General Business Terms and Conditions
GENERAL TERMS AND CONDITIONS OF THE GERMAN FEDERAL WORKING GROUP HEAVY HAULAGE AND CRANE WORK
(GTC-BSK Crane and Haulage 2008 - Status 01/08/2008)
PREAMBLE The German Federal Working Group Heavy Transport and Crane Work (BSK) recommends but does not require that its members apply the following General Terms and Conditions of Business of the BSK when conducting business with their clients/contractors. The members are free to follow this recommendation or to apply other business terms and conditions.
I. GENERAL TERMS
1. All our crane and haulage services, as well as rough assemblies, are subject to the terms and conditions set out below, unless overriding statutory regulations stipulate otherwise (e.g. German Commercial Code (HGB) or CMR, CLMI/CLNI, CIM/COTIF or MÜ).
2. Crane services in the meaning of these terms and conditions are provided in two categories:
2.1 Category 1 - Crane hire
Crane hire means the provision of hoisting equipment with operating personnel to the client for carrying out work in accordance with the client's instructions and arrangements.
2.2 Category 2 - Crane work
Crane work means the carriage of goods, in particular the hoisting, moving and relocating of loads and/or persons for working purposes by using hoisting equipment and refers to the performance of one or several agreed hoisting manoeuvres by the contractor according to instructions and arrangements. This includes in particular the isolated handling of heavy objects by means of a crane.
3. Transport service means the commercial transportation of goods as well as the moving or relocating of goods, in particular by using special auxiliary transportation tools such as heavy load rollers, armoured rollers, heavy duty roller gears, lifting jacks, air cushions, hydraulic lifting scaffolding and lifting appliances or similar equipment (e.g. ground or transfer trolleys), including interim storage associated with the transport. Heavy items are usually transported unpacked on an open deck. The contractor shall not be responsible for packaging or covering the load or for loading, stowing, lashing and unloading, unless agreed otherwise.
4. Rough assembly and disassembly form part of the crane or transport service if that was contracted. It includes the fitting, disassembling, fastening and loosening of the load for the purpose of preparing and handling the transport. The "BSK-Montagebedingungen" [BSK Terms and Conditions of Assembly] as amended, shall apply to any assembly services outside the scope above (final assembly, trial runs, fine adjustments, etc.).
5. The results of site inspections and special agreements, e.g. with regard to loading and unloading points, crane location etc., must be documented in writing by the parties.
6. Contracts concerning the execution of large-scale and heavy transports or the moving of cranes on public roads requires permission or approval from the competent authorities, in particular with regard to § 18 I 2, § 22 II, IV, § 29 III and § 46 I No. 5 of the German Road Traffic Regulations (StVO) and § 70 I of the German Road Traffic Licensing Regulations (StVZO). Such contracts shall be concluded exclusively under the condition precedent that the required permission and/or approval is granted in good time.
7. If traffic direction measures (police escort, etc.) or other requirements and auxiliary conditions are imposed by the authorities for the purpose of maintaining road safety and unimpeded traffic circulation and/or protecting road surfaces, the relevant contracts shall be concluded under the condition precedent that the escort and/or safety personnel is available in good time and that the official traffic safety measures can be implemented in good time. The contractor undertakes to apply for the necessary official permits and approvals in good time and in accordance with the relevant administrative regulations. The contractor shall inform the client without delay of such requirements and any auxiliary conditions that might hamper or impede the transport procedure. The regulations in the BSK information sheet "Verkehrslenkende Massnahmen" [Traffic Management] apply.
8. Unless agreed otherwise, the contractor shall be entitled to employ subcontractors to fulfil his obligations under the contract.
9. The contractor shall be entitled to withdraw from the contract without this giving rise to any claims for damages, if careful examination prior to or during the deployment of vehicles and equipment of any kind reveals that serious personal injury or serious damage to third-party or own property is likely to be unavoidable, despite all reasonable efforts to prevent such damage. The exclusion of claims for damages shall not apply, if the contractor has failed to exercise the due care of a prudent businessman (carrier). In the event of withdrawal, the remuneration for crane services shall be calculated on a pro-rata basis. In the case of transport services, the statutory provisions apply.
10. The contractor shall be entitled to interrupt the deployment immediately in the event of impending danger to equipment, load, personnel and/or third parties. Interruptions due by weather conditions shall not reduce the entitlement to remuneration, taking into account any resulting cost savings, if the impediments due to adverse weather conditions could not be overcome despite reasonable efforts.
11. The service provided by the contractor shall be determined by the crane or transport order specifications and/or the terms specified in the international consignment note. The contractor shall not be required to provide the necessary auxiliary, instruction and other personnel, including slingers and riggers, unless specifically agreed between the parties. Unless agreed otherwise, billing shall be based on units of time (hourly or daily rates). Unless agreed otherwise, the obligation to pay remuneration begins from the time that the hoisting or transport vehicle leaves the contractor's depot and shall end upon its return. If hourly or daily rates have been agreed, these also apply to the time spent travelling to and from the site of operation and the time spent setting up the equipment. Hourly rates shall be charged per half hour or part thereof, and daily rates shall be charged per working day or part thereof. Unless otherwise agreed, fees and costs arising from official decisions and other auxiliary provisions, as well as police escort fees and expenses for the company's own transport safety measures, shall be borne by the client. The agreed amounts must be invoiced exclusive of VAT, which shall be paid to the contractor at the applicable rate.
II. SPECIAL TERMS
1. Crane hire - contractor's duties and liability
12.1 If the main service to be performed by the contractor consists of providing to the client with a hoisting device together with operating personnel in order to carry out work in accordance with the client's instructions and arrangements, the contractor is obliged to provide suitable hoists that have been tested and approved according to TÜV (Technical Inspection Association) standards and UVV (Accident Prevention) regulations. The contractor shall only be liable for the supplied personnel within the scope of the principles of fault in selecting an agent.
12.2 In the case of force majeure, strike, road closure or other unavoidable events, the contractor shall not be liable for failure to provide the equipment in good time, unless the contractor could have averted their consequences by exercising due care and diligence.
12.3 In all other cases of failure to provide the equipment in good time, the liability of the contractor – except in the case of intent or gross negligence – shall be limited to damage which is foreseeable and typical for this kind of contract.
2. Crane work and transport services - contractor's duties and liability
13. The contractor undertakes to execute all contracts awarded to him in a proper and professional manner using all the means and technical facilities at his disposal and in compliance with best practice.
14. The contractor undertakes in particular to use means of transport and hoisting devices which are suitable both in general and specific terms, which are ready for operation, safe to operate and tested and approved according to TÜV standards and UVV regulations in accordance with the applicable provisions. Furthermore, the contractor is obliged to deploy operating personnel (crane operators and drivers) who are qualified to perform the contracted tasks and who are familiar with the principles of operation of the transport and/or hoisting equipment.
15.1. If the main service to be performed by the contractor consists of crane work and/or the provision of transport services, this work shall be subject to the statutory regulations governing the freight carrying business, unless agreed otherwise. In accordance with these regulations, the liability of the contractor shall be limited to 8.33 Special Drawing Rights (SDR) per kilogram of the damaged or lost goods.
15.2. The contractor shall waive the right to plead limitation of financial liability in accordance with section 15.1 for damage to goods up to a maximum of EUR 500,000 and for other financial losses up to a maximum of EUR 125,000, per loss event.
16. If the client requires a higher amount than that stated in section 15.2, this must be explicitly agreed prior to the signing the contract, and the contractor shall be entitled to charge the client all costs incurred in obtaining insurance for the increased liability.
17.1. The contractor is not be obligated to insure the goods, unless such cover has been requested by the client explicitly and in writing, stating the value to be insured and the risks to be covered; the mere mention of the value of the goods shall not be deemed to constitute a request to insure them.
17.2. Acceptance of an insurance certificate (policy) shall not signify that the contractor assumes the obligations incumbent on the client as the policy holder; however, the contractor must take all the usual measures to protect the rights of the client under the insurance policy.
17.3. In the absence of any written agreement to the contrary, the contractor shall obtain insurance in accordance with the insurance terms usual at his registered business domicile. Client's duties and liability
18. The client must at his own risk and expense meet all the technical requirements for the safe and proper execution of the contract, and maintain these throughout the period of the contract.The client shall in particular be obligated to keep the goods to be handled ready for transport and in a condition that is appropriate for the fulfilment of the contract. The client shall also be obligated to state correctly and in good time the dimensions, weights and any special characteristics of the goods (e.g. centre of gravity, type of material, etc.). For crane work, this information must include details of the attachment points.
19. For transport on private property, roads or paths, the client must obtain the necessary permissions from the owners and indemnify the contractor against third-party claims that might arise as a result of inadvertent trespass.
20. The client must ensure that the ground, space and other conditions at the deployment site, as well as the access routes – with the exception of public roads, paths and spaces – permit the proper and safe fulfilment of the contract. The client shall in particular be responsible for ensuring that the ground at the loading and unloading points and/or the crane location as well as the access routes are able to withstand the compression load and other stress. Finally, the client shall be responsible for stating all the locations of underground cable ducts, shafts, supply pipes and other underground structures and cavities that might impair the load-bearing capacity of the ground at the site of operation or along the access routes. Without being specially requested to do so, the client must indicate the positions and existence of exposed and overhead conducting lines, underground cables, conduits, shafts and other cavities or other unrecognizable impediments that could impair the stability and operational safety of vehicles at the deployment site, as well as any particular hazardous situations that might arise during the execution of the crane work or transport service with respect to the goods to be transported and the environment (e.g. hazardous substances, contamination, etc.).Statements and declarations made by third parties that are used by the client to meet his contractual obligations shall be deemed to be declarations made by the client himself.
21. Once the contract has been awarded, the client may not give any instructions to personnel deployed by the contractor that deviate from the contractual agreements either in nature or in scope, or that run contrary to the intended purpose of the contract without first seeking the approval of the contractor.
22. In the event of culpable violation of the aforementioned obligations by the client, in particular with regard to his obligation concerning preparation, information and co-operation, the client shall be liable for any damage to the contractor arising as a result. The regulations stipulated in § 414 paragraph 2 HGB shall remain unaffected. The client must indemnify the contractor against third-party claims for damage that might arise as a result of violation of obligations on the part of the client. In the event that the contractor seeks recourse under the German Environmental Damage Act (USchadG), or other comparable public-law, national or international regulations, the client shall indemnify the contractor inter partes, unless the damage was caused with intent or through gross negligence on the part of the contractor.
III. FINAL PROVISIONS
23. The services of the contractor shall constitute advance performance and shall not be eligible for any cash discount deduction. The invoices of the contractor are payable upon receipt following completion of the contract, unless otherwise agreed after the awarding of the contract. Unless the client is a consumer, he shall only be entitled to offset or withhold payment if his counter-claim is undisputed or has been found final and binding. For all claims, whether due or not, which the contractor is entitled to assert against the client in connection with the activities stated in sections 2 to 4, the contractor shall have a right of lien and a right of retention with respect to the goods or other assets at his disposal. The right of lien or retention shall however not extend beyond the statutory right of lien of a carrier and/or lessor and the general right of retention. The contractor may also exercise a right of lien or retention in respect of claims from other contracts concluded with the client, provided that these claims are undisputed or have been found final and binding, or if the debtor's financial situation puts the claim of the contractor at risk. In place of the one-month period stipulated in § 1234 German Civil Code (BGB) with respect to threatening the sale of a pledge, the period shall be two weeks in all cases. If the client is in default, the contractor may, after threatening the sale, freely sell any of the goods and assets in his possession which he deems at his own dutiful discretion to be sufficient to obtain satisfaction. The contractor may in all cases take a locally usual sales commission from the net proceeds of the sale of pledged items or the foreclosure sale.
24. The place of performance and place of jurisdiction, also in the event of disputes between the parties concerning cheques and bills of exchange, is the registered place of business of the contractor. All contracts concluded by the contractor under these terms and conditions are subject to German law. This also applies to contracts with clients based outside Germany.
25. The liability exemptions and limitations stipulated in these terms and conditions also apply to the staff of the contractor. These exemptions and limitations also apply to actions or omissions by other parties employed by the contractor for the execution of the contract.They equally apply to claims not covered by the terms of the actual contract.
26. Insofar as declarations are required in writing, declarations submitted by remote data transmission or in any other readable form shall be considered equally acceptable, provided that the author of the declaration is clearly identifiable.
27. Should parts of these terms and conditions be invalid or unenforceable in individual cases for contractual or legal reasons, this shall not affect the validity of the remaining provisions; § 139 BGB shall be waived in this respect.