§ 1 Constituent elements of the contract, background rules, governing law
(1) Insofar as the following provisions do not contain different rules or mandatory legal requirements as regards freight forwarding contracts concluded with I.C.E. for international cross-border rail freight, the "Uniform Rules concerning the Contract for the International Carriage of Goods by Rail (CIM-COTIF), the "General Conditions of Carriage for International Carriage of Goods by Rail (ABB-CIM)", the "Allgemeine Deutsche Spediteurbedingungen 2017 (ADSp 2017)" and the conditions of carriage of the carrier contracted to execute the freight order shall apply (as in force from time to time) (e.g. in the case of EUROGATE Intermodal GmbH, the latter can be found at this link: www.egim.hu).
(2) With regard to international carriage of goods by sea, freight forwarding contracts concluded with I.C.E. shall be governed by the Bill of Lading and the general conditions of carriage of the carrier used to execute the freight order, unless otherwise specified in the following provisions or mandatory legal provisions (e.g. Hague-Visby Rules, Montreal Convention, Warsaw Convention, CMR).
(3) With regard to domestic road freight transport by truck, the Hungarian Government Decree No 120/2016 (VI.7.) on road transportation contracts, the Hungarian Civil Code and the general conditions of carriage of the carrier contracted to execute the freight order shall apply, unless the following provisions contain different rules or mandatory legal requirements.
(4) If the Civil Code is applied, the rules of the contract of carriage shall apply mutatis mutandis to the legal relationship of the parties, the obligation to provide information about the consignment, the handling, protection and forwarding of the consignment, the lien of the forwarder and the limitation of claims arising from the contract of carriage.
(5) The constituting elements of the contractual relationship between the client and the I.C.E. (hereinafter collectively referred to as the Freight Forwarding Agreement) are:
- the respective individual freight forwarding order, and
- the present "General Freight Forwarding Conditions" (hereinafter: GFFC) as a binding component of the Freight Forwarding Agreement.
(6) The client's general terms and conditions or similar documents are not part of the contractual relationship and are expressly excluded.
(7) The text version of these GFFC as in force from time to time can be downloaded from the website www.icetransport.hu.
(8) These GFFC and the respective individual freight forwarding order constitute together the entire agreement concluded between the parties regarding the contractual relationship, i.e. the Freight Forwarding Agreement. If there is a content conflict between the individual freight forwarding order and the GFFC, the provisions of the individual freight forwarding order shall take precedence. With regard to issues not regulated in the individual freight forwarding order, the provisions set out in these GFFC shall apply. If the legislation in force in Hungary contains rules more favourable to the agent in a given matter than those referred to in Section 1 (1), the legislation in force in Hungary shall in any case precede the rules referred to in Section 1 (1) in the given matter.
(9) The client declares that the I.C.E. has made it possible for him to familiarize himself with the content of these GFFC prior to the conclusion of the Freight Forwarding Agreement and expressly accepts the GFFC. At the same time, the client submits that he does not consider the GFFC to be unfair because it sets out the rights and obligations of the client arising from the contract without violating the requirements of good faith and fairness, and does not unilaterally or unjustifiably disadvantage the client.
(10) The client declares that, in its opinion, these GFFC do not contain any provisions that materially deviate from the law or standard contractual practice. At the same time, the client declares that if the GFFC deviates from any of the terms of the contract(s) previously applied between the parties, it has been informed separately and expressly accepts such clause.
(11) In the event of a permanent business relationship, these GFFC shall also apply to future Freight Forwarding Agreements concluded with the client until other terms and conditions are expressly agreed in writing between the parties.
(12) Regulation (EC) No 593/2008 of the European Parliament and of the Council on the law applicable to contractual obligations (Rome I) does not apply.
(13) If it can validly be excluded, claims against the I.C.E. by means of a European order for payment are excluded.
§ 2 Subject matter and scope of the contractual relationship
(1) Based on the Freight Forwarding Agreement, I.C.E., as a freight forwarding agent, is obliged to conclude contracts and make legal declarations in its own name for the benefit of the client, and client is obliged to pay a fee.
(2) I.C.E. performs the freight forwarding tasks assigned to it on the basis of the Freight Forwarding Agreement to be concluded with the client. The individual tasks to be performed by the I.C.E. are specified in the respective individual freight forwarding order. In addition, the I.C.E. provides only those ancillary services that are directly necessary for the performance of its tasks by law. Additional services are provided upon agreement between the parties, including remuneration.
(3) Price quotes sent by I.C.E. to the client are considered non-binding. If the client accepts the non-binding quote and confirms this fact in writing to I.C.E., I.C.E. is entitled to decide whether to conclude the Freight Forwarding Agreement under the conditions confirmed by the client. If I.C.E. decides to conclude the Freight Forwarding Agreement, it signs the Freight Forwarding Agreement and thereby the contract is deemed to be concluded.
(4) The parties are obliged to name a new contact person by written notice to the other party within a short period of time if the contact person specified in the Freight Forwarding Agreement moves to another job or leaves the company during the contractual relationship.
§ 3 Compliance with legal requirements
(1) The parties and the agents used by them undertake to comply with the legislation in force at any time related to the freight forwarding task specified in the Freight Forwarding Agreement.
(2) For its part, the client guarantees that the goods handed over by him comply with the legal provisions in force at any time.
§ 4 Term and termination
(1) The term of the contract is agreed in the Freight Forwarding Agreement.
(2) In particular, I.C.E. is entitled to terminate the contract with immediate effect if the client fails to fulfil its payment obligations in accordance with the contract, i.e. fails to meet the payment deadline despite written notice and the setting of a reasonable additional period.
(3) In particular, the client shall be entitled to terminate the contract with immediate effect if I.C.E. fails to comply with its contractual obligations despite written notice and the setting of a reasonable additional period.
(4) The termination shall take effect on the certified date of communication.
§ 5 Fees
(1) The remuneration is set out in the applicable Freight Forwarding Agreement and must be paid plus value added tax in force under applicable law (if required by applicable law).
(2) Any services not specified in the Freight Forwarding Agreement must be accounted for separately.
§ 6 Payment terms
(1) I.C.E. issues its invoices at the time specified in the Freight Forwarding Agreement. The deadline for payment of invoices is specified in the respective individual freight forwarding order.
(2) The invoice shall be paid by bank transfer.
(3) The invoice is issued and sent on the basis of the data provided in writing by the client in the Freight Forwarding Agreement. Complaints about the invoice can be submitted in writing within 5 days of receipt.
(4) In case of late payment, late payment interest according to the Civil Code shall be paid. Interest for late payment is payable from the first day of delay, regardless of the date of notification about I.C.E.’s demand for payment. I.C.E. is entitled to claim damages and any other claims in excess of the interest for late payment, including flat-rate recovery costs under special legislation.
(5) The client shall have a right of set-off or retention against I.C.E.’s claims only if I.C.E. has given its prior written consent.
(6) Payments are considered to have been made when they are credited to the bank account specified in the respective invoice of I.C.E.
(7) Payments must be made directly to the bank account specified on the I.C.E. invoice, in the currency specified in the Freight Forwarding Agreement. In case of incorrect or erroneous transfer (e.g. transfer to HUF bank account instead of EUR or vice versa), the client is obliged to reimburse immediately the justified additional costs (e.g. exchange rate loss, bank charges) incurred on the side of I.C.E.
§ 7 Instructions and information
(1) I.C.E. is obliged to inform the client of all relevant circumstances related to the execution of the freight forwarding order, in particular possible obstacles to transportation, loading, breakdowns or accidents, or other delays along the transport route, provided that the I.C.E. receives appropriate information in this regard from the respective carrier. In the event of such an obstacle to carriage, the I.C.E. shall, as far as practicable, inform the client in advance and, where appropriate, request instructions from the client.
(2) Delivery times or other fixed dates cannot be guaranteed by the I.C.E. as they imply unhindered rail, sea and road transport possibilities.
(3) I.C.E., as forwarder, is obliged to enforce the claims of the client against the carrier and other collaborators used by the forwarder, at the expense and risk of the client, if instructed so by the client. I.C.E. is even without instructions obliged to make the declarations necessary to protect the rights of the client.
(4) In the event that the transport damage affects the goods and the carrier informs the I.C.E. of the occurrence of such damage, I.C.E. is obliged to immediately notify the client and ask for his instructions.
§ 8 Liability
(1) If the Freight Forwarding Agreement does not contain an agreement to the contrary and a mandatory legal provision does not contradict this, the parties shall be liable for the breach of their contractual or other obligations in accordance with the provisions of the background legal provisions set out in § 1 above.
(2) The client shall be liable for damage resulting from the instruction, insufficient packaging, marking of the goods or the incompleteness, inaccuracy or omission of data, documents or information provided by the client.
(3) In respect of any damage caused by breach of contract, defective performance or non-contractual damage caused for the client, I.C.E. shall only compensate for the actual depreciation of the client's property (the so-called adhesive damage), provided that the amount of I.C.E.'s liability for damages is limited to the net freight forwarding fee of the given individual freight forwarding order affected by the damage, and no further claims can be asserted against I.C.E. as compensation.
(4) With regard to Sections 6:152 [Limitation and exclusion of legal consequences for breach of contract] and 6:526 [Limitation and exclusion of liability for damages], the liability of I.C.E. cannot be excluded or limited for intentionally caused damage or damage to human life, physical integrity or health.
(5) I.C.E. is excluded from liability for damage due to force majeure, strikes, bottlenecks near railway tracks / seaports / inland waterway terminals, timely arrival at transhipment terminals for intermodal freight transport, damage due to energy shortages, insurrection, war or terrorism, provided that mandatory applicable applicable legislation does not provide for strict liability for damages. The same applies to damage resulting from actions taken by the infrastructure manager (e.g. denial of line, etc.).
(6) If I.C.E. is held liable for damages related to or caused by goods handed over by the client, or if I.C.E. is used by a third party due to incomplete packaging of the goods or incomplete securing of the load, or deficiencies in loading or unloading, the client shall immediately and fully indemnify I.C.E. from such claims.
§ 9 Laps of time
(1) Unless this Section 9 or mandatory statutory provision contradicts this, claims arising from the Freight Forwarding Agreement shall be barred within one year, except for damages caused intentionally or by gross negligence.
(2) If loss of, or damage to, goods is externally recognizable and the consignee or the client does not inform the carrier of the loss or damage at the latest when the goods are delivered, it shall be presumed that the goods have been delivered completely and undamaged. The notification shall indicate the loss or damage with sufficient clarity.
(3) If the loss of, or damage to, the goods is not externally recognizable and the consignee or the client does not notify the carrier of the loss or damage no later than 8 days after delivery of the goods, it shall be presumed that the goods have been delivered completely and undamaged. The notification shall indicate the loss or damage with sufficient clarity.
(4) If, due to the delay in delivery of the goods, the client or consignee wishes to assert a claim for damages in respect of I.C.E., the client or the consignee is obliged to report the claim to I.C.E. within 21 days of delivery of the goods, in writing (by post or email), stating the reasons for the merits and attaching at least a simple photocopy of the available documents.
(5) Claims filed after the above deadlines are deemed to be time-barred. The deadlines are deemed to have been met if the claim is duly sent/dispatched within the above deadline.
§ 10 Insurance
(1) The insurance of the goods is the responsibility and cost of the client.
(2) I.C.E. declares that it has professional liability insurance for its freight forwarding activities, the compensation limit of which is HUF 50,000,000 / damage, but not more than HUF 500,000,000 / year.
(3) However, the insurance cover, and thus the liability of the I.C.E., does not extend beyond the exclusions contained in the insurance conditions applied by the insurer to damage events occurring in connection with warehousing, customs clearance and customs administration activities. In addition, insurance cover, and thus the liability of I.C.E., does not extend to damage caused by shortages, theft or disappearance of goods, regardless of the circumstances under which these damage events occurred. Furthermore, insurance cover, and therefore the liability of I.C.E., does not cover risks, damages or claims arising out of or in any way related to conduct or activity contrary to prohibition, restrictive provisions of the United Nations or contrary to economic or trade sanctions or legal norms of the European Union, the United Kingdom or the United States of America.
§ 11 Marking obligation
(1) The client is obliged to mark the goods handed over in accordance with the respective national and international legal regulations in force, in particular the environmental regulations in force and the regulations related to dangerous goods. Otherwise, the client shall indemnify I.C.E. from all claims and liabilities and to indemnify it accordingly.
§ 12 Confidentiality
(1) Each party undertakes to treat information obtained about the other party's business and/or the service provided by the other party as diligent and strictly confidential and to use it only for business purposes related to the contractual relationship of the parties and the Freight Forwarding Agreement to be concluded from time to time. Both Parties undertake to bind their staff to appropriate confidentiality in the course of their cooperation.
(2) These obligations shall remain in force even after termination of the Freight Forwarding Agreement without any time limit.
(3) Public appearances for the purpose of advertising or image enhancement shall be agreed in advance by the parties and mutually approved in writing.
(4) The confidentiality obligation of the parties is otherwise governed by Act LIV of 2018 on the Protection of Trade Secrets. In this context, a trade secret is a fact, information, other data and compilation thereof relating to an economic activity, which are secret, not generally known in their entirety or in the assembly of their components or easily accessible to persons engaged in the economic activity concerned, and therefore having financial value, in order to keep secret the holder of which behaves in a manner normally expected in the given situation. Proprietary knowledge (know-how) means technical, economic or organisational knowledge, solutions, experience or a combination thereof which constitutes a trade secret and is recorded in an identifiable manner.
§ 13 Dispute resolution, data management
(1) The parties are obliged to resolve any disputes arising out of or in connection with the Freight Forwarding Agreement by amicable settlement, if possible.
(2) In case of failure to do so, the parties shall submit to the exclusive decision of the Permanent Court of Arbitration Budapest organized under the Hungarian Chamber of Commerce and Industry for the resolution of any dispute arising out of or in connection with the Freight Forwarding Agreement, in connection with its breach, termination, validity or interpretation, provided that the Arbitral Court shall act in accordance with its own rules of procedure. The language of the case is Hungarian, the number of judges hearing it is three.
(3) The parties acknowledge that the provision of contact details as personal data is necessary for the conclusion of a contract with the other party and, in the event of the conclusion of a contract, its performance. The disclosing party declares that the processing and transmission of personal data provided for contact purposes will take place with the relevant consent or with appropriate legal authorization. For the purpose of contractual relations, personal data may be stored by the parties for each other for this purpose and may be used for business relations between the parties. The party receiving the data acknowledges that it may process the data of contractual contact persons for the duration of the contractual relationship or until it receives a notification regarding the deletion or modification of the data. The disclosing party undertakes to inform the data subjects accordingly about the manner and conditions of data processing, and also undertakes to comply with the notification obligation pursuant to Article 19 of the General Data Protection Regulation (EU) 2016/679 (GDPR).
§ 14 Severability
(1) If any of the above provisions is or becomes invalid or contains a regulatory gap, the validity of the remaining additional provisions shall not be affected. In place of an invalid provision, the parties agree on a valid provision that corresponds to the meaning and purpose of the invalid provision. In the event of a regulatory gap, the parties agree on a provision of meaning and purpose that they would have chosen if they had thought about the given issue in advance at the time of concluding the Freight Forwarding Agreement.
§ 15 Closing provisions
(1) Termination, contract amendments or additions to the contract shall be in writing. This also applies to the renunciation of the formal requirement for written form. These legal declarations must be sent to the registered office of the other party, to the contact person under the Freight Forwarding Agreement, by direct (courier) delivery confirmed by acknowledgement of receipt, or by registered post with acknowledgement of receipt. An item registered at the contractual contact address of the Parties sent by post with acknowledgement of receipt shall be deemed to have been delivered on the third working day following the attempted delivery, even if, according to the acknowledgement of receipt, service was unsuccessful because the addressee moved to an unknown place, did not receive/did not seek the document or refused to accept it.
(2) In the case of other statements, messages sent by e-mail are also considered to have been legally delivered. A message sent by e-mail, if sent by 16:00 hours on a working day, is deemed to have been received on the day it was sent. E-mails sent after 16:00 hours on working days or sent on public holidays will be deemed delivered at 09:00 hours on the following working day. In the case of an undeliverability report, the email is not deemed to have been delivered, the sending party is obliged to notify the contact person of the other party by other means (e.g. phone, sms, another email provided by the contact person). On the following working day, the email must be sent again. If the repeated sending of the email is also unsuccessful (undeliverability report), the second sending of the email message is considered a legally valid delivery.
(3) If a person who does not understand Hungarian is acting on the client's side during the formal signing of the Freight Forwarding Agreement, an additional condition for the validity of the contract signing as a written legal declaration is that it is clear from the Freight Forwarding Agreement itself that its content has been explained to the signatory representative of the client by a witness to be indicated on the Freight Forwarding Agreement. It is the responsibility of the client to comply with this formality.