General terms and conditions of the Graphit Performance GmbH as Contractor

1. Validity

These general terms and conditions (GTC) apply to all services provided or procured by Graphit Performance GmbH as the commissioned freight forwarder or carrier (hereinafter referred to as the “contractor”) for their contractual partner (hereinafter referred to as the “principal”). The principal agrees that these general terms and conditions, which can be viewed at (PLEASE INSERT LINK HERE) at any time, apply to all future business transactions, irrespective of any further explicit reference, in particular in the case of orders placed verbally, by telephone or by telex. Differing terms and conditions of the principal which are not explicitly recognized (in writing) by the contractor are invalid, even if they are not explicitly rejected. Under no circumstances can the principal rely on his own general terms and conditions, even if these would be included in orders. No terms and conditions of the principal that contradict these “Graphit-GTC” and the AÖSp are applicable.

2. Offer

The contractor’s offer is non-binding and is based on the consignment data specified by the principal, current prices, tariffs, exchange rates and other fees of all parties involved in the transport. The prices quoted are subject to the availability of cargo space. All surcharges mentioned are valid until revoked and subject to the introduction of further surcharges. All freight rates mentioned are only valid for shipping with partners of the contractor. The freight carriers are selected at the discretion of the contractor.

It is expressly agreed that the prices offered and/or agreed by the Contractor shall remain stable in value. The consumer price index 2020 published monthly by Statistik Austria or the index replacing it shall serve as a measure for calculating the stable value. The starting point for value stability is the index figure of the consumer price index 2020 valid at the time of conclusion of the contract.

Due to the strong daily fluctuations in the price of diesel, the contractor’s offer is based on the variable average price for diesel fuel according to the fuel price published by the Federal Ministry for Climate Protection, Environment, Energy, Mobility, Innovation and Technology (Treibstoffpreise aktuell (bmk.gv.at))  on the day the offer is submitted. The contractor therefore reserves the right to charge surcharges due to rising diesel prices.

All surcharges mentioned are valid until revoked and subject to the introduction of further surcharges.

3. Validity of the AÖSp

In addition, the General Austrian Forwarders’ Terms and Conditions (AÖSp) (with the exception of paragraphs 39-41 AÖSp)  apply in their currently valid version, published in the Official Gazette of the Wiener Zeitung 1947/184, last amended by the Official Gazette of the Wiener Zeitung 1993/68 (available in English and German on the Internet at (Allgemeine Österreichische Spediteurbedingungen (AÖSp) – WKO)

The principal declares himself to be a waiver customer (“Verbotskunde”) according to §§ 39 ff AÖSp. The AÖSp also apply in relation to foreign principals.

4. Validity of conventions

The agreement of these terms and conditions does not affect the validity of conventions in their currently valid version as far as their provisions mandatorily prescribe a deviating regulation, such as the CMR.

5. Loading and unloading

It is the principal’s own responsibility to ensure that the loading and unloading of the freight is carried out. Damage caused by circumstances during loading or unloading falls exclusively within the principal’s liability; this also applies if the principal is not in a contractual relationship with the actual loader/unloader. If in an individual case the loading and unloading is actually carried out by a vicarious agent of the contractor, this agent is regarded as a vicarious agent of the principal. The responsibility for loading and unloading always lies with the principal without exception. The principal must ensure that the cargo is secured in accordance with the regulations, complies with the statutory provisions and, in addition, is secured and stowed in a way that is safe for traffic and operation. The obligation to secure the load is the sole responsibility of the principal, even if the goods have been loaded by the driver. The principal assures that the packaging is suitable for transport. The provisions of the AÖSp also explicitly apply to such services (packaging services, stowage services, load securing).

It is expressly agreed that delivery shall also take place in the absence of the consignee and that the contractor’s period of custody shall end when the goods are unloaded.

6. Cancellation

If the transport order is cancelled by the principal, the contractor is entitled to a contractual penalty regardless of fault of 80% of the freight price. Any further claims for damages remain unaffected.

The contractor is entitled to cancel the transport order free of charge up to one hour before the agreed collection date.

7. Special goods

The principal is obliged to warn about special characteristics of the freight. The principal therefore must separately declare, among other things, if the value of the goods exceeds € 10,- per kilogram, if they are dangerous goods, waste or if there is a particular risk of theft associated with the freight. In addition, the principal must inform the contractor of any particular sensitivity of the goods and correct handling (e.g. transport temperature etc.). The principal confirms that he has a dangerous goods officer in his company and that he will provide all data relevant to dangerous goods in accordance with the ADR. Goods which are or may become dangerous goods can only be offered to the contractor for transport, whether they appear in official or unofficial, international or national codes or agreements, if prior written notice of their nature, type, name, labelling and classification has been given to the contractor and the contractor’s prior written consent has been obtained. In addition, the packaging in which the goods are to be transported, as well as the goods themselves, must be clearly marked on the outside with an indication of the type and nature of the goods. The principal assures to observe and comply with all statutory provisions concerning dangerous goods.

8. Transfer, Subcontractors

The contractor reserves the right to pass on this forwarding or transport order to third parties – even without obtaining the prior consent of the principal. He is therefore entitled to use subcontractors. However, the contractor will exercise the diligence of a prudent freight forwarder or carrier in selecting the company he commissions.

9. Value declaration, special delivery interest

An increase in value of the maximum amounts according to Art. 24 CMR or a special delivery interest according to Art. 26 CMR cannot be agreed upon.

A declaration of value or interest cannot be agreed upon. The contractor explicitly objects to any kind of declaration of value or interest, in particular those which may increase the maximum limits of liability provided for in international conventions. It is explicitly pointed out that any kind of announcement of an order value, value of goods (etc.) – in any way whatsoever (in invoices, orders, delivery notes, offers etc.) – does not in any case lead to an agreement of a declaration of value or interest, even if there is no explicit objection by the contractor. It is not possible to agree on an increase or waiver of maximum limits of liability stipulated in contractual terms or in international conventions.

10. Compliance with all provisions

The principal is obliged to comply with all applicable laws, provisions and regulations as well as the provisions of customs, port and other authorities and to bear and pay all customs duties, taxes, charges, etc., as well as to reimburse all penalties, charges, expenses and damages incurred or suffered. If the Contractor incurs any damage or costs due to the Principals failure to make a declaration/notification/customs treatment/declaration, the Principal shall reimburse all costs and damages within 14 days of being requested to do so.

11. Damage, liability

If loss or damage to the goods is not visible from the outside, it is the responsibility of the sender or principal to prove that the loss or damage occurred during the period of liability or transport. Externally visible damage must be reported to the contractor in writing immediately upon delivery, and damage not visible from the outside immediately upon discovery, but within seven days at the latest.

The contractor shall in particular be released from liability if the loss or damage has arisen from the special risk associated with one or more of the following facts:

(a) carriage in open vehicles

b) lack of or defective packaging in the case of goods which by their nature are exposed to loss or damage in the absence of or defective packaging;

(c) Loading of the goods by the consignor or unloading by the consignee;

(d) the natural condition of certain goods which exposes them to total or partial loss or damage, in particular breakage, rust, internal spoilage, desiccation, scattering;

e) incorrect, inaccurate or incomplete description or numbering of packages;

(f) carriage of live animals;

g) carriage to be performed under escort in accordance with the relevant provisions or an agreement between the consignor and the carrier included in the consignment note, when the loss or damage has arisen from a peril which the escort was intended to avert.

The contractor’s liability is excluded in the case of deliveries made in the absence of the consignee.

If the contractor is prevented from fulfilling one, several or all contractual obligations as a result of natural disasters, war, terrorist attacks, riots, lockouts, (e.g. in ports) or other cases of force majeure and if the prevention of these obstacles is not within the Contractor’s direct control and if they cannot be eliminated or circumvented with a reasonable economic and/or technical effort (borne by the Principal), the Contractor shall be released from the performance of the contractual obligation(s) affected by the force majeure event for the duration of this event. Cyber (hacker) attacks constitute a case of force majeure.

Unless otherwise provided for in these Terms and Conditions and unless international transport law conventions are mandatorily applicable, the Contractor’s liability shall be limited as follows:

– Loss of, damage to the goods: 2 SDRs per kilogram of the goods damaged or lost.

– Damage caused by delay, e.g. delay in loading, delay in delivery: in the amount of the freight.

– Other damage: € 5.000,- per damage event

All time limits, in particular time limits for giving notice of defects and for assessing damage, limitations of liability and exclusions of liability shall apply without exception to the extent permitted by law, unless the principal, entitled person or claimant proves that the damage is attributable to an act or omission on the part of the contractor which was committed either with the intention of causing such damage or recklessly and with the knowledge that such damage would probably occur. The burden of proof for this qualified degree of fault lies with the claimant. Any liability for financial loss and penalties is also excluded. Liability is furthermore limited to pure material damage and in particular liability is excluded if damage is caused by force majeure, epidemics/pandemics (for example Covid-19 etc.), natural catastrophes, war, wars or other events. ), natural disasters, war and civil war or warlike events, strikes, lockouts, labour unrest, political acts of violence, port and terminal congestion, riots, other civil unrest, sabotage, seizure or intervention by public authorities or official orders or restrictions, or if the damage has been caused by burglary, robbery or other criminal acts of third parties. Liability is also excluded if the transport cannot be carried out.

12. Delivery deadlines

Specified loading and unloading dates are not delivery deadlines according to Art. 19 CMR, but only approximate guide values/standard transit times and can therefore not be guaranteed by the contractor. Claims due to the exceeding of performance deadlines (of any kind whatsoever) are therefore not accepted by the contractor, nor are any costs for any consequential damages in the event of delays or late payment fines for documents sent too late. Any liability of the contractor for exceeding loading dates/ for failure to comply with “loading windows” is generally excluded, unless the contractor has missed these deadlines “through gross negligence”.

13. Payment claim

The claim for payment of the freight arises upon delivery of the freight. The contractor grants the principal a payment deadline of 15 days net, starting from the billing date. Discount deductions are not accepted by the contractor. In the event of default of payment, the contractor is entitled to interest at the rate of 1.5% per month in accordance with § 29 AÖSp. In addition, the principal must bear in full all dunning charges incurred as well as the costs associated with the execution of the outstanding claim. The Contractor does not undertake to transmit original transport documents and the freight may not be withheld because of missing original freight documents. Also, no handling charges or deductions due to missing original documents will be accepted.

14. Transport insurance

As the contractor’s liability is limited, it is recommended to take out transport insurance. However, transport insurance will only be taken out if explicitly requested in writing.

15. Staffing, vehicle, routes

The vehicles used by the contractor are generally dispatched with one driver. In the event of availability and a written agreement for 2-man staffing and payment of a freight surcharge, the contractor will provide two drivers, which can reduce the risk of theft. This is recommended due to the current situation of danger in European freight traffic. As a rule, the statutory driving and rest breaks can only be consumed on “conventional parking spaces”. Should the principal wish to consume the prescribed driving and rest breaks on guarded parking spaces, this must be explicitly notified to the contractor in writing in advance and can be agreed by paying a surcharge.

The routes chosen by the contractor are the fastest and most cost-effective routes. Should the principal wish for a special route in order to minimise possible dangers, the contractor must also be informed of this explicitly and in writing in advance and another route can then be agreed upon against payment of a freight surcharge.

16. Rights of lien and retention

The contractor has the right of lien and the right of retention on the goods or other items in his power of disposal for all due and not due claims against the principal to which he is entitled under the present contract. If the principal does not explicitly state the owner of the goods in the consignment note when placing the order, the contractor can assume that the freight is the property of the principal. The principal is entitled to prohibit the exercise of the lien if he grants the contractor an equivalent means of security (e.g. bank guarantee).

17. Demurrage in road carriage

The contractor is entitled to charge the principal demurrage in the amount of € 450,- per day (at least € 100,- per hour for a standing time of less than 24 hours); the contractor is entitled to the demurrage even if the principal is not at fault. A demurrage claim arises if a waiting time/standing time of 1.5 hours in total is exceeded. In the case of special transport, the contractor is entitled to a demurrage charge of € 600,- per day (at least € 120,- per hour for a standing time of less than 24 hours).

18. Offsetting

Under no circumstances is the principal entitled to make freight reductions or to set-off counterclaims against claims of the contractor. Without exception, there is a ban on offsetting and retention in favour of the contractor. Section 32 AÖSp applies.

19. Contractual language

The contractual languages are German and English. There is a German and an English version of these terms and conditions. In case of difficulties of interpretation, ambiguities and contradictions, the German version prevails.

20. Jurisdiction

All disputes between the parties are governed by Austrian law, excluding the provisions of the international private law (IPR). All disputes between the parties concerning transportation services and legal transactions based on these GTC shall be decided exclusively by the court having subject-matter jurisdiction for the municipality of A-6352 Ellmau. This also applies to disputes concerning the effective existence of such a contract. The contractual languages are both German and English.

This agreement is valid without confirmation!