General Terms & Conditions – IBEX as Principal
1. Scope of Application of the GTC
1.1. These General Terms and Conditions (“GTC”) apply exclusively to all orders placed by IBEX Logistics GmbH (“IBEX”), in particular forwarding and freight orders and related transactions. Any deviating terms and contractual or business conditions of the Contractor are rejected by IBEX and shall not apply. This also applies to standardised rules and regulations such as the General Austrian Freight Forwarder’s Conditions (Allgemeine Österreichische Spediteurbedingungen; AÖSp) or the General German Freight Forwarder’s Conditions (Allgemeine Deutsche Spediteurbedingungen; ADSp), as well as to commercial practices that deviate from the GTC.
1.2. The GTC shall also apply if they are not expressly confirmed by the Contractor; in particular, this shall also apply in the event of silence and tacit acceptance through the execution of an order. The Contractor further acknowledges that the GTC shall also apply to all future orders from IBEX without separate agreement or reference.
2. Orders of IBEX/Disclosure of identification details
2.1. Orders placed by IBEX, including the specifications contained in the orders, shall be binding unless the Contractor rejects the order in writing within one (1) hour of receiving it from the IBEX department placing the order.
2.2. If the Contractor refuses to carry out the order or fails to carry out the order after the expiry of the period specified in point 2.1, the contractor shall be liable for all costs incurred by IBEX as a result, in particular the costs of substitute transport, and shall lose its claim to remuneration. Furthermore, in this case, the Contractor shall be obliged to pay a contractual penalty amounting to twice the freight charge intended for this order, whereby IBEX reserves the right to claim further damages.
2.3. The Contractor acknowledges that, for security reasons, IBEX customers will only make the goods available for collection if it is certain that the carrier collecting the goods is actually the carrier commissioned. The Contractor is obliged to provide IBEX with the official licence plate numbers of the vehicles intended for transport in writing immediately after the order has been placed and in sufficient time before the intended taking over of the goods to be transported, so that IBEX can pass these licence plate numbers on to the customer. In the event of changes to the vehicles used, IBEX must be informed immediately in writing and the new licence plate numbers must be provided at the same time. If this is not done or if the licence plate numbers provided do not match the licence plate numbers of the vehicles used for transport, the Contractor shall be liable for all resulting damage. In this case, IBEX shall also be entitled to declare the immediate termination of the contract and to carry out a substitute transport at the Contractor's expense.
3. Obligation to check, obtaining information, and approvals
3.1. The Contractor must check whether it has all the information, documents and approvals required for the proper execution of the order placed with it. Any information, documents, and approvals required for this purpose must be obtained by the Contractor without delay.
3.2. If customs clearance is also required for the execution of the order, the Contractor is obliged to carry out customs clearance and to obtain the necessary information and documents in good time so that any delays are avoided.
3.3. If the documents provided by IBEX are incomplete or insufficient, the Contractor has a duty to warn and shall be liable for any resulting damages if this duty is breached.
4. Dates and Deadlines
4.1. The taking over, presentation, and delivery dates or delivery deadlines specified in the order are binding and must be strictly adhered to by the Contractor.
4.2. If the Contractor fails to meet a date or deadline, in particular a taking over date, or is late, it shall be obliged to pay a contractual penalty amounting to twice the freight charge specified for this order, whereby IBEX reserves the right to claim further damages. In any case, the Contractor is obliged to notify IBEX immediately as soon as it becomes apparent to him that the date or deadline will not be met or that there will be a delay.
5. Packaging
5.1. Upon handover, the Contractor must check whether the goods to be transported are properly packaged. If the Contractor or its personnel, in particular the truck driver, determine that the packaging is missing or defective, instructions must be obtained from IBEX without delay.
5.2. The Contractor shall be liable for all damage incurred by IBEX as a result of missing or defective packaging.
6. Taking over/Loading and Unloading
6.1. The Contractor undertakes to load and unload the goods to be transported properly and safely. The Contractor shall also be liable for the proper and safe loading and unloading if these activities are carried out in whole or in part by third parties, in particular by personnel at the loading point or the consignee.
6.2. The Contractor is obliged to carry a sufficient number of suitable load securing devices and to secure the goods to be transported properly in order to prevent damage during loading and unloading as well as during transport. The Contractor shall be liable for all damage resulting from the goods not being loaded in a manner that is safe for transport or the transport vehicle not being equipped with the necessary load securing equipment; this includes, in particular, damage caused by delays.
6.3. The obligation to equip the transport vehicle with load securing equipment also applies if no reference is made to the type of load securing in the order. If the order contains specifications regarding load securing or load securing equipment, these specifications must be observed as a minimum standard, but do not release the Contractor from its obligation to ensure safe loading, unloading, and load securing regardless of this. The Contractor has a duty to warn if IBEX's specifications are insufficient or unsuitable. If the Contractor fails to comply with this duty to warn, it shall be liable for any resulting damage.
6.4. If the Contractor does not carry sufficient load securing equipment, IBEX is entitled to procure such equipment at the Contractor's expense. If deemed appropriate, IBEX is also entitled in such a case to declare the contract terminated and to carry out the transport at the Contractor's expense.
6.5. When loading, the Contractor is obliged to carry out a thorough check of the goods to be transported to ensure that they are complete and free of external damage. If there are any shortages or damage, IBEX must be notified immediately and instructions must be obtained from IBEX without delay.
6.6. In the event of a breach of points 6.1. to 6.5., the Contractor shall be obliged to pay a contractual penalty amounting to twice the freight charge stipulated for this order, whereby IBEX reserves the right to claim further damages.
7. Additional cargo / Transhipments
7.1. If the order comprises a full load, transport from the place of loading to the place of delivery shall be carried out as direct transport. Transhipments and additional cargo are not permitted.
7.2. In the case of goods to be transported in the form of a groupage shipment, the utmost care must be taken to ensure that the goods being transported are not damaged, contaminated or otherwise impaired, for example by the odour of other goods.
7.3. Transhipments in groupage transport must be kept to the minimum necessary. During each transhipment, the goods must be checked for damage when unloaded from one means of transport and loaded onto another. If damage is found, IBEX must be notified immediately and instructions obtained from IBEX.
8. Subcontractors
8.1. The transfer of the order to third parties or the commissioning of subcontractors with the complete or partial execution of the order requires the prior written consent of IBEX. When obtaining written consent, documents must be submitted in particular which show the extent to which the third party or subcontractor has already been used by the Contractor and whether this has resulted in damage or defects in the execution of the order.
8.2. If the Contractor uses subcontractors without the consent of IBEX or has the transport carried out by third parties in any other way without the consent of IBEX, the Contractor shall be obliged to pay IBEX a contractual penalty of € 10,000 (ten thousand euros), whereby IBEX reserves the right to claim further damages.
9. Authorisations, Vehicles, Personnel
9.1. By accepting the order, the Contractor confirms that it has all the necessary licences and authorisations to perform the services forming the subject matter of the order, in particular the transport service, in accordance with the statutory provisions.
9.2. By accepting the order, the Contractor confirms that the vehicles used by it are suitable for carrying out the transport and have the necessary permits and approvals.
9.3. The Contractor is obliged to use only vehicles that are in perfect technical condition and whose cargo space is clean, odourless, and dry, so that any damage to or impairment of the goods being transported is avoided.
9.4. If the order involves the transport of dangerous goods, the transport must be carried out in accordance with the applicable dangerous goods regulations. This applies in particular to the suitability, approval, and equipment of the vehicles, as well as the truck driver employed and his driving licence.
9.5. The Contractor is obliged to comply with all applicable regulations concerning work permits and work authorisations for the personnel employed, as well as all social and labour law regulations, in particular those aimed at preventing wage and social dumping. The Contractor is obliged to provide IBEX with evidence of compliance with these regulations immediately upon request, particularly in cases where IBEX is at risk of liability for compliance with such regulations.
9.6. The Contractor is also obliged to comply with all regulations regarding driving and rest times.
9.7. The Contractor acknowledges that IBEX's customers value a neat appearance on the part of the driving personnel and polite and respectful manners. The Contractor shall therefore ensure that the driving personnel maintain a neat appearance in compliance with the usual hygiene standards and that they display respectful and polite manners when in contact with other persons.
9.8. The obligation to comply with the provisions in points 9.1. to 9.7. also applies to subcontractors or third parties commissioned by the Contractor, even if IBEX has given its approval for the use of these persons.
9.9. If the Contractor is found to have violated one or more of the provisions set out in points 9.1. to 9.7., it shall be obliged to pay IBEX a contractual penalty amounting to twice the freight charge stipulated for this order, whereby IBEX reserves the right to claim further damages. Furthermore, IBEX shall be entitled in this case to terminate the contract with immediate effect. In this case, the Contractor shall be obliged to compensate IBEX for the damage, in particular for the costs of a substitute transport, and shall lose its claim to the freight charges.
10. Securing the Goods to be transported
10.1. The Contractor is obliged to guard and secure the goods to be transported and must take appropriate measures to protect the goods from access by unauthorised third parties.
10.2. The vehicles used must be lockable and must be locked and sealed with a lock; this is particularly important to prevent third parties from gaining access to the cargo space. To prevent third parties from gaining access to the vehicle cabin, the vehicle doors must be kept locked at all times during the journey.
10.3. The Contractor must organise the transport in such a way that driving and rest breaks can be taken in guarded and secure car parks. If it is absolutely necessary for the truck driver to leave the vehicle, it must be locked and visual contact with the vehicle must be maintained at all times.
11. Loading Equipment Exchange
11.1. Loading equipment (pallets) must not be exchanged unless expressly instructed to do so by IBEX. If the Contractor exchanges loading equipment without such an instruction, IBEX shall not be liable in any way, even if this was done at the request of the recipient or the personnel at the loading or un-loading point.
12. Waiting and Standing Times
12.1. The Contractor shall only be entitled to demurrage for waiting or standing times during taking over and delivery if, in addition to the usual time required for loading, securing the load, and unloading, a demurrage-free period of 24 hours is exceeded. The demurrage charge after expiry of the demurrage-free period is agreed at €150 (one hundred and fifty euros) per day, whereby the total demurrage charge for a transport is limited to €500 (five hundred euros) in any case.
12.2. The Contractor shall only be entitled to demurrage if the waiting and standing time was caused by circumstances within the sphere of influence of IBEX (e.g. lack of loading or unloading personnel at the taking over or delivery location) and if the Contractor has complied with all conditions of the order, in particular the time specifications for loading and unloading. Traffic-related waiting and standing times are not within the sphere of in-fluence of IBEX.
12.3. The waiting and standing time must be proven by an extract from the digital tachograph (smart tachograph).
13. Credit Note Procedure
13.1. The Contractor's freight charges are settled using the credit note procedure. Within three days of delivery, the Contractor must upload the transport documents, in particular the proof of delivery, which generally must be provided in the form of the consignment note with the recipient’s confirmation of receipt free of reservations contained therein, to an upload link provided by IBEX. IBEX will then send the Contractor the credit note for the freight charges electronically within one week. If the Contractor does not raise a written and justified objection to the credit note within one week, the credit amount shall be deemed accepted. Payment of the credit amount shall then be made within 30 days net to the account specified by the Contractor, unless otherwise agreed. Any invoicing by the Contractor that deviates from this procedure or any deviating payment terms or default provisions contained in invoices shall be disregarded.
13.2. As long as the transport documents, in particular the proof of delivery, have not been made available to IBEX in full, the freight charge shall not become due in any case.
13.3. If customs clearance or customs processing was necessary or carried out for the execution of the order, the freight charges shall not become due before submission of proof of proper completion of customs processing.
13.4. The freight charges agreed with the Contractor, in particular the freight charges provided for in framework agreements, are fixed prices and cannot be unilaterally changed by the Contractor, even in the event of particular difficulties in carrying out the transport or the occurrence of other cost-increasing circumstances.
13.5. Any rights of lien or retention on the goods to be transported are herewith excluded by mutual agreement. The Contractor must ensure that the subcontractors or other third parties it employs are also unable to exercise any rights of lien or retention, whether statutory or contractual, so that the proper and punctual delivery of the goods to be transported is guaranteed.
13.6. IBEX is entitled to offset its claims against the Contractor's claims at any time.
13.7. In the event of late payment, interest on arrears of 5% p.a. shall be charged.
14. Trade Licence/Company Registration/EU Licence/Transport Liability Insurance
14.1. At the request of IBEX, the Contractor is obliged to provide proof of its trade licence, entry in the commercial register or a comparable register, and the existence of an EU licence to carry out commercial road haulage at any time by sending the confirmations issued by the competent authorities. If, in individual cases, the customer of IBEX requires further evidence regarding the performance of the transport, the authorisations of the Contractor, the suitability of the vehicles or personnel used, or other related circumstances, the Contractor is obliged to provide this evidence to IBEX.
14.2. The Contractor is obliged, at any time upon request by IBEX, to provide IBEX with the insurance policy for sufficient transport liability insurance, which in particular also covers liability in accordance with Art. 29 of the CMR (Convention on the contract for the international carriage of goods by road).
14.3. If the Contractor fails to comply with such a request within five days, IBEX shall be entitled to declare the contract terminated. In this case, the Contractor shall be obliged to reimburse IBEX for all costs incurred as a result, in particular the costs of arranging replacement transport, and the Contractor shall not be entitled to any freight charges.
15.Customer Protection
15.1. Comprehensive customer protection in favour of IBEX is agreed between IBEX and the Contractor. The Contractor undertakes to refrain from establishing business contacts with IBEX customers and/or accepting or executing orders from these customers in the freight forwarding and transport sector.
15.2. The Contractor further undertakes to keep all circumstances relating to the terms and conditions of the order, in particular the name and address of IBEX's customers, the loading point or the consignee, confidential and not to disclose them to third parties. This does not apply to disclosure requirements that are mandatory by law.
15.3. The Contractor is responsible for ensuring that all persons working for them or involved in the transport, including subcontractors and their employees, comply with the customer protection agreement and the confidentiality obligation.
15.4. If the Contractor is found to have breached the confidentiality obligation and/or the customer protection agreement, whether through its own conduct or through the conduct of the group of persons described in clause 15.3, the contractor shall be obliged to pay a contractual penalty of €35,000 (thirty-five thousand euros), whereby IBEX reserves the right to claim further damages.
16. Transport outside the CMR
16.1. For transport services with vehicles on the road and related activities to which the provisions of the CMR do not apply according to their legal scope of application, the Contractor shall in any case assume custody liability in accordance with Art. 17 (1) of the CMR and Art. 3 of the CMR. This applies in particular in the case of a contract for hire or a comparable contractual relationship, whereby the contract carrier in this case is considered to be the carrier within the meaning of Art. 17 CMR.
16.2. For damages not covered by Art. 17 (1) of the CMR, the Contractor shall be liable for any breach of the duty of care of a prudent and conscientious entrepreneur.
17. Scope of Compensation/Processing Costs
17.1. In the event of a breach of contractual or statutory obligations, the Contractor shall be obliged to compensate IBEX for the entire damage and to provide full satisfaction, unless the scope of compensation is limited by mandatory statutory provisions.
17.2. In all cases where the Contractor is guilty of a breach or non-compliance with statutory or contractual obligations that necessitates or appears to be expedient for IBEX to incur manual or administrative processing costs, the Contractor shall be liable to IBEX for these processing costs in addition to any contractual penalties and other compensation. The costs for the pro-cessing effort shall be set by mutual agreement at €35 (thirty-five euros) per working hour per person and shall be paid immediately upon notification by IBEX.
18. Applicable Law, Place of Jurisdiction
18.1. The contractual relationship is subject to Austrian law, excluding the provisions on the conflict of laws.
18.2. For all disputes between the disputing parties arising from or in connection with this agreement, the jurisdiction of the relevant court for 6130 Schwaz, Austria, is agreed.
19. Data Protection
19.1. The Contractor is entitled to collect, store, and process data originating from IBEX or the recipients and required by the Contractor in connection with the services to be provided by it. At the request of authorities, in particular customs authorities, the Contractor is authorised to disclose the data to them to the extent provided for by law.