General Terms and Conditions
Table of contents
Definitions
Definitions
Scope
Scope
Third parties
Establishment of the Agreement
Establishment of the Agreement
Customs work
Fees and other expenses
Fees
Insurance
Insurance
Performance of the agreement
Delivery time, manner of dispatch and route
Commencement of Services
Handling of Affairs
Liability
Liability
Force majeure
Refusal of carriers
Mandatory law
Contract for the carriage of goods
Payment
Terms of payment
Allocation of payments and judicial and extrajudicial costs
Securities
Final clauses
Termination of the Agreement
Proceedings against third parties
Limitation and expiry
Choice of law
Citing title
Disputes
Arbitration
Definitions
Definitions
In these Terms and Conditions, the following terms shall have the meanings hereby assigned to them:
Third party/parties: all those, not being subordinates, with whom the Freight Forwarder has associated itself on behalf of the Principal, regardless of whether the Freight Forwarder has associated itself in its own name or in the Principal’s name;
Services: all acts and activities, in whatever form and under whatever name, performed by the Freight Forwarder for or on behalf of the Principal;
Freight Forwarder: the natural or legal person who performs Services for the Principal and makes use of these Conditions, which person is not exclusively understood to be the freight forwarder referred to in Book 8 of the Dutch Civil Code;
Principal: every natural or legal person who gives the Freight Forwarder an order to perform Services and concludes an Agreement with the Freight Forwarder for this purpose, regardless of the agreed method of payment;
Agreement: the agreement concluded between the Freight Forwarder and the Principal relating to the Services to be provided by the Freight Forwarder, of which these Conditions form part;
Force Majeure: all circumstances which the Freight Forwarder could not reasonably avoid and the consequences of which the Freight Forwarder could not reasonably prevent
Conditions: these Dutch Forwarding Conditions.
Items: The items made available or to be made available by or on behalf of the Principal to the Freight Forwarder, its servant or Third Parties for the purpose of implementing the Agreement.
Scope of application
Scope of application
These Conditions govern all offers, agreements, legal and factual acts relating to the Services to be performed by the Freight Forwarder, in so far as these are not subject to mandatory law. These Conditions shall apply to the legal relationship between the parties, even after the Agreement has ended.
In so far as any provision in these Conditions is null and void or otherwise unenforceable, this shall not affect the validity of the other provisions of these Conditions. Furthermore, such a clause will be deemed applicable that, legally permissible, comes closest to the purport of the (invalid) clause.
In the event of inconsistencies with translated conditions, the Dutch version of these Conditions shall prevail.
Third parties
The Principal shall leave the Freight Forwarder free to engage Third Parties for the performance of the Agreement and to accept the (general) conditions of those Third Parties at the Principal’s expense and risk, unless otherwise agreed with the Principal. At the Principal’s request, the Freight Forwarder is obliged to submit to the Principal (a copy of) the (general) terms and conditions under which it has contracted with those Third Parties.
Realisation of the Agreement
Realisation of the Agreement
All offers made by the Freight Forwarder are without obligation.
Agreements, as well as amendments and additions thereto, are only concluded if and insofar as the Freight Forwarder has confirmed them in writing or the Freight Forwarder has commenced with the performance of the Services.
Customs work
Customs work
The provision to the Freight Forwarder of information that can reasonably be required for the performance of customs formalities constitutes an order, unless otherwise agreed in writing.
This order is accepted by the Freight Forwarder by means of an express written confirmation or by the Freight Forwarder commencing the performance of customs formalities. The Freight Forwarder is never obliged to accept an order to carry out customs formalities.
If the Freight Forwarder becomes aware of information or circumstances from which it can be concluded that the Principal has not complied with Article 9.3 of these Conditions (has provided incorrect and/or incomplete information and/or documents) and on the basis of which the Freight Forwarder would not have accepted the order to carry out customs formalities, the Freight Forwarder is at all times entitled to terminate this order, whether or not laid down in an additional agreement and/or authorisation, without any obligation to pay compensation, and not to carry it out or continue with it.
Fees and other costs
Fees
Price quotations are always made on the basis of the prices applicable at the time of the offer (quotation). If, between the time of the offer and the time of performance of the Agreement, one or more cost price factors (including, among other things, rates, wages, costs of social measures and/or laws, freight and exchange rates, etc.) undergo an increase, the Freight Forwarder is entitled to charge the Principal for this increase. The Freight Forwarder must be able to demonstrate the changes.
If the Freight Forwarder charges all-in rates or fixed rates, these rates shall be deemed to include all costs that would generally be borne by the Freight Forwarder in the normal course of the Order.
Unless stipulated otherwise, all-in rates and fixed rates shall in any case not include: duties, taxes and levies, consular and legalisation fees, costs for drawing up bank guarantees and insurance premiums.
In the event of circumstances of such a nature that, at the time the Contract was concluded, the possibility of their occurrence could not be taken into account, which cannot be attributed to the Freight Forwarder and which considerably increase the cost of providing the Services, the Freight Forwarder shall be entitled to an additional payment. Where possible, the Freight Forwarder will consult with the Principal in advance. In that case, the additional payment shall consist of the extra costs incurred by the Freight Forwarder in order to perform the Services plus an extra remuneration, to be determined in all fairness, for the Services to be performed by the Freight Forwarder.
Extraordinary expenses and higher wages arising when Third Parties load or unload in the evening, at night, on Saturdays or on Sundays or public holidays in the country where the Service is performed, pursuant to any provision in the relevant agreements between the Freight Forwarder and Third Parties, are not included in the agreed prices, unless this has been stipulated separately. Consequently, the Principal must reimburse the Freight Forwarder for such costs.
In the event of insufficient loading and/or unloading time, all costs arising therefrom, such as demurrage charges, waiting costs, etc., will be borne by the Principal, unless there is intent or wilful recklessness on the part of the Freight Forwarder. In the event of insufficient loading and/or unloading time, all the costs arising therefrom, such as demurrage, waiting costs, etc., shall be borne by the Principal, even if the Freight Forwarder has accepted the bill of lading and/or the charter party, from which the extra costs arise, without protest. The Freight Forwarder should make every effort to avoid the costs.
Insurance
Insurance
Insurance of any kind shall be taken out only at the expense and risk of the Principal after acceptance by the Freight Forwarder of the Principal’s express written order in which the Principal clearly specifies the items to be insured and the value to be insured. A mere statement of the value or the interest is not sufficient.
The Freight Forwarder shall arrange for the insurance to be taken out with an insurer/insurance broker/insurance company.
Insurance broker / insurance intermediary. The Freight Forwarder is not responsible or liable for the reliability of the insurer / insurance broker / insurance intermediary.
In the event that, in the performance of the Services, the Freight Forwarder makes use of equipment such as cradles, cranes, fork-lift trucks and other tools that are not standard among his equipment, the Freight Forwarder is authorised to take out insurance at the expense of the Principal to cover the risks arising for the Freight Forwarder from the use of such equipment. Where possible, the Freight Forwarder shall consult with the Principal in advance regarding the use of such equipment. If timely prior consultation is not possible, the Freight Forwarder shall take the measures that appear to him to be in the best interests of the Principal and shall inform the Principal thereof.
Performance of the Agreement
Delivery time, method of shipment and route
The mere mention by the Principal of a delivery time does not bind the Freight Forwarder. Times of arrival are not firm deadlines and are not guaranteed by the Freight Forwarder, unless otherwise agreed in writing.
If the Principal has not given any specific instructions with his order, the method of shipment and route will be at the Freight Forwarder’s discretion, whereby he can always accept the documents which are customary in the companies with which he contracts for the performance of his order.
Commencement of the Services
The Principal is obliged to make the Goods available to the Freight Forwarder or a Third Party in sound packaging at the agreed place, time and manner.
The Principal is obliged to provide the Freight Forwarder, in good time, with all information and documents relating to the Goods and the handling thereof which he knows or ought to know are of importance to the Freight Forwarder. If the Goods and/or activities are subject to government regulations, including customs and excise regulations and tax provisions, the Principal shall provide in good time all information and documents necessary for the Freight Forwarder to comply with those regulations.
The Principal guarantees that the information and documents provided by him are correct and complete and that all instructions and Goods made available are in accordance with the laws and regulations. The Freight Forwarder shall not be obliged but shall be entitled to investigate whether the statements made to him are correct and complete.
Handling of Goods
All manipulations such as checking, sampling, taring, counting, weighing, measuring, etc., shall be carried out exclusively on the Client’s instructions and against payment of the costs. All manipulations such as checking, sampling, taring, counting, weighing, measuring, etc., and taking delivery under judicial expertise shall only take place on the express instruction of the Principal and against reimbursement of the costs.
Notwithstanding the provisions of paragraph 1, the Freight Forwarder is entitled, but not obliged, to take on its own authority and at the expense and risk of the Principal all such measures as it deems necessary in the latter’s interests. Where possible, the Freight Forwarder will consult with the Principal in advance. If this is not possible, the Freight Forwarder will take the measures that appear to him to be in the best interests of the Principal and will inform the Principal, as soon as this is reasonably possible, of the measures taken and the costs involved.
The Freight Forwarder is not an expert in relation to the Items. The Freight Forwarder is therefore not liable for any damage arising from or connected with any statement made by the Freight Forwarder regarding the condition, nature or quality of the Goods or regarding the conformity of samples with the Goods.
Liability
Liability
All Services are performed at the expense and risk of the Principal.
Without prejudice to the provisions of Article 17, the Freight Forwarder is not liable for any damage unless the Principal proves that the damage was caused by fault or negligence on the part of the Freight Forwarder or its subordinates.
The Freight Forwarder’s liability is in all cases limited to 10,000 SDRs per event or series of events with one and the same cause of damage. Subject to the aforementioned limit, in the event of damage, depreciation or loss of the Items covered by the Contract, liability shall be further limited to 4 SDRs per kilogram damaged, depreciated or lost gross weight.
The damage to be compensated by the Freight Forwarder shall never exceed the invoice value of the Items to be proved by the Principal, in the absence of which the market value to be proved by the Principal shall apply at the time when the damage occurred.
The Freight Forwarder is never liable for loss of profit, consequential loss and immaterial damage, however caused.
If, in the performance of the Agreement, damage occurs for which the Freight Forwarder is not liable, the Freight Forwarder must, with due observance of the provisions of Article 19 of these Conditions, make every effort to recover the Principal’s loss from the party liable for the damage. The Freight Forwarder is entitled to charge the Principal the costs incurred in doing so. Upon request, the Freight Forwarder shall assign to the Principal its claims against the Third Parties it has engaged in the performance of the Agreement.
The Principal is liable vis-à-vis the Freight Forwarder for all damage – including but not limited to material damage, immaterial damage, consequential damage, fines, interest, penalties and confiscations, including consequences resulting from failure to discharge customs documents or failure to discharge them on time, and claims relating to product liability and/or intellectual property rights – that the Freight Forwarder suffers directly or indirectly as a result of, among other things, the Principal’s failure to fulfil any obligation under the Agreement or under applicable national and/or international laws and regulations, as a result of any incident that is within the sphere of the Principal’s risk, and as a result of the fault or negligence in general of the Principal and/or his subordinates and/or third parties engaged and/or employed by him.
The Principal shall indemnify the Freight Forwarder at all times against claims from third parties, including servants of both the Freight Forwarder and the Principal, related to or arising from the damage referred to in the previous paragraph.
Even in cases where all-in or fixed rates have been agreed, the Freight Forwarder, who does not carry the goods himself, is not liable as a carrier, but always as a performing carrier in accordance with Title 2, Section 3 of Book 8 of the Dutch Civil Code, with liability being governed by these Conditions.
If the Freight Forwarder is sued by the Principal outside the scope of the Contract for damage arising in the performance of the Services, the Freight Forwarder’s liability shall not exceed the amount that it would be liable for under the Contract.
If the Freight Forwarder can derive from the Contract a defence against the Principal in order to avoid liability for the actions of a third party or subordinate, then a third party or subordinate may also invoke this defence if the Principal claims it from the third party or subordinate as a result of such actions, as if the third party or subordinate were also a party to the Contract.
If a Freight Forwarder is sued outside the Contract in respect of damage to or loss of a Property, or a delay in delivery, by someone who is not a party to the Contract or a contract of carriage entered into by or on behalf of the Freight Forwarder, then his liability to the latter shall not exceed his liability under the Contract.
Force majeure
In the event of Force Majeure, the Contract will remain in force; however, the Freight Forwarder’s obligations will be suspended for the duration of the Force Majeure.
All additional costs caused by Force Majeure, such as transport and storage costs, warehouse or yard hire, demurrage and demurrage charges, insurance, removal, etc. shall be borne by the Principal and must be paid to the Freight Forwarder on demand.
Refusal of carriers
If carriers refuse to sign for number, weight etc., the Freight Forwarder shall not be responsible for the consequences thereof. The Freight Forwarder shall not be responsible for the consequences thereof.
Mandatory law
Agreement to have goods transported
These Conditions are without prejudice to articles 8:61 paragraph 1 Dutch Civil Code (BW), 8:62 paragraph 1 and 2 BW, 8:63 paragraph 1, 2 and 3 BW.
8:63 paragraphs 1, 2 and 3 of the Civil Code.
Payment
Terms of Payment
The Principal is obliged to pay the Freight Forwarder the agreed remuneration and the other costs, freights, duties, etc. arising from the Contract, unless otherwise agreed. Unless otherwise agreed, the Principal is obliged to pay the Freight Forwarder the agreed fees and other costs, freight, duties, etc. arising from the Contract at the start of the Services.
The risk of exchange rate fluctuations shall be borne by the Principal.
The amounts referred to in paragraph 1 are also due if damage has occurred during the performance of the Agreement.
If, contrary to paragraph 1 of this article, the Freight Forwarder applies a credit limit, the Freight Forwarder is entitled to charge a credit limitation surcharge.
In the event of termination or dissolution of the Agreement, all amounts receivable by the Freight Forwarder, including future amounts, shall be payable immediately.
– of the Freight Forwarder shall become due and payable immediately and in full. In any case, all claims shall be immediately due and payable in full if:
The Principal’s bankruptcy is declared, the Principal applies for a moratorium or otherwise loses the free disposal of all or a significant part of its assets;
The Principal offers a settlement to its creditors, is in default of fulfilling any financial obligation vis-à-vis the Freight Forwarder, ceases to trade or – in the case of a legal entity partnership or company – if it is dissolved.
The Principal is obliged to provide security, at the Freight Forwarder’s first request, for what the Principal owes or will owe the Freight Forwarder. This obligation also exists if the Principal has already provided or has had to provide security for the amount owed.
The Freight Forwarder is not obliged to provide security from its own resources for the payment of freight, duties, levies, taxes and/or other costs, should this be required. All consequences of the Freight Forwarder’s failure to comply or comply promptly with a request to provide security shall be borne by the Principal.
If the Freight Forwarder has provided security from his own resources, he is entitled to demand that the Principal pay the amount for which security has been provided without delay.
Where possible, the Freight Forwarder shall consult with the Principal in advance. If timely prior consultation is not possible, the Freight Forwarder will take the measures that appear to him to be in the best interests of the Principal and will inform the Principal accordingly.
The Principal is at all times obliged to reimburse the Freight Forwarder for any amounts to be levied or collected by any authority in connection with the Agreement, as well as any related penalties.
The Principal shall also reimburse the Freight Forwarder for the amounts referred to above if a third party engaged by the Freight Forwarder sues the Freight Forwarder for the amounts referred to above in connection with the Contract.
The Principal shall at all times indemnify the Freight Forwarder for any amounts charged as a result of incorrectly levied freight rates and costs, as well as all additional costs claimed from the Freight Forwarder in connection with the order.
An appeal to set off claims for payment of compensation arising from the Contract, of costs owed by the Principal on any other account in respect of the Services or of further costs burdening the Equipment, against claims of the Principal or a suspension of the aforementioned claims by the Principal is not permitted.
Allocation of payments and judicial and extrajudicial expenses
Payments on account are deemed to have been made in the first instance in reduction of unsecured claims.
The Freight Forwarder is entitled to charge the Principal extrajudicial and judicial costs for collection of the claim. The extrajudicial collection costs are payable from the time that the Principal is in default and amount to 10% of the claim, with a minimum of €100.
Securities
The Freight Forwarder is entitled to refuse to surrender to anyone, on any grounds whatsoever and for any purpose whatsoever, any Goods, documents and monies which are or will be in the Freight Forwarder’s possession.
The Freight Forwarder shall have a right of retention in respect of all Goods, documents and funds in his possession on any account and for any purpose.
The Freight Forwarder shall have a right of retention on all Goods, documents and monies in his possession or to be received by him for whatever reason and for whatever purpose, for all claims which the Freight Forwarder has or will have against the Principal and/or the owner of the Goods, also with regard to claims not related to the Goods.
The Freight Forwarder has a pledge on all Items, documents and monies which the Freight Forwarder has or will have in his possession for whatever reason and for whatever purpose, for all claims which the Freight Forwarder has or will have against the Principal and/or the owner of the Items.
The Freight Forwarder may consider anyone who entrusts Goods to the Freight Forwarder for the performance of Services on behalf of the Principal as authorised by the Principal to establish a pledge on those Goods.
If, upon settlement, a dispute arises regarding the amount payable or if, to determine the amount payable, a calculation cannot be made quickly, the Principal or the party demanding delivery shall, at the Freight Forwarder’s request, immediately pay the agreed portion of the amount payable and provide security for the payment of the disputed portion or the portion for which the amount has not yet been determined.
The Freight Forwarder may also exercise the rights referred to in this article (right of pledge, right of retention and right to refuse surrender) in respect of that which is still owed to him by the Principal in connection with previous orders and in respect of that which is encumbered on the goods by way of cash on delivery.
The sale of any collateral shall take place at the expense of the Principal in the manner stipulated by law or, if there is agreement thereon, privately.
At the Freight Forwarder’s first request, the Principal shall provide security for the costs paid or to be paid by the Freight Forwarder to third parties or authorities and other costs incurred or expected to be incurred by the Freight Forwarder on behalf of the Principal, including freight, port costs, duties, taxes, levies and premiums.
In the absence of documents, the Freight Forwarder is not obliged to issue indemnifications or provide security. If the Freight Forwarder has issued an indemnification or provided security, his Principal is obliged to indemnify him against all the consequences thereof.
Final provisions
Termination of the Agreement
The Freight Forwarder may terminate the Agreement with immediate effect in the event that the Principal:
Ceases all or a significant part of his profession or business;
loses the free disposal of its capital or a significant part thereof
loses its legal personality, is dissolved or is actually liquidated;
Is declared bankrupt;
Offers a settlement without bankruptcy;
Applies for a suspension of payments;
Loses the disposal of its goods or a significant part thereof as a result of an attachment.
If the Freight Forwarder continues to fail imputably in fulfilling one or more of its obligations under the Agreement, the Principal may, without prejudice to its right to compensation for damage in accordance with Article 11, terminate the Agreement in whole or in part with immediate effect, after
It has informed the Freight Forwarder by registered letter, stating its reasons, of the Freight Forwarder’s failure to fulfil its obligations and has given the Freight Forwarder a term of at least thirty days to fulfil its obligations and;
The Freight Forwarder has still not fulfilled its obligations at the end of that period.
If the Principal fails imputably to fulfil one or more of its obligations under the Agreement, the Freight Forwarder may, without prejudice to its right to compensation for damage suffered, terminate the Agreement in whole or in part, with immediate effect, after it has given the Principal, by registered letter, a final deadline of at least fourteen days to fulfil its obligations and the Principal has still not fulfilled its obligations on expiry of that deadline. If, by setting such a deadline, the Freight Forwarder’s interest in the undisturbed operation of its business would be disproportionately impaired, it may also dissolve the Agreement without observing a deadline.
Neither Party can dissolve the Contract if the shortcoming, in view of its special nature or minor importance, does not justify the dissolution and its consequences.
Proceedings against third parties
The Freight Forwarder shall not conduct legal and arbitration proceedings against third parties, unless it agrees to do so at the Principal’s request and at the latter’s expense and risk.
Limitation and expiry
Without prejudice to the provisions of paragraph 5 of this Article, all claims shall become time-barred by the simple expiry of nine months.
All claims against the Freight Forwarder shall lapse after a period of 18 months.
The periods referred to in paragraphs 1 and 2 shall commence on the day following that on which the claim became due and payable or the day following that on which the prejudiced party became aware of the loss. Without prejudice to the above provisions, the said periods for claims relating to damage, loss of value or loss of the Goods shall commence on the day following the day on which the Goods have been delivered or should have been delivered by the Freight Forwarder.
In the event that the Freight Forwarder is sued by third parties, including any government, the periods referred to in paragraphs 1 and 2 shall commence on the first of the following days:
The day following the day on which the Freight Forwarder is sued by the third party;
The day following the day on which the Freight Forwarder has paid the claim addressed to him.
If the Freight Forwarder or a third party engaged by him has lodged an objection and/or appeal, the periods referred to in paragraphs 1 and 2 shall commence on the day following the day on which the decision on the objection and/or appeal becomes final.
Unless the situation referred to in paragraph 4 of this article arises, if after the period of limitation one of the parties is sued for what he owes to a third party, a new period of limitation of three months begins to run.
Choice of law
All Agreements to which these Conditions apply are subject to Dutch law.
The place of settlement and the settlement of claims shall be the Freight Forwarder’s place of business.
Official title
These General Terms and Conditions may be cited as “Netherlands Forwarding Conditions”.
Disputes
Arbitration
All disputes which may arise between the Freight Forwarder and the Counterparty shall be decided in the highest instance by three arbitrators in accordance with the FENEX Arbitration Rules, to the exclusion of the ordinary court. The FENEX Rules of Arbitration and the current tariffs of the arbitration procedure may be read and downloaded from the FENEX website. A dispute shall exist when one of the parties declares that such is the case.
Without prejudice to the provisions of the preceding paragraph, the Freight Forwarder shall be at liberty to submit claims for sums of money due and payable, the indebtedness of which has not been disputed in writing by the Counterparty within four weeks of the invoice date, to the competent Dutch court in the Freight Forwarder’s place of business. The Freight Forwarder shall also be at liberty to submit claims of an urgent nature in summary proceedings to the competent Dutch court in the Freight Forwarder’s place of business.
The arbitration shall be decided by three arbitrators, unless none of the parties has applied for an appointment of arbitrators and the parties jointly inform the FENEX Secretariat in writing that they wish the arbitration to be decided by the arbitrator appointed by them jointly, attaching the written declaration of the arbitrator appointed by them jointly, containing his/her acceptance of the appointment and the operation and validity of the FENEX Rules of Arbitration.
One of the arbitrators shall be appointed by the Chairman or the Vice-Chairman of FENEX, as the case may be; the second shall be appointed by the President of the Bar Council of the judicial district in which the aforesaid arbitration is to take place.
One of the arbitrators shall be appointed by the President or the Vice-President of FENEX, the second shall be appointed by the President of the Bar Council of the District in which the aforesaid Freight Forwarding Company has its registered office; the third shall be appointed by mutual agreement between the two arbitrators so appointed.
The President of CALIPTUS SHIPPING shall appoint a person with expertise in shipping and logistics; the Dean of the Bar Association shall be requested to appoint a lawyer with expertise in shipping and logistics; as the third arbitrator should preferably be a person with expertise in the branch of trade or business in which the forwarder’s contracting party operates.
Where applicable, the arbitrators will apply the provisions of international transport treaties, including the Convention on the Contract for the International Carriage of Goods by Road (CMR).