Article 1. — Article
The purpose of the present text is to define the terms and conditions under which a « Transport and/or Logistics Operator » shall provide, acting in any capacity whatsoever (transport operator, multimodal or not, warehousing agent, authorized agent, cargo handling contractor, logistics contractor, customs agent or not, freight forwarder, carrier, etc.), services related to the physical transport of Shipments and/or the management of good flows, packaged or not, of any kind, from any source and for all destinations, in return for a freely agreed fee that ensures a fair remuneration for the services provided, either in a domestic or international framework.
Every time he hires or conducts any kind of operation with the “Transport and/or Logistics Operator”, the Customer hereby accepts, without reservations of any kind, the terms and conditions set out hereafter.
Whatever mode of transport is used, the present terms and conditions govern the relationship between the Customer and the “Transport and/or Logistics Operator”. The latter shall perform the requested services according to the terms and conditions set forth in article 7 below.
Neither special conditions nor other general terms of the Customer shall take precedence over the present terms and conditions, without prior formal consent of the “Transport and/or Logistics Operator” being secured in writing.
Article 2. — DEFINITIONS
For the purposes of the present Standard Trading Conditions, the terms hereafter are defined as follows:
2-1. CUSTOMER: “Customer” refers to the party who contracts the service with the “Transport and/or Logistics Operator”.
2-2. TRANSPORT AND/OR LOGISTICS OPERATOR: “Transport and/or Logistics Operator”, hereafter designated as “TLO”, refers to the party (transport operator, multimodal or not, warehousing agent, authorized agent, cargo handling operator, logistics contractor, customs agent or not, freight forwarder, carrier, etc.) that enters into a contract of carriage either with a carrier to whom the said party entrusts the performance of all or part of the transport operation/ and/or that enters into a logistics services contract with an assign (subcontractor) when the said party does not perform those logistics services herself, or that directly enters such contracts with the Customer when the said party carries out the aforesaid transport and/or logistics services herself.
2-2.1. FREIGHT FORWARDER: “Freight Forwarder”, also known as “Transport Organizer”, refers to any service provider that organizes and provides for the performance of, under his liability and in his own name, in reference to the provisions of art. L 132-1 of the French Code de Commerce (French Commercial statute law), the transport of goods according to modes and means of his choosing, on behalf of a principal in the sense of those provisions.
2-2.2. LOGISTICS OPERATOR: “Logistics Operator” refers to any service provider that organizes, performs or provides for the performance of, under his liability and in his own name, according to the provisions of art. L 132-1 of the aforesaid Code de Commerce, any operation intended to manage physical goods flows as well as the documentary and/or information flows.
2-2.3. PRIMARY CARRIER: “Primary Carrier “ refers to the carrier hired under the initial contract of carriage either entered into with a Customer or a multimodal transport operator who then entrusts all or part of the performance, under his liability and in his own name, to such carrier.
2-2.4. AUTHORIZED ECONOMIC OPERATOR: By “Authorized Economic Operator” (AEO), is meant the natural person or corporate entity who satisfies the security/safety criteria set out in European Regulation no. 648/2005 (Official Journal of the European Union L 327 dated December 13th 2006) and its amendments, that are based on a framework of standards regarding security/safety developed by the World Customs Organization and who, after passing a third-party audit conducted by the Customs Administration, has obtained a certificate (either AEO “customs” or AEO “security/safety”, or AEO “customs-security/safety”) issued by such administration.
2-3 CUSTOMS AGENT: “Customs Agent” refers to the authorized service provider that directly fulfils customs formalities, in his own name and on behalf of a Customer (indirect representation), and that intervenes, as required, to resolve any difficulties arising in such matters.
Direct representation is governed by agency contract law whereas indirect representation is governed by commission agency contract law.
2-4. PARCEL: “Parcel” refers to one object or several objects forming one material item, irrespective of their weight, dimensions and volume, constituting a unit load when handed over for transport (such as bin, cage, crate carton, container, bundle, pallet strapped or stretch-wrapped by the Customer, roll, etc.) and packaged by the consignor before handing over for transport, even though the contents may be itemized in the consignment document.
2-5 SHIPMENT : “Shipment” refers to the quantity of goods –including packaging and packing materials, actually made available to the TLO whose transport is requested by one Customer for one consignee, from one loading place to one unloading place and covered by one consignment document.
Article 3. — PRICE OF THE SERVICES
Pricing is based on the information supplied by the Customer, taking into account, among other data, the kind of services to be performed, the nature, weight and volume of the goods to be transported and the routes to be taken. Prices are quoted according to exchange rates that may be obtained on the day on which the quotation is given. They are also determined on the basis of assigns (subcontractors) terms and rates, as well as the international laws, regulations and conventions in force. Should one or more of these elements be modified after prices have been quoted –including quotations given by the TLO’s assigns (subcontractors), in a way that is binding on the TLO and based on evidence provided by the latter, prices initially quoted will be modified accordingly. The same will be true, should any unforeseen circumstances result in at least one of the prices elements being changed. Prices do not include charges, duties, fees and taxes due in accordance with any legislation, particularly fiscal or customs-related (such as excise duties, import duties, etc.).
Article 4. — GOODS INSURANCE
The TLO shall not take out insurance without the Customer’s prior written and repeated order for each Shipment, such order indicating the risks and values to be covered.
Should such order be given, the TLO, acting on behalf of the Customer, shall subscribe an insurance policy with an insurance company known to be solvent at the time of subscription.
Unless expressly specified otherwise, only ordinary risks (excluding war and strike risks) shall be insured. Acting in this specific case as an agent, the TLO shall not in any way be considered as the insurer. The terms and conditions of the insurance policy are deemed to be known and approved by the consignor and consignees, who shall bear the corresponding cost. An insurance certificate shall be issued, whenever required.
Article 5. — PERFORMANCE OF THE SERVICES
Departure and arrival dates that may be communicated by the TLO are given for information purposes only. The Customer is required to timely supply to the TLO all acute and necessary instructions so that the latter can perform the transport services and/or logistics services, as well as the related services. The TLO is not required to check the documents (invoices, packing list, etc.) supplied by the Customer. Any special delivery instructions (COD, etc.) must be provided in writing for each Shipment and are submitted to the TLO’s prior express approval. In all cases, such instructions are only incidental to the primary transport and/or logistics services being provided.
Article 6. — CUSTOMER’S OBLIGATIONS
6-1. Safety/security obligations : The goods entrusted to an AEO certified “Transport and/or Logistics Operator” (TLO) are produced, stored, picked, loaded, shipped, transported by a personnel dependable at the level of security, in secure premises, conforming to the “Declaration of Safety/Security” appended to the BOD (Bulletin Officiel des Douanes – French Official Bulletin of Customs) no. 6741 dated December 27th 2007 as well as to regulatory provisions applicable in such matters.
6-2. Packaging : Goods must be packaged, wrapped, marked or countermarked in such a way that they should be able to withstand transport and/or storage operations performed under normal conditions, including the successive handling that necessarily occurs during these operations.
Goods shall not constitute a danger for driving or handling personnel, the environment, and the safety of transport equipments, as well as for other stored or transported goods, vehicles or third parties.
The Customer shall be solely responsible for the packaging choice and its ability to withstand transport and handling. Should the ordering party entrust the TLO with goods that contravene the here above mentioned provisions, such goods shall travel at the sole Customer’s risk and peril and shall be subject to a complete discharge of liability on the part of the TLO.
6-3. Labelling : A clear label must be affixed to each parcel, item or packaging material in order to enable immediate and unequivocal identification of the consignor, consignee, delivery location and nature of the goods. The label information must correspond to the information shown on the consignment document.
6-4. Sealing : Whenever needed, the complete trucks, the semi-trailers, the movable cases, the containers, when loading operations are completed, must be sealed by the loader himself or by his representative. The carrier must make sure of this before collecting the vehicle. In the same respect, status and conditions of the seals must be verified by the consignee on delivery.
6-5. Reporting obligations : The ordering party shall be sole responsible for all the consequences of any absence, insufficiency or defect in the packing, packaging, marking or labelling. The ordering party shall also be responsible for all the consequences of breaching the obligation of information and declaration, including on thevery exactnature, the value as well as any of the particularities of the goods handed over, especially when dealing with hazardous or so-called “sensitive” goods. In addition, the ordering party undertakes specifically not to hand over illicit or prohibited goods to the TLO (e.g. counterfeit goods, narcotics, etc.).
The ordering party shall be sole responsible for all the consequences whatsoever arising from erroneous, incomplete, inapplicable declarations or documents, including those arising from their late submission.
6-6. Reservations : In the event of any loss, spoilage or any other damage to the goods, as well as in the case of a delay, the consignee or receiving party must draw up a regular and sufficient factual report and issue reasoned reservations on the consignment note, as well as confirm the said reservations in due form and within legal deadlines, and generally take all appropriate steps to preserve the parties’ rights and guarantee their access to legal remedies. Should the consignee or receiving party fail to do so, all right of action against the TLO or its assigns (subcontractors) shall be forfeited.
6-7. Refusal or default of the consignee : Should the consignee refuse delivery of the goods or should he default on delivery for any reason whatsoever, the Customer shall remain liable for all initial and additional expenses due and committed for the whole of the goods.
6-8. Customs formalities : Should customs formalities to be performed, the Customer shall guarantee the Customs Agent against all financial consequences arising from erroneous, incomplete or inapplicable declarations, etc. entailing an assessment of additional duties and/or taxes, or fines, etc. by the government department concerned.
Article 7. — LIABILITY :
7-1 – Liability due to assigns (subcontractors): TLO’s liability is strictly limited to the liability caps of his direct assigns (subcontractors), for the very operation assigned to the TLO. When the compensation caps of such assigns (subcontractors) are unknown, and alternatively when they are not stipulated by mandatory conventional, legal or regulatory provisions, they are deemed to be identical to the TLO’s compensation caps.
7-2 – TLO’s personal liability : Whenever the TLO assumes a personal liability, compensation caps set forth below shall apply:
7-2-1 – Loss and damage/average to the goods : If the TLO’s personal liability for loss or damage is established, for any reason and in any capacity whatsoever, compensation shall be strictly limited:
a) for all damages to goods due to loss or damage of any kind during the transport operation and for any consequences resulting thereof, to the compensation caps set out by the conventional, legal or regulatory provisions applicable to the said transport,
b) in any other case where the loss or damages, or any consequence thereof, are not due to the transport operation, to 14 Euros per kilogram of the missing or damaged goods’ gross weight, provided it does not exceed, irrespective of the weight, volume, dimensions, nature or value of the goods at stake, the product of the goods gross weight, expressed in metric tons, multiplied by 2,300 Euros, and within a maximum limit of 50,000 Euros per claim.
7-2-2 – Other damages : For all other damages and especially those incurred by late delivery, subject to reservations duly written down and confirmed in accordance with the above mentioned provisions, the TLO’s compensation caps, as part of its personal liability, shall be strictly limited to the goods transporting cost (excluding duties, taxes and miscellaneous expenses) covered by the contract. In any case, such compensation shall in no way exceed the compensation that would have been due in case of loss or damage/average to the goods (art. 7-2-1).
For all damages arising from the TLO’s failure to perform the logistics service covered by the contract, the compensation that may be due by the TLO shall not exceed the price of the billed service that led to the damage, within an overall limit of 50,000 Euros per claim.
7-3 – Quotations : All price quotations, one-time price proposals and general rates are determined and/or published in view of the above-mentioned compensation limits (7-1 and 7-2).
7-4 – Declared value and insurance (loss and/or damage): The Customer may always, by himself, state a declared value which, once accepted by the TLO, substitutes the declared value amount to the above-mentioned compensation caps (art. 7-1 and 7-2). Stating declared value will lead to a price surcharge.
The Customer may also instruct the TLO, pursuant to art. 4, to take out insurance on his behalf, subject to the Customer’s payment of the corresponding premium and specification of the risks and value to be covered.
The instructions thereof (declared value statement or insurance requisition) must be renewed for each operation.
7-5 – Declaration of interest on delivery: The Customer may always, by himself, make a declaration of special interest in delivery which, once accepted by the TLO, is to substitute the declared amount for the above-mentioned compensation caps (art. 7-1 and 7-2). Such a declaration will lead to a price surcharge. Such instructions thereof must be renewed for each operation.
Article 8. — SPECIAL TRANSPORT
For special transport (in tankers, non-divisible items, perishable goods in temperature-controlled modes of transport, live animals, transport of vehicles, goods subject to specific regulations –especially for hazardous goods, etc., the TLO will provide the consignor with the appropriate equipment for the conditions previously and expressly defined by the Customer.
Article 9. — PAYMENT TERMS
The provided services are due upon receipt of the invoice without discount. Invoices are payable where they were issued, presently: 5 rue Marc Seguin – 95190 GOUSSAINVILLE (France). The ordering party shall in any case be the guarantor of payment.
Unilateral offsetting of the amount of alleged damages with the outstanding price of the services is prohibited.
If payment terms extensions are agreed upon, they shall not, under any circumstances, exceed thirty days from the date on which the invoice was issued, for all services performed by freight forwarders, logistics agents, road transport carriers, sea or air freight agents, customs agents and forwarding agents, as prescribed by art. L 441-6 of the Code de Commerce (French commercial statute law). Any partial payment, on the agreed upon due date, shall be allocated in priority to the non-privileged part of the outstanding debt. Non-payment of a single instalment shall be considered as a breach of payment terms and shall entail by right immediate payment of the whole debt, without formalities, even though bills of exchange have been accepted. Penalties shall be automatically charged, without any formality, should payment be made after due date. The rules of calculation of those penalties are those set out in the imperative provisions of art. L 441-6 here above mentioned, and shall be equal to the latest BCE interest rate increased by ten points, applied in full. Due date and penalties’ rules of calculation are mentioned on the invoice. An additional lump sum of forty (40) Euros shall be charged for recovery costs in accordance with art. D 441-5 of the Code de Commerce (French commercial statute law).
Article 10. — CONTRACTUAL POSSESSARY LIEN & RIGHT OF RETENTION
Irrespective of the capacity the TLO may be acting in, the Customer expressly accepts and acknowledges that the TLO has a contractual possessory lien, providing a general, permanent preferential right of retention on all goods, values and documents held by the TLO. This lien and right of retention serves as a guarantee for payment of the total outstanding debts (invoices, interest, penalties, incurred expenses, etc.) owed to the TLO, even prior to or outside the scope of the operations carried out in respect of the said goods, values and documents. The Customs Agent is granted the same contractual possessory lien and right of retention.
Article 11. — PRESCRIPTION
All actions arising from the contract binding the parties, in any capacity whatsoever, shall not be brought after a limitation period of one (1) year starting from the date on which full execution of the contract was completed or, if performance proved impossible for any reason, on which delivery was supposed to take place. Notwithstanding the above provisions, for actions arising from customs operations, no action shall be brought after a limitation period of three (3) years starting from the date on which the customs debt was incurred.
Article 12. — VOIDANCE – SEVERABILITY
If any provision of those Standard Trading Conditions should be held unenforceable or invalid by a court or competent jurisdiction, all other provisions shall remain in full force and effect.
Article 13. — JURISDICTION
All claims arising from transport and/or logistics operations entrusted to the TLO and/or its assigns (subcontractors) shall only be brought before the Commercial Courts of the place where the TLO has its main place of business, presently the Commercial Court of Pontoise (France), notwithstanding the case of multiple proceedings, incidental, third-party warranty claims, or plurality of defendants.
Article 14. — PENALTY CLAUSE
Should recovery be managed by the TLO’s litigation service, following an unsuccessful summons to pay sent via registered letter, and even though the dispute is not brought before court, all amounts due will, automatically and without further formal notice, incur a flat rate compensation fee of 15 (fifteen) %.