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 Yachttransport- und Winterlagerungsgesell-schaft mbH, 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.
(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.