1. Relevant provisions
CMR validity is expressly agreed for all transports, even if the scope of application of Art. 1 CMR or § 439a Business Enterprise Code (UGB) is not fulfilled. For intra-German transports, German Commercial Code (HGB) provisions apply. For intra-German transports, the increased liability of 40 special drawing rights per kilogram of damaged or lost goods shall be deemed as agreed. The Contractor can under no circumstances rely on its own terms and conditions (AGBs), even if they were included in order confirmations. There are no contractor’s terms and conditions that contradict these loading conditions. In particular, the Contractor cannot cite the validity of the General Austrian Forwarding Conditions(AÖSp) or other stipulations.
2. Cancellation, non-acceptance of cargo
If you do not accept these terms and conditions, this order with a note “STORNO” across all pages of the loading order must be rejected within one hour free of charge. Please send this cancellation to the e-mail address/fax number stated in the order to your contact person who is listed on the transport order. In the event of cancellation after one hour, if contractor does not accept the transported goods or the transport order, Keimelmayr shall be entitled to purchase a replacement vehicle and charge the contractor a penalty amounting to the of transporting the freight with the replacement vehicle. Any further claim for damages remains unaffected.
Enforcement of demurrage is excluded in cases of waiting or standing time at the sender or receiver etc. up to 24 hours; Except from Saturdays, Sundays and holidays, which are always free of charge. Furthermore, asserting a compensation or a claim for damages or other costs by the Contractor is excluded in the event that Keimelmayr cancels the order within 10 hours of the order being placed. After the agreed 24-hour demurrage-freedom, a maximum of up to € 150.00 per day/per truck may be charged to demurrage, if Keimelmayr is indeed at fault, with the burden of proof on the contractor. However, demurrage is limited to 3 days maximum duration.
4. Prohibition of transshipment, additional cargo, transfer for full loads
Complete cargo within the context of this provision is a shipment that utilizes the means of transport to its full capacity. Transfers or payloads are inadmissible without exception. Furthermore, there is a complete ban on additional cargo, unless Keimelmayr orders this in writing. Commissioning a subcontractor is only permitted with the expressed written consent of Keimelmayr’s relevant dispatcher. Stacking the goods (e.g. to create additional cargo space, etc.) is also expressly prohibited!
5. Load securing equipment
The Contractor must carry a sufficient number of loading aids (underlay wood) and securing means (lashing chains and straps, clamping bars), otherwise the vehicle will be considered defective.
When securing the cargo, it is imperative that the vehicle is fully equipped with hoist and on-board wall boards for tarpaulin structures, as well as locking and clamping rods for box bodies according to DIN. Furthermore, for safe transport, at least four tension slats 350daN, 20 belts with long lever ratchets 500STF, sufficient lashing points on the loading area, 24 edge protectors, and sufficient anti-slip mats are required.
In case of non-compliance with the above-mentioned agreements/instructions, we reserve the right to equip the vehicle with appropriate cargo aids at your expense. If this is not possible, we reserve the right to use a replacement vehicle and charge you a no-fault penalty amounting to the cost of transporting the freight with the replacement vehicle. Any further compensation remains unaffected. We hold you fully liable for all resulting costs! In any case, a processing fee of € 35.00 will be charged for these administrative expenses.
Ensuring the proper stowage of cargo as well as cargo securing are the task of the contractor without exception; this is true even if the sender has actually carried out the loading themselves.
6. Transport obstacles
The Contractor must ensure on his own that transport can be carried out without any obstacles and must first check whether approvals or customs measures (of whatever kind) etc. are to be taken (executing transit procedures, etc.). In the event of unforeseen transport delays, as well as damage or loss of transport goods, Keimelmayr must be notified immediately by telephone and in writing. The Contractor holds Keimelmayr harmless and without complaint for all resulting damage.
7. Exchange of loading materials
The Carrier (as contractor) is obliged to exchange loading materials (pallets, lattice boxes, meat hooks, plastic boxes, etc.) immediately both at the sender and the recipient without exception; he also carries the so-called exchange risk. The exchange must be documented on the delivery note or pallet certificate and must be confirmed by both sender and recipient.
If the recipient does not have exchange materials in stock, this must be confirmed by the recipient on the delivery note, pallet certificate or CMR consignment note with the stamp and signature of the loading or unloading location (for example, no exchange loading means available, exchange refused, etc.). In the event of improper loading materials exchange performance, the carrier as contractor must pay € 15.00 for each non-exchanged or returned pallet, € 75.00 per lattice box and the customary market price for other loading means – as a no-fault penalty. In addition, a processing fee of € 30.00 per transport must be paid. In any case, these claims are also due to Keimelmayr without carrier’s fault. Any additional claims for damages remain unaffected in all cases. After Keimelmayr’s successful financial reporting, a return of the loading materials or a credit note is no longer possible. The fee for this exchange risk is already included in the freight price. Furthermore, the contractor is obliged to keep traceable records of the pallet exchange for each individual transport. These records or documentation/evidence must be sent immediately after transport, at the latest together with the freight invoice. Attention: only original pallet certificates are accepted! Freight is not due prior to transmission of these documents. For refrigerated transports, transmission of a readable temperature record is additionally required for the due date of the freight invoice. In the case of missing documents or loading material records a penalty, regardless of fault and excluded from judicial mitigation, shall be due in the amount of the freight per transport order, i.e. entitlement to freight costs. Any additional claims for damages remain unaffected in all cases.
8. Freight invoices, payment term, proof of delivery
The Contractor’s freight invoices are only due when the invoice together with the (at least) electronically scanned transport documents (CMR bill of lading, delivery notes, pallet vouchers, etc.) have been verifiably transmitted to Keimelmayr. Contractor must retain the original documents for at least 3 years and make them available to Keimelmayr upon request. The Contractor bears the risk for transmitting these documents. The term of payment is 45 days, whereby the start of this 45-day period begins with complete receipt at Keimelmayr of the invoice together with the transport documents mentioned above. The Contractor is aware that billing for Keimelmayr’s can only occur if proof of delivery is sent in a timely and complete manner. The Contractor therefore undertakes to send Keimelmayr all transport documents, such as delivery notes, bills of lading, pallet vouchers, etc., no later than within 10 working days after unloading.
9. Set-off, exclusion of liens and rights of retention
Keimelmayr is entitled to make set-off with counterclaims (for whatever legal reason) as well as freight cuts in case of inadequate performance. Therefore, any set-off or retention ban (especially § 32 AÖSp) is expressly rejected. The Contractor shall not be entitled to a right of lien or retention on any of the goods handed over to him in the course of performing the contract. Any rights of lien and retention are therefore expressly excluded. The Contractor is obligated to include corresponding provisions in contracts concluded with any subcontractors engaged by them (if Keimelmayr has permitted the use of subcontractors in writing). The Contractor cannot offset claims against any of Keimelmayr’s claims.
10. Duty of care
The Contractor is obliged to select and supervise employees and other agents with the diligence of a proper carrier. In particular, they must ensure that only impeccable vehicles, trailers, semi-trailers, tanks, swap bodies/containers, cranes, technical devices and other equipment suitable for the respective order are used. They must also fully comply with ADR, StVO and KFG provisions. The vehicle must be swept, clean and odourless, and the tarpaulin must be absolutely tight. The minimum height of the trailer must be 2.70m inside. In case of non-compliance with the aforementioned agreements/instructions, we reserve the right to equip the vehicle at the expense of the shipper. If this is not possible, we reserve the right to purchase a replacement vehicle and charge you a penalty amounting to the cost of transporting the freight with the replacement vehicle. This penalty is excluded from judicial mitigation and regardless of fault. Any further claim for damages remains unaffected.
11 Guard duty/security measures
The Contractor is obliged to ensure that loaded motor vehicles or transport units are properly blocked at every (even short-term) parking. Furthermore, motor vehicles or transport units used must be equipped with 2 independent – state-of-the-art and functioning – anti-theft devices, which must be verifiably activated at every, even if only short-term parking. Rear trailer/container doors must always be verifiably locked (at least with a massive padlock), so that external access by third parties is prevented. After each break, the integrity of the lock or the outer walls of the hold must be checked. The Contractor must ensure that loaded transport vehicles (trailers, semitrailers, swap bodies, containers, etc.) are always properly guarded while parked and at night, on weekends and public holidays only on a bright and secure parking lot or parked in a secured (fenced and adequately guarded) premise. In general, only guarded parking spaces may be used. For example, a list of guarded parking is available at www.iru.org, www.ania.it. Route planning must be carried out in such a way that no breaks, overnight stays or other shut-down procedures (except short-term refuelling operations) are required on unguarded parking spaces, provided the prescribed driving and rest periods are observed. If necessary, the contractor is obliged to reserve guarded parking spaces and assign the driver accordingly. Isolated parking of loaded trailers/semitrailers/swap bodies (without towing vehicle) and parking the transport vehicle in an unsecured area is invariably prohibited (even in a guarded parking area) and in most cases there is no insurance coverage with conventional insurance (!!).
The Contractor is obliged to inform their employees and other agents, in particular subcontractors, of the obligation to comply with these loading condition provisions and ensure with the diligence of a proper carrier that these safety measures are in fact followed. The Contractor must also ensure that truck drivers employed have all the necessary foreign permits. The driver must carry evidence and documents required in accordance with applicable statutory provisions (in particular work and residence permits). The Contractor confirms that drivers have a valid international driver’s license and a certificate in accordance with Directive 2003/59/EC (EU professional driver training). The driver must be specially trained for all conditions of transport and carry the necessary certificates with them. In particular, the ADR and StVO requirements, load securing and safety regulations/safety clothing must be particularly fulfilled. For safety reasons, the driver must always wear safety shoes, a helmet, long outer clothing and safety vest for all loading and unloading activities (unless safety regulations at the loading or unloading point make higher demands). For ADR transports, the driver must carry/install the necessary safety equipment. In the case of non-compliance with the aforementioned agreements/instructions, we reserve the right to equip the vehicle/driver at the expense of the shipper. If this is not possible, we reserve the right to purchase a replacement vehicle and charge you in full. We hold you fully responsible for all subsequent costs incurred as a result.
13. Driving times, remuneration
The Contractor is solely responsible for complying with all statutory provisions regarding driving times and rest periods as well as statutory compensation of the driving staff. This applies in particular to the provisions of the German Minimum Wage Act (MiLog), Wage and Social Dumping Control Act (LSD-BG) and, if relevant, other applicable regulations for compliance with minimum wages. The Contractor is obliged to inform his employees and other agents, in particular subcontractors, of the obligation to comply with the minimum wage provisions in the whole of Europe and to ensure with the diligence of a proper entrepreneur that these are in fact followed. Upon request, the contractor must provide Keimelmayr with appropriate evidence of compliance with these legal requirements without delay. The Contractor commits to fully, in whole or in part, indemnify and hold Keimelmayr harmless for all expenses/costs/claims (regardless of legal grounds) arising in connection with the breach of this agreement or the failure to comply with applicable provisions, i.e. also unlimited in amount. This is especially true for the occurrence of administrative costs, representation and consulting fees.
14. Obligation to report damage
The Contractor is obliged to report any damage immediately to Keimelmayr and his transport liability insurance. For damage exceeding the amount of € 2,000, the contractor must immediately commission an expert or surveyor to assess the damage. Contractor must – in the case of other claims for damages – obtain instructions from Keimelmayr. Furthermore, the contractor is obliged to provide all information that may be required for further claims processing by Keimelmayr or its insurer immediately.
15. Dangerous goods
The Contractor commits to only use drivers trained according to ADR and carry a valid ADR certificate when transporting dangerous goods. Vehicles must be equipped for transporting dangerous goods. In particular, all conceivable equipment requirements must be fulfilled (sewerage cover, shovel, broom, fire extinguisher, binding agent, collection container, respiratory protection, etc …). In the case of transporting dangerous goods (ADR), contractor is also liable for proper declaration on freight documents, correct labelling of the load and carrying required transport documents as well as the legally compliant vehicle identification. In addition, all national regulations in the countries affected by the transport must be observed.
Information in the transport document must be entered in accordance with 184.108.40.206.1 ADR.
Contractor shall comply with the obligations contained in 220.127.116.11.1 ADR “Carrier Inspection Obligation.” The vehicle must be covered for increased motor insurance according to KHVG.
16. Liability insurance
The Contractor agrees – before accepting a transport – to present Keimelmayr without request an insurance policy customary in Austria as confirmation of a sufficient minimum insurance coverage (€ 600,000). This insurance must also cover liability according to Art. 29 CMR and damage during loading and unloading operations. If Keimelmayr does not have the insurance policy covering transport liability insurance before carrying out the transport, it is entitled to obtain insurance coverage for the transport in the contractor’s favour; in this case, Keimelmayr is entitled to deduct 4% of the agreed freight price. The Contractor must ensure the aforementioned insurance policy is available to Keimelmayr.
17. Waiver of wage-claim
The Contractor expressly waives the objection of the “wage contract”; should the contractual relationship actually be classified as a carriage contract, the contractor expressly agrees to make this contractual relationship subject to the liability provisions of the Freight Law (CMR), regardless of whether the scope of CMR or § 439a should be met.
18. Customer protection
Customer protection is considered agreed; upon acceptance or mediation of orders or other contact with Keimelmayr’s customers, and all companies that are involved in any way in the transport order; all contractor’s claims of against Keimelmayr expire. In addition, any breach of these rules or customer protection clause shall be subject to a penalty in the amount of 5 times the freight regardless of the actual damage extent, which shall be exempt from liability without fault and any judicial mitigation. Any further claim for damages shall not be affected.
19. Confidentiality obligation
For all transports, there is a confidentiality obligation that strictly prohibits the contractor from disclosing to third parties all information that becomes known to him in the course of order execution. The Contractor is liable for all assistants. In the case of an unauthorized disclosure of information to third parties, a contractual penalty in the amount of 5 times the freight, which is excluded from the right of mitigation, shall be due. Keimelmayr expressly reserves the right to assert any further damage.
20. Fixed prices
Prices stated on behalf of Keimelmayr are fixed prices. Surcharges or expenses, costs (of whatever kind) are not recognized.
21. Unloading according to consignment note/loading order
Goods may only be unloaded at the recipient or delivery address specified in the loading order/consignment note. Changes may only be made with Keimelmayr’s express permission. If details in the consignment note deviate from the transport order, this must be agreed with Keimelmayr prior to execution.
Upon delivery, a clear proof of identity, documented by a passport or other official document, must be requested by the recipient and the data must be entered in the consignment note.
22. Loading dates, delivery times
The physical transport order is binding, unless within one hour from receipt by contractor a contradiction occurs. The Contractor must arrive with their vehicle at the loading point on the agreed loading date. In the event of non-provision of the vehicle, a penalty of € 250 (excluding fault), which is excluded from the right to be judicially mitigated and independent of the actual loss, is due. For the late arrival at the place of loading, a strict penalty of € 100 -/hour is due. Any further compensation remains unaffected in both cases. Discharge dates are considered as delivery times within the defined under Art. 19 CMR. The Contractor acknowledges that compliance with Keimelmayr’s delivery deadlines is particularly important. Contractor must check whether the delivery deadline can be met before accepting the transport order.
23. Loading and unloading, load securing
The Contractor is obliged to carry out loading and unloading. Damage due to circumstances during loading or unloading falls under the Contractor‘s liability. The Contractor must ensure the cargo is properly secured and complies with legal requirements. The duty to secure loads lies exclusively with the contractor, even if the sender has loaded the goods. The Contractor must ascertain all sources of damage before carrying out the transport and, in particular, check the transportability of the loading/stowing and packaging. If necessary, eliminate sources of damage or obtain instructions from Keimelmayr. When taking over the goods, the contractor must check the quantity, as well as the condition and weight of the transported goods. In the event of any deviation or in cases where an inspection is not possible, the contractor shall make such reservations on the consignment note and have them signed by the consignor before departure.
24. Statute of limitation
All claims against Keimelmayr, irrespective of the legal grounds and regardless of the degree of culpability, become statute-barred within 6 months. Expiry of the limitation period begins in all cases with the date the respective transport order is issued.
25. Applicable law, place of jurisdiction
The contractual relationship is subject to Austrian law with the exclusion of IPR provisions. For all disputes between the parties to this agreement, including disputes over the effective existence of this agreement, the jurisdiction of the relevant court shall be agreed to be in A-4060 Leonding. Contract language is German.
This agreement is also valid without confirmation!
Keimelmayr Speditions- und Transport GmbH Schirmerstrasse 5