Logistics terms and conditions of the Mayr

Logistics terms and conditions of the Mayr-Melnhof Group
Valid as of 1st of January 2015 until further notice
These Terms and Conditions shall apply to all contracts on transport, freight, storage and delivery
services concluded with companies of the Mayr-Melnhof Group (Customer). They form the exclusive
legal basis and exclude in any case terms and conditions on the part of the Contractor as well as the
General Austrian Forwarders' Terms and Conditions (AÖSP) and the General German Forwarders'
Terms and Conditions (ADSP). These Terms and Conditions shall also apply to incidental services as
well as counselling and information services.
1. Parties to the Contract
Parties to the Contract are the legal entity for the respective Mayr-Melnhof supplying plant (hereinafter
referred to as Customer) and the Contractor.
2. Enquiry
Any invitation to make an offer or any price enquiry or the like by the Customer is made without
engagement and does not have a binding effect; in particular no such invitation shall be regarded as
offer.
3. Price information and offers of the Contractor
The Contractor shall be bound by his quotation and the information contained therein, in particular with
respect to price and delivery periods, for the period stated in his offer or, if no such period is indicated,
for a period of 14 days after the offer was received by the Customer; the Contractor shall not be
entitled to depart from them unilaterally. Price information, offers and cost estimates and the like shall
be provided by the Contractor free of charge.
The Customer shall be entitled to make concrete specifications with respect to offer and contract
documents, in particular as to form, type, extent and contents, which shall be complied with by all
means.
4. Purchase order and counter signature
The Contract is concluded exclusively on the basis of the order placed by Mayr-Melnhof. The order
shall be deemed accepted if and when it is received by the Contractor.
5. Time for performance
Times for performance between the Customer and the Contractor shall be agreed upon in writing. The
time stated in the order within which performance must be effected shall be binding and commence
upon receipt of the order by the Contractor. If no period is agreed upon, performance must be effected
without delay.
The Contractor shall immediately notify the Customer of any imminent delay in performance, giving the
reasons for the delay and informing the latter of its prospective duration.
Performance before the agreed date shall only be admissible upon the Customer's express written
consent. Such performance shall by no means result in any disadvantage for the Customer. In
particular the term of payment (item 15, paragraph 2) shall not commence before the agreed date.
Transported goods shall only be discharged at the recipient's address indicated in the order or at any
other place agreed upon. Alterations may only be performed with the Customer's express written
consent.
The Contractor is obliged to immediately inform the Customer in writing and comply with his
instructions in the case that the transported goods are not accepted by the recipient at the place of
destination or if circumstances arise which prevent shipment.
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6. Transport specifications
If pallet exchanges are agreed upon, they shall be exchanged directly upon loading. Pallets that were
not exchanged will be invoiced upon freight invoicing at € 14,-- per unit.
Only such vehicles shall be used which are suitable for carrying out transportation. The vehicles must
meet all legal and official requirements of the states concerned and all approvals necessary to carry
out transportation must be on hand.
As regards transportation, the Contractor shall only make use of drivers who are qualified under the
legal provisions of the states concerned, in particular the provisions on the employment of foreign
nationals, to carry out the transports. The original work permits or a certified copy thereof are to be
held on board the vehicles.
The Customer requires compliance with the statutory driving times and rest periods.
Should vehicles be fully booked (full truckload) it is inadmissable to load additional goods of other
customers who do not belong to the Mayr-Melnhof Group.
Goods may only be transloaded upon the Customer's prior written consent. The Contractor shall
always indicate the Customer's order number on all correspondence and documents directed to the
Customer, such as consignment notes, wagon labels, railway boxes, postal parcel certificates,
notifications of shipment, delivery notes, packaging slips, invoices, alteration notes and the like or he
shall provide for its indication. The Contractor shall be liable for all disadvantages arising because of
non-compliance with this obligation.
If the Contractor assumes a storage order or stock management tasks, they will be subject to a
separate agreement entered into between the Customer and the Contractor.
7. Liability and Insurance
The Contractor shall be liable to the Customer for all damages attributable to him, in particular for
damages or losses inflicted upon transported or stored goods or for default.
The Contractor undertakes to take out a forwarder's and carrier's liability insurance with a minimum
coverage of at least € 350,000.-- at normal market conditions and to evidence in writing the taking out
of such insurance upon the Customer's request; furthermore, the Contractor undertakes to punctually
pay the prescribed premiums and to oblige the insurer to inform the Customer of any qualified nonpayment of premiums or if the extent of cover provided in this insurance contract is changed.
8. Indemnity Clause
The Contractor shall comply with the legal provisions which apply to its organization. This obligation
includes in particular the compliance with the statutory provisions on a minimum wage.
In case of a claim by a third party or a liability of the Customer towards any third party due to the
breach on these provisions by the Contractor, the Contractor shall indemnify the Customer and also
hold the Customer free from all related costs (e.g. legal costs). The indemnification in particular
includes third party claims against the Customer due to non-payment of the statutory minimum wage
by the Contractor. The indemnification also includes third party claims against the Customer due to
non-compliance with legal provisions by undertakings (sub-) contracted by the Contractor.
9. Loading and unloading, securing of loads
The Contractor is responsible for the proper loading, stowage and securing of the goods on the
vehicle; he is furthermore responsible for their unloading and is only entitled to put the vehicle into
operation if it is safe for transportation purposes and if the safety standards for the provided mode of
transport (e.g. road, railway, ferry, Eurotunnel) are complied with. Safety materials such as adjustable
belts, tension slat posts or anti-slip mats are to be held on board in sufficient number. As an absolute
minimum requirement, six functional adjustable belts must be kept on board with each piece of loading
equipment.
10. Default, withdrawal and contractual penalty
In the case of any default in performance or in the case of performance contrary to the Contract the
Customer shall be entitled - without prejudice to any further claims - to immediately rescind the
Contract.
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This shall also apply when there is no fault on the part of the Contractor. In parallel, it shall be left to
the Customer's discretion to insist on the performance of the Contract. The Customer shall have the
same rights, if insolvency proceedings are instituted over the Contractor's assets or a petition for
bankruptcy has been dismissed for lack of cost covering assets. In the case of non-contractual
performance the Customer shall have the right to seek substitution for the performance elsewhere.
Any additional costs shall be paid by the Contractor.
In the case of the Contractor's default the Customer shall furthermore be entitled to claim in lieu of
contractual performance a contractual penalty, which must not be based on fault, in the amount of
10% of the total order value or - at his choice - a contractual penalty in the amount of 1% of the total
ordervalue for each commenced calendar week up to a maximum of 10% of the total order value. This
contractual penalty is independent of any actually incurred damage and shall immediately be due for
payment and shall not be subject to judicial reduction. The Customer shall be at liberty to claim further
damages.
The Contractor expressly agrees to the setting-off of his claims against the Customer with those the
Customer has against him (namely with each legal entity of the Mayr-Melnhof supply plants).
11. Force Majeure
However, if the default is due to force majeure, the time for performance will be prolonged as long as
the circumstances preventing timely performance exist, if the Contractor immediately notifies the
Customer of any such circumstances and produces evidence for their existence. Events of force
majeure shall be war, civil war, barriers to export and trade due to political circumstances as well as
strikes, lockouts, operational disturbances, operational restrictions and similar occurrences which are
not attributable to the Contractor and which go beyond his sphere of influence and which make the
fulfilment of his obligations impossible or unbearable.
In case the event of force majeure causing the impossibility of performance according to the
abovestated definition lasts longer than four weeks, the Customer shall be entitled to terminate the
Contract with immediate effect. The Customer shall be entitled to terminate the Contract with
immediate effect without complying with the above-stated time period if compliance with the agreed
time for performance has been agreed upon as a precondition for ensuring the Customer's continuous
production.
12. Damages and product liability
The Contractor shall be liable for damages and losses inflicted upon the transported and stored goods
in the amount of their actual value according to commercial invoice or valid price list. In the case that
the Customer incurs additional costs in connection with a special production necessary to meet his
supply obligations the Contractor shall also pay these costs.
Within the framework of his liability for claims the Contractor is also obliged to reimburse the Customer
for all expenses arising out of or in connection with a callback performed by him that was triggered by
damages caused to the transported goods during carriage which could not be observed immediately
at delivery of the transported goods. The Customer will inform the Contractor – to the extent this is
possible and reasonable – of the contents and the extent of the callback measures to be performed
and give him the opportunity to present his opinion on the matter. Further statutory claims of the
Customer shall thereby remain unaffected.
13. Fire protection, environmental protection, health rules, industrial safety
In case the Contractor performs work or deliveries within the framework of the contractual
relationships in one of the Customer's permanent establishments he is obliged to comply with the
regulations internally applicable in the respective permanent establishment (in particular safety,
environmental, fire protection and health regulations) and/or to provide for their being strictly complied
with by his coworkers/ employees and subcontractors. The Contractor is obliged to request these
regulations from the respective permanent establishment and to accordingly instruct and train his coworkers. The Contractor is aware that the current version of the regulations is available for inspection
at each permanent establishment.
The health rules of the HACCP-Regulation shall be complied with by the Contractor pursuant to the
requirements provided in the annex (Annex 1).
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The special rules of the forwarder and the recipient of transported goods regulating conduct on his
premises (such as smoking bans) must be observed by the Contractor and/or his vicarious agents.
Unless drivers are already familiar with these rules they are obliged to make themselves familiar with
them when entering the respective premises.
The Contractor shall be liable for negligent infringements of these internal regulations brought about
by his vicarious agents.
14. Confidentiality
The Contractor undertakes to treat all details which are not obviously of a commercial or technical
natureand which he learns about in the course of the business relationship as business secrets and to
keepsuch information confidential also after termination of the business relationship. The Contractor
shall not be entitled to refer to the business relationship with the Customer in advertising or
promotional material without the Customer's prior written consent.
15. Invoicing
Invoices shall meet the requirements of the applicable tax regulations; furthermore, they shall be sent
exclusively to the invoicing address indicated in the order and shall show the Customer's order
reference. Otherwise the invoice will be returned and payments not effected. The Customer's order
number and order position as well as the Customer's material identification number (if indicated) must
be indicated in all cases on delivery notes and invoices.
Open positions may be settled either by payment of the issued invoice or by means of a credit note
issued by the Customer.
16. Price and terms of payment
All prices are fixed prices and do not include VAT.
Payments shall always be effected in accordance with the terms of payment indicated in the order. If
no terms of payment are indicated, payments shall always be effected in full discharge of debt and
undiscounted 30 days after the end of the month in which the service was provided. In any case,
payments are considered as made on time within the discount period or general time limit for payment
if they are made within the framework of the weekly settlement of payments at the next possible
weekly date after the expiry of the respective period.
The terms of payment shall commence on the day of receipt of the respective invoice that has been
made out in accordance with these Terms and Conditions (in particular item 14), however not before
the contractual provision of the ordered service. Invoices that do not comply with these Terms and
Conditions will not trigger the running of the time limits for payment.
In the case of invoices for partial delivery the Customer shall be entitled to a discount even if the
preconditions for such discount (paragraph 2) do not apply to other invoices for partial delivery of the
same order.
The Customer shall be entitled to pay the Contractor's invoices at his choice by cash transfer, in cash,
by cheque; all of them in lieu of payment. The time limits for payment shall be considered complied
with if the transfer order has been given or the cheque posted within that time limit.
17. Assignment of contract, assignment of claims and set-off
The Contractor shall not be entitled to assign an order placed with him, neither as a whole nor in part,
to other undertakings for execution without the Customer's written consent. The Contractor shall in any
case be liable - even if he obtains the Customer's respective consent - for his vicarious agents. Any
assignment of claims against the Customer without the Customer's prior written consent is
inadmissible.
The Customer shall be entitled to set off his claims against the Contractor's claims via all companies of
the Mayr-Melnhof Group.
18. Place of performance, venue and applicable law
The delivery address indicated by the Customer or the place at which the service is to be provided
according to the order shall be the place of performance. In the case of legal disputes arising out of
this Contract Austrian law shall apply under the exclusion of the rules of the UNCITRAL Sales Law.
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The court which is competent for commercial matters in Vienna 1 shall have exclusive jurisdiction over
all disputes arising out of or in connection with these Terms and Conditions. However, the Customer
shall at his choice be entitled to bring actions against the Contractor also before that court which has
jurisdiction ratione materiae and ratione loci pursuant to the Contractor's place of business or
residence.
19. Correspondence and communication
Any commercial correspondence shall be conducted exclusively via the Customer's logistics
department. Communication shall be conducted exclusively via the Customer. Communication via
third parties is not permitted.
The Contractor shall always indicate the Customer's order number on all correspondence and
documents directed to the Customer, such as consignment notes, wagon labels, railway boxes, postal
parcel certificates, notifications of shipment, delivery notes, packaging slips, invoices, alteration notes
and the like or provide for its indication. The Contractor shall be liable for all disadvantages arising
because of non-compliance with this obligation.
20. Miscellaneous
The Contractor is aware that mandatory special trading rights (such as CMR, CIM, EBG, WA etc.)
provide exclusions and restrictions of liability. Being familiar with these provisions the Contractor
waives his right to refer to such exclusions and restrictions of liability. Any such reference by the
Contractor shall by mutual consent be deemed made maliciously and contra bonos mores.
The inapplicability of individual provisions of these Terms and Conditions shall not affect the validity of
the remaining provisions.
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Annex 1:
AGREEMENT ON HEALTH REQUIREMENTS (HACCP CONCEPT)
FOR THE FREIGHT CARRIER
1. Objective / purpose
All Mayr-Melnhof undertakings (Customer) work according to the HACCP concept of the
principles developed by INREKA on the basis of the "Royal Society of Health-Standard"
(guidelines). According to these principles, due attention must also be paid to the point
"HACCP and marketing"; this requires the freight carrier (Contractor), who by his signature
undertakes to comply with these provisions, to observe certain (health-related) purity
standards.
2. Implementation regulations
2.1 The transport units made available by the freight carrier to the Contractor must meet the
following criteria:
a) there shall be no problems in terms of their load capacity, i.e. they shall not make use of
so-called "gooseneck" bodies (step frame)
b) the loading platform must be flat (no flawed boards) and be swept clean before
reloading
c) no goods shall be transported directly before the shipment of Mayr-Melnhof products which
could have an adverse effect on said products; this includes moisture, smell (e.g.
hides, animal transports, coffee) or other smell-emitting as well as all contaminating products.
d) in the case of subsequent additional loading of other goods of the Customer (in order to
fully use the available loading capacity) it must be ensured that these "other products" do not
adversely affect the products (e.g. no canisters / barrels containing chemicals, nor glass
containers, nor loose products which could contaminate Mayr-Melnhof's products, nor
chemicals shall be placed on the pallets together with the products). The transportation of
third-party products on the Customer's products is strictly prohibited.
2.2 The condition of the transport unit will be checked before loading with cardboard by a
responsible person of the Customer (loading master), upon whose instructions the driver is
obliged to provide for additional cleaning of the loading platform.
2.3 Should the condition of the transport unit be objectionable despite these measures, the
Customer will declare a written reservation and inform the Contractor that the means of transport
provided by him cannot be loaded.
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