Article 1 – PURPOSE AND FIELD OF APPLICATION
The purpose of these conditions is to define the terms of execution by a “Transport and/or logistics operator”, in any capacity whatsoever (freight forwarder, warehouse keeper, agent, handler, service provider, customs broker or not , freight forwarder, carrier, etc.), activities and services relating to the physical movement of shipments and/or the management of the flow of goods, packaged or not, of all kinds, from all sources, for all destinations, for a freely agreed price ensuring fair remuneration for the services rendered, both domestically and internationally.
Any commitment or operation whatsoever with the “Transport and/or Logistics Operator” implies unreserved acceptance by the client of the conditions defined below. In the event of ongoing commercial relations between a principal and a freight forwarder, having been the subject of a written agreement, each shipment is presumed to have been executed under the conditions of this agreement.
Whatever the transport technique used, these conditions govern the relationship between the instructing party and the “transport and/or logistics operator” as well as the relationship with successive commission agents.
No special condition or other general conditions emanating from the instructing party can, unless formally accepted by the “Transport and/or logistics operator”, prevail over these conditions.
Article 2- DEFINITIONS
For the purposes of these General Conditions, the following terms are defined as follows:
By instructing party, we mean the party contracting the service with the transport and/or logistics operator, or even with the customs agent.
2.2- TRANSPORT AND/OR LOGISTICS OPERATOR
By `Transport and/or logistics operator’, hereinafter referred to as the T.L.O., means the party (freight forwarder, agent, logistics provider, forwarding agent, main carrier, etc. . . .) who concludes a contract of transport with a carrier to whom it entrusts the execution of all or part of the transport operation and/or who concludes a contract for logistics services with a substitute, when it does not perform the said services itself .
2.2.1- TRANSPORT COMMISSIONER
By “Freight commissioner”, also called Transport organizer, we mean any service provider who organizes and executes, under his responsibility and in his own name, in accordance with the provisions of the article. L 132-1 of the Commercial Code, transport of goods according to the modes and means of its choice on behalf of a principal.
2.2.2- LOGISTICS OPERATOR
“Logistics Operator” means any service provider who organizes, executes or has executed, under its responsibility and in its own name, in accordance with the provisions of Article L 132-1 of the Commercial Code, any operation intended to manage physical flows of goods, as well as related document and/or information flows.
2.2.3- MAIN CARRIER
“Main Carrier” means the carrier who is engaged by the initial transport contract concluded with a principal or with a freight forwarder and who entrusts all or part of its execution, under his responsibility, to another carrier.
2.3- APPROVED CUSTOMS AGENT
“Accredited customs broker” means the approved service provider who performs directly in the name and on behalf of a principal (direct representation, or indirectly in his name and on behalf of a principal (indirect representation), customs formalities and who intervenes, if necessary, to iron out any difficulties that may arise.
Direct representation complies with the rules of the mandate and indirect representation with those of the commission.
By package, we mean an object or a material set made up of several objects, whatever their weight, dimensions and volume, constituting a unit load when handed over for transport (bin, cage, crate, cardboard, container , burden, pallet strapped or filmed by the principal, roll, etc…).
By consignment, we mean the quantity of goods, packaging and load support included, actually made available, at the same time, to the transport and/or logistics operator or his substitute and whose movement is requested by a same principal for the same consignee from a single place of loading a single place of unloading.
By delivery, we mean the physical delivery of the goods to the recipient or his representative who accepts it.
2.7- ACCESSORY SERVICES
The ancillary services to the transport commission contract include the declaration of value, the declaration of special interest in delivery, delivery against reimbursement, insurance of goods and customs operations.
By taking charge, we mean the acceptance, by the commission agent or his substitute, of the goods.
By reservations, we mean the fact of expressing in an express, precise, reasoned and significant way any dispute relating to the condition and/or the quantity of the goods at the time of their taking over or delivery and/or relating to the delivery time of the goods.
Article 3- PRICE OF SERVICES
Prices are freely set on the basis of information provided by the client.
The price therefore includes the cost of the various services provided, namely the price of transport strictly speaking calculated according to the services to be performed, the nature, weight and volume of the goods to be transported and the routes to be taken. Added to this price, all ancillary services agreed, as well as the costs related to the establishment and the administrative and computer management of the transport contract as well as the cost of the intervention of the T.L.O.
The prices are calculated excluding taxes, they do not include the duties, taxes, fees and taxes due in application of any regulations, in particular tax or customs (such as excise duties, import duties, etc.).
3.2- MODIFICATION OF THE PRICE
The quotations are established according to the rate of the currencies at the time when the said quotations are given. They also depend on the conditions and prices of the substitutes as well as the laws, regulations and international conventions in force. If one or more of these basic elements were modified after submission of the quotation, including by the substitutes of the O.T.L, in an opposable way to the latter, and on the proof reported by the latter, the prices originally given would be modified under the same conditions.
In the event of a change in the diesel price index observed, the transport price is automatically readjusted according to the change in the price of fuel and the weight of this item in the company’s cost price under the terms of the article L1432-11 of the Transport Code.
The same would apply in the event of an unforeseen event, whatever it may be, resulting in particular in a modification of one of the elements of the service.
The O.T.L. has the right to renegotiate the price initially agreed in the event of significant variations in the charges of the substitutes of the O.T.L. (immobilization of the vehicle, etc.).
Article 4 – GOODS INSURANCE
No insurance is taken out by the T.L.O., without a written and repeated order from the principal for each shipment, specifying the risks to be covered and the values to be guaranteed.
If such an order is given, the T.L.O., acting on behalf of the instructing party, takes out insurance with an insurance company known to be solvent at the time of the cover. In the absence of precise specification, only ordinary risks (excluding war or strike risks) will be insured.
In the case of an ongoing commercial relationship that has been the subject of a written agreement, each shipment is presumed to be subject to the initial instructions.
Intervening, in this specific case, as an agent, the O.T.L., can in no way be considered as an insurer. The conditions of the policy are deemed to be known or approved by the senders and the recipients who bear the cost thereof. A certificate of insurance will be issued if necessary.
Article 5 – OBLIGATIONS OF THE PRINCIPAL
5.1- Information and documents to be provided by the principal to the commission agent
With a view to the proper organization of the transport and within the time limits compatible with this, the instructing party provides the T.L.O., for each shipment, in writing or by any electronic means of transmission and storage of data, the information following:
The nature and purpose of the transport to be organized
The specific terms of execution
The address, date and, if necessary, time of the availability of the goods and their delivery
The name of the sender as well as that of the recipient
The number of packages and/or the gross weight, the dimensions if necessary, and the very exact nature of the goods
Possible danger of these
Ancillary services requested
Any other specific instructions
The O.T.L. is required to verify the documents provided by the principal which have a direct link with the organization of transport. As for the other documents submitted, he ensures their apparent conformity with the mission entrusted to him.
The client agrees not to entrust the O.T.L. the organization of the transport of legal or prohibited goods.
The principal who requests the supply of equipment of a particular type specifies it and confirms his request to the O.T.L. in writing or by any electronic means of transmission and storage of data.
The client alone bears the consequences, whatever they may be, resulting from declarations or documents that are erroneous, incomplete, inapplicable, or provided late.
The departure and arrival dates possibly communicated by the O.T.L. are given for information only. The instructing party is required to give the necessary and precise instructions to the T.L.O. for the performance of transport services and ancillary services and/or logistics services. The O.T.L. does not have to check the documents (commercial invoice, packing note, etc.) provided by the client. All instructions specific to delivery (COD, etc.) must be the subject of a written and repeated order for each shipment, and the express acceptance of the O.T.L….
In any event, such a mandate is only ancillary to the main transport and/or logistics service.
5.2- Packaging / Labeling of goods
The goods must be conditioned, packed, marked or countermarked, so as to withstand transport and/or a storage operation carried out under normal conditions, as well as the successive handling operations which necessarily occur during the course of these operations. It must not constitute a cause of danger for driving or handling personnel, the environment, the safety of transport equipment, other goods transported or stored, vehicles or third parties.
In the event that the principal entrusts the O.T.L. goods contravening the aforementioned provisions, these would travel at the risk and peril of the principal and under discharge of all liability of the T.L.O.
On each package, object or load carrier, clear labeling must be carried out to allow immediate and unequivocal identification of the sender, the recipient, the place of delivery and the nature of the goods. The mentions of the labels must correspond to those which appear on the transport document.
In the presence of regulated goods, the principal affixes the mandatory labels and marks on the packaging and, in writing or by any electronic means of transmission and storage of data, draws the attention of the T.L.O. on the characteristics of the goods to be transported.
In the presence of sensitive goods, the principal can affix appropriate labeling allowing the tracking of packages.
In the presence of dangerous goods, the packaging and labeling must comply with the regulations in force.
The Principal is liable for all the consequences of an absence, insufficiency or defect in the packaging, packaging, marking or labeling, as well as a breach of the obligation information and declaration on the nature and particularities of the goods, for example with regard to dangerous goods.
In the event of loss, damage or any other damage suffered by the goods, or in the event of delay, it is up to the recipient or the recipient to proceed to regular and sufficient findings, to make reasoned reservations and in general to carry out all the acts useful for the conservation of the recourses and to confirm the said reservations in the forms and the legal deadlines, failing which no action in guarantee can be exercised against the O.T.L. or its substitutes.
5.4- Refusal or default by the recipient:
In the event of refusal of the goods by the recipient, as in the event of failure of the latter for any reason whatsoever, all initial and additional costs incurred and incurred on behalf of the goods will remain the responsibility of the principal.
5.5- Failure of the principal, impediment to transport
The instructing party notifies the T.L.O., with sufficient notice depending on professional usage and the chosen mode of transport, in the event that the goods cannot be delivered to him within the time allowed. Otherwise, the O.T.L. is entitled to damages and interest in reparation for its loss at the time of the conclusion of the contract. If, once the loading has been carried out, the transport is prevented or temporarily interrupted or if the execution of the contract is or becomes impossible, the T.L.O. request instructions from the instructing party.
In the absence of a response from the principal in due time, the O.T.L. takes the measures which appear to him to be the best in the latter’s interest for the preservation of the goods or their routing by other routes or other means. The costs thus incurred are passed on to the principal.
When the impediment is attributable to the client, the O.T.L. is entitled to reimbursement of unforeseen expenses.
5.6 – Customs formalities:
If customs operations must be carried out, the instructing party guarantees the customs broker against all financial consequences resulting from erroneous instructions, inapplicable documents, etc., generally resulting in the liquidation of additional duties and/or taxes. , fines, etc…, of the concerned administration.
Article 6 – RESPONSIBILITY
6.1- Liability for substitutes
The responsibility of the O.T.L. is limited to that incurred by the substitutes within the framework of the operation entrusted to it. When the compensation limits for intermediaries or substitutes are not known or do not result from mandatory or legal provisions, they are deemed to be identical to those of the O.T.L.
6.2- Personal liability of the transport and/or logistics operator (the T.L.O.)
The compensation limitations indicated below constitute the consideration for the liability assumed by the T.L.O.
6.2.1- Losses and damage
In the event that the personal liability of the O.T.L. be incurred, for any reason and in any capacity whatsoever, it is strictly limited.
The compensation due by the O.T.L. is equal to €20 per kilogram of gross weight of the missing or damaged goods without being able to exceed a sum greater than the product of the gross weight of the goods of the shipment expressed in tonnes multiplied by €5000.
6.2.2- Other damage
No compensation for late delivery is due if no imperative date has been expressly requested by the client and accepted by the T.L.O.
In the event of an imperative date, the compensation can only be allocated if a formal notice to deliver has been sent to the T.L.O. by the customer by registered letter with acknowledgment of receipt.
For all damages and in particular those caused by the delay in delivery duly noted under the conditions defined above, the compensation due by the O.T.L. within the framework of its personal responsibility is strictly limited to the price of the transport of the goods (duties, taxes and miscellaneous expenses excluded), object of the contract. Under no circumstances may this compensation exceed that which is due in the event of loss or damage to the goods.
For all damage resulting from a breach in the performance of the logistics service, subject of the contract, the personal liability of the T.L.O. is strictly limited to the price of the service at the origin of the damage without being able to exceed a maximum of 50,000 euros per event.
All the quotations given, all the occasional price offers provided, as well as the general prices are established and/or published taking into account the limitations of liability set out above (7.1 – 7.2)
6.4- Declaration of value or insurance
The principal always has the option of subscribing to a declaration of value which, fixed by him and accepted by the O.T.L. has the effect of substituting the amount of this declaration for the compensation ceilings indicated above (Article 7.1 and 7.2.1). This declaration of value will incur an additional charge.
The instructing party may also give instructions to the T.L.O. to take out insurance on its behalf, subject to payment of the corresponding premium, specifying the risks to be covered and the values to be guaranteed.
The instructions (declaration of value or insurance) must be renewed for each operation.
6.5- Special interest in delivery
The principal always has the option of making a declaration of special interest in delivery which, fixed by him and accepted by the T.L.O. has the effect of substituting the amount of this declaration for the indemnity ceilings indicated above (articles 7.1 and 7.2.2). This statement will result in an additional charge.
The instructions must be renewed for each operation.
Article 7 – SPECIAL TRANSPORTS
For special transport (transport in tanks, transport of indivisible objects, transport of perishable goods under controlled temperature, transport of live animals, transport of vehicles, transport of goods subject to special regulations, in particular the transport of dangerous goods, etc. …) the O.T.L. provides the sender with suitable equipment under the conditions that will have been previously defined by the client.
Article 8 – PAYMENT CONDITIONS
Services are payable in cash upon receipt of the invoice, without discount, at the place of issue. The client is always responsible for their payment. In the case of a prior agreement, it must be made within thirty days from the date of issue of the invoice.
The unilateral charging of the amount of the alleged damages to the price of the services due is prohibited.
When, exceptionally, payment terms have been granted, any partial payment will be charged first to the non-privileged part of the receivables. The non-payment of a single installment will prevail without formality of expiry of the term, the balance becoming immediately payable even in the event of acceptance of effects.
Penalties will be automatically applied in the event that the sums due are paid after the agreed payment date appearing on the invoice. These penalties are of an amount equivalent to five times the legal interest rate and it is possible to add a lump sum indemnity for recovery costs, under article D 441-5 of the Commercial Code, without prejudice to possible compensation, under the conditions of common law, for any other damage resulting from this delay.
Article 9 – CONVENTIONAL RIGHT OF PLEDGE
Whatever the quality in which the O.T.L. intervenes, the instructing party expressly acknowledges a conventional right of pledge entailing a general and permanent right of retention and preference on all the goods, valuables and documents in the possession of the transport operator, and this as a guarantee of all receivables (invoices, interest, costs incurred, etc.) that the O.T.L. holds against him, even prior to or foreign to the operations carried out with regard to the goods, securities and documents which are actually in his hands.
The customs agent benefits from the same contractual right of pledge as the O.T.L.
Article 10 – LIMITATION
All actions to which the contract concluded between the parties may give rise are prescribed within a period of one year from the delivery of the goods to the recipient or, in the event of total loss, from the day on which the goods should have been delivered.
Article 11 – CANCELLATION – TERMINATION OF THE COMMISSION CONTRACT – MODIFICATIONS
11.1- NULLITY OF THE CLAUSES
In the event that one of the provisions of these General Conditions of Sale is declared null or deemed unwritten, all the other provisions shall remain applicable.
11.2- TERMINATION OF THE CONTRACT
In the case of ongoing relations subject to an agreement whose duration is indefinite, each of the parties may terminate it by sending a registered letter with acknowledgment of receipt subject to one month’s notice when the time already elapsed since the start of performance of the contract is not more than six months. The notice will be two months in the event of contractual relations established for six months to one year. Beyond one year, the notice will be three months. During the notice period, the principal undertakes to maintain the economy of the contract.
In the event of a serious breach by one of the parties of its obligations, the other party may terminate the transport commission contract, without notice or compensation, by sending a registered letter with acknowledgment of receipt.
11.3- CHANGES TO THE COMMMISSION AGREEMENT
Any modification of the transport commission contract, before the start of performance, either on the initiative of the principal, or due to circumstances external to the parties and their substitutes, entails a readjustment upwards or downwards. drop in the price initially agreed. If the parties fail to agree on this readjustment, each of them may terminate the contract under the conditions of article 12.2 above.
The principal who modifies the commission contract during its execution bears the costs incurred by the T.L.O.
When the changes made by the freight forwarder are justified by the interest of the goods, the ordering party reimburses the costs incurred on presentation of the supporting documents.
If a modification at the initiative of the principal affects the substance of the contract, the parties have the option of renegotiating the pricing conditions.
If the parties fail to agree on new pricing conditions, each of them may terminate the contract under the conditions defined in Article 12.2 above.
Article 12- CLAUSE ATTRIBUTING COMPETENT JURISDICTION
In the event of a dispute or dispute, only the court of the registered office of the transport and/or logistics operator is competent, namely the DIJON COMMERCIAL COURT, even in the event of multiple defendants or warranty claims.