1. Introductory Provisions
1.1. These EST - General Terms & Conditions for Carriers/Capacity Providers (hereinafter referred to as "GTC") apply to all orders (hereinafter referred to as "transport order") between EST Contracts B.V., Trompenburgstraat 2 C, 1079TX Amsterdam, the Netherlands (hereinafter: “EST BV”) and a carrier (hereinafter referred to as "Carrier") for the provision of national and international road transport services.
1.2. The current version of the GTC shall apply and are available at www.sennder.com/general-terms-and-conditions-est-carriers. The General Terms and Conditions of the carrier and other general terms and conditions typical for the industry shall not become part of the agreement.
1.3. EST BV shall be entitled to amend or supplement these GTC. EST BV shall notify the Carrier of amendments it makes to the GTC by email or via its platforms. The Carrier’s consent to the amended GTC shall be deemed to have been given unless its validity is objected to in writing within three (3) weeks of the amended GTC being notified. This is pointed out separately once again in the notification of change. If the Carrier objects to the amendment of the GTC in due form and time, EST BV reserves the right to terminate the contractual relationship.
1.4. The following regulations form the contractual basis for the contractual relationship with the Carrier and, in the event of contradictions, shall apply in the following order:
a. Transport order (and appendixes) (together “transport order”);
b. Framework agreement for transport services (if any);
c. the GTC.
2. Subject of the transport order
The Carrier undertakes to transport the goods in exchange for the agreed freight charges and to deliver them to the consignee designated by EST BV in the transport order and according to the individual instructions issued for the transport.
3. Conclusion of the transport order, communication
3.1 Any inquiry by EST BV to the Carrier for a possible transport is not binding. EST BV will provide the transport order via its IT platforms or in text form (including electronic form, e.g. via email). The Carrier is obliged to comply with all specifications provided by EST BV. EST BV will indicate such instructions in the transport order itself or attach them to the transport order as an appendix.
3.2. Once a transport order has been placed, EST BV is entitled to transmit information about the Carrier or the Carrier’s subcontractors to EST BV’s customers for the purpose of carrying out the transport.
3.3. The contractual language agreed between the parties in the individual case shall apply. Unless expressly agreed otherwise, the contractual language shall be Dutch, English and the national language of the Carrier. EST BV shall only provide the Carrier with a translation of the contractual documents in another language at the Carrier's expense if this has been agreed separately. The latter shall be for information purposes only; only the information provided in the language of the contract shall be legally binding. Any translation risk shall be borne by the Carrier.
3.4 Upon conclusion of the agreement, each contracting party shall designate one or more contact persons for the receipt of information, instructions and enquiries for the execution of the agreement and shall provide the other party with names and contact addresses. The Carrier shall ensure that the personnel the Carrier deploys for the execution of the transport order can be contacted at all times, e.g. via mobile phone, EST BV mobile app.
3.5. EST BV is entitled to change or expand the IT infrastructure used for transport processing at any time and to provide the Carrier with the technical equipment necessary for the execution of the orders. In the event of the implementation of a new IT infrastructure and/or the provision of new technical equipment, EST BV shall inform the Carrier thereof in good time and coordinate together with the Carrier the steps necessary for the technical connection of the Carrier. The use of the IT infrastructure and technical equipment provided by EST BV is mandatory for the Carrier. The technical equipment provided to the Carrier remains the property of EST BV. Details shall be agreed separately by the parties if necessary.
3.6. If the place of collection or delivery changes after the order has been placed but before collection or delivery and the changed place is within a radius of twenty (20) km of the originally agreed place, the Carrier shall carry out the transport in accordance with the terms of the transport order. Any additional kilometres will be compensated at a rate of 1.00 EUR per additional kilometre in accordance with the provisions of Annex 1/“Accessorial Table” (the current version of which is available at the following link: www.sennder.com/carrier-accessorial), unless otherwise specified in the Accessorial Table. The Accessorial Table (in its currently valid version) is an integral and binding part of these GTC.
4. Loading and unloading regulations, and further transport related requirements
4.1. Unless otherwise agreed between the parties or unless mandatory statutory provisions provide otherwise, the Carrier shall load and unload the goods as well as ensure that they are loaded and unloaded safely and securely for transport and operation and that the goods are adequately guarded.
4.2. The Carrier must provide the equipment and materials required by law or those agreed in the transport order to secure the load and carry them until the end of the transport, e.g. tension belts, anti-slip mats and edge protectors). In addition, the Carrier shall ensure that the goods being transported are adequately guarded. The adequacy of the guarding is determined by the type and scope of the agreed transport order. The Carrier ensures that the truck and equipment are roadworthiness prior to the transportand shall check completeness of the equipment of the transport vehicle used before the start of transport.
4.3. The loading and unloading dates agreed in the transport order are binding and must be adhered to by the Carrier. If the Carrier arrives outside of these agreed times, the consignor or consignee may refuse loading or unloading. Any additional costs incurred as a result shall be charged to the Carrier. To the extent permitted by law, the Carrier is obliged to pay a lump sum of 35 EUR for each hour of delay (late collection) at the loading station, but not more than 50% of the freight costs (unless regulated otherwise according to Appendix 1 depending on the place of loading). This applies exclusively to delays at all loading stations for which the Carrier is responsible – notwithstanding any right to claim additional damages. The burden of proof that the delay was not the Carrier’s fault shall be borne by the Carrier (reversal of the burden of proof).
4.4. The Carrier shall transmit all proof of delivery (consignment note signed by the consignee and/or bearing the company stamp, delivery receipt) by electronic means to EST BV immediately after the transport has been carried out, but no later than two days after delivery. The Carrier's payment claim for the agreed freight cost shall not become due until the proof of delivery has been submitted. The originals of the proof of delivery must be available upon request.
4.5. The Carrier must ensure:
a. that all electronic devices used by the driver to process the order are functioning and can be reached by the driver at all times, e.g. via mobile phone;
b. that the goods are not left unattended and that the vehicle is parked during breaks in secure, video-monitored car parks equipped with suitable precautions to prevent access by unauthorised persons;
c. that the vehicles are equipped with security measures, including padlocks and seals;
d. that the driver checks the integrity of the entire trailer, including the seal and padlock, after each break in the journey and ensures that no stowaways or contraband are being carried;
e. that the sealing of the vehicle is not broken during transport without EST BV 's written consent. If this is not possible because a government authority such as customs requires access to the trailer, the Carrier must immediately inform EST BV of the incident and request the administrative documents from the relevant authority;
f. that appropriate background checks are carried out on personnel, including regular checks for violations of transport-specific criminal offences and/or fines. In the event of doubts about the reliability of the personnel deployed, the Carrier shall ensure that this personnel is not deployed for transport orders from EST BV;
g. that drivers will abide by the laws and rules of the customer's facility and behave appropriately on the customer's premises. EST BV or its customer(s) may raise justified objections to the drivers and request the allocation of replacement drivers if assigned drivers violate laws, safety/equipment rules or behave inappropriately. If no improvement is made, the Carrier may be charged additional costs for a replacement vehicle by EST BV.
4.6. The Carrier shall ensure access to its telematics systems via GPS integration or via the mobile app to ensure the transportation can be monitored and tracked to ensure transportation security and quality of the services. Both parties undertake to comply with the applicable data protection regulations in accordance with the General Data Protection Regulation (GDPR).
4.7. The Carrier uses only suitable storage areas, storage or transhipment buildings and equipment for the transport order. The Carrier is responsible for compliance with legal or regulatory requirements.
4.8. The Carrier is not entitled to tranship the goods from one vehicle to another vehicle (hereinafter “Prohibition of Transhipment”) unless EST BV has given prior written consent to the Carrier. The Carrier and EST BV agree that the Prohibition of Transhipment subsists irrespective of any entry in the consignment note in accordance with Art. 6 para. 2 lit. a of the Convention on the Contract for the International Carriage of Goods by Road (CMR). After partial unloading, the Carrier must check the prescribed operational and transport safety of the consignment and the means of transport.
5. Stillage and Pallet Exchange
5.1. The Carrier is obliged to arrange replacements of pallets (Euro pallets and/or Düsseldorf pallets) upon separate order only.
5.2. In case of a contractually agreed exchange of loading equipment, unless otherwise agreed, the following principles apply:
5.2.1 At the loading point, the Carrier is obliged
a. to hand over the number of exchangeable loading equipment agreed in the transport order at the loading point and to have the number and type of loading equipment handed over acknowledged;
b. to confirm a possible non-exchange; and
c. to confirm the number and type of loading equipment taken over and to record in writing any reservations regarding the quality.
5.2.2. At the unloading point, the Carrier is obliged
a. to deliver the palletised goods and to have delivery of the loading equipment receipted according to number and type;
b. to check the empty loading equipment offered by the recipient for their externally recognisable suitability;
c. to acknowledge the number and type of pallets taken over; and to record in writing any reservations regarding their quality, to record in writing any reservations regarding their quality and to have a non-exchange confirmed.
5.3. Furthermore, the Carrier is obliged to report any deviations from the loading equipment exchange agreed in the transport order during transport directly to EST BV. EST BV shall not be liable for defective pallets that have been exchanged by the Carrier or have not been reported to EST BV during the transport.
5.4. If, contrary to the agreement, the Carrier does not hand over any, not sufficient or not of the agreed quality, exchangeable loading equipment at the place of loading or unloading, the Carrier remains obliged to deliver the missing exchangeable loading equipment. The obligation must be fulfilled within one month of delivery.
5.5. All exchanged and non-exchanged loading equipment is recorded by EST BV in a pallet account and booked as positive or negative balances. The Carrier receives a current statement of the pallet account on a regular basis. If the Carrier does not object to the balance within fourteen (14) days of receipt of the statement, the positive or negative balance indicated in the statement shall be deemed approved and the Carrier shall not be entitled to raise any objections at a later date.
5.6. If the delivery did not take place, EST BV can demand compensation instead of performance. The customary market prices for the respective type of loading equipment at the time of the delivery owed shall apply, but at least a compensation of 12 EUR per Euro pallet; 6 EUR per Düsseldorf pallet and 4 EUR for the repair of defective (Düsseldorf- or Euro) pallets.
6. Vehicles used by the Carrier
6.1. The Carrier shall maintain a sufficient number of manned vehicles with sufficient loading volume on the agreed dates to fulfil the Carrier’s obligations arising from the transport order and shall make these available for the respective transport. The Carrier shall ensure that the driver(s) employed by the Carrier are able to make full use of the legally stipulated journey times for the transport so that delivery of the goods is guaranteed at the agreed time or within the agreed period.
6.2. The Carrier is particularly obliged
a. to use only vehicles and trailers, lifting equipment, containers and other equipment, including belts, which are in perfect technical condition;
b. to ensure that the vehicles used by the Carrier are suitable for the goods to be transported;
c. to ensure that the vehicles used by the Carrier are properly equipped for the respective order, in particular to equip and secure the own or third-party vehicle used for transport with technical equipment against theft, e.g. immobiliser. The Carrier must oblige its drivers to activate the anti-theft device when leaving the vehicle;
d. to secure all trailers, lifting equipment, containers and other equipment within the Carrier’s sphere of influence and responsibility against robbery or theft;
e. to ensure all certificates required for the transport order, e.g. ISO, TAPA TSR, GDP, IFS, HACCP certificates, are submitted to EST BV in true copy upon request before the transport is carried out; and
f. to ensure that the vehicles, trailers, lifting equipment and other items of equipment used by the Carrier and the drivers used by the Carrier to carry out the transport comply with all relevant legal norms, e.g. laws, regulations, official directives or orders, regulations issued by employers’ liability insurance associations, that they have all necessary permits and approvals and comply with all official requirements. Upon request, the Carrier must provide EST BV with evidence of compliance with technical maintenance intervals.
6.3. If one of the Carrier's vehicles intended for the performance of the transport fails, the Carrier shall provide an equivalent replacement vehicle, irrespective of whether the failure is the responsibility of the Carrier. If the Carrier cannot do so or cannot do so in time to execute the transport order as agreed, EST BV shall be entitled, after expiry of a reasonable period of time, provided that this period is not dispensable in accordance with the applicable law, to terminate the contract concluded with the Carrier without notice and to provide a replacement vehicle for a fee to be paid by the Carrier. If the Carrier is responsible for the failure of the vehicle, EST BV shall be entitled to charge the additional costs incurred for the replacement vehicle as well as the costs caused by the delay to the Carrier and to offset them against the remuneration owed to the Carrier.
6.4. EST BV places great value on the protection of our environment. Therefore, the Carrier is obliged to use only vehicles with the EURO 5 and EURO 6 emission standards for transport
6.5. When the Carrier is contracted to use advanced fuels such as HVO, B100, Bio-LNG, Bio-
CNG, LNG, CNG, electric, hydrogen or others, the Carrier shall fulfil the obligation to run on the fuel stated and provide the required documentation to prove the use of the agreed upon fuel within two (2) weeks of the completion of a transport or as otherwise agreed with EST BV in writing. If the Carrier culpably breaches the obligations according to this Section 6.5., the Carrier shall be obliged to pay an appropriate contractual penalty at EST BV 's discretion (up to a maximum of 25% of the agreed freight costs.). This does not affect EST BV 's right to claim further damages and/or to terminate the agreement for good cause without notice.
7. DROP TRAILER / INTERCHANGE AGREEMENTS
In the event that the Carrier participates in a drop trailer / trailer interchange arrangement with any of EST BV's customers or vendors, the Carrier agrees that it shall address all damage or liability issues directly with the responsible customer or vendor. The Carrier agrees that EST BV shall only be responsible for the direct acts of its own employees. If the Carrier agrees to interchange equipment with another carrier or to use equipment owned by a third party, the Carrier will address any interchange issues directly with that motor carrier or equipment owner.
8. Transport and accompanying documents, receipts
8.1. Transport and accompanying documents, in particular bills of lading, CMR consignment note, commercial invoices, packing lists and customs documents may only be made available or handed over to third parties insofar as this is necessary for the execution of the transport order. Exceptions apply only in the case of legally prescribed controls by the Dutch Rijksdienst voor het Wegverkeer (RDW) or any legitimate state bodies.
8.2. Unless instructed otherwise by EST BV, the Carrier may hand over the goods to be transported to the consignee only against presentation of proof of delivery. The Carrier shall ensure that the consignee confirms receipt of the goods and the unloading time on the consignment note with a company stamp, a signature and the current date.
9. Waiting Time/Demurrage
9.1 If a specific time or time window is agreed, the loading or unloading time for complete loads (but not for bulk goods) shall be a maximum of two (2) hours for loading or unloading, irrespective of the number of consignments per loading or unloading point for vehicles with a gross vehicle weight of 40 tonnes.
9.2. The performance time agreed in the transport order shall be decisive for the start of the loading and unloading time. If the loading or unloading time is exceeded due to a contractual agreement or for reasons that are not attributable to the Carrier's sphere of risk, EST BV shall pay demurrage to the Carrier in accordance with the following conditions:
a. In order to enforce the claim for waiting time, the Carrier is obliged to notify EST BV without undue delay, but at the latest before the end of the second waiting hour with a final request.
b. The Carrier must ensure that the relevant shipping documents contain the actual time of arrival and departure of the Carrier at the site and are signed by authorised site personnel. If the demurrage claim exists, the Carrier shall issue an invoice in accordance with Section 15.
c. The Carrier must arrive on time in order to be able to claim demurrage.
d. Unless the parties have agreed otherwise in accordance with Appendix 1, the first two (2) hours of waiting time are free of charge and the Carrier is not entitled to any compensation. After the expiry of the first two (2) hours and upon presentation of reasonable proof of waiting time, the Carrier shall be entitled to charge demurrage whereby the amount of the compensation is determined in accordance with the provisions in Appendix 1, depending on where the loading/unloading time was exceeded.
e. The Carrier shall not be entitled to charge other prices, fees, surcharges, loss of use, levies, costs or otherwise, unless EST BV has agreed to this in writing in advance.
10. Subcontracting
10.1. The Carrier warrants:
a. not to subcontract any transport services without EST BV's prior written authorisation;
b that the Carrier’s subcontractors fulfil the contractual and legal requirements for the provision of services contained in these GTC as well as all other applicable legal provisions. The Carrier shall be liable for all acts and omissions of its subcontractors as for its own acts and omissions;
c. that payment obligations to its subcontractors are fulfilled and that EST BV and its customers are exempted by the Carrier from any payment claims of the subcontractor or its employees against EST BV and EST BV’s customers.
In case a subcontractor is not paid by the Carrier and that subcontractor claims payment directly from EST BV and/or EST BV’s customers, EST BV may withhold or deduct the amounts payable to the Carrier in proportion to the amount claimed by the subcontractor, together with any other costs incurred as a result of the subcontractor's claim. EST BV may exercise this right regardless of whether such recourse by the subcontractor against EST BV or EST BV’s customer(s) is permitted under the applicable law.
10.2. Notwithstanding the foregoing, the selection of subcontractors remains the responsibility of the Carrier. The Carrier will make the selection with the care of a prudent businessman and must ensure that the subcontractor has all the insurance policies and certificates necessary for the execution of the transport order. The Carrier will remain liable as a principal for the performance of the transport order.
10.3. If the Carrier culpably breaches the obligations assumed in this section 10, the Carrier shall be obliged to pay a reasonable contractual penalty at EST BV's discretion (minimum 500 EUR). This does not affect EST BV 's right to claim further damages and/or to terminate the agreement for good cause without notice.
11. Compliance with legal requirements
11.1. The Carrier ensures, that the Carrier, the drivers employed by the Carrier and any subcontractor the Carrier may employ will/shall be obliged in particular, but not exclusively, to comply with the following provisions:
a. EU Regulations 1071/2009 and 1072/2009;
b. Minimum Wage Act (MiLoG); as well as applicable national laws and regulations on working hours, wages and salaries;
c. the Dutch law to combat illegal employment in commercial road haulage;
d. relevant national regulations and standards of all EU countries in the case of a cross-border transport order including transits;
e. Carrier shall not employ or utilize in any manner child labor, and shall ensure that all parties for which it is responsible (employees, subcontractors, agents, representatives, etc.) do not employ or utilize in any manner child labor either. Child labor shall mean any individual below the minimum employment age set by national law or by ILO Convention 138, whichever is higher.
11.2. In addition, the Carrier ensures, that the Carrier, the drivers employed by the Carrier and any subcontractors employed by the Carrier guarantee to:
a. carry a journey report booklet according to Art. 5 of the CEMT guideline with them while driving;
b. for foreign drivers from third countries (non-EU/EEA countries) and subcontractors from an EU/EEA country: carry a valid driving licence, a valid passport or identity card and, if necessary, an original work permit or negative tests and, if necessary, an officially certified translation;
c. carry bills of loading and loading documents with them at the start of transport and during the journey;
d. the use of vehicles registered for the carriage of goods by road in the State in which the Carrier is established and which comply with the relevant provisions, in particular from a technical point of view;
e. comply with the legally prescribed driving and rest periods;
f. carry accident leaflets with them;
g. comply with a 0.0 blood-alcohol limit for drivers. There is a general ban on alcohol and drugs when driving. Carrier warrants that its employees, agents, and subcontractors shall not perform any service for EST BV while under the influence of alcohol or any controlled substance. Carrier, its employees, agents, and subcontractors shall not use, possess, distribute or sell alcoholic beverages, illicit or unprescribed controlled drugs, drug paraphernalia, or misuse legitimate prescription drugs while performing services for EST BV. EST BV also requires that the Carrier’s employees, agents, and subcontractors notify the Carrier of any prescribed, or over the counter, medication being taken so the Carrier can evaluate if it would negatively impact the performance of said user.
11.3. The Carrier shall ensure compliance with obligations which are relevant to the Carrier’s services under labour, customs, foreign trade, social and security law.
11.4. The Carrier shall comply with EST BV’s bribery and anti-corruption, anti-fraud, money-laundering and whistleblowing policies, which shall be handed over on request.
11.5. The Carrier warrants that the Carrier will observe all applicable export control laws and regulations, including restrictions on goods, territory, services and/or persons and other embargo regulations relevant to the Carrier’s activities and will not maintain any relationships with persons or organisations subject to restrictive economic measures by relevant national governments or international organisations for export control and economic sanctions purposes. The Carrier represents and warrants that the Carrier is not listed as a Denied Party or owned, affiliated or otherwise controlled (whether directly or indirectly) by a Denied Party or Specially Designated National and that the Carrier will not engage, deploy or use any Denied Party or Specially Designated National as employees, subcontractors or agents for the delivery of Products or the performance of the Services to EST BV.
11.6. In the context of cross-border transport contracts, it is the Carrier's own responsibility to familiarise itself and to comply with the applicable legal regulations of the countries concerned when rendering the services. This includes in particular, but is not limited to, accident prevention regulations, occupational health and safety regulations, HSSE regulations, social regulations in road transport including statutory driving and rest periods as well as regulations on the operational safety of trucks/trailers which are applicable at the place of loading/unloading or during transit.
11.7. The Carrier certifies that the Carrier has reviewed and understood the Code of Conduct (CoC) provided by EST BV (which may be amended from time to time) and warrants to comply with it, as amended from time to time. The Carrier agrees to train the Carrier’s employees to ensure compliance with the EST BV CoC.
11.8. The Carrier acknowledges the importance of respecting human rights and the environment in its business activities. The Carrier commits to exercising due diligence to identify, prevent, and mitigate risks related to human rights and the environment in its operations and supply chains, in line with applicable national and European legislation, as well as the OECD Guidelines for Multinational Enterprises and the UN Guiding Principles on Business and Human Rights.
12. Instructions by EST BV, information by the Carrier and further Carrier obligations
12.1. The Carrier is obliged to follow transport order-related instructions from EST BV in particular with regard to loading and unloading dates and the execution of transport.
12.2. EST BV has the right to issue order-related instructions and is authorised to issue specifications to the Carrier with regard to certain transport-related requirements. EST BV shall provide such transport-related requirements as an "attachment" at the time the order is placed, if required. Except in the case of unreasonableness, which the Carrier must demonstrate and prove, the Carrier is obliged to comply with such requirements, in particular insofar as these, i.e. any transport related requirement or HSSE instructions, were provided to the Carrier before the Carrier took over the goods.
12.3. The Carrier shall inform EST BV of obvious inaccuracies and infeasibilities in the instructions the Carrier has been given.
12.4. The Carrier is obliged to inform EST BV immediately of all circumstances essential for the fulfilment of the transport order. This applies in particular to obstacles to the carriage, delivery and transport arising on the part of the Carrier, to recognisable transport damage to the goods and loss of goods, to accidents, vehicle breakdowns or delays in transport. In such a case, the Carrier shall immediately inform EST BV and obtain instructions from EST BV. The Carrier must immediately report any theft or robbery in connection with the transport order to the police and inform EST BV. In the event of an accident, the Carrier shall in all cases inform the police and, after the accident has been recorded, request a written accident report or a similar document. This accident report must be sent to EST BV in a clearly legible copy.
12.5. The Carrier is obliged to ensure that any irregularities occurring are confirmed in writing on the consignment note by the party from whom the Carrier has taken over the goods and by the party to whom the Carrier hands over the goods, stating the details, and to inform EST BV immediately of any complaints made by one of the participants in the cargo.
12.6. The Carrier undertakes to indemnify EST BV against all claims of third parties, including claims of the cargo participants or third parties as well as official and state claims, insofar as the claim against EST BV is based on a breach of contractual or legal requirements by the Carrier.
12.7. Insofar as the instructions (transport-related requirements) issued to the Carrier by EST BV should be deemed invalid or not effectively agreed by the competent court in a foreign jurisdiction, the Carrier nevertheless undertakes in the internal relationship with EST BV to accept the validity of these instructions (transport-related requirements) as legally binding without reservation and to indemnify EST BV in accordance with this section 12.
13. Cancellation of a transport order and additional costs
13.1. EST BV has the right to cancel a transport order ultimately 24 hours before the intended time of loading without having to pay any compensation (e.g. ‘dead freight’) to the Carrier and without any liability towards the Carrier. If only a certain date and not also a specific time of loading was agreed, EST BV has the right to cancel a transport order in accordance with the aforementioned until ultimately 12:00 hours of the previous day.
13.2. If EST BV cancels a transport order less than 24 hours before the intended time of loading or, in case only a certain date was agreed, after 12:00 hours of the previous day, EST BV will pay 30 % of the agreed freight to the Carrier. Furthermore, EST BV is not liable towards the Carrier for any other damage resulting from the cancellation.
13.3. The following shall be grounds for EST BV to cancel a transport order without observing any cancelation period and without any liability of EST BV whatsoever towards the Carrier:
(a) failure to comply with applicable legislation or regulations;
(b) failure to maintain the required permits and licenses;
(c) failure to maintain the required insurance coverage;
(d) a breach of the exclusive and dedicated use of Carrier’s equipment while transporting the goods.
13.4. If the Carrier cancels a transport order which was confirmed by EST BV, the Carrier is obliged to compensate any damage resulting thereof. The Carrier is in particular obliged to compensate all additional expenses for another carrier commissioned by EST BV as an alternative.
14. Freight costs
14.1. The Carrier and EST BV shall agree the freight costs in the respective transport order. The agreed remuneration is shown as a net amount plus VAT, if applicable. The agreed remuneration, which includes the costs of transport and storage, shall cover all services to be provided under the transport order. Additional claims for costs incurred in the regular course of transport or storage and foreseeable at the time of the submission of the offer cannot be claimed separately.
14.2. Any assumption of or participation in additional expenses require prior consent from EST BV for the cost approval. This consent must be obtained immediately as soon as the Carrier becomes aware of the necessity of the corresponding expenses.
15. Credit note issuance, due date, acceptance
15.1. The Carrier shall transmit all documents received from the consignee (in particular the consignment note and proof of delivery), including proofs in accordance with section 8.2., to EST BV immediately after the actual execution of the transport via the platform „on.sennder.com/pod“ provided by EST BV to the Carrier. If EST BV and the Carrier have agreed otherwise in individual cases, or if the transmission of the documents via the platform „on.sennder.com/pod“ is not possible for reasons for which EST BV is responsible (in particular for technical reasons), the transmission of the documents by the Carrier must take place in another manner to be determined by EST BV in individual cases.
14.2. The invoicing process takes place exclusively by credit note issuance by EST BV, as agreed between the Carrier and EST BV, in accordance with the applicable law. The credit note can be issued and/or paid out either by EST BV or by an affiliated company within the meaning of Section 15 German Stock Corporation Act (AktG).
14.3. The credit notes shall be issued within five (5) working days (except Saturdays and Sundays) of receipt of the consignment note and all documents received and/or confirmed from the consignee in connection with the delivery of the goods (in particular proof of delivery in accordance with Section 8.2). Freight costs shall be paid within 45 days after the credit note has been sent to the Carrier. The receipt of the aforementioned documents by EST BV is a condition for the payment of the freight costs. Both parties may agree a separate discount (“skonto”) agreement.
16. Services Disruptions
In the event of disruptions to performance caused by the Carrier, the following provisions shall apply:
a. if the Carrier, due to the Carrier’s own fault does not pick up a load at the agreed time (e.g. due to a too small size truck, wrong or no loading aids), the Carrier must remedy the situation at the Carrier’s own expense within three (3) hours of the agreed collection time. If the collection is delayed by more than three (3) hours compared to the agreed collection time, EST BV can organise a replacement transport at the Carrier's expense and commission another Carrier. Section 6.3. remains unaffected.
b. the Carrier shall be liable, within the scope of what is legally permissible, for all damage caused to EST BV, the consignee or EST BV’s customer as a result of a delay in collection culpably caused by the Carrier. The Carrier shall indemnify EST BV upon first request against any third party claims arising from the culpably delayed collection or delivery.
17. Carrier’s cargo liability and claims
17.1. The Carrier’s liability in connection with loss and/or damage to the goods as well as delay is determined in accordance with the Convention on the Contract for the International Carriage of Goods by Road (CMR) for all international and national road transports. The Carrier is responsible for the goods from the moment the first piece of the cargo is loaded until the last piece of cargo is discharged at the final destination.
17.2. The goods are considered damaged in case of a possible contamination of the goods caused by, including but not limited to, unauthorized access of persons (stowaways), odors, infestation by pests or vermin, any spillage or dirt, glass, wood, mold, mildew, fungus or other external matter. In the event branded or labeled goods are damaged, EST BV’s customer may determine, in its sole discretion, whether the goods may be salvaged, and if salvageable, the value of such salvage.
17.3. If, as a result of damage to the goods occurred during transport, the Carrier is instructed, to transport the goods back to the loading address or to carry the goods to any other place, the resulting costs shall be for Carrier’s account.
17.4. The Carrier shall take all necessary measures to minimize the extent of any damage and shall take prompt and appropriate action to remedy any damage that has occurred and/or to prevent further damage or loss.
17.5. The Carrier is obliged to provide cooperation in relation to the conduct of investigations and preparation of reports related to any claim brought against or related to Carrier. This may include but is not limited to providing driver’s statements, copy of police or official authority reports, GPS and telematics data, photographs, etc. The Carrier will provide these documents and information, if available, upon first request.
17.6. The Carrier acknowledges that EST BV may in some cases act as freight forwarder. In that case EST BV concludes a transport order on behalf of its customers. The Carrier explicitly recognizes and accepts that EST BV’s customers shall have a direct action against the Carrier and that EST BV’s customers benefit from the liability and obligations of the Carrier set forth in these GTC.
18. Liability of EST BV
18.1. Given the fact that EST BV receives all instruction, information and documents from its customers, EST BV is not responsible for the accuracy and completeness of any information, instruction or documentation provided to the Carrier and EST BV is therefore not liable for any and all consequences resulting from the inaccuracy or incompleteness of any instructions, information and/or documentation.
18.2. EST BV, its directors, personnel and affiliates are not liable for any damage caused to any vehicle, truck, trailer, equipment, warehouse, facility etc. used in connection with the provision of the required transport services as well as for any damage in connection with death, personal injury and/or environmental pollution arising out of or in connection with the required transport services. The Carrier shall fully indemnify, defend and hold harmless EST BV its directors, personnel and affiliates against all claims, demands, actions and/or proceedings which are made/instituted by third parties arising out or in connection with the forgoing.
18.3. The Carrier shall fully indemnify, defend and hold harmless EST BV its directors, personnel and affiliates against any fines, penalties or costs resulting from the Carrier’s (or Carrier’s subcontractors) non-compliance with any applicable law and regulation (e.g. regarding the transport of certain goods, minimum wages laws, working conditions regulations etc.).
18.4. EST BV shall not be liable to Carrier for any lost opportunities, profits and/or any indirect or consequential damage.
19. Insurance
19.1. The Carrier undertakes to take out and maintain the following insurance policies in the usual and appropriate amount, unless the national insurance law applicable to the Carrier prescribes stricter requirements:
a. Motor vehicle liability insurance;
b. Liability insurance for losses and damage to third-party transport aids
c. Third party general liability, which covers the Carrier's legal liability for personal injury or death to third parties or for damage to third party property;
d. Employer's liability insurance;
e. Adequate transport liability insurance to cover obligations that the Carrier enters into with these GTC and otherwise with the provision of the services.
19.2. Additionally, the Carrier undertakes to provide copies of the insurance policies listed under this article on request and to inform EST BV immediately of any significant changes or the expiry of any of the policies listed under this Section 19. The Carrier must ensure that all claims for damages asserted by EST BV will be processed without delay and will be reported to the Carrier’s insurer. The EST BV will notify EST BV of the insurer’s reference number. In the event of damage to property or personal injury caused or presumed to have been caused by personnel of the Carrier during the acceptance, transport or delivery of the goods at the consignor's, consignee's or other parties' premises, EST BV reserves the right to disclose the name as well as the address and contact details of the Carrier to the customer, consignor or consignee upon request for the purpose of clarifying the circumstances of the damage
20. Indemnification
The Carrier agrees to defend, indemnify and hold EST BV and its customers harmless from and against any and all expenses, damages (including but not limited to bodily injury or death to any persons and/or damage to any property and/or direct, indirect and/or consequential), claims, actions, demands, losses, liabilities, fines, penalties, costs (actual, potential, threatened or pending) and attorneys' fees (“Claims”) caused by, relating to, arising from, or in connection with the transportation services performed by Carrier or otherwise The Carrier shall have no obligation to indemnify EST BV for damage caused by an act or omission on the part of the board or management of EST BV, done either with the intent to cause that damage or deliberate negligent and with the knowledge that such damage would probably result therefrom.
21. Assignment, off-setting, retention and lien
21.1. The Carrier has no right to offset any claim or right of retention unless its counter claims are undisputed or legally binding by court order.
21.2. The Carrier is not authorised to assign or transfer its rights and obligations without EST BV 's prior written consent.
21.3. The Carrier has no pledge, lien or right of retention over the goods. Furthermore, Carrier has no right to suspend the transport of the goods or any the provision of other services rendered to EST BV.
22. Audit
22.1. EST BV is entitled, after reasonable advance notice, to request the inspection of the Carrier's business documents, books, materials and records (including digitally stored documents) in order to verify the Carrier's compliance with the contractually agreed or statutory obligations. This right is limited to such documents that are directly related to the scope of this agreement.
22.2. An audit may, at EST BV 's option, be conducted either by EST BV's own employees, independent auditing firms or other consultants appointed by EST BV. Compliance with the protection of the Carrier's confidential information must be ensured.
23. Other Carrier customers
The Carrier is obliged not to act exclusively for EST BV and to conclude contracts with other clients and to act on their behalf. Before accepting orders from third parties, the carrier shall check whether EST BV’s interests pursuant to section 24 conflict with this.
24. Customer protection
24.1. The carrier undertakes to protect EST BV. During the term of this agreement and for a period of six (6) months thereafter, Carrier may neither directly nor indirectly provide or pass on to third parties any transport or forwarding services to customers of EST BV without EST BV’s prior consent. Geographically, this prohibition is limited to EST BV 's area of activity.
24.2. Customers referred to in Section 24.1. shall mean any consignor or consignee of goods of which the Carrier has become aware within the previous six (6) months in connection with a transport order placed with him by EST BV or with whom EST BV has entered into a business relationship for the transport of goods and with whom the carrier has carried out such transport.
24.3. If the Carrier violates the above obligation pursuant to Section 24.1., the Carrier shall be obliged to pay a reasonable contractual penalty, the amount of which shall be determined at the discretion of EST BV (at least 15% of the net turnover achieved by the Carrier with the respective customer in violation of section 24. The Carrier undertakes to disclose its invoices to the respective customer. This shall not affect EST BV's right to claim further damages and/or to terminate the agreement without notice for good cause.
25. Confidentiality clause
The Carrier undertakes and agrees at all times to keep in strict confidentiality all information which is of a confidential nature, including without limitation any information relating to forecasts, prices, discounts, handling costs, sales statistics, markets, customers, employees and technical, operational and administrative systems (the “Confidential Information”) of EST BV and EST BV’s customers which it may obtain or learn in connection with the performance of the services or the use of EST BV’s platforms. The Carrier must not use or disclose the Confidential Information to any other person, firm or company outside the Carrier’s group of companies and their respective professional advisers, except only as may be necessary and bona fide in connection with its obligations under the agreement. In the event that any part of the Confidential Information is already or becomes commonly known in the trade, except by a breach hereof, or is required to be disclosed by any law or court order, then the foregoing obligations of confidentiality in respect of such part of the Confidential Information shall cease to apply. Without limiting the generality of the foregoing, the Carrier agrees that it shall not use the confidential information for its own commercial purposes save in fulfilling its obligations under the Contract. Such obligations of confidentiality shall apply for five years from the date the Carrier receives the relevant confidential information, notwithstanding the termination or expiry of the agreement. If the Carrier culpably breaches this obligation, the Carrier shall be obliged to pay a reasonable contractual penalty at EST BV 's discretion per case of breach (minimum 15,000 EUR). This shall not affect EST BV 's right to claim damages in excess thereof and/or to terminate the contract without notice for good cause.
26. Jurisdiction, applicable law
All disputes arising out of or in connection to which these Conditions apply, shall exclusively be submitted to the competent court in Rotterdam, the Netherlands - unless mandatory statutory provisions to the contrary apply. All matters arising out of or in connection to which these Conditions apply, shall be construed and governed exclusively in accordance with the laws of the Netherlands.
27. Final Provisions
27.1. Inconsistencies in the regulations are to be resolved on the basis of the applicable law by means of regulations that correspond as far as possible to the intent and purpose of the provision to be replaced. The invalidity of individual provisions does not lead to an overall invalidity of these conditions. Should individual provisions of these GTC be ineffective, the remaining provisions shall remain effective. The invalid provision shall be replaced by a provision to be determined according to the will of the Parties that comes closest to the economic purpose of the invalid provision. If the Parties subsequently determine that an agreement in connection with these GTC or its components is incomplete, they shall close these inconsistencies in text form taking into account the purpose of the contract and the mutual economic interests.
27.2. These GTC may be drafted in languages other than English. In the event of a contradiction or discrepancy between the English version and another language version, the English version shall prevail and shall be the decisive text.
27.3. EST BV has the right to change the contract partner and replace itself with the group-affiliated company sennder Deutschland GmbH, located at Genthiner Straße 34, 10785 Berlin (registered at the District Court of Berlin, HRB 233534B). The Carrier will be notified of the change in a timely manner before the planned change date.