ASSTRA Forwarding AG
(version 1.1. of 01.06.2017)
In these Conditions:
“the Customer” means ASSTRA Forwarding AG and any of its Affiliates. The reference to the Customer in these Conditions includes the Customer’s employees, agents and other persons for whom in law the Customer may be liable.
“Affiliate” means (in relation to “the Customer”) any other entity which the Customer controls or superwises, directly,or indirectly. Any of the Customer’s Affiliates shall have the right to enforce these Conditions in the place of the Customer as if they were an original party to these Conditions. ASSTRA Forwarding AG has the sole right to confirm whether the entity affiliated or not.
“the Supplier” means any person, firm or a company who enters into a contract (Transport Order) with the Customer for the transportation and other related services stated by the Transport Order.
“these Conditions” means the present General Conditions of Transport Services of the Customer and as varied from time to time. The Customer may alter and/or amend these Conditions at any time. Applicable version is indicated in a Transport Order.
“Transport Order” means any written instructions issued by the Customer to the Supplier in respect of the collection, handling, storage, carriage delivery or other services related to the Goods and specified therein
“Services” means transportation and/or other logistics services stated in a particular Transport Order.
“the Party” means “the Customer” or “the Supplier” individually, and the “Parties” — jointly.
The present Conditions shall not affect the relations of the Parties which have been regulated by a separate Framework Agreement.
1. Scope of these Conditions
1.1. The Customer and/or its Affiliates wish to appoint Supplier on a non-exclusive basis to provide transportation and/or other logistics services following the Transport Orders which shall be placed separately and under the present Conditions.
1.2. The Supplier shall provide the Services ordered by the Customer strictly in accordance to the Transport Orders issued by the Customer, and for the Services which may include, but not be limited to one or more of the following components —
- Forwarding and customs clearing services;
- Route security surveys;
- Road transport arrangements;
- Assistance in customs transit operations ;
- Consolidation of Goods;
- Securing of the Goods;
- Containers filling and discharging
- Advise optimum methods of conveyance and optimum routes;
1.3. The Customer will assign the transportation of Goods to the Supplier through a Transport Order made in written form by means of Customer’s dedicated booking management system (OTM), or by other means.
The Supplier shall confirm the acceptance of the Transport Order within 3 hours from the moment Transport Order is sent by the Customer to the e-mail address provided by the Supplier. The Transport Order shall also be considered accepted by the Supplier under the present Terms and Conditions when:
- the vehicle is submitted to loading place (according to the terms of issued Transport Order); or
- the Supplier has not directly rejected the Transport Order within 5 hours from the moment it is sent by the Customer.
- The Supplier has provided the licence plates of the vehicle
1.4. The Customer has the right to cancel or modify the Transport Order within 24 hours before the loading time without any additional costs or penalties to the Customer.
1.5. Upon acceptance of the Transport Order the Supplier is deemed to have all information necessary to perform the Transport Order. Therefore the Supplier shall request any additional information in a reasonable time allowing to perform duties pursuant to the delivery schedule and conditions..
2. Obligations of the Supplier
2.1. The Supplier warrants and undertakes that:
- it has full capacity and authority and all necessary certificates, approvals, licences, permits and consents to enter into and perform Transport Order and to provide the Services;
- in the provision of the Services, it shall comply with all applicable regulations, laws, ordinances and best industry practices (including but not limited to those applicable to the carriage of goods, occupational health and safety, the environment, wages, hours and conditions of employment, discrimination, data protection, privacy, economic sanctions, trade controls and anti-corruption);
- the Services will be performed with reasonable skill, care and diligence, in an efficient, competent and professional manner.
2.2. The Supplier shall perform the Services strictly in accordance with each Transport Order and with all due care and skill, in a professional and diligent manner, in accordance with the highest industry standards.
2.3. Skilled and experienced personnel:
- The Supplier shall ensure that all persons employed or engaged (including employees, workers, agents and self-employed contractors and whether or not employed or engaged directly as individuals or through a company) by the Supplier from time to time in connection with a Transport Order (herein — Supplier Personnel) have sufficient capacity, competence, skill and experience to be able to discharge the functions assigned to them in a timely and professional manner. The Supplier shall be solely responsible for the supervision, daily direction and control of all Supplier Personnel;
- Without prejudice to clause 2.3. part 1, before allowing any person to be engaged in the provision of the Services, the Supplier shall take up and verify appropriate references and other qualifications to work in accordance with its usual policy. These shall be made available to the Customer or — to the option of the Customer — any third party auditor on request.
2.3.1. The Supplier shall be responsible for ensuring that whenever Supplier Personnel are on the premises of any company of the Customer, sender, consignee, or other related to Transport order, they shall comply with all policies and procedures at such premises (including security and health, safety and environmental procedures) and all reasonable instructions and directions of the Customer sender, consignee, or other related to Transport order party. Without limiting the foregoing, the Supplier shall, and shall procure that Supplier Personnel shall comply with all relevant health, safety and environmental laws.
2.3.2. If in the reasonable opinion of the Customer any Supplier Personnel:
- fail to meet the required standards of performance pursuant to the these Conditions; or
- engage in conduct which is unacceptable to the Customer,
then the Supplier shall, at the Customer’s request and at the Supplier’s cost, procure the removal of that member of Supplier Personnel from any involvement with the provision of the Services as soon as reasonably practical and, in any event, within 7 days.
2.4. The Supplier shall ensure that the transport vehicles used in provision of the present Conditions are kept in good, clean and hygienic condition and are regularly cleaned, serviced and are well maintained in a condition which ensures that the goods are at no risk of being damaged in any way during transport.
2.5. All transport vehicles, whether on loan or purchased, will be fit for purpose and meet all the requirements of all relevant laws and regulations. All transport vehicles will be safe to use and will be maintained by the Supplier in good working order, at its own cost, at all times.
2.6. In order to be able to ensure the requisite quality of Service, the Supplier must demonstrate that its financial situation is sound. To do so, it must provide, as requested by the Customer, information about its financial earnings and its balance sheet, as well as a social security contributions and tax certificates. The Customer, at its sole discretion, is entitled to proceed with audits of the Supplier fleet of equipment without releasing the Supplier from any of its obligations under the present Conditions.
2.7. Trucks must be equipped with:
- The required number of anchor points on each side of the vehicle, in accordance with the prevailing laws and if possible on the inside of the truck;
- A sufficient number of straps to comply with the prevailing legislation. Chains or cables in iron with a minimum equivalent resistance are also allowed;
- Sufficient number of non-slip rugs large enough to easily and before the start of the load to be applied to the floor so that it is unnecessary to adjust it while loading or adapt. It is absolutely forbidden to make the non-slip rugs or redirect if they are under a suspended load;
- The necessary tools to open the trailer in a fully safe manner. Dangerous working methods such as the use of unfitted ladders and climbing on the roof of the truck are not allowed;
- Trailer floors must be empty and clean at all times.
Trucks that do not meet the requirements could be not loaded.
2.8. The Supplier shall ensure that the Goods are not damaged in any way by contamination, rain, dust, heat or frost. If needed, the Supplier must use trailers which are insulated and/or temperature controlled to protect the Goods.
2.9. The Supplier shall provide safe installation of a vehicle on a loading/unloading places, fixing of the established vehicle stop mechanisms and the adaptions providing an immovability of a cargo compartment of a vehicle during loading/unloading operations.
2.10. The Supplier is bound by an obligation to collect, whereby it undertakes to inspect and pick up any and all tonnage of Goods made available to it at Loading Point in accordance with the provisions of Transport Orders and under these Conditions. Prior to collect the Goods, the Supplier must expressly state on the transport documents (particularly consignment note) any non-conformity or default relating to the state of the Goods loaded. Unless any such objections are stated it shall be deemed that the Supplier has received the Goods specified in the transport documents in good condition and in good order.
2.11. If the Supplier fails to comply with the schedules for collections issued by the Customer, the latter reserves the right to entrust the Service initially entrusted to the Supplier to any third party the Customer so chooses, while still reserving the right to seek reparations from the Supplier and potentially having recourse to set off for amounts the Customer owes as a result to the third party carriage service out of any amounts the Customer owes to the Supplier.
2.12. In case of operations to load Goods onto the Supplier’s transport vehicle are performed with the involvement of the Customer’s employees and/or equipment (such as cranes), then the operations shall be conducted under the Supplier’s control and guidance.
2.13. It is agreed between the Parties that loading, unloading, and stowing products, as well as any related operations as securing of the Goods, must be performed under the Supplier’s supervision and in accordance with its instructions and guidelines, even if the Customer or its employee assists the Supplier during such operations. The Supplier assumes full responsibility for the aforementioned activities and shall compensate to the Customer for the consequences of any action or negligence leading to any sort of damages.
2.14. Before departure of the vehicle from the loading place, the Supplier undertakes to verify that the loaded Goods do not exceed the vehicle’s maximum weight (also distribution of Goods by axes) and that the vehicle does not violate at any time during performance of the entrusted Services any relevant laws in the country where the Goods are loaded and unloaded, as well as the laws of countries transited in the performance of the entrusted Service.
2.15. Should the load compartment of the vehicle to be sealed the Supplier is not relieved from the responsibility for keeping the actual quantity of the Goods with quantity indicated in the consignment note.
2.16. The Supplier warrants that it will report to the Customer any deviations from the transport orders of any time and date of loading and /or time and date of discharging,alsol immediately notify the Customer in writing of any loss or damage of the Goods or documents which occurs at any time, and shall fully and promptly assist the Customer in handling and settlement of any claim.
2.17. The Supplier undertakes to adhere to, and to have its personnel adhere to, traffic and highway regulations, rules and regulations within the loading/unloading places as defined in a Transport Order and any other safety instructions given by consignor/consignee.
2.18. When delivering Goods to consignee the Supplier undertakes to obtain signatures on the shipping documents pertaining to the Goods delivered with any justified reservations, if any. The Supplier will supervise the unloading operations unless otherwise specified in a Transport Order.
If a consignee of the Goods refuses to take delivery of the Goods regardless of the reason, the Supplier undertakes:
- to immediately notify the Customer of the consignee(s) refusal and the reason;
- to immediately carry out all of the instructions conveyed by the Customer;
- if necessary, to store the Goods in a suitable storage space where the Goods can be kept in good condition until the Customer informs the Supplier of another place of delivery of these Goods.
The Supplier undertakes to carry out the instructions given by the Customer as soon as possible in order to deliver these Goods to their final destination.
2.19. Under no circumstances the Supplier is authorized to unload, move, store, reload and/or handle all or some of the Goods in transit, except in the case of force majeure and, to the extent possible, only after receiving express authorization from the Customer.
2.20. If it is absolutely necessary to unload, store, and/or handle Goods in transit while the Goods are being transported, the Supplier undertakes, after receiving the Customer’s written consent:
- to unload and handle the Goods using means suited to the Goods;
- to store the Goods in a sealed warehouse suited to the specific nature of the Goods in such a way that they are isolated from any other goods also stored in said warehouse; and,
- generally to ensure the Customer against any and all risk of harm, of any nature whatsoever, to the integrity and/or quality of the Goods.
The Supplier assumes the same responsibility, even if there are no instructions from the Customer. Therefore, regardless of the circumstances, the Supplier remains bound by a strict liability to perform the agreed-upon Service.
2.21. The Supplier guarantees to execute the ordered transport directly and without any delay and deliver the Goods to the designated destinations according to the terms and conditions agreed with the Customer and accompanied of all the documents issued by the Customer.
2.22. If the Supplier is unable to perform the Services by the delivery date stipulated in the Transport Order, the Customer may instruct the Supplier to take additional measures to accelerate the rate at which the Services are performed, by the employment of additional resources (including mobilising additional vehicles) to ensure timely delivery of the Goods in question. If the delay or failure is the result of a breach by the Supplier of his obligations in terms of these Conditions or a particular Transport Order, any additional costs occasioned by the acceleration of the Services will be for the Supplier’s account. For avoidance of doubt if the delay arises as a result of any Force Majeure event, or as a result of any delay caused by the Customer or any person for whom the Customer is responsible, the Supplier is entitled to the reasonable additional costs arising from such acceleration.
3. Obligations of the Customer
3.1. The Customer shall provide the Supplier with all necessary information about the Goods and transportation and guarantee the accuracy of the information transferred.
3.2. The Customer shall provide the Goods with packaging keeping the Goods safe during transportation.
3.3. During loading operations the Customer shall assist the Supplier and perform all Supplier’s instructions on placing the Goods in loading compartment to prevent overweight of vehicle by axes.
3.4. The Customer shall pay the Supplier’s invoices for the services provided under the terms of present Conditions.
4. Price and Payments
4.1. The Supplier warrants that it has satisfied itself as to all the conditions and circumstances affecting the Transport Order and as to its ability to supply the Services in accordance with Transport Order and under the present Conditions. The Supplier shall not be entitled to any additional payment or allowance, except as expressly provided in the Transport Order. The Supplier shall be responsible for any misunderstandings, incorrect information and assumptions made, however obtained, except where such information was provided in writing by the Customer.
4.2. Unless expressly stipulated to the contrary in the Transport Order, the Transport Order Price shall include:
- all costs, expenses and charges in connection with the provision of the Services;
- compliance with the Supplier’s obligations under the Transport Order and present Conditions, including without limitation the cost of all authorizations, permits and escorts.
4.3. The Supplier is not entitled to any payment in addition to the Transport Order Price, save where expressly provided for in present Conditions or any Transport Order. In the event that the Supplier incurs any additional cost for which it is entitled to claim in terms of this provision, the Supplier shall notify the Customer in writing of the additional costs as soon as the Supplier becomes aware of the cost prior to incurring the cost. The Supplier shall not take any action which will result in additional costs unless the Customer has confirmed its acceptance of those costs. Should the Supplier incurs additional costs under the meaning of present article the Supplier shall provide the Customer with document confirmation of such costs.
4.4. Any change in itinerary or any change whatsoever that could lead to a price adjustment shall be valid only if it has been expressly agreed between the Parties before the vehicle leaves the loading site or in transit.
4.5. Payment shall be effected to the Supplier for Services properly rendered against an invoice submitted to the Customer in accordance with the payment terms set forth in the Transport Order. If no payment terms are contained in the Transport Order, payment shall be done during 30 days against documents stated by the art.4.6. of the present Conditions.
4.6. Each invoice shall be accompanied by the documentation stipulated in the Transport Order. If no documentation is specified in the Transport Order, the invoice shall be accompanied by a signed original delivery note for the Goods (CMR) in respect of which payment is claimed. The Supplier shall provide the Customer with a copy of delivery note for the Goods (CMR) signed by a consignee immediately after unloading operations but not later than 24 hours afterwards. Original delivery note for the Goods (CMR) shall be sent by the Supplier to the Customer within 14 days from unloading operations.
4.7.If the Customer disputes any part of the invoice, it shall be entitled to withhold such payment until the dispute is resolved, but shall effect payment of the undisputed portion.
4.8. Without prejudice to any other available remedy, the Customer shall be entitled to deduct from any amount due, or becoming due, all costs, damages, expenses or penalties the Supplier is liable for under the present Conditions.
4.9. The Customer shall pay for bank commissions of its banks and the Supplier shall pay for bank commissions of its banks, including bank commissions of corresponding banks.
5. Documents and Audit
5.1. The Supplier shall maintain records according to generally accepted accounting principles consistently applied in support of the Supplier’s invoices to the Customer and such other records as the Customer may reasonably require with respect to the Services provided hereunder (“Records”). The Supplier shall retain such records for at
least five (5) years after the services are been rendered, except for the Records in connection with taxes or customs duties, which shall be retained for fifteen (15) years after the end of the Transport Order or separate Agreement. Upon the Customer’s request the Supplier shall provide the Customer with such Records, which the Customer may inspect and audit in order to determine the Customer’s compliance with the present Conditions. Any such inspection may take place on the Supplier’s premises, during normal business hours, upon reasonable advance notice to the Supplier. The Customer may reproduce such Records and retain the copies, and may use an independent auditor in exercising its rights hereunder. If the Customer determines, as a result of any audit conducted under this Article, that it has been overcharged by the Supplier for the Services provided in the period subject to the audit, the Supplier shall promptly reimburse the Customer in the amount of any such overcharge upon receipt of invoice. Any audit conducted under this Article shall be at the Customer’s expense unless the audit reveals that the Supplier overcharged the Customer by more than five percent (5%) for the relevant period, in which event the Supplier shall reimburse the Customer for the reasonable cost of the audit and any overcharged amount plus interest at the annual rate of LIBOR plus five percent (5%).
6.1. Supplier’s obligations hereunder shall be performed solely by employees of Supplier. Supplier shall not subcontract or delegate performance of any of its obligations hereunder without the Customer’s prior written consent.
6.2. The Supplier shall be responsible for the act or omissions of its subcontractors or of any other persons of whose services it makes use for the performance of the carriage, when such agents, servants or other persons are acting within the scope of their employment, as if such acts or omissions were its own.
7.1. The Supplier shall, at its own expense, at all times under the present Conditions and for a minimum period of 2 years after rendering of Services maintain in effect those insurance policies and minimum limits of coverage as designated below and any other insurance required by law in any jurisdictions where the Supplier provides the Services, with insurance companies authorized to do business in the jurisdiction where the Services are to be performed and with an reputable Insurance Company.
7.2. In the event the Supplier utilizes the services of subcontractors to perform the Services, the Supplier shall reasonably require from or provide for all subcontractors the same minimum insurance requirements as designated herein. The Customer reserves the right to request copies of subcontractor certificates from the Supplier when deemed necessary.
7.3. The Supplier shall effect and maintain with primary insurance company/ies and under the terms of these Conditions the following insurance policies:
- a Road carrier or Freight Forwarder liability insurance, whichever applicable (“‘CMR Insurance”), covering liability of the Supplier in respect of the transportation activities as per the applicable law with an indemnity limit of no less than 8,33 SDR/ brutto kg of the load. The present Insurance should include the list of insured vehicles otherwise the Supplier provides the Customer with a separate evidence that provided Motor Vehicles are covered;
- Or/ and All Risks policy covering all material and direct damages to the Goods being under the Supplier’s custody (including but not limited to fire, lightening, theft, vandalism, etc.) and insuring the entire, actual value of the consignor/consignee stock.
- any other insurance policy/ies compulsory by law.
7.4. The Supplier shall provide the Customer with a certificate of insurance in respect of these policies or copy of them and shall give immediate notice to the Customer if there is any cancellation or material change affecting Customer’s interests in respect of the policies.
7.5. Nothing in this article limits the obligations, liabilities or responsibilities of the Supplier under the other terms of the present Conditions or otherwise agreed by both Parties, and arising out of the law. Any amounts not insured or not recovered from the insurers shall be borne by the Party legally responsible as per applicable law and/or the terms of these Conditions.
8.1. The Supplier shall be responsible to the Customer for any delays in delivery and for any loss or damage to any goods during the period that such goods are in the actual or, by operation of applicable law, constructive possession, custody or control of the Supplier. The Supplier’s possession, custody or control shall include the period between the time of acceptance of the Goods by the Supplier until the time of the delivery of the Goods in accordance with Customer’s written instructions.
8.2. The Supplier accepts the entire risk and responsibility for the conduct or omissions of its personnel, agents, sub-contractors, representatives, directors, members or shareholders in relation to the execution of present Conditions and any Transport Order.
8.3. The Supplier shall be fully liable, without any limitation and/or restriction being applicable by law, towards the Customer and any other third party with regard to any and all losses and/or damages including any accountable losses, theft, destruction or discrepancies of or to any equipment or any other tangible property which results from its actions or omissions (including, but not limited to, losses or damages arising from any personal or bodily injury or death) unless explicitly recorded otherwise. The Supplier shall be liable for any fines or penalties incurred due to transportation of overweight vehicles.
8.4. Under no circumstances the Customer shall be liable for any damages as a result of incorrect or incomplete instructions to the Supplier to prevent migrants from unlawfully entering Supplier’s or Supplier’s Subcontractor’s trucks. The Customer shall not be liable, and the Supplier shall have no recourse against the Customer, for any fines, penalties, sanctions, costs, losses or damages in relation to human trafficking. The Supplier shall waive any rights it has (if any) to hold the Customer liable for such fines, penalties, sanctions, costs, losses or damages.
8.5. The Supplier indemnifies, holds harmless the Customer and its officers, employers, agents and representatives, from and against:
- any liability, loss and expense arising by reason of claims by government authorities or others (including the Supplier’s sub-contractors and the employees of the Supplier or sub-contractors) of any failure of the Supplier to comply with Laws;
- any claim, demand, cause of action, loss, expense or liability on account of injury to or death of persons (including the employees of the Customer, the Supplier and the Supplier’s sub-contractors) or damage to or loss of property (including any Goods or the property of the Customer) arising directly or indirectly out of the acts or omissions to act of the Supplier or its sub-contractors, Supplier or agents, or the employees of any thereof, in the execution of Transport Orders, including claims, loss or liability arising under non-delegable duties of the Customer or arising from the use or operation by the Supplier equipment, tools, scaffolding or facilities furnished to the Supplier by the Customer to execute the Services, and including any legal costs on attorney and Client scale incurred by the Customer for legal action to enforce the Supplier’s indemnification obligations under this clause, but excepting where the injury or death of persons or damage to or loss of property was caused directly by the sole gross negligence or wilful misconduct of the Party to be indemnified;
- any claim, demand, cause of action, loss, expense or liability on account of actual or alleged contamination, pollution or public or private nuisance arising directly or indirectly out of the acts or omissions to act of the Supplier or its sub-contractors in the execution of the Services;
- any loss or damages of whatsoever nature and howsoever arising which the Supplier may sustain through, as a result of or consequent upon the acts of any government authority whereby the due exercise and enjoyment of its rights under a Transport Order shall or may be affected, prejudiced or in any way curtailed and the Supplier hereby indemnifies and holds the Customer harmless in respect of any claim, demand, proceedings, action, costs, charges, expenses, any loss damage or injury of whatsoever nature as referred to in this paragraph.
The reference to the Customer in this provision includes the Customer’s employees, agents and other persons for whom in law the Customer may be liable. The indemnities contained in this provision and elsewhere herein also constituted a sipulatio alteri in favour of such persons the benefits of which may be accepted by them at any time.
8.6. In case of any accident with third parties occurred regardless the fault of third parties the Supplier shall be fully liable for the Goods and indemnify the Customer from the loss or damage caused by such accident.
8.7. Should the Goods to be found damaged and/or any disagreements between the Parties arise during unloading operations the Supplier is entitled to involve independent expert or representative of Insurance Company. Otherwise conclusions of consignee, or owners or the Goods, or other injured party regarding the fact, reasons, amount of damage to the Goods, as well as to the extent and necessity of additional costs, including handling, stowing and other cargo operations related to such damaged Goods, deemed to be accepted by the Supplier.
8.8. Should any claim be sent to the Supplier the Customer shall receive the answer during one week period otherwise the Customer is entitled to consider the claim accepted and confirmed by the Supplier in full and without exceptions.
8.9. Should the Customer receive reimbursement from Insurance Company with deductible amount excluded, the Supplier shall indemnify the Customer from such deductions.
8.10. The Customer shall have no obligation to ensure or provide for the safety, custody or condition of any the Supplier’s vehicles, equipment or property and no claims shall lie against the Customer for any loss, damage or injury to such vehicles, equipment or property.
9. Breach and Termination
9.1. In the event of a breach by the Supplier of any warranty set by the present Conditions, where the breach can be corrected, without prejudice to Customer’s other rights and remedies, the Supplier shall promptly re-perform the affected part of the Services at no additional charge to the Customer and promptly repair or replace any damaged Goods or other materials or replace any non-conforming personnel, as appropriate, within seven (7) business days after receipt of notice of the breach from the Customer. Where a breach of warranty cannot be cured within such seven (7) day period, the Supplier shall be liable for all resulting defects, loss, or damage and shall indemnify the Customer in accordance with provisions of present Conditions.
9.2. If the Supplier fails to meet the service levels or perform any other obligation under these Conditions, without prejudice to Customer’s other rights and remedies, then the Supplier shall use all reasonable efforts to take such remedial action as is necessary to perform the Services in accordance with the terms of these Conditions as promptly as practicable after receipt of notice of the failure, which action shall include, but is not limited to, the prompt re-performance of the affected the Services at no additional charge to the Customer.
9.3. The Supplier shall be liable for a material breach of a fundamental terms of these Conditions. In the event of any such breach, the Customer may terminate the Transport Order by written notice to the Supplier with immediate effect and/or the Customer reserves the right to suspend payment for all affected Services until such breach or non-compliance has been rectified or eliminated to the Customer’s satisfaction.
9.4. The Customer may terminate Transport Order if the Supplier:
- breaches any material term of these Conditions or Transport Order and fails to remedy such breach notwithstanding 7 (seven) calendar days notice to do so; or
- subcontracts the Services without the prior written consent of the Customer; or
- cedes or assigns the Supplier’s rights and obligations under these Conditions without the Customer’s prior written consent; or
- demonstrates the intention not to continue performance of the Services; or
- persistently breaches the terms of present Conditions in a manner that the Customer may reasonably conclude that the Supplier is unable or unwilling to perform the Services in a satisfactory manner; or
- becomes bankrupt or insolvent or is liquidated or placed under business rescue proceedings, whether voluntary or involuntary.
9.5. Notwithstanding any contrary provision in these Conditions, if the Customer deems that the Supplier is unable to comply with any Transport Order, whether in part or in full, the Customer may, upon notice to the Supplier, engage another contractor to complete such part or all of the Services in respect of the particular Transport Order. Any additional costs which the Customer incurs as a result of the Supplier’s failure or inability to complete the Services, shall be for the account of the Supplier.
9.6. If the Customer terminates the Transport Order in terms of this article it may:
- appoint any other contractor to perform the Services and withhold further payments to the Supplier until the costs of completion of the Services have been established. If the cost of completion of the services exceed the amount owing to the Supplier the Customer is entitled to recover the difference from the Supplier, including by way of set-off against any sum owing to the Supplier by the Customer; and/or
- recover costs, losses and damages incurred by the Customer consequent to termination of a Transport Order.
10. Ownership of Goods and Waiver of Liens
10.1. The Supplier acquires no interest or title in any Goods in respect of which it has rendered Services or which has been placed in the custody of the Supplier.
10.2. The Supplier waives and abandons all present and future liens and rights of retention in respect of any Goods and shall ensure that all subcontractors execute similar waivers. The Supplier indemnifies and holds the Customer harmless against all costs, damages, claims, losses and expenses incurred as a result of any breach of this provision.
10.3. Ownership of any documentation issued by the Customer (consignor/consignee) and all documentation which the Supplier is required to supply in terms of Transport Order or under the present Conditions vests in the Customer (consignor/consignee).
11. Law, Safety, Protection of the Environment, Taxes
11.1. The Supplier shall execute Services in compliance with applicable international treaties, laws, decrees, regulations, including local norms; the Supplier shall in particular comply with all civil, fiscal and social security requirements, laws and regulations regarding conditions for workers such as health, hygiene and safety at the workplace complying, for such purpose, with all administration procedure as well as with all the applicable laws and regulation applicable case by case also taking into account the corresponding Territory.
11.2. The Supplier shall provide the Customer with services which wholly meet the safety, health, social and environmental statutory provisions. If the Supplier has to provide services on premises where the Customer (consignor/consignee) has a duty of care or other liability, the Supplier shall ensure that all legal rules, regulations or other requirements are observed by its employees, legal representatives or vicarious agents, and that they are suitably trained and competent to perform the required work. The Supplier shall be liable for any actions of its employees, legal representatives or vicarious agents. Vicarious agents shall also include the Supplier’s personnel placed to work under instruction of the Supplier.
11.3. The Supplier shall meet all payment obligations:
- to its personell (salaries, social security and contributions included);
- of all taxes (VAT included), levies, charges applicable with respect to rendered services and to the engagement of, or payment to its personnel, giving, each month and in any case before issuing any invoice provided by Transport Order, the Customer written proof of all such payments.
11.4. If the law of the Customer country obliges the Customer to deduct any taxes levied against the Supplier, and an existing convention for the avoidance of double taxation between the Customer and the Supplier countries allows this, both on account grounds and amount, the Customer shall submit to the Supplier without undue delay any tax receipts or other evidence, in a form acceptable for Supplier tax authorities.
12. Compliance with legal minimum wage
12.1. The Supplier undertakes to comply with the applicable legal minimum wage provisions, i.e. to pay to its employees the applicable legal minimum wage. The Supplier also undertakes to commit his subcontractors and used temporary work agencies to pay their employees the statutory minimum wage. The Supplier will be liable towards the Customer for any violation of the legal provisions, in particular the statutory minimum wage provisions, by the Supplier or by the subcontractors or temporary work agencies. The Supplier shall defend, indemnify, release and hold harmless the Customer from and against any loss, damage, injury, liability, demands and claims, and pay any settlements and judgments against the Customer, arising out of the violation of the legal provisions by the Supplier or by its subcontractors or temporary work agencies.
13. Quality of Services
13.1. The Supplier’s involvement contributes to the quality of Service the Customer offers its Clients. With this objective in mind, the Supplier undertakes to be a stakeholder in the Customer’s actions regarding quality and particularly, undertakes to develop and continuously improve the quality of its Service by participating in any Customer audit of quality that may bear on any Service operation undertaken.
13.2. While performing the General Conditions, the quality of Services rendered is measured using objective criteria defined by mutual agreement (Key Performance Indicator: KPI). Goals to be reached are set from year to year as defined in a separate Agreement. In the event of failure, the Supplier agrees to pay the penalties defined in the Agreement(s) or Transport Order.
13.3. The Supplier must be aware, when allocated Services, that they may be appointed in accordance with whether or not they have ISO 9001 and ISO 14001 certification.
14.1. Each Party undertakes to treat as confidential all information and data obtained directly or indirectly from and/or delivered by the other Party related to this Conditions, regardless of the nature and medium.
14.2. Each Party under the present Conditions shall, for the duration of this Conditions and for a period of five (5) years thereafter: (i) keep all confidential information in secret and shall not disclose any confidential information to a third party, other than to (a) such of its employees or authorised subcontractors as will of necessity require it as a consequence of the performance of obligations under the present Conditions; and/or (b) such of its service providers as a consequence of the performance of services to such Party and the disclosure is necessary for the performance of services by such service provider to such Party (in which case the relevant Party shall ensure that each such employee, subcontractor or service provider shall keep such Information confidential and shall not use it for any purpose or disclose it to any person, firm or company other than those for which or to whom that Party may lawfully use or disclose it under the relevant Transport Order/separate Agreement/present Conditions or in performance of the relevant services); and (ii) use ionfidential information only in connection with the proper performance under the present Conditions.
14.3. The obligations of confidentiality shall not apply to information that: (i) is now or subsequently becomes generally available to the public through no fault or breach of the receiving Party; (ii) the receiving Party can demonstrate to have it rightfully in its possession prior to disclosure without being bound by confidentiality obligations; (iii) the receiving Party rightfully obtains from a third party who has the right to transfer or disclose it; (iv) is independently developed by the receiving Party without aid, application or use of the Confidential Information; or (v) is required to be disclosed under any law, governmental rule, regulation or court order.
14.4. Each of the Party shall protect commercial interests of the other Party abiding neutrality towards its Clients.
14.5. In the event that the Supplier violates any obligation under this section “Confidentiality” the Customer shall be entitled to claim a penalty in the amount of EUR 50,000 (EUR fifty thousand) per violation. The payment of such penalty shall not release the Supplier from its obligation to further comply with these present terms of Confidentiality, nor shall it constitute a waiver of any other rights the Customer might be entitled to.
15. Force Majeure
15.1. Neither Party shall be liable to fulfill part or all of its obligations in terms under the present Conditions if the failure to do so results from Force Majeure events.
15.2. Force majeure shall be defined as: war, hostilities, invasion, rebellion, terrorism, revolution, insurrection, civil war, riot, civil commotions, embargo, governmental restrictions, general strikes, fire, floods, earthquake or hurricane, provided that the force majeure situation (i) is beyond the affected party’s control, (ii) could not reasonably have been foreseen by the affected party before entering into this agreement, and (iii) having arisen, the affected party could not reasonably have avoided or overcome the force majeure situation.
15.3. Should a Force Majeure event arise, the affected Party shall:
- within 3 (three) calendar days notify the other Party in writing of the nature, extent, cause and expected duration of the Force Majeure event and include the measures the Party is taking in order to overcome the Force Majeure event;
- use its best endeavours to counteract the event and mitigate the consequences thereof and to give effect to the provisions of the Transport Order as soon as possible;
- provide the other Party with document from authorized body stated the fact of Force Majeure.
15.4. A Party’s obligation affected by the Force Majeure event shall be suspended for the duration of the Force Majeure event and shall be promptly resumed upon the cessation of the Force Majeure event.
15.5. If the Force Majeure event persists for more than 30 (thirty) calendar days, the Party not relying on the Force Majeure event shall be entitled to cancel the Transpot Order on 7 (seven) calendar days written notice. No Party shall have any claim against the other based on a claim of breach or unlawful termination due to cancellation arising from Force Majeure events.
15.6. If a Party incurs extra costs by reason of a force majeure situation such costs will be borne solely by that party.
16. Law and Arbitration
16.1. These General Conditions are subject to and shall be interpreted in accordance with related international law regulated corresponding type of rendering services.
16.2. In the event of a disagreement between the Parties regarding interpretation or performance of the General Convention, the Parties agree to attempt to resolve their differences amicably.
16.3. Failing an amicable resolution of disagreement the Parties agree that this shall be submitted to the authorised court in the country of Defendant under its legislation.
17.1. Any one or more of the provisions contained in this Conditions shall be declared invalid, illegal or unenforceable in any respect under any applicable law, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired, and in such case, the Parties hereto oblige themselves to reach the purpose of the invalid provision by a new, valid and legal stipulation.