General Terms and Conditions
FRACHTbahn Traktion GmbH, Status as of: November 11, 2020
1. Scope and Agreement of the GTC:
The General Terms and Conditions of Business (“GTC”) apply to all services provided by FRACHTbahn (as contractor: commissioned carrier) in dealings with companies, regardless of whether these are forwarding, freight, storage, commission or other transactions connected with the transport business in the broader sense. The client agrees that these GTC shall apply to all future transactions, irrespective of any further particular reference, in particular in the case of orders placed verbally, by telephone or by telex. Any deviating terms and conditions of the client that are not expressly recognised (in writing) by FRACHTbahn shall be invalid, even if they are not explicitly rejected. Under no circumstances can the client rely on his own general terms and conditions, even if these may have been contained in orders, correspondence and other communications. The agreement of these GTC shall not affect the validity of mandatory provisions of conventions as amended such as CIM.
2. Applicable provisions and implementation of services
Services are provided exclusively on the legal basis applicable to the respective area. Among others, these are:
– CIM, AVV, UIC Loading Guidelines, RID, GGBG
3. Offers, prices & conclusion of contract
Our offers are subject to change without notice until a binding contract has been concluded and are valid on the basis of the wage and material costs and exchange rates valid at the time of submission. Offers and project documents are the intellectual property of the provider, may not be made available to third parties without the consent of the provider and may be demanded back from the provider at any time.
All prices quoted are always net prices in Euro, not yet including value added tax.
A service contract is deemed to have been concluded when the customer has verbally or in writing placed a corresponding order. We send our consignment note instructions once the order is placed. With the transfer of these consignment note instructions into the freight documents, our offer is considered accepted and we are deemed to have been commissioned. Changes and additions to the offer only come into effect if they have also been confirmed in writing.
4. Use of auxiliary agents
FRACHTbahn is entitled to employ auxiliary agents, in particular to entrust the execution of the transport in whole or in part to one or more performing carriers. FRACHTbahn shall exercise the care of a prudent
businessman/carrier in selecting the company it commissions.
5. Transport obstructions, traffic restrictions
In the event of transport obstructions (traffic restrictions) the execution of the transport service may be suspended in whole or in part. The client must be informed of such obstacles and, if necessary, issue appropriate instructions.
6. Consignment note, transport documents
Unless otherwise agreed, the customer/client must issue a CIM consignment note or a CUV wagon note. The consignment note/wagon note issued in full by the customer/client is considered to be the transport order. If the customer/client places the transport order without using a consignment note/wagon note, he is liable for the correctness and completeness of all information contained in the transport order. In order to be able to secure the transport accordingly, the customer/client must affix the note “Food, feed or contact material” to the consignment note in the case of transport of food and feed or their packaging.
7. Suitable wagons, loading units, availability
If agreed, FRACHTbahn will provide wagons and loading units suitable for transport, provided that availability can be guaranteed and the intended use/destination permits the use of the desired wagon. The wagons provided are in a technical condition and are as clean as the desired type of transport requires. FRACHTbahn reserves the right to provide wagons of a similar type if the type of wagon requested by the client is not available.
8. Means of transport provided by the client
For the use of wagons, loading units as means of transport the “general contract for the use of freight wagons” (AVV) applies. The client guarantees that all wagons handed over have a licence valid for the entire duration of the transport, are free of defects and comply with the maintenance regulations of the ECM.
9. Unused wagons, loading units
For a wagon or loading unit ordered but not used, a fee in the amount of the locally customary rental fee shall be charged in any case for the period until it is used again.
10. Loading rules
The customer/client is responsible for loading and unloading, unless otherwise agreed. Unless otherwise agreed, in case of combined transport the loading and unloading obligation of the customer/client also includes the transfer of the intermodal transport unit (ITE) to or from the wagon. During loading and unloading, the requirements of the UIC Loading Guidelines (available at: https://uic.org/freight/wagon-issues/loading-rules) as amended must be observed. FRACHTbahn is entitled to inspect wagons and ITE for safe loading. If there is a considerable discrepancy between the agreed and the actual load, if the permissible gross weight is exceeded or if the type of goods or loading impedes transport, FRACHTbahn will request the customer/client to take remedial action within a reasonable period of time. If the deadline expires without result, FRACHTbahn is also entitled to assert the rights under Article 22 CIM. The customer/client accepts the determination of any exceeding of the total weight or load limit or axle load by measurement results of dynamic measuring equipment of the infrastructure manager. The customer/client must affix the seals to covered wagons, containers, swap bodies, semi-trailers or other ITE of closed construction serving combined transport which are handed over for loaded transport. The type and design of seals must be suitable for identification purposes and as evidence in transport law and, where appropriate, must meet the requirements of customs or other administrative authorities. The customer/client is obliged to immediately remove loading and unloading residues at the loading point, including the access routes, at his own expense.
11. Cancellation regulations (cancellation and modification order regulation)
If the customer cancels or reorders scheduled orders, FRACHTbahn is entitled to the following remuneration:
Cancellations/changes made more than 72 hours before scheduled departure: 35% of the round trip freight or agreed remuneration
Cancellations/changes between 72 and 24 hours before scheduled departure: 50% of the round trip freight or agreed remuneration
Cancellations/changes less than 24 hours before scheduled departure: 80% of the round trip freight or agreed remuneration
12. Deficiency check
The client (or the consignor/loader/terminal operator attributable to him or any third party acting on behalf of the client or consignee) must inspect the means of transport for visible defects, cleanliness and suitability for the cargo in question before loading. Loading shall be deemed to constitute the approval and acknowledgement that the means of transport is free of defects. In the event of defects or unsuitability of the means of transport, no loading may be carried out and FRACHTbahn must be notified accordingly. The client shall be liable for damage to all means of transport caused by him or a third party commissioned by him or otherwise attributable to him.
13. Dangerous goods and compliance with technical regulations
The customer/client must comply with the regulations for the transport of dangerous goods (according to ADR, RID or, if applicable, IMDG) as amended. In particular, the customer/client must inform FRACHTbahn in writing of the dangerous goods and provide it with all information and documents required for the performance of its duties.
Hazardous goods will only be accepted/delivered by FRACHTbahn if it has been agreed with the customer/client that he will assume the safety and custody obligations until collection or from the time of provision. Before taking over the consignments, they must comply with the regulations for the transport of dangerous goods. The customer/client shall be liable to FRACHTbahn for all damages and disadvantages and shall indemnify FRACHTbahn from all obligations towards third parties arising from the transport, safekeeping or other handling of the goods and which are attributable to the nature of the goods and the failure to observe the duties of care incumbent on the customer/client.
If the loading deadlines are exceeded, FRACHTbahn will charge a demurrage charge in line with local market rates; this also applies in the event of delays which have occurred (even) without the fault of the client.
15. Cleaning of loading and unloading areas
If the loading or unloading site becomes soiled, it must be cleaned immediately by the client (or by the shipper/transshipper/terminal operator attributable to him or any third party acting on behalf of the client or consignee) at his expense. The collection of loading residues and the like in the track area is prohibited; any cleaning will be organised by FRACHTbahn and the costs incurred will be charged to the client.
16. Cleaning of means of transport, loading units
The client (or the shipper/transshipper/terminal operator attributable to him or any third party acting on behalf of the client or consignee) is responsible for ensuring that the means of transport used are completely unloaded/and properly cleaned and handed over in good time at the agreed place. In case of violation of these obligations, all expenses will be charged to the client.
17. Provision for acceptance
In the absence of other explicit and written agreements, FRACHTbahn shall make the freight in or on the means of transport available for acceptance by the recipient at the receiving station/railway terminal. Liability is excluded in the case of intermediate storage in railway stations, terminals or transhipment centres. The client is obliged to accept the freight immediately upon arrival or to ensure proper security measures.
18. Packaging suitable for transport
The client assures that the packaging and load unit security are suitable for transport.
19. Exceptional consignments
Loads whose transport requires special measures due to their volume, mass or nature with regard to the installations or equipment are considered as exceptional consignments. The additional expenditure for such consignments will be invoiced separately. If the consignor or the consignee is not able to accept the wagons intended for him in time, he shall be liable (regardless of fault) for the costs/expenses/damage incurred.
20. Delivery periods
The delivery periods for the carriage of goods are set out in CIM Article 16, even if the actual carriage is not covered by the scope of CIM. The delivery periods laid down in this provision begin with the acceptance of the goods. They are suspended on Saturdays, Sundays and public holidays, unless otherwise agreed. The delivery periods are extended by the duration of the delay caused through no fault of the carrier. If the delivery period would end at a time outside the operating hours/transhipment times of the station of destination applicable to the place of delivery, it shall end at the next operating hours/transhipment times agreed or applicable to the place of delivery. Delivery periods deviating from Article 16 of CIM can only be effectively agreed if they are given in the consignment note and this consignment note has been signed by the client and by FRACHTbahn. Timetables and transport plans and train schedules notified or sent to the client are no agreements regarding delivery periods, but only approximate operational guidelines. Exceeding these guidelines without simultaneously exceeding the deadlines set out in CIM Article 16 cannot give rise to any liability of any kind on the part of FRACHTbahn.
21. Invoices, delay in payment
Invoices from FRACHTbahn are due for payment within 14 days of the date of issue and are to be paid immediately if possible. Delay of payment shall occur, without the need for a reminder or other preconditions, at the latest after the expiry of 5 days after the due date, unless it has already occurred before that date by law. In the event of default, FRACHTbahn may charge the usual local expenses, charges and interest. Further claims according to law shall remain unaffected. Advance payments or securities (e.g. bank guarantee) may be demanded if necessary.
The client shall immediately release FRACHTbahn upon request from claims (of whatever kind) or additional claims for freight, customs duties, taxes and other levies which are made against FRACHTbahn, in particular as the party entitled to dispose of the goods. Otherwise, FRACHTbahn shall be entitled to take the measures it deems appropriate to secure or release itself, if necessary and if justified in the situation, also by destroying the goods.
23. Duty to inform and to warn
The client must inform FRACHTbahn in good time and in a manner customary in the trade of all obligations under public law which are connected with the possession of the goods. Furthermore, the client is obliged to warn about special characteristics of the goods. The client must therefore, among other things, give separate (written) notification if the value of the goods exceeds 17 Special Drawing Rights (SDR) per kilogram, if the goods are hazardous goods or waste or if there is a particular risk of theft associated with the freight, for example. The client shall be liable to FRACHTbahn for all consequences of failure to do so.
24. Prohibition of set-off
Set-off or retention against claims of FRACHTbahn is only permissible with the client’s due counterclaims that cannot be objected.
25. Right of lien and retention
FRACHTbahn shall have a lien and a right of retention on the goods or other values in its power of disposition for all due and undue claims it has against the client arising from all activities. Insofar as the right of lien or retention according to the first sentence secures claims which are not secured by the statutory right of lien or retention, only such goods and values which belong to the client are covered. FRACHTbahn may only exercise a lien or right of retention in respect of such claims that are not connected with the goods insofar as they are not disputed or if the debtor’s financial situation endangers FRACHTbahn’s claims.
Insofar as liability is determined by mandatory legal provisions (such as CIM-COTIF), these provisions shall apply (special provisions of freight law). Otherwise, FRACHTbahn shall be liable exclusively in accordance with the following liability provisions:
In the event of loss of or damage to goods, the liability of FRACHTbahn is limited to 4 Special Drawing Rights (SDR) per kilogram of damaged or lost goods or up to an amount of 500 SDR per item or unit, whichever is lower.
In the event that delivery deadlines are exceeded, liability is limited to half of the freight.
For all other damages the maximum liability is € 4.000,- per claim.
Furthermore, the liability of FRACHTbahn is limited to direct damage and the aforementioned maximum liability amounts; liability for all other types of damage or loss (including loss of profit, interest, loss of income from future business opportunities) is excluded.
It is not possible to agree on a declaration of value or interest. FRACHTbahn contradicts any kind of declaration of value or interest, especially those which could increase the maximum liability amounts provided for in international conventions. The announcement of a contract value or value of goods does not lead to an agreement on a declaration of value or interest. The agreement of a declaration of value or interest can only be made by a written agreement signed by both companies on a deed.
27. Statement of facts
For all transports (also outside the scope of CIM) the following must also be observed: All claims against FRACHTbahn arising from the contract of transport in the event of partial loss, damage or exceeding the delivery time are extinguished upon acceptance of the goods by the entitled party. The claims only do not expire:
in the case of partial loss or damage, if the loss or damage has been established before acceptance of the goods by the person entitled by means of a statement of facts under railway law, following the example of Article 42 of CIM;
in the case of damage which is not apparent and which was not discovered until after acceptance of the goods by the person entitled thereto, if he requests such discovery, as provided for in Article 42 of CIM, immediately upon discovery of the damage and not later than seven days after acceptance of the goods and also proves that the damage occurred in the period between taking over of the goods and delivery;
in the event that the delivery period is exceeded if the entitled party has asserted its claims against FRACHTbahn within 30 days.
28. Limitation period
All claims against FRACHTbahn, irrespective of the legal grounds and the degree of fault, shall become time- barred within six months. The limitation period shall commence when the person entitled to the claim becomes aware of the claim, but at the latest when the goods are delivered.
29. Omission of liability relief
All limitations of liability and time limits, in particular the time limits for lodging a complaint and the determination of damage (statement of facts) shall apply without exception, unless the client, entitled party, proves that the damage was caused by an act or omission of FRACHTbahn which was committed either with the intention of causing such damage or recklessly and in the knowledge that such damage would probably occur.
30. Foreign Trade Regulations & Dual-Use Goods
The client/customer undertakes to comply with all foreign trade regulations of the countries concerned and the European Union; this applies in particular to the import and export of goods subject to authorisation, including so-called dual-use goods (economic goods that can be used for both civil and military purposes). The client/customer must inform us in writing and in good time of all bids, prohibitions and restrictions concerning the goods to be used. The client/customer shall indemnify and hold us harmless for any damage resulting from the disregard of foreign trade regulations. Furthermore, the client/customer is responsible for checking names and addresses against the anti-terrorism lists published by various institutions.
31. Personal data
Personal data of the client will be used for the processing of the contractual relationship within the company and, if necessary, will also be passed on to subcontractors for this purpose. The customer also gives his consent that the data he has provided may be used for marketing purposes.
The Customer may revoke his consent to the use for marketing purposes in writing at any time.
32. Choice of law, place of jurisdiction
The contractual relationship is subject to Austrian law with exclusion of the provisions of the international private law (conflict of law provisions).
For all disputes between the parties to the dispute in connection with this agreement, including disputes about the effective existence of this agreement, as well as disputes in connection with individual agreements concluded in execution of this agreement, it is agreed that the competent court shall be the court in Vienna competent for such matters.