General terms and conditions of Hämmerling Group Logistic GmbH for transport orders
Validity of the conditions
1.1. Our transport orders placed with subcontractors are subject exclusively to the following conditions (T&Cs); only provisions in the individual orders take precedence over these T&Cs. The legal regulations also apply.
1.2.Contradictory conditions of the freight carrier shall not apply, also if we do not expressly reject these.
Obligation to carry, deadlines
2.1.The freight carrier undertakes to transport the goods and deliver these to the recipient at the agreed time. It is prohibited to sub-contract transport orders without our prior written permission.
2.2. The goods or parts of them must not be reloaded without our written permission.
2.3. The impermissible sub-contracting of transport orders or the impermissible reloading of goods shall trigger a contract penalty amounting to 50 % of the order value – maximum EUR 500. We reserve the right to claim for further damages.
2.4. Specified loading and unloading deadlines are legally binding. We are entitled to claim compensation for damages in the event of any loading and unloading deadlines that are not observed by the freight carrier, for which he is culpable.
2.5. The freight carrier is required to make the agreed freight space available by the stipulated time in a suitable vehicle alongside the required equipment. If this does not take place, for reasons for which the freight carrier is responsible, then this shall trigger a contract penalty amounting to 50 % of the net order value – maximum EUR 1,000. We reserve the right to raise additional claims for damages.
Guarantees of the freight carrier
3.1. The freight carrier shall ensure that the vehicles and drivers utilised by him fulfil all of the legal provisions for the execution of the assigned transport order. Driving and resting times must be observed, the drivers must have familiarised themselves with the contents of accident leaflets and they must keep these with them in the prescribed locations inside the vehicle.
3.2. Insofar as is necessary, it is essential to ensure that
– The freight carrier and his drivers hold the permits and approvals required in accordance with §§ 3 and 6 GüKG [road haulage legislation] (permit, community licence, third country approval and/or CEMT approval) and that the legally prescribed documents are carried throughout the journey,
– The drivers maintain a record book throughout the journey in accordance with Art. 5 of the CEMT directive,
– Foreign drivers from third countries (non-EU/EEC states) are only utilised where they hold the requisite driving license and requisite work permit, and that the drivers keep original copies of the prescribed documents (work permit or negative clearance) with them, as well as a certified translation in German – where necessary – throughout the journey,
– Only those drivers are utilised, who hold a valid driving licence, as well as a valid passport or ID card, and keep these with them throughout the journey,
– Freight letters and cargo papers are available at the time of departure and are carried throughout the journey,
– The documents to be carried in accordance with the previous provisions are presented to us or our contractual partners in their original form on our request,
– Only those vehicles are utilised, for which a valid goods vehicle registration is available in the native country of the freight carrier.
3.3. The freight carrier provides assurance of compliance with the obligations according to §§ 7 to 7c GÜKG. Furthermore, he also undertakes to adhere to the provisions of MiLoG [minimum wage legislation]. Insofar as the freight carrier sub-contracts transport orders, he shall be liable for all contractual infringements on the part of his subcontractors and he hereby releases us from all liability according to MiLoG.
Requirements profiles, execution of instructions
4.1.With an agreed cargo exchange the freight carrier is required to ensure return delivery to the agreed destination within 10 days. If the freight carrier is delayed with this delivery then we are entitled to bill for the cargo and offset this against the payment entitlements of the freight carrier. Settlement shall take place based on the current market price. The exchange and return are settled with the freight payment.
4.2. When transporting hazardous goods, the vehicles must be suitable and marked for transport. The freight carrier is responsible for compliance with the ADR (EC agreement on the carriage of dangerous goods).
4.3. The freight carrier shall comply with essential instructions regarding goods transport, as necessary for the specification of the contract.
4.4. He is obligated to inform us with immediate effect of any circumstances significant to the fulfilment of the transport order, in particular any carriage, transport and delivery hindrances, as well as any breakdowns or accidents, or other delays affecting the transport route. The freight carrier is required to inform us in advance where possible, and obtain our instructions.
4.5. The freight carrier or his personnel shall carry mobile phones with them for this purpose.
4.6. In the event of an accident or loss, the freight carrier shall report any visible transport damage and loss of goods immediately. Furthermore, he shall document this damage in writing and by means of photographs, and send the corresponding documents to us immediately.
Freight papers and accompanying documents, receipts
5.1. Transport bills and accompanying papers, in particular CMR freight letters, commercial invoices, package lists and customs documents or their contents, must not be made accessible to third parties or provided to the same – unless for the purpose of official or other statutory controls.
5.2. Unless otherwise instructed, the transport goods may only be handed over in return for a legally effective receipt. The freight carrier must ensure that the recipient marks receipt of the goods on the freight letter with the company stamp, signature and date, as well as the unloading time.
5.3. The freight carrier has to submit the entire original freight documents to us with 14 calendar days after the delivery of the goods. In the event of a culpable non-compliance with this duty we are entitled to claim a lump-sum compensation in the amount of 25 EUR pursuant to § 288 section 6 BGB.
6.1. The agreed freight fee covers all costs of the freight carrier, in particular also any charges that arise for road use and all foreseeable and standard services of the freight carrier associated with the freight, in particular the costs of any agreed loading and unloading, as well as shipping costs.
6.2. Costs that arise for the freight carrier through obtaining and executing our instructions shall be reimbursed insofar as the freight carrier is not responsible for these costs arising.
6.3. Waiting times shall be paid after three hours at a rate of EUR 30 per hour up to a maximum of EUR 350 per day insofar as the freight carrier reports the delay immediately during loading or unloading. If the freight carrier has his registered office in Eastern Europe, the daily maximum is limited to EUR 250.
6.4. The freight carrier shall furnish us with a proper invoice following execution of the transport assignment.
6.5. We shall settle the invoice within 45 days of receipt of the acknowledged freight papers, on the 1st or 15th of the respective month.
Liability of the freight carrier, insurance
7.1.If we are liable to third parties resulting from unlawful conduct and/ or breach of contract of the freight carrier, he has to dispense us from such Liatility to the third party insofar as we have a contractual and/ or extra-contracual claim against the subcontractor. Our right to assert further damages remains unaffected.
7.2. The liability of the freight carrier with cross-border carriage shall by determined by the CMR. With respect to national road transport, the freight carrier shall be liable in accordance with the provisions of the commercial code. In the event of a loss or damage to the goods, the freight carrier shall be liable. The liability framework is set at 40 SDR in accordance with § 449 HGB [German commercial code].
7.3.The freight carrier shall also be liable where he culpably causes material damage, insofar as this is not damage to goods, and personal injury that he causes with the delivery of his contractually agreed services to our legally protected goods, the legally protected goods of the customer, the recipient and their employees, bodies or other vicarious agents, as well as other third parties to whom we have a statutory liability, whereby he is responsible for the culpability of his employees and vicarious agents in equal measure to his own culpability.
7.4. The freight carrier shall be liable for any other financial losses for which he is culpable – insofar as these do not constitute damages due to delays – during the period in which the goods are in his custody within the legal boundaries of § 433 HGB, and outside of this period without limitation.
7.5. The freight carrier is obligated to take out customary and appropriate insurance and to verify this unsolicited by presenting the corresponding insurance policy document.
8.1. The freight carrier undertakes to treat as confidential any trade or company secrets of ours, our customers or any third parties involved in the execution of the order or the fulfilment of the freight assignment, that become known to him within the framework of fulfilling the contract. Furthermore, he shall obligate his personnel (employees and other vicarious agents) to maintain confidentiality accordingly.
8.2. A violation of the confidentiality agreement shall trigger a contract penalty of EUR 500. We are entitled to claim further compensation for damages.
Liability of the customer
9.1. With the exception of the violation of significant contractual obligations, we shall only be liable to pay compensation for damages if we, our legal representatives or vicarious agents have acted with malice or gross negligence. Significant contractual obligations are those contractual obligations upon whose fulfilment the freight carrier can rely, and upon which the contract depends.
9.2. Further liability is limited to damages that are typically foreseeable at the time of contract conclusion. The aforementioned limitations of liability also apply to any competing claims in tort. However, they do not apply to compensation claims due to injury to life, body or health, or to claims under the product liability act. Furthermore, the limitations to liability do not apply insofar as we are liable according to the mandatory provisions of the CMR and HGB.
9.3.The statutory provisions regarding the allocation of the burden of proof remain unaffected.
Place of jurisdiction
10.1. All legal disputes arising from the transport contract are subject to German law. Outside the scope of validity of the CMR, Paderborn is agreed as the place of jurisdiction.