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.
GERMAN FREIGHT FORWARDERS’ STANDARD TERMS AND CONDITIONS (ADSp)
The German Freight Forwarders’ Standard Terms and Conditions 2017 (ADSp 2017) are recommended for use as of 1 January 2017 by the German Freight Forwarders and Logistics Association (DSLV).
1. Definitions
1.1 Delivery
The term Delivery also includes delivery in the context of warehousing.
1.2 Principal
The legal person who concludes a Freight Forwarding Contract with the Freight Forwarder.
1.3 Theft-Sensitive Goods
Goods exposed to an increased risk of robbery and theft, such as money, precious metals, jewellery, watches, precious stones, works of art, antiques, cheque cards, credit cards or other means of payment, securities, valuables, documents, spirits, tobacco products, consumer electronics, telecommunications equipment, IT equipment and accessories, as well as chip cards.
1.4 Consignee
The legal person to whom the goods are to be delivered under the Freight Forwarding Contract or pursuant to a valid instruction from the Principal or another person authorised to dispose of the goods.
1.5 Vehicle
A means of transport used to transport goods on traffic routes.
1.6 Dangerous Goods
Goods which may pose an immediate danger to persons, Vehicles or the legal interests of third parties, even during normal transportation, storage or other activities. Dangerous Goods particularly include goods falling within the scope of applicable dangerous goods laws and regulations, as well as regulations governing hazardous substances, water protection and waste.
1.7 Loading Means
Means used to combine Packages and create loading units, e.g. pallets, containers, swap bodies and bins.
1.8 Place of Loading / Place of Discharge
The postal address, unless the parties have agreed on a more precise location.
1.9 Time of Performance
The time (date and time) by which a particular service must be performed, e.g. a Time Frame or a specific Point of Time.
1.10 Packages
Individual items or units assembled by the Principal for the fulfilment of the order, with or without Loading Means, which the Freight Forwarder must handle as a single unit (freight items within the meaning of Sections 409, 431 and 504 HGB).
1.11 Damage Case / Damage Event
A Damage Case exists when an injured party asserts a claim under a Freight Forwarding Contract, or instead of a claim under such a contract, as a result of an external event. A Damage Event exists when several injured parties assert claims under several Freight Forwarding Contracts as a result of an external event.
1.12 Interface
After the goods have been taken over and before their Delivery by the Freight Forwarder, any transfer of the goods from one legal person to another, any transhipment from one Vehicle to another, and any (temporary) storage.
1.13 Freight Forwarder
The legal person who concludes a Freight Forwarding Contract with the Principal. Freight Forwarders within this meaning include, in particular, carriers within the meaning of Section 407 HGB, freight forwarders within the meaning of Section 453 HGB, warehouse keepers within the meaning of Section 467 HGB, and sea carriers within the meaning of Sections 481 and 527 HGB.
1.14 Freight Forwarding Contracts
Contracts entered into by the Freight Forwarder covering all types of activities, irrespective of whether they concern freight forwarding, carriage of goods, sea carriage, warehousing or other transactions customarily associated with the freight forwarding business (e.g. customs clearance, shipment tracking and cargo handling). These also include logistics services customary in the freight forwarding industry where they are connected with the transportation or storage of goods, in particular activities such as the creation of loading units, order picking, labelling, weighing of goods and returns processing. Contracts for the provision of manned motor Vehicles for use in accordance with the Principal’s instructions are also deemed to be contracts of carriage.
1.15 Shipper
The legal person who hands over the goods for transportation under the Freight Forwarding Contract or pursuant to a valid instruction.
1.16 Material Contractual Obligations
Obligations whose fulfilment is essential for the proper performance of the Freight Forwarding Contract (Clause 1.14) and on whose compliance the contractual partner may regularly rely.
1.17 Valuable Goods
Goods with an actual value of at least EUR 100 per kg at the place and time of takeover.
1.18 Time Frame
The agreed period within which the Freight Forwarder must arrive at the Place of Loading or Place of Discharge.
1.19 Point of Time
The agreed specific time at which the Freight Forwarder must arrive at the Place of Loading or Place of Discharge.
2. Scope of Application
2.1 The ADSp apply to all Freight Forwarding Contracts undertaken by the Freight Forwarder as contractor.
2.2 Statutory provisions which cannot be deviated from by means of pre-formulated standard terms and conditions take precedence over the ADSp.
2.3 The ADSp do not apply to transactions exclusively concerning:
2.3.1 packaging services,
2.3.2 the transportation and storage of goods to be towed or salvaged,
2.3.3 the transportation and storage of household removal goods within the meaning of Section 451 HGB,
2.3.4 the storage and digitalisation of files; files include all types of physical and digitised business papers, documents, data storage media and similar objects used for collecting information,
2.3.5 heavy or oversized transports requiring a transport permit or special exemption under traffic regulations, crane services and associated assembly work.
2.4 The ADSp do not apply to Freight Forwarding Contracts with consumers within the meaning of Section 13 BGB.
3. Obligations of the Principal When Placing an Order; Information Requirements; Special Types of Goods
3.1 The Principal shall inform the Freight Forwarder in good time of all material factors known to the Principal that may affect the performance of the order. These include:
3.1.1 addresses, the type and nature of the goods, gross weight (including packaging and Loading Means supplied by the Principal) or other stated quantities, marks, numbers, quantity and type of Packages, special characteristics of the goods (such as live animals, plants or perishability), the value of the goods (e.g. for customs purposes or insurance of the goods under Clause 21), and delivery deadlines,
3.1.2 all public-law obligations, e.g. customs and foreign trade regulations (in particular embargoes relating to goods, persons or countries) and security regulations,
3.1.3 in the case of sea carriage, all data required under maritime security regulations (e.g. SOLAS), in the prescribed form,
3.1.4 any third-party industrial property rights, e.g. trademark and licensing restrictions associated with possession of the goods, as well as legal or official restrictions that may prevent the order from being carried out,
3.1.5 special technical requirements for the means of transport and special cargo securing equipment to be supplied by the Freight Forwarder.
3.2 In the case of Dangerous Goods, the Principal shall notify the Freight Forwarder in good time and in text form of the quantity, the precise nature of the danger and, where necessary, the safety precautions to be taken. If the goods constitute dangerous goods within the meaning of the law governing the transportation of dangerous goods, or other goods whose transportation or storage is subject to special dangerous goods or waste regulations, the Principal shall provide all information necessary for the proper performance of the order, in particular the classification under the applicable dangerous goods regulations, and shall hand over the required documents no later than when the goods are handed over.
3.3 In the case of Valuable Goods or Theft-Sensitive Goods, the Principal shall inform the Freight Forwarder in text form, when placing the order, of the type and value of the goods and the risks involved, so that the Freight Forwarder can decide whether to accept the order or take appropriate measures to ensure its safe and damage-free performance. If the Freight Forwarder accepts the order, it shall be obliged to take appropriate security measures to protect the goods.
3.4 The Principal shall provide the Freight Forwarder with all certificates and other documents and supply all information (e.g. customs tariff classification) necessary for the proper customs clearance or other legally required handling of the goods. This also includes security checks, for example for air freight shipments.
4. Rights and Obligations of the Freight Forwarder
4.1 The Freight Forwarder shall safeguard the interests of the Principal. It shall examine the order for obvious defects and immediately notify the Principal of any circumstances known to it that may pose a risk to the performance of the order. Where necessary, it shall request instructions.
4.2 The Freight Forwarder shall ensure that the Vehicles and cargo securing equipment used for transportation and, where the provision of Loading Means has been agreed, such Loading Means are in technically sound condition and comply with statutory requirements and the requirements stipulated in the Freight Forwarding Contract for the goods. Vehicles and Loading Means shall be equipped with customary devices, equipment or procedures to protect the goods against risks, in particular cargo securing equipment. Vehicles should have low emissions, reduced noise levels and low energy consumption.
4.3 The Freight Forwarder shall employ reliable, suitably qualified and professionally trained drivers who are appropriate for the relevant activity and properly employed and, where required, hold a driver attestation.
4.4 When operating on third-party premises, the Freight Forwarder shall comply with any site, operational or construction-site rules applicable there and communicated to it. Section 419 HGB remains unaffected.
4.5 The Freight Forwarder shall be entitled to make customs clearance conditional upon the granting of a written power of attorney authorising it to act as a direct representative.
4.6 If the Freight Forwarder is commissioned to transport goods across borders or to carry out import or export customs clearance, the order shall, in case of doubt, also include customs clearance or other legally required handling of the goods if cross-border transportation to the destination would otherwise be impossible. In this context, the Freight Forwarder shall be entitled to:
4.6.1 open packaging if this is necessary to carry out a legally required inspection (e.g. where the Freight Forwarder acts as a Regulated Agent), and subsequently take all measures necessary to fulfil the order, such as repacking the goods,
4.6.2 advance duties and charges assessed by the customs authorities.
4.7 In the event of damage to goods or delay, the Freight Forwarder shall, at the request of the Principal or Consignee, immediately provide all information known to it and necessary to secure claims for compensation.
4.8 Unless expressly agreed otherwise, the order placed with the Freight Forwarder does not include:
4.8.1 the provision or exchange of pallets or other Loading Means,
4.8.2 the loading and unloading of goods, unless otherwise indicated by the circumstances or customary practice,
4.8.3 a prohibition on transhipment (Section 486 HGB shall not apply),
4.8.4 the provision of a shipment tracking system, unless this is customary in the relevant industry; Clause 14 remains unaffected,
4.8.5 returns, transfers and concealed additional cargo. If, contrary to the order, the Principal hands over one or more additional Packages for transportation and the Freight Forwarder accepts such Packages, the Freight Forwarder and the Principal shall conclude a new Freight Forwarding Contract in respect of those goods. In the case of returns or concealed additional cargo, the terms of the original Freight Forwarding Contract shall apply unless otherwise agreed. Clause 5.2 remains unaffected.
4.9 Any additional service and information obligations, e.g. regarding quality management measures and compliance with them (audits), as well as monitoring and evaluation systems and performance indicators, must be expressly agreed.
5. Contact Person, Electronic Communication and Documents
5.1 At the request of either contracting party, each party shall designate one or more contact persons for receiving information, declarations and enquiries relating to the performance of the contract and shall notify the other party of their names and contact details. These details must be updated whenever they change. If a party does not designate a contact person, the person who concluded the Freight Forwarding Contract on behalf of that party shall be deemed to be the contact person. Information obligations extending beyond statutory requirements, e.g. regarding measures to be taken by the Freight Forwarder in the event of disruptions, in particular imminent delays in taking over or delivering the goods, obstacles to transportation or Delivery, damage to the goods or other disruptions (emergency procedures), must be expressly agreed.
5.2 Unless expressly agreed otherwise, contractual declarations made by warehouse or driving personnel shall only become effective upon approval by the respective contracting party.
5.3 The Principal shall ensure that the Shipper or Consignee makes, on behalf of the Principal, all declarations required at the Place of Loading or Place of Discharge for the performance of the Freight Forwarding Contract and carries out the necessary practical actions, such as handing over or taking receipt of the goods.
5.4 If agreed between the Principal and the Freight Forwarder, the parties shall transmit and receive shipment data, including invoicing data, by EDI (Electronic Data Interchange) / remote data transmission. The transmitting party shall bear the risk of loss, incompleteness and inaccuracy of the transmitted data.
5.5 Where an agreement under Clause 5.4 has been made, the parties shall ensure that their respective IT systems are operational and that customary security and control measures are implemented to protect electronic data exchange against access by third parties and to prevent the alteration, loss or destruction of electronically transmitted data. Each party shall notify the other party in good time of any changes to its IT system that may affect electronic data exchange.
5.6 Documents created electronically or digitally, in particular proof of Delivery, shall be equivalent to written documents. Furthermore, each party shall be entitled to archive written documents exclusively in electronic or digital form and to destroy the originals in compliance with statutory requirements.
6. Packaging and Labelling Obligations of the Principal
6.1 The Principal shall package the goods and, where necessary, affix clearly visible and durable markings indicating how they are to be handled in accordance with the order. Old markings must be removed or made illegible. The same applies to Packages.
6.2 Furthermore, the Principal shall be obliged to:
6.2.1 clearly mark Packages belonging to one consignment as belonging together,
6.2.2 prepare Packages, where necessary, in such a way that access to their contents is not possible without leaving externally visible traces.
7. Cargo Securing and Inspection Obligations of the Freight Forwarder
7.1 If loading or unloading takes place at more than one Place of Loading or Place of Discharge, the Freight Forwarder shall ensure that the cargo remains secured continuously until the final Place of Discharge once the goods have been loaded in a manner that ensures safe transportation.
7.2 The Freight Forwarder shall carry out inspections at every Interface. It shall check the goods for completeness and identity, as well as for externally visible damage and the integrity of labels, seals and closures, and shall document any irregularities.
8. Receipt
8.1 The Freight Forwarder shall acknowledge receipt of the goods, subject to reservations where applicable. In case of doubt, the receipt issued by the Freight Forwarder confirms only the number and type of Packages, but not their contents, value, weight or other stated quantity.
8.2 In the case of pre-loaded or sealed loading units, such as containers or swap bodies, and data previously transmitted by the Principal, the accuracy of a receipt concerning the number and type of loaded Packages shall be deemed disproved if the Freight Forwarder notifies the Principal immediately of any (quantity) discrepancies or damage after unloading the loading unit.
8.3 As proof of Delivery, the Freight Forwarder shall request from the Consignee a Delivery receipt covering the Packages specified in the order or in other accompanying documents. If the Consignee refuses to issue a Delivery receipt, the Freight Forwarder shall request instructions. The Principal may request the Delivery receipt within one year after Delivery of the goods.
8.4 Any signed document evidencing the performance of the order shall serve as a receipt for takeover or Delivery, such as delivery notes, freight forwarder’s receipts, consignment notes, sea waybills, loading bills or bills of lading.
8.5 The receipt for takeover or Delivery may also be created electronically or digitally, unless the Principal requests the issue of a consignment note, sea waybill, loading bill or bill of lading.
9. Instructions
The Freight Forwarder shall comply with any instructions concerning the goods issued to it after conclusion of the contract, unless carrying out such instructions would threaten to disrupt its business operations or cause damage to the consignments of other Principals or Consignees. If the Freight Forwarder intends not to comply with an instruction received, it shall immediately notify the person who issued the instruction.
10. Freight Payment, Cash on Delivery
Any notification by the Principal that the order is to be carried out freight collect or, for example, at the expense of the Consignee or a third party in accordance with the Incoterms, shall not affect the Principal’s obligation towards the Freight Forwarder to pay the remuneration and all other expenses (freight charges, customs duties and other charges). Cash-on-delivery instructions, e.g. pursuant to Section 422 HGB or Article 21 CMR, remain unaffected.
11. Failure to Comply with Loading and Unloading Times; Waiting Time Charges
11.1 If the Principal is responsible for loading or unloading the goods, it shall comply with the agreed loading or unloading time or, in the absence of an agreement, a reasonable loading or unloading time.
11.2 If, in road freight transport, a specific Point of Time or Time Frame for the provision of a Vehicle is agreed or notified by the Freight Forwarder without objection from the Principal, Shipper or Consignee, the loading or unloading time for full truck loads (excluding bulk goods), irrespective of the number of consignments per Place of Loading or Place of Discharge, shall be a maximum of two hours each for loading and unloading in the case of Vehicles with a permissible gross weight of 40 tonnes. These periods shall be reduced appropriately on a case-by-case basis for Vehicles with a lower permissible gross weight.
11.3 The loading or unloading period shall begin when the road Vehicle arrives at the Place of Loading or Place of Discharge (e.g. when reporting to the gatehouse) and shall end when the Principal or Consignee has fully fulfilled its obligations. If a specific Time of Performance has been agreed for the provision of the road Vehicle at the Place of Loading or Place of Discharge, the loading or unloading period shall not begin before the agreed arrival time.
11.4 If the loading or unloading period is exceeded due to a contractual agreement or for reasons not attributable to the Freight Forwarder’s sphere of risk, the Principal shall pay the Freight Forwarder the agreed waiting time charges or, in the absence of an agreement, reasonable waiting time charges.
11.5 The above provisions shall apply accordingly if the Freight Forwarder is obliged to load or unload the goods and the Principal is only obliged to make the goods available for loading or to take receipt of them after unloading.
12. Obstacles to Performance; Force Majeure
12.1 If the Freight Forwarder is unable to take over the goods, or unable to take them over on time, it shall immediately notify the Principal or Shipper and request appropriate instructions. Section 419 HGB shall apply accordingly. The Principal shall remain entitled to terminate the Freight Forwarding Contract without the Freight Forwarder being entitled to assert claims under Section 415 (2) HGB.
12.2 Obstacles to performance that cannot be attributed to the sphere of risk of either contracting party shall release the parties from their performance obligations for the duration of the disruption and to the extent of its effects. Such obstacles to performance include force majeure, civil unrest, acts of war or terrorism, strikes and lockouts, blockades of transport routes and other unforeseeable, unavoidable and serious events. In the event of an obstacle to performance, each contracting party shall immediately notify the other party; the Freight Forwarder shall also request instructions from the Principal.
13. Delivery
13.1 If, upon arrival at the Place of Discharge, it becomes apparent that unloading cannot be completed within the unloading period, the Freight Forwarder shall immediately notify the Principal and request appropriate instructions. Section 419 HGB shall apply.
13.2 If the Freight Forwarder cannot comply with the agreed Time of Performance or, in the absence of an agreement, a reasonable time for Delivery of the goods, it shall request instructions from the Principal or the Consignee.
13.3 If the Consignee cannot be found at their home, business premises or shared accommodation facility where the Consignee resides, the goods may be delivered, provided there is no obvious doubt as to the recipient’s entitlement to receive them:
13.3.1 at the residence, to an adult family member, a person employed by the family or an adult permanent resident of the household,
13.3.2 at business premises, to a person employed there,
13.3.3 at shared accommodation facilities, to the head of the facility or an authorised representative.
13.4 If the Freight Forwarder has entered into an agreement with the Principal or Consignee stipulating that Delivery shall take place without physical handover to the Consignee (e.g. night delivery, garage delivery or conveyor-belt delivery), Delivery shall be deemed to have taken place when the goods are physically deposited at the agreed location.
13.5 Delivery may only take place under the supervision of the Principal, Consignee or another third party authorised to receive the goods.
Clauses 13.3 and 13.4 remain unaffected.
14. Information and Surrender Obligations of the Freight Forwarder
14.1 The Freight Forwarder shall provide the Principal with the necessary information, provide information on the status of the business upon request and render an account after its completion. However, it shall only be obliged to disclose costs if it is acting on behalf of and for the account of the Principal.
14.2 The Freight Forwarder shall surrender to the Principal everything it receives for the performance of the business and everything it obtains in the course of conducting the business.
15. Warehousing
15.1 The Principal shall, where necessary, package and label the goods, provide the relevant documents and supply all information required by the Freight Forwarder for proper storage.
15.2 At the Freight Forwarder’s discretion, storage shall take place in its own warehouses or, unless contractually excluded, in third-party warehouses. If the Freight Forwarder stores the goods with a third-party warehouse keeper, it shall immediately notify the Principal in writing of the warehouse keeper’s name and the storage location or, if a warehouse receipt has been issued, record these details on that receipt.
15.3 The Freight Forwarder shall ensure the proper maintenance and upkeep of warehouses and other storage areas, access roads within the premises and the security of the goods, particularly against theft. Additional security measures, e.g. those exceeding statutory fire safety requirements, must be expressly agreed.
15.4 Unless otherwise agreed:
15.4.1 acceptance of the goods for storage shall commence when the Freight Forwarder begins unloading the Vehicle, and release of the goods shall end when the Freight Forwarder completes loading the Vehicle,
15.4.2 inventory records shall be maintained using the Freight Forwarder’s warehouse management system,
15.4.3 a physical inventory shall be carried out once a year. At the Principal’s instruction, the Freight Forwarder shall carry out additional physical inventories against reimbursement of the costs incurred.
15.5 Upon taking over the goods, the Freight Forwarder shall, where appropriate means of inspection are available, carry out an incoming inspection in accordance with Section 438 HGB, covering the type, quantity and condition of the goods, marks, numbers, number of Packages and externally visible damage.
15.6 Regular inspections shall be carried out by suitable personnel of the Freight Forwarder to ensure the security of the goods.
15.7 In the event of stock shortages or anticipated changes in the condition of the goods, the Freight Forwarder shall immediately inform the Principal and request instructions. Section 471 (2) HGB remains unaffected.
15.8 Any additional service and information obligations must be expressly agreed.
16. Remuneration
The agreed remuneration, which includes the costs of transportation and storage, covers all services to be performed under the Freight Forwarding Contract. Additional charges for costs arising during the normal course of transportation or warehousing and foreseeable at the time the offer was submitted may not be claimed separately unless otherwise agreed. Errors in calculation shall be borne by the party making the calculation. Sections 412, 418, 419, 491, 492 and 588 to 595 HGB, as well as comparable provisions of international conventions, remain unaffected.
17. Claims for Reimbursement of Expenses and Indemnification
17.1 The Freight Forwarder shall be entitled to reimbursement of expenses which, under the circumstances, it was entitled to consider necessary and for which it is not responsible, in particular contributions to general average proceedings, detention or demurrage charges, and repackaging costs incurred to protect the goods.
17.2 If the Principal instructs the Freight Forwarder to take receipt of goods and, upon Delivery to the Freight Forwarder, freight charges, cash-on-delivery amounts, customs duties, taxes, other charges or expenses are demanded, the Freight Forwarder shall be entitled, but not obliged, to advance such amounts, provided that it was entitled to consider them necessary under the circumstances, and to demand reimbursement from the Principal, unless otherwise agreed.
17.3 Upon request, the Principal shall indemnify the Freight Forwarder against expenses such as freight claims, contributions to general average proceedings, customs duties, taxes and other charges demanded from the Freight Forwarder, particularly in its capacity as a person authorised to dispose of or as the holder of third-party goods, provided that the Freight Forwarder is not responsible for such expenses.
18. Invoices and Foreign Currencies
18.1 Claims for remuneration by the Freight Forwarder require receipt of an invoice or payment statement that complies with statutory requirements. Unless otherwise agreed, where Delivery is undisputed, the due date for payment does not depend on the submission of proof of Delivery.
18.2 The Freight Forwarder shall be entitled, at its discretion, to demand payment from foreign Principals or Consignees in their national currency or in euros.
18.3 If the Freight Forwarder owes an amount in a foreign currency or advances an amount in a foreign currency, it shall be entitled to demand payment either in that foreign currency or in euros. If payment in euros is requested, conversion shall be made at the official exchange rate applicable on the date on which the Freight Forwarder made the payment. The Freight Forwarder shall provide evidence of that exchange rate.
18.4 Payment by means of a self-billing or credit note procedure must be expressly agreed. In case of doubt, the Principal shall issue the relevant credit notes immediately after the service has been performed. Clause 18.1, sentence 1, shall not apply to the credit note procedure.
19. Set-Off and Right of Retention
Set-off or the exercise of a right of retention against claims arising from the Freight Forwarding Contract and related non-contractual claims shall only be permissible if the counterclaim is due, undisputed, ready for a decision or established by a final and binding judgment.
20. Lien and Right of Retention
20.1 To secure its claims arising from services performed under the Freight Forwarding Contract, the Freight Forwarder may exercise the statutory liens and rights of retention to which it is entitled.
20.2 The realisation of pledged goods shall take place in accordance with statutory provisions, subject to the following conditions:
20.2.1 when exercising the statutory lien of a carrier or sea carrier, notice of the intended sale of the pledged goods and the required notifications shall be addressed to the Consignee,
20.2.2 the period of one month specified in Section 1234 BGB shall be replaced by a period of one week.
20.3 The Principal shall be entitled to prohibit the exercise of the lien if it provides the Freight Forwarder with security equivalent to its claims (e.g. an unconditional bank guarantee).
21. Insurance of the Goods
21.1 The Freight Forwarder shall arrange insurance for the goods (e.g. transport or storage insurance) with an insurer of its choice if the Principal instructs it to do so before the goods are handed over.
21.2 The Freight Forwarder shall arrange insurance for the goods if doing so is in the Principal’s interest. The Freight Forwarder may presume that such an interest exists, in particular, if:
21.2.1 the Freight Forwarder arranged insurance under a previous Freight Forwarding Contract during an ongoing business relationship,
21.2.2 the Principal has stated in the order a “value of the goods for insurance purposes”.
21.3 It shall generally not be presumed that the Principal has an interest in obtaining insurance under Clause 21.2 if:
21.3.1 the Principal prohibits the arrangement of insurance,
21.3.2 the Principal is itself a freight forwarder, carrier or warehouse keeper.
21.4 When arranging insurance, the Freight Forwarder shall comply with the Principal’s instructions, particularly regarding the insured sum and the risks to be covered. If no instructions are received, the Freight Forwarder shall decide on the type and scope of insurance at its reasonable discretion and arrange insurance under customary market conditions.
21.5 If the Freight Forwarder is unable to obtain insurance cover due to the nature of the goods to be insured or for any other reason, it shall immediately notify the Principal.
21.6 If, after conclusion of the contract, the Freight Forwarder arranges insurance at the Principal’s instruction, collects an indemnity payment or performs other activities in connection with the handling of insurance claims or general average proceedings, it shall be entitled to customary local remuneration or, in the absence of such customary remuneration, reasonable remuneration, in addition to reimbursement of its expenses, even if this has not been expressly agreed.
22. Liability of the Freight Forwarder; Assignment of Claims for Compensation
22.1 The Freight Forwarder shall be liable for damage in accordance with statutory provisions. However, the following provisions shall apply unless mandatory statutory provisions or provisions that cannot be modified by standard terms and conditions provide otherwise.
22.2 In all cases in which the Freight Forwarder is liable on the basis of fault for loss of or damage to the goods (cargo damage) under Clauses 23.3 and 24, instead of damages it shall pay compensation for the value of the goods and reimbursement of costs in accordance with Sections 429, 430 and 432 HGB.
22.3 In the case of inventory discrepancies, where shortages and surpluses occur simultaneously in the stocks of the same Principal, the Freight Forwarder may offset the stock values against each other when determining the compensation for value in cases covered by Clause 24.
22.4 If the Freight Forwarder has claims against a third party arising from a Damage Case for which it is not liable, or if the Freight Forwarder has claims against a third party for compensation exceeding its own liability, it shall assign such claims to the Principal upon request, unless the Freight Forwarder has agreed to pursue such claims on behalf of and at the risk of the Principal. Sections 437 and 509 HGB remain unaffected.
23. Limitations of Liability
23.1 The Freight Forwarder’s liability for cargo damage while the goods are in its custody pursuant to Section 431 (1), (2) and (4) HGB, with the exception of damage arising from sea carriage and instructed storage, shall be limited as follows:
23.1.1 to 8.33 Special Drawing Rights for each kilogram if the Freight Forwarder acts as:
– a carrier within the meaning of Section 407 HGB,
– a freight forwarder acting as carrier in its own name within the meaning of Sections 458 to 460 HGB, including a fixed-cost or groupage freight forwarder, or
– a freight forwarder with custody of the goods within the meaning of Section 461 (1) HGB;
23.1.2 to 2 instead of 8.33 Special Drawing Rights for each kilogram if the Principal has concluded a Freight Forwarding Contract with the Freight Forwarder for transportation using different means of transport, including sea carriage, and the place where the damage occurred is unknown. If the place of damage is known, liability shall be determined in accordance with Section 452a HGB, taking into account the exclusions and limitations of liability under the ADSp.
23.1.3 If the Freight Forwarder’s liability under Clause 23.1.1 exceeds EUR 1.25 million per Damage Case, its liability shall additionally be limited, for each Damage Case, to a maximum of EUR 1.25 million or 2 Special Drawing Rights for each kilogram, whichever amount is higher.
23.2 The Freight Forwarder’s liability for cargo damage while the goods are in its custody shall, in the case of a Freight Forwarding Contract involving sea carriage and in the case of international transportation, be limited to the maximum liability amount prescribed by law for the relevant transportation. Clause 25 remains unaffected.
23.3 In cases not covered by Clauses 23.1 and 23.2 (such as Section 461 (2) HGB and Sections 280 et seq. BGB), the Freight Forwarder’s liability for cargo damage shall be limited in accordance with Section 431 (1), (2) and (4) HGB as follows:
23.3.1 in the case of a Freight Forwarding Contract involving sea carriage or transportation using different means of transport, including sea carriage, to 2 Special Drawing Rights for each kilogram,
23.3.2 in all other Freight Forwarding Contracts, to 8.33 Special Drawing Rights for each kilogram.
23.3.3 Furthermore, the Freight Forwarder’s liability shall be limited to a maximum of EUR 1.25 million per Damage Case.
23.4 The Freight Forwarder’s liability for damage other than cargo damage, with the exception of damage arising from instructed storage, personal injury and property damage to third-party goods, shall be limited to three times the amount payable in the event of loss of the goods under Clause 23.3.1 or 23.3.2. Furthermore, the Freight Forwarder’s liability shall be limited to a maximum of EUR 125,000 per Damage Case.
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) and 523 HGB, as well as corresponding liability provisions in international conventions which cannot be deviated from by means of pre-formulated standard terms and conditions, remain unaffected.
23.4.2 Clause 23.4 shall not apply to statutory provisions such as Article 25 Montreal Convention (MC), Article 5 CIM or Article 20 CMNI, which extend or permit the extension of the Freight Forwarder’s liability.
23.5 If the Freight Forwarder’s liability under Clauses 23.1, 23.3 and 23.4 exceeds EUR 2.5 million per Damage Event, its liability shall additionally be limited, irrespective of the number of claims arising from one Damage Event, to a maximum of EUR 2.5 million per Damage Event or 2 Special Drawing Rights for each kilogram of the lost or damaged goods, whichever amount is higher. If there are several injured parties, the Freight Forwarder shall be liable to each in proportion to the amount of their respective claims.
24. Limitations of Liability for Instructed Storage, Inventories and Declaration of Value
24.1 In the case of instructed storage, the Freight Forwarder’s liability for cargo damage shall be limited as follows:
24.1.1 in accordance with Section 431 (1), (2) and (4) HGB, to 8.33 Special Drawing Rights for each kilogram,
24.1.2 to a maximum of EUR 35,000 per Damage Case.
24.1.3 If the Principal’s damage consists of a discrepancy between the book inventory and the actual stock, the Freight Forwarder’s liability shall, in deviation from Clause 24.1.2, be limited to EUR 70,000 per year, irrespective of the number and form of inventories carried out and the number of Damage Cases causing the inventory discrepancy.
24.2 The Principal may, before the goods are stored, declare a value in text form exceeding the maximum amounts specified in Clause 24.1 in order to increase the Freight Forwarder’s liability, subject to payment of an agreed surcharge. In this case, the declared value shall replace the relevant maximum liability amount.
24.3 In the case of instructed storage, the Freight Forwarder’s liability for damage other than cargo damage, with the exception of personal injury and property damage to third-party goods, shall be limited to EUR 35,000 per Damage Case.
24.4 In all cases of instructed storage, the Freight Forwarder’s liability, with the exception of personal injury and property damage to third-party goods, shall be limited to EUR 2.5 million per Damage Event, irrespective of the number of claims arising from that Damage Event. If there are several injured parties, the Freight Forwarder shall be liable to each in proportion to the amount of their respective claims. Clause 24.2 remains unaffected.
25. Exclusion of Liability for Sea and Inland Waterway Transportation
25.1 In accordance with Section 512 (2) No. 1 HGB, it is agreed that, in its capacity as a sea carrier, the Freight Forwarder shall not be responsible for the fault of its employees or the ship’s crew if the damage was caused by an act or omission in the navigation or other operation of the ship, but not in the performance of measures taken primarily in the interests of the cargo, or by fire or explosion on board a ship.
25.2 In accordance with Article 25 (2) CMNI, it is agreed that, in its capacity as carrier or performing carrier, the Freight Forwarder shall not be liable for damage:
25.2.1 caused by an act or omission of the shipmaster, pilot or other persons serving on board the ship or a pusher or tugboat during the nautical operation of the vessel or during the formation or dissolution of a pushed or towed convoy, provided that the Freight Forwarder has fulfilled its obligations concerning the crew under Article 3 (3) CMNI, unless the act or omission was committed with the intention of causing damage or recklessly and with knowledge that such damage would probably result,
25.2.2 caused by fire or explosion on board the ship, unless it is proven that the fire or explosion was caused by a fault of the Freight Forwarder, the performing carrier or their employees or agents, or by a defect in the ship,
25.2.3 attributable to defects in its own ship or a rented or chartered ship which existed before the commencement of the voyage, provided that it proves that such defects could not have been discovered before the voyage despite the exercise of due diligence.
25.3 Clause 22.4 remains unaffected.
26. Non-Contractual Claims
The above exclusions and limitations of liability shall also apply to non-contractual claims in accordance with Sections 434 and 436 HGB. Clause 23.4.1 shall apply accordingly.
27. Qualified Fault
27.1 The exclusions and limitations of liability specified in Clauses 22.2, 22.3, 23.3 and 23.4 in conjunction with 23.5, 24 and 26 shall not apply if the damage was caused:
27.1.1 intentionally or through gross negligence on the part of the Freight Forwarder or its vicarious agents, or
27.1.2 through a breach of Material Contractual Obligations, in which case claims for compensation shall be limited to the foreseeable damage typical for the contract.
27.2 In deviation from Clause 27.1.2, the limitations of liability under Clauses 24.1 and 24.2 shall only cease to apply in the event of an intentional or grossly negligent breach of Material Contractual Obligations.
27.3 Sections 435 and 507 HGB remain unaffected within their respective scopes of application.
27.4 Clause 27.1 shall not apply to statutory provisions such as Article 25 of the Montreal Convention (MC), Article 36 CIM or Articles 20 and 21 CMNI, which extend or permit the extension of the Freight Forwarder’s liability, or extend the attribution of fault to employees or other third parties.
28. Liability Insurance of the Freight Forwarder
28.1 The Freight Forwarder shall be obliged to take out and maintain liability insurance with an insurer of its choice under customary market conditions. Such insurance shall cover its liability under the ADSp and statutory provisions at least to the extent of the standard liability limits. It shall be permissible to agree on maximum indemnity amounts per Damage Case, Damage Event and year, as well as on a reasonable deductible payable by the Freight Forwarder.
28.2 At the Principal’s request, the Freight Forwarder shall provide evidence of valid liability insurance by submitting an insurance certificate. If it fails to provide such evidence within a reasonable period, the Principal may terminate the Freight Forwarding Contract extraordinarily.
28.3 The Freight Forwarder may only rely on the liability provisions of the ADSp in relation to the Principal if it maintains sufficient insurance coverage when the order is placed.
29. Liability of the Principal
29.1 The Principal’s liability under Sections 414, 455, 468 and 488 HGB shall be limited to EUR 200,000 per Damage Event.
29.2 The above limitation of liability shall not apply to personal injury, i.e. injury to life, body or health, or where the damage was caused intentionally or through gross negligence on the part of the Principal or its vicarious agents, or through a breach of Material Contractual Obligations. In the latter case, claims for compensation shall be limited to the foreseeable damage typical for the contract.
30. Applicable Law, Place of Performance and Jurisdiction
30.1 The legal relationship between the Freight Forwarder and the Principal shall be governed by German law.
30.2 The place of performance for all parties shall be the location of the Freight Forwarder’s branch to which the order or enquiry is addressed.
30.3 For all legal disputes arising from the Freight Forwarding Contract, its initiation or in connection with it, the place of jurisdiction for all parties, insofar as they are merchants, shall be either the location of the Principal’s branch or the location of the Freight Forwarder’s branch to which the order or enquiry is addressed. In the cases covered by Articles 31 CMR and 46 § 1 CIM, the above jurisdiction agreement shall apply as an additional jurisdiction agreement. It shall not apply in the cases covered by Article 39 CMR, Article 33 of the Montreal Convention (MC) or Article 28 of the Warsaw Convention (WA).
31. Confidentiality
The parties shall treat as confidential all non-public information that becomes known to them in the course of performing the Freight Forwarding Contract.
Such information may only be used for the purpose of providing the agreed services. The parties shall impose this confidentiality obligation on any other legal persons engaged by them to fulfil their obligations under the Freight Forwarding Contract.
32. Compliance
32.1 The Freight Forwarder undertakes to comply with minimum wage legislation and regulations concerning minimum working conditions and shall confirm such compliance in text form at the Principal’s request. The Freight Forwarder shall indemnify the Principal against liability relating to the statutory minimum wage if the Freight Forwarder, or any subcontractor or hirer engaged in connection with the Freight Forwarding Contract, fails to pay employees the statutory minimum wage and a claim is brought against the Principal.
32.2 In the case of transportation, the Freight Forwarder shall ensure that it or the company performing the transportation:
32.2.1 where the German Road Haulage Act (GüKG) applies, holds a permit under Section 3 GüKG, an authorisation under Section 6 GüKG or a Community licence, or does not unlawfully use such a permit, authorisation or licence,
32.2.2 where the German Road Haulage Act (GüKG) applies, employs driving personnel for the transportation who fulfil the requirements of Section 7b (1), sentence 1, GüKG,
32.2.3 upon request, provides all documents that must legally be carried during transportation, insofar as the Principal or third parties are required to fulfil statutory inspection obligations.
32.3 The Freight Forwarder or the company performing the transportation shall organise the work of its driving personnel in such a way that the prescribed working, driving and rest periods can be observed. The consumption of alcohol and drugs while operating a Vehicle is strictly prohibited.
32.4 Both parties undertake to comply with the statutory provisions applicable to their respective businesses. They support and respect the principles of the United Nations Global Compact (UNGC), the Universal Declaration of Human Rights of the United Nations and the International Labour Organization’s Declaration on Fundamental Principles and Rights at Work of 1998, in accordance with national laws and customs. In particular, both parties shall ensure within their businesses that:
32.4.1 no children are employed and no forced labour is used,
32.4.2 the respective national laws and regulations concerning working hours, wages and salaries and other employer obligations are complied with,
32.4.3 applicable occupational health and safety regulations are observed and a safe and health-promoting working environment is provided in order to protect employees’ health and prevent accidents, injuries and work-related illnesses,
32.4.4 any discrimination based on race, religion, disability, age, sexual orientation or gender is prohibited,
32.4.5 international anti-corruption standards, as established by the UNGC and applicable local anti-corruption and anti-bribery legislation, are observed,
32.4.6 all applicable environmental laws and regulations are complied with,
32.4.7 their business partners and subcontractors are encouraged to apply the aforementioned principles in their own business activities.