§ 1 Commitment under these Conditions
1. The INTERLINE Switzerland, HG Swiss Transportation AG (hereinafter referred to as “INTERLINE”) furnishes all services (hereinafter collectively referred to as "SERVICE(S)") exclusively on the basis of these General Terms and Conditions (“GTC”). These GTC apply to all offers and agreements in the context of current and future business relations, even if they should be not be expressly agreed upon again. At the latest, these GTC shall be deemed to be accepted and binding at the time such SERVICE is utilized.
2. Any existing, deviating, conflicting or additional terms and conditions of the CUSTOMER are hereby expressly inapplicable, unless otherwise specified in written form (text, by e-mail or by fax) between the Contracting Parties regarding the modification concerned.
3. Any individually made agreement with the CUSTOMER has precedence over these GTC, since this corresponds then to the desire of the Contracting Parties. The conflicting GTC is to that extent irrelevant. Any corresponding contract overriding the validity of the conflicting GTC must be made in writing. Declarations which the CUSTOMER makes after the time of the conclusion of the contract with INTERLINE must also be made in writing to be valid, as otherwise the made declarations shall have no legal validity.
4. Insofar as there is nothing adversely agreed upon between INTERLINE and the CUSTOMER, the statutory provisions are valid. Any references to legislation are for declaratory purposes only.
§ 2 Offer and Conclusion of Contract
1. The business purpose of INTERLINE is the provision of services, in particular of driver services as well as the provision of high-end transportation vehicles.
2. The ordering of the SERVICES by the CUSTOMER shall be considered a binding contract offer. Unless the order of the CUSTOMER states otherwise, INTERLINE is entitled to accept this offer within 30 days after the receipt of the order with INTERLINE.
3. The acceptance can be expressed either in writing or by the provision of the SERVICE to the CUSTOMER.
4. The offers of INTERLINE are not binding, if INTERLINE does not expressly state them as binding.
§ 3 Services
1. INTERLINE is not liable for the non-performance of the SERVICE, if caused due to force majeure or other events not foreseen at the time of the conclusion of the contract (i.e. operational disruptions of all kinds, difficulties in material or energy procurement, transportation delays, strike, legal lockouts, lack of workers, energy or raw materials, difficulties in obtaining regulatory approvals, government actions or the lack thereof, incorrect or untimely delivery by suppliers), for which INTERLINE has no responsibility. INTERLINE will immediately inform the CUSTOMER about such circumstances after obtaining knowledge of such.
2. The occurrence of a delay in performance shall be determined in accordance with legal provisions. However, in each case the CUSTOMER is required to give notice.
§ 4 Prices and Terms of Payment
1. Unless the Contracting Parties have agreed otherwise in writing, the INTERLINE prices on the price list shall apply, which can be requested from INTERLINE.
2. The CUSTOMER is liable for payment of the remuneration stated in the offer, in the order confirmation and/or in the contract for the SERVICE plus the respective statutory value-added-tax. The terms of payment specified on the invoice apply.
3. The payments for the utilized SERVICE shall be made exclusively to the account of INTERLINE. The deduction of a discount is permissible only by express agreement between INTERLINE and the CUSTOMER in writing. The furnished SERVICE can be reliably calculated using the tracking data. The CUSTOMER may view the data for 30 days, after which they will be permanently deleted. Complaints regarding the SERVICE furnished by INTERLINE must be reported within 14 days to INTERLINE in writing.
4. INTERLINE is entitled to require cost and delivery advances from the CUSTOMER. For order values of over EUR 8,000.00 net, INTERLINE is entitled to require a prepayment of up to 2/3 of the invoice total from the CUSTOMER one (1) week prior to the provision of services. Furthermore, INTERLINE is entitled to submit a partial bill for services already furnished.
5. If no specific date of payment is indicated in the invoice, all payment amounts shall be due upon the complete furnishing of the SERVICE. Interest shall be assessed for corporate CUSTOMERS at a rate of 8% per annum over the respective base interest rate and for individual CUSTOMERS at a rate of 5% per annum over the respective base interest rate. Claims for higher amounts of default damages remain expressly reserved by INTERLINE. The claim of INTERLINE on commercial interest on maturities German remains unaffected.
6. Provided that the Contracting Parties have made no fixed price agreement, reasonable price adjustments due to changes in costs of labour, materials and distribution of SERVICES, which take place three (3) months or later after the conclusion of the contract, remain reserved. The agreed upon prices are based on the raw material costs for gasoline valid at the time of the conclusion of the contract.
7. Upon a price increase of the raw material costs of more than 10%, the Contracting Parties will enter into negotiations in order to determine a new price for the SERVICES. If the Contracting Parties cannot come to agreement within a period of 14 days on a price adjustment, each Contracting Party may withdraw from the contract.
8. For payments by credit card, the resulting fee (5%) will be added to the invoice amount.
§ 5 Termination and Cancellation Fees
1. Upon termination by the CUSTOMER any costs already incurred shall be billed to the CUSTOMER. The CUSTOMER is entitled to furnish proof that the costs are lower than those indicated and/or that they were not incurred. Upon the termination of an order prior to 18:00 clock of the previous day, any costs after that are not incurred. If the driver is en route to the CUSTOMER, or is at the requested location, and the CUSTOMER has not yet started the journey, or cancels the Service after 18:00 of the previous day, then the full price of that order shall be incurred. The CUSTOMER is entitled to prove that INTERLINE has incurred lesser damages.
2. As to large events, INTERLINE reserves the right to modify the cancellation conditions as well as the prices. Large events are defined as organized gatherings of people over a period of time at a specific location or multiple locations at the same time for a specific purpose. Events shall be scheduled in advance. Large events are those meetings with a very large number of expected participants, whereas
a) they may be of different nationalities, languages, social classes, political views and religious beliefs and may have different cultural backgrounds,
b) the local residents are likewise particularly involved,
c) the event of special importance for the region, nationally or even internationally, and the event is usually located in the heart of the city or in special areas.
Spontaneous or regular gatherings of people without fixed organization, such as undeclared demonstrations, New Year's Eve or Carnival celebrations do not meet these requirements.
3. This does not affect the mutual right to termination without notice for good cause. Upon the closure or liquidation of the CUSTOMER’S companies and/or in case of judicial or out-of-court insolvency proceedings against the assets of INTERLINE and/or against the assets of its shareholders, INTERLINE reserves the right to termination without notice for good cause.
4. The termination must be made in writing, whereby the transmission of the document should be sufficiently in advance via fax and subsequently by afterwards mailing of the original for observance of the deadline and the form requirement.
5. INTERLINE may terminate the agreement prior to the start of the SERVICE, if INTERLINE cannot provide the SERVICE due to good cause, such as, for example, force majeure within the meaning of § 3, para. 1, above. In this case the CUSTOMER shall immediately receive notice.
6. For impediments of temporary duration, the performance of the service may be adjusted for the period of the interruption, if no fixed time or date is required.
§ 6 Obligation of the CUSTOMER to cooperate and prohibited use
1. Where it is necessary for the performance of the SERVICE(S), the CUSTOMER and/or the beneficiary/third-party must make use on a timely basis the particular concrete service at the agreed upon location and at the agreed upon time. In the event that it does not take place and/or not on a timely basis, based on agreements, and/or requirements, then INTERLINE is entitled to additional charges for time and/or expenses. INTERLINE is entitled to provide the SERVICE(S) at a later time or charge additional costs for time and/or expenses due to the delay of the CUSTOMER in regards to the aforementioned obligation.
2. The means of transport of INTERLINE may not be used for the following:
a) for the transport of dangerous materials of any kind
b) for the committing of criminal offences within the meaning of the German Penal Code even if these are only punishable under the law of the place of commission
c) for travels which go beyond the agreed upon use
3. It is further not allowed for the CUSTOMER to request and/or persuade the driver to carry out the activities specified under § 6 points a) to c).
§ 7 Off-set and Right of Retention
1. The CUSTOMER is entitled to the Right for an Off-Set only if its counterclaims are legally established or undisputed.
2. In the exercise of a Right of Retention, the CUSTOMER may only do this to the extent that its counterclaim is based on the same contractual relationship.
§ 8 Right to Modify
In essence, the ordered vehicle is provided per availability. In the event that due to internal or objective reasons it is not possible to comply with the order, INTERLINE reserves the right to provide a different vehicle. INTERLINE shall use its best efforts to minimize any modifications to the contractual use of the requested vehicle. If the vehicle is in a lower price category, the CUSTOMER is entitled to reduction in the amount of the price discrepancy. A right for termination of contract is not applicable to this issue.
§ 9 Liability
1. Claims for damage of any kind, irrespective of the cause in law, are hereby excluded, unless INTERLINE and/or its legal representatives or agents have acted intentionally or with gross negligence, or the claims result from the lack of an assumed warranty. In the latter case, the liability is limited to such damages that are covered by the warranty. Further, liability is not precluded for any injury to lives, bodies or health which is attributable to INTERLINE.
2. For damages due to simple negligence, the liability of INTERLINE only exists when injury of substantial obligations (the so-called cardinal duties) occurs during contract performance. This case liability is limited to the typical and foreseeable damage; compensation for consequential damages such as loss of profit and loss of use is hereby excluded.
3. For damages arising from the activities banned under § 6, para. 2, the CUSTOMER as well as any possible beneficiary/third party are without limit, personally, and jointly and severally liable.
§ 10 Creditworthiness and Insolvency
1. INTERLINE is entitled to provide or furnish any still pending SERVICES only against prepayment or deposit, if after conclusion of the contract circumstances become known which are likely to substantially reduce the creditworthiness of the CUSTOMER and which appear to create a risk of payment of open receivables by the CUSTOMER to INTERLINE under the agreement. This applies in particular if the CUSTOMER is already in arrears of payments to INTERLINE.
2. In case of the insolvency of the CUSTOMER, INTERLINE is entitled to withdraw from the contract.
§ 11 Written form requirement
All additions, changes and side agreements must be in writing to be valid, i.e. in text form, by e-mail or by fax. Verbal special agreements become effective only if the clause on the written form requirement was previously waived in accordance with the clause.
§ 12 Jurisdiction
The area of jurisdiction is Zurich, insofar as the CUSTOMER is a business, legal entity under public law or special fund under public law. INTERLINE is entitled to file a claim before a court that is competent for any location at which the CUSTOMER has its headquarters or branches.
§ 13 Applicable Law
The contractual relations between the Contracting Parties are subject to Suiss law with the exclusion of the UN Sales Convention, even if the CUSTOMER is domiciled or headquartered abroad.
§ 14 Severability Clause
In the event that one or more provisions of the contract or these GTC are ineffective and/or impracticable, then the effectiveness of the remaining regulations shall not be affected thereby. In the place of the ineffective and/or unenforceable provision, a suitable provision with the same intended legal and economic purpose shall come into place, as long as it does not cause any substantial change of the content of the agreement; the same shall apply, in the event that a particular legally required provision is not expressly contained.