General standard terms and conditions
The following text is a translation of the German version of the ADSp 2017. In case of doubts, the German version of the ADSp 2017 shall prevail.
The German Freight Forwarders’ Standard Terms and Conditions 2017 (Allgemeine Deutsche Spediteurbedingungen 2017 – ADSp 2017) are recommended for use as of January 1, 2017 by the Federation of German Industries (BDI), the Federation of German Wholesale, Foreign Trade and Services (BGA), the Federal Association of Road Haulage, Logistics and Disposal (BGL), the Federal Association of Furniture Forwarders and Logistics (AMÖ), the Federal Association of Transport and Logistics in Industry and Trade (BWVL), the Association of German Chambers of Commerce and Industry (DIHK), the German Association for Freight Forwarding and Logistics (DSLV) and the Confederation of German Retail (HDE). This advice is non-binding and the contract parties are free to make agreements that deviate from the contents of this recommendation.
1. Definitions
(1.4) Consignee
Legal person to whom the goods shall be deliveredaccording to the Freight Forwarding Contract orvalid instruction of the Principal or other personsauthorised to dispose of.
(1.11) Damage Case/Damage Event
Damage Case means, when, due to an externalprocess, a claimant raises a claim on the basis ofa Freight Forwarding Contract or in lieu of a freightforwarding claim; Damage Event means, when,due to an external process, several claimants raiseclaims on the basis of several Freight ForwardingContracts.
(1.6) Dangerous Goods
Dangerous Goods are goods that have the potentialto endanger people, Vehicles or legal interestsof third parties during the course of standard transportation,warehousing or other activities. In particular,hazardous goods are defined as goods thatfall into scope of application of statutes andregulations relating to hazardous goods, such asprovisions covering dangerous materials, water orgarbage.
(1.1) Delivery
The term of Delivery includes also the delivery inthe warehouse business.
(1.13) Freight Forwarder
Legal person, which concludes a Freight ForwardingContract with the Principal. Freight Forwardersare particularly carrier according to section 407,Freight Forwarder according to section 453, warehousekeeper according to section 467 and seafreight carrier according to sections 481, 527 HGB.
(1.14) Freight Forwarding Contracts (“Verkehrsverträge”)
Freight Forwarding Contracts undertaken by theFreight 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 forwardingbusiness, such as customs handling, tracking ofgoods or cargo handling.These contracts also apply to all typical logisticalservices included in freight forwarding, if theseare in relation to the transport or warehousingof goods, in particular to activities such as thecreation of loading units, consignments, labelling,weighing of goods and returns processing.Contracts about the presentation of manned motorVehicles for use on instruction by the Principal shallalso be deemed as Freight Forwarding Contracts(“Lohnfuhrverträge”).
(1.12) Interfaces
After acceptance and before Delivery of the goodsby the Freight Forwarder, Interfaces are defined asany transition of the goods from one legal personto another, any transhipment from one Vehicle toanother, any (temporary) storage.
(1.7) Loading Means
Means for the aggregation of Packages and for thecreation of loading units, such as pallets, container,swap trailers, bins.
(1.16) Material Contractual Obligations
Material Contractual Obligations are defined asthose that initially enable the contractually agreedfulfilment of the Freight Forwarding Contract and onwhich the contracting partner is entitled to reasonablyrely on.
(1.10) Packages
Single items or units formed by the Principal forthe fulfilment of the order with or without LoadingMeans, which the Freight Forwarder must handle asone ensemble (freight item as defined by sections409, 431, 504 German Commercial Code (HGB).
(1.8) Place of Loading/Discharge
The postal address, if the parties have not agreed ona more precise location.
(1.19) Point of Time
Agreed Point of Time for the arrival of the FreightForwarder at the Place of Loading or Place of Discharge.
(1.2) Principal
Legal person which concludes a Freight ForwardingContract with the Freight Forwarder.
(1.15) Shipper
Legal Person, which hands over the goods fortransportation according to the Freight ForwardingContract or on a valid instruction.
(1.3) Theft-Sensitive Goods
Theft-Sensitive Goods are those exposed to anincreased risk of robbery and theft, such as money,precious metals, jewellery, watches, precious minerals,art, antiques, check books, credit cards and/orother payment means, stocks and security papers,documents, spirits, tobacco, entertainment electronicgoods, telecommunications goods, IT equipmentand accessories as well as smart cards.
(1.18) Time Frame
Agreed Time Frame for the arrival of the Freight Forwarderat the Place of Loading or Place of Discharge.
(1.9) Time of Performance
The time (date, time of day) up to a particular performancemust be taken place, for example a TimeFrame or Point of Time.
(1.17) Valuable Goods
Good, at the time and place of taking over, with anactual value of at least 100 Euro/kg.(1.5) VehicleMeans of transport for the transportation of goodson traffic routes.
2. Scope of application
2.1 The ADSp cover all Freight Forwarding Contractsundertaken by the Freight Forwarder as contractor.
2.2 Statutory provisions which cannot be modified bypre-formulated standard terms and conditions takeprecedence over the ADSp.2.3 The ADSp do not apply to businesses that are exclusivelydedicated to:
2.3.1 packaging,
2.3.2 transportation and warehousing of towed or salvagedgoods,
2.3.3 transportation and warehousing of removal goodsaccording to section 451 HGB,
2.3.4 storage and digitalisation of files; files are all types ofembodied and digitalised business papers, documents,data storage mediums and similar objects for informationcollection,
2.3.5 abnormal and heavy-load transports, which requirea transportation regulation permission or exception,crane services and associated assembly work,2.4 The ADSp do not apply to Freight ForwardingContracts with consumers as defined in Section 13German Civil Code (BGB).
3. Obligation of the Principal regarding placingof orders, information requirements, specialgoods
3.1 The Principal shall timely inform the Freight Forwarderabout all essential parameters known to himaffecting the carrying out of the order.These include
3.1.1 addresses, type and quality of the goods, the grossweight (including packaging and Loading Means ofthe Principal) or otherwise specified quantities, marks,numbering, quantities and type of Packages, specificcharacteristics of the goods (such as live animalsand plants, perishability), the value of the goods (forexample for customs purposes or the insurance ofgoods according to clause 21 ADSp) and Deliverytimes,
3.1.2 all public-legal duties and safety regulations, such asduties relating to customs, foreign trade regulations(particularly those relating to goods and people aswell as specific country embargos) and legal safetyobligations.
3.1.3 in case of carriage of goods by sea, all relevant datain the compulsory form relating to safety statutes(e. g. International Convention for the Safety of Life atSea [SOLAS]).
3.1.4 intellectual property rights of third parties, such astrademark and license limitations which are connectedto the possession of the goods, including legalor regulatory hindrances capable of prejudicing theprocessing of the order.
3.1.5 specific technical requirements for the means oftransport and particular cargo securing means to besupplied by the Freight Forwarder.
3.2 In case of Dangerous Goods, the Principal mustinform the Freight Forwarder in due time and in textform about the quantity and specific nature of thehazard including – if required – the necessary safetymeasures. If Dangerous Goods fall into scope of thelaw on the transport of dangerous goods (Gesetzüber die Beförderung gefährlicher Güter [GGBefG]) orif other transported and stored goods fall into scopeof other Dangerous Goods or garbage related statutesor regulations, the Principal must provide the relevantinformation, in particular the classification accordingto the relevant Dangerous Goods laws, and, at thelatest, during the handover of the goods, supply therequired documentation.
3.3 In case of Valuable or Theft-Sensitive Goods, thePrincipal must inform the Freight Forwarder in textform regarding the type and value of the goods andthe current risks involved to enable the Freight Forwarderto assess the acceptance of the order or takeappropriate measures for the safe and damage-freecompletion of said order. In case of acceptance ofthe order, the Freight Forwarder is obliged to undertakeappropriate safety measures for protecting thegoods.
3.4 The Principal is responsible for supplying the FreightForwarder with all information, certificates and otherdocumentation required, such as customs classification,for the correct processing of customs or otherstatutorily required handling of the goods, including,but not limited to, security checks for air freight shipments.
4. Rights and duties of the Freight Forwarder
4.1 The Freight Forwarder shall act in the interest of thePrincipal, check the placed order for obvious faultsand immediately inform the Principal, if required,about all dangers known by the Freight Forwarderfor the fulfilment of the order. If required, the FreightForwarder shall ask for instructions.
4.2 The Freight Forwarder takes care that the Vehicles,loading safety means and, if their presentation isagreed, Loading Means are in a technically perfectcondition, comply with statutory provisions and therequirements of the Freight Forwarding Contract.Vehicles and Loading Means shall be equipped withthe typical appliances, equipment or methods for theprotection of the goods, in particular loading safetymeans. Vehicles shall have low emissions and noiseas well as low energy consumption.
4.3 The Freight Forwarder shall deploy reliable, appropriateand, for the particular task in question, suitableand duly employed, qualified and trained drivers and,if required, with a driver certification.
4.4 On foreign premises, the Freight Forwarder shallcomply with the house rules, plant or constructionsite regulations in force, if they were announced tothe Freight Forwarder. Section 419 HGB remainsunaffected.
4.5 The Freight Forwarder is entitled to make customsclearance dependent on issuance of a written powerof attorney that enables direct representation.
4.6 If the Freight Forwarder is assigned with the crossbordertransportation of the goods or the import orexport customs clearance, the Freight Forwarder is,in case of doubt, also entitled to act in regards to thecustoms or other statutorily required handling of thegoods, if the transport of the goods to the agreeddestination would be impossible without such action.The Freight Forwarder is hereby entitled
4.6.1 to open packaging whenever such action is necessaryto comply with statutorily required controls (forexample, Freight Forwarder as regulated agent), and,subsequently, to undertake all measures necessary tocomplete the order, such as repackaging the goods.
4.6.2 to advance payments required by customs.
4.7 In case of lost or damaged goods or for delay indelivery and upon request by the Principal or Consignee,the Freight Forwarder must procure immediatelyall required and known information for securing theircompensation claims.
4.8 In the absence of a separate agreement in the ordersupplied to the Freight Forwarder, the service doesnot include:
4.8.1 the supply or replacement of pallets or other LoadingMeans,
4.8.2 the loading and unloading of goods, unless otherwiseindicated by circumstances or common practice.
4.8.3 a transhipment ban (section 486 HGB does not apply),
4.8.4 the allocation of a shipment tracking system, unlessit is in line for this sector of industry, whereas clause14 remains unaffected.
4.8.5 returns, detours and hidden additional cargo.If in deviation to the actual order, one or morePackages are handed over and accepted for transportationby the Freight Forwarder, then the FreightForwarder and the Principal conclude a new FreightForwarding Contract on these goods. In case ofreturns or hidden additional cargo and in absence ofa separate agreement, the terms and conditions ofthe original Freight Forwarding Contract will apply.Clause 5.2 remains unaffected.
4.9 Further service and information obligations, for examplequality management measures and their auditing,monitoring and evaluation systems as well as keyperformance indicators need to be expressly agreed.
5. Contact person, electronic communicationand documents
5.1 Upon request of a contracting party, each side willnominate one or more contact persons to receiveinformation, explanations and enquiries regarding thefulfilment of the contract and exchange names andaddresses. This information needs to be updated incase of changes. If either contracting party fails toprovide details for a contact person, then the relevantsignatory to the contract shall be the designatedcontact person.Information obligations, which exceed the obligationin statutory provisions, for example measures of theFreight Forwarder in case of disruptions, in particular,an imminent delay during takeover or Delivery, obstaclesto carriage and Delivery, damages to the goodsor other disruptions (emergency concept) need to beagreed separately.
5.2 In the absence of an expressly agreement, contractualstatements by warehousing or transport personnelrequire approval from the respective party to beconsidered valid.
5.3 The Principal takes care of the required declarationsto be supplied by the Principal’s Shipper or Consigneeduring the fulfilment of the Freight Forwarding Contractat the Place of Loading and Place of Delivery,and of real actions, such as Delivery and receipt ofthe goods.
5.4 If agreed between the Principal and the FreightForwarder, the parties will transmit and receive theshipping details, including the creation of the invoice,by electronic means (electronic data interchange/remote transmission).The transmitting party carries the responsibility forthe loss, completeness and validity of any sent data.
5.5 In case of an agreement according to clause 5.4ADSp, the parties ensure that their IT system isready for operation and that data can be processedappropriately, including the usual safety and controlmeasures, to protect the electronic data exchangeand prevent unauthorized access, modification, lossor destruction by third parties. All parties are obligedto give timely notification of any changes to their ITsystems that could affect the electronic data interchange.
5.6 Electronic or digital documents, in particular proofof deliveries, shall be considered equal to writtendocuments.Furthermore, each party is entitled to archive writtendocumentation in exclusively electronic or digitalformat and to eliminate originals, the latter always inconsideration of the legal regulations regarding thesame.
6. Packaging and labelling duties of the Principal
6.1 The Principal shall pack the goods, and if required,clearly and permanently label all goods with theirrequired identifications, such as addresses, marks,numbers and symbols relating to the handling andcharacteristics of the goods. Old identification marks must be removed or garbled. The same applies forPackages.
6.2 Furthermore, the Principal is responsible for:
6.2.1 identifying all Packages belonging to the same shipment,to ensure easy recognition,
6.2.2 ensuring that Packages, if required, cannot be accessedwithout leaving external traces.
7. Securing cargo and supervisory duties ofthe Freight Forwarder
7.1 In all cases where loading and discharge occurs atmore than one location, the Freight Forwarder takescare for the security of cargo until the last Place ofDischarge and at all times, but not before the completionof loading in a transport safety manner.
7.2 The Freight Forwarder shall conduct controls at allInterfaces. The Freight Forwarder shall check completenessand identity of the goods, their apparentgood order and condition as well as all seals, locksand record any irregularities.
8. Receipt
8.1 The Freight Forwarder shall issue a certificate ofreceipt with reservations noted, if necessary.In case of doubt, the certificate of receipt issued bythe Freight Forwarder only confirms the number andtype of Packages, but not their content, value, weightor other measurements.
8.2 Previously loaded or sealed loading units, such ascontainers or swap bodies and previously transmitteddata, the accuracy of the certificate of receiptregarding quantity and type of loaded Packages isvitiated, if the Freight Forwarder notifies the Principalon differences (in quantity) or damages, immediatelyafter unloading the loading unit.
8.3 The Freight Forwarder must request proof of Deliveryfrom the Consignee in form of a Delivery receiptlisting all Packages as outlined in the order or otheraccompanying documentation. Should the Consigneerefuse to issue a Delivery receipt, the Freight Forwardermust request instructions from the Principal.The Principal can demand the Delivery receipt for aperiod of one year after the goods have been delivered.
8.4 As receipt for takeover or Delivery of the goodscounts any signed document which gives evidencefor fulfilment of the order, such as Delivery notes,forwarders certificate of receipt, consignment note,sea way bill, consignment bill or a bill of lading.
8.5 The certificate of receipt and Delivery receipt canalso be issued electronically or digitally, unless thePrincipal requests the issuing of a consignment note,sea way bill, consignment bill or bill of lading.
9. InstructionsUpon conclusion of the contract, the Freight Forwardermust follow all instructions regarding the cargo,unless carrying out such instructions poses disadvantagesto his business or damages to consignmentsof other Principals or Consignees. If the Freight Forwarderintends not to follow an instruction, then theFreight Forwarder shall inform the instructor immediately.
10. Freight payment, cash on Delivery
10.1 Notifications by the Principal to the effect that theorder should be executed freight collect or for the accountof the Consignee or a third party, for exampleaccording to Incoterms, do not exempt the Principalfrom his obligation to pay the Freight Forwarder itsremuneration and outlays, including freights, customscharges and other expenses. Freight collect instructions,for example according to section 422 HGB,Article 21 CMR, remain unaffected.
11. Default of loading and Delivery times,demurrage
11.1 In cases where the Principal must load or unload theVehicle, the Principal has the obligation to do so withinthe agreed, otherwise within a reasonable loadingand unloading time.
11.2 If, in case of carriage of goods by road, the partiesagree on a Time Frame or Point of Time or is suchnotified by the Freight Forwarder without objectionby the Principal, Shipper or Consignee, the loadingand unloading time – irrespective of the number ofshipments per Place of Loading and Discharge – forfull truck loads, but with the exception for bulk goods,for Vehicles with 40 tons maximum permissibleweight shall be maximum 2 hours per loading andper unloading in general. The times shall be reducedappropriately for Vehicles with a lower maximumpermissible weight in the individual case.
11.3 The loading or unloading time begins with the arrivalof the road vehicle at the designated Place of Loadingand Discharge (for example, by notifying the gatekeeper), and ends when the Principal has completedall its duties.However, if a Time of Performance has been agreedfor the arrival of road Vehicles at the Place of Loadingand Discharge, the loading and unloading time doesnot begin before the agreed presentation time.
11.4 In cases where the contractually agreed loading andunloading time are not maintained due to reasonsbeyond the Freight Forwarder’s scope of responsibility,the Principal must pay the Freight Forwarder theagreed, otherwise commonly accepted, demurragefees.
11.5 The aforementioned provisions apply accordingly,when the Freight Forwarder is obliged to load andunload the goods, and when the Principal is exclusivelycommitted to prepare the goods for loading orto accept them after unloading.
12. Performance hindrances and force majeure
12.1 If the Freight Forwarder is unable to take over thegoods, or unable to take them over on time, theFreight Forwarder must immediately notify and seekinstructions from the Principal. Section 419 HGBapplies accordingly. The Principal remains entitled toterminate the Freight Forwarding Contract, whereasthe Freight Forwarder is not entitled to ask for compensationaccording to section 415 (2) HGB.
12.2 Performance hindrances that do not fall within thescope of responsibility of either contracting party,free said parties of their performance duties for theduration of the hindrance and the extent of its impact.Such performance hindrances are defined as forcemajeure, civil unrest, war or acts of terrorism, strikesand lock-outs, transport route blockades, and anyother unforeseeable, unavoidable and serious events.In case of a performance hindrance, the contractingparties are obliged to notify the other party immediately.Additionally, the Freight Forwarder is obliged toask the Principal for instructions.
13. Delivery
13.1 If, after arrival at the Place of Discharge, it becomesapparent that the unloading cannot take place withinthe time of unloading, the Freight Forwarder must immediatelynotify the Principal and request for relevantinstructions. Section 419 HGB applies accordingly.
13.2 If, the Freight Forwarder cannot adhere to the agreedTime of Performance or – in the absence of an agreement– to a reasonable time for Delivery, the FreightForwarder shall request instructions from the Principalor the Consignee.
13.3 Should the Consignee not be located at his residence,business premises, or in an institution in which he isa resident, the goods, always assuming there are noobvious doubts regarding the entitlement to receivethe goods of the person in question, may be deliveredto:
13.3.1 at the residence: on an adult family member, a personemployed by the family or an adult resident permanentlysharing the accommodations,
13.3.2 at business premises: on a person employed there,
13.3.3 in institutions: on the head of the institution or a correspondinglyauthorised attorney-in-fact.
13.4 In cases where the Freight Forwarder and Principalhave agreed on Delivery without the presentationto an actual person (for example, night, garage orassembly line deliveries), Delivery is deemed to havetaken place on the actual physical deposit of thegoods at the agreed location.
13.5 The Delivery can only take place under supervision ofthe Principal, Consignee or a third party authorisedfor reception. Clauses 13.3 and 13.4 ADSp remainunaffected.
14. Information and restitution duties of theFreight Forwarder
14.1 The Freight Forwarder is obliged to provide thePrincipal with the required reports and, on demand, toprovide information on the status of the transactionand after carrying out the business to render accountfor it. However, the Freight Forwarder is only obligedto reveal costs, if the Freight Forwarder works onPrincipal’s account.
14.2 The Freight Forwarder has the duty to give anythingto the Principal what he has received by carrying outand managing the business.
15. Warehousing
15.1 The Principal has the duty to pack and mark thegoods, if required, and to make available all documentsand information to the Freight Forwarder foran appropriate storage.
15.2 The Freight Forwarder decides in its sole discretion ifwarehousing takes place in its own facilities or, if nototherwise agreed, those of third parties. Wheneverwarehousing takes place at third party warehouses,the Freight Forwarder must supply timely informationregarding its name and location to the Principal or,whenever a warehouse warrant has been issued, tomake a note of the information on the same.
15.3 The Freight Forwarder takes care for the duly maintenanceand care of the warehouse and storage space,the drives on the premises and for securing thegoods, in particular theft protection. Additionalsecurity measures, for example measures exceedingthe statutory fire protection laws, must be expresslyagreed.
15.4 Unless otherwise agreed:
15.4.1 takeover of the goods for warehousing begins withthe unloading of the goods from the Vehicle by theFreight Forwarder and the Delivery ends with thecompletion of the loading of the goods by the FreightForwarder.
15.4.2 inventory management is via the Freight Forwarder’sinventory accounting,
15.4.3 there is one physical inventory inspection per year.On instruction of the Principal, the Freight Forwardershall conduct further physical inventories againstcompensation.
15.5 With taking over the goods and if appropriate examinationmeans are available, the Freight Forwarder isobliged to conduct a receiving inspection on types,quantities, marks, numbering, quantities of Packagesas well as outer visible damages according to section438 HGB.
15.6 The Freight Forwarder shall conduct regular inspectionswith appropriate personnel for securing thegoods.
15.7 In case of stock shortfall and imminent changes atthe goods, the Freight Forwarder shall immediatelyinform the Principal and ask for instructions. Section471 (2) HGB remains unaffected.
15.8 Additional service and information obligations requirean explicit agreement.
16. Remuneration
16.1 The services according to the Freight ForwardingContract are compensated with the agreed remuneration,if this remuneration includes the costs for transportationand warehousing. Supplemental claims forcosts occurred during regular transportation or warehousingand which were foreseeable at the time ofthe offer, cannot be claimed separately, unless otherwiseagreed. Calculation errors are at the expense ofthe calculator. Sections 412, 418, 419, 491, 492, 588until 595 HGB and comparable provisions of internationalconventions remain unaffected.
17. Compensation claims and right of recourse
17.1 The Freight Forwarder is, if not caused by his fault,entitled to ask for refund of expenses properly incurred,in particular those relating to average contributions,detention or demurrage charges, includingadditional packaging for protecting the goods.
17.2 If the Principal instructs the Freight Forwarder toreceive goods and if, on reception of the goods by theFreight Forwarder, freight, cash on delivery, customsduties, taxes, or other expenses and charges aredemanded, the Freight Forwarder is entitled – butnot obliged – to pay these costs according to the circumstanceshe has properly assessed, and to claimreimbursement from the Principal, unless otherwiseagreed.
17.3 On request, the Principal must immediately indemnifythe Freight Forwarder for expenditures, such asfreight, average contributions, customs duties, taxesand other fees demanded from the Freight Forwarder,in particular acting as a person authorised to disposeor as possessor of goods belonging to third parties,unless the Freight Forwarder is responsible for theiraccrual.
18. Invoices, foreign currencies
18.1 Remuneration claims of the Freight Forwarder requirethe reception of an invoice or payment schedule inaccordance to statutory requirements. If not otherwiseagreed, the maturity is not dependent on presentinga delivery receipt in case of an uncontestedDelivery.
18.2 Regarding foreign Principals or Consignees, theFreight Forwarder is entitled to ask whether to receivepayment in the relevant foreign currency or in Euro(EUR).
18.3 If the Freight Forwarder owes foreign currency orhas advanced foreign currency amounts, the FreightForwarder is entitled to ask for payment in either therelevant foreign currency or in Euro (EUR). In case ofEuro (EUR), currency conversion is made accordingto the official exchange rate on the day of payment,which shall be evidenced by the Freight Forwarder.
18.4 Payment according to a credit memo procedure mustbe expressly agreed. In case of doubt, all credit memosare to be issued immediately, upon completionof services. Clause 18.1 first sentence ADSp is notapplicable for credit memo procedures.
19. Set-off, RetentionIn the face of claims arising from the Freight ForwardingContract and associated non-contractualclaims, set-off or retention is only permitted whenthe claim is due, uncontested, ready for decision orlegally established.
20. Lien and retention rights
20.1 The Freight Forwarder is entitled to secure itsdemands arising from freight forwarding servicesaccording to the legally permitted regulations regardinglien and retention rights.
20.2 Lien rights can be exercised according to the legallyestablished provisions, providing:
20.2.1 the threat and the required notifications about theexercise of the legitimate lien and the sale of thepledged items by the carrier shall be forwarded to theConsignee,
20.2.2 the time limit of one month as specified in section1234 BGB is superseded by a time limit of one week.
20.3 The Principal is entitled to prohibit the exercise of thelien 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 thegoods (e. g. goods in transit or warehousing insurance)with an insurer of its choice, when the Principalassigns the Freight Forwarder to do so prior to handingover the goods.
21.2 The Freight Forwarder shall arrange insurance forthe goods, if this is in the interest of the Principal.The Freight Forwarder can assume that insurance isin the interest of the Principal, in particular when:
21.2.1 the Freight Forwarder has arranged insurance for aprevious Freight Forwarding Contract for the samePrincipal in the course of an ongoing business relationship,
21.2.2 the Principal has declared a value of the goods for thepurpose of insurance.
21.3 The assumption that insurance is in the interest ofthe Principal according to clause 21.2 ADSp is discounted,in particular when:
21.3.1 the Principal has prohibited the purchase,
21.3.2 the Principal is a Freight Forwarder, carrier or warehousekeeper.
21.4 In case of purchasing insurance cover, the FreightForwarder shall observe instructions of the Principal,in particular the amount insured and risks to becovered. In the absence of such an instruction, theFreight Forwarder must assess the type and scope ofinsurance in its sole discretion and purchase insurancecover at the usual market conditions.
21.5 If, due to the nature of the goods to be insured, or foranother reason, the Freight Forwarder is unable topurchase insurance cover, the Freight Forwarder willnotify the Principal immediately.
21.6 If the Freight Forwarder purchases an insurance afterconclusion of the Freight Forwarding Contract andupon instruction of the Principal or recovers a claimor acts otherwise on behalf of the Principal regardingcarrying out insurance claims or averages, the FreightForwarder is entitled to a reasonable remunerationaccording to local standards, otherwise, an appropriateremuneration, in addition to the compensation ofits 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 accordingto the statutory provisions. However, the followingprovisions shall apply, in as much as they do not contradictmandatory regulations, in particular the law ofpre-formulated terms and conditions.
22.2 In all cases, where the Freight Forwarder is faultbasedliable for losses or damages to the goods(“Güterschaden”) according to clause 23.3 and 24,the Freight Forwarder must only pay the value andreimburse the costs according to sections 429, 430,432 HGB instead of damage compensation.
22.3 In case of inventory divergences, the Freight Forwarderis entitled to balance the inventory with positivestock balance differences and stock shortfall of the same Principal for value evaluation in cases as setout in clause 24 ADSp.
22.4 If the Freight Forwarder has claims, for which theFreight Forwarder is not liable for, against a thirdparty in case of damages, or in cases when theFreight Forwarder has claims exceeding the sum forwhich the Freight Forwarder is liable, the Freight Forwardermust subrogate such claims to the Principalupon request, unless the Freight Forwarder has aseparate agreement to pursue claims on behalfand at the expense of the Principal. Sections 437,509 HGB remain unaffected.
23. Liability limitations
23.1 Except in case of damages during carriage of goodsby sea or ordered warehousing, the Freight Forwarder’sliability for damages to goods is limited accordingto 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:– a carrier, as defined by section 407 HGB,– acting as principal (“Spediteur im Selbsteintritt”),fixed costs freight forwarder (Fixkostenspediteur)or consolidator (“Sammelladungsspediteur”),according to sections 458 to 460 HGB or– care, custody and control Freight Forwarder (“Obhutsspediteur”)according to Section 461 (1) HGB.
23.1.2 2 instead of 8.33 SDR for every kg, whenever thePrincipal has agreed to a Freight Forwarding Contractwhich is subject to a variety of transport means andincludes carriage of goods by sea and an unknowndamage place.In case of a known damage place, the liability accordingto section 452a HGB is subject to the liabilityexclusion and liability limitation of the ADSp.23.1.3 Whenever Freight Forwarder’s liability according toclause 23.1.1 ADSp exceeds an amount of EUR 1.25million per Damage Case, this liability is furthermorelimited to EUR 1.25 million per Damage Case, or to 2SDR for every kg, whichever amount is higher.
23.2 The liability of the Freight Forwarder for damagesto the goods in its custody for Freight ForwardingContracts which are subject to carriage of goods bysea and cross-border transportation is limited to themaximum statutory liability amount. Clause 25 ADSpremains unaffected.
23.3 For all cases out of scope of clauses 23.1 and 23.2,such as section 461 (2) HGB, 280 ff BGB, the liabilityof the Freight Forwarder for damages to goods islimited according to section 431 (1), (2) und (4) HGBto a maximum of:
23.3.1 2 SDR per kg for Freight Forwarding Contracts relatingto carriage of goods by sea or a transportation bya variety of transport means, but including carriage ofgoods by sea,
23.3.2 8.33 SDR per kg for all other Freight Forwarding Contracts.
23.3.3 Furthermore, the Freight Forwarder’s liability is limitedto the maximum amount of EUR 1.25 million for eachcase of damage.
23.4 The liability of the Freight Forwarder for all other damagesthan damages to the goods with the exceptionof damages during ordered warehousing or damagesto personal injury or goods of third parties is limitedto three times the amount that would be payable forthe loss of goods according to clauses 23.3.1 or23.3.2 ADSp. Furthermore, the Freight Forwarder’sliability is limited for each case of damage to themaximum amount of EUR 125,000.
23.4.1 Sections 413 (2), 418 (6), 422 (3), 431 (3), 433, 445(3), 446 (2), 487 (2), 491 (5), 520 (2), 521 (4), 523 HGBas well as any relevant mandatory liability provisionsin international conventions shall remain unaffected.
23.4.2 Clause 23.4 ADSp is not applicable on statutory provisions,such as Article 25 Montreal Convention (MC),Article 5 Règles uniformes concernant le Contrat detransport international ferroviaire des marchandises(CIM) or Article 20 Convention de Budapest relativeau contract de transport de marchandises en navigationintérieure (CMNI), which extend Freight Forwarder’sliability or permit to extend.
23.5 If Freight Forwarder’s liability according to Articles23.1, 23.3 and 23.4 ADSp exceeds the amount of EUR2.5 million per Damage Event, then Freight Forwarder’sliability is, irrespective of how many claims arisefrom a single Damage Event, further limited to amaximum amount of EUR 2.5 million per DamageEvent or to 2 SDR per kg for lost or damaged goods,whichever amount is the higher. When there is morethan one claimant, the Freight Forwarder’s liabilityshall 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 theFreight Forwarder for damages to goods is limited to:
24.1.1 8.33 SDR for every kg corresponding to sections431 (1), (2) and (4) HGB,
24.1.2 a maximum of EUR 35,000 per Damage Case.
24.1.3 EUR 70,000 per year, in cases where the damageclaimed by the Principal bases, contrary to clause24.1.2 ADSp, on a difference between calculatedstock and actual stock of the inventory, irrespectiveof the amount and type of inventory taking and theamount of Damage Cases causing the difference ininventory.
24.2 Upon payment of an agreed supplement and priorto warehousing of goods, the Principal can specify avalue in text form for an increased liability that differsfrom the maximum amounts stipulated in clause24.1. In this case, the specified value replaces therelevant maximum amount.
24.3 In case of warehousing upon instruction, the FreightForwarder’s liability for other damages, excludingdamages to personal injury or goods of third parties,is limited to EUR 35,000 per case of damage.
24.4 In case of warehousing upon instruction, but excludingpersonal injury or damages to goods of third parties,the Freight Forwarder’s liability is always limitedto EUR 2.5 million per Damage Event, irrespective ofhow many claims arise from a single Damage Event.When there is more than one claimant, the FreightForwarder’s liability shall be proportionate to individualclaims. Clause 24.2 ADSp remains unaffected.
25. Exclusion of liability for carriage of goodsby sea and inland waterway transportation
25.1 In accordance with section 512 (2) No. 1 HGB, it isagreed that:The Freight Forwarder in its position as carrier is notresponsible for any fault or neglect on the part ofits servants or of the ship’s company, insofar as thecorresponding damage was caused in the courseof steering or otherwise operating the ship, or wascaused by fire or explosion on board the ship andthe measures taken were not predominantly for thebenefit of the cargo.
25.2 According to Article 25 (2) CMNI it is agreed that theFreight Forwarder in its position as carrier or actualcarrier is not liable for damages and losses arisingfrom:
25.2.1 an act or omission by the master of the vessel, thepilot or any other person in the service of the vessel,pusher or tower during navigation or in the formationor dissolution of a pushed or towed convoy, providedthat the Freight Forwarder complied with the obligationsset out for the crew in Article 3 (3) CMNI, unlessthe act or omission results from an intention to causedamage or from reckless conduct with the knowledgethat such damage would probably result,
25.2.2 fire or an explosion on board the vessel, where it isnot possible to prove that the fire or explosion resultedfrom a fault of the Freight Forwarder or the actualcarrier or their servants or agents or a defect of thevessel,25.2.3 the defects existing prior to the voyage of his vesselor of a rented or chartered vessel if he can prove thatsuch defects could not have been detected prior tothe start of the voyage despite due diligence.
25.3 Clause 22.4 ADSp remains unaffected.
26. Non-contractual liabilityIn accordance with sections 434, 436 HGB, the abovementioned liability exclusions and limitations alsoapply to non-contractual claims. Clause 23.4.1 ADSpapplies accordingly.
27. Qualified fault
27.1 Liability exclusions and limitations listed in clauses22.2, 22.3, 23.3 and 23.4 in conjunction with 23.5, 24as well as 26 ADSp do not apply when the damagehas been caused by:
27.1.1 intent or gross negligence of the Freight Forwarder orvicarious agents or
27.1.2 infringement of Material Contractual Obligations,whereby such claims are limited to predictable andtypical damages.
27.2 Divergent from clause 27.1.2 ADSp, only the liabilitylimitations of clause 24.1 and 24.2 ADSp do not applyin case of gross negligent or intentional infringementsof Material Contractual Obligations only.
27.3 Sections 435, 507 HGB remain applicable within theirscope of application.
27.4 Clause 27.1 ADSp is not applicable on statutoryprovisions, such as Article 25 MC, Article 36 CIM orArticle 20, 21 CMNI, which extend Freight Forwarder’sliability, allow extending or expanding the imputationof fault of servants or third parties.
28. Liability insurance of the Freight Forwarder
28.1 The Freight Forwarder is obliged to purchase andmaintain liability insurance at the usual marketconditions with an insurer of his choice that, as aminimum, covers the ordinary liability amounts ofits freight forwarding liability according to ADSp andstatutory provisions. The agreement of maximuminsurance amounts per Damage Case, Damage Eventand year is permitted as well as the agreement ofreasonable deductibles for the Freight Forwarder.
28.2 Upon request, the Freight Forwarder is obliged toprovide evidence of the liability insurance and itsvalidity by presentation of an insurance confirmationwithin a reasonable Time Frame. In absence of sucha presentation, the Principal is entitled to terminatethe Freight Forwarding Contract extraordinarily.
28.3 The Freight Forwarder is only entitled to rely on theliability limitations of the ADSp, when the FreightForwarder provides an appropriate insurance cover atthe time of order.
29. Liability of the Principal
29.1 The liability of the Principal pursuant to sections 414,455, 468, and 488 HGB is limited to EUR 200,000 perDamage Event.
29.2 The aforementioned liability limitation does not applyin case of personal injuries, such as injury of life, bodyand health, if the damage was caused by gross negligenceor wilful intent of the Principal or its vicariousagents, or infringement of Material Contractual Obligations,whereas the latter is limited to predictableand typical damages.
30. Applicable law, place of fulfilment, place ofjurisdiction
30.1 The legal relationship between the Freight Forwarderand Principal is governed by German law.
30.2 The place of fulfilment for all involved parties is thelocation of the Freight Forwarder’s branch office dealingwith the order or the enquiry.
30.3 The place of jurisdiction for all disputes arising fromthe Freight Forwarding Contract, an enquiry or inrelation to it, is and all involved parties the locationof the Principal or Freight Forwarder’s branch officedealing with the order or enquiry, as far as all theseparties are merchants. The aforementioned place ofjurisdiction shall be deemed as an additional placeof jurisdiction pursuant to Article 31 CMR and Article46 § 1 CIM, but not in case of Article 39 CMR, Article33 MC, Article 28 Convention for the Unification ofcertain rules relating to international carriage by air(WC).
31. Confidentiality
31.1 Contractual parties are obliged to maintain confidentialityregarding all unpublished information receivedduring the execution of the Freight ForwardingContract. This information can only be used for theexclusive purpose of contract fulfilment. The partiesshall commit other legal persons with an equivalentconfidentiality obligation, if these legal persons aredeployed for contract fulfilment.
32. Compliance
32.1 The Freight Forwarder shall comply with minimumwage provisions and minimum conditions for workplacesand confirms the compliance in text formupon request of the Principal. The Freight Forwarderindemnifies the Principal for its liability for minimumwages, if the Freight Forwarder, its subcontractoror hirer during the course of fulfilment of the FreightForwarding Contract, does not pay the minimumwages and the Principal is demanded to pay.
32.2 The Freight Forwarder shall ensure in case of transportationservices, that himself or its executing subcontractor
32.2.1 possesses, within the scope of application of theGüterkraftverkehrsgesetz (GüKG), a permission accordingto section 3 GüKG, an entitlement accordingto section 6 GüKG or a community license or doesnot use such a permission, entitlement or licenseunlawfully.
32.2.2 deploys, within the scope of application of the GüKGdriving personnel, which comply with the requirementsof section 7b (1) sentence 1 GüKG, if applicable,
32.2.3 upon request provides all documents, which must becarried during transportation according to statutoryprovisions, when the Principal or third parties mustcomply with statutory controlling obligations,
32.3 In case of transportation, the Freight Forwarder orits executing subcontractor is obliged to organisethe activities of its driving personnel according to thecompulsory working, driving and recreation times.During the driving of Vehicles, alcohol and drugs aregenerally prohibited.
32.4 Both contracting parties commit to carrying out theircontractual duties and to act according to the legalregulations covering their business and to supportand obey the principles of the United Nations GlobalCompact (UNGC), the United Nations Declaration ofHuman Rights, and the Declaration of the InternationalLabour Organization regarding the 1998 Declarationon Fundamental Principles and Rights at Work,in accordance with national laws and customs. Inparticular, both parties will commit to:
32.4.1 no child or forced labour,
32.4.2 comply with the relevant national laws and regulationsregarding working hours, wages, salaries andto comply with any other obligations for employers,
32.4.3 comply with the current regulations on health andsafety at work, and to provide a safe and healthyworkplace to ensure the health of employees and toavoid accidents, injuries and work-related illness,
32.4.4 omit all discrimination based on race, religion,disability, age, sexual orientation or sex,
32.4.5 comply with international standards on corruption,such as those published in UNGC and to adhere tolocal anti-corruption and bribery laws,
32.4.6 adhere to all current environmental protection lawsand regulations,
32.4.7 engage its business partners and subcontractorsaccording to the aforementioned principles.