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    Terms and Conditions

Terms

GENERAL TERMS AND CONDITIONS
OF THE NIGHT STAR EXPRESS SWITZERLAND AG

I. Area of application, general information

1. The users of these general terms and conditions are the Night Star Express Switzerland AG as well as its shareholders or system partners (hereinafter referred to as NSE). NSE provides for the transport of courier and express deliveries as well as postal items (mail) via a logistics system.

2. Unless otherwise stipulated by the following General Terms and Conditions (GTC), transport is carried out according to the statutory provisions. All contracts based on these GTC are freight carrier services. The regulations pursuant to the provisions of the Convention on the Contract for the International Carriage of Goods by Road (CMR) apply for international carriage by motor vehicles and for international carriage by rail, the Contract for the International Carriage of Goods by Rail (CIM). The Convention for the Unification of International Carriage by Air (Montreal Convention) applies for international carriage by air.
3. The customer’s conflicting terms and conditions only apply if they are confirmed in writing by NSE before commencement of contract.

II. Services and Prices

1. The transport services of NSE include picking up, transporting and delivering the consignments. Transport to the consignee is normally carried out on the route of transport appropriate for the type of service ordered. Depending on the type of service, delivery is generally effected in line with transit times stated in the respectively valid price lists. These transit times are strictly without obligation; the obligation to adhere to a specific delivery date is not associated with these times. Moreover, said obligation is only given if it was explicitly and individually stipulated in writing. Deliveries to islands, which are not land-based, are generally excluded from a fixed transit time. In the event of difficult conditions of transport, NSE has the right to stipulate additional freight differing from the tariff.
2. Subject to the provisions in II. 3. and 4., the following consignments are strictly excluded from transport:
– Consignments, which are subject to the transport monopoly of the Swiss Post.
– Consignments, which include transporting perishable foodstuffs.
– Consignments, which include transporting live animals.
– Consignments, which are of exceptional value. In particular, an exceptional value is presumed – but not limited to – consignments with a value exceeding more than EUR 50,000.00 as well as consignments consisting of otherwise exceptional significance (such as for instance artwork, antiques, gemstones, stamps, unique items, gold, silver or other jewellery, money or negotiable securities [in particular cheques, promissory notes, bank books, shares or other securities][]), even if the value of the consignment does not equal the amount of EUR 50,000.00.
– Consignments, which include the transport of dangerous goods, which are subject to the regulation for the Carriage of Dangerous Goods by Road (ADR) and are classified as dangerous with a specific labelling obligation as well as endanger goods, persons, animals or means of transport.
– In the case of international carriage, also such consignments, which are excluded from air transport according to the provisions of the International Air Transport Association (IATA) or the International Civil Aviation Organization (ICAO).
3. In the event that the customer requests the transport of goods with an exceptional value or living animals, the transport of such consignments can be carried out if the customer additionally authorises this, explicitly stating the correct value of the goods to be transported in writing and separate, individual written agreements are made. In this case, additional transport insurance or transport insurance of valuables must be procured. The customer is entitled to the insurance benefits resulting from the insurance, which is to be procured. This does not affect the limitation of liability resulting from section IV.
4. Contrary to the provisions in section 2, the transport of dangerous goods requires an explicit previous individual agreement with the the respective NSE station. At the same time, the customer must punctually inform the station in advance in writing (in German and English), of the precise type of danger and – where required – of the precautionary measures, which need to be taken. This obligation of notification is not subject to contrary agreement. Upon handing the dangerous goods over to NSE, the customer is responsible for adhering to the respective legal requirements pertaining to declaration, packaging, provision of transport documents, written instructions, etc., even if the obligations are generally incumbent upon the party actually delivering the cargo. The transport of dangerous goods is generally excluded from a fixed transit time.
5. The respective customer is responsible for providing secure packaging for the transport of the consignment. Expenses, which result from damages due to the lack of secure packaging, must be borne by the customer.
6. In line with the due diligence of a prudent carrier, NSE is obligated to check whether the goods are consistent with the consignor’s entries in the transport document or in the transport information in regard to quantity and apparent condition. The customer must bear possible costs for reweighing if the customer did not provide any or incorrect weight specifications. NSE is not obligated to inspect the contents of the consignments before acceptance thereof. Provided that NSE was not aware of the type of danger upon acceptance of the goods or was not at least informed thereof, NSE can unload, store or return dangerous goods or where required, destroy or dispose of said goods without becoming liable to pay compensation to the consigner for this purpose and can request compensation for the necessary expenses resulting from these measures from the consignor. This also applies for goods excluded according to these terms and conditions. If a dangerous or excluded consignment is returned to the consignor, the customer must also bear the costs for return transport.
It generally applies that: If an event of damage or loss occurs or if an overloading of the vehicle is determined, which is based on incorrect or omitted weight or shipment specifications (e.g. SDR/ADR) or on other reasons, for which the customer is responsible, the customer must bear all follow-up costs, which resulted for NSE and involved third parties.
7. The payment for transport must be made in cash to the delivery driver at the latest upon delivery of the consignment, unless otherwise stipulated at the time of accepting the goods for transport. Should payment not be made upon or after acceptance of the consignment, default of payment sets in 14 days after acceptance of the consignment at the latest or 10 days after receipt of the invoice depending on which point in time commences first – subject to an otherwise stated payment arrangement regarding the claims from the transport services and other ancillary services – without further reminder. In the case of default, NSE demands default interest customary in banking however, at least 0.75 % per each commenced month. The assertion of greater damage caused by default is reserved, as is the verification that damage caused by default did not result or merely resulted to a significantly smaller extent.

III. Acceptance and Delivery

1. The take over of the order is carried out with the acceptance thereof, at the latest, by the delivery of the consignment by or for the consignor; execution is carried out as soon as the traffic situation and scheduling of the individual courier vehicles allows for it.
2. Provided that a delivery date was explicitly stipulated in writing, (cp. section II. 1.), it commences with the acceptance of the consignment. If the consignment is deemed undeliverable, the delivery date is extended by at least one day.
3. NSE is authorised – but not obligated – to open consignments for the purpose of checking addresses or for reasons of proper performance of the contract.
4. Consignments can also be delivered to letter boxes or to storage locations, provided that this was specifically stipulated. These consignments are regarded as delivered upon being placed in the letter box or upon delivery at the storage location. Our liability ends with the delivery to the letter box or storage location of the designated consignee.
5. Unless otherwise stipulated, consignments, which the consignee refuses to accept or which cannot be delivered for other reasons, are returned to the customer with the same type of service as was requested by the customer for the consignment at the customer’s expense according to the current price list of NSE.
6. The delivery of consignments to the consignee takes place against signature. Delivery to a family member of the consignee, the consignee’s spouse or to others, including persons present on the consignee’s premises as well as tenants and the consignee’s neighbours can only take place if the circumstances allow the assumption, that these persons are authorised to accept the consignments and the deliverer immediately informs the consignee of the consignments and the person, who accepted said consignments (name and address of the tenant resp. neighbour), by means of a delivery notice, which is placed in the consignee’s installation appropriate for this purpose (letter box, etc.). Delivery to tenants and neighbours is excluded if the consignor instructs otherwise or the consignee has communicated the disallowance of such delivery in writing.

IV. Liability

1. National transport of consignments
Irrespective of the limit of liability stated in item 1 of this section, in the event of loss of or damage to the goods, the liability of NSE is determined per consignment according to the provisions of the ”Convention on the Contract for the International Carriage of Goods by Road CMR”.
NSE is exempt from liability – irrespective of the legal grounds – if and to the extent to which the damage resulted based on circumstances, which NSE was not able to prevent despite observing the diligence of a prudent businessman and the consequences of which NSE to was not able to avert. This particularly applies if the damage was caused due to the customer’s instructions or the instructions of the customer’s vicarious agent and furthermore, if the resulting damage can be attributed to circumstances, for which NSE is not responsible, such as force majeure, condition of the consignment, war, confiscation of goods by higher authority, which are excluded from transport pursuant to section II. item 2. ff., repair consignments with a non-specific value, civil commotion and disturbances, industrial action, electric or magnetic damages to or deletion of electric or photographic images, data or recordings. In the event of pecuniary loss due to late delivery, liability is limited to the amount of freight stipulated in writing for the respective consignment.

Moreover, the following specific grounds for exemption from liability apply:
NSE is exempt from liability insofar as the loss, damage or the delay in delivery can be attributed to one of the following risks:
– Stipulated or common practice use of open, uncovered vehicles or loading on deck.
– Insufficient packaging by the consignor.
– Handling, loading or unloading of the goods by the consignor or the consignee.
– Natural condition of the goods, which leads to damages particularly easy, in particular through breakage, rust, internal decay, drying-out, leakage and normal wastage.
– Insufficient labelling of the packages by the consignor.
Insofar as NSE proves having acted with the diligence of a prudent carrier, damages to the goods caused by the effect of frost, heat, temperature fluctuations and humidity are excluded from liability to pay damages. As a basic principle, NSE is not liable for pecuniary losses, which can arise as a result of loss or damage.
Liability and warranty for defects for transport services ends with the physical delivery of the consignment at the place of destination and/or with the signed confirmation from the receiving party.
2. International transport of consignments
The provisions of the international conventions (section I. item 2.) apply for international transport.

V. Regulations for customs clearance

1. The customer must provide all documents required for customs clearance. With the submission of the required documents, the customer confirms that all declarations, export and import information are veritable and accurate. The customer is aware that inaccurately submitted declarations as well as those submitted with fraudulent intent can result in civil and criminal sanctions, including confiscation and sale of the goods.
2. Insofar as permissible, NSE is commissioned with the customs clearance as a customs agent upon handing over the consignment to the courier. NSE is used as a nominal consignee for the purpose of commissioning a customs broker for the handling of clearance formalities. The additional fees according to the current NSE price list apply for customs clearance.
3. Customs penalties, storage charges and other costs, which result from dealing with customs authorities or as a result of not providing the required export documents, licences or permits on the part of the customer or consignee, will, be charged to the consignee, if applicable, including charged customs duties and taxes if the consignee asserts his/her right to the delivery of the consignment. In the event the consignee does not immediately meet his/her duty of payment, the customer is liable.

VI. Right of retention/Lien

The goods handed over or otherwise conveyed to the NSE can be used by the latter as security for the respective balance of the overall business transactions with the customer. After the fruitless expiry of a payment deadline set by NSE in conjunction with the threat of exploitation, the respective goods are sold at the best obtainable price without any further formalities.

VII. Data protection

NSE is entitled to gather, save and process data, which is collected in line with the services and to transfer said data to NSE partners – also transnationally –, insofar as and as long as this is required for the provision of the services. Data processing can take place in regard to further services and offers from NSE. The customer agrees to this data collection and processing as well as to the transmission, in particular also to public authorities or customs authorities.

VIII. Jurisdiction

Insofar as the customer is a merchant, the place of jurisdiction is the registered office of the commissioned station of NSE, with which the contract of carriage was concluded.

As of: June 2012