General Terms and Conditions of FreightHub GmbH (valid from August 2nd, 2018)
The following General Terms and Conditions apply to all agreements concluded between the Customer and FreightHub GmbH, Saarbrücker Str. 37a, Berlin 10405 (“Freight Forwarder”) regarding the arrangement for the dispatch of goods, the transport of goods or regarding other conventional forwarding services in the context of transporting or storaging goods.
The offer only aims at merchants according to § 14 BGB (German Civil Code)
1 Applicability of the Terms and Conditions, Precedence of mandatory law
1.1 The General Terms and Conditions cover all contracts and services provided by the Freight Forwarder regarding the arrangement for the dispatch of goods, the transport of goods or regarding the conventional forwarding services in the context of the shipment or storage of goods, unless the exceptions outlined in Article 2.3 and 2.4 apply. General terms and conditions or other pre-formulated contract terms or sets of rules used by the Customer do not apply, even if they simply contain additional provisions to these General Terms and Conditions.
1.2 Only statutory provisions which cannot be modified by pre-formulated standard terms and conditions take precedence over the General Terms and Conditions.
2 Scope of application
2.1 The General Terms and Conditions cover all freight forwarding contracts (Verkehrsverträge) 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.
2.2 The General 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.
2.3 The General Terms and Conditions do not apply to businesses that are exclusively dedicated to: 2.3.1 packaging,
2.3.2 transportation and warehousing of towed or salvaged goods,
2.3.3 transportation of removal goods,
2.3.4 warehousing and digitalization of files; files are all types of embodied and digitalized 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 General Terms and Conditions do not apply to freight forwarding contracts with consumers as defined in Section 13 German Civil Code (§ 13 BGB).
3 Awarding of contracts, Information requirements, Special goods
3.1 A contract is concluded between the Customer and the Freight Forwarder, when the Customer, as further described in the following clauses, submits an offer on conclusion of a contract on the Freight Forwarder’s online platform and the Freight Forwarder declares his acceptance of the offer via email.
3.1.1 On the Freight Forwarder’s online platform, the Customer can request several quotes with entering his relevant data for the order, such as route and number of containers (“Quote Request”). By choosing from various additional options, the Customer may add further special services and / or variants of the contract (for example Amazon FBA, customs clearance). When the Customer chooses a quote, he can enter additional information such as billing address and payment method and send a binding offer to the Freight Forwarder with clicking on the button “Place Order”.3.1.2 The Freight Forwarder will confirm the receipt of the order and will further provide the opportunity for and request from the Customer to enter additional required information and upload documents within a reasonable period, which will be shown on the platform. When the Customer has provided all such information and documents to the Freight Forwarder on time, the Freight Forwarder will examine the data provided.
3.1.3 In case the agreement is not concluded for reasons within the responsibility of the Customer, especially if the Customer did not enter all the further requested information and documents or did not enter such information or documents on time after receiving the confirmation of receipt of the order, the Customer is bound by agreement to pay the stated and agreed handling fee.
3.1.4 The Freight Forwarder will declare his acceptance of the offer by email within 72 hours, if possible.
In general, no confirmation regarding availability of a (named) means of transport can be obtained from the selected carrier. This particularly applies to the sea carriage. As far as a specific means of transport (for example MV “X”) or a specific carrier (for example liner shipping company “Y”) has been named, such nomination shall not be binding.
The agreement will become final and binding upon the parties at the terms stated therein after receipt of declaration of acceptance by the Customer.
3.1.5 In accordance with the aforementioned conditions, a contract between the Freight Forwarder and the Customer is also concluded when the Customer submits an offer by email, telephone or otherwise to conclude a contract, the Freight Forwarder shall in accordance with the process described in the aforementioned Articles 3.1 to 3.1.3 book such order for and on behalf of the Customer and shall subsequently declare acceptance according to Article 3.1.4. For the avoidance of doubt, the contract between the Customer and the Freight Forwarder shall not be deemed to be concluded already if the Freight Forwarder confirms to carry out the booking.
3.2 Prior to and after placing an order, the Customer is obliged to give timely notice of all relevant conditions and information affecting the carrying out of the same. This will also apply, if the Freight Forwarder does not ask explicitly for such information within the online booking process.
3.2.1 This includes all relevant data required for carrying out the service, such as addresses, signs, numbering and amounts of packages or otherwise specified amounts, type, composition and characteristics of the goods (such as live animals and plants, perishability), HS code, the gross weight (including packaging and loading devices), delivery times and the value of the goods (for example for customs purposes or the insurance of goods according to Article 21). This shall apply regardless of whether the Customer is the shipper.
3.2.2 In particular, the Customer must advise the Freight Forwarder regarding:
18.104.22.168 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 statutes.
22.214.171.124 in case of carriage of goods by sea, all relevant data relating to safety statutes in the required form, such as the International Convention for the Safety of Life at Sea (SOLAS), particularly, but not limited to, the “Verified Gross Mass” per container.
126.96.36.199 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.
188.8.131.52 Specific technical requirements for transportation and particular cargo securing means to be supplied by the Freight Forwarder.
3.2.3 The arrangement for the dispatch of dangerous goods or other conventional forwarding services in the context of transporting or storaging dangerous goods as well as the arrangement for the dispatch of reefer cargo and / or heat-sensitive goods requires a separate order by the Customer.
The Customer is responsible for the correct classification according to the applicable regulations for dangerous goods (air, sea, road, inland waterway). The corresponding data and, if necessary, additional information (such as safety data sheet, etc.) must be made available in accordance with the statutory provisions and in the appropriate timeliness before placing an order in order to enable the Freight Forwarder to verify same.
184.108.40.206 In case of a valid contract regarding dangerous goods, which requires to be concluded separately by choosing the additional option “Dangerous Goods”, the Customer must inform the Freight Forwarder in text form regarding the quantity and specific nature of the hazard including – if required – the necessary safety measures.
220.127.116.11 Hazardous 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.
3.2.4 In case of valuable or theft-sensitive goods, the Customer 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.
Valuable goods are classified as those that, at the time and place of taking over, have an actual value of at least 50 Euro/kg or 10,000 Euro/per packed item. Theft-sensitive goods are those exposed to an increased risk of robbery and theft, such as money, precious metals, jewelry, 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.
3.2.5 In case the Customer does not comply with the requirements of the General Terms and Conditions set out in clauses 3.2-3.4, the Freight Forwarder is – without prejudice to any other contractual, non-contractual or statutory rights – free to:
3.2.6 refuse the receipt of goods,
3.2.7 return goods already received and/or to keep it in readiness for collection, or
3.2.8 complete the order without further information to the Customer and subsequently claim an appropriate additional charge, in cases where a safe and damage-free completion of the order increases costs.
3.2.9 If the Freight Forwarder refuses the acceptance of the goods, the Customer will be notified on the Freight Forwarder’s online platform or via email.
3.3 The Freight Forwarder is not obliged to check the information supplied by the Customer, or to make additions to it.
3.4 Remarks, such as Trade Fair Goods or Urgent, contained in the order neither oblige the Freight Forwarder to arrange for faster completion of the order, such as via express delivery, nor to make preferential dispatch arrangements. The Freight Forwarder does not guarantee any fixed dates, neither for loading nor for delivery of the goods. All and any dates as stated on the online platform are to be understood as estimations made in good faith only, but stated without warranty or guarantee and without accepting any liability for the correctness thereof.
4 Assumption of additional service duties by the Freight Forwarder
4.1 In the absence of a separate agreement in the order supplied to the Freight Forwarder, the service does not include:
4.1.1 the packaging of goods,
4.1.2 weighing and inspection of goods, or measures to preserve or improve goods or their packaging, unless it is standard business practice
4.1.3 the supply or replacement of pallets or other loading and packaging support materials (pallets).
4.1.4 the loading and unloading of goods, unless otherwise indicated by circumstances or common usage. Drivers who assist in the loading or unloading of goods without a contractual agreement, act exclusively on the instructions and under the supervision of the Customer. They are servants of the Customer and come under their legal responsibility, except in cases when loading or unloading has occurred on driver’s own initiative.
4.1.5 returns, detours and hidden additional cargo,
4.1.6 a transshipment ban (Section 486 German Commercial Code [HGB] does not apply),
4.1.7 shipment tracking systems.
4.2 Whenever the Freight Forwarder arranges services in the interest of the Customer according to Article 4.1 or carries out such services, the Freight Forwarder is entitled to a remuneration according to local standards or otherwise an appropriate remuneration, even in the absence of a prior agreement.
4.3 Contact person, Electronic communication and Documents 4.3.1 The order processing, as well as the exchange of information, declarations and requests during the contractual procedures will be, unless declared otherwise in these General Terms and Conditions or otherwise prescribed by applicable law, handled on the online platform of the Freight Forwarder or at the choice of the Freight Forwarder, via email or phone.
4.3.2 In the absence of a written agreement, statements by warehousing or transport personnel require approval from the Freight Forwarder to be considered valid.
4.3.3 The Customer takes care of the required declarations to be supplied by the Customer’s shipper or consignee during the fulfilment of the contract at the place of loading and delivery, and of real actions, such as delivery and receipt of the goods.
Shipper is the person identified in the contract or in a valid instruction from which the goods are to be collected.
4.3.4 The invoicing takes place in electronic form, as far as tax-law provisions are not opposed to such procedures.
4.3.5 If the contracting parties have agreed to the electronic data exchange using electronic standards, such as Edifact, to fulfil the order, then either party is entitled to create, send and exchange declarations and notifications by electronic means (electronic data interchange), as long as the transmitting party is clearly identified. The transmitting party carries the responsibility for the validity and loss of any sent data. The electronic data interchange also includes electronic billing, in as much as tax regulations permit.
4.3.6 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, always in consideration of the legal regulations regarding the same.
4.4. 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.
5 Customs clearance and other statutorily required handling of goods 5.1 The Freight Forwarder is entitled to make customs clearance dependent on issuance of a written power of attorney that assigns direct representation. The Customer must provide the Freight Forwarder with his written power-of-attorney on the online platform provided by the Freight Forwarder.
5.2 The Customer 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. The provision of certificates and further documents takes place in electronic form on the online platform provided by the Freight Forwarder.
5.3 If the order to the Freight Forwarder relates to the shipping of goods to a foreign destination, the Freight Forwarder is entitled to act with regards to the customs, security 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 5.3.1 entitled to act in the name of the Customer, when such authority has been granted,
5.3.2 entitled to open packages whenever such action is necessary to comply with statutorily required controls (for example, Freight Forwarder as regulated agent), and to subsequently take all measures necessary to complete the order, such as repackaging the goods.
5.4 If the order to the Freight Forwarder relates to a shipment under customs supervision, the Freight Forwarder is entitled to fulfil all the formalities and to advance payments required by customs if, without such actions, the completion of the order and, in particular, the delivery of goods to the consignee, would be impossible.
5.5 Whenever the Freight Forwarder arranges services in the interest of the Customer according to Articles 5.3 and 5.4 or carries out such services, the Freight Forwarder is entitled to a remuneration according to local standards or otherwise an appropriate remuneration, even in the absence of a prior agreement.
6 Packaging and labelling duties of the Customer
6.1 The Customer must 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. Obsolete identification marks must be removed or garbled.
6.2 Furthermore, the Customer is responsible for 6.2.1 identifying all items belonging to the same shipment, to ensure easy recognition,
6.2.2 ensuring that the contents of packaged items cannot be accessed without leaving external traces. Packing tape, rings or similar securing methods are only sufficient if they are unique or otherwise difficult to copy. Foil packaging is only acceptable if it has been securely sealed,
6.2.3 ensuring that combined shipments made up of multiple items or units with a girth dimension of less than 1 m (maximum volume plus the longest edge) are bundled together into larger items,
6.2.4 consolidation of hanging shipments consisting of several items into sealed wrapped units for easier handling,
6.2.5 marking packing units with a gross weight of at least 1,000 kilograms (kg) with the weight specification as statutorily prescribed for heavy loads to be transported by ship,
6.2.6 to ensure neutral packaging for valuable or theft-sensitive goods.
6.3 Packages are single items or units formed by the Customer for the fulfilment of the order, for example boxes, grid boxes, palettes, handling units, closed loading bins, such as covered wagons, wagons with tarpaulin covers, semi-trailers, swap bodies, containers or igloos, which the Freight Forwarder must handle as one ensemble (freight item as defined by Sections §§ 409, 431, 504 HGB).
6.4 Whenever packages do not comply with the conditions listed in Articles 6.1 and 6.2, Article 3.2.5 applies accordingly.
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 is responsible for the security of cargo at all times, whether loaded or not.
7.2 Upon receipt of goods, the Freight Forwarder is obliged at interfaces 7.2.1 to check completeness and identity of the packages, their apparent good order and condition as well as all seals and locks and
7.2.2 to record any irregularities in the accompanying documents or via separate notification
7.3 Interfaces are defined as any transition of the packages from one legal person to another and any transshipment from one Vehicle to another, and any (temporary) storage.
8.1 Upon request by the Customer, the Freight Forwarder has a duty to issue a certificate of receipt in electronic form with reservations noted, if necessary.
The certificate of receipt issued by the Freight Forwarder only confirms the number and type of packages, not their content, value, weight or other measurements.
8.1.1 in case of previously loaded or sealed loading units, such as containers or swap bodies and previously transmitted data (Article 4a), the accuracy of the certificate of receipt regarding quantity and type of loaded packages is vitiated, if the Freight Forwarder notifies the Customer on differences (in quantity) or damages, immediately after unloading the loading unit.
8.1.2 in case of doubt, the certificate of receipt does not confirm the gross weight or otherwise indicated measurements for mass goods, wagonloads, containers or other, previously loaded units.
8.2 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 Customer. In cases where the cargo has already been unloaded, the Freight Forwarder has the right to take it back into his possession. The Customer can only demand the delivery receipt in electronic form for a period of six months after the goods have been delivered.
8.3 In cases where a consignment note, sea way bill, consignment bill or a bill of lading have been issued, these count as certificate of receipt or delivery receipt. Article 8.1 and 8.2 apply accordingly.
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 Customers 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 Customer 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 Customer 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.
10.2 The notification according to Article 10.1 does not concern cash on delivery instructions.
11 Default of loading and delivery times, demurrage
11.1 In cases where the Customer must load or unload the vehicle, the Customer has the obligation to do so within the agreed, otherwise within a reasonable time.
11.2 In the absence of a separate agreement, the time for loading and unloading road transport vehicles – irrespective of the number of shipments per loading or unloading location – shall be 11.2.1 for goods of any kind loaded on pallets: 18.104.22.168 up to ten Euro-pallet storing positions: maximum 30 minutes
22.214.171.124 up to twenty Euro-pallet storing positions: maximum 60 minutes
126.96.36.199 more than twenty Euro-pallet storing positions: maximum 90 minutes
188.8.131.52 for any 20’ dry standard containers: maximum 120 minutes
184.108.40.206 for any 40’ dry standard or high cube containers: maximum 120 minutes
220.127.116.11 in all other cases, for goods (excluding bulk goods) with a handling weight
18.104.22.168 up to three tons: maximum 30 minutes,
22.214.171.124 up to seven tons: maximum 60 minutes,
126.96.36.199 more than seven tons: maximum 120 minutes.
11.3 The loading or unloading time begins with the arrival of the road vehicle at the designated loading or unloading location (for example, by notifying the gate keeper), and ends when the Customer has completed all its duties and has cleared the departure of the road vehicle. However, if the using of a time slot management system has been agreed for the arrival of road vehicles at the loading and unloading location, 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 client must pay the Freight Forwarder the agreed otherwise commonly accepted demurrage fees.
11.5 The aforementioned provisions apply accordingly 11.5.1 when the Customer is committed to prepare the goods for loading or to accept them after unloading,
11.5.2 in case of transport interruptions beyond the Freight Forwarder’s scope of responsibility, contrary to the statement in Article 11.2 and in the absence of a deviating agreement, a waiting time of 30 minutes is deemed to be agreed.
12 Performance hindrances and force majeure
12.1 In cases where 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 Customer. Section 419 HGB applies accordingly.
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. Section 412 (3) HGB applies accordingly. Such performance hindrances are defined as force majeure, civil unrest, war or acts of terrorism, strikes and lock-outs, official measures by authorities, 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.
13.1 In cases where unloading does not begin within the unloading time (Article 11), the Freight Forwarder is entitled to interpret that as a delivery hindrance. In this case, the Freight Forwarder must immediately notify the Customer and request for relevant instructions. Section 419 HGB applies accordingly.
13.2 In cases where the consignee is absent at the designated home, business or shared location address and if the consignee lives therein, the goods may be delivered to: 13.2.1 an adult family member; a family employee; or an adult with permanent residence at the designated home address,
13.2.2 an employee at the designated business location.
13.2.3 to a manager or representative authorized to receive the goods at the designated shared location.
13.2.4 always assuming there are no obvious doubts regarding the entitlement to receive the goods of the person in question.
13.3 In cases where the Freight Forwarder and Customer have agreed on delivery without the presentation to an actual person (for example, night storage and garage facilities or assembly line deliveries), delivery is deemed to have taken place on the actual physical deposit of the goods at the agreed location.
14 Information and restitution duties of the Freight Forwarder
14.1 The Freight Forwarder has the duty to supply the Customer with the required information and, upon request, with the status of the business as well as to demand accountability upon completion using the online platform or, at freight forwarder’s choice, email or phone. However, the Freight Forwarder is only obliged to reveal costs, if the Freight Forwarder was working on client’s account.
14.2 The Freight Forwarder has the duty to give anything to the Customer what he has received by carrying out and managing the business. This does not apply to electronic documents, dossiers, corresponding documents, certificates or other information.
15.1 The Freight Forwarder decides in its sole discretion if warehousing takes place in its own facilities or 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 Customer in electronic form or, whenever a warehouse warrant has been issued, to make a note of the information on the same in electronic form.
15.2 Customers who inspect or commission an inspection of the warehouse must immediately impose all objections or complaints regarding the storage of the goods or the choice of the warehouse. If the Customer does not make use of his inspection right, he endorses the objections regarding the type and nature of storage, if these objections could have been observed during an inspection and if the Freight Forwarder has chosen the warehouse location and accommodation with the due diligence of a prudent Freight Forwarder.
15.3 Customer’s inspecting goods or commissioning an inspection must respect the normal business hours of the Freight Forwarder and, on Freight Forwarder’s request, must accept to an inspection in company of the Freight Forwarder.
15.4 Customers who undertake actions with the goods, such as taking test samples, must agree, on request by the Freight Forwarder, to a joint inspection and determination of the number, weight and characteristics of the goods. If the Customer refuses this request, the Freight Forwarder is not liable for any damages determined later, unless the action undertaken did not cause the damage.
15.5 The Customer is liable for all damages to the Freight Forwarder, customers or other third parties caused by him, his employees or representatives entering the warehouse or entering or driving on the warehouse premises, unless the damage was not the fault of the Customer, his employees or representatives.
15.6 Unless otherwise agreed: 15.6.1 warehousing begins with the unloading of the delivery vehicle and ends with the loading of the receiving vehicle,
15.6.2 inventory management is via the Freight Forwarder’s inventory accounting,
15.6.3 there is one physical inventory inspection per year.
15.7 If the Freight Forwarder, upon conclusion of the contract, develops reasonable doubts that the value of the goods assures its claims, the Freight Forwarder is entitled to give the Customer a reasonable deadline to either secure the claims of the Freight Forwarder or to seek alternative warehousing arrangements. Should the Customer fail to do so, the Freight Forwarder is entitled to terminate the contract with immediate effect.
16 Quotation and remuneration
16.1 Quotations of the Freight Forwarder and agreements with the Freight Forwarder about prices and services refer exclusively to expressly listed services, goods of standard dimensions and weights as well as an essentially unchanged cargo, order quantity or quantity structure. Quotations presume normal, unmodified transport conditions, unimpeded connecting ways, the possibility of immediate forwarding, the remaining validity of the underlying freight, exchange rates and tariffs of the agreement, rates and tariffs, unchanged data processing requirements, quality assurance arrangements and operational instructions. Furthermore, they presume unmodified public taxes, fuel and personnel costs, unless such changes were predictable, given the circumstances, at the time of conclusion of the contract.
16.2 In case of cash on delivery or other collection order being cancelled after shipping has begun, or the consignee does not pay, the Freight Forwarder is still entitled to ask for commission.
17 Expenditures and right of recourse by the Freight Forwarder
17.1 The Freight Forwarder is entitled to ask for refund of expenses properly incurred, in particular those relating to average contributions, detention or demurrage charges, including additional packaging to protect the goods.
17.2 If the Customer 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 incurred, the Freight Forwarder is entitled – but not obliged – to pay them according to the circumstances he has properly assessed, and to claim reimbursement from the Customer.
17.3 On request, the Customer 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 authorized to dispose or as possessor of goods belonging to third parties, unless the Freight Forwarder is not responsible for their accrual.
17.4 The Customer must also indemnify the Freight Forwarder and its vicarious agents from all claims made by third parties provided that these claims are assigned to the Customer and its vicarious agents
18 Invoices, foreign currencies
18.1 Invoices of the Freight Forwarder are due immediately and its maturity is not dependent on presenting a delivery receipt.
18.2 Regarding foreign Customers or consignees, the Freight Forwarder is entitled to ask whether to receive payment in the relevant foreign or in EURO.
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 EURO. In the case of EURO, currency conversion is made according to the official exchange rate on the day of payment, unless it can be proven that a different exchange rate must be used or was paid.
18.4 Payment according to a credit memo procedure must be expressly agreed. Irrespective of this, all credit memos are to be issued and paid immediately, upon completion of services.
19 Set-off, Retention
19.1 In the case of claims arising from the freight forwarding contract or associated non-contractual claims, set-off or retention or exercising a lien against the Freight Forwarder is only permitted when the claim is uncontested, ready for decision or legally established.
19.2 The Freight Forwarder is entitled to set-off or retention or to exercise a lien against any claims, regardless of its legal basis, the Customer may have against the Freight Forwarder arising from any other freight forwarding contract or from associated non-contractual claims concluded with the Customer.
19.3 The Freight Forwarder is also entitled, without existence of reciprocity, to set-off claims against the Customer with claims of companies controlled by or affiliated with the Customer, insofar as the Customer holds more than 50% or more shares in this company (subsidiary), or is controlled by 50% or more of this company (parent company), or the parent company of the Customer holds 50% or more shares in a related company (sister company), but only if the affected company was or is a customer of the Freight Forwarder.
20 Lien and retention rights
20.1 The Freight Forwarder is entitled to secure its demands arising from freight forwarding services provided 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 Customer 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 Customer assigns the Freight Forwarder to do so prior to handing over the goods. If, due to the nature of the goods to be insured, or for another reason, the Freight Forwarder is unable to purchase insurance, the Freight Forwarder will notify the client immediately.
21.2 The Freight Forwarder is entitled, but not obliged, to arrange insurance for the goods, if this is in the interests of the client. The Freight Forwarder can assume that insurance is in the interests of the client, in particular when: 21.2.1 the Freight Forwarder has arranged insurance for a previous Freight Forwarding Contract for the same Customer,
21.2.2 the Customer has declared a value of the goods for the purpose of insurance.
21.3 The assumption that insurance is in the interest of the Customer can be discounted, in particular if: 21.3.1 the Customer has prohibited such action in writing,
21.3.2 the Customer is a Freight Forwarder, carrier or warehouse keeper.
21.4 The Freight Forwarder must assess the type and scope of insurance in its sole discretion and purchase insurance cover at the usual market rates, unless instructed otherwise in text form by the Customer stating the amount insured and risks to be covered.
21.5 In case of Freight Forwarder purchases an insurance for the benefit of the Customer, recovers a claim or acts otherwise on behalf of the Customer 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 Article 23.3 and 24, the Freight Forwarder must only pay the value and reimburse the costs according to Sections 429, 430, 432 sentence 1 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 Customer for value evaluation in cases as set out in Article 24.
22.4 If the Freight Forwarder has claims against a third party in case of damages, for which the Freight Forwarder is not liable for, 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 Customer upon request, unless the Freight Forwarder has a separate agreement to pursue claims on behalf and at the expense of the Customer. Sections 427, 509 HGB remain unaffected. The Freight Forwarder may refuse to assign or subrogate such claims, or to hand over documents and records and, further, may also refuse to handle the matter until the Freight Forwarder has been paid in full This shall not apply in the event the Customer has declared the set-off or exercise of the right of retention according to Article 19. Any delays and / or consequences resulting from the Freight Forwarders’ justified refusal shall be for the Customer’s account.
23 Liability limitations
23.1 Except in case of damages during pure 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: 188.8.131.52 a carrier, as defined by Section 407 HGB,
184.108.40.206 acting as principal (Spediteur im Selbsteintritt), fixed costs freight forwarder (Fixkostenspediteur) or consolidator (Sammelladungsspediteur), according to Sections 458 to 460 HGB or
220.127.116.11 care, custody and control freight forwarder (Obhutsspediteur) according to Section 461 (1) HGB.
23.1.2 Two instead of 8.33 SDR for every kg, whenever the Customer 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 these General Terms and Conditions.
23.1.3 Whenever Freight Forwarder’s liability according to Article 23.1.1 exceeds an amount of 1 million Euros per damage case, this liability is furthermore limited to 1 million Euros per damage case, or to 2 SDR for every kg, whichever amount is higher. Article 25 remains unaffected.
23.2 The liability of the Freight Forwarder for damages to the goods for freight forwarding contracts which are subject to pure carriage of goods by sea and cross-border transportation, is limited to the maximum statutory liability amount.
23.3 For all cases out of the scope of Articles 23.1 and 23.2, such as Section 461 (2) HGB, 280 et seqq. 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 Two SDR per kg for freight forwarding contracts relating to pure carriage of goods by sea or a transportation by a variety of transport means, but including carriage of goods by sea,
23.3.2 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 1 million Euros 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:
23.4.1 three times the amount that would be payable for the loss of goods according to Articles 23.3.1 or 23.3.2. and, in addition,
23.4.2 in the event of damage caused by a delay, of whatsoever nature, to three times the amount of the Freight Forwarder’s remuneration (including freight and other surcharges, if any).
23.4.3 Furthermore, the Freight Forwarder’s liability is in any event limited for each case of damage to the maximum amount of 100,000 Euros.
23.4.4 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.
23.5 If Freight Forwarder’s liability according to Articles 23.1, 23.3 and 23.4 exceeds the amount of 2 million Euros 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 2 million Euros 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 25,000 Euros per damage case.
24.1.3 50,000 Euros per year, in cases where the damage claimed by the Customer bases, contrary to Article 24.1.2, 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 Customer can specify a value in text form for an increased liability that differs from the maximum amounts stipulated in Article 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 25,000 Euros 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 2 million Euros 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. Article 24.2 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) of the Convention de Budapest relative au contract de transport de marchandises en navigation intérieure (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 Article 22.4 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. Sections 413 (2), 418 (6), 422 (3), 431 (3), 433, 466, 487 (2), 491 (5), 520 (2), 521 (4), 523 HGB as well as relevant liability provisions in international conventions shall remain unaffected.
27 Qualified fault
27.1 Liability exclusions and limitations listed in Articles 22.2, 22.3, 23.3 and 23.4 in conjunction with 23.5 as well as 24 do not apply when the damage has been caused by: 27.1.1 intent or gross negligence of the Freight Forwarder or vicarious agents,
27.1.2 infringement of material contractual obligations, whereby such claims are limited to predictable and typical damages, 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.
27.1.3 Divergent from Article 27.1.2, the liability limitations of Article 24.1 and 24.2 only apply in case of gross negligent or intentional infringements of material contractual duties.
27.2 Section 435 HGB remains applicable within the application of Article 23.1 in conjunction with Article 23.5 and, if a freight forwarding contract is subject to carriage of good by sea, Section 507 HGB within the application of 23.2.
27.3 Article 27.1 is not applicable on statutory provisions, such as Article 25 Montreal Convention (MC), Article 36 Règles uniformes concernant le Contrat de transport international ferroviaire des marchandises (CIM) or Article 21 CMNI, which extend Freight Forwarder’s liability or expand the imputation of fault of servants or third parties.
28 Liability for delay
28.1 Any dates and times given for the departure and arrival of any vessel(s) and/or other transport means and/or for the delivery of the goods are always to be understood as estimated dates and times, even if not specifically expressed.
28.2 As far as the delay caused by the Freight Forwarder was the cause for a damage to and/or loss of the transported goods, the Freight Forwarder will be liable in accordance with the contractual and statutory regulationsas well as in the amount of the above limitation of liability, in particular under Articles 23.4.2 and 23.4.3.
28.3 The Freight Forwarder is not liable for damages caused by delay, if the delay is due to slight negligence (leichte Fahrlässigkeit) of the Freight Forwarder himself and/or his organs/executive employees and/or servants (Erfüllungsgehilfen und/oder Leute) and/or other persons he uses to perform the transport. This shall not apply in cases of delay damages to injury to life, body, health or freedom and/or if the delay damage is due to the non-observance/infringement of any of the Freight Forwarder’s material contractual obligations (as defined above). However, in case of any non-observance/infringement of a material contractual obligation any claim is limited to the predictable and typical damage(s).
28.4 The Freight Forwarder is not liable for damages caused by delay, if the delay is due to gross negligence (grobe Fahrlässigkeit) of the Freight Forwarder’s servants (Erfüllungsgehilfen und/oder Leute) and/or other persons he uses to perform the transport. This shall not apply in cases of delay damage to injury to life, body, health or freedom and/or if the delay damage is due to the non-observance/infringement of any of the Freight Forwarder’s material contractual obligations (as defined above). However, in case of any non-observance/infringement of a material contractual obligation, any claim is limited to the predictable and typical damage(s). However, the Freight Forwarder is liable for damages caused by delay, if the delay is due to gross negligence of the Freight Forwarder himself and/or his organs/executive employees.
28.5 The Freight Forwarder is not liable for damages caused by delay, if the delay damage is due to fire or explosion on board the vessel carrying the goods and/or was caused in the course of steering or otherwise operating the vessel carrying the goods and the measures taken were not predominantly for the benefit of the cargo.
28.6 The Freight Forwarder is liable for damage caused by delay, if the delay damage was caused by an act or omission of the Freight Forwarder himself and/or his organs/executive employees and/or servants (Erfüllungsgehilfen und/oder Leute) and/or other persons he uses to perform the transport, done with the intent (Vorsatz) to cause such damage, or recklessly and with knowledge that such damage would probably result.
29 Liability insurance of the Freight Forwarder 29.1 The Freight Forwarder is obliged to purchase and maintain liability insurance with an insurer of his choice that, as a minimum, covers the ordinary liability amounts of its freight forwarding liability according to General Terms and Conditions and statutory provisions.
29.2 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.
29.3 Upon request, the Freight Forwarder is obliged to provide evidence of the liability insurance and its validity. The presentation of an insurance confirmation in electronic form, especially on the online platform provided by the Freight Forwarder, is sufficient. Failure to provide such evidence within a reasonable time frame, or a lack of valid insurance cover, precludes the Freight Forwarder to plead on the liability regulations of the General Terms and Conditions in his dealings with the Customer.
30 Confidentiality, Compliance
30.1 Contractual parties are obliged to maintain confidentiality regarding all unpublished information marked as confidential and received during the execution of the freight forwarding contract. Information can only be used for the exclusive purpose of contract fulfilment. Information in the public domain or objectively not requiring secrecy for the other contracting party is excluded.
30.2 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: 30.2.1 no child or forced labour
30.2.2 comply to the relevant national laws and regulations regarding working hours, wages, salaries and, in particular, pay the statutory minimum wage, and to comply with any other obligations for employers,
30.2.3 to comply to 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,
30.2.4 prohibit all discrimination based on race, religion, disability, age, sexual orientation or sex.
30.2.5 comply to international standards on corruption, such as those published in UNGC and to adhere to local anticorruption and bribery laws.
30.2.6 adhere to all current environmental protection laws and regulations,
30.2.7 engage its business partners and subcontractors according to the aforementioned principles.
31 Place of fulfilment, Jurisdiction and Applicable law
31.1 The legal relationship between the Freight Forwarder and Customer is governed exclusively by German law.
31.2 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.
31.3 The place of jurisdiction for all disputes and all involved parties arising from the freight forwarding contract, an initial enquiry or are in relation to it, is the location of the Freight Forwarder’s place of business, in as far as all these parties are merchants. Claims against the Freight Forwarder are exclusively covered by this place of jurisdiction. Then, the aforementioned place of jurisdiction shall be deemed as an additional place of jurisdiction in case of 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)