General Terms and Conditions for the Transport Contract
1. Area of Application and Legal Basis
(1) The General Terms and Conditions, called „GTC“
hereinafter, are valid for contracts with the company Sleepy Yacht-
und Spezialtransport GmbH & Co. KG, called SLEEPY hereinafter,
dealing with the transport of goods. Different agreements are only
valid if confirmed in writing in each individual case. Adverse
General Terms and Conditions of the cus-tomer/dispatcher are
expressly rejected herewith.
(2) In the following order, unless not otherwise deter-mined
by mandatory legal provisions, individual agree-ments in writing,
and not otherwise stipulated in these GTC, the provisions of the
sections 407, and for the international traffic, the provisions of
the Convention on the Contract for the International Carriage of
Goods by Road (CMR) are applied.
2. Contractual Relationship – Reasons of
Establishment and Exclusion
(1) Transport contracts come into existence when they are concluded
in writing, or when SLEEPY confirms in writing an orally concluded
contract. Notwithstanding the written form transport contracts come
into existence when SLEEPY takes over the good to be
transported.
(2) Transport contracts, the execution of which requires the
license or authorization of the competent authority, particularly
pursuant to sections 29, sub-section 3, and 46 of the German Road
Traffic Regulations (StVO) in connection with sections 18,
sub-section 1 sentence 2, 22 sub-section 2, and 4 of the German
Road Traffic Regulations (StVO), as well as 70 StVZO, are
con-cluded under the deferring condition of the granting of the
license or authorization. All costs and fees, which occur in
connection with administrative/official expenses or security
measures, as well as with otherwise prescribed security measures
like police escorts are borne by the customer.
(3) If the transport good does not fulfil the conditions mentioned
in clause 3 it is left at the discretion of SLEEPY to
1. refuse the take-over of the transport good,
2. to return the taken-over transport good or to keep it ready for
pick-up.
SLEEPY is not committed to check the transport good on the
observance of the prerequisites mentioned in clause 3.
3. Rights and Duties of the Customer
(1) The customer shall provide the transport good in a proper
condition for the take-over by SLEEPY. Particu-larly, he shall take
care that
1. the transport good does not infringe legal regula-tions as
regards its outward design,
2. the transport good shall be free of living animals or carcasses
or parts of them, body parts or mortal remains, except for
invertebrates, which remained there unintended,
3. the transport good shall not contain substances the transport of
which is subdue to the Ordinance on hazardous substances,
particularly Diesel or petrol as well as lacquers, varnish and
caustic ma-terials, except for usual residues in the petrol tank of
yachts,
4. the transport good shall not contain valuables like money,
jewellery, precious metals, cheque or credit cards, valid telephone
cards or other means of pay-ment or securities.
(2) The customer shall keep the transport good ready in a place
warranting an access road/path and a soil condition, where it (the
transport good) can be picked up without technical difficulties.
This is above all valid if the construction of the transport good
is such that crane works become necessary. Additionally, the
customer shall have to appoint a place for the take-over, where
technical difficulties are excluded.
(3) The customer shall have to inform SLEEPY about the relevant
data of the transport good at latest one week before the agreed
take-over of the transport good, so that SLEEPY can decide about
the transport truck to be used. If there is less than a week
between the date of conclusion of the contract and the take-over
SLEEPY has to be informed immediately. The customer has to inform
SLEEPY above all about the size/correct measures of the transport
good (length, breadth, height, length of the mast) and the weight,
as well as about special characteristics like the form of the keel,
the centre of gravity and the material of which the transport good
is made of.
(4) Unless not otherwise agreed with SLEEPY the customer shall
provide the required authorizations and licenses for the transport
of the good. In case of a transport across the frontier the
customer shall send the required customs papers to the competent
customs authorities at the delivery place and take care of the
customs handling. Furthermore, he shall take care that at the
arrival of the transport good at the delivery place it is taken
over by a recipient appointed by the customer.
(5) The customer shall inspect the transport good immediately at
receipt at the delivery place.
(6) Instructions of the customer to treat the transport good in a
special way are only binding when they were given in writing prior
to the take-over. Without the consent of SLEEPY the customer is not
authorized to give instructions to the freight forwarder which
differ from the contractual conditions.
4. Liability of the Customer
(1) In case the customer fails to his duties mentioned in clause 3,
paragraphs 1-4 he shall indemnify SLEEPY for all the damages and
costs thus incurred. For the dead time which occurs to SLEEPY due
to the non-observance of the customer of his duties an amount of
€ 35.00 for each hour started has been agreed. Further-more,
SLEEPY is authorized to withdraw from the contract at maintaining
the claims.
(2) In case the transport good does not correspond to the
conditions mentioned in clause 3, paragraph 1, digit 3 SLEEPY is
authorized to dispose the hazardous substances without advance
notice at the expenses of the customer.
(3) If the delivery of the transport good at the delivery place to
the receiver appointed by the customer is not possible SLEEPY is
authorized to store the transport good at the expenses of the
customer. The delivery is considered as being impossible if the
receiver is not present at the delivery place within two hours
after the arrival of the transport. If the receiver is only
informed after the arrival of the transport good, the delivery is
considered as being impossible if the receiver is not present
within two hours after having been informed.
5. Performances of SLEEPY
(1) SLEEPY shall convey the transport good to the delivery place
and deliver it to the receiver appointed by the customer. SLEEPY is
not obliged to observe a determined term for delivery.
(2) SLEEPY shall certify the delivery of the transport good on the
bill of lading and shall deliver the transport good to the receiver
appointed by the customer against an acknowledgement of receipt on
the bill of lading. SLEEPY shall inform either the customer
or the receiver appointed by the customer in due time about the
prospective time of arrival. If the customer or the receiver
appointed by the customer are not reachable to be informed about
the arrival of the transport good, it is considered that SLEEPY has
fulfilled its duty.
(3) SLEEPY is authorized to engage another forwarding agent for
executing the transport.
6. Liability of SLEEPY
(1) SLEEPY shall be liable for damages caused by an action or
omission, which SLEEPY, one of her person-nel or other persons
employed by SLEEPY (Section 428 German Commercial Code (HGB)) have
committed intentionally or negligently in the conscience that a
damage may occur, notwithstanding the subsequent limitations on
liability. For damages caused by the behaviour of its
personnel or persons employed by SLEEPY this is only valid if these
persons have acted in a negligent way during the execution of their
tasks.
(2) In other respects SLEEPY shall be liable for loss, damage or
delivery delay only to the extent of the direct, contract-bound
damage up to the legal liability limits. SLEEPY shall also be
released from this liability if, and as far as the damage is caused
by circumstances and their consequences, which SLEEPY could not
avoid, despite utmost care (e.g. strike, Force Majeure), and if,
and as far as the damage is caused by an infringement of the
customer against his duties pursuant to clause 3. For articles,
which are wrapped at the take-over, SLEEPY is only liable in case
of genuine loss.
(3) In case the customer or the receiver does not notify in writing
loss, damage or delivery delays at the deliv-ery of the transport
good, latest immediately after execution of the inspection pursuant
to clause 3, paragraph (5), it is assumed that the good has been
delivered in accordance with the agreement. If the customer is a
consumer, the deadlines of Section 438 of the German Commercial
Code (HGB) are valid.
7. Payment of the Agreed Remuneration
(1) For inland transports the agreed remuneration shall be paid in
cash or certified bank cheque before completion of unloading,
for transports abroad before start of loading.
(2) In case the customer does not observe his liability to pay
SLEEPY is entitled to refuse the delivery of the transport good,
stop the good during transport, and/or store the transport good at
the expenses of the cus-tomer. For deferred payments contrary to
the agreed terms of payment SLEEPY shall receive an amount of
€ 35 per started hour.
8. Settlement, Assignment
(1) The customer is only entitled to settle those ac-counts, which
are uncontested or res judicata.
(2) On request of the customer, SLEEPY shall assign claims for
damages against third parties if and as far as the customer remains
liable to the payment versus SLEEPY.
9. Insurance
(1) SLEEPY shall insure the transport good at a maxi-mum value of
8,33 SZR per kilogram. For a high-value transport good,
particularly new yachts, it is recom-mended to conclude an
additional transport insurance. SLEEPY does not conclude an
additional insurance, but can procure a transport insurance to the
customer on his request.
(2) As far as SLEEPY is entitled to claims from a transport
insurance concluded by the customer SLEEPY shall assign these
claims according to the conditions stipulated in clause 8,
paragraph (2) to the person entitled to damages.
10. Place of Jurisdiction Applicable Law
(1) Exclusive place of jurisdiction for legal controversies with
merchants, legal persons of the public law, or of the public
separate estate in connection with the contract shall be
Kiel.
(2) For all legal controversies from the transport contract or
about claims connected with the contract, the German law shall be
applied. This is also valid for a foreign customer.