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DUTCH FREIGHT FORWARDING CONDITIONS

DUTCH FREIGHT FORWARDING CONDITIONS GENERAL CONDITIONS OF THE FENEX

deposited at the Registry of the District Courts at Amsterdam and Rotterdam on 1 May 2018

Definitions

Article 1. Definitions

In these Terms and Conditions:

Third Parties(s): all persons, who do not fulfil subordinate positions, with which the Freight Forwarder has associated itself on behalf of the Client, irrespective of whether the Freight Forwarder has done so in their own name or in the name of the Client;
Services: all acts and activities, in whatever form and under whatever name, performed by the Freight Forwarder for or on behalf of the Client;
Freight Forwarder: the natural or legal person who performs Services for the Client and who makes use of these Terms and Conditions, who is not exclusive understood to be the ‘expediteur’ as defined in Book 8 of the Dutch Civil Code (BW);
Client: any natural or legal person who gives an order to the Freight Forwarder for the provision of Services and concludes the Agreement with them for that purpose, irrespective of the agreed method of payment;
Agreement: the agreement concluded by the Freight Forwarder and the Client with respect to the Services to be performed by the Freight Forwarder, of which these Terms and Conditions form a part;
Force Majeure: all circumstances which the Freight Forwarder could not reasonably have avoided and the consequences of which the Freight Forwarder could not reasonably have prevented;
Conditions these Dutch Freight Forwarding Conditions.
Goods: the goods made available or to be made available to the Freight Forwarder, their agent or Third Parties by or on behalf of the Client in connection with the execution of the Agreement..

Scope

Article 2. Scope

These Conditions govern all offers, agreements, legal and factual acts relating to the Services to be provided by the Freight Forwarder to the extent that they are not subject to mandatory law. The legal relationship between the parties shall be governed by these Terms and Conditions even after the Agreement has ended.
To the extent that any provision of these Terms and Conditions is invalid or otherwise unenforceable, the validity of the remaining provisions of these Terms and Conditions shall not be affected. Furthermore, the invalid or unenforceable clause shall be replaced with one that comes closest to its original meaning that is legally permissible.
In the event of conflicting translated terms and conditions, the Dutch version of these Terms and Conditions shall take precedence.

Article 3. Third parties

he Client shall leave the Freight Forwarder free to engage Third Parties for the execution of the Agreement and to accept the (general) terms and conditions of these Third Parties at the Client’s expense and risk, unless otherwise agreed with the Client. At the request of the Client, the Freight Forwarder is obliged to provide the Client with (a copy of) the (general) terms and conditions under which it has concluded a contract with those Third Parties.

Creation of the agreement

Article 4. Creation of Agreement

All offers made by the Freight Forwarder do not require any commitment on its part.
Agreements, as well as amendments and supplements thereto, shall only be concluded if and in so far as the Freight Forwarder has confirmed them in writing or if the performance of the Services has commenced.

Customs activities

Article 5. Customs activities

Providing the Freight Forwarder with information reasonably required for the performance of customs formalities shall constitute an order to that effect, unless otherwise agreed in writing.
This order shall be accepted by the Freight Forwarder by means of express written confirmation or by the Freight Forwarder commencing the performance of customs formalities. Freight Forwarder shall never be obliged to accept an order to perform customs formalities.
If the Freight Forwarder becomes aware of information or circumstances from which it may be inferred that the Client has not complied with Article 9, paragraph 3 of these Terms and 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 perform customs formalities, the Freight Forwarder shall at all times be entitled to terminate this order, whether or not they have been established in an additional agreement and/or authorisation, without any obligation to pay compensation or to carry out or continue carrying out the order.

Fees and other expenses

Article 6. 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 the execution of the Agreement one or more cost-price factors (including rates, wages, costs of social measures and/or laws, freight and exchange rate quotations, etc.) increase, the Freight Forwarder shall be entitled to charge this increase to the Client. The Freight Forwarder must be able to provide verifiable proof of these changes.
If the Freight Forwarder charges all-in rates or flat (fixed) rates, such rates shall be deemed to include all costs generally borne by the Freight Forwarder during the normal course of handling the order.
Unless otherwise stipulated, all-in rates and flat (fixed) rates never include: duties, taxes and levies, consulate and legalisation costs, costs for drawing up bank guarantees and insurance premiums.
In the event of circumstances of such a nature that the likelihood of their occurrence, which cannot be attributed to the Freight Forwarder and which substantially increase the cost of performing the Services, was not taken into account when the Agreement was concluded, the Freight Forwarder shall be entitled to additional payment. Where possible, the Freight Forwarder shall consult with the Client in advance. In that case the additional payment shall consist of the additional costs incurred by the Freight Forwarder in order to carry out their end of the Agreement, increased by an additional fee to be determined on an equitable basis, for the Freight Forwarder’s performance.
Exceptional expenses and higher labour costs, which are incurred when, pursuant to any provision in the relevant agreements between the Freight Forwarder and Third Parties, loading or unloading takes place during the evening, night, on Saturdays, Sundays or public holidays in the country where the Service is performed, shall not be included in the agreed prices, unless separately stipulated. The Client must therefore reimburse the Freight Forwarder for these costs.
Except in the case of wilful intent or deliberate recklessness on the part of the Freight Forwarder, in the event of insufficient loading and/or unloading time, all costs arising therefrom, such as demurrage charges, waiting costs, etc., shall be at the Client’s expense, even if the Freight Forwarder has accepted the bill of lading and/or the charter party from which the additional costs arise without protest. The Freight Forwarder must make every effort to avoid these costs.

Insurance

Article 7. Insurance

Insurance of any kind shall only be taken out at the Client’s expense and risk after acceptance by the Freight Forwarder of the Client’s express written order, in which the Client clearly specifies the items to be insured and the value to be insured. Simply stating the value or interest is insufficient.
The Freight Forwarder shall take out the insurance (or have it taken out) with an insurer/insurance broker/insurance intermediary. The Freight Forwarder is neither responsible nor liable for the wealth of the insurer/insurance broker/insurance intermediary.
Where the Freight Forwarder makes use of materials, such as gantries, cranes, forklift trucks and other equipment which are not typically part of its equipment in the performance of the Services, it shall be entitled to take out insurance at the Client’s expense to cover the risks arising for the Freight Forwarder from the use of such equipment. Where possible, the Freight Forwarder shall consult with the Client in advance regarding the use of such materials. If prior consultation is not possible in good time, the Freight Forwarder shall take the measures which appear to be in the best interest of the Client and shall inform the Client accordingly.

Execution of the agreement

Article 8. Delivery time, shipping method and route

EThe Client merely stating a time of delivery shall not be binding for the Freight Forwarder. Arrival times are not deadlines and are not guaranteed by the Freight Forwarder, unless otherwise agreed in writing.
If the Client has not given any specific instructions in this respect when presenting the order, the method of shipment and route shall be at the Freight Forwarder’s discretion, with the Freight Forwarder always being able to accept the documents that are customary when working with the companies that it makes agreements with for the performance of the order provided.

Article 9. Commencement of Services

The Client shall be obliged to make the Goods available to the Freight Forwarder or a Third Party in sufficient packaging at the agreed place and time and in the agreed manner.
The Client shall be obliged to provide the Freight Forwarder, in a timely manner, with all such statements and documents concerning the Goods and their handling as it knows or ought to know are of importance to the Freight Forwarder. If the Goods and/or activities are subject to government provisions, including customs and excise provisions and tax regulations, the Client shall provide all information and documents necessary for the Freight Forwarder to comply with such provisions in a timely manner.
The Client guarantees that the information and documents that it provides shall be correct and complete and that all instructions and Goods made available are in accordance with legislation and regulations. The Freight Forwarder shall not be obliged, but shall be entitled to examine whether the statements made are correct and complete.

Article 10. Handling of cases

All manipulations made to the Goods such as checking, sampling, taring, counting, weighing, measuring, etc. and accepting delivery under judicial expertise shall only take place at the explicit instruction of the Client and with the reimbursement of any costs incurred as a result.
Notwithstanding the provisions of paragraph 1, the Freight Forwarder shall be entitled, but not obliged, under its own authority and at the Client’s expense and risk, to take all measures which it deems necessary in the Client’s interest. Where possible, the Freight Forwarder shall consult with the Client in advance. If this is not possible, the Freight Forwarder shall take the measures which appear to be in the best interest of the Client and shall inform the Client as soon as reasonably possible of the measures taken and the associated costs.
The Freight Forwarder is not an expert on the Goods. The Freight Forwarder shall therefore not be liable for any damage arising out of or in connection with any statement made by the Freight Forwarder with regard to the condition, nature or quality of the Goods or with regard to the conformity of samples with the Goods.

Liability

Article 11. Liability

All Services are at the expense and risk of the Client.
Without prejudice to the provisions of Article 17, the Freight Forwarder shall not be liable for any damages, unless the Client proves that the damages were caused by fault or negligence on the part of the Freight Forwarder or its subordinates.
The Freight Forwarder’s liability shall in all cases be limited to 10,000 SDRs per event or series of events with one and the same cause of damage. Subject to the above limit in the event of damage, depreciation or loss of the Goods included in the Agreement, liability shall be further limited to 4 SDRs per kilogram damaged, reduced in value or lost gross weight.
The damage to be compensated by the Freight Forwarder shall never exceed the invoice value of the Goods to be proved by the Client, in the absence of which the market value to be proved by the Client shall apply at the time the damage occurred.
The Freight Forwarder shall never be liable for loss of profit, consequential loss or damage and immaterial damage, regardless of how these arise.
If damage arises during the execution of the Agreement for which the Freight Forwarder is not liable, the Freight Forwarder shall, subject to the provisions of Article 19 of these Terms and Conditions, endeavour to recover the damages to the Client from the person liable for them. The Freight Forwarder shall be entitled to charge the Client for the costs incurred during this process. If so requested, the Freight Forwarder shall relinquish to the Client its claims against Third Parties engaged by it for the performance of the Agreement.
The Client shall be liable vis-à-vis the Freight Forwarder for all damages – including but not limited to material damage, immaterial damage, consequential damage, fines, interest, as well as punishments and confiscation, including consequences on account of failure to discharge customs documents and claims for product liability and/or intellectual property rights or failure to do so in a timely manner – which the Freight Forwarder suffers directly or indirectly as a result of, inter alia, the Client’s non-fulfilment of any obligation under the Agreement or under applicable national and/or international laws and regulations, as a result of any incident within the Client’s sphere of risk, and as a result of the general fault or negligence of the Client and/or its subordinates and/or third parties engaged and/or employed by it.
The Client shall at all times indemnify the Freight Forwarder against claims by third parties, including subordinates of both the Freight Forwarder and the Client, relating to or arising from the damages referred to in the preceding paragraph.
The Freight Forwarder, which does not perform the transportation itself, shall, even if all-in or fixed rates have been agreed, not be liable as a carrier, but always as a carrier in accordance with Title 2, Section 3 of Book 8 of the Dutch Civil Code, during which liability shall be governed by these Terms and Conditions.
If the Freight Forwarder is sued by the Client outside the scope of the Agreement for damages caused during the performance of the Services, the Freight Forwarder shall not be liable any further than it would be under the Agreement.
Should the Freight Forwarder derive a defence against the Client in order to avoid its liability for the conduct of a Third Party or subordinate under the Agreement, a Third Party or subordinate may also invoke this defence if it is addressed by the Client on the basis of this conduct, as if the Third Party or subordinate were also a party in the Agreement.
If a Freight Forwarder is sued by a person who is not a party in the agreement or in an agreement of carriage concluded by or on behalf of the Freight Forwarder with respect to the damage to or loss of Goods or a delay in delivery, it shall not be liable to such person beyond what it would be under the Agreement.

Article 12. Force majeure

In the event of Force Majeure, the Agreement shall remain in force; however, the Freight Forwarder’s obligations shall be suspended for the duration of the Force Majeure.
All additional costs caused by Force Majeure, such as transport and storage costs, warehouse or site hire, demurrage and demurrage charges, insurance, removal etc., shall be borne by the Client and must be paid at the Freight Forwarder’s first request.

Article 13. Carrier refusal

If carriers refuse to sign for number, weight, etc., the Freight Forwarder shall not be responsible for the consequences thereof.

Mandatory law

Article 14. Agreement for the transport of goods

These Terms and Conditions are without prejudice to Sections 8:61 paragraph 1 of the Dutch Civil Code, 8:62 paragraphs 1 and 2 of the Dutch Civil Code, 8:63 paragraphs 1, 2 and 3 of the Dutch Civil Code.

Payment

Article 15. Payment terms

The Client shall be obliged to pay the Freight Forwarder the agreed fees and the other costs, freight, duties, etc. arising from the Agreement upon commencement of the Services, unless otherwise agreed.
The risk of exchange rate fluctuations is at the expense of the client.
The amounts referred to in paragraph 1 shall also be due if damage has occurred during the execution of the Agreement.
If, contrary to paragraph 1 of this Article, a credit term is applied by the Freight Forwarder, the Freight Forwarder is entitled to charge a credit limitation surcharge.
In the event of termination or dissolution of the agreement, all claims – including future claims – of the Freight Forwarder shall become immediately due and payable in full. In any event, all claims shall be immediately due and payable in full if: – the Client is declared bankrupt, the Client applies for suspension of payments or otherwise loses free access to all or a significant part of its assets; – the Client offers an arrangement to its creditors, is in default of compliance with any financial obligation towards the Freight Forwarder, ceases to operate its business or – in the case of a legal entity, partnership or company – if it is dissolved.
The Client is obliged, upon the Freight Forwarder’s first claim, to provide a security for what the Client owes or shall owe the Freight Forwarder. This obligation also exists if the Client itself has already had to provide or has provided a security in connection with the amount owed.
The Freight Forwarder is not obliged to provide a security for the payment of freight, duties, levies, taxes and/or other costs from his own resources, should this be requested. All consequences of not or not immediately complying with the Freight Forwarder’s request for an obligation to provide security shall be borne by the Client. If the Freight Forwarder has provided a security from its own resources, it shall be entitled to demand immediate payment of the amount for which security has been provided from the Client. Where possible, the Freight Forwarder shall consult with the Client in advance. If prior consultation is not possible in good time, the Freight Forwarder shall take the measures which appear to be in the best interests of the Client and shall inform the Client accordingly
In connection with the Agreement, the Client shall at all times be obliged to reimburse the Freight Forwarder for any amounts to be recovered at any time by any government, as well as any related penalties. The Client shall also reimburse the abovementioned amounts to the Freight Forwarder if the Freight Forwarder is sued for these amounts by a third party engaged by the Freight Forwarder in connection with the Agreement.
The Client shall at all times reimburse the Freight Forwarder for any amounts due as a result of incorrectly charged freight and costs, as well as any additional costs collected from the Freight Forwarder in connection with the order.
An appeal for claims settlement for payment of reimbursements arising from the Agreement, of costs owed by the Client for other reasons relating to the Services, or of further costs relating to the Goods, against claims by the Client or suspension of the abovementioned claims by the Client is not permitted.

Article 16. Allocation of payments and legal/non-statutory expenses

Payments on account shall first be deemed completed as a deduction from unsecured claims.
The Freight Forwarder shall be entitled to charge the Client non-statutory and legal costs for the collection of the claim. The non-statutory collection costs are due from the moment the Client is in default and amount to 10% of the claim with a minimum of €100.

Article 17. Securities

The Freight Forwarder shall be entitled to refuse to issue Goods, documents and monies which the Freight Forwarder has or shall have in its possession for whatever reason and for whatever purpose.
The Freight Forwarder shall have a right of retention with respect to all Goods, documents and monies which it has or shall have in his possession for whatever reason and for whatever purpose, for all claims which the Freight Forwarder has or shall have against the Client and/or the owner of the Goods, including claims which do not relate to those Goods.
The Freight Forwarder shall have a lien on all Goods, documents and monies which the Freight Forwarder has or shall have in its possession for whatever reason and for whatever purpose, for all claims which the Freight Forwarder has or shall have against the Client and/or the owner of the Goods.
The Freight Forwarder may regard anyone who entrusts Goods to the Freight Forwarder on behalf of the Client for the performance of Services as authorised by the Client to create a lien on those Goods.
If in the event of settlement a dispute arises over the amount due or if, in order to determine it, a calculation which cannot be carried out quickly is necessary, the Client or the person claiming delivery shall, at the Freight Forwarder’s option, be obliged to pay forthwith the part of the debt for which there is agreement and to provide security for the payment of the disputed part or the part for which the amount has not yet been determined.
The Freight Forwarder may also exercise the rights referred to in this article (right of lien, right of retention and right to refuse delivery) with respect to what is still owed to the Freight Forwarder by the Client in connection with previous orders and with respect to what is charged by way of cash on delivery.
The sale of any collateral shall take place at the expense of the Client in the manner stipulated by law or, if there is agreement in this respect, privately.
At the Freight Forwarder’s first request the Client shall provide security for costs paid or to be paid by the Freight Forwarder to third parties or authorities and other costs incurred or to be incurred by the Freight Forwarder on behalf of the Client, including expenses such as freight, harbour costs, duties, taxes, levies and premiums.
In the absence of documents, the Freight Forwarder shall not be obliged to provide indemnification or security. If the Freight Forwarder has provided indemnification or security, its Client shall be obliged to indemnify him against all consequences thereof.

Final provisions

Article 18. Termination of the Agreement

The Freight Forwarder may terminate the Agreement with immediate effect in the event that the Client:
- discontinues all or a significant part of its profession or business;
- loses free access to its assets or a significant part thereof;
- loses its legal personality, is dissolved or is effectively liquidated;
- is declared bankrupt;
- offers a settlement other than bankruptcy;
- applies for suspension of payment;
- loses possession of its assets or a substantial part thereof as a result of seizure due to attachment.
If the Freight Forwarder persistently fails in the performance of one or more of its obligations under the Agreement due to its own fault, the Client may, without prejudice to its right to compensation for damages suffered in accordance with Article 11, dissolve the Agreement in whole or in part with immediate effect, after:
- it has indicated to the Freight Forwarder, by registered letter, the reasons why the Freight Forwarder has failed to fulfil its obligations and has given it a period of at least thirty days to fulfil its obligations; and
- the Freight Forwarder has not fulfilled his obligations by the time that period expires.
If the Client continually fails to perform one or more of its obligations under the Agreement due to its own fault, the Freight Forwarder may, without prejudice to its right to compensation for loss or damage suffered, dissolve the Agreement in whole or in part with immediate effect, after it has set a deadline for the Client for performance by registered letter of at least fourteen days and the Client has not yet performed its obligations by the time that period expires. If the Freight Forwarder’s interest in the undisturbed operation of his business would be disproportionately harmed by setting such a time limit, it may also dissolve the Agreement without observing a deadline.
Neither of the Parties can dissolve the Agreement if the failure, in view of its special nature or minor importance, does not justify the dissolution and its consequences.

Article 19. Proceedings against third parties

Judicial and arbitration proceedings against third parties shall not be conducted by the Freight Forwarder unless it declares itself willing to do so at the Client’s request and at its own expense and risk.

Article 20. Limitation and expiry

Without prejudice to the provisions of paragraph 5 of this Article, any claim shall expire after nine months have passed.
Any claim against the Freight Forwarder shall expire after 18 months have passed.
The periods referred to in paragraphs 1 and 2 shall commence on the day following the date on which the claim became due and payable or the day following the date on which the injured party became aware of the damage. Without prejudice to the foregoing provisions, the abovementioned periods for claims with respect to damage, depreciation or loss of the Goods shall commence on the day following the date on which the Goods have been or should have been delivered by the Freight Forwarder.
In the event that the Freight Forwarder is sued by third parties, including any government authority, the periods mentioned in paragraphs 1 and 2 shall commence on the first of the following days:
- the day following the date on which the Freight Forwarder is sued by the third party;
- the day following the date on which the Freight Forwarder has paid the claim addressed to it.
If the Freight Forwarder or a third party engaged by it has lodged an objection and/or appeal, the periods mentioned in paragraphs 1 and 2 shall commence on the day following the date on which the decision on the objection and/or appeal became final.
Unless the situation referred to in paragraph 4 of this Article arises, if, after the period of limitations has expired, one of the parties is sued for what it owes to a third party, a new period of limitations of three months shall commence.

Article 21. Applicable law

All Agreements to which these Terms and Conditions apply are subject to Dutch law.
The location of claims settlement shall be the Freight Forwarder’s place of business.

Article 22. Citation of title

These General Terms and Conditions can be cited as ‘Dutch Forwarding Conditions’.

Disputes

Article 23. Arbitration

All disputes which may arise between the Freight Forwarder and the opposing party shall be decided by three arbitrators in accordance with the FENEX Arbitration Rules, excluding the ordinary court of competent jurisdiction. The FENEX Arbitration Rules and the current rates of the arbitration proceedings can be read and downloaded from the FENEX website. A dispute exists when one of the parties declares this to be 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 debt of which has not been disputed in writing by the other party within four weeks of the invoice date, to the competent Dutch court in the Freight Forwarder’s location of business. Likewise, the Freight Forwarder shall be at liberty to submit claims of an urgent nature to the competent Dutch court in the Freight Forwarder’s location of business during summary proceedings.
The arbitration shall be decided by three arbitrators, unless none of the parties has submitted a request for the appointment of arbitrators and the parties have jointly notified the FENEX Secretarial Office in writing of their wish to have the arbitration decided by the arbitrator jointly appointed by them, enclosing the written statement of the arbitrator jointly appointed by them that he or she accepts the appointment and the operation and validity of the FENEX Rules of Arbitration.
One of the arbitrators shall be appointed by the Chairman or Vice-Chairman of FENEX; the second shall be appointed by the Dean of the Bar Association of the district in which the abovementioned Freight Forwarder has its registered office; the third shall be appointed by both arbitrators so appointed by mutual agreement.
The Chairman of FENEX shall appoint a person with expertise in forwarding and logistics; the Dean of the Bar Association shall be requested to appoint a lawyer with expertise in forwarding and logistics; a third arbitrator shall preferably be a person with expertise in the branch of trade or business in which the Freight Forwarder’s opposing party operates.
Where applicable, arbitrators shall apply the provisions of international transport conventions, including the Convention on the Agreement for the International Carriage of Goods by Road (CMR).

FENEX, Dutch Organisation for Forwarding and Logistics

PortCityII, Waalhaven Z.z. 19, 3e etage, Havennummer 2235, 3089 JH Rotterdam

P.O. Box 54200, 3008 JE Rotterdam