General Terms and Conditions of Trade (GTC) Schwertrans-Service Nöpel GmbH
§ 1 Fields of application – Contractual items
(1) Our services shall materialise exclusively on the basic of the following Terms and Conditions. These conditions shall be valid for any future transactions with business partners. Hence, at the latest our GTC shall be imbibed when services are assumed.
(2) Our AGB are valid exclusively. We shall not accept terms and conditions of business partners which conflict with or differ from our GTC. Accept for any agreed deviation which shall be confirmed in a written form. Our GTC shall also be valid if conflicting terms and conditions are known to us or our terms and conditions deviate from the contract partners, our services shall be without reservation.
(3) Our GTC shall only be valid for businesses, legal entity of a public-law institution and public law fund assets.
§ 2 Sales pitch and conclusion of contract
(1) The placement of an order shall be binding, providing no objection has been placed within the legal two week period. Previous submitted offers are subject to confirmation.
(2) Any oral agreements made from agents or auxiliary personnel, shall only be valid with written confirmation from us.
§ 3 Duty of Disclosure of the affiliate
The affiliate is under obligation when an order is placed, to inform us about, departure, place of destination, technical data about loading-vehicle and vehicles, especially length, width, height, weight, as well as description of load and vehicle, time of the planned heavy haulage, also to inform us in written form about which official transport-authorization shall be requested. Moreover, the affiliate is obliged to inform us in written form, immediately upon request, of any additional data required for the realization.
§ 4 Contractual-substance
(1) All permissions und exception permits for the realization of the wide-load and / or heavy-load transport and carriage from loads with excessive-height measurements and /or weight in Germany, in accordance with § 29 Par. 3 Highway Code, § 70 Road Traffic Licensing Regulation, § 46 Par. 1 S. Nr. 5 Highway Code, § 46 Par.1 Nr, will be applied for in the name and invoiced to the contracts partners company. The same is true for permissions und exception permits for foreign countries.
(2) Providing that we take on the business of disposition and escort of the transport, any additional accessory obligations shall not be accepted by us which may arise within the disposition and escort the transport, particularly liabilities for, post-steering of the transporter, accessory by loading and unloading, providence for structural facility along the permitted / chosen route and also compliance with all permitted routes.
(3) Traffic re-routing measures which are required for execution of transportation shall be applied for in a separate application by the contracting company.
(4) All damages that may arise during transportation, particularly roadway damage, public amenities i.e. railway facilities, railway vehicles, other railway properties / land. The affiliate is under obligation to dispense us of any liability when claims of compensation by a third party are derivated.
(5) The affiliate has no right to place a claim if the lay out and/or conditions of the route do not correspond with the requirements of the transportation.
(6) The affiliate avows, imminent to the transport that all sizes and weights of the transport vehicle coincides with regulations and conditions of allocated permits, to avoid deviation which includes any deviation of number plates. The affiliate also avows, in case of transgression i.e. permitted size and weights etc. Deviation of the number plates for the proposed transport shall not be conducted; hence the allocated permits shall also not be availed. We convey any and all control onuses that arise imminent to the transport, with regard to the number plates, the real sizes, weights of the transport vehicle. The affiliate shall take on all responsibilities concerning inspection of the number plates, sizes and weight.
(7) The affiliate avows, heretofore, that upon the execution of the heavy-load and/or wide-load transport through the authorities for loading with loads with excessive-height measurements and /or weight given in the exception permits, number plates, size and weight shall be upheld.
(8) We can not guarantee any permissions und exception permits for the transport. Nor that these are available within the time stipulated. Neither, are we liable for the accompanying transporters arrival within the time stipulated.
§ 5 Prices, conditions of payment
(1) Prices that have been stated in the order confirmation are binding. The value added tax is exclusive of our prices; they shall be accounted in the invoice in coherence with the law on that given date stated in the invoice.
(2) Third-party costs, such as expenditure for static calculation, Police escort, fees for permissions und exception permits, penalty (charge), costs for structural facility along the permitted / chosen route, certification of third-parties (e.g. German Rail), also expert reporting third-party (e.g. TÜV-certified) are not included in our stated prices, and shall be paid additionally by the contractual partner. If any additional costs occur, these costs shall be reimbursed.
(3) In the absence of any written agreement, payment shall be due without discount.
(4) Providing the acknowledgement of order is confirmed, the net financial remuneration (without discounts) within 30 days from invoiced date. The time allowed for payment shall be considered valid when the payment is at our disposal within the permitted time (30 days).
(5) Payment of the contractual partner can be offset against outstanding amounts, (even if stated different in contract contractual partner).
(6) Cheques and – bill of exchange (if agreed) shall be accepted in payment. Discount – and collection charges providing interest shall be reimbursed without delay.
(7) In the event of default, partly or wholly, the contractual partner shall be changed without prejudice to other laws. Henceforth default interest shall be charged at 8 percent above the basic rate of interest, providing higher costs have not been caused which shall be verified.
(8) Should the contractual partner cease payment, due to liabilities exceeding the assets, insolvency proceedings, or the contractual partner has redemption of cheques and – bill of exchange, accordingly shall the entire sum be due immediately. This is also true for substantial deterioration of economical circumstances of the contractual partner. In this case we are entitled to sufficient funds for securities or to cancel the contract.
(9) Right of set-up abide, shall the contractual partner’s counterclaim be legally valid, uncontended or accredited by us. Right of retention by the contractual partner is ruled out,
providing the counterclaim originates from the same contractual circumstances and is uncontended or legally valid.
(10) “ Firma Nöpel …. is entitled to assign receivables against customers seated in Germany and other countries which belongs to the EU, for refinancing purposes to the abcfinance GmbH, Kamekestr. 2-8 in 50672 Cologne, GERMANY. The buyer will be communicated at the conclusion of the contract whether the demand can be ceased. In this case, payments with guiltfree action can only be given to the abcfinance GmbH. The bank connection will be communicated to the buyer at the contract’s conclusion.It is the material right of the Federal Republic of Germany. The UN agreement over contracts concerning the international purchase of goods (CISG) as well as foreign country rights cannot be applied”
§ 6 Time of Performance
(1) We shall not be liable for the receipt of the permits and that these are available within the time stipulated, police escort, or the transporters arrival within the time stipulated. Fixed dates and deadlines are as a matter of principle not authorized.
(2) Shall we be timelier inhibited from our performance due to mobilization, war, commotion, strike, lockout, interruption of operations, fire, natural disasters, transport obstructions, amendments in statutory regulations, regulatory action or bylaw or any other unforeseeable events that lie beyond our control, which may inhibit and therefore prolong the time of performance and the duration of the delay.
(3)Compliance with customer specifications shall be premising to the timelier and duly performance of the affiliates duties. Defence of rights for incomplete conditions of contract shall be reserved.
(4) Should our contractual partner default in acceptance, or contravene culpably cooperation duties, we shall be entitled compensation for any damages, including additional expenditures. Ulterior proceedings and claims shall remain reserved.
(5) We shall be entitled to parcel performance of services at any time, unless the performance of the services are not of any interest to the contractual partner.
§ 7 Commissioning of Subcontractors
We are permitted to entrust additional companies with the fulfilment of our contractual agreements, providing no other agreement has been made. Our position as contractual partner shall remain unaffected.
§ 8 Assignment for Security
(1) The contracting party cedes to all demands of the invoiced total amount, (including
value added tax) for our demands, from the contract of employment implied between the contracting party and us, compared to its respective client from our services-from the underlying business of the contracting party with its client. For the collection of this demand, the contracting party – up to revocation – remains authorized also after the transfer. Our authorisation to collect the demand remains untouched. We commit ourselves however, to draw in the demand, not as long as the contracting party follows its liabilities, does not turn out in delay of payment and in particular, no request for opening of a comparison or insolvency proceedings is posed, or cessation of payment is present. If this is however, the case, then the contracting party shall announce at our request, the debtor and the demands to us. The contracting partner shall announce all necessary data and the corresponding documents for collecting the demands. The affiliate has to inform the debtor (third party).
(2) We commit ourselves to that extent, of being entitled security upon the requests of the contracting party, when the realizable value of our collateral exceeds the demands, which can be secured at more than 10%; the selection of the collateral which can be released is incumbent on us.
§ 9 Liabilities
(1) We are liable according to legal regulations, providing the affiliate claim damages, based on resolution or wanton negligence, including resolution or wanton negligence of our sub-contractors or vicarious agents. Insofar that no culpable violation of a contract has been charged, the compensation claim shall be limited to the foreseeable, typically arisen damage.
(2) With the culpable injury of cardinal obligations, i.e. of obligations which from the nature of the contract and in the case of breach of contract purpose is endangered, as well as the reimbursement of damages caused by default (§ 286 German Civil Code) in accordance with the legal regulation; also in these cases, the compensation claim shall be limited to the foreseeable, typically arisen damage.
(3) Insofar as, substitution of the damage is entitled to the contracting party, instead of the contractual service, the compensation claim shall be limited to the foreseeable, typically arisen damage.
(4) The liabilities due to injury to life, body or health remains unaffected. In case of injury to life, body or health the legal regulation shall apply. The abovementioned, limitation of liability shall not apply in these cases.
(5) Foregoing liability proceeding for indemnity which is without consideration for the legal nature raising of a claim shall be excluded. This is also true for indemnity claims which occur during conclusion of contract, due to other obligation damages or tort claim on replacement of damages to property according to article § 823 German Civil Code.
(6) The astriction according to Par. (5) are also valid when the contractual partner requests compensation of damage instead of obligation reimbursement of wasted expenditure.
(7) Insofar as the compensation claims are excluded or limited, this is also true for personal compensation claims of our employees, staff, agents and assistants.
§ 10 Execution of non-contractual services
(1) Our employees shall not be obligated to carry out instructions given by the carriers of the accompanying transporters or any other on site persons.
(2) Providing the requests of the carrier of the accompanying transports or other third party contractual partners are not subject to our contractual agreement, it shall be open for our employees to carry out the request or to refuse. Services that are not covered by the contract agreement are; post-steering of the transporter and the loading and unloading of the transporter.
(3) Providing the requests of the carrier of the accompanying transports or other third party contractual partners which are not part of our contractual agreement and are carried out by our employees, these additional operations shall be invoiced to the affiliate.
(4) Any injuries that may occur to our employees during the execution of the work, with reference to § 10 Par. 2 in this contract due to a culpable act of the workers or vicarious agent the contractual partners. Any damages which we thereby suffer shall be compensated by the Affiliate.
§11 Place of Jurisdiction, governing law
(1) Place of fulfilment for the payment of the liability by the contractual partner, as well as the place of jurisdiction for both contractual is the seat of our corporation in Wetter (Ruhr); however, we are also authorised to institute proceedings against the contractual partner at their general place of jurisdiction.
(2) Par. (1) is also valid, when the contractual partner at the time of initiation of legal proceedings, has no general place of jurisdiction in Germany.
(3)The Laws of the Federal Republic of Germany shall be valid.