Silotransporte Werfring GmbH
Untere Hauptstraße 80
Tel. +43 2621 2228-0
Fax +43 2621 2228-32
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General Terms and Conditions to the Contract of Carriage (Logistik Werfring GmbH and/or Silotransporte Werfring GmbH = Principal; hereinafter referred to as “Werfring”) available at www.werfring.com:
1. The application of the CMR is expressly agreed for all transports, even if the scope of application of Art. 1 CMR or § 439a UGB would not be fulfilled. For transports within Germany, the provisions of the German Commercial Code (HGB) concerning the freight business shall apply. For transports within Germany, the increased liability of 40 special drawing rights per kilogram of the damaged or lost goods shall be deemed to have been agreed. Under no circumstances can the contractor rely on his own general terms and conditions, even if these were included in order confirmations. No conditions of the contractor contradicting these loading conditions shall apply. In particular, the Contractor may not invoke the applicability of the AÖSp or other conditions.
2. If you do not accept these order conditions, this order must be cancelled free of charge within one hour with a note “STORNO” across all pages of the loading order. Please send this cancellation to the e-mail address/fax number stated in the order back to your contact person at www.werfring.com. In case of cancellation after one hour, non-acceptance of the goods to be transported or the transport order by the Contractor, Werfring is entitled to purchase a replacement vehicle and to charge the Contractor a contractual penalty in the amount of the freight to be paid for the replacement vehicle. Any further claim for damages remains unaffected.
In the event that the Client of Werfring cancels the order with Werfring, Werfring shall be entitled for its part to cancel the order in question at any time. In this case, the Contractor shall not be entitled to claim compensation for expenses or damages or other costs.
If the order is cancelled by Werfring for other reasons (than in case of cancellation by the client of Werfring), the assertion of a claim for compensation of expenses or damages or other costs by the contractor is excluded within 10 hours from the placing of the order.
3. The assertion of demurrage charges is excluded in the event of a waiting time or standing time at the consignor's or consignee's premises etc. of up to 3 hours in each case. Demurrage must be claimed from Werfring within 1 hour from the time the loading or unloading deadline is exceeded, otherwise the Contractor shall not be entitled to any demurrage. Saturdays, Sundays and public holidays are not taken into account, i.e. these are always free of demurrage. After the agreed demurrage exemption, a maximum of € 300,– per day/per truck may be charged as demurrage, provided Werfring is actually at fault, whereby the burden of proof lies with the contractor. However, the demurrage is limited to a maximum of 3 days.
4. The contractor is obliged to carry out the loading and unloading. Damage caused by circumstances during loading or unloading shall be the responsibility of the contractor. The contractor shall ensure that the load is properly secured and complies with the statutory regulations. The load securing obligation is exclusively incumbent on the contractor, even if the consignor has loaded the goods. The contractor shall investigate all sources of damage before the transport is carried out and, in particular, check the suitability for transport of the loading/stowage and the packaging. If necessary, sources of damage are to be eliminated or instructions are to be obtained from Werfring. On taking over the goods the contractor has to check the number of pieces, the condition and the weight of the goods to be transported. In the event of any deviation or in cases where an inspection is not possible, the Contractor shall enter appropriate reservations on the consignment note and have these signed by the consignor before departure.
5. The contractor shall carry a sufficient number of loading aids and securing devices, otherwise a vehicle deficiency exists.
In order to meet the load securing requirements, it is essential that the vehicle is fully equipped with hoops and side boards for tarpaulin bodies and locking and clamping bars for box bodies in accordance with DIN. Furthermore, at least four 350daN tensioning slats, 20 belts with 500STF long-lever ratchets, sufficient lashing points on the loading area, 24 edge protectors and sufficient anti-slip mats are required for safe loading.
Ensuring the proper stowage of the cargo and securing the load are without exception the responsibility of the contractor; this also applies if the consignor has actually carried out the loading himself.
6. A full load within the meaning of this provision is a consignment that occupies the entire cargo space of a means of transport. Transhipments or additional loads are not permitted without exception. Furthermore, a prohibition of additional loading applies without exception, unless Werfring orders this in writing. The commissioning of a sub-carrier is only permissible with the express written consent of Werfring's responsible dispatcher. Stacking of the goods (e.g. to create additional loading space etc.) is also expressly prohibited!
7. The goods may only be unloaded at the recipient's address or delivery address stated in the loading order/waybill. Changes may only be made with the express permission of Werfring. If the details in the consignment note deviate from the transport order, this must be agreed with Werfring before execution.
On delivery, clear proof of identity, documented by passport or other official document, must be requested from the consignee and the data entered in the consignment note.
8. The transport order in question is binding if no objection is made within one hour of receipt by the contractor. The contractor must arrive at the loading point with his vehicle at the agreed loading time. In the event of non-arrival of the vehicle, a contractual penalty of € 250,- (irrespective of fault), which is excluded from the judicial right of mitigation and is independent of the actual damage, shall be due. For late arrival at the loading site, a contractual penalty of € 100,-/hour (independent of fault) is due. Any further compensation for damages remains unaffected in both cases. Unloading deadlines shall be deemed to be delivery deadlines within the meaning of Art. 19 CMR. The contractor acknowledges that compliance with the delivery deadlines is of particular importance to Werfring. Before accepting the transport order, the contractor shall check whether the delivery deadline can be met.
9. For each transport, the Contractor must ensure on its own initiative that the transport can be carried out without any obstacles and must check in advance whether permits have to be obtained or customs measures (of whatever kind) etc. have to be taken (completion of transit procedures etc.). In the event of unforeseen transport delays or transport damage or loss of goods in transit, Werfring must be notified immediately by telephone and in writing. The Contractor shall indemnify and hold Werfring harmless for all damages resulting therefrom.
10. The prices stated in the order of Werfring are fixed prices. Surcharges or expenses, costs (of any kind whatsoever) shall not be recognised.
11. Freight invoices of the Contractor are only due when the invoice together with the (at least) electronically scanned transport documents (CMR waybill, delivery notes, etc.) has been demonstrably transmitted to Werfring. The Contractor shall keep the original documents for at least 3 years and make them available to Werfring upon request. The risk for the transmission of these documents shall be borne by the contractor. The term of payment is 60 days, whereby the 60-day period shall only commence with the complete receipt of the invoice including the above-mentioned transport documents by Werfring. The contractor is aware that invoicing of Werfring’s customers can only take place if proofs of delivery are sent in time and in full. The Contractor therefore undertakes to send all documents of the transport, such as delivery notes, waybills, etc., to Werfring within 10 working days after unloading at the latest.
12. Werfring shall be entitled to set off counterclaims (irrespective of the legal grounds) and to reduce freight in case of defective performance. Therefore, any prohibition of set-off or retention (in particular § 32 AÖSp) is expressly contradicted. The contractor shall have no lien or right of retention on any of the goods handed over to him in the course of the performance of this contract. Any rights of lien and retention are therefore expressly excluded. The contractor is obliged to include corresponding provisions also in the contracts to be concluded with any subcontractors engaged by him (if Werfring has permitted the use of subcontractors in writing). The contractor shall not be entitled to set off any claims against claims of Werfring.
13. The contractor is obliged to ensure that loaded motor vehicles or transport units are properly locked every time they are parked (even for a short time). The motor vehicles or transport units used must also be equipped with 2 independent, state-of-the-art and functioning anti-theft devices, which must be demonstrably activated whenever the vehicle is parked, even if only for a short time. The rear doors of the trailers/containers must always be verifiably locked (at least with a solid U-lock), so that access from outside by third parties is prevented in any case. After each break, the integrity of the lock or the outer walls of the load compartment must be checked. The Contractor shall ensure that loaded transport vehicles (trailers, semi-trailers, swap bodies, containers, etc.) are always properly guarded during parking and are only parked at night, at weekends and on public holidays in an illuminated and secured parking area or a secured (fenced and adequately guarded) company site. In general, only guarded parking spaces may be used. A list of guarded parking spaces is available, for example, at www.iru.org, www.ania.it. The route must be planned in such a way that—in compliance with the prescribed driving and rest times—no breaks, overnight stays or other parking procedures (except for short-term refuelling procedures) are required in unguarded parking spaces. If necessary, the contractor is obliged to reserve guarded parking spaces as a precaution and to assign the driver accordingly. The isolated parking of loaded trailers/semi-trailers/swap bodies (without towing vehicle) as well as the parking of the transport vehicle in an unsecured area is prohibited without exception (even in a guarded parking area) and there is usually no insurance cover with conventional insurance companies (!!) in this case.
14. The contractor shall be obliged to select and supervise employees and other vicarious agents with the care of a proper carrier. In particular, he shall ensure that only vehicles, trailers, semi-trailers, tanks, technical equipment and other equipment are used which are free of obstructions and suitable for the respective order. The provisions of the ADR, the StVO and the KFG shall be complied with in full.
The loading must be carried out with a completely cleaned, dry vehicle suitable for this transport. It is expressly agreed as the main obligation of the transport contract that the customer shall provide a completely cleaned vehicle. The vehicle including the silo shall be free of any residues, clean and odourless and suitable for this transport. The burden of proof for a properly cleaned vehicle (including silo) shall lie with the contractor. The Contractor shall sufficiently ensure that the vehicle/silo (in particular hoses, valves and dome covers) is completely cleaned before loading in order to prevent contamination/mixing. Irrespective of whether the cleaning is carried out at Werfring or elsewhere, even if a certificate is issued for the cleaning, the contractor is not released from the comprehensive inspection/verification obligation imposed on him with regard to the cleanliness of the vehicle/silo. The Contractor shall be liable for all damage resulting from the improper cleaning of the vehicles/silos.
In case of doubt, the Contractor must obtain instructions from Werfring on his own initiative. The use of a vehicle which has not been sufficiently cleaned for the intended load is prohibited without exception. After cleaning, a final inspection must be carried out by the driver and this must be confirmed by the driver. The contractor shall be liable for all damage/disadvantages caused by the fact that the confirmation of the cleanliness of the vehicle cannot be proven.
In the event of non-compliance with the above agreements/instructions, we reserve the right to have the vehicle equipped and cleaned at your expense. If this is not possible, we reserve the right to purchase a replacement vehicle and to charge you a no-fault contractual penalty in the amount of the freight of the replacement vehicle! This contractual penalty is excluded from the judicial right of mitigation and is independent of fault. Any further claim for damages remains unaffected. In any case, a processing fee of at least € 80 will be charged for these expenses.
15. The contractor shall be obliged to demonstrably inform his employees and other vicarious agents, in particular subcontractors, (in writing) of the obligation to comply with the provisions of these loading conditions and to satisfy himself with the diligence of a prudent carrier that these safety measures are actually complied with. Furthermore, the contractor shall ensure that the truck drivers used have all permits required under foreign employment or posting law. The driver shall carry the proofs and documents required by the applicable legal provisions (in particular work and residence permits). The contractor confirms that the driver has a valid international driving licence and a certificate in accordance with Directive 2003/59/EC (EU professional driver training). The driver must be specially trained for all transport requirements and carry the necessary certificates. In particular, the requirements in the area of ADR and StVO, load securing and in the area of safety regulations/safety clothing must be particularly fulfilled. For safety reasons, the driver must always wear safety shoes, a helmet, long outer clothing and a high-visibility waistcoat during all loading and unloading activities (unless safety regulations at the loading or unloading site require higher standards). For ADR transports, the driver must carry/wear the necessary safety equipment. In the event of non-compliance with the above agreements/instructions, we reserve the right to have the vehicle/driver equipped by the shipper at your expense. If this is not possible, we reserve the right to purchase a replacement vehicle and charge you the full cost. We will hold you fully liable for any consequential costs incurred as a result.
16. The Contractor shall be solely responsible for compliance with all statutory provisions on driving and rest times as well as legally compliant remuneration of the driving personnel. This applies in particular to the provisions of the German Minimum Wage Act (MiLog), the Wage and Social Dumping Prevention Act (LSD-BG) and any other relevant provisions on compliance with minimum wages. The contractor is obliged to demonstrably inform its employees and other vicarious agents, in particular subcontractors, (in writing) of the obligation to comply with the minimum wage provisions in the whole of Europe and to satisfy itself with the diligence of a prudent businessman that these are actually complied with. Upon request, the contractor shall immediately submit to Werfring corresponding evidence of compliance with these statutory provisions. The Contractor undertakes to fully indemnify and hold Werfring harmless, i.e. also unlimited in amount, with regard to all expenses/costs/claims (irrespective of the legal grounds) arising in connection with the breach of this agreement or the non-compliance with the applicable provisions. This also applies in particular to the incurrence of administrative costs, representation costs and consulting costs.
17. The Contractor is obliged to immediately report any case of damage to Werfring and to the Contractor’s transport liability insurance. In the event of damage exceeding the amount of € 2,000, the Contractor must immediately commission an expert or average adjuster to assess the damage. The contractor shall—in case of other claims for damages—obtain instructions from Werfring. Furthermore, the contractor is obliged to immediately provide all information which might be required by Werfring or its insurer for the further processing of the claim.
18. In the case of hazardous goods transports, the contractor undertakes to only use drivers who have been trained in accordance with ADR and who carry a valid ADR certificate. The vehicles must be equipped for the transport of hazardous goods. In particular, all conceivable requirements with regard to equipment must be met (sewer cover, shovel, broom, fire extinguisher, binding agent, collecting container, breathing protection, etc.). In the case of transport of dangerous goods (ADR), the contractor is also liable for the proper declaration on the freight documents, the correct labelling of the load and for carrying the required transport documents as well as the legally compliant labelling of the vehicle. Furthermore, all national regulations in the countries affected by the transport must be complied with.
The particulars in the transport document shall be entered in accordance with 126.96.36.199 ADR.
The Contractor shall comply with the obligations contained in 188.8.131.52.1 ADR "Carrier's duty of inspection". The vehicle must be covered for increased motor vehicle insurance in accordance with KHVG.
19. The contractor undertakes - before taking over a transport—to submit the insurance policy as confirmation of a sufficient minimum insurance sum (€ 600,000.00) and insurance customary in the industry in Austria to Werfring without being asked to do so. This insurance must also cover liability according to Art. 29 CMR and damages during loading and unloading operations. If Werfring does not have the insurance policy on the coverage of the transport liability insurance before the transport is carried out, Werfring is entitled to obtain insurance coverage for this transport in favour of the Contractor; in this case Werfring is entitled to deduct 4 % from the agreed freight price. The Contractor shall himself ensure that the above insurance policy is available to Werfring.
20. The contractor expressly waives the objection of a “contract of carriage for hire or reward”; should the contractual relationship in question actually be classified as a contract of carriage for hire or reward, the contractor expressly agrees to subject this contractual relationship to the liability provisions of freight law (CMR), irrespective of whether the scope of application of CMR or § 439a should be fulfilled.
21. Customer protection is deemed to be agreed; in case of acceptance or mediation of orders or other contact with customers of Werfring and all companies involved in the transport order in any way, all claims of the contractor against Werfring shall be forfeited. In addition, for the violation of this competition and/or customer protection clause, a contractual penalty irrespective of fault and exempt from the judicial right of moderation is agreed in the amount of 5 times the freight, irrespective of the actual amount of damage. A claim for damages exceeding this amount shall not be affected by this.
22. For all transports, there is a duty of confidentiality, which strictly prohibits the contractor from disclosing to third parties any information that becomes known to him in the course of the execution of the order. The contractor shall be liable here for all assistants. In the event of an unauthorised disclosure of information to third parties, a contractual penalty in the amount of 5 times the freight, irrespective of fault and excluded from the judicial right of moderation, shall be due. Werfring expressly reserves the right to claim further damages.
23. All claims against Werfring, irrespective of the legal grounds and irrespective of the degree of fault, shall become statute-barred within 6 months. The limitation period shall commence in all cases at the time the respective transport order is placed.
24. The contractual relationship shall be governed by Austrian law to the exclusion of the provisions of the IPR. For all disputes between the parties to the dispute in connection with this agreement, including disputes about the effective existence of this agreement, the jurisdiction of the relevant court for A-7223 Sieggraben is agreed. The contractual language is German.Stand Jänner 2019, Logistik Werfring GmbH, Silotransporte Werfring GmbH, A-7223 Sieggraben
As of January 2019, Logistik Werfring GmbH, Silotransporte Werfring GmbH, A-7223 Sieggraben
The General Terms and Conditions as well as the ASÖP, available at www.werfring.com (Logistik Werfring GmbH and/or Silotransporte Werfring GmbH = Contractor; hereinafter referred to as ”Werfring“) shall apply:
1. These General Terms and Conditions (GTC) apply to all services which Logistik Werfring GmbH and/or Silotransporte Werfring GmbH as commissioned freight forwarder or carrier (hereinafter referred to as “Werfring”) provides or procures for its contractual partner (hereinafter referred to as ”Client“). The Principal agrees that these GTC shall apply to all future transactions, irrespective of any further express reference, in particular in the case of orders placed orally, by telephone or by telex. Deviating terms and conditions of the Principal which are not expressly accepted by Werfring (in writing) are ineffective, even if they are not expressly contradicted. The Principal may under no circumstances rely on its own GTCs, even if they would be included in orders. No terms and conditions of the Principal contradicting these ”Werfring GTC“ and the AÖSp shall apply.
Werfring expressly objects to any kind of contractual penalty/penalties and declarations of value. The Client further agrees that these GTC shall apply to all future transactions, irrespective of any further express reference, in particular in the case of orders placed orally, by telephone or by telex.
2. The agreement of these GTC does not affect the validity of conventions in their respective valid version insofar as their provisions mandatorily prescribe a deviating regulation, such as the CMR.
3. The General Austrian Forwarders’ Terms and Conditions (AÖSp) as amended from time to time, published in the Official Gazette to the Wiener Zeitung 1947/184, last amended by the Official Gazette to the Wiener Zeitung 1993/68 (available on the Internet in English and German at www.wko.at/branchen/transport-verkehr/spedition-logistik/Allgemeine_Oesterreichische_Spediteurbedingungen_(AOeSp).html as well as at www.werfring.com), shall apply in addition.The Principal declares itself to be a Prohibited Customer pursuant to §§ 39 ff AÖSp. The AÖSp shall also apply in relation to foreign principals.
4. The Principal shall under no circumstances be entitled to reduce the freight or to set off counterclaims against claims of Werfring. Without exception, a prohibition of set-off and retention in favour of Werfring shall apply.
5. If loss or damage to the goods is not externally recognisable, it shall be incumbent on the consignor or the principal to prove that the loss or damage occurred during the period of liability. Externally visible damage must be claimed in writing immediately upon delivery, externally non-visible damage immediately upon discovery, however, within seven days at the latest.
6. Werfring has a right of lien and a right of retention on the goods or other objects in its power of disposal because of all claims, due and not due, to which it is entitled against the Principal under the present contract. If the principal does not expressly state the owner of the goods in the consignment note when placing the order, Werfring may assume that the goods are the property of the principal. The Principal is entitled to prohibit the exercise of the lien if he grants Werfring an equivalent means of security (e.g. bank guarantee).
7. Werfring is entitled to charge demurrage in the amount of € 400,– per day (at least € 80,- per hour) to the Client; Werfring is entitled to the demurrage even if the Client is not at fault. A claim for demurrage arises if a total waiting/standing time of 1.5 hours is exceeded.
8. If the transport order is cancelled, Werfring shall be entitled to a contractual penalty of 80% of the freight price, irrespective of fault. Any further claims for damages shall remain unaffected.
9. Werfring is entitled to use sub-contractors. However, Werfring shall exercise the care of a prudent forwarder or carrier in the selection of the company engaged by it.
10. The principal shall be responsible for ensuring that the loading and unloading of the goods is carried out. Damage caused by circumstances during loading or unloading shall fall exclusively within the sphere of liability of the Principal. If in individual cases the loading and unloading is actually carried out by an assistant of Werfring, this assistant is to be considered as vicarious agent of the Principal. The responsibility for loading and unloading always lies with the Principal without exception. The Principal shall ensure that the load is properly secured and complies with the statutory provisions. The load securing obligation is exclusively incumbent on the client, even if the goods have been loaded by the lorry driver. The client assures that the packaging is suitable for transport.
11. An increase in the value of the maximum amounts in accordance with Art 24 CMR or a special delivery interest in accordance with Art 26 CMR cannot (without exception) be agreed.
12. The principal has a duty to warn with regard to special characteristics of the freight. The Principal must therefore, among other things, separately inform Werfring if the value of the goods exceeds € 10,– per kilogram, if the goods are hazardous goods, waste, or if there is a special risk of theft associated with the freight. In addition, the Principal must inform Werfring about any particular sensitivity of the goods and the correct handling (e.g. transport temperature etc.).
13. The vehicles used by Werfring are always scheduled with one truck driver. In case of a written agreement of a 2-man crew and payment of a freight surcharge, Werfring will provide two drivers, whereby the risk of theft can be reduced. As a rule, the legally prescribed driving breaks can only be consumed in "conventional parking areas".
14. Werfring shall only be liable in the case of intent and gross negligence for damage caused by a vehicle/silo which has not been cleaned or has not been cleaned properly (e.g. contamination/mixing and consequential damage resulting therefrom). All claims for damages in this respect are excluded - except in the case of intent/gross negligence on the part of Werfring.
15. Stated loading and unloading deadlines are not delivery deadlines according to Art. 19 CMR, but only approximate guideline values/regular transit times. Claims for exceeding delivery times (of whatever kind) expire if the principal does not notify Werfring in writing within twenty-one days after performance of the service. Any liability of Werfring for exceeding loading deadlines/for non-compliance with “loading windows” is generally excluded, unless Werfring has missed these deadlines “blatantly grossly negligent”.
16. the following limitations of liability of the AÖSp are referred to in extracts as a precautionary measure:
- § 54. Insofar as the freight forwarder (here: Werfring) is liable at all, the following maximum limits apply to his liability:
- € 1.09 per kg gross of each damaged or lost package, but not more than € 1,090.09 per claim.
- for all other damage, up to a maximum of € 2,180.19 per claim.
- If the declared value of the goods is lower than the above amounts, the declared value shall be taken as a basis.
- If the value to be taken into consideration in accordance with (b) is higher than the fair market value or, in the absence thereof, the fair value which the goods of the same type and quality had at the time and place of delivery to the forwarder, this fair market value or fair value shall take the place of the declared value.
- In the event of any differences in the stated values, the lower value shall always apply.
17. The claim for payment of the freight arises upon delivery of the goods. In the event of default of payment, Werfring shall be entitled to interest in the amount of 1.5 % per month according to § 29 AÖSp. In addition, the Client shall bear in full all accumulated reminder charges as well as the costs associated with the collection of the outstanding debt.
The Client has the option of receiving the invoice in electronic or paper form. In the case of electronic invoices, the provision and transfer of Internet access and the online connection for retrieving the invoice shall be at the expense and risk of the Client.
18. The contractual relationship shall be governed by Austrian law to the exclusion of the provisions of the IPR. All disputes between the parties in connection with this Agreement, including disputes about the effective existence of this Agreement, as well as disputes in connection with individual agreements concluded in execution of this Agreement, shall be subject to the jurisdiction of the competent court for A-7223 Sieggraben.
As of January 2019, Logistik Werfring GmbH, Silotransporte Werfring GmbH, A-7223 Sieggraben