TERMS AND CONDITIONS OF USE
These Terms and Conditions of Use regulate the contractual relationship between you (hereinafter "the User") and CARGONEXX GmbH, Herrengraben 30, 20459 Hamburg, Germany (hereinafter "CARGONEXX") with regard to the use of the internet-based platform operated by CARGONEXX (hereinafter "Platform").
The Platform may be used solely by commercial customers (i.e. companies as defined by § 14 BGB [German Civil Code]). Use of the Platform is solely on the basis of these Terms and Conditions of Use. Divergent conditions of the User are invalid, even if their validity is not expressly denied by CARGONEXX.
1.1 Registration is required to use the Platform.
1.2 Registration on the Platform is free of charge.
1.3 The User may register on the Platform either as a Client (hereinafter referred to as “Commissioning User”) or as a Carrier (hereinafter referred to as the “Executing User”).
1.4 Upon successful registration, agreement to use the Platform (hereinafter “User Agreement”) takes effect. The User shall receive confirmation of the contract conclusion from CARGONEXX by email. CARGONEXX reserves the right to reject individual registrations without specifying any reasons.
2. Service description of the platform
The User has access to the following functions of the Platform after successful registration:
a) Conclusion of Transport Contracts with CARGONEXX
The User has the opportunity to conclude a Transport Contract with CARGONEXX on the Platform. There shall be no entitlement to the conclusion of a Transport Contract between the User and CARGONEXX. The contractual conditions for concluding a Transport Contract are regulated in the section: Contract conditions - Transport Contracts.
b) Conclusion of a Forwarding Contract with CARGONEXX
The User has the option of commissioning CARGONEXX to arrange for the shipment of the goods on the platform. There shall be no entitlement to the conclusion of a Forwarding Contract between CARGONEXX and the User. The User may view and track the Forwarding Contracts concluded with CARGONEXX on the platform. The contractual conditions for concluding a Forwarding Contract are regulated in the section: Contractual conditions – Forwarding Contracts.
c) Access to various offers for the transport of goods as well as suggestions or recommendations for attractive offers for the transport of goods
d) Access to an audited network of other Users
CARGONEXX reviews master data of the Users, checks documents related to the order and evaluates the Users once the transport has been concluded. This means that other Users can benefit from the verified quality of other Users.
e) Conclusion of other contracts with CARGONEXX
f) Use of software solutions for supporting workflows and communication with business partners. The software solutions on offer are generally free of charge unless a separate contract is concluded clearly stating the costs.
g) Mediation of transport orders with third parties and the possibility of concluding Transport Contracts with third parties
h) Mediation of forwarding orders with third parties and the possibility of concluding forwarding contracts with third parties
3. Usage rights
3.1 The User shall receive a simple right to use the functions of the Platform, which shall be revocable, non-transferable and non-sublicensable, limited in time to the term of the User Contract and in content to the intended use of the Platform.
3.2 Registration is not associated with any entitlement to permanent availability of the Platform. CARGONEXX reserves the right to temporarily take the Platform offline, e.g. for maintenance purposes. Furthermore, CARGONEXX cannot rule out the possibility that the Platform may temporarily break down due to technical malfunctions.
3.3 The following in particular are not covered by intended use:
a) Using the Platform for unlawful purposes, including but not limited to criminal laws, intellectual property laws, data protection and privacy laws;
b) Publication and distribution of offensive and/or pornographic material;
c) Using information or material that violates patents, trademarks, trade secrets, copyrights or other protected or intellectual property rights;
d) Identity theft and/or unauthorised access to the accounts of other users;
e) Circumventing, removing, damaging or otherwise interfering with security mechanisms, especially functions that prevent or restrict the use or copying of content accessible via the Service, or functions that impose restrictions on the use of the Service;
f) Any disruption of the Platform's operation, in particular the use of the Service by a third party, e.g. by uploading or otherwise spreading viruses, worms or other malicious code;
g) (Attempted) hacking and/or password mining and/or (attempted) other methods to gain unauthorised access to the Platform or any part of it, other accounts, computer systems or networks that are connected to the Service, or any part thereof, or to interfere with the proper functioning of the Service or activities carried out with the Service;
h) Using any bots, crawlers and/or other automated means to access the application or circumvent measures CARGONEXX may use to prevent or restrict access to the Service without the explicit written consent of CARGONEXX; or to modify the Service in any way or form, or to use modified versions of the Service, including but not limited to the purpose of obtaining unauthorised access to the Service; or
i) Selling or transferring the Application or the ability to access the User's account password, profile or account to another User.
4. Obligations and liability of the User
4.1 The User shall ensure that the information (especially bank account details) made available to CARGONEXX upon registration and during use of the Platform is correct, accurate, up-to-date and complete. The User shall be responsible for ensuring that the data stored on the Platform and, where applicable, transmitted to third parties is correct at all times.
4.2 The User shall be liable for the accuracy of their information.
4.3 The Executing User (carrier) guarantees that, for the purpose of mediating and concluding the Transport Contract, they:
- are in possession of a valid permits for the provision of cross-border commercial road haulage (so-called EU permit) and have taken out a valid liability insurance policy in accordance with § 7a GüKG ("German Road Haulage Act");
- will maintain the permits and liability insurance;
- will upload a digital copy of the respective current and valid permit and confirmation of liability insurance to the Platform in the "Profile" section of their user account as soon as newer or amended documents are available.
- will immediately inform CARGONEXX by email of any premature expiry of the permit or insurance.
4.4 CARGONEXX will undertake a plausibility check of the data and documents uploaded to the Platform by the User. CARGONEXX will draw the User's attention to any discrepancies or inconsistencies that may come to CARGONEXX's attention.
4.5 Since the User bears responsibility for all activities carried out under their account, it is their responsibility to keep their password strictly confidential at all times and to ensure suitable and sufficient security precautions against unauthorised access.
4.6 The documents that the User uploads must be checked by the User for maliciousness (viruses, Trojans etc.) based on the latest technological standards.
4.7 The User has to immediately notify CARGONEXX if they become aware of any unauthorised use of their account or if they have any doubts as to the confidentiality of their password. If CARGONEXX has reasonable grounds to suspect that the User's password is no longer confidential, CARGONEXX is entitled to block the account and/or to require the User to change their password.
4.8 Only the User shall be liable for damages resulting from the behaviour or improper use of the Platform by other Users.
5. Right of Information and Control by CARGONEXX
Upon request from CARGONEXX to comply with the services due, the User shall allow the required permits, insurance and other legal evidence to be inspected by submitting them by digital means or allowing them to be inspected at its business premises. For this, CARGONEXX reserves the right to engage a third party that is sworn to professional secrecy (e.g. tax consultant, auditor, lawyer).
6. Duration; Termination of the User Agreement
6.1 Registration constitutes the conclusion of a User Agreement with an indefinite duration. Both parties are entitled to terminate the contract at any time without giving notice. The termination has to be made in text form. Once the User Agreement has been terminated, they have the right to save the data stored in the Portal on request within a period of 14 days.
6.2 Any possible termination of this User Agreement will generally have no effect on any Transport or Forwarding Contracts that may already have been concluded between the User and CARGONEXX. Any Transport or Forwarding Contracts already concluded shall be executed as agreed upon following termination of the User Agreement.
6.3 Should CARGONEXX have a justified suspicion that the User is in violation of these conditions of use, CARGONEXX hereby reserves the right to deactivate the User's access to the Services without giving prior notice.
6.4 A justified suspicion within the context of these usage conditions includes in particular,
- When the Executing User fails to inform CARGONEXX in good time that any permits/insurance have expired;
- When the terms and requirements of Forwarding Contracts are not fulfilled despite a prior written warning from CARGONEXX;
- When a breach of cardinal obligations occurs.
7. Data Protection
CARGONEXX undertakes to observe the statutory regulations on data protection. In this connection, special reference is made to the data protection declaration.
Any liability on the part of CARGONEXX for the use of the Platform is generally limited to gross negligence or wilful intent. In the case of minor negligence, the liability is limited to the breach of essential contractual obligations, i.e. obligations, the fulfilment of which is essential for the proper execution of the contract and on the observance of which the contractual partner regularly relies and may rely (so-called cardinal obligations), and to the foreseeable damage which is typical for the contract. The liability for damages resulting from injury to life, body and/or health as well as the liability resulting from the Product Liability Act shall remain unaffected by sentences 1 and 2.
9. Changes to the Terms & Conditions of Use
CARGONEXX reserves the right to revise, amend or expand these Terms and Conditions of Use (in particular in the case of amendments to the law, changes in supreme court rulings). CARGONEXX shall notify the User of planned amendments by email in good time, at least 2 weeks in advance. The User has the possibility of objecting to the change in the Terms and Conditions of Use within a period of two weeks following notification of the change. Should the User object, CARGONEXX reserves the right to terminate the relationship with the User without giving notice and to deactivate the user account. Section 6 of these Terms and Conditions of Use shall apply accordingly. Insofar as the User does not object in a timely manner, the amended Terms and Conditions of Use shall be regarded as accepted. CARGONEXX shall notify the User of their right of objection and the legal effects of exercising/not exercising this right.
10. General conditions
10.1 No additional verbal agreements to these Terms and Conditions of Use exist.
10.2 German law shall exclusively apply to all disputes ensuing from this agreement and its execution. The place of jurisdiction is Hamburg.
10.3 If any provision of these Terms and Conditions of Use becomes invalid or unenforceable either in whole or in part, or loses its validity or enforceability at a later date, then the validity of the remaining provisions of these Terms and Conditions of Use shall not be affected by this. The contracting parties undertake in this case to substitute the invalid or unenforceable provision with a valid or enforceable provision that comes closest to the purpose of the Terms and Conditions of Use. The same shall apply accordingly in the event of a contractual discrepancy.
TERMS AND CONDITIONS OF TRANSPORT AND FORWARDING CONTRACTS
TERMS AND CONDITIONS OF TRANSPORT CONTRACTS
These Terms and Conditions of Contract govern Transport Contracts between CARGONEXX and the Executing User who is registered on the Platform as carrier.
CARGONEXX offers a wide range of transport orders to the Executing User.
CARGONEXX requests that the Executing User reads these Terms and Conditions of Contract carefully before submitting a binding offer for a Transport Contract and concluding any Transport Contract with CARGONEXX.
The express terms of framework agreements, relationship agreements and Transport Contracts shall take precedence over these GT&Cs if they regulate divergent matters. Unless clearly specified herein, the German Freight Forwarders’ Standard Terms and Conditions 2017 (ADSp 2017) are valid in addition and in subordination to these Terms and Conditions of Transport Contracts. They can be inspected on the Internet under www.dslv.org.
1. Conclusion of a Transport Contract
1.1 The Executing User submits a binding offer of a transport order or several transport orders, which CARGONEXX offers on the Platform in the list overview, by clicking the highlighted button or labelled button on the Platform. The offer is based on the terms and conditions, requirements and charges with regard to transport published by CARGONEXX on its Platform.
1.2 The Executing User is obliged to maintain their offer until receipt of confirmation but at the latest by the announced loading date.
1.3 With the acceptance of the offer by CARGONEXX, a binding Transport Contract between CARGONEXX and the Executing User takes effect. The confirmation that a contract has come into existence and the contract with its executed details shall be sent by CARGONEXX to the Executing User by e-mail and stored on the platform in the user account and made available for retrieval.
1.4 The establishment of a Transport Contract is subject to compliance with the Terms and Conditions of Use. The validity and successful verification of the necessary permits and insurance in accordance with section 4.3 of the Terms and Conditions of Use shall, in particular, be a precondition for concluding a Transport Contract.
1.5 The Executing User declares that they had a sufficient opportunity to acquaint themselves with the web-based offer submission and order fulfilment prior to concluding the Transport Contract.
1.6 Furthermore, the Executing User declares with the submission of their offer that they have read and understood the terms and requirements of the relevant transport and is able to implement them in accordance with the Transport Contract.
1.7 It is also possible to conclude a Transport Contract with CARGONEXX through the Platform by means of proactive contact between CARGONEXX and the Executing User by telephone or e-mail. This request for a Transport Contract made by CARGONEXX to the Executing User is non-binding and may be made at any time. If the Executing User declares they are prepared to fulfil the transport order, then CARGONEXX will assign the corresponding transport order to the Executing User. A binding Transport Contract is established between CARGONEXX and the Executing User when CARGONEXX confirms the Terms and Conditions of the Contract by email. Sections 1.2, 1.3, 1.4 and 1.6 of these Terms and Conditions of Transport Contracts shall apply accordingly.
2. Planning and Fulfilling the Transport
2.1 Planning and fulfilling the transport are the sole responsibility of the Executing User commissioned by CARGONEXX to perform the transport.
2.2 To fulfil their duties under transport orders, the Executing User may engage a sub-contractor as sub-carrier following prior written approval from CARGONEXX. If the Executing User appoints a sub-contractor as sub-carrier, they shall ensure by means of a suitable contract that the sub-contractor is equally obliged to abide by these Terms and Conditions of Transport Contracts and by the terms and conditions of individual contracts. The Executing User is liable for faults committed by a sub-contractor as if it were their own faults.
2.3 CARGONEXX shall include in the Transport Contract, supplemented if necessary, by further documents or annexes, all information that is relevant for the execution of the transport in accordance with the order. Unless otherwise stated in the transport order, the Executing User may deliver consignments as a collective load within the meaning of § 460 of the German Commercial Code (HGB).
2.4 Under the terms of the Transport Contract, the Executing User undertakes to transport the goods punctually and free of damage, and provide all the additional services connected with the transport. Unless otherwise stated in the transport order, and divergently from § 412 HGB, the Executing User must perform loading and unloading of goods in a safe manner. The Executing User shall take breaks only in guarded and video-supervised car parks. The Executing User shall ensure compliance with health and safety regulations, especially ensuring the protection of the load with two anti-theft devices or mechanisms independent from another (excluding door locks) and instructing the driver to activate it when leaving the vehicle. The Executing User complies with the requirements of Par. 4.2 of the German Freight Forwarders’ Standard Terms and Conditions (ADSp) 2017.
2.5 CARGONEXX has the sole right to issue instructions regarding all transport issues. The Executing User shall draw CARGONEXX’s attention to any problems or obvious irregularities with its instructions that are impossible to implement and is obliged to conduct an interface check. If the Executing User discovers obstacles that interfere with or prevent a proper contractual fulfilment of the transport (e.g. damage to goods during transport, loss of goods, breakdowns and accidents), it shall obtain instructions from CARGONEXX promptly.
2.6 The Executing User shall promptly report every robbery or theft connected with the transport order to the police, obtain written documentation or a copy of the report, and notify CARGONEXX. In the event of an accident, the Executing User shall inform the police and, when details of the accident have been recorded, obtain a written confirmation of the accident or a similar document. CARGONEXX reserves the right to obtain a copy of the accident report from the Executing User.
3. Executing User’s Availability
The Executing User hereby gives their assurance that they or the drivers they deploy will be available to CARGONEXX at all times 4 hours before and during the transport. Section 5.2 of these Terms and Conditions of Transport Contracts shall apply accordingly. To ensure availability outside office hours, the Executing User shall give CARGONEXX an emergency telephone number or the driver’s telephone number, and shall allow CARGONEXX to contact the driver directly if the Executing User cannot be reached via the other numbers.
4.1 In the transport order, CARGONEXX agrees with the Executing User on the times when the freight is to be loaded and unloaded. Prior to concluding the Transport Contract, the Executing User checks whether they can comply with these times and by signing the contract, accepts them as binding.
4.2 Delay occurs when the Executing User cannot keep to the agreed loading and unloading times.
4.3 The Executing User is obliged to proactively communicate all delays to CARGONEXX in due time. In due time here implies that communication must be made as soon as they are able to identify any possible delay. This obligation shall continue to apply regardless of any possible activation of a GPS tracking signal by the Executing User.
4.4 If the Executing User fails to report a delay promptly, they shall be in breach of their contractual obligations. Section 5.2 of these Terms and Conditions of Transport Contracts shall apply accordingly.
4.5 Divergent from clause 19 ADSp, in such a case CARGONEXX has a right of retention pursuant to § 369 HGB.
5. Breach of Duties by the Executing User
5.1 If the Executing User wilfully breaches their contractual duties, they shall compensate CARGONEXX for the losses resulting from the breach.
5.2 As soon as CARGONEXX identifies a breach of duty, they are entitled to terminate the Transport Contract without giving notice to the Executing User for good cause and to commission a third party for this transport. CARGONEXX is therefore entitled to invoice the Executing User for any additional costs that they incur as a result. The Executing User will be sent a cancellation of the Transport Contract by email.
5.3 CARGONEXX shall send a corresponding invoice to the email address given by the Executing User for further invoicing as soon as the amount of the additional costs incurred is known. The approval of the Executing User in respect of the additional costs is not required and shall not be a prerequisite for the maturity and correctness of the additional cost invoice.
6. Damage Reports by the Executing User
6.1 The Executing User must report all damage promptly.
6.2 Notification of the damage must be reported in text form by email to: firstname.lastname@example.org.
6.3 The Executing User must describe the damage or loss accurately and document it by suitable means (write-offs on the delivery note/receipt/waybill with date, time, signature, name of firm and stamp, vehicle registration number, photos).
7. Loading Equipment
7.1 The Executing User is not obliged to arrange replacements of loading equipment (e.g. euro pallets, Dusseldorf palettes or lattice cages), unless agreement has been reached to this effect.
7.2 In the case of a contractually agreed exchange of loading equipment, unless otherwise agreed, the ideal exchange principle applies (pallet exchange during loading).
7.3 If an exchange of loading equipment has been contractually agreed, the Executing User is obliged to have the number and type of loading equipment receipted at the loading and unloading point.
7.4 Furthermore, the Executing User is obliged to report any deviations from the loading equipment exchange agreed in the Transport Contract during transport directly to email@example.com.
7.5 CARGONEXX shall not be liable for defective pallets that have been exchanged by the Executing User or have not been reported to firstname.lastname@example.org during transport.
7.6 If an exchange of loading equipment is contractually agreed, then the following cost rate is used for the loading equipment:
7.6.1 For the procurement of non-exchanged pallets:
- Euro pallets/flat pallets: €10.00 / piece
- Dusseldorf: €6.00 / piece
- Lattice cage: €75.00 / piece
7.6.2 For the repair of defective pallets (repair costs):
- Euro pallets: €4.00 / piece
- Dusseldorf: €4.00 / piece
8. ADR Transports
If carrying hazardous goods, the Executing User must employ only drivers who have been certified under Section 8.2.3 ADR and who possess a valid ADR licence, if required. The vehicles must be equipped with orange signs for the transport of hazardous goods pursuant to Section 5.3.2 ADR, fire extinguishing equipment pursuant to Section 8.1.4 ADR, other protective equipment pursuant to Section 8.1.5 ADR and written instructions pursuant to Section 5.4.3 ADR.
9. Waybills and Delivery Notes
9.1 Unless otherwise agreed in the Transport Contract, the Executing User may hand over the transported goods to the recipient only in return for a receipt of delivery. The Executing User shall ensure that the recipient acknowledges receipt of the transported goods and the unloading time on the waybill, with their business stamp, signature and the date.
9.2 The Executing User must provide CARGONEXX with a digital copy of the consignment note or other transport documents (such as proof of loading equipment exchange) in an easily readable quality immediately after unloading in order to prove proper transport and delivery.
9.3 Contrary to Section 9.2 of these Terms and Conditions of Transport Contracts, all original loading equipment certificates (e.g. DPL certificates) and the company's own loading equipment certificates must always also be sent to CARGONEXX in original form by post without delay, but no later than 3 months after unloading.
10. Charges for Transport Services
10.1 The requested transport services shall be provided at the rates agreed on when the transport order took effect pursuant to Section 1 of these Terms and Conditions of Contract (Transport Contract).
10.2 All charges are subject to value added tax at the statutory rate.
10.3 The fees include all the costs required for the transport, e.g. toll charges.
10.4 Additional expenses of the Executing User are only paid for upon agreement and submission of proof.
10.5 Regarding the demurrage charge, the provisions of ADSp 2017 Clause 11 (“Non-Compliance with Loading and Unloading Times”) apply. Divergent from Clause 11.2 ADSp 2017, demurrage up to three hours is free of charge. Unless otherwise agreed in the Transport Contract, the demurrage charge is €35 per hour, and a maximum of €350 per 24 hours, and is calculated pro-rata for each commenced hour. In order to enforce the claim for demurrage fees, the Executing User is obliged, once a delay of the agreed loading date has occurred, to notify CARGONEXX without undue delay, but at the latest before the end of the second waiting hour, by email to email@example.com.
10.6 CARGONEXX effects reimbursement only on production of evidence of accumulated demurrage charges. The payment deadline is subject to the provisions of Section 11 of these Terms and Conditions of Contract (Transport Contract).
11. Payment Deadlines
11.1 The payment deadline is 6 working days after the delivery documents have been received and checked and clarification of other questions regarding transport.
11.2 If the delivery documents are incomplete or illegible or should there be any open questions regarding transport (e.g. open pallet cases), the payment deadline runs only from the moment when all open questions have been clarified.
11.3The assignment of receivables for freight by the Executing User to third parties requires prior permission from CARGONEXX, except in the cases discussed in § 354a HGB.
11.4 Claims on the part of CARGONEXX against the Executing User, especially in accordance with Section 5 (5.1,5.2,5.3) of these Terms and Conditions of Transport Contracts, will be invoiced without delay and are payable in accordance with the specified payment period.
12. Ban on Posting of Transport Orders on Freight Exchanges
12.1 The Executing Users may not:
- Post transport enquiries on freight exchanges or other mediation platforms,
- Post transport orders already concluded with CARGONEXX on freight exchanges or other mediation platforms
12.2 A breach of the ban may result in an immediate termination of contract by CARGONEXX without prior warning, in which case CARGONNEX reserves the right to claim damages.
13. Qualified Personnel, Minimum Wage Regulations
13.1 The Executing User shall engage only professionally qualified drivers for the transport. The Executing User shall also comply with the binding national regulations set forth in the Law on Goods Vehicles (GüKG), Law on Minimum Wages (MiLoG), Law on Combating Illegal Employment in Goods Traffic (GüKBillBG), Law on Working Hours (ArbZG) and the Regulation on Cross-Border Goods Traffic and Cabotage (GüKGrKabotageV), as well as with similar international legal instruments if transport occurs outside the Federal Republic of Germany. Clause 32 ADSp 2017 (“Compliance“) applies in particular.
13.2 CARGONEXX and its clients are entitled to carry out random inspections.
13.3 The Executing User hereby releases CARGONEXX from all claims of third parties which are based on a breach of their obligations under the statutory provisions specified in Section 13.1 of these Terms and Conditions of Transport Contracts. If the Executing User engages a sub-contractor as sub-carrier under the terms of Section 2.2 of these Terms and Conditions of Transport Contracts, the indemnification extends to all claims by third parties against the sub-contractor. This duty of indemnification applies to civil-law liability and to penalties imposed on CARGONEXX due to violations by the Executing User or by its sub-contractor. The duty of indemnification also applies to claims by social insurance funds and financial authorities.
14. Proper Vehicle Equipment
The Executing User is responsible for proper equipment of the vehicle according to the transport order. Section 4.2 of ADSp 2017 applies as appropriate.
15. Termination of the Transport Order by Executing User
15.1 Any termination (cancellation) of the Transport Contract by the Executing User must be sent by email to: firstname.lastname@example.org.
15.2 A notice of termination given verbally shall not be accepted.
15.3 In the event of termination by the Executing User more than 24 hours prior to the start of loading, CARGONEXX is not entitled to claim damages.
15.4 In the event of termination of the Transport Contract by the Executing User 24 hours or less prior to the loading date, CARGONEXX is entitled to assert claims for damages. Should this be the case, CARGONEXX also reserves the right to organise suitable substitute transport so that the existing loading date is not put at risk. If additional costs arise for the replacement transport, they will be passed on to the Executing User. No consent of the Executing User to the amount of the additional costs is required and shall not constitute a prerequisite for the maturity and correctness of the additional cost invoice.
16. Termination of Transport Order by CARGONEXX
16.1 If CARGONEXX cancels the transport order more than 12 hours before the planned commencement of loading, the Executing User is entitled to no reimbursement and no claim for compensation for undelivered freight.
16.2 If the transport order is cancelled less than 12 hours before the planned commencement of loading, § 415 HGB shall apply, and compensation for undelivered freight is limited to €350 per event.
16. 3 In addition, CARGONEXX is entitled to terminate a transport order free of charge within 30 minutes of sending an emailed confirmation, if there is a recognised interest for CARGONEXX in this respect. This is explicitly the case if a human or technical error is identified in the drafting or transmission of the Transport Contract or if the client of CARGONEXX for its part terminates the transport order at short notice.
17. Liability of Transport Contracts
The Executing User is liable under statutory regulations, especially §§ 425 et seq. HGB. Divergent from § 431 Par. 1 HGB, liability for loss or damage to the consignment amounts to 40 special drawing rights per kilogram of gross weight. In the case of cross-border transports to which the CMR Convention applies, the Executing User’s liability for a total or partial loss of or damage to the consignment and for late delivery is determined solely by the provisions of the CMR Convention.
Old version of the terms and conditions: as of 05/2020
TERMS AND CONDITIONS OF FORWARDING CONTRACTS
These Terms and Conditions of Contract govern Forwarding Contracts between CARGONEXX and the Commissioning User who is registered on the Platform as client i.e. shipper.
CARGONEXX offers the Commissioning User a network of freight carriers who are authorised to transport the goods.
CARGONEXX requests that the Commissioning User reads these Terms and Conditions carefully before requesting CARGONEXX to submit a binding offer for a forwarding order and concludes a Forwarding Contract with the Commissioning User.
The express terms of Forwarding Contracts shall take precedence over these Terms and Conditions of Forwarding Contracts if they regulate divergent matters. Unless clearly specified herein, the German Freight Forwarders’ Standard Terms and Conditions 2017 (ADSp 2017) are valid in addition and in subordination to these Terms and Conditions of Forwarding Contracts. They can be inspected on the Internet under www.dslv.org.
1. Conclusion of a Forwarding Contract
1.1 The Commissioning User (client) sends CARGONEXX via the Platform a request for an offer to arrange shipment. The request must include at least the details marked as required in the Platform. The mandatory fields include
- Loading and unloading location
- Date and time window of loading and unloading
- HGV requirements such as type, body, necessary equipment
- Type of cargo in terms of weight, loading meter
- A note, if applicable, regarding the exchange of loading equipment
1.2 CARGONEXX is entitled to request a credit report on the Commissioning User before an offer is submitted. The approval of the Commissioning User for such a credit report need not be obtained, since CARGONEXX makes advance payments for the organisation of transport and consequently has a justified interest in doing so.
1.3 CARGONEXX shall submit an offer for the freight forwarding of the transport through the Platform based on the information specified in Section 1.1.
1.4 The Commissioning User may submit a binding request for the offer by pressing the corresponding button on the Platform. A Forwarding Contract is concluded between CARGONEXX and the Commissioning User once CARGONEXX confirms the User's request by e-mail.
1.5 Once the Commissioning User has accepted the offer, they may not make any changes to the Terms and Conditions of the Contract unless CARGONEXX has given its express consent to such changes.
1.6 A request for an offer for arranging transport can also be made by other means, such as by telephone or email. In such cases, a Forwarding Contract shall only come into effect when CARGONEXX submits to the Commissioning User an offer in text form and they confirm this offer in text form.
2. Prohibited Goods
2.1 The Commissioning User bears sole responsibility for the fact that consignments destined for shipment contain no prohibited goods.
2.2 CARGONEXX is under no duty of inspection.
2.3 Prohibited goods are goods which are excluded from shipment. They include in particular:
- Goods the possession or dispatch of which is prohibited;
- Goods that pose a risk to health, life or property;
- Goods which are perishable (especially fresh food);
- Heavy and oversized cargo;
- High-value electronic items exposed to the risk of theft, such as valuables, smartphones, flat screens, PCs, cameras,
- Weapons and ammunition
- Securities, art objects, unique objects, antiques
- Vehicles of all types
- Live animals, animal carcases, body parts and human mortal remains
- Goods whose shipment requires a permit
- Glass and porcelain (unpacked)
- Spirits, tobacco products
- Relocation goods
- Towed or recovered goods
- Hazardous goods
3. Fulfilment of the Forwarding Contract
3.1 CARGONEXX is a haulier within the meaning of § 453 HGB and arranges for the Commissioning User the delivery of the goods specified in the forwarding order.
3.2 CARGONEXX chooses at its discretion the means of delivery and any contracts to be concluded in this connection.
3.3 CARGONEXX concludes the required freight, storage and Forwarding Contracts in its own name and provides the chosen Executing User with information and instructions. CARGONEXX conducts these actions on its own responsibility but takes the Commissioning User interests into account. On request, CARGONEXX informs the Commissioning User of the name of the Executing User commissioned by CARGONEXX and any other relevant information which it has access to. If the Commissioning User has provided instructions, CARGONEXX shall comply with them within the confines of Section 1 of the Terms and Conditions of Forwarding Contracts.
3.4 CARGONEXX is entitled to arrange the shipment of consignments as combined loads within the meaning of § 460 HGB. A ban on transhipment exists only when expressly agreed upon with the Commissioning User.
3.5 Proof of delivery is forwarded solely in digital form via email. Such proof may be purely electronic documents (such as e-waybills) or digital photographs or scans of physical records of delivery. Alternatively, mobile devices may be used in which the required information is visible. The signatures and documents read from these devices constitute adequate evidence. CARGONEXX will not forward any proof of delivery or bills of lading in paper form.
3.6 The Commissioning User allows the appointed carrier to check the load.
3.7 Should the Commissioning User issue instructions by email, telephone or through the Platform following the conclusion of the contract and prior to transport, which have an effect on the costs, times, type or scope of transport, CARGONEXX is entitled to demand additional expenses and fees from the Commissioning User. Section 6.4 of these Terms and Conditions of Forwarding Contracts shall apply accordingly.
4. Damage Reports by the Commissioning User
4.1 The Commissioning User must report all damage promptly, in any case within the statutory deadlines.
4.2 Damage must be reported in text form by email to: email@example.com .
4.3 The Commissioning Usermust describe the damage or loss accurately and document it by suitable means (write-offs on the delivery note/receipt/waybill with date, time, name, signature, name of firm and stamp, vehicle registration number, photos).
4.4 If the cargo is not delivered, the damage must be reported promptly upon expiry of the delivery deadline.
4.5 If no delivery deadline was specified, the damage must be reported upon expiry of the usual delivery deadline.
5. Termination of the Forwarding Contract by the Commissioning User
5.1 The Commissioning User is entitled to terminate a Forwarding Contract at any time.
5.2 The Commissioning User may terminate the Forwarding Contract by sending an e-mail to: firstname.lastname@example.org
5.3 A termination given verbally cannot be accepted.
5.4 If the Commissioning User terminates the Forwarding Contract within 24 hours prior to the agreed loading date, CARGONEXX shall charge the Commissioning User 2/3 of the agreed remuneration.
5.5 Should the Commissioning User terminate the Forwarding Contract more than 24 hours prior to the agreed loading date, the statutory provisions of § 415 HGB (German Commercial Code) shall apply.
6. Termination of the Forwarding Contract by CARGONEXX
6.1 CARGONEXX is entitled to terminate a Forwarding Contract in text form if there is good cause. Good cause is deemed to apply especially where there are justified doubts regarding the solvency or viability of the Commissioning User, the shipper or the recipient.
6.2 Should the goods not be loaded or made available at the agreed time of loading, CARGONEXX shall reserve the right to set a reasonable period of time in which the goods are to be loaded or made available. In the event that no goods are loaded or made available before expiry of the deadline set or if it is evident that no goods will be loaded or made available within this period, then CARGONEXX is entitled to terminate the Forwarding Contract. CARGONEXX hereby reserves the right to claim damages in this case.
6.3 If the Commissioning User submits false information when making an enquiry about the preparation of an offer for organising transport in accordance with Section 1.1 of these Terms and Conditions of Forwarding Contracts, then CARGONEXX reserves the right to terminate the contract without giving notice for good cause. In such a case, CARGONEXX also hereby explicitly reserves the right to claim damages from the Commissioning User.
6.4 Should the Commissioning User issue instructions by email, telephone or through the Platform following the conclusion of the contract and prior to transport, which have an effect on the costs, times, type or scope of transport and as a consequence CARGONEXX is no longer in a position to duly execute the contract, CARGONEXX is entitled to terminate the Forwarding Contract without any claim to compensatory payments or damages on the part of the Commissioning User.
6.5 Other contractual or statutory rights of CARGONEXX to terminate a Forwarding Contract remain unaffected.
7. Liability for Forwarding Contracts
7.1 CARGONEXX is liable to the Commissioning User pursuant to clauses 22 – 28 ADSp 2017. The applicable conditions can be found on the Internet at www.dslv.org.
7.2 The liability of CARGONEXX for damage of goods in its care pursuant to § 431 par. 1, 2 and 4 HGB is limited to the following levels of 8.33 special drawing rights per kilogram of gross weight
- if CARGONEXX is a forwarding agent within the meaning of § 407 HGB,
- or a haulier acting as principal, or a fixed costs or collective load haulier within the meaning of §§458-460 HGB.
7.3 CARGONEXX shall be liable as follows where ADSp 2017 regulations do not apply:
a) Should CARGONEXX be negligent in its duties, which are essential for the fulfilment of the contractual purpose, CARGONEXX's liability shall be limited to the damage typically expected upon conclusion of the contract. The following shall apply in the event of slightly negligent breach of duty:
- In case of erroneous routing of the transported goods, the liability shall be limited to up to 50% of the value of the goods, up to a maximum of 5000 euros per damage occurrence however;
- In case of destruction, recovery or removal of a damaged good, the liability shall be limited to the legally or officially obligated costs up to an amount of 10 0000 EUR per damage occurrence.
b) CARGONEXX shall not be liable for consequential damages.
c) The limitations of liability stipulated in Sections 7.3 a) and b) of these Terms and Conditions of Forwarding Contracts shall be equally applicable to representatives and bodies of CARGONEXX as well as to the personal liability of employees.
7.4 If third parties exercise any rights vis- à -vis the consignment while it is in the care of CARGONEXX, the Commissioning User shall indemnify CARGONEXX against all such claims.
7.5 CARGONEXX is not liable for damage caused by force majeure, effects of weather, impact of other goods, animals or natural changes. Force majeure will be deemed to have occurred if the damage is attributable to circumstances outside CARGONEXX's control, brought about externally by elementary forces of nature or by the actions of third parties, which were unforeseeable and could not be prevented or averted by CARGONEXX using economically acceptable means, even with the greatest care.
7.6 The Commissioning User’s liability is subject to the statutory regulations.
CARGONEXX has taken out liability insurance and is not taking out any further insurance. On request, CARGONEXX shall provide the Commissioning User with suitable confirmation of insurance by email.
9. Fees for Forwarding Services
9.1 Unless otherwise agreed, CARGONEXX shall send the Commissioning User an invoice by email upon completion of the forwarding.
9.2 The forwarding services shall be charged at the rates set forth in the CARGONEXX confirmation of order.
a) All charges are subject to value added tax at the statutory rate. The fees include all the costs required for theforwarding and incorporate toll charges. Unforeseen costs and additional expenses are not included. Clause 17 ADSp 2017 (claims for expenditures and exemptions) applies in addition.
b) CARGONEXX is entitled to demurrage charges. Demurrage up to two hours is free of charge. Unless otherwise specified in an order, the demurrage charge is €55 per hour, and is calculated pro-rata for each commenced hour.
c) Section 3.7 of these Terms and Conditions of Forwarding Contracts shall apply accordingly.
CARGONEXX is entitled to assign a factoring provider to collect claims against the Commissioning User.
11. Payment Deadlines
11.1 The forwarding charge is payable no later than upon receipt of the invoice pursuant to § 456 HGB.
11.2 If the invoice is not paid within 30 days of issue (date of invoice) and receipt, payment becomes late without the need for a reminder.
11.3 In the event of late payment, CARGONEXX may charge late-payment interest at the statutory amount.
Old version of the terms and conditions: as of 05/2020