APPENDIX NO. 8 TO THE TERMS AND CONDITIONS - TRANSPORT ORGANISATION ASSISTANCE
- As part of one of the three Plans [Standard, Premium and Enterprise], the Freight Forwarder offers Users the Transport Organisation Assistance service.
- These Terms and Conditions of Assistance shall apply to all agreements concluded for domestic and international freight forwarding services between the User and the Service Provider on the Platform, unless the provisions of the agreements state otherwise.
- The Freight Forwarder performs freight forwarding services on the basis of licence 0384 to perform road transport in the scope of intermediation in the carriage of goods issued by the President of the City of Poznań, LS series no: 0036596.
- The Freight Forwarder represents that it has the freight forwarder's third-party liability insurance.
This section contains additional definitions related to the use of the Transport Organisation Assistance service. Capitalised terms not otherwise defined in the Terms and Conditions of Assistance shall have the meaning assigned to them in the merXu Terms and Conditions.
TRANSPORT ORGANISATION ASSISTANCE - a service rendered electronically by the Freight Forwarder on the basis of the Terms and Conditions of Assistance which enables the Orderer to place an order with the Freight Forwarder to order the performance of a Freight Forwarding Service. In addition, as part of the service, Users can make use of external transport service quotation calculators of Carriers available on the Platform, as well as obtain support in arrangements and performance of the service.
FREIGHT FORWARDER - Service Provider as defined in the merXu Terms and Conditions.
ORDERER – a User who uses the Subscription System which entitles them to order the Transport Organisation Assistance service.
FREIGHT FORWARDING SERVICE - the undertaking by the Freight Forwarder towards the User, against remuneration charged within the selected Plan, within the scope of its business activity, to organise the Freight Service of the Shipment, which takes place in the territory of the Republic of Poland (domestic Freight Forwarding Service) or in the territory outside the Republic of Poland (international Freight Forwarding Service) and to perform other services related to its transport and forwarding.
FREIGHT FORWARDING ORDER - a file in electronic version generated by the Orderer in the User panel and containing a specification of the Shipment (in particular: quantity, weight, type of goods, required protection and method of packaging), time and place of delivery and collection of the Shipment and an order for the Freight Forwarding Service. A Freight Forwarding Order may be preceded by the quotation of the Freight Forwarding Service by the Orderer in the calculator made available to the Orderer in the User panel. The Freight Forwarding Order constitutes an offer to conclude a Freight Forwarding Agreement which the Orderer submits to the Freight Forwarder. It is possible to generate a Freight Forwarding Order and make a quotation at the stage of accepting the Offer on the Platform.
CONFIRMATION OF ACCEPTING THE ORDER- information sent by the Freight Forwarder to the Orderer electronically through the User panel about the price of the Freight Forwarding Service and the date of payment, confirming acceptance of the Freight Forwarding Order by the Freight Forwarder for execution.
FREIGHT FORWARDING AGREEMENT - agreement for the provision of Freight Forwarding Services in respect of a particular Shipment, concluded between the Freight Forwarder and the Orderer, entered into in one of the modes provided for in the further provisions of the Terms and Condition of Assistance.
FREIGHT SERVICE - a transport service performed by a Carrier on the basis of a separate contract concluded by a Freight Forwarder in its own name (acting under a Freight Forwarding Agreement) on behalf of an Orderer, for which Freight Charges are collected.
FREIGHT CHARGES - the remuneration payable to the Carrier for the Freight Service.
SHIPMENT - movables accepted for freight forwarding on the basis of a Transport Document from one Consignor to one Consignee in the performance of a Freight Forwarding Service.
TRANSPORT DOCUMENT - a national consignment note (LP) and an international consignment note (CMR).
CONSIGNOR - the entity that releases the Shipment to the Carrier in connection with the performance of the Forwarding Service; in the event that the Consignor of the Shipment is not the same entity as the Orderer, the Orderer shall be liable for the actions or omissions of the Consignor in connection with the performance of the Consignor's duties set out in the Terms and Condition of Assistance as for its own actions.
CONSIGNEE - the entity that accepts the shipment delivered by the Carrier as part of the performed Freight Service.
CARRIER - the carrier or another third party by means of which the Freight Forwarder performs the Freight Forwarding Service for the Orderer within the scope of the Freight Service.
TERMS AND CONDITIONS OF ASSISTANCE - these terms and conditions of the TRANSPORT ORGANISATION ASSISTANCE.
[GENERAL TERMS AND CONDITIONS]
- Within the framework of its business activity, the Freight Forwarder renders freight forwarding services on its own behalf to the Orderer, in particular by organising, monitoring, supervising carriage of Shipments in domestic and international transport using means of transport and issuing transport documents, providing additional services to the Orderer in the field of logistic and information support, cargo transport insurance service and consultancy services. The basic Freight Forwarding Service indicated in the Freight Forwarding Order includes the organisation of the Freight Service for the Shipment. To order additional freight forwarding services, the Orderer shall tick appropriate points in the "Additional services" section of the Freight Forwarding Order available in the User panel.
- The Freight Forwarder represents that it has the knowledge and qualifications necessary for the proper performance of the Freight Forwarding Service and undertakes to execute it with due diligence, taking into account the applicable provisions of the law, standards and rules of execution of the work covered by the Freight Forwarding Agreement, with due care for the interests of the Orderer.
- The Freight Forwarder shall be guided in the performance of the Freight Forwarding Service by the instructions of the Orderer and persons designated by it.
- The Freight Forwarder undertakes, in any event, to inform the Orderer immediately of any need for information or consultation necessary for the performance of the Freight Forwarding Agreement.
- The Orderer undertakes to provide, at each Freight Forwarder’s or the Carrier’s reasonable request, all information in its possession necessary for the performance of the Freight Forwarding Agreement.
- In the execution of a Freight Forwarding Order, the Freight Forwarder organises the transport of the Shipment by concluding in its own name a Contract of Carriage on behalf of the Orderer with a Carrier with whom it cooperates on a regular basis. The Freight Forwarder is entitled to choose the Carrier at its own discretion and guarantees that the transport of the Shipment will be entrusted to a professional and reliable Carrier meeting the requirements of Polish and international law and capable of performing the Freight Service indicated in the Freight Forwarding Order. The performance of the Freight Service of the Shipment by the entity indicated in the preceding sentence satisfies the duties of the Freight Forwarder with regard to due diligence in the selection of the Carrier and releases the Freight Forwarder from liability for fault in selection.
- The Freight Forwarder's liability for improper performance of the Freight Forwarding Service, in respect of activities additional to arranging transport of the Shipment by concluding a Contract of Carriage for the Orderer with the Carrier, which is based on Article 799 of the Civil Code, shall not exceed the amount of remuneration for the Freight Forwarding Service in connection with which the damage occurred, whereby remuneration for the Freight Forwarding Service shall mean the price indicated in the Confirmation of Accepting the Order.
[FREIGHT FORWARDING ORDER]
- To order a Freight Forwarding Service with the Freight Forwarder, the Orderer is obliged to fill in and send a Freight Forwarding Order available through the User panel in an electronic form. On the basis of Article 661 § 4 of the Civil Code, Article 661 § 1-3 of the Civil Code does not apply to the Freight Forwarding Order sent to the Freight Forwarder.
- Deviation from the terms and conditions indicated in clause 1 hereinabove is only possible by separate agreement between the Freight Forwarder and the Orderer, which will allow individual freight forwarding orders to be made on a different template or without the use of one, as well as the provision of orders verbally or electronically. The transfer to the Freight Forwarder of the Freight Forwarding Order supplemented with contents other than those indicated in the User panel does not bind the Freight Forwarder, unless the Freight Forwarder expressly deems such supplementations to be binding.
- The Freight Forwarder confirms acceptance of the order for execution by automatic system confirmation or by sending the Confirmation of Accepting the Order to the Orderer electronically via the User panel. In the event of a discrepancy between the contents of the Freight Forwarding Order and the contents of the Confirmation of Accepting the Order, the latter shall prevail.
- Upon receipt of the Confirmation of Accepting the Order from the Freight Forwarder, the Orderer shall conclude the Freight Forwarding Agreement with the Freight Forwarder in accordance with the wording agreed in the Confirmation of Accepting the Order by means of an automatic system confirmation. Failure to make an automatic system confirmation means that the Freight Forwarding Agreement is not concluded.
- Acceptance of the Confirmation of Accepting the Order by the Orderer signifies at the same time acceptance of the conditions of the Contract of Carriage if such were presented by the Freight Forwarder.
- In the absence of an express agreement to the contrary, the Freight Forwarding Agreement is entered into by performing the actions as indicated in clause 3, or in the situation of the Orderer's acceptance of the wording of the Confirmation of Accepting the Order by sending information to the Freight Forwarder through the User panel within 3 hours of the Freight Forwarder's sending the Confirmation of Accepting the Order. The Orderer may not cancel the Freight Forwarding Agreement once it has been concluded, except for valid reasons of force majeure. Cancellation of the Freight Forwarding Agreement in the circumstances referred to in the preceding sentence entitles the Freight Forwarder to demand payment of the entire remuneration, subject to the possibility to claim damages in accordance with general rules in a situation where the damage caused exceeds the amount of the stipulated contractual penalty.
- Failure to confirm the Acceptance of the Freight Forwarding Order shall not be deemed acceptance of the Freight Forwarding Order for execution.
- The Orderer shall be responsible for the correctness and completeness of the data indicated in the Freight Forwarding Order. The Orderer shall be liable to the Freight Forwarder for any incorrect, incomplete or inaccurate data provided, both in the Freight Forwarding Order and in all correspondence between the Freight Forwarder and the Orderer, and in particular it shall be obliged to reimburse all costs incurred by the Freight Forwarder, including all costs arising from the conclusion of the Contract of Carriage. In the absence of specific instructions and guidelines, the Freight Forwarder is entitled, at its own discretion, to organise the transport of the Shipment, including the choice of route and the means of transport, taking into account the nature of the Shipment and being guided by the interests of the Orderer. Failure to fill in all sections of the Freight Forwarding Order shall make it impossible to rely on these requirements at a later stage of the performance of the Freight Forwarding Agreement.
- Persons with access to the User panel are assumed to be authorised and empowered to act on behalf of the Orderer. In case of doubt, the Freight Forwarder is entitled to demand a power of attorney or any other statement indicating authority to act on behalf of the Orderer.
- The terms and conditions of the Freight Forwarding Agreement may not be unilaterally altered by either Party. A change in the scope of specifications of the Shipment, also resulting from the performance of inspection activities by the Freight Forwarder and a change in the relation of transport of the Shipment constitute an amendment to the Freight Forwarding Order and/or the Freight Forwarding Agreement, require the consent of the Parties and are the basis for a change in the amount of the Freight Forwarder's remuneration.
- The fact of accepting a Freight Forwarding Order does not bind the Freight Forwarder when for reasons beyond its control, especially due to force majeure or the behaviour of the Orderer or third parties (including Carriers), the performance of the Freight Forwarding Service is rendered impossible or excessively difficult. Acceptance of the Freight Forwarding Order shall not bind the Freight Forwarder also in the event that the Orderer delays payment of any receivables to the Freight Forwarder. The Freight Forwarder shall inform the Orderer immediately of the fact that the accepted order cannot be executed. The Orderer shall not be entitled to any claims for damages in the event of the above situation, with the exception of the entitlement to reimbursement of any advance payments or prepayments.
- The Freight Forwarder reserves the right to refuse to accept a the Freight Forwarding Order at any time. The Freight Forwarder does not have to inform the Orderer of the refusal of the Freight Forwarding Order.
- The Orderer undertakes to prepare the documentation necessary for the performance of the Freight Forwarding Service, including documents relating to customs formalities. The Freight Forwarder is not obliged to examine the correctness of the transferred documents. The acceptance of the Shipment for the performance of the Freight Forwarding Service takes place on the basis of the Transport Document signed by the Consignor and the Carrier performing the Freight Service on the basis of the choice of the Freight Forwarder and the contract concluded by it on behalf of the Orderer.
- It is the responsibility of the Consignor to fill in the Transport Document correctly. In case of discrepancies between the Transport Document and the Freight Forwarding Order or the Confirmation of Accepting the Order, the provisions of the Confirmation of Accepting the Order shall prevail in assessing the Freight Forwarder's performance of the agreement.
- The Freight Forwarder undertakes to transfer to the Carrier the instructions concerning the terms and conditions of performance of the Contract of Carriage indicated by the Orderer in the Freight Forwarding Order, but it is not liable for damage caused by the Carrier's failure to comply with these remarks.
- The proper preparation of the Shipment for transport, in particular its appropriate packaging, is the responsibility of the Consignor of the Shipment and the Freight Forwarder is not responsible for the proper performance of these activities. In performance of the obligation set out in the preceding sentence, the Consignor is obliged, first of all, to correctly mark the Shipment and indicate the same data as in the Transport Document and the Confirmation of Accepting the Order, secure the Shipment from any damage that may arise during the entire course of transport (in particular when the packaging is commercial packaging) and from free access of third parties to its content.
- Loading and unloading activities are carried out by the Consignor and the Consignee respectively, and they are obliged to look after the Shipment throughout these activities.
- If the packaging does not ensure safe and proper carriage, carriage of the Shipment shall take place exclusively at the risk and responsibility of the Orderer.
- The Carrier shall be liable for damage to the Shipment occurring from the moment of acceptance of the Shipment until the moment of its delivery, as well as for damage resulting from lost documents, delay in loading, unloading or delivery of the Shipment, total or partial loss, damage or shortage in the Shipment, incorrect placement of the Shipment on the cargo space, including correct pressure on vehicle axles, use of inappropriate, substandard or technically faulty means of transport, as well as for other manifestations of improper performance of the contract of carriage. The Freight Forwarder undertakes to assign the rights acquired as a result of the activities performed in connection with the execution of the Freight Forwarding Agreement and to issue all documents enabling the Orderer to exercise the rights acquired by the Freight Forwarder on its behalf.
- The Parties shall not be liable for non-performance or undue performance of their obligations in the event of circumstances of an extraordinary nature, having the character of force majeure, which could not have been foreseen with the exercise of due diligence required in professional trade and which are external to the parties to the Freight Forwarding Agreement and which include in particular: wars, riots, blockades of roads and exit and entry points, natural disasters, epidemics, decisions of public authorities and other acts of state making it impossible to perform the Freight Forwarding Service. In the event of the occurrence of the above-mentioned circumstances, the date of performance of the Freight Forwarding Service shall be postponed by the time of the occurrence of the circumstance.
- The Orderer undertakes to reimburse to the Freight Forwarder all costs and expenses it incurred in connection with the performance of the Freight Forwarding Service, on the basis of documents confirming their incurrence, and to pay the remuneration indicated in the Freight Forwarding Order or the Confirmation of Accepting the Order. The costs and expenses in question increase the remuneration of the Freight Forwarder.
- Payment of remuneration will take place after the Carrier has performed the Freight Service, by transfer to the account of the Freight Forwarder indicated in the VAT invoice within the period indicated in the content of the Confirmation of Accepting the Order, counting from the day of issuing the VAT invoice by the Freight Forwarder.
- The payment date shall be the date of crediting the bank account of the Freight Forwarder.
- If the Freight Charge is expressed in a foreign currency, the exchange rate of the National Bank of Poland (NBP) announced on the working day preceding the day of Confirmation of Accepting the Order shall be used to convert the amount.
- The Orderer is not entitled to deduct - from the remuneration for the performance of the Freight Forwarding Services or reimbursement of costs and expenses - any outstanding or unmatured receivables against the Freight Forwarder, including those arising from claims for remuneration, contractual penalties or damages. The Orderer is not entitled to assign the rights and obligations under the Freight Forwarding Agreement to a third party without the written consent of the Freight Forwarder.
- In case of non-payment of the costs, expenses, remuneration and other dues, the Freight Forwarder is entitled to exercise the right of lien on the Shipment and the documentation relating thereto. The Freight Forwarder shall immediately inform the Orderer of the exercise of the right of lien, who will be charged with all additional costs associated with the exercise of the right of lien (including, but not limited to, the costs of carriage and storage of the Shipment).
- The remuneration and the costs and expenses provided for in the Freight Forwarding Agreement and the Terms and Conditions of Assistance relate to the provision of the services provided for in the Freight Forwarding Agreement, the subject matter of which is the Shipment specified therein and are established assuming typical and undisturbed conditions of performance of the forwarding and carriage services. In case of changes by the Orderer in the scope or manner of the performance of the Freight Forwarding Service, change of the Shipment or occurrence, for reasons not attributable to the Freight Forwarder, of changes in the conditions of the provision of the Freight Forwarding Services or introduction of new costs and expenses, including public charges and duties - the remuneration of the Freight Forwarder and the costs and expenses reimbursable to the Freight Forwarder are subject to appropriate changes.
- The User shall be obliged to pay additional remuneration to the Freight Forwarder in the event that the Freight Forwarder or an entity engaged in the performance of the Freight Forwarding Service or the Freight Service performs additional freight forwarding services or activities, provided that the performance of such additional services or activities has been agreed with the User, and also when the performance of additional freight forwarding services or activities has not been agreed with the User but was necessary for the proper performance of the Freight Forwarding Service, the Freight Service, securing the Shipment or the rights and interests of the User or the Freight Forwarder.
- Irrespective of the remuneration, the User shall be obliged to reimburse the Freight Forwarder for all costs and expenses incurred for the performance of the Freight Forwarding Service by the Freight Forwarder and the entities involved in the performance of the Freight Forwarding Service (including, but not limited to, the charge for additional carriage, storage costs, parking fees, customs fees, sanitary or quality inspection fees, other administrative fees), even if such costs and expenses are not expressly provided for in the agreement or the Terms and Conditions of Assistance.
- The additional remuneration and the costs and expenses referred to in the Terms and Conditions of Assistance shall be paid by the User to the Freight Forwarder on the basis of evidence that such costs and expenses have been incurred by the Freight Forwarder, the Carrier or other parties involved.
- The Freight Forwarder may make the commencement of the Agreement contingent on the prior payment by the User of the remuneration due to the Freight Forwarder and of amounts corresponding to the planned expenses and costs associated with the performance of the Freight Service. In the case referred to in the preceding sentence, the payment period is 3 days from the issue of the relevant documentation.
- Indication by the User of a third party as payer of receivables due to the Freight Forwarder from the User in respect of the provision of the Freight Forwarding Service (including remuneration, reimbursement of expenses and costs) does not release the User from the obligation to pay these receivables to the Freight Forwarder in full together with any interest for late payment. The Orderer is jointly and severally liable with the payer for payment of the receivable.
[EXCLUSIONS AND INDIVIDUAL CONTRACTS]
- The Freight Forwarder does not accept Freight Forwarding Orders for the organisation of transport of Shipments as stipulated in Article 36 of the Act of 15 November 1984 - Transport Law. Only on the basis of a separate agreement, the Freight Forwarder shall perform the Freight Forwarding of Dangerous Goods within the meaning of the European Agreement concerning the International Carriage of Dangerous Goods by Road (ADR) concluded on 30 September 1957 in Geneva and requiring separate permits or concessions.
- The Orderer shall be liable for any damage resulting from the loading of the Shipment, which is the goods mentioned in clause 1 above, and the failure to inform the Freight Forwarder, its subcontractor or the Carrier of this fact.
- In a situation where the Shipment, from the time of its receipt until its delivery to a further freight forwarder or Carrier or to the Orderer, is completely or partially lost or damaged, compensation limited to actual damage may not exceed the ordinary value of the Shipment (its current market price), however, not exceeding 8.33 SDR per 1 kg of lost or damaged Shipment in the meaning of Article 23 of the Convention on the Contract for the International Carriage of Goods by Road (CMR) drawn up in Geneva on 19 May 1956, unless the damage resulted from the wilful misconduct or gross negligence of the Freight Forwarder.
- The condition for the Freight Forwarder's liability as indicated in clause 1 is that at the time of ascertaining the damage a damage report is drawn up in the presence of the Freight Forwarder, the further freight forwarder, the Carrier or the Orderer, specifying the original condition of the shipment, the type and extent of the damage, the presumed cause, the time and place of the damage to the shipment and other circumstances necessary to establish the Freight Forwarder's liability. A claim notification indicating the amount of the claim and the weight of the lost or damaged Shipment shall be sent to the Freight Forwarder within 3 calendar days from the date of drawing up the damage report. The claim shall be handled by the Freight Forwarder without undue delay.