GENERAL TERMS AND CONDITIONS – MSG Krandienst GmbH
I. General Section
1. All of our transactions (crane, transport and assembly services) are subject to the following terms and conditions insofar as mandatory regulations of national and international law do not contradict them.
For forwarding services, the ADSp [German Freight Forwarder’s General Terms and Conditions] apply, with the exception of Number 2.3. They are attached as an appendix to these terms and conditions. These conditions do not apply to transportation contacts with consumers. A consumer is a natural person who concludes the contract for some purpose that cannot be ascribed to either commercial or independent business activities.
2. Crane and Transport Service
In the sense of these terms and conditions, two types of standard service are provided for crane and transport services:
2.1. Service Type 1 – Crane Hire
Crane hire describes the hire of mobile lifting equipment along with operating personnel to an ordering party for the execution of work according to that party’s instructions and disposition.
2.2. Service Type 2 – Crane work and transport services. Crane work is the transfer of goods, specifically lifting, moving and changing the location of loads with the assistance of mobile lifting equipment and describes the assumption of one or more lifting manoeuvres by the contractor according to the contractor’s instructions and disposition. Transport services in the sense of these terms and conditions refer to the transport of goods in road freight traffic, motor vehicles as well as the movement or relocation of goods by means of specialised transport equipment such as heavy-duty rollers, roller trucks, lifting jacks, etc.
2.3. Contracts for horizontal or vertical movement of goods that we take on are freight contracts in the sense of the HGB [German Commercial Code].
3. Our general terms and conditions apply exclusively to contracts that we conclude; other terms and conditions do not become content of any contract, even if we do not expressly object to them.
3.1. Agreements deviating from this apply only if they are arranged in writing in an individual case.
3.2. All offers from the contractor are non-binding and must be confirmed by the contractor in writing to be legally enforceable.
3.3. Oral – or telephone – communications, consents, declarations or other agreements of simple vicarious agents require written confirmation from the contractor, its legal representative or authorised management personnel to be legally enforceable.
3.4. Visual inspection of construction sites and special arrangements, e.g., concerning loading and unloading sites, crane location, etc must be recorded in writing by both parties, so that they become an effective object of the contract.
3.5. Contracts requiring official approvals or permits for their execution, especially according to §§ 18 Para. 1 Sent. 2, 22 Para. 2 and 4, 29 Para. 3, 46 Para. 1 Nr. 5 StVO [German Highway Code] as well as § 70 Para. 1 StVZO [German Road Traffic Licensing Code], will be concluded under the condition precedent of the timely issue of the approval or permit.
3.6. Fees and costs for official expenses as well as procurement costs and costs generated by official requirements as well as police escort fees and other costs imposed by officially ordered safety precautions will be borne by the client, to the extent that nothing else was agreed upon. Moreover, the contractor has a claim to compensation for those expenses that may deem necessary due to the conditions.
3.7. The contractor is entitled–under reservation of other arrangements– to engage other companies to fulfil the obligation assumed in the contract.
3.8. The contractor is entitled, under exclusion of any claim to compensation for damages, to withdraw from the contract if a careful inspection of vehicles or work equipment undertaken either before or during their use reveals that considerable damages to its own property or assets or the property or assets of others, and/or personal injuries are to be feared.
3.9. This right to withdraw is forfeit if the contractor fails to exercise the due diligence of a proper merchant (freight carrier). In the event of withdrawal, the agreed upon compensation will be calculated on a pro-rata basis for all services. Weather-related interruptions do not reduce the claim on compensation, unless an agreement to the contrary has been made.
II. Specific Section
1. Crane Hire and Assembly Services
1.1. If the contractor’s primary service consists of crane hire as defined in Number I.2.1., the contractor is obligated to exercise due diligence in the selection of operating personnel and the provision of generally and specifically suitable mobile lifting equipment, which is TÜV- and UVV-inspected and ready for operation in compliance with the pertinent legal provisions and the applicable standards of good engineering.
1.2. If the contractor’s primary service consists of an assembly service, it is obligated to properly and professionally carry out all contracts it is awarded with all means and technical options at its disposal under due consideration of the pertinent standards of good engineering.
1.3. Liability Provisions
The contractor is only liable if damages were caused by malicious intent or gross negligence on the part of the contractor, its legal representatives or its management personnel. In the event of the breach of essential contractual duties, even in cases of simple negligence, the contractor is only liable for foreseeable damages typical to contracts of this kind. Neither does this exclusion of liability apply to the extent that the contractor is liable for the absence of assured properties. Liability for damages to goods or other objects that arises in the execution of the contract is limited to a maximum of 1,000,000 €. If need be, a special agreement can be made raising this liability limit.
The warranty is primarily restricted to the remediation of assembly work. Only if this work is unsuccessful can the client demand a reduction of the compensation or cancellation of the assembly contract. Warranties for defects that derive from wear and tear or improper use are excluded.
2. Crane Work Transport Services: Duties and Liability of the Contractor
2.1. The contractor is obligated both generally and specifically to deploy suitable transport and lifting equipment that is operationally ready, operationally safe and has been inspected according to the applicable provisions of the TÜV and UVV. Moreover, the contractor is obligated in general and specifically to provide suitable operating personnel (crane drivers and heavy vehicle drivers) that are familiar with the operation of the transport vehicles or lifting equipment.
Additionally, the contractor will provide the necessary assistant, training and other personnel, as well as any riggers who might be needed on agreement with and at cost to the client. Any claims of recourse due to delay we must refuse since we cannot provide any guarantee of weather or road conditions or that there will be no technical problems.
2.2. The contractor is liable under the applicable legal regulations for all of its activities under this section. However, the following rules apply, to the extent that compulsory legal regulations or those dictated by our terms and conditions do not otherwise specify.
2.3. To the extent that §§ 425 ff. HGB do not apply, the contractor is not liable for damages that arise from deficient packaging or labelling, especially that for centres of gravity and lifting points on the goods by the client or third parties–through the agreed-upon or usual and customary open-air storage. If damages could arise from one of the conditions named above, it will be concluded, that they did arise from that condition.
2.4. To the extent that §§ 425 ff. HGB [German Commercial Code] do not apply, the contractor is liable for damages that arise from grand theft or robbery (§§ 243, 244, 249 StGB [German Penal Code]) – force majeure, weather conditions, equipment or pipes or electrical lines becoming defective, the effects of other goods, damages from animals or natural changes in the goods only to the extent that it can be proved that these damages were caused intentionally and culpably by the contractor.
2.5. Liability Restrictions
The contractor’s liability for loss or damages to goods (in German “Güterschäden”) is restricted in amount to 8.33 Special Drawing Rights (SDR) of the international monetary fund per kilogramme of raw weight of the damaged or lost goods. If only individual packages or parts of a shipment are lost or damaged, the maximum amount of liability is calculated by the raw weight– of the entire shipment, if the shipment is completely devalued – of the devalued portion if only a portion of the shipment has been devalued.
2.6. The contractor’s liability for each claim is limited to the sum of 1,000,000 € per loss event or 8.33 Special Drawing Rights for each kilogramme of lost or damaged goods.
2.7. The contractor waives the right to object to the liability restriction on damages to goods up to the amount of 500,000 € as well as for other damage to assets up to the amount of 125,000 € in each case per loss event. For claims for compensation for damages beyond this limit the provisions of Number 2.6 apply.
2.8. The above releases and restrictions on liability do not apply if the damages were caused intentionally or through gross negligence by the contractor, its legal representatives or its management personnel. In cases of breach of essential contractual duties, even through simple negligence, the contractor is liable only for foreseeable damages typical for contracts of this type.
3. General Liability Provisions
3.1. The liability restrictions named in Number. II. 1. and 2. also apply to claims falling outside of the contract.
3.2. To the extent that the client wishes a liability amount higher than that named in Number II. 1.3., 2.5. and 2.6., an agreement on this point must be concluded before the contract is awarded and the contractor is entitled to bill the client for the costs of a correspondingly higher amount of insurance coverage for its increased liability.
4.1. The contractor is only obligated to insure the goods to the extent an expressed order to that end, indicating the value of coverage and the risk to be covered, exists. The simple indication of value will not be considered an order to cover the insurance.
4.2. By receiving an insurance certificate (policy), the contractor is not assuming the obligations that are incumbent upon the client as the insured party; however, the contractor must take all usual and customary steps to preserve the insurance claim.
5. Obligations and Liability of the Client
5.1. The client must, at its own cost and risk, establish all technical preconditions that are required for the proper and safe execution of the commission and must maintain them during the completion of the commission. Specifically, the client is obligated to keep the goods to be handled in a condition both ready and suitable for the completion of the commission–and to state in a timely fashion the correct dimensions, weights and specific properties of the goods (i.e., centre of gravity, type of material, etc) as well as, in the case of crane services, the lifting points and in the case of transport services the tie down points.
5.2. The ordering party must provide the necessary permissions from property owners for driving on external property, non-public thoroughfares, roads and lots, and must indemnify the contractor against third-party claims that could result from unauthorised use of an external property.
5.3. Moreover, the client must assure that ground conditions, space and other conditions at the work site as well as on the access routes–excluding public thoroughfares, roads and lots¬–allow proper and safe passage. Specifically, the client must assure that the ground conditions at the loading and unloading site or crane location are able to bear the support pressures, axle loads and other stresses. The client is obligated to obtain information concerning the presence and location of subterranean cable shafts, utility lines, other ground lines or pipes and hollow spaces that could compromise the load-bearing capacity of the soil at the work site or the access rounds and to warn the contractor of these without being prompted. Should the client fail to fulfil these obligations to provide information, the client is liable for any damages, including property damage and consequential property damage, as well as damage to assets affecting the contractor’s vehicles, equipment and work apparatus. Statements and declarations from third parties whom the client employs to fulfil the obligations incumbent on it are deemed statements made by the client.
5.4. Once the contract for transport or crane work has been issued, the client may not issue to the personnel employed by the contractor any instructions that in any way or scope deviate from the contractual arrangements or are contrary to the contract’s purpose without its expressed permission.
III. Concluding Provisions
1. The services of the contractor are advanced services and not eligible for discounts. The contractor’s invoices are to be settled immediately on receipt of the invoice, after completion of the contract. In the event of default, the contractor may impose default interest in the amount of 3% over the 3-month Euribor (interbank rate) in effect at the time of default and the usual local fees. Offsetting or retention against claims deriving from the contract and therewith associated extra-contractual claims is only permitted with due counterclaims, against which there is no objection.
2. Place of fulfilment and court of jurisdiction, for complaints arising from cheques and bills of exchange, is the contractor’s headquarters. For complaints against the contractor, this court has exclusive jurisdiction. All contracts concluded by the contractor are subject to German law. This applies also to foreign clients.
3. To the extent that written form is required for declarations, remote data transfer and any other legible form is considered equivalent as long as the sender can be identified.
4. Subcontractors and any other parties employed by the contractor to complete this commission can appeal to these general terms and conditions.
5. Should individual sections of these general terms and conditions prove or become unenforceable or if they are not applicable in an individual case, the remaining provisions will be unaffected; § 139 BGB [German Civil Code] is waived.