General Terms & Conditions
1. Applicability and scope
1.1 General
The following General Terms and Conditions (“GTC“) govern the rights and obligations for the contractual relationships for the services offered by Waterside Logistics GmbH, Bodenackerstr. 39, 4657 Dulliken, Switzerland («Waterside», “us” or “we“) on and through the web portal (“platform“) at www.watersidelog.com in the area of transport and freight forwarding brokerage for shipping (roll-on/roll-off shipments, container shipments, high&heavy/project cargo, hereinafter “service” or “transport service“), and other Value-Added Services (“VAS”) for related further (third party) services (such as general support etc.), to clients, respectively users of the platform, who request a quotation for a transport order (“user“) and other services, or the providers who offer a quotation and execute the transport order for the users (“provider“) (together with us, the “parties“).
1.2 Value-Addes Services
VAS provided by Waterside are such services that do not fall under the brokerage services. VAS particularly comprise of the arrangement and organisation of insurance coverage (cargo total loss insurance coverage or full cargo insurance against loss and damage during transit), customs clearing (processing of customs clearing documents, bill of loading exchange booking data through the provider’s server, further associated paperwork with ports, terminals etc.), as well as track&trace services, organised by us and executed in collaboration with third party companies.
1.3 Legal nature of services
Waterside arranges transport and freight forwarding orders as a brokerage agent/intermediary without carrying out transports by own means of transport for the users; we also do not (even temporarily) store the goods to be transported in a warehouse. We may arrange and organise transports and good’s storage in the user’s name and for account of the users in collaboration with providers and third party companies, and may further provide VAS upon request in collaboration with third parties. Depending on the character of the service, Waterside acts as either brokerage agent or freight forwarder according to applicable law.
2. Contractual Components and order of precedence
These GTC, together with the privacy policy (“PP“) and the specific order for services and/or VAS, form an integral part of the respective order (“order“). The PP shall take precedence over all parts of the contract. The order shall take precedence over the GTC. These GTC and our PP shall also apply to all future business relationships, even if they are not expressly agreed again. Conflicting general terms and conditions of users or providers shall only be accepted if expressly agreed in writing.
The General Terms and Conditions of SPEDLOGSWISS (Association of Swiss Forwarding and forwarding and logistics companies) do not apply to the business activities of Waterside and are explicitly excluded.
3. Conclusion of the contract and follow-up contracts
3.1 General
We provide interested users with a portal via the platform where they can obtain shipping transport quotations, as well as quotations for further related services such as VAS from providers and us. By submitting a request for a quotation for transport services via the platform, the user concludes a contract in accordance with these GTC for the procurement of quotations for the service he or she has requested. In case of VAS or further services specifically provided by Waterside, the contract for the provision of such services is concluded between the user and us. The quote request is non-binding and free of charge for the user.
We are authorised to contact users after a request for a quote has been made, to check their details and, if necessary, to obtain further information from the users, in particular with regard to their person and the requested service (scope, special features, etc.).
By requesting a quote for brokerage services, users instruct us to find suitable providers who can submit a quote for the requested service. We are authorised to send the user’s quote request to several providers of our choice. In particular, the user’s contact details (name, address, e-mail address, telephone number) as well as the project description and other information necessary for the preparation of the quotation will be forwarded together with the quotation request. We may also use subcontractors to find a suitable provider.
3.2 Follow-up contracts
Users can be provided with a quotation from existing provider(s) to whom the request for quotation was sent and receive quotations based on the respective request for quotation. If a user accepts a quotation, a follow-up contract (e.g. transport order, haulage contract, freight contract, insurance contract, etc.) is concluded (“follow-up contracts“).
4. Our rights and obligations
4.1 Legal nature of the relationship
The legal relationship between us and the provider or us and the user each forms a contract for the brokerage of quotations for requested services or, as applicable, the provision of freight forwarding services.
The follow-up contracts based on the quotations are concluded between the provider and the user, respectively, based on the character of the services, concluded by us in the name and for account of the user. If not otherwise agreed or immanent by the nature of services, Waterside is not contracting party nor representative or auxiliary person in connection with follow-up contracts. We only provide services in connection with the follow-up contracts if this is specifically agreed with us. Follow-up contracts in the field of insurance are exclusively concluded between the insurance provider and the user.
4.2 Assessment
We commit ourselves to the careful selection of the providers and otherwise involved third parties in accordance with the standards customary in the industry, but explicitly point out that we do not carry out any assessment on the providers and otherwise involved third parties with regard to the professional qualifications or quality for the proper execution of the transport and associated services.
4.3 Content of a quote
There is no entitlement to admission as a provider or to consideration for requests for quotations. Likewise, there is no entitlement to the request for a quote being forwarded to a specific provider or to a user receiving one or more quotes, nor to the conclusion of a follow-up contract with a provider.
Unless otherwise agreed with the user, we are not obliged to check third party quotations and other contents of accompanying documents and information for their legality or other admissibility; it is the sole responsibility of the user to check the scope of services and the pricing of the quotation.
We are entitled to enquire with users at a later date as to whether they were satisfied with the provision of the service.
4.4 Other
Notifications from the platform about new quotations and the like are for information purposes only and only legally binding unless confirmed by Waterside in written.
We are authorised to reject or delete content (from quotations) at any time, even retrospectively, in particular if there is a violation of these GTC or other legal provisions. Violations can lead to the provider being blocked.
Defects in the transported goods are to be reported exclusively to the provider. If agreed with the user, we may support in such reporting. If the user reports a defect directly to us, it may not have the legally binding effect of timely reporting. We waive any corresponding liability in that respect.
Furthermore, we are authorised, at our own discretion or after consultation, to adapt the content of quotations in order to improve the appearance and/or readability.
5. Rights and obligations of the providers
5.1 Content of the quotation
The provision of quotations requires the provider to provide complete and truthful information. False or fictitious information is prohibited. The information provided by providers must be complete and accurate at all times. We are authorised, even retrospectively, to check information and/or have it checked by third parties and to request additional information from providers.
Providers are only authorised to offer quotations for their own services. It is prohibited to offer quotations from or for third parties and to make the quotation requests received available to third parties for a fee or free of charge.
Providers are obliged to provide us with complete and truthful information on the current status on all contractual agreements in connection with a quotation, in particular on follow-up contracts concluded (if not organised by us), at any time upon request. Failure to comply with this obligation may result in the exclusion of the provider (no longer considered for future requests for quotations).
Providers are obliged to submit legally compliant quotations. In particular, no quotations with illegal, incomplete, non-binding, conditional, inappropriate content, content that violates industry standards or applicable legal provisions, content with an unreasonably short acceptance period, content that violates personal rights or immoral content may be entered. Furthermore, providers undertake not to enter any content for quotations that contains false, misleading and/or inadequate information, self-promotion, financial services, services provided by or through third parties, network marketing, pyramid and snowball schemes.
5.2 Liability, insurance
It is also prohibited to enter quotations that infringe the intellectual property rights, personal rights or other rights of third parties.
Providers must fulfil the administrative, national and international legal requirements and regulations applicable to their industry at all times. This includes appropriate insurance (transport, storage and motor vehicle insurance, liability insurance, etc.) from a recognised insurance company with adequate cover and presentation to us or the user upon request.
6. Rights and obligations of the users
6.1 General
Only natural persons of legal age or legal entities may submit a request for quotation.
Users undertake to provide complete and truthful information about themselves and their project and to submit only serious requests for quotations. Requests for quotations that do not fulfil these requirements may be deleted by us without giving reasons. Violations may result in the user being blocked.
Automated access to the platform, for example using bots, scripts or similar means, is prohibited.
6.2 Information about goods and special treatment of goods
The user shall provide all information necessary for the quotation, including documents containing data and transport specifications, and inform Waterside whether the goods to be transported are subject to special handling regulations.
6.3 Exclusions, export control
The following goods will not be arranged for transport: dangerous goods, pharmaceuticals, food, flowers without appropriate declaration. The shipment of people, animals, narcotics, or any goods whose possession or trade is punishable in the country of dispatch or arrival is prohibited.
Any export activities are the responsibility of the user. The user warrants to Waterside that it will not submit or commission any requests for transports and associated services to sanctioned countries or to sanctioned persons or companies in accordance with the ordinances of the Federal Act on the Enforcement of International Sanctions (EmbA, SR 946.231) and other applicable international sanctions control regulations.
7. Terms of payment
7.1 Price
The user undertakes to pay the price plus VAT (where applicable) according to the quotation in the agreed currency. Bank charges as well as charges occurred by using our online payment tool shall be borne by the user. Furthermore, the terms of payment according to the quotation apply accordingly.
The user undertakes to fulfil all payment obligations to us in full and on time. We are authorised to make chargeable services dependent on full payment and/or advance payment of fees. If a user does not fulfil the payment obligation, we are entitled to reject a request for quotation or assign our claims to a debt collection agency. Any collection costs and legal costs shall be charged to the user.
7.2 Customs duties, taxes and other charges
All customs duties, taxes and charges in connection with the transport and services shall be borne exclusively by the user, even if they are not completely named on the quotation (e.g. not being known at the time of the quotation). The user is fully liable to Waterside for this.
8. Duration and cancellation of the contractual relationship
8.1 Contract with the user
The contract with the user for the provision of a quote for transport services ends with the completion of the respective quote request. In all other cases, in particular VAS, the contracts end when the respective services are finally performed. Follow-up contracts end at the time specified in the follow-up contract.
8.2 Contract with the providers
The contract with the providers is concluded for an indefinite period. The ordinary cancellation period is, unless otherwise agreed, usually one month to the end of each month. Payment is made for each or several transmissions of a or more users requests for quotation to the provider (“lead”). Prices and fees apply in accordance with the price list after acceptance as a provider. Invoices are issued at the end of each month or as otherwise agreed with the provider. The payment period is 5 days, unless otherwise agreed.
8.3 Extraordinary termination
The right to extraordinary termination for good cause is reserved. Good cause shall be deemed to exist if a contracting party fails to fulfil material obligations under this contract or is in bankruptcy or liquidation.
9. Intellectual property rights
Providers submit quotations for transport services and related services to us. With the transmission, the providers declare their consent to the forwarding to the users. In this context and as applicable, the providers grant us a non-exclusive, transferable right of use, unlimited in terms of location and time, to all content of the quotations, including content protected by trademark and copyright.
All rights to the platform, our company and our brand or other intellectual property rights and our know-how, including copyrights, remain fully with us.
10. Warranty
We exclude all warranty claims insofar as they have not been expressly stated in these GTC. In particular, we do not guarantee that suitable providers can be found, that the contracting parties will fulfil any contractual obligations that may exist between them or that information provided by the contracting parties (e.g. regarding professional qualifications, quantities, deadlines, transport times, availability, proper execution of the transport services, insurance or other relevant or irrelevant information or assurances) is correct. The execution and/or enforcement of contracts is the responsibility of the respective contracting parties.
The use of the platform may be temporarily, partially or completely unavailable, in particular for technical reasons. We accept no liability for the availability of the platform or for the up-to-dateness, accuracy and/or completeness of quotations.
To the fullest extent permitted by law, all other warranties are expressly excluded.
11. Our liability
11.1 Liability for brokerage services
As an agent, broker or intermediary of transport and freight forwarding services, we shall only be liable in accordance with the law applicable to us (whereby our liability is limited to direct damages resulting from intent and gross negligence, insofar as this is legally permissible), as well as within the scope of our warranties and in accordance with these GTC.
11.2 Liability for other services
Insofar as we provide VAS and thus specific services that may be considered as freight forwarding services, we are only liable for such services to the extent permitted by applicable law. Insofar as we fall within the scope of application of international agreements and conventions, the maximum limitations and exclusions of liability according to the law applicable to us shall apply.
11.3 Specific disclaimers
We are not liable for the legal admissibility or the information (including the conflicting rights of any third parties) of the content published or made available by the providers or users. We are further not liable for omissions, inaccuracies or breaches of duty that are attributable to culpable behaviour on the part of the user, nor for intentional, grossly negligent or slightly negligent damage to the goods to be transported by the providers. We expressly assume no liability for faulty services provided by the providers and other third parties, in particular that the provider complies with all applicable national and international regulations, agreements and conventions for the transport of goods.
We accept further no liability for damages which users assert against us and which relate to the fulfilment of contracts and services by the providers or otherwise involved third parties (contractual or non-contractual liability for damages caused by providers, our or their auxiliary persons or other third parties). In this respect, the providers undertake to indemnify us in full within the scope of the insurance cover in accordance with section 5.2 of these GTC and to assume any resulting claims (consequences of liability, claims for damages, etc.).
Furthermore, we are not liable for indirect and consequential damages such as loss of profit, unrealised savings, additional expenses, consequential damages and third-party claims, business interruption, damage of a punitive or quasi-punitive nature (such as fines, punitive and exemplary damages, contractual and contractual penalties), loss of data and data carriers, damage due to data protection breaches, damage due to intrusion into the IT system such as cyber incidents, malware, computer viruses and scripts.
11.4 Limitations
Subject to the foregoing, the total liability under these GTC shall be limited, irrespective of the reason and to the extent permitted by law, to the value of the fee charged for the services in question.
Any further liability, irrespective of the legal grounds and under which title, is, to the extent permitted by law, completely excluded.
12. Liability of providers and users
If an event occurs which is beyond our influence and control (so-called force majeure), we assume no liability or responsibility for the non-fulfilment (or late fulfilment) of obligations arising from this contract. Furthermore, we reserve the right to withdraw from the contract in such cases. An event beyond our control exists, for example, in the following cases (non-exhaustive list):
In the event of strikes, lockouts or other acts by third parties, invasions, terrorist attacks, war, fire, explosions, storms, floods, earthquakes, epidemics, pandemics and other natural disasters or the failure of public or private communications or transport networks or electricity suppliers.
Should an event beyond our control occur that affects the fulfilment of your obligations under the contract, we will inform the parties as soon as possible.
13. Force majeure
Providers and users are expressly and fully liable to us and any third parties, regardless of fault, for all direct and indirect damages as well as for damages, regardless of the legal grounds and under which title, which arise due to violations of these GTC or in connection with the use of the platform. The indemnity also includes third-party claims.
Liability between providers and users shall be governed exclusively by the provisions in the respective contract between these contracting parties. In this context, the contracting parties concerned indemnify us in full against all claims by other contracting parties and third parties and undertake to bear in full all costs – including legal fees and court costs – and damages incurred by us or the platform in this context.
14. Confidentiality obligations
Any business and trade secrets, intellectual property rights and personal data (“confidential information”) of the respective other party which the parties learn directly or indirectly in the course of their cooperation must be kept secret and – except in the context of the respective fulfilment of the contract – neither exploited nor disclosed or made accessible to third parties. Each party may, on a case-by-case basis, designate the information and documents that it considers confidential. Each provider or user party is responsible for instructing us in writing about the handling of sensitive information and documents.
The duty of confidentiality does not apply to information that is generally known and easily accessible, was already known to the party concerned or was disclosed to it by third parties in an authorised manner. Statutory disclosure obligations to authorities and third parties remain reserved. The duty of confidentiality shall be transferred by the parties to employees and auxiliary persons in an appropriate manner.
Providers and users acknowledge and agree that we may pass on confidential information to affiliated companies and third parties that we engage to fulfil the contract. In doing so, we ensure that the confidentiality obligation is observed by the affiliated companies and authorised third parties.
This confidentiality obligation shall also apply in the event of any termination of the cooperation beyond the duration of this cooperation, as long as an interest worthy of protection exists, but for at least 5 years.
15. Data protection
The parties undertake to comply with the applicable legal provisions regarding data protection, in particular the Federal Act on Data Protection (FADP, SR 235.1) including the associated ordinance, as well as the European General Data Protection Regulation (GDPR) – if applicable. Providers are also obliged to comply with the applicable data protection provisions, even if they are based outside Switzerland, provided that they process personal data of affected persons in Switzerland.
Information on the processing of personal data of users and the contact persons of providers can be found in our privacy policy at www.watersidelog.com/privacy-policy/.
16. Severability clause
Should one of the provisions of the contract be invalid or incomplete or should fulfilment become impossible, this shall not affect the validity of the remaining parts of the contract. In this case, the parties undertake to immediately replace the invalid provision with a valid provision that comes as close as possible to the original intention. The same applies in the event of a loophole.
17. Contractual penalty
If the provider violates the clauses of these GTC that apply to it, the provider shall owe us a contractual penalty of CHF 50,000 per violation. Payment of the contractual penalty is not equivalent to the granting of a licence or consent and does not release the provider from compliance with this provision. This provision shall also apply after termination of the contract.
18. Amendment clause
We reserve the right to amend these GTC at any time with effect for the future. All amendments shall become effective upon publication of the new GTC on the website. The relevant time for the applicability of the valid GTC is when the contractual relationship is concluded.
19. Applicable law and place of jurisdiction
These GTC and any contractual and non-contractual claims shall be governed exclusively by substantive Swiss law, to the exclusion of the Swiss Federal Act on Private International Law (IPRG, SR 291) and the conflict of laws rules of the United Nations Convention on Contracts for the International Sale of Goods (CISG) and other multinational law. The mandatory applicable provisions of national and international provisions, directives, multilateral agreements and contracts in the field of transport and maritime shipping remain reserved.
The exclusive place of jurisdiction is Solothurn. The mandatory places of jurisdiction provided for by law remain reserved.
Dulliken, September 2, 2024