Scope of application and essential contractual obligations

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1.1 Area of application/applicability

All our crane and transport services as well as rough assembly are based on the following terms and conditions, unless mandatory statutory provisions conflict with them (e.g. HGB or CMR, CMNI/CLNI, CIM/COTIF, MÜ/WA, in each case in the latest version [n. F.]).

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1.2 Material contractual obligations

The essential contractual obligations of the contractor result from sections 2 to 4 of these terms and conditions. These are the obligations whose fulfilment makes the proper performance of the contract possible in the first place and on whose compliance the contractual partner regularly relies and may rely.
The client's obligations to cooperate in sections 18 to 22 are also such essential contractual obligations.

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1.2 Material contractual obligations

The essential contractual obligations of the contractor result from sections 2 to 4 of these terms and conditions. These are the obligations whose fulfilment makes the proper performance of the contract possible in the first place and on whose compliance the contractual partner regularly relies and may rely.
The client's obligations to cooperate in sections 18 to 22 are also such essential contractual obligations.

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2. crane services within the meaning of these terms and conditions shall be provided in two service types:

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2.1 Service type 1 - Crane positioning

Crane provision refers to the provision of lifting equipment including operating personnel to the client for the performance of work according to the client's instructions and disposition.

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2.2 Service type 2 - Crane work

Crane work is the transport of goods, in particular the lifting, moving and relocation of loads and/or persons for work purposes with the aid of a hoist, and refers to the assumption of one or more agreed lifting manoeuvres by the contractor in accordance with his instructions and disposition. This also includes, in particular, the isolated handling of heavy goods with the aid of a crane.

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3. transport services

Transport service in the sense of these terms and conditions is the commercial transport of goods as well as the movement or change of location of goods, in particular by means of special transport aids such as e.g. heavy-duty rollers, armoured rollers, roller carriages, lifting jacks, air cushions, hydraulic lifting frames and lifting gantries, or similar. (so-called floor and cross transports), including the associated transport-related interim storage. Heavy cargo is regularly transported unpacked and unplanned. The contractor is only responsible for packing and tarpaulins of the goods as well as loading, stowing and lashing and unloading - except in the case of sea freight - if this has been agreed. In the case of transport by ship, the customer agrees to open deck loading.

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4. rough assembly and disassembly, other additional services

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4.1 Rough assembly and disassembly

These are, if agreed, components of the crane or transport service. This includes the assembly or disassembly as well as the fastening or loosening of the load for the purpose of transport preparation or handling. For assembly services going beyond this (final assembly, test run, fine adjustments, etc.), the BSK Terms and Conditions of Assembly, as amended, shall apply.

4.2. Additional services

These are all separately remunerated services that are not directly part of the essential contractual obligations but round off the entire range of services, e.g. all traffic management measures, structural modifications or static calculations of traffic routes, route inspections, police escorts.

5. Site inspection

Results of site inspections and special agreements, e.g. on loading and unloading location, crane location, shall be recorded by the parties.

6. Conditions subsequent to the contract - public law permits and approvals

The performance of large and heavy transports as well as crane transports on public roads requires the permission or approval of the competent authority, in particular in accordance with §§ 29 III and 46 I No. 5 StVO as well as § 70 I StVZO and, if applicable, further special use permits in accordance with road and street law as well as other necessary public-law permits. The contracts concluded under these conditions are subject to a resolutory condition and shall terminate if the permit or approval is refused by the competent authority. Claims for remuneration for services rendered up to that point shall remain unaffected.

7. Traffic management measures and ancillary provisions

Insofar as traffic control measures (police escort, auxiliary police, administrative assistants, contracted companies, etc.) or other requirements and ancillary provisions for maintaining the safety and ease of road traffic and/or for protecting the road structure are ordered by the authorities, the contracts concluded under these conditions are also subject to the resolutory condition of the timely availability of the security forces and the timely feasibility of the official security measures. The Contractor undertakes to apply for the necessary official permits and approvals in good time in accordance with the relevant administrative regulations and to inform the Client without delay of any such conditions and ancillary provisions relating to the performance of the transport which could complicate or impede the transport process. The BSK leaflet: "Verkehrslenkende Maßnahmen" (Traffic Control Measures), as amended, shall apply in this respect.

8. Subcontractors and change of mode of transport

The Contractor shall be entitled to engage other companies and/or carriers to fulfil the obligation assumed under the contract, unless otherwise agreed.

9. Termination of contract

The contractor shall be entitled to withdraw from the contract to the exclusion of claims for damages if, after careful examination before or during the use of vehicles, equipment or working devices of any kind and despite all reasonable efforts to prevent damage, substantial damage to third party and/or own property and/or assets or personal injury is highly likely to be unavoidable. The exclusion of claims for damages shall not apply if the contractor has failed to exercise the care of a prudent businessman (carrier). In the event of withdrawal, the remuneration for crane services shall be calculated on a pro rata basis; for transport services, the statutory provisions shall apply.

10. Arrangements for unavoidable obstacles to performance, weather-related interruptions

The contractor is entitled to interrupt the assignment immediately in the event of danger to equipment, cargo, personnel and/or third parties. He shall not lose his claim to remuneration in the event of force majeure or if the hindrances could not be averted despite reasonable efforts and extreme care.
Interruptions due to weather conditions do not reduce the claim to payment.

11. Scope of the service

The crane, crane frame or transport contract or the agreements in the international consignment note shall be decisive for the performance of the contractor. The contractor shall owe what is necessary for the individual services in accordance with sections 2 to 4. Any additional services or activities in the broader sense shall either be agreed or become new content of the contract by way of amendments to the contract in accordance with the following provisions. Only if it is agreed, the contractor shall also provide the necessary hoisting, instruction and other personnel at the expense of the principal.
In addition, the contractor shall inform the client of the relevant equipment data, such as wheel, chain and support pressures and the resulting ground loads.

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Section 1

Crane positioning

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12. obligations of the contractor and liability

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Obligations of the Contractor
The Contractor is obliged to provide suitable lifting equipment for the order, which has been tested and is ready for operation in accordance with the relevant statutory provisions and the applicable rules of technology and occupational health and safety. The Contractor shall neither be responsible for slinging the load nor for providing suitable slinging equipment, e.g. slinging chains, ropes, lifting straps, unless expressly agreed otherwise. The contractor shall only be liable for the personnel provided within the scope of the applicable principles of selection fault. Except in the case of obvious incorrectness or incompleteness of the information, the contractor is not obliged to verify or supplement the information to be provided by the client, in particular with regard to weight, dimensions, quantities and other relevant special features of the loads to be transported.

12.1. Disclaimer

Liability, in particular for late delivery, is excluded in the event of force majeure, riots, acts of war or terrorism, strikes and lockouts, blockades of transport routes, weather-related circumstances, roadblocks and other unforeseeable, unavoidable and serious events.

12.2. limitation of liability

Except in the case of intent and gross negligence on the part of the Contractor and its vicarious agents, the Contractor's liability, in particular in the case of untimely provision, shall be limited to the damage foreseeable at the time of conclusion of the contract and typical for the contract.
This limitation of liability does not apply to injury to life, body and health of persons.

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Section 2

Crane work and transport services

13. Duties of the Contractor

The Contractor undertakes to execute all orders placed with him properly and professionally using all available means and technical possibilities in compliance with the relevant rules of technology.

14. Selection of means of transport, lifting gear and personnel

The contractor undertakes to use in particular suitable means of transport and lifting gear that are ready for operation, safe to operate and have been tested in accordance with the applicable regulations. Furthermore, the contractor undertakes in particular to deploy suitable operating personnel (crane operators and drivers) who are familiar with the operation of the means of transport or the lifting gear.

15. Liability of the Contractor

15.1. Basic regulation

The statutory provisions on the freight business apply in this section. The Contractor's liability for damage to goods during custody is limited to 8.33 Special Drawing Rights (SDR) per kilogram of the damaged or lost goods - except in cases of qualified fault in accordance with Section 435 of the German Commercial Code (HGB).
In the case of carriage by sea, the contractor is liable for damage to goods at 2 SDR per kilogram of gross weight of the consignment or a maximum of 666.67 SDR per package or unit, whichever is the greater. In the case of national inland waterway transport, the contractor is liable for a maximum of 2 SDRs per kilogram of gross weight of the consignment. The same applies in the case of multimodal transports with a shipping component if the place of damage is unknown.

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15.2 Extensions of liability in favour of the principal

In deviation from clause 15.1, the Contractor shall be liable in favour of the Client for damage to goods up to an amount of € 600,000.00 and for other financial losses for which there is statutory liability on the merits up to an amount of € 125,000.00, in each case per damaging event, with the total liability limits being waived. The statutory provisions shall apply to amounts of damage exceeding this.

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15.3 Exclusions of liability for carriage by sea and international carriage by inland waterways

15.3.1. Sea transport

Pursuant to section 512, paragraph 2, no. 1 of the German Commercial Code (HGB), it is agreed that the contractor, in his position as carrier, is not responsible for any fault on the part of his men and the ship's crew if the damage was caused by conduct in the management or other operation of the ship, but not in the performance of measures taken predominantly in the interests of the cargo, or by fire or explosion on board a ship.

15.3.2. international inland waterway transports

The Contractor as carrier or actual carrier shall also not be liable in accordance with Article 25(2) of the CMNI if the damage is

• was caused by an act or omission of the master of the vessel, pilot or other person in the service of the vessel or of a pushing or towing vessel in the nautical management or the formation or breaking up of a pushing or towing convoy, provided that the carrier has complied with his obligations under Article 3(3) of the CMNI in respect of the crew, unless the act or omission is committed with intent to cause the damage or recklessly and with knowledge that such damage would probably result;
• caused by fire or explosion on board the ship without it being proved that the fire or explosion was caused by the fault of the carrier, the actual carrier or their servants or agents or by a defect in the ship,
• is due to defects in his or a hired or chartered vessel existing before the start of the voyage, if he proves that the defect could not have been discovered before the start of the voyage despite exercising due care.

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15.4 Limitations of liability

In other respects, outside the care of the Contractor and for other breaches of duty, the following shall apply:
Except in the case of intent and gross negligence on the part of the Contractor and its vicarious agents, the Contractor's liability shall be limited in amount to the damage foreseeable at the time of conclusion of the contract and typical for the contract.
This limitation of liability does not apply to injury to life, body and health of persons.

16. Higher value declaration

Insofar as the Client desires a higher amount than in Clause 15.2, an express agreement on this shall be made before the order is placed and the Contractor shall be entitled to charge the Client for the costs of a corresponding insurance for the higher liability.

17. Insurance of the goods

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17.1 Request for cargo insurance

The contractor is only obliged to insure the goods if there is an express written order to do so, stating the insured value and the risks to be covered. The mere statement of value is not to be understood as an order for insurance.

17.2. Special regulations for cargo insurance

By accepting the insurance certificate (policy), the contractor does not assume the obligations incumbent on the client as policyholder, but the contractor must take all the usual measures to preserve the insurance claim.

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17.3 Agreement of customary insurance conditions

In the absence of any written agreements to the contrary, the Contractor shall insure at the Client's expense under the insurance conditions customary at its place of business.

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Section 3
Obligations of the Client and Liability

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(18) General obligations of the principal and cooperation of the contractor

The client shall create all technical conditions necessary for the proper and safe execution of the order at his own expense and risk and maintain them during the assignment. In particular, the client is obliged to keep the goods to be treated available in a condition ready and suitable for the execution of the order. The customer is also obliged to specify the dimensions, weights and special properties of the goods (e.g. centre of gravity, type of material) and, in the case of crane services, the attachment points in good time and correctly. The customer shall be responsible for slinging the load and shall provide the suitable slinging equipment, unless otherwise agreed.
In particular, the customer shall pass on in writing his special knowledge and information that is not generally known (together with documents and records).
Information and declarations of third parties used by the principal to fulfil the obligations incumbent on him shall be deemed to be self-declarations of the principal.
The Contractor shall, to the extent necessary, support the Client beyond the information obligations set out in Clause 11 and, to this end, provide the individual acts of cooperation set out in the following clauses.

19. Special obligations concerning access roads

The Client shall obtain the necessary consent of the owners to drive on third-party properties, non-public roads, paths and squares and shall indemnify the Contractor against claims of third parties that may arise from unauthorised use of third-party property.
The Client shall bear the risk of the construction road connection due to the duty of road safety incumbent upon it.

20. Special duties regarding ground conditions, access roads, site of operation, crane workplace

20.1. ground conditions at the site and access routes

The Client shall be responsible for ensuring that the ground, space and other conditions at the place of use as well as the access routes - with the exception of public roads, paths and squares - permit proper and safe execution of the order. The Contractor shall cooperate in this respect and perform the acts of cooperation stipulated in section 11.

20.2. Reference to special risks

The Client shall always point out special risks and either eliminate them himself or have them eliminated, insofar as they originate from the sphere of the Client. In particular, the Client shall provide the information necessary to enable the Contractor to adequately assess the special requirements.

20.3. soil conditions

The client is responsible for ensuring that the soil conditions at the loading and unloading site or at the place of use as well as at the access roads are able to withstand the occurring soil pressures and other stresses. If necessary, the contractor shall also provide information on possibilities of soil investigation in the case of unknown soil conditions as well as information on enabling the soil conditions for safe operation. The Contractor shall also provide other suitable information that is typically known to him as the operator, insofar as the Client recognises the need for this.

20.4. construction site

With regard to the place of use and access, the Client shall, as far as necessary, depending in particular on the notified wheel, chain and support pressures, construct the possible construction site to a suitable extent. If the Contractor wishes to use sites deviating from the agreed, instructed or recognisable construction site, he shall consult the Client in this respect and determine the suitability in cooperation with the Client.

20.5. shafts, cavities or other non-visible obstacles

The Client shall be responsible for all details of underground cable shafts, supply lines, other underground lines and cavities which could affect the load-bearing capacity of the ground at the site of use or the access routes. The Client shall draw attention to the location and presence of overhead and overhead lines, underground cables, lines, shafts and other cavities or to other unidentifiable obstacles that could impair the stability and operational safety of the vehicles and equipment used at the site. The contractor shall expressly point out typical risks occurring in the specific location, such as shafts or cavities in public roads, paths and squares, insofar as the client recognisably requires such information or expressly asks about this. The customer shall point out any special hazards that may arise during the performance of the crane or transport service with regard to the goods to be transported and the surrounding area (e.g. hazardous goods, contamination damage). In this respect, the contractor shall also provide the information possible to him as operator, e.g. on typical and special risks known to him, insofar as these are not recognisably known to the customer.

20.6. Information from the client

Subject to the foregoing, the Contractor may rely on any information provided by the Client with regard to the soil conditions and shall not be obliged to verify the information provided, unless there is an obvious error or incompleteness or it is evident from the nature of the matter that special features of the soil conditions exist.

21. Instructions of the principal

After placing the order, the Client may not, without the consent of the Contractor, issue any instructions to the personnel deployed by it which deviate from the contractual agreements in terms of type and scope or which are contrary to the purpose of the contract.

22. Liability of the principal

If the Client culpably breaches the aforementioned obligations, in particular its duties of preparation, notification and cooperation, it shall be liable to the Contractor for any resulting damage. The provision of Section 414 (2) of the German Commercial Code (HGB) shall remain unaffected. He shall indemnify the contractor against claims for damages by third parties arising from the breach of the client's obligations. In the event of a claim against the contractor under the Environmental Damage Act (Umweltschadensgesetz) or other comparable public, national or international regulations, the principal shall indemnify the contractor in full in the internal relationship, unless the contractor caused the damage intentionally or by gross negligence. The objection of contributory negligence remains unaffected for both parties.

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23. provisions on remuneration including invoicing, set-off / retention, contractor's right of lien and retention

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23.1 Fundamentals of remuneration

The contractor shall be entitled to reimbursement of expenses which he could reasonably consider necessary under the circumstances and for which he is not responsible, in particular for fees and costs for official expenses as well as all procurement costs and costs arising from official requirements and other ancillary provisions, e.g. for police escorts, for administrative assistants, for civil escorts, and other costs for officially ordered safety precautions, unless otherwise agreed.
The Contractor's invoices shall be paid immediately upon receipt of the invoice after fulfilment of the order, unless otherwise agreed when the order was placed.

23.2 Offsetting, retention

With respect to claims arising from the contract and related non-contractual claims, set-off or retention shall only be permissible if the counterclaim due is undisputed, ready for decision or legally established, unless the Client is a consumer.

23.3. Right of lien and retention

The contractor shall have a right of lien and a right of retention on the goods or other assets in its power of disposition on account of all due and non-due claims to which it is entitled against the principal from the activities referred to in clauses 2 to 4. However, the right of lien and retention does not exceed the statutory carrier's or lessor's right of lien and the general right of retention.
With regard to a right of lien and retention on account of claims arising from other contracts concluded with the principal, Section 366 (3) of the German Commercial Code (HGB) shall apply.
The contractor may only exercise a right of lien and retention due to claims from other contracts concluded with the principal if these are undisputed or have been legally established or if the debtor's financial situation jeopardises the contractor's claim.
The period of one month for threatening the sale of pledged property specified in § 1234 of the German Civil Code (BGB) shall be replaced in all cases by a period of one week.
The principal is entitled to object to the exercise of the right of lien if he grants the contractor a means of security equivalent to the claim, e.g. a directly enforceable bank guarantee. This also applies to rights of retention.

24. German law, place of jurisdiction

Place of performance and place of jurisdiction, also for actions on cheques and bills of exchange among merchants, is exclusively the registered office of the contractor. All contracts concluded by the contractor are subject to German law. This also applies to foreign clients.

25. Rules on written form

Insofar as the written form is required for declarations, electronic communication and any other legible form shall be equivalent thereto, provided that it makes the issuer recognisable.

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