• ARTICLE 1 – PURPOSE AND SCOPE
The purpose of these general terms is to govern contractual relations between a client and the branches and subsidiaries of the DIMOTRANS group, hereinafter referred to as the “Transport and/or Logistics Operator”, “TLO” or “DIMOTRANS”, for all commitments and transactions linked to the physical movement, by any method of transport, and/or the physical or legal management of stocks and flows of any goods, whether packaged or unpackaged, from all origins and to all destinations, and/or linked to the management of any information flows in paper or computerised format.
The terms and notions used in these general terms have the definitions applicable in the standard contracts in force.
These general terms take precedence over all other general or special terms of the client.
If special terms are agreed with the client but do not specify otherwise, the general terms continue to apply.
Transport operations by sea are governed, in the absence of special conditions issued by the client and accepted by the TLO, by the special conditions appearing on the back of the Bills of Lading issued by any agency or subsidiary of the DIMOTRANS group, and by the present terms and conditions in the silence of the special conditions.
• ARTICLE 2 – PRICE OF THE SERVICES
2.1. Prices are calculated based on the information provided by the client, taking into account in particular the services to be carried out, the nature, weight and volume of goods to be transported and the route to be used. Quotations are drawn up based on the foreign exchange rates at the time the quotation is made.
They also depend on the conditions and prices of substitute carriers, as well as on the laws, regulations and international conventions in force. If one or more of these basic elements is changed after the quotation is issued, including by the substitutes of the TLO, in a way that is enforceable against it, and if the TLO can provide proof of this, the prices originally indicated will be modified under the same conditions. The same applies if there is an unforeseen event of any kind, resulting in particular in a change in one of the elements of the service or in the conditions for its performance.
2.2. Prices do not include the taxes, duties or fees due in accordance with any regulations, in particular tax or customs regulations.
2.3. The prices initially agreed are renegotiated at least once a year.
• ARTICLE 3 – INSURANCE FOR GOODS
No insurance is taken out by the TLO without the written order repeated by the client for each shipment, indicating the risks and values to be covered. If the order is given, the TLO, acting on behalf of the client, will take out an insurance policy with an insurance company that is manifestly solvent at the time cover is taken out.
Unless otherwise specified, only ordinary risks (excluding the risk of war and strikes) will be insured.
In this specific case the TLO acts as an authorised agent and cannot on any account be deemed to be the insurer.
The policy conditions are deemed to be known and approved by the shippers and consignees, who cover the cost of it.
An insurance certificate will be issued on request.
• ARTICLE 4 – PERFORMANCE OF THE SERVICES
Any departure and arrival dates indicated by the TLO are provided for information only. The client must give the TLO, in time, the precise instructions needed to provide the transport services, ancillary services and/or logistics services.
The TLO does not need to check the documents (commercial invoice, packing list etc.) supplied by the client. All instructions specific to the delivery (cash on delivery, declaration of value or insurance, special interest in the delivery etc.) must be stated in a written order repeated for each consignment, and expressly accepted by the TLO.
• ARTICLE 5 – OBLIGATIONS OF THE CLIENT
5.1. Packaging and labelling:
The goods must be packaged, packed, marked or countermarked in a way that will withstand transport and/or storage under normal conditions, as well as the successive handling required during performance of the operations. They must not represent a hazard for the drivers or handling staff, the environment, the safety of the means of transport, the other goods transported or stored, the vehicles or third parties.
The client alone is responsible for the choice of packaging and whether it is able to withstand transport and handling.
A clear label must be affixed to each parcel, object or load support to enable the shipper, consignee, place of delivery and nature of the goods to be immediately and unambiguously identified. The information on the labels must match that of the shipping document.
Furthermore, the labels must comply with all applicable regulations, in particular those regarding hazardous products.
The client is liable for all of the consequences of any lack, insufficiency or defectiveness in the packaging, packing, marking or labelling.
5.2. Lead sealing:
Once the loading operations have been completed, the trucks, semi-trailers, swap bodies and containers are sealed with lead by the shipper itself or its representative.
5.3. Declaration obligations:
The client is liable for all of the consequences of any breach of its obligation to inform and declare the exact nature and characteristics of the goods if they require special provisions, in particular in view of their value and/or temptation of theft they may represent, their hazardousness or fragility.
This obligation to provide information also applies to the declaration of the verified gross mass of a container in accordance with the SOLAS Convention.
Furthermore, the client expressly undertakes not to give the TLO goods that are illicit or prohibited (e.g. counterfeit products, drugs etc.). The client alone will be liable, without recourse against the TLO, for any consequences of declarations or documents that are incorrect, incomplete, not applicable or supplied late, including the information required to transmit any declarations required by the customs regulations, in particular in order to transport goods from third countries.
In the event of loss, damage or any other harm suffered by the goods or in the event of a delay, it is up to the consignee or the receiving agent to draw up a regular and sufficient report, express precise and justified reservations and in general do everything required to maintain the right of recourse, and confirm the aforesaid reservations in the legal forms and within the legal time limits, failing which no warranty claim can be made against the TLO or its substitute carriers.
5.5. Rejection or default by the consignee:
In the event of rejection of the goods by the consignee or default by the consignee on any grounds whatsoever, all initial and additional costs due and incurred on account of the goods will remain payable by the client.
5.6. Customs formalities
If customs formalities must be carried out, the client shall indemnify and hold harmless the customs broker against all of the financial consequences of incorrect instructions, inapplicable documents etc. leading in general to the payment of additional taxes and/or duties, blocking or seizure of goods or fines etc. by the authorities concerned.
In the event of customs clearance of goods under a preferential regime concluded or granted by the European Union, the client guarantees that it has taken all necessary steps as defined in the customs regulations to ensure that all of the conditions for treatment under the preferential regime have been met.
On request by the TLO, the client must give it, within the required deadline, any information it is asked to provide due to the requirements of the customs regulations. If the client fails to provide this information before the deadline, it will be liable for any harmful consequences of this breach such as delays, additional costs, damage etc.
However, since the client alone is liable for compliance with the rules regarding the quality and/or technical standardisation of the goods, it is up to it to give the TLO all of the documents (tests, certificates etc.) required by the regulations for movement of the goods. The TLO cannot incur any liability due to non-compliance of the goods with the aforementioned rules regarding quality or technical standardisation.
The customs representative clears the goods through customs by direct representation pursuant to Article 18 of the Union Customs Code.
5.7. Cash on delivery:
The stipulation of cash on delivery does not constitute a declaration of value or change the rules regarding compensation of losses and damage as defined in Article 6 below.
• ARTICLE 6 – LIABILITY
In the event of a loss that is proved to be attributable to the TLO, the TLO is only liable for damages that could be anticipated when the contract was concluded, and only include the immediate and direct result of non performance as defined in Articles 1231-3 and 1231-4 of the French Civil Code.
Those damages are strictly limited to the amounts agreed below. The compensation limits specified below represent the compensation for the TLO’s liability.
6.1. Liability due to substitute carriers:
The TLO’s liability is limited to that incurred by the substitute carrier for the operation entrusted to it.
If the compensation limits for substitute carriers are not known or do not result from mandatory or legal provisions, they are deemed to be the same as those set in Article 6.2 below.
When loss or damage has occurred between the time of loading of the Goods by the TLO’s subcontractor, at the Port of Loading, and the time of discharge by the TLO’s subcontractor, at the Port of Discharge, the responsibility of the TLO’s subcontractor shall be determined in accordance with the Hague Rules or any national law incorporating or making the Hague Rules, or any amendments thereto, compulsorily applicable to the Bill of Lading.
“Hague Rules” means the provisions of the International Convention for Unification of Certain Rules relating to Bills of Lading signed at Brussels on 25th August 1924 and includes the amendments by the Protocol signed at Brussels on 23rd February 1968 and 21st December 1979, but only if such amendments are compulsorily applicable to this Bill of Lading.
The TLO’s subcontractor shall be under no liability whatsoever for loss or damage to the Goods, howsoever occurring, if such loss or damage arises prior to loading on to or subsequent to the discharge from the Vessel carrying the Goods. Notwithstanding the foregoing, where any applicable compulsory law provides to the contrary, the TLO’s subcontractor shall have the benefit of every right, defence, limitation and liberty in the Hague Rules as applied by this Clause during such additional compulsory period of responsibility, notwithstanding that the loss or damage did not occur at sea.
Notwithstanding anything else in the Bill of Lading to the contrary, on shipments to or from the United States, the rights and liabilities of the parties shall be subject exclusively to COGSA which shall also govern before the Goods are loaded on and after they are discharged from the vessel provided, however, that the Goods at said times are in the custody of the TLO’s subcontractor.
“COGSA” means the United States Carriage of Goods by the Sea Act, 46 U.S.C. App. § 1300 et. Seq. as enacted 1936 and any subsequent re codification thereto.
6.2. Personal liability of the Transport and/or Logistics Operator (TLO)
6.2.1. Losses and damage:
In all cases where the TLO incurs personal liability for losses and/or damage caused to the goods and for any resulting consequences, this will be strictly limited:
a) for events that occur during transport, to €20 per kilogram of gross weight of missing or damaged goods, without being able to exceed, whatever the weight, volume, dimensions, nature or value of the goods concerned, a sum higher than the product of the gross weight of the consignment expressed in tonnes multiplied by €3,000 with a maximum of €50,000 per event.
b) for events that occur during a logistic operation, to €20 per kilogram of gross weight of missing or damaged goods, without being able to exceed, whatever the weight, volume, dimensions, nature or value of the goods concerned, a sum higher than €50,000 per event, subject to any provisions to the contrary agreed between the parties.
6.2.2. Other damage:
For all other damage, including in the event of late delivery causing damage that is duly justified, and if the TLO is held personally liable, the compensation due will be strictly limited to the cost of transport of the goods (excluding taxes, duties and miscellaneous costs) or the cost of the service that caused the damage, and is the purpose of the contract.
The compensation cannot exceed the amount that would be due in the event of loss or damage to the goods as defined in Article 6.2.1 above.
6.2.3. Customs liability:
The TLO’s liability for any customs or indirect tax operations, whether performed by itself or by its subcontractors, cannot exceed €5,000 per customs declaration, limited to €50,000 per year of adjustment, and in any event to €100,000 per notification of adjustment.
All quotations provided, all one-off price offers made, and the general price lists are drawn up and/or published taking into account the limitations of liability specified above (6.1 and 6.2).
6.4. Declaration of value or insurance:
The client is always entitled to make a declaration of value, determined by the client and accepted by the TLO, which replaces the compensation ceilings specified above (Articles 6.1. and 6.2.1.). The declaration of value will result in an additional charge.
Pursuant to Article 3 (Insurance of goods) the client can also ask the TLO to take out an insurance policy on its behalf in return for payment of the corresponding premium, indicating the risks and values to be covered. The instructions (declaration of value or insurance) must be repeated for each transaction.
6.5. Special interest in the delivery:
The client is always entitled to make a declaration of special interest in the delivery, determined by the client and accepted by the TLO, which, in the event of a delay, replaces the compensation ceilings specified above (Articles 6.1. and 6.2.2.) by the amount declared.
The declaration will result in an additional charge. The instructions must be repeated for each operation.
• ARTICLE 7 – TERMS OF PAYMENT
7.1. The services are payable in cash on receipt of the invoice, without discount, at the place where the invoice is issued, unless time limits for payment are specifically granted to the client by the TLO, which cannot exceed in any case the time limits for payment stipulated by Articles L 441-10 et seq. of the French Commercial Code. The client is always responsible for payment. Pursuant to Article 1344 of the French Civil Code, the debtor is deemed to have been given formal notice to pay by the sole effect of the debt becoming due and payable.
7.2. It is forbidden to unilaterally offset the cost of alleged damage against the price due for the services.
7.3. Any late payment will automatically result in interest on arrears due from the day following the payment date indicated on the invoice, for an amount equivalent to the interest rate applied by the European Central Bank (ECB) to its most recent refinancing operation increased by 10 percentage points as defined in Article L 441-10 II of the French Commercial Code, as well as lump-sum compensation of €40 for recovery costs in accordance with Article D.441-5 of the French Commercial Code for each unpaid service, without prejudice to any compensation due under ordinary law, for any other damage resulting directly from the delay.
Any late payment will result, without formalities, in the acceleration of payment of all other receivables held by the TLO which will become immediately payable even in the event of acceptance of bills. Any late payment will entitle the TLO, if it sees fit, to modify the time limits for payment specifically granted to the client.
7.4. Any partial payments will first be deducted from the subordinated part of the debt.
• ARTICLE 8 – CONTRACTUAL RIGHT OF LIEN
Regardless of the capacity in which the TLO intervenes, the client expressly acknowledges that the TLO has a contractual right of lien that constitutes a general and permanent lien and priority right for all of the goods, assets and documents in the possession of the transport operator, as a guarantee for all of the receivables (invoices, interest, expenses incurred etc.) held against it by the TLO, even those that are prior to or separate from the operations carried out in connection with the goods, assets and documents actually in its possession.
• ARTICLE 9 – STATUTE OF LIMITATIONS
Any legal proceedings that may result from the contract concluded between the parties, whether for primary or ancillary services, must be instituted within one year of performance of the disputed service under the aforesaid contract, and for taxes and duties collected afterwards, within one year of notice of the adjustment.
• ARTICLE 10 – DURATION OF THE CONTRACT AND TERMINATION
10.1 In the event of an established commercial relationship, each party can terminate the relationship at any time by sending a registered letter with acknowledgement of receipt provided that the following notice periods are respected:
– One (1) month if the relationship has lasted for less than or equal to six (6) months;
– Two (2) months if the relationship has lasted for more than six (6) months and less than one (1) year;
– Three (3) months if the relationship has lasted for more than one (1) year, with a further one (1) month for each year of the relationship above two (2) years, without being able to exceed a period of six (6) months.
10.2 The parties undertake to maintain the economics of the contract during the period of notice.
10.3 In the event of proven serious or repeated breaches, by one of the parties, of its commitments and obligations, the other party must send it formal notice to comply by registered letter with acknowledgement of receipt. If this remains ineffective for a period of one month, during which the parties can attempt to find a solution, the contract can be permanently terminated without notice or compensation, by registered letter with acknowledgement of receipt noting the failure of the attempted negotiations.
10.4 All of the invoices issued by the TLO and the removal costs agreed by the Parties will be due at the latest on the last day of the contract, and in any case before any return of the goods if the moving of the stock is organised before that date. Return of the goods depends on actual payment of all of the aforementioned invoices and costs.
• ARTICLE 11 – CONFIDENTIALITY AND PROTECTION OF PERSONAL DATA
The client and the TLO undertake to treat as confidential all of the information that they give each other in any form whatsoever.
This confidentiality obligation remains in force for two (2) years after the end of the commercial relationship between the client and the TLO.
11.2 Protection of Personal Data
As defined in Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, hereinafter referred to as the “GDPR”, the TLO acts in the capacity of Processor on the documented instructions of the client, which acts in the capacity of Data Controller.
The client and the TLO undertake to (i) implement reasonable and appropriate technical and organisational means to protect the security of the personal data likely to be exchanged in connection with their commercial relationship, and (ii) enable the Data Subjects to exercise their rights, in particular their rights of access, rectification and erasure. These rights can be exercised by making a written request to the TLO, indicating the data and/or processing concerned by the request, at the following email address: email@example.com
It is specified that the TLO may be required to subcontract all or part of the security of the personal data, which the client authorises.
The TLO is likely to transfer the personal data to its subsidiaries located within and/or outside the European Union. By transmitting any personal data to the TLO, the client is informed that the TLO is authorised to use these data to enable it to carry out the services, in particular for customs clearance in the event of international transport.
• ARTICLE 12 – COMPLIANCE
The client and the TLO declare and guarantee that they will carry out all their activities in connection herewith in accordance with all of the applicable Laws.
The term “Laws” means, but is not limited to, the local and national laws, the rules and regulations, and the treaties applicable, and in particular, where appropriate, the Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2010, the SAPIN II law, and any amendments of these provisions, the commercial restrictions (as regards customs, export and import controls, sanctions and embargoes) including in particular those decreed by France, the European Union and the United States, and all other legal obligations relating to any of the activities of the client and the TLO, including, but not limited to, the legal obligations applicable as regards tax, safety of products and/or consumers, protection of human rights, employees and the environment.
• ARTICLE 13 – CANCELLATION – INVALIDITY
If any of the provisions of the General Terms of Sale is declared invalid or deemed unwritten, all of the other provisions will remain in force.
• ARTICLE 14 – ALLOCATION OF JURISDICTION
In the event of a dispute, French law will apply and only the Courts of LYON will have jurisdiction, even in the event of multiple defendants or third party proceedings.
These General Terms of Sale replace those published on 1 March 2021 and enter into force on 1 May 2022 (the first of May two thousand and twenty-two).