must give DAHER PROJECTS an opportunity to inspect the damage.
6.TERMS OF PAYMENT
6.1 DAHER PROJECTS invoices are due for immediate payment.
The customer shall be in default after 30 days from the date of the invoice. There will be no special reminder.
DAHER PROJECTS may charge the legal interest for late payment.
6.2 Any netting or withholding by the customer against claims by DAHER PROJECTS is excluded, unless his mature counterclaim is undisputed, ready for a decision or legally binding.
7. PLACE OF JURISDICTION AND APPLICABLE LAW
7.1 For all disputes arising from the contractual relationship (including counterclaim, cheque and bill of exchange proceedings), the sole place of jurisdiction is Hanau.
Within the scope of mandatory jurisdiction (e.g. according to the CMR) Hanau is considered to be an additional place of jurisdiction.
FOR THE HIRE OF LOW-LOADER WAGONS FROM DAHER PROJECTS LTD. FOR THE BUSINESS OF TRANSPORTING HEAVY AND VOLUMINOUS LOADS
1.1 The hirer may only use the low-loader wagons for the purposes specified by the agreement.
Violations shall entitle DAHER PROJECTS to immediate termination of the hire agreement.
DAHER PROJECTS can demand additional remuneration from the hirer, to be set according to his reasonable discretion and subject to judicial review, if and to the extent that a higher level of remuneration than the agreed hire charge is customary for breach of contract.
The assertion of further claims shall remain unaffected.
1.2 The hirer must undertake to handle and use the low-loader wagons with care and in accordance with the recognised rules of technology.
Repair costs for damage that is incurred during the hire period – and which cannot be traced back to wear and tear due to contractual usage – must be borne by the hirer.
1.3 Any structural modifications to the wagons, including fittings – including modifications for the purpose of securing the load – require the written permission of DAHER PROJECTS.
1.4 Subleasing of the low-loader wagons is not permitted.
1.5 DAHER PROJECTS is entitled to inspect the low-loader wagons during normal business hours or to appoint someone to inspect them on their behalf.
After agreeing an appointment in advance, DAHER PROJECTS can examine the low-loader wagons themselves or appoint someone to examine them on their behalf.
The costs of the inspection and examination will be borne by DAHER PROJECTS.
1.6 The hirer must undertake to transport or store his load in a secure manner (packaging, leak protection, etc.) so that the low-loader wagons are not damaged or contaminated in the process.
2. HANDOVER / RETURN
2.1 The low-loader wagons will be handed over by DAHER PROJECTS in a condition that is suitable for the contracted purpose.
The hirer shall accept low-loader wagons that are already in his possession when the hire agreement is concluded as complying with the agreement.
2.2 If the low-loader wagons are not yet in the possession of the hirer when the hire agreement is concluded, he must examine them for defects during the handover.
If any defects are identified, the hirer must notify these to DAHER PROJECTS within eight hours of the handover.
If DAHER PROJECTS does not accept the defects at the latest within the following working day, the hirer may request a joint inspection.
A report must be compiled; this shall be binding.
If DAHER PROJECTS inspect the defects within three working days, despite the invitation to do so, they shall be considered to be accepted by DAHER PROJECTS.
§ 536a of the German Civil Code (BGB) is deemed to be excluded, as long as the defect has not been caused by the intent or gross negligence of DAHER PROJECTS.
2.3 The hirer must undertake to return the low-loader wagons to DAHER PROJECTS, after expiry of the hire period, punctually at the agreed place of return in a usable and contractual condition, i.e. in the condition in which it was handed over, completely empty, properly decontaminated or cleaned and complete with all loose components.
In the event of non-compliance, DAHER PROJECTS will raise a charge for any expenses incurred by them due to this; the assertion of further claims remains unaffected.
2.4 The return of the low-loader wagons must be advised to DAHER PROJECTS in good time in advance in text form.
DAHER PROJECTS will collect the low-loader wagon anywhere within Germany at their own cost.
The hirer must undertake the return from a foreign country to a location in Germany to be specified by DAHER PROJECTS; DAHER PROJECTS will pay the freight charges for the empty movement, as long as the use of the low-loader wagon in said foreign country was agreed in the hire agreement.
2.5 If the agreed hire period is exceeded, the hirer shall be in default with the return of the low-loader wagon. There will be no further reminder; any silent extension of the hire period pursuant to § 545 of the German Civil Code is also excluded.
In the event of late return or if the hirer refuses to return the low-loader wagon, DAHER PROJECTS are entitled to their rights pursuant to § 546 a of the German Civil Code.
The assertion of a claim for further damages is not excluded.
2.6 After use for the transport of dangerous goods, with the return of the low-loader wagon, the hirer shall transmit to DAHER PROJECTS the written clearance certification from a commercially approved cleaning company in text form as proof that decontamination has taken place.
2.7 DAHER PROJECTS must examine the low-loader wagons for defects and damage within 7 working days of their being returned.
Should such be found, they must be reported to the hirer and accepted by him in text form.
If the hirer does not accept the defects / damage within a deadline set by DAHER PROJECTS – or within three working days if no deadline is set –, DAHER PROJECTS may request a joint inspection.
A report must be compiled; this shall be binding.
If the hirer does not inspect the defects / damage within three working days, despite the invitation to do so, they shall be deemed to be accepted by the hirer as his responsibility.
3. HIRE CHARGE / SETTLEMENT
3.1 The obligation of the hirer to pay the hire charge begins on the day of the handover of the low-loader wagons to him – not, however, before the contracted day – and ends on the day the low-loader wagons are returned to DAHER PROJECTS – not, however, before the contracted end of the hire.
3.2 The days of commencement and end of the hire shall be included in the hire charge payment obligation as full calendar days.
3.3 As well as the hire charge, DAHER PROJECTS will charge the hirer a flat rate for the empty provision and the return of the low-loader wagons.
3.4 If the hirer makes a binding reservation or concludes a hire agreement, a charge of 10% of the agreed hire charge will be raised in the event of a cancellation (charge per day for the duration of the agreed hire period) as a cancellation fee.
If the cancellation takes place less than 3 working days prior to the agreed start of the hire, the hirer must in addition reimburse DAHER PROJECTS the expenses incurred up to that point (e.g. the costs of providing the empty wagons).
3.5 The hire charge is due immediately.
Payment must be made at the latest within 30 days from the date of the invoice.
After this, the customer will be in default. There will be no reminder.
DAHER PROJECTS may charge statutory interest for late payment.
4. OVERHAUL, MAINTENANCE AND REPAIR
4.1. DAHER PROJECTS is responsible for the overhaul and maintenance of the low-loader wagons.
The hirer must undertake to hand over the low-loader wagons for overhauls and maintenance to be carried out, after prior arrangement.
The costs of the transport to the workshop will be borne by DAHER PROJECTS.
Insofar as repairs are required to damage for which the hirer is responsible, the hirer must pay the repair and transport costs.
5. LIABILITY AND INSURANCE
5.1 The hirer must notify DAHER PROJECTS – Control Office for low-loader wagons in Hanau of any damage, losses and accidents without delay by phone, fax or e-mail.
He must transmit to DAHER PROJECTS without delay all necessary documents (e.g. damage report, accident report, police report) for the assertion of possible claims.
5.2 The hirer is liable for all damage to the low-loader wagon, as well as for structural changes that are caused during the hire period by himself, by third parties or by the load.
If the low-loader wagons are returned in a damaged condition, it will be presumed that the damage was caused during the hire period and by the hirer, if DAHER PROJECTS has not accepted the damage in writing or by appropriate labelling as their own obligation to repair it.
The repair of damage for which the hirer is liable takes place in workshops specified by DAHER PROJECTS at the hirer’s cost.
The invoice for the repairs shall be deemed to be appropriate in terms of scope of service and amount; the hirer is free to refute the appropriateness at his own cost, without being heretofore entitled to a withholding right.
5.3 Upon first request, the hirer shall indemnify DAHER PROJECTS against any third party claims incurred during the hire period as well as by conduct or omission on the part of the hirer in relation to the low-loader wagons; this also includes the obligation to pay administrative costs and fines that have been imposed on DAHER PROJECTS by administrative authorities due to the condition of the low-loader wagon.
The indemnity obligation shall cease to apply if the third-party claim is based on intent or gross negligence on the part of employees of DAHER PROJECTS or on a structural or material defect on the low-loader wagon.
In the event of contributory blame on the part of DAHER PROJECTS due to slight negligence, the right to indemnification exists less the share of this contributory blame.
5.4 The hirer shall provide sufficient liability insurance cover.
The cover for damage to the hired low-loader wagon must be included.
6. ASSUMPTION OF RISK
6.1 The risk of deterioration or destruction, even to the extent that it is due to chance, force majeure, vandalism or loss, shall be borne by the hirer until the wagon is returned to DAHER PROJECTS in accordance with section 2.3 of these conditions.
6.2 The hirer is hereby expressly advised of the possibility of taking out fully comprehensive insurance.
7.1 Normal termination of the hire agreement is excluded during the agreed hire period.
The right of the Parties to exercise termination without notice for good cause remains unaffected.
Notices of termination must be given in writing to be valid.
8. SCOPE OF APPLICATION OF THE GTC
8.1 These General Terms and Conditions are applicable in relation to hirers, who are undertakings pursuant to § 14 of the German Civil Code; they do not apply to consumers pursuant to § 13 of the German Civil Code.
These General Terms and Conditions apply to all future hires, even if at the conclusion of the respective hire agreement no express reference was made to their applicability.
8.2 The hirer’s General Terms and Conditions shall only apply if specially confirmed by DAHER PROJECTS.
8.3 All regulations of these General Terms and Conditions are applicable, unless otherwise agreed in the hire agreement.
9. FINAL PROVISIONS
9.1 Amendments and supplements to the hire agreement and any deviations from these General Terms and Conditions must be in writing.
This also applies to any waiver of the requirement for written form.
9.2 The place of jurisdiction is the registered place of business of DAHER PROJECTS.
The place of jurisdiction for all disputes arising out of or in connection with the hire agreement is Hanau, or, at the discretion of DAHER PROJECTS, the registered place of business of the hirer.
9.3 The limitation periods in § 548 of the German Civil Code will be extended for DAHER PROJECTS and the hirer to 12 months.
For other claims, the statutory limitation periods will apply.
9.4 Any netting or right of withholding by the customer against claims by DAHER PROJECTS is excluded, unless the counterclaim is undisputed or legally binding.
Without the written consent of DAHER PROJECTS, the hirer is not authorised to cede his claims arising from the hire agreement to third parties.
9.5 In the case of multi-language versions of the hire agreement, only the German text is binding.
9.6 The laws of the Federal Republic of Germany appertaining to domestic parties shall apply.
FOR THE GERMAN FEDERAL WORKING GROUP HEAVY HAULAGE AND CRANE WORK(AGB-BSK Crane and Haulage 2013)
I. General Section
1. All our crane and haulage services, as well as rough assemblies, are subject to the following terms and conditions unless overriding statutory regulations stipulate otherwise (e.g. German Commercial Code (HGB) or CMR, CMNI/CLNI, CIM/COTIF or MÜ).
2. Crane Services in the meaning of these conditions are provided in two categories:
- 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
- Category 2 – Crane work
Crane work refers to the carriage of goods, especially hoisting, moving and transporting loads and/or persons for the purpose of working with a mobile hoist and relates to accomplishing one or several contracted hoisting manoeuvres by the contractor according to the instructions and arrangements.
This includes especially isolated marshalling of heavy objects by means of a crane.
3. Transport service in the meaning of these terms and conditions is the commercial transportation of goods and 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 assemblies and disassemblies are components of the crane or transport service if this is contracted.
This includes fitting together or disassembling and fastening or loosening the load for preparing or carrying out the transportation.
The BSK Terms and Conditions of Assembly in the latest version apply for
assembly services going beyond this (final assembly, trial run, fine adjustments, etc.).
5. Results of site inspections and special agreements, e.g. with regard to the loading and unloading locations, crane location, etc. must be recorded in writing by the parties
6. Contracts for carrying out large volume and heavy transports or moving cranes in public road traffic require the permission or approval of the responsible public authority, especially with regard to § 18 I 2 and § 22 II, IV and § 29 III and § 46 I No. 5 of the Federal Road Traffic Regulations (StVO) as well as § 70 I Federal Road Traffic Registration Act (StVZO).
These contracts are concluded exclusively under the condition precedent that the required permission or approval is granted in good time.
7. If the authorities order traffic direction measures (police escort, etc.) or decree other requirements and ancillary stipulations to comply with road safety and unimpeded traffic circulation and/or to protect road surfaces, then these contracts are also concluded under the condition precedent that the escort and/orsafety personnel is available in good time and that the official traffic safety measures can be implemented in good time.
The contractor commits to inform the customer immediately of such requirements and ancillary stipulations for executing the transport which could handicap or hinder the transport.
In this respect we refer to the BSK information leaflet “Traffic Direction Measures”.
8. Unless otherwise agreed, the contractor is entitled to employ other enterprises to fulfil the assumed contractual obligations.
9. The contractor is entitled to withdraw from the contract without this giving rise to damage compensation claims if a careful examination before or during the deployment of vehicles, equipment or working devices of any kind has revealed that significant damage to third party and/or own property and/or assets or injury to persons will very probably be inevitable despite all reasonable efforts to avoid such damage.
The exclusion of damage compensation claims is void if the contractor ignored the due diligence required of a proper merchant (carrier).
In the case of withdrawal, the remuneration for crane services is charged pro rata and transport services are subject to the statutory provisions.
10. The contractor is entitled to interrupt the deployment immediately in case of hazard to equipment, load, personnel and/or third parties.
Interruptions caused by weather conditions do not diminish the entitlement to claim remuneration while taking saved expenditure into account if the impediments due to adverse weather conditions were insurmountable despite reasonable endeavours.
11. The service by the contractor is determined according to the crane or transport order or the agreements in the international consignment note.
Only if so agreed does the contractor also supply necessary auxiliary, instruction and other personnel and the possibly necessary slingers at the cost of the customer.
Unless otherwise agreed, billing is according to time units (hourly or daily rates).
Unless otherwise agreed, the remuneration obligation comes into being with departure of the lifting or transport vehicle from the company grounds of the contractor and ends when said vehicle returns.
If hourly or daily rates are agreed, then these also apply for outbound and homebound travelling times and for rigging times.
Hourly rates are accounted as per started half-hour and daily rates as per started working day.
Unless otherwise agreed, the customer bears the charges and costs for official charges and all procurement costs and costs incurred due to official requirements and other ancillary stipulations, as well as police escort fees or the costs for the company’s own safety measures and other costs for safety precautions ordered by the authorities.
The agreed amounts are understood as without VAT, which must be paid to the contractor in addition in the respective statutory amount.
II. SPECIAL SECTION
Chapter 1. Crane hire
Obligations and liability of the contractor
12.1 If the main service performed by the contractor consists of the designated supply to the customer of lifting equipment with operating personnel in order to carry out work in accordance with the customer’s instructions and arrangements, then the contractor is under the obligation to provide a generally and particularly suitable hoist that complies with the applicable statutory provisions and valid regulations for technical equipment of the Safety Standards Authority (TÜV) and is approved pursuant to the Accident Prevention Regulations (UVV) and is ready for operation.
The contractor is only liable for supplied personnel within the scope of the applicable fundamentals for a fault in the selection of personnel.
12.2 Liability for failure to provide equipment in good time is excluded in cases of force majeure, strikes, roadblocks and other unavoidable occurrences, unless the contractor could have avoided their consequences if the contractor had taken the necessary due care usual in the business
12.3 The liability of the contractor in all other cases of failure to provide equipment in good time is limited to the typically foreseeable damage. This limitation is null and void in cases of intent or gross negligence.
Chapter 2. Crane work and transport
Obligations and liability of the contractor
13.The contractor commits to execute all orders placed with him properly and expertly with all means and technical possibilities at his disposal in observance of
the applicable rules of technology.
14. The contractor commits especially to deploy generally and particularly suitable transport means and suitable hoisting equipment that comply with the applicable statutory provisions and valid regulations for technical equipment of the Safety Standards Authority (TÜV) and Accident Prevention Regulations (UVV).
Furthermore, the contractor commits to provide generally and particularly suitable operating personnel (crane operators and vehicle drivers) who are familiar with operating the transport means or the hoisting equipment.
15.1. If the main service performed by the contractor consists of crane work and/or transportation, then the statutory regulations governing the freight carrying business apply.
The liability of the contractor for damage to goods is – excepting in cases of qualified culpability – limited to 8.33 special drawing rights (SDR) per kilogramme of the damaged or lost property.
For transportation by ship the contractor shall be liable in these cases for a maximum of 2 SDR per kilogramme gross weight of the consignment or a maximum of 666.67 SDR per packaging piece or unit.
15.2. The contractor waives the right to object to the limitation of liability in sum total pursuant to section 15.1 for damages to goods up to the amount of € 500,000.00 and for other pecuniary damages up to the amount of € 125,000.00, each per damage occurrence.
15.3. The contractor has no liability if the damage is caused due to the conduct of his people, the ship crew or other persons in the service of the ship in their navigation or other operation of the ship or caused due to fire or explosion on-board the ship.
16. If the customer requires a higher amount than that specified in section 15.2, this must be explicitly so agreed before the order is placed and the contractor is entitled to charge the customer for the costs of insuring a correspondingly higher liability
17.1. The contractor is only obligated to insure the goods insofar as an explicit written order has been submitted for this stating the insurable value and the risks to be covered; merely stating the declared value shall not be understood as an order for insurance cover.
17.2.Acceptance of the insurance policy does not signify that the contractor assumes the obligations incumbent on the customer as policyholder; however, the contractor must take all usual measures in order to uphold the right to claim from the insurance.
17.3.In the absence of any deviating written agreements, the contractor insures to the insurance conditions usual at his registered business domicile
OBLIGATIONS AND LIABILITY OF THE CUSTOMER
18.The customer must create all technical prerequisites necessary for proper and safe realisation of the order at his own account and risk and must maintain these during the assignment.
The customer is especially obligated to maintain the goods to be handled in a condition ready and suitable for executing the order.
The customer is moreover obligated to state correctly and in good time the dimensions, weights and special characteristics of the goods (e.g. centre of gravity, type of material, etc.), as well as the load fastening points in the case of crane work.
19. The customer must obtain the necessary permission for the use of third party properties, private roads and places and must indemnify the contractor against any third party claims that may arise from unauthorised use of a third party property.
20. Furthermore, the customer is responsible that the ground, place and other circumstances at the deployment site, as well as the access paths – except public roads, paths and places – allow an orderly and safe execution of the assignment.
The customer is especially responsible that the ground structure at the place of loading and unloading or where the crane stands and access roads can support the ground pressure loads and other loads.
Finally, it is the responsibility of the customer to state all positions of underground cable conduits, supply pipelines and other lines and cavities that could impair the load-bearing capacity of the ground at the deployment site or on the access roads.
Without being specially requested to do so, the customer must indicate the positions and existence of exposed and overhead conducting lines, underground cables, conduits, shafts and other cavities or other unrecognisable impediments that could impair the standing and operating safety of vehicles at the deployment site, as well as other particular hazardous situations (e.g. hazardous substances, contamination damages, etc.) which could arise while carrying out crane work or transportation with regard to the transported goods and the surroundings
Statements and declarations by third parties employed by the customer to fulfil the obligations of the customer are deemed to be own statements of the customer.
21. After placing the order, the customer is not permitted to give instructions without the consent of the contractor to the personnel of the contractor that deviate in type and scope from the contractual agreements or that are in contradiction to the purpose of the contract.
22.If the customer culpably offends against the aforesaid obligations, especially his obligation regarding preparation, information and cooperation, then the customer is liable to the contractor for any damages arising as a result.
This does not affect the regulations of § 414 paragraph 2 German Commercial Code.
The customer must indemnify the contractor fully against third party damage compensation claims arising from a breach of the obligations of the customer.
In the case of recourse to the contractor under the Environmental Damage Act (USchadG) or other comparable public, national or international law, the customer must indemnify the contractor in the internal relationship to the full, unless the contractor caused the damage wilfully or in gross negligence.
This does prejudice the plea of co-culpability for both parties.
III. CONCLUDING PROVISIONS
23. The performances of the contractor are preliminary performances and do not entitle discounts.
After the assignment is fulfilled, the invoices of the contractor must be settled immediately following acceptance and invoice receipt, unless otherwise agreed at order placement.
Netting or withholding is only permissible with counterclaims that are uncontested or established with lawful finality, unless the customer is a consumer.
For all claims, whether due or not due, to which the contractor is entitled against the customer from the activities stated in sections 2 to 4, the contractor has a right of lien and a withholding right to the moveable
items or other assets in his possession.
However, the right of lien and withholding does not go beyond the statutory right of lien of a freight carrier or lessor and the general withholding right.
Rights of lien and withholding due to claims from other transportation contracts concluded with the customer are governed by § 366 paragraph 3 German Commercial Code.
The contractor may also only exercise a right of lien or withholding right due to claims from other contracts concluded with the customer if these claims are uncontested or established with lawful finality or if the debtor’s assets situation puts the claim of the contractor at risk.
The due period of one month stipulated in § 1234 German Civil Code for threatening to sell pledged items is replaced in all cases by a due period of two weeks.
If the customer is in default, then after sale is threatened the contractor can freely sell that quantity of the goods and values in his possession which he deems at his own dutiful discretion to be sufficient to obtain satisfaction.
In all cases the contractor can charge a locally usual sales commission from the net proceeds of the sale of pledged items or self-help sale.
24. Place of jurisdiction, also for cheque and bill of exchange protests between merchants, is exclusively the court of law with jurisdiction at the registered place of business of the contractor.
All contracts concluded by the contractor are subject to German law.
This also applies for non-German customers.
25. Where statements are required in writing, electronic data transmission and any other readable form is considered as equivalent provided that it clearly identifies the originator
26. Should parts of these general terms and conditions be invalid or impracticable for any contractual or legal reasons, this shall not affect the remaining provisions: in this respect § 139 German Civil Code is regarded as null and void.