• PURPOSE AND FIELD OF APPLICATION

The purpose of these conditions is to define the terms of performance by ITS FABRY, acting in the capacity as forwarding agent, logistics operator or approved customs agent, of activities and services relating to the physical movement of consignments, whether or not packaged, of any kind or source, to all destinations – both national and international, for a freely agreed price providing a fair remuneration of the services rendered.

Any commitment or operation together with ITS FABRY shall convey acceptance by the principal, without any reservation, of the conditions defined hereinafter.

Whatever the method of transportation used, these conditions shall govern the relations between the principal and ITS FABRY.

No conditions emanating from the principal, whether general or special conditions, may prevail over these conditions, unless formally agreed to by ITS FABRY.

• DEFINITIONS

 

In the meaning of these General Conditions, the terms below shall be defined as follows:

•  PRINCIPAL

 

Principal shall signify the party, who contracts the service with ITS FABRY.

•  FREIGHT FORWARDER

 

By « Freight forwarder », also having the name: Transport Operator, shall be understood any service provider, who organises and arranges the performance of the transportation of goods, under its responsibility and in its name, in accordance with the provisions of article L 132-1 of the Code of Commercial law, according to the method and means chosen by it on behalf of a principal.

•  LOGISTICS OPERATOR

 

By « Logistics operator », shall be understood any service provider, who organises, performs or arranges the performance of any operation, under its responsibility and in its name, in accordance with the provisions of article L 132-1 of the Code of Commercial law, which operation is destined for managing the physical movement of goods, as well as the flow of documents and/or information relating thereto.

•  MAIN CARRIER

 

By « Main carrier », shall be understood the carrier, who is contracted by the initial transportation contract placed with a principal or with a freight forwarder, who entrusts all or part of the performance thereof to another carrier, under its responsibility.

 

•  APPROVED CUSTOMS AGENT

 

By « Approved customs agent », shall be understood the approved service provider, who carries out customs formalities, directly for or on behalf of a principal (direct representation), and who acts, if need be, to settle any difficulties that might arise.

The direct representation shall meet the rules of the mandate according to article 26 of the decree dated 22/12/1998, relating to parties authorised to make detailed declarations of goods, and to exercise the profession of customs agent as shown in JORF (Journal Officiel de la République Française) [Official Gazette of the Republic of France] dated 27/12/1998.

• PARCELS

 

By parcels, shall be understood an object, or a material set consisting of several objects, of any weight, dimensions and volume, representing a unit load at the time of submission for transportation (a container, packing cage, case, box, other container, load, strapped or film-wrapped pallet, roll, etc…), packed by the shipper prior to acceptance for transportation, even if the contents are detailed in the waybill.

•  CONSIGNMENT

 

By consignment, shall be understood the quantity of goods, packing and loading items included, actually made available, at the same time, to the transport and/or logistics operator, and the carriage of which is requested by a single principal to a single consignee, for a sole loading location and a sole unloading location, and specified in a single transport document.

• PRICE

 

The prices are calculated on the basis of the information provided by the principal and/or the logistics operator, in particular taking into account the services to be performed, the nature, weight and volume of the goods to be carried and the routing. In accordance with the provisions of law n°2006-10 dated 5 January 2006, when the fuel costs are explicitly mentioned in the contract, ITS FABRY will, by right, be able to revise the price taking into account the variation in said costs associated with the variation in the fuel cost between the contract date and the date of actual carriage . In the absence of contractual stipulations relating to fuel costs, ITS FABRY will also, by right, be able to revise the price taking account, in the same way, of the variation in the fuel cost according to the conditions specified by law .
Furthermore, quotations are given according to the conditions and tariffs of substituted contractors, as also of the laws, regulations and international agreements in force. If one or more of these basic items is modified after the quotation is given, including by the substituted contractors of ITS FABRY, which modification is opposable to ITS FABRY, and on proof produced by ITS FABRY, the prices initially given will be modified according to the same conditions. The same shall apply in case of an unforeseen event, of any kind, bringing about a modification of any of the elements of the service.
The prices do not include the dues, taxes and fees payable in application of any tax or customs regulations (such as excise duty, import duties, customs duties, etc.).

• INsurance

 

No insurance is taken out by ITS FABRY, without the principal’s written and confirmed instruction for each consignment, specifying the risks to be covered and the cover amounts.

In case of such instruction, ITS FABRY, acting on the behalf of the principal, shall contract insurance with a reputed first-class insurance company. In the absence of specific mention, only ordinary risks (major risks of war and strikes) will be insured.

Acting as agent, in this specific case, ITS FABRY can in no case be considered as insurer. The conditions of the policy shall be deemed as known of and approved by the shippers and the consignees, who bear the cost thereof. If need be, an insurance certificate will be issued.

In any case, if no additional insurance is taken out by ITS FABRY on the principal’s request, the limits of liability shall, in case of loss or damage, be as follows:

• Bulk transport (national): 23 Euros (twenty-three euros) per Kg of gross weight of missing or damaged goods for each consignment item, with a maximum of €750 (seven hundred and fifty euros) per parcel lost or damaged.
• CARRIAGE OF  + 3T,000: €14 (fourteen euros) per Kg of gross weight of missing or damaged goods for each consignment item, not in excess of a sum, per lost,  incomplete or damaged consignment, greater than the gross consignment weight expressed in metric tons multiplied by €2,300 (two thousand three hundred euros).
• International transport: 8.33 DTS per kg (no applicable ceiling) per consignment or parcel. The exchange rate of the DTS applied will be the rate on the day of delivery. For information purposes, 1 DTS = approx. €1.32

 

• PERFORMANCE OF THE SERVICES

The dates of departure and arrival possibly communicated by ITS FABRY are given solely for indicative purposes. The principal shall be bound to give ITS FABRY, in good time, the instructions necessary for it to perform the transport and ancillary and/or the logistics services. ITS FABRY shall not have to verify the documents (commercial invoices, packing list, etc…) provided by the principal. All instructions specific to the delivery (COD, etc…) must be the subject of a written and confirmed instruction for each consignment, and subject to express acceptance by ITS FABRY. In any case, such mandate shall only represent a service ancillary to the main transportation and/or logistics service.

• OBLIGATIONS

 

•  TRANSPORT

Whatever the type of transportation contracted with ITS FABRY, ITS FABRY will provide or make available suitable equipment according to the conditions that will have been defined to it by the principal.

In case ITS FABRY also acts as logistics operator, it will be up to it to define the conditions.

•  PACKING

 

The goods must be packaged, packed, marked or counter-marked, so as to withstand transportation and/or a storage operation performed according to normal conditions, as well as in order to withstand successive handling that might be necessary during the course of these operations. The goods must not represent a cause of danger for the transportation or handling personnel, for the environment, for the safety of the transportation equipment, for other goods carried or stored, for vehicles or third parties.

Inasmuch as the principal entrusts ITS FABRY with goods contravening the aforementioned stipulations, they shall travel at the risk of the principal, where ITS FABRY will be discharged of all responsibility.

Inasmuch as ITS FABRY acts as both as logistics operator and freight forwarder, it shall be responsible for abiding by the aforementioned stipulations.

•  LABELLING

 

On each parcel, object or loading item, a clear label must be affixed so as to allow immediate and unequivocal identification of the shipper, consignee, place of delivery and the nature of the goods. The texts on the labels must correspond to those shown on the waybill.

•  OBLIGATIONS AS REGARDS DECLARATIONS

 

The principal shall answer for all consequences of lack of, insufficient or defective packaging, marking or labelling, as also for breach of its obligation as regards giving information and making declarations on the nature and particularities of the goods, e.g. as regards hazardous goods.

The principal alone shall bear the consequences, of any kind, ensuing from erroneous, incomplete, inapplicable or late-supplied declarations or documents.

These obligations fall on ITS FABRY if it acts as logistics operator as well.

•  RESERVES

 

In case of loss, any damage suffered by the goods, it is up to the consignee or the recipient to make the proper and adequate reports, to make valid reservations and, in general, to carry out all necessary deeds for protection of recourse, and to confirm the said reservations in legal form and according to the statutory deadlines (Registered Letter with Acknowledgement of Receipt within a deadline of 72 working hours as of the date of receipt of the goods). Should this not be done, no action to enforce a guarantee can be exercised against ITS FABRY or its substituted contractors.

•  REFUSAL OR DEFAULT BY THE CONSIGNEE

 

In case of refusal of the goods by the consignee, as in case of default by it, whatever the reason thereof, all initial and additional expenses, due and incurred for the goods, will remain payable by the principal.

•  CUSTOMS FORMALITIES

 

If customs operations have to be performed, the principal shall give the freight forwarder a guarantee with respect to all financial consequences arising therefrom, in particular, with respect to erroneous instructions, inapplicable documents, etc. especially leading to a liquidation of rights and/or additional taxes, fines etc. imposed by the Authority concerned.

• RESPONSIBILITES

 

•  RESPONSIBILITY DUE TO THE SUBSTITUTED CONTRACTORS

The responsibility of ITS FABRY shall be limited to the responsibility held by the substituted contractors within the scope of the operation entrusted to it. When the indemnification limits of the intermediaries or substituted contractors are unknown or do not ensue from essential or legal provisions, they shall be deemed as identical to those of ITS FABRY.

•  PERSONAL RESPONSIBILITY OF ITS FABRY

 

The indemnity limits stated below shall represent the responsibility assumed by ITS FABRY.

• LOSS AND DAMAGE

 

For any damage resulting from a transportation operation, if ITS FABRY is found personally responsible, and inasmuch as no additional insurance has been taken out, the limits of responsibility shall be those stated in article 4 of these general conditions of sale.

For any damage not caused by a transportation operation, the indemnification will be 14 Euros (fourteen euros) per kilogram of gross weight of missing or damaged goods not in excess of the gross weight of the goods expressed in metric tons multiplied by 2,300 Euros (two thousand three hundred euros), with a ceiling of 50,000 Euros (fifty thousand euros) per event.

• OTHER DAMAGE/LOSS

 

For any damage/loss and, in particular, duly recorded damage/loss brought about by late delivery, the compensation payable by ITS FABRY within the scope of its personal responsibility cannot exceed the price of transportation of the goods (excluding dues, taxes and sundry expenses).

For any damage/loss resulting from an error by ITS FABRY, its responsibility shall be strictly limited to the price paid by the principal for the service concerned, with a ceiling of 50,000 Euros (fifty thousand euros) per event.

•  QUOTATIONS

 

All the quotations given, all occasional price offers provided, as well as the general tariffs, are drawn up and/or published taking account of the limits of responsibility set forth above) (7.1 and 7.2).

•  DECLARATION OF VALUE OR INSURANCE

 

The principal is always entitled to make a declaration of value, which, fixed by it and accepted by ITS FABRY, shall have the effect of substituting the amount of this declaration for the indemnity ceilings indicated in article 4. This declaration of value will involve an addition of price.

The principal may also give instructions to ITS FABRY, in accordance with article 4, to take out an insurance policy on its behalf, for payment of the corresponding premium, specifying to it the risks and amounts to be covered.

The instructions (declaration of value or insurance declaration) must be renewed for each operation.

• PAYMENT TERMS

 

The payment terms are thirty days from date of issue of invoice.

 

Penalty in case of late payment

Any sum due to ITS FABRY, and unpaid by the agreed due date shown on the invoice, will, by right, bear default interest as of the day following the payment date shown on the invoice, payable until full settlement of the invoice, where no letter of prior formal notice will be necessary. The rate of this interest will be equal to 1½ times the statutory interest rate.

• CONTRACTUAL LIEN

 

Whatever the capacity of acting by ITS FABRY, the principal expressly recognises that the latter shall have a contractual lien representing a preferential and permanent floating lien over all of the goods, securities and documents in the possession of ITS FABRY, and the aforesaid to cover all debts (invoices, interest charges, expenses incurred, etc…).

The customs agent shall have the benefit of the same contractual right.

• PRESCRIPTION

 

All actions, to which the contract entered into by the parties may give rise, shall be subject to prescription of one year as of performance of the said contract.

• CANCELLATION – INVALIDITY

 

In case any one of the provisions of these General Conditions of Sale is declared invalid and deemed as unwritten, all the other provisions shall continue to apply.

• COMPETENT JURISDICTION

 

Any dispute, in particular concerning the validity, interpretation, performance and/or termination of the contract, must be settled amicably where possible.

In case of failure of this solution, the dispute will fall under the exclusive competence of the Court of Avesnes-sur-Helpe, including cases of special urgency, petition, third-party notice or case with more than one defendant, and the aforesaid irrespective of the location of your registered office, which Court is in the district of the registered office of ITS FABRY, place of compilation of the contract.