of the CargoBeamer intermodal operations GmbH
§ 1. General information Scope
The CargoBeamer intermodal operations GmbH (hereinafter referred to as “CargoBeamer“) offers combined transport services. As far as such services are concerned, these general terms and conditions shall be a component of all - also all future - quotations, order confirmations and contracts of CargoBeamer. Deviating general terms and conditions by the customer shall only be binding for CargoBeamer after an explicit prior written consent by CargoBeamer at the conclusion of the contract.
§ 2. Conclusion of the contract
(1) Quotations shall always be subject to change, unless explicitly stipulated otherwise.
(2) Oral or written information, handouts and advertising messages - in any form, in particular, product descriptions, promotional material, as well as other information about the sources, quality, consistence and applications of the products and services offered by CargoBeamer - shall always be subject to change, unless explicitly marked as binding. They shall not represent a quotation, indication of quality, promise or guarantee assurance. Orders by the customer for products and services by CargoBeamer shall be treated as quotations within the meaning of § 145 of the German Civil Law (BGB). The contract with the customer shall be deemed concluded with the acceptance of the quotation by an order confirmation in text form or by the execution of the ordered service by CargoBeamer.
(3) Minor deviations of the product and service specifications shall be deemed approved to the extent that such deviations are not unreasonable for the customer.
§ 3. Prices and payment terms
(1) All prices shall be understood to be plus the statutory value-added tax. In the absence of an explicit price agreement, the price lists by CargoBeamer, published on the internet or in any other form, and as amended at the time of entering the contract shall apply. If no price has been explicitly agreed upon for a service, the customary remuneration shall be deemed as agreed price.
(2) All invoices shall be payable by the customer within fourteen days after the invoice was issued.
(3) The customer’s right of retention shall only exist in terms of counterclaims from the same contractual relationship. With current business relations and within the meaning of the foregoing provision, every order shall be considered to be a separate contractual relationship. The customer shall only be entitled to set-off rights and rights of retention, if his/her claims have been established as legally binding, or recognised by CargoBeamer.
(4) If after the conclusion of the contract CargoBeamer should gain knowledge of facts which in accordance with dutiful commercial judgement indicate a significant deterioration in the customer's financial situation, CargoBeamer shall be entitled to make further contractual performances dependent on an advance payment for an anticipated right to remuneration, or alternatively on the provision of reasonable securities.
§ 4. Termination
A contractual relationship may only be terminated in exceptional cases for good cause by CargoBeamer, if insolvency proceedings have been instituted on the customer's assets, or such proceedings are dismissed for lack of assets.
§ 5. Transferability
CargoBeamer shall be entitled to transfer contracts with clients to such companies that are legally affiliated with CargoBeamer within the meaning of §§ 15 and following of the German Stock Corporation Act. Insofar as such companies benefit from the entitlements from this agreement, you shall have your own legal claim. Thus this contract shall represent a genuine contract to the benefit of a third party.
§ 6. Obligations of the Parties Legal grounds
(1) CargoBeamer shall undertake to provide the shipment of the freight units by rail to the agreed destination, as well as the required freight handling procedures. The handling shall include loading and unloading of the freight unit onto and off the wagon.
(2) The customer shall be sender and recipient of the freight unit at the same time. On the date of dispatch, he/she must handover this freight unit him-/herself or through a representative (consignor) designated by him/her to the agreed terminal, and on the day of receipt he/she must pick it up him-/herself or through a representative (collector) designated by him/her at the terminal of the agreed destination.
(3) If the dispatch of the freight unit to the agreed destination is not feasible by rail at the specified date and time, CargoBeamer shall not be obliged to arrange for the dispatch via a different mode of transport, unless the impossibility to dispatch by rail is due to circumstances within the control of CargoBeamer. Actions and failure to act on the part of other persons whose services CargoBeamer uses to fulfil his/her duty to arrange for the dispatch of the goods thus shall not be attributed to CargoBeamer in this respect.
(4) In addition, the General German Freight Forwarding Terms and Conditions (ADSp) in the version that was valid when the contract was concluded, as well as the statutory provisions, in particular, §§ 453 and following of the German Commercial Code (HGB), in this sequence and unless not otherwise required by mandatory law, shall apply. For cross-border railway freight, the mandatory provisions of the Convention concerning International Carriage by Rail (COTIF) 1999 part B shall apply.
§ 7. Temporary storage
(1) Upon delivery of the loading unit at the terminal, the check-in log shall serve to rebut the presumption for the conclusion and content of the contract, as well as for the acceptance of the freight unit. In addition, it also establishes the refutable presumption that the freight unit appeared to be in good and safe condition when the customer dispatched it for the rail transport. No other presumption conformity regarding the apparent condition of the freight unit and the goods inside the freight unit shall be in effect.
(2) The customer shall undertake to check in the freight unit for transport on the day of dispatch only. Freight units checked in prior to the agreed dispatch day shall be temporarily stored at the terminal for a charge. The temporary storage can be provided based on a separate storage contract. In this case, the customer shall expressly authorise the storage with the respective operator of the terminal (§ 472 paragraph 2 of the German Commercial Code (HGB)). The temporary storage shall end on the day of dispatch - after the terminal is opened.
§ 8. End of liability for care
(1) The liability for the care by CargoBeamer shall end with the handover of the freight unit to the customer, or the representative (collector) designated by him/her at the destination or at the terminal.
(2) The customer shall undertake to pick up the freight unit on the date of receipt. Freight units that have not been picked up on the date of receipt shall be temporarily stored after business hours at the terminal for a charge. § 7 paragraph 2 shall apply accordingly. If a temporarily stored freight unit does not get picked up within two work days after the date of receipt, CargoBeamer shall be entitled to take further measures in accordance with § 419 paragraph 3 of the German Commercial Code (HGB) without being obliged to take prior instructions.
§ 9. Quality of the freight unit and goods
(1) The customer shall guarantee that the freight unit delivered at his/her instigation does not violate any rights of third parties. He/she shall exempt CargoBeamer from any liability for claims arising from the claims of third parties, insofar as freight units delivered at the initiative of the customer are concerned. This includes specifically all legal costs.
(2) Upon handing over the freight unit, the customer shall be liable that the freight unit and the goods it contains are suitable and meet the safety criteria for combined transport, to the extent that this does not involve culpability, without this being dependent on his/her negligence. The freight unit must be loaded and secured - without prejudice to existing transport policies and additional statutory and government regulations - in accordance with the following provisions of the BGL/BGF practice handbook "Loading and Securing”, volume 2 (Load securing for combined transport road/rail). In addition to the directives of combined transport, CargoBeamer shall be authorised to communicate further specified and binding directives regarding the requirements for the freight goods.
(3) The obligation of CargoBeamer is restricted to visually inspecting the freight unit from the outside and from the ground, while it is located on the vehicle used for the delivery of the freight unit. Apart from that, CargoBeamer shall not be obliged to check the goods, its packaging, the stowage or the fixings, nor the information supplied or the documentation submitted by the customer.
(4) The customer shall guarantee the accuracy and completeness of all data and information given upon order placement.
§ 10. Hazardous goods
(1) Hazardous goods must be registered by the customer prior to dispatch.
(2) A freight unit which is loaded with authorised goods must conform with the standards specified for the transport by rail and on the road stipulated by statutory and official regulations.
(3) Unless other mandatory legal provisions take precedence, upon handing over the freight unit the customer shall be liable for the
a) compliance with the provisions listed in section 2,
b) accuracy and completeness of the information on the goods,
c) accuracy and completeness of the designations in the dispatch order form or the online reservation,
d) submittal of any additional documents that may be required,
e) instructions, if appropriate, about precautionary measures to be taken as prescribed by the authorities or necessary for other reasons.
§ 11. Liability
(1) CargoBeamer’s liability for loss or damage of the freight unit towards the customer shall be in accordance with the provisions defined in § 6 paragraph 4, unless these general terms and conditions provide otherwise. The liability for temporary storage shall be in accordance with §§ 467 and following of the German Commercial Code (HGB). Released schedules do not constitute agreements on transit periods.
(2) This liability shall be limited to the following:
a) For the loss or damage of the freight unit in accordance with § 431 of the German Commercial Code (HGB) to SZR 8.33 for each kilogramme of the gross weight of the damaged or lost freight unit.
b) For the loss or damage of the freight unit in cases of a separate storage to € 5.00 for each kilogramme of the gross weight of the damaged or lost freight unit, however, a maximum of € 5.000,00 per claim (§ 431 paragraph 2 of the German Commercial Code (HGB) shall apply accordingly).
c) The value of the units of account shall be in accordance with § 431 paragraph 4 of the German Commercial Code (HGB).
(3) The liability for damage other than to the goods, in particular according to § 461 Abs. 2 of the German Commercial Code (HGB), with the exception of personal injury or property damage to property of third parties, shall be limited to three times the amount payable for the loss or damage of the goods, but not more than € 100,000.00 per claim, unless otherwise required by mandatory legal provisions. §§ 431 paragraph 3, 433 of the German Commercial Code (HGB) shall remain unaffected.
(4) The liability for loss of or damage to the goods shall be limited to € 1,000,000.00 for each claim and € 2,000,000.00 for each damage event, or to SZR 2 for each kilogramme of the lost or damaged goods, depending on which amount is higher. In the case of more than one claimant arising from an event having led to damage, CargoBeamer’s liability shall be distributed amongst them in proportion to their individual claims.
(5) Liability from non-compliance with the delivery date shall be excluded.
(6) These limitations on liability shall also apply to non-contractual claims.
§ 12. Notice of damage claim
(1) Upon acceptance of the freight unit, it shall be the duty of the customer to express objections with regard to damages or improper quantities in accordance with § 438 of the German Commercial Code (HGB0), either to the local representative of CargoBeamer or the person in charge of delivering the goods. If no objections were expressed, the freight unit is generally deemed to have been in contract-compliant condition at delivery.
(2) Objections due to damages that were not visible from the outside, or the delivery of improper quantities must be reported within five days from the day these damages or improper quantities were identified.
§ 13. Applicable law General place of jurisdiction
German law shall apply. General place of jurisdiction is Leipzig. For claims from a contract for cross-border transport services the place of jurisdiction shall not be exclusive.