TERMS AND CONDITION - General
Creative AirQ’be B.V.
Article 1 – Definitions
- General Terms and Conditions: These general terms and conditions.
- Company: Creative Structures B.V., KVK 86665146 (also trading under the name Creative Products), and/or Creative Lodge B.V., KVK 86665243, and/or Creative AirQ’be B.V., KVK 86666681.
- Customer: The counterparty of Company.
- Customer-specific Product: Products which are not part of the standard offering from Company, or Products from the standard offering with different dimensions.
- Agreement: The underlying agreement(s) between the Parties, all related agreements between the Parties, as well as any amendments and supplements thereto.
- The Parties: Company and the Customer together.
- Written: on paper, by email or fax, or by another electronic means.
- Products: all goods, articles, items and parts (to be) delivered by Company to the Customer in the context of executing an Agreement, as well as all related services (to be) delivered by Company.
- All definitions have the same meaning in the singular and plural, unless explicitly stipulated otherwise.
Article 2 – Applicability of the General Terms and Conditions
- These General Terms and Conditions apply to all proposals, offers, work, orders, agreements and deliveries of Products by or on behalf of Company.
- Deviations from these General Terms and Conditions are only possible if explicitly agreed in writing by the Parties.
- The Parties explicitly exclude the applicability of supplementary and/or different general terms and conditions of the Customer or of third parties.
- When the Agreement does not involve ‘consumer purchase’ within the meaning of Article 7:5 paragraph 1 of the Dutch Civil Code, the provisions of Title 1 of Book 7 of the Dutch Civil Code do not apply to the present legal relationship, unless expressly provided otherwise in the Agreement or in these General Terms and Conditions.
Article 3 – Proposals and offers
- Proposals and offers by Company are non-binding unless the Parties have explicitly agreed otherwise in writing.
- A proposition or proposal is applicable for a maximum of 30 (thirty) days, unless a different deadline for acceptance is stated in the proposition or the proposal.
- If the proposition or the proposal is not accepted by the set deadline, it will automatically become invalid.
- Offers and proposals do not apply to repeat orders or future orders unless the Parties have explicitly agreed otherwise in writing.
Article 4 – Acceptance
- Upon acceptance of a non-binding proposal or offer, Company reserves the right to withdraw the proposal or the proposition within 3 (three) days after receiving the acceptance, without the Customer being able to derive any rights as a result.
- A verbal acceptance by the Customer is only binding for Company after the Customer has confirmed it in writing.
Article 5 – Prices
- All of Company’s prices are in euros, Ex Works (EXW) and exclude VAT and any other costs such as administration costs, (import) levies and travel, forwarding, insurance, or transport costs, unless the Parties have explicitly
agreed otherwise in writing.
- All of Company’s prices are subject to programming, printing, typesetting and typing errors. No liability is accepted for the consequences of such errors.
- Company can always change any of the prices for its Products, as published on its website or elsewhere.
Article 6 – Payment
- Invoices must have been paid within 30 (thirty) days after the invoice date, unless the Parties have explicitly agreed otherwise in writing.
- The Customer will pay without any invocation of suspension or set off by transferring the payable amount to the account number stated by Company.
- The Customer relinquishes its right to set off a payment to Company against a claim it has vis-à-vis Company.
- If the Customer does not pay by the agreed deadline, Company will be entitled to charge interest at 1% per month as from the day that the Customer is in default, or a part thereof, unless the statutory commercial interest rate is higher, in which case that amount will apply.
- If the Customer is in default, it will also owe Company extrajudicial collection costs and any compensation.
- The collection costs will be calculated on the basis of the Extrajudicial Collection Costs (Fees) Decree [Besluit vergoeding voor buitengerechtelijke incassokosten].
- If the Customer fails to pay on time, Company can suspend its obligations until the Customer has fulfilled its payment obligation.
- The provisions of paragraph 7 (seven) also apply to obligations on account of other agreements with the Customer.
- In the event of liquidation, bankruptcy, attachment or suspension of payments on the part of the Customer, all of Company ‘s claims vis-à-vis the Customer will become immediately due and payable.
Particle 7 – Right to claim
- As soon as the Customer is in default, Company will be entitled to invoke the right to claim with regard to Products delivered to the Customer which have not been paid for.
- Company can invoke the right to claim by sending a written notification.
- As soon as the Customer has been informed that the right to claim has been invoked, the Customer must return the Products to which this relates to Company immediately.
- The costs for recovering or returning the Products are for the Customer’s account.
Article 8 – Right to suspend performance
- The Customer relinquishes the right to suspend fulfilment of any commitment resulting from an Agreement.
Article 9 – Retention of title
- All Products (to be) delivered will continue to be exclusively owned by Company until the Customer has completely fulfilled all its liabilities and payment obligations with regard to Company, including claims relating to failure to fulfil.
- Until that time Company can invoke retention of title and claim back the goods.
- Before ownership has transferred to the Customer, the latter may not sell, alienate, pledge or encumber the Products with any other right.
- In the event that third parties attach the Products delivered subject to a retention of title, or wish to establish or exercise any rights on them, the Customer is obliged to inform Company immediately.
- The Customer is obliged to store the Products that have been delivered under retention of title with due care and clearly recognisable as being the property of Company. The Customer must always do all that can be reasonably
expected of it to safeguard Company’s ownership rights.
- If Company invokes retention of title, the Agreement will be regarded as dissolved and Company will be entitled to claim compensation, lost profit and interest.
Article 10 – Delivery
- Deliveries will take place Ex Works, unless the Parties have explicitly agreed otherwise in writing.
- If such is required given the circumstances, Company will be entitled to carry out part deliveries of a Product.
- If the Customer fails to pay on time, a period of creditor’s default will commence, as a consequence of which Company will be able to suspend delivery.
- The Customer must ensure that the actual delivery of the Products it has ordered can take place on time. In the event of damage during transportation the Customer must inform the transport company and Company directly and state such on the delivery document.
- The transport costs are for the Customer’s account, unless the Parties have explicitly agreed otherwise in writing.
Article 11 – Delivery deadline
- The delivery deadlines provided by Company are an indication and, if exceeded, do not give the Customer any right to dissolution, compensation, or any other right, unless the Parties have explicitly agreed otherwise in writing.
- The delivery period starts after Company has confirmed the proposal to Company, which the Customer signed as approved, to the Customer in writing.
- Exceeding the delivery deadline provided does not give the Customer any right to compensation, nor the right to dissolve the Agreement.
Article 12 – Risk and storage
- As from the moment that Products are ready for transportation at the premises of Company or its suppliers (Ex Works) and this has been communicated in writing to the Customer, said Products will be for the Customer’s account and risk.
- If the Customer only takes receipt of ordered Products after the agreed delivery date, the risk of any loss of quality will be entirely for the Customer.
- Any extra costs as a consequence of premature or delayed receipt of Products will be entirely for the Customer’s account.
Article 13 – Complaints
- The Customer must examine a Product delivered by Company for any shortcomings as soon as possible.
- If a delivered Product does not reasonably meet the expectations of the Customer based on the Agreement, the Customer can inform Company to that effect within 8 (eight) days after observing the shortcomings.
- When submitting the complaint, the Customer will provide a detailed description of the shortcoming, including image material, so that Company is able to respond adequately.
Article 14 – Guarantee
- Products are to be delivered ‘as is’. Company does not provide any guarantee other than those explicitly described in the Agreement or these General Terms and Conditions. Consequently, guarantees for Customer-specific Products are, by their nature, not possible.
- With due regard for the stipulations below, Company guarantees vis-à-vis the Customer the sound quality of the Products delivered by Company, such in the sense that all defects to these items, which the Customer discovers within 8 (eight) hours after starting to use the Product and which are reported to Company by the same deadline and which the Customer proves arose during the same period as a consequence of poorly designed construction by Company, or as a consequence of poor execution by Company of that construction, or of poor materials delivered by Company, will be rectified free of charge by Company through replacement of the faulty parts. Exceeding the deadlines referred to above will cause any claim against Company in relation to the defects to lapse.
- Whether a Product is faulty as referred to in paragraph 2 will be at Company’s discretion.
- If, on the grounds of a detailed description of the Product, including image material, Company judges that there is a reason to assume that the Product was indeed
faulty, Company will inform the Customer in writing that the Customer has the option of returning the Product.
- The Customer is fully responsible for correctly returning the Product in appropriate packaging. Company will not reimburse any costs for returning a Product and these costs will be borne entirely by the Customer.
- Company reserves the right to inspect a returned Product upon receipt before establishing whether it is faulty. If damage is established during this inspection which did not exist upon delivery by Company, this damage will be for the Customer’s account.
- Company will not accept any liability and will not give any guarantee for defects as a consequence of normal wear and tear, or incorrect storage or use of items, and/or use contrary to Company operation and maintenance instructions. The same applies to defects which arise as a consequence of faulty design, construction or material which was prescribed or delivered by the Customer, actions by or on the instructions of the Customer, or due to the following of maintenance instructions, as well as to discolouration which does not affect possible usage.
- If, in order to fulfil its guarantee obligation, Company replaces items or parts, the replaced items or parts will continue to be owned by Company.
- If the Customer does not fulfil any obligation it has as a result of the Agreement concluded with Company, or does not do so properly or on time, Company will not be obliged to fulfil any guarantee whatsoever. If, without prior written approval by Company, the Customer proceeds to disassemble, repair or perform any other work relating to the item, or engage others to do so, any claim on account of the guarantee will lapse.
- Legal action relating to a guarantee must be initiated within 1 (one) year after a timely claim, under pain of cancellation.
Article 15 – Notice of default
- The Customer must communicate any notice of default in writing to Company.
- It is the Customer’s responsibility to ensure that a notice of default reaches Company (on time).
Article 16 – Intellectual property
- All intellectual property rights relating to the Products delivered are vested in Company.
- The Customer must completely and unconditionally respect the intellectual property rights in relation to the Products delivered.
- If the Customer acts in contradiction of Company’s intellectual property rights, the Customer will be liable for all damage (including consequential damage) which Company suffers now or in the future.
Article 17 – Liability
- Company is only liable for any damage which the Customer or a third party suffers if and insofar as said damage is caused by intent or deliberate recklessness on the part of Company.
- The Customer will indemnify and compensate Company for any damage and costs of third parties that, for whatever reason, claim have suffered damage, or will suffer damage, as a consequence of, or caused by, the Products or the execution of the Agreement, unless Company is liable for this damage suffered by third parties on the grounds of the Agreement or these General Terms and Conditions. The Customer will also indemnify Company against all costs and damage which Company suffers due to third-party claims against Company, for which Company’s liability vis-à-vis the Customer is excluded in these General Terms and Conditions or the Agreement.
- Customer ensures that the Product(s) will be placed and built on a flat and solid surface.
- Company is not liable for any accidents or damage caused by the Products delivered by Company, for example by incorrect or inexpert usage, overloading, erection of the Product on unsuitable ground, faulty commissioning, maintenance or servicing by the Customer or third parties or usage which is contrary to the instructions for use.
- Company is not liable for any damage caused by electrical outlets, power lines, gas lines, or water lines to which Products are connected to.
- Company is not liable for any damage from normal wear and tear due to frequent use.
- Company is not liable for any damage resulting from discoloration of the Products due to the effect of light, mechanical and chemical or biological external influences.
- Company is not liable for any lack of (local) certification that is required for the Products in the country the Products are used by Customer.
- The Customer is responsible, in all circumstances, for the correctness and
completeness of the details and documents it supplies. Company is never liable for any damage which was (partly) caused due to the details and documents supplied by the Customer being incorrect and/or incomplete, or due to following the instructions given by the Customer. The Customer indemnifies Company against all claims in this respect.
- The Customer indemnifies Company against all claims pursuant to product liability legislation, or liability pursuant to similar foreign legislation whether or not these are based on EC Directives relating to product liability in relation to defective goods.
- If, on the basis of a statutory obligation which also includes an obligation resulting from European legislation and regulations, Company is required to remove the Products (to be) delivered from the market, the Customer will be obliged to cooperate fully without being entitled to any compensation. In that case the Agreement will be regarded as dissolved.
- If Company is liable for damage suffered by the Customer, the damage which Company is obliged to compensate will never exceed the invoice value of the order placed in relation to which the defect was the cause of the damage. Company is never liable for indirect damage including, but not exclusively, consequential damage, lost profit, missed turnover, missed savings, reputational damage or damage to third parties.
- If Company is liable, this liability will be limited to the amount paid out via a liability insurance to Company and, in the absence of (full) payment by an insurance company of the amount of the claim, the liability will be limited to the (part of the) invoice amount to which the liability relates.
- All illustrations, photos, colours, drawings, descriptions on the website or in a
catalogue are only an indication and an approximation and cannot provide any grounds for compensation and/or (partial) dissolution of the Agreement and/or the
suspension of any obligation.
- Any entitlement of the Customer to compensation from Company will lapse, in any event, 6 (six) months after the event which resulted directly or indirectly in the liability. The provisions of Article 6:89 of the Dutch Civil Code are still applicable
Article 18 – Right to dissolution
- Company is entitled to dissolve the Agreement with the Customer extrajudicially and without any obligation to pay compensation and without prejudice to any additional rights it might be entitled to, if the Customer fails to fulfil its obligations resulting from the agreement in full or on time, or if Company has found out about circumstances which give it valid grounds to fear that the Customer will not properly fulfil its obligations.
- All the grounds for dissolution in these General Terms and Conditions are fully applicable in addition to the provisions of paragraph 1.
- If Company dissolves the Agreement, any claims which Company might have
against the Customer will become immediately due and payable.
Article 19 – Force majeure
- Supplementary to the provisions of Article 6:75 of the Dutch Civil Code a shortcoming by Company in the fulfilment of any obligation with regard to the Customer cannot be attributed to Company in a situation which is independent of the will of Company, as a result of which the fulfilment of its obligations with regard to the Customer is wholly or partially hindered, or as a result of which Company cannot reasonably be expected to fulfil its obligations.
- The force majeure situation referred to in paragraph 1 means, in any event – but not exclusively – data loss as a consequence of a computer malfunction, a virus infection or computer intrusion by third parties, machine breakdown and other calamities which hinder or restrict Company’s business operations, Internet and power failure, weather conditions, pandemics, theft, fire, floods, landslides, terrorism, third-party restrictions, illness on the part of the natural person which executes the Agreement on behalf of Company, transport restrictions, strikes, riots, war or threats of war, loss of or damage to Products during their transportation, the failure to deliver or late delivery of Products to Company by its suppliers, exports and import bans, fires, disruptions and accidents in the business of Company or its supplier(s), the burning of the means of transport of Company, of its supplier(s) or of a transport company that has been engaged, the occurrence of disruptions thereto, involvement in related accidents and measures imposed by any domestic, foreign or international government.
- In the event that Company is hindered by force majeure from wholly or partially fulfilling one or more of the obligations on account of the Agreement, Company will be entitled to suspend its obligations without legal intervention.
- As from the moment that a situation of force majeure has lasted at least 30 (thirty) calendar days, both Parties may wholly or partially dissolve the Agreement in writing.
- In the event that, at the time at which the force majeure commences, Company has partially fulfilled its obligations vis-à-vis the Customer which result from the Agreement and has partially performed work for the benefit of the Customer and/or has delivered some Products, Company will be entitled to invoice the items in question separately. The Customer will then be obliged to pay the respective Company invoice.
- In a force majeure situation Company will not owe any compensation/payment, not even if it has any benefit as a consequence of the force majeure situation.
- The Parties mutually declare that the consequences of coronavirus do not
constitute a circumstance which can be attributed to Company.
Article 20 – Changing the Agreement
- If, after concluding the Agreement, it transpires that it is necessary for its execution to change or supplement its content, the Parties will amend it accordingly on time on the basis of mutual consultation.
Article 21 – Amendment of the General Terms and Condition
- Company is entitled to amend or supplement these General Terms and Conditions.
- The applicable version will always be the last version which applied at the time the applicable Agreement was drawn up.
Article 22 – Transfer of rights
- The Customer’s rights resulting from an Agreement between the Parties cannot be transferred to the parties without Company’s prior written permission.
- This provision applies as a stipulation with effect under property law as referred to in Article 3:83, paragraph 2 of the Dutch Civil Code.
Article 23 – Effect of nullity or voidability
- If one or more provisions of these General Terms and Conditions turn out to be invalid or null and void, the other provisions of these General Terms and Conditions will continue to apply in full.
- The invalid or null and void provision of these General Terms and Conditions will be replaced by a valid provision, whereby the goal and purport of the invalid null and void provision will be observed as much as possible.
Article 24 – Personal data
- The Parties will fulfil all the relevant obligations on account of the applicable legislation and regulations in the field of the protection of personal data, in particular the General Data Protection Regulation and the relevant national legislation implementing that regulation in the member states of the European Union which are applicable with regard to the Agreement.
- Insofar as Company processes personal data from, or on behalf of, the Customer within the framework of the Agreement as a ‘processor’ within the meaning of Article 4(8) of the General Data Protection Regulation for the Customer as a ‘controller’ within the meaning of Article 4(7) of the General Data Protection Regulation, the Parties will conclude a data processing agreement on the basis of a data processing agreement proposed by Company for the processing of such personal data.
- If Company acts as a processor of the Customer’s personal data, it will only be liable for any damage if Company has not acted in accordance with the applicable legislation and regulations in the field of protecting personal data, including the general data protection regulation and the relevant national legislation implementing that regulation in the member states of the European Union, or if it has acted outside, or in contradiction of, the Customer’s legal instructions. If Company acts as a processor of the Customer’s personal data, it will not be liable if the circumstance causing the damage cannot be attributed to it, or a third party it has engaged, or if it has otherwise been agreed that Company and the third party it has engaged is not liable.
- The restriction of liability as included in Article 17 is also applicable to any liability of Company in connection with the processing of personal data.
- Without prejudice to paragraphs 3 and 4, the Customer indemnifies Company
against all claims, liabilities, costs (including but not limited to the legal costs), damage and loss which results from a violation by the Customer of its obligations on account of this article.
- Supplementary to the previous paragraphs, Company will process the Customer’s personal data collection in a Privacy Statement which can be consulted at https://creativestructuresworldwide.com/.
Article 25 – Applicable law and competent court
- The legal relationship between the Customer and Company is governed exclusively by Dutch law.
- Disputes between Company and the Customer will be submitted exclusively to the competent court in Breda
TERMS AND CONDITION - Logistics
Article 1 – Definitions
In these Conditions, the following terms shall have the following meanings:
- Third party/parties: all of those persons, who are not employees, with whom the Freight Forwarder has an undertaking on behalf of the Client, irrespective of whether the Freight Forwarder has the undertaking in its own name or in the name of the Client;
- Services: all activities and work, in any form and by whatever name, including those performed by the Freight Forwarder for or on behalf of the Client;
- Freight Forwarder: the natural or legal person who performs Services on behalf of the Client and who uses these Conditions; this person is not exclusively understood to be the Freight Forwarder referred to in Book 8 of the Dutch Civil Code;
- Client: every natural or legal person who provides the Freight Forwarder with an order to perform Services and concludes to that effect the Agreement, irrespective of the agreed method of payment;
- Agreement: the agreement entered into by the Freight Forwarder and Client in respect of the Services to be performed by the Freight Forwarder, of which these Conditions form part;
- Force majeure: all circumstances that the Freight Forwarder has reasonably been unable to avoid and in respect of which the Freight Forwarder has reasonably been unable to prevent the consequences.;
- Conditions: these Dutch Forwarding Conditions.
- Good/Goods: the goods to be made available or made available to the Freight Forwarder, its agent or Third Parties by or on behalf of the Client, for the purpose of executing the Agreement.
Article 2 – Scope
- These Conditions govern all offers, agreements, legal acts and actual acts relating to Services to be performed by the Freight Forwarder, insofar as these are not subject to imperative law. These Conditions apply to the legal relationship between the parties, including once the Agreement has ended.
Insofar as any provision in these Conditions is void or otherwise unenforceable, this does not affect the validity of the other provisions in these Conditions. Furthermore, considered to be applicable is such a stipulation (legally permissible) that is the closest to the purport of the void or voided stipulation.
- In case the English translation differs from the Dutch text, the latter will prevail.
Article 3 – Third Parties
The Client gives the Freight Forwarder free rein to engage the services of Third Parties to execute the Agreement, and to accept the (general) terms and conditions of those Third Parties at the Client’s expense and risk, unless agreed otherwise with the Client. At the Client’s request, the Freight Forwarder is obliged to provide (a copy of) the (general) terms and conditions under which it has entered into a contract with those Third Parties.
Article 4 – Conclusion of the Agreement
- All offers made by the Freight Forwarder are non-binding.
- Agreements, as well as amendments of and additions to these agreements, shall only become effective if and insofar as the Freight Forwarder has confirmed these in writing or the Freight Forwarder has started to perform the Services.
Article 5 – Customs work
- The provision of information to the Freight Forwarder, that is reasonably provided to enable customs formalities to be carried out, shall imply an order, unless otherwise agreed in writing.
- This order is accepted by the Freight Forwarder by means of an explicit written confirmation or by the Freight Forwarder starting to carry out the customs formalities. The Freight Forwarder is never obliged to accept an order to carry out customs formalities.
- If the Freight Forwarder becomes familiar with information or conditions which would indicate that the Client has not complied with article 9 paragraph 3 of these Conditions (has provided incorrect and/or incomplete information and/or documents) and on the basis of which the Freight Forwarder has not accepted the order to carry out customs formalities, the Freight Forwarder is at all times entitled to end this order and not carry this out (any further), which may or may not be set out in an additional agreement and/or authorisation, without any obligation to pay damages.
Article 6 – Remunerations
- All prices quoted shall be based on the prices that apply at the time of the offer (quotation). If between the time of the offer and the time of execution of the Agreement, one or more of the cost factors (including fees, wages, the cost of social measures and/or laws, freight prices and exchange rates, etc.) increase, the Freight Forwarder is entitled to pass on this increase to the Client. The Freight Forwarder must be able to prove the changes.
- If the Freight Forwarder charges all-in or fixed rates, these rates shall be deemed to include all costs that, in the normal process of handling the order, are for the account of the Freight Forwarder.
- Unless provided otherwise, all-in or fixed rates shall not include at any rate: duties, taxes and levies, consular and attestation fees, costs of preparing bank guarantees and insurance premiums.
- In the event of circumstances that are of such a nature that when concluding the Agreement it was not deemed necessary to take into account the risk that they could occur, that cannot be attributed to the Freight Forwarder and that significantly increase the costs of the Services being performed, the Freight Forwarder is entitled to an additional payment. Where possible, the Freight Forwarder shall consult in advance with the Client. In such a case, the additional payment shall consist of the additional costs that the Freight Forwarder has had to incur in order to perform the Services, plus an additional payment – deemed fair and equitable – for the services to be performed by the Freight Forwarder.
- Expenses of an exceptional nature and higher wages arising whenever Third Parties, by virtue of any provision in the relevant agreements between the Freight Forwarder and Third Parties, load or unload goods in the evening, at night, on Saturdays or on Sundays or public holidays in the country where the Service is being carried out, shall not be included in the agreed prices, unless specifically stated. Any such costs shall therefore be remunerated by the Client to the Freight Forwarder.
- Other than in cases of intent or deliberate recklessness on the part of the Freight Forwarder, in the event of the loading and/or unloading time being inadequate, all costs resulting therefrom, such as demurrage, waiting times, etc. shall be borne by the Client, even when the Freight Forwarder has accepted the bill of lading and/or the charter party from which the additional costs arise without protestation. The Freight Forwarder must make every effort to avoid these costs.
Article 7 – Insurance
- Insurance of any kind shall only be arranged at the Client’s expense and risk following acceptance by the Freight Forwarder of the Client’s explicit written order, in which the Client clearly specifies the goods to be insured and the value to be insured. A mere statement of the value or the interest is not enough.
- The Freight Forwarder will take out the insurance (or arrange for this to be taken out) through an insurer / insurance broker / insurance intermediary. The Freight Forwarder is neither responsible nor liable for the solvency of the insurer / insurance broker / insurance intermediary.
- When the Freight Forwarder uses equipment, such as derricks, cranes, fork-lift trucks and other machines to perform the Services that do not form part of its usual equipment, the Freight Forwarder shall be entitled to take out insurance at the Client’s expense to cover the Freight Forwarder’s risks arising from the use of such equipment. Where possible, the Freight Forwarder shall consult in advance with the Client about the use of such equipment. If no timely prior consultation is possible, the Freight Forwarder will take the measures that seem to it to be in the best interests of the Client and shall inform the Client of that.
Article 8 – Execution of the Agreement
Delivery date, method of delivery and route
- The mere statement by the Client of a time for delivery shall not legally bind the Freight Forwarder. Arrival times are not strict deadlines and are not guaranteed by the Freight Forwarder, unless agreed otherwise in writing.
- If the Client has not given any specific instructions about this with its order, the method of delivery and route shall be at the Freight Forwarder’s discretion and the Freight Forwarder may at all times accept the documents customarily used by the firms it contracts for the purpose of carrying out its orders
Article 9 – Commencement of the Services
- The Client is obliged to deliver the Goods to the Freight Forwarder or a Third Party in suitable packaging to the agreed location, at the agreed time and in the manner agreed.
- In respect of the Goods, as well as in respect of the handling thereof, the Client is obliged to supply the Freight Forwarder in good time with any details and documents that it knows or ought to know, are of importance to the Freight Forwarder. If the Goods and/or activities are subject to governmental provisions, including customs and excise regulations and tax rules, the Client must provide all information and documents, in good time, that are required by the Freight Forwarder in order to comply with those provisions.
- The Client guarantees that the information and documents that it provides are correct and complete and that all instructions and Goods that are made available comply with current legislation. The Freight Forwarder shall not be obliged but shall be entitled to investigate whether the information provided is correct and complete.
Article 10 – Goods Handling
- All operations such as inspecting, sampling, taring, tallying, weighing, measuring, etc. and receiving goods subject to appraisal by a court-appointed expert, shall take place only on the Client’s specific instructions and upon remuneration of the costs thereof.
- Notwithstanding the provisions in paragraph 1, the Freight Forwarder shall be entitled, but not obliged, on its own authority and at the Client’s expense and risk, to take all such actions as it deems necessary in the Client’s interest. Where possible, the Freight Forwarder shall consult in advance with the Client. If this is not possible, the Freight Forwarder shall take the measures that seem to it to be in the best interests of the Client and shall inform the Client of the measures taken and the associated costs, as soon as this is reasonably possible.
- The Freight Forwarder is not an expert with respect to the Goods. The Freight Forwarder shall therefore in no way be liable for any damage that arises from or that is related to any notification by the Freight Forwarder with regard to the state, nature or quality of the Goods; nor shall the Freight Forwarder be under any obligation to ensure that the shipped Goods correspond with the samples.
Article 11 – Liability
- All Services shall be at the Client’s expense and risk.
- Without prejudice to the provisions in Article 17, the Freight Forwarder shall not be liable for any damage whatsoever, unless the Client can prove that the damage has been caused by fault or negligence on the part of the Freight Forwarder or the latter’s employees.
- The Freight Forwarder’s liability shall in all cases be limited to 10,000 SDR per occurrence or series of occurrences with one and the same cause of damage. Taking into account the aforementioned limit, in the event of damage, loss of value or loss of the Goods in the Agreement, the liability shall be limited to 4 SDR per kilogram of damaged or devalued Goods or lost gross weight.
- The loss to be indemnified by the Freight Forwarder shall never exceed the invoice value of the Goods, to be proved by the Client, in default whereof the market value, to be proved by the Client, at the time when the damage occurred, shall apply.
- The Freight Forwarder shall never be liable for lost profit, consequential loss and immaterial damage, however that occurred.
- If during the execution of the Agreement damage occurs for which the Freight Forwarder is not liable, taking into account the provisions in Article 19 of these Conditions, the Freight Forwarder shall make efforts to recover the Client’s damage from the party that is liable for the damage. The Freight Forwarder shall be entitled to charge to the Client the costs incidental thereto. If so requested, the Freight Forwarder shall waive in the Client’s favour its claims against Third Parties whose services it engaged for the purpose of executing the Agreement.
- The Client shall be liable vis-a-vis the Freight Forwarder for any damage – including but not limited to material and immaterial damage, consequential damage, fines, interest, as well as penalties and confiscation, including damage on account of non-clearance or tardy clearance of customs documents and claims due to product liability and/or intellectual property rights – suffered directly or indirectly by the Freight Forwarder as a result of (amongst other things) the non-compliance by the Client of any obligation pursuant to the Agreement or pursuant to applicable national and/or international legislation, as a result of any incident that is within the control of the Client, as well as a result of the fault or negligence in general of the Client and/or its employees and/or Third Parties whose services the Client engages and/or Third Parties that work on behalf of the Client.
- The Client shall indemnify the Freight Forwarder at all times against third-party claims, including employees of both the Freight Forwarder and the Client, connected with or ensuing from the damage referred to in the previous paragraph.
- Even where all-in or fixed rates, as the case may be, have been agreed, the Freight Forwarder that is not a carrier but always a party that arranges transportation in accordance with title 2, section 3 of Book 8 of the Dutch Civil Code, shall be liable, whereby the liability is governed by these Conditions.
- If a claim is made against the Freight Forwarder by the Client outside of the Agreement in respect of the damage that occurs during the execution of the Services, then the Freight Forwarder’s liability shall be limited to the liability under the Agreement.
- If to defend its liability for conduct of a Third Party or employee the Freight Forwarder derives a defence from the Agreement vis-a-vis the Client, then if it is held liable by the Client under this defence, a Third Party or employee can invoke this defence as if the Third Party or employee were also party to the Agreement.
- In the event a Freight Forwarder is held liable outside of the Agreement with regard to damage to or loss of a Good or delay in delivery by someone who is not party to the Agreement or a transport agreement entered into by or on behalf of the Freight Forwarder, then the Freight Forwarder has no further liability than it would have under the Agreement.
Article 12 – Force majeure
- In the event of Force Majeure, the Agreement shall remain in force; the Freight Forwarder’s obligations shall, however, be suspended for the duration of the Force Majeure.
- All additional costs caused by Force Majeure, such as transport and storage charges, warehouse or yard rental, demurrage and standing fees, insurance, removal, etc., shall be borne by the Client and shall be paid to the Freight Forwarder at the latter’s first request.
Article 13 – Refusal of carriers
If the carriers refuse to sign for quantity, weight, etc., the Freight Forwarder shall not be liable for the consequences thereof.
Article 14 – The Agreement to organise transportation of goods
These Conditions shall not affect articles 8:61 paragraph 1, 8:62 paragraphs 1 and 2 and 8:63 paragraphs 1,2 and 3 of the Dutch Civil Code.
Article 15 – Payment conditions
- The Client shall pay to the Freight Forwarder the agreed remunerations and other costs, freights, duties, etc. ensuing from the Agreement upon commencement of the Services, unless agreed otherwise.
- The risk of exchange rate fluctuations shall be borne by the Client.
- The amounts referred to in paragraph 1 shall also be due if damage has occurred during the execution of the Agreement.
- If, in contravention of paragraph 1 of this article, the Freight Forwarder allows deferred payment, the Freight Forwarder shall be entitled to make a credit limit charge.
- In the event of termination or dissolution of the Agreement, all claims of the Freight Forwarder – including future claims – shall be due and payable forthwith and in full. All claims shall be due and payable forthwith and in full in any case, if:
– the bankruptcy of the Client is announced, the Client applies for suspension of payment or otherwise loses the unrestricted disposition over a significant part of its assets;
– the Client offers a settlement to his creditors, is in default of fulfilling any financial obligation owed to the Freight Forwarder, ceases to trade or – where the Client is a legal entity or corporate body – if the legal entity or the corporate body is dissolved.
- Upon first demand by the Freight Forwarder, the Client must provide security for the amount owed or that shall be owed by the Client to the Freight Forwarder. This obligation remains if the Client also has to provide or has provided security in relation to the amount owed.
- The Freight Forwarder shall not be obliged, from its own means, to provide security for the payment of freight, duties, levies, taxes and/or other costs should the same be demanded. All the consequences of non-compliance or of failure to comply forthwith with a demand from the Freight Forwarder to provide security shall be borne by the Client.
If the Freight Forwarder has provided security from of its own means, it may demand that the Client immediately pays the amount for which security has been provided.
Where possible, the Freight Forwarder shall consult in advance with the Client. If no timely prior consultation is possible, the Freight Forwarder will take the measures that seem to it to be in the best interests of the Client and shall inform the Client of that.
- The Client shall at all times be obliged to indemnify the Freight Forwarder for any amounts to be levied or additionally demanded by any authority in connection with the Agreement, as well as any related fines imposed upon the Freight Forwarder.
The Client shall also reimburse the said amounts to the Freight Forwarder if a Third Party brought in by the Freight Forwarder demands payment for the said amounts within the framework of the Agreement.
- The Client shall at all times indemnify the Freight Forwarder for any amounts, as well as for all additional costs that may be claimed or additionally claimed from the Freight Forwarder in connection with the order, as a result of incorrectly levied freight and costs.
- It shall not be permissible for claims receivable to be set off against payment of remunerations arising from the Agreement on any other account in respect of the Services owed by the Client or of other costs chargeable against the Goods with claims of the Client or suspension of the aforementioned claims by the Client.
Article 16 – Allocation of payments and judicial and extrajudicial costs
- Cash payments shall be deemed in the first place to have been made on account of non-preferential debts.
- The Freight Forwarder shall be entitled to charge to the Client extrajudicial and judicial costs for collection of the claim. The extrajudicial collection costs are owed as from the time at which the Client is in default and these amount to 10% of the claim, with a minimum of € 100.00.
Article 17 – Sureties
- The Freight Forwarder has the right to refuse the delivery of Goods, documents and monies, that the Freight Forwarder has or will obtain, for whatever reason and with whatever destination, in respect of another party.
- The Freight Forwarder has a right of retention in respect of all Goods, documents and monies that the Freight Forwarder holds or will hold for whatever reason and with whatever destination, for all claims the Freight Forwarder has or might have in future on the Client and/or the owner of the Goods, including in respect of all claims which do not relate to those Goods.
- The Freight Forwarder has a right of lien in respect of all Goods, documents and monies that the Freight Forwarder holds or will hold for whatever reason and with whatever destination, for all claims the Freight Forwarder has or might have in future on the Client and/or the owner of the Goods.
- The Freight Forwarder shall regard anyone who, on behalf of the Client, entrusts Goods to the Freight Forwarder for performing Services, as the Client’s agent for creating a lien on those Goods.
- If when settling the invoice a dispute arises over the amount due or if there is need for a calculation to be made for the determination of what is due that cannot be made quickly, then at the discretion of the Freight Forwarder, the Client or the party that demands delivery at the request of the Freight Forwarder is obliged to pay forthwith the part which the parties agree is due and to furnish security for the part in dispute or for the part for which the amount has not yet been established.
- The Freight Forwarder can also exercise the rights outlined in this article (right of lien, right of retention and right to refuse delivery) for what is still owed to it by the Client in relation to previous orders and for any amounts payable by way of delivery C.O.D. in respect of the Goods.
- The sale of any security shall take place at the account of the Client in the manner prescribed by law or – if there is consensus thereon – privately.
- At the Freight Forwarder’s first request, the Client shall furnish security for costs paid or to be paid by the Freight Forwarder to Third Parties or government authorities and other costs that the Freight Forwarder incurs or anticipates incurring, on behalf of the Client, including freight, port costs, duties, taxes, levies and premiums.
- In the absence of documents, the Freight Forwarder is not obliged to give indemnities or furnish securities. If the Freight Forwarder has given indemnification or furnished security, the Client is obliged to indemnify the Freight Forwarder from all consequences thereof.
Article 18 – Final provisions
Termination of the Agreement
- The Freight Forwarder can terminate the Agreement with immediate effect in the event the Client:
– discontinues its profession or business largely or in full;
– loses the power to dispose of its assets or a substantial part thereof;
– loses its legal personality, is dissolved or effectively liquidated;
– is declared bankrupt
– offers an agreement excluded from the bankruptcy proceedings;
– applies for moratorium on payment;
– loses the power to dispose of its goods or a substantial part thereof as a result of seizure.
- If the Freight Forwarder consistently imputably fails to fulfil one or more of its obligations under the Agreement, without prejudice to its right to compensation for any damage that may have been suffered in accordance with article 11, the Client can dissolve the Agreement with immediate effect in full or in part after:
– it has notified the Freight Forwarder by registered letter with reasons how the Freight Forwarder has failed to comply, stipulating a period of time of at least thirty days for fulfilment of the obligations, and;
– on expiry of that deadline, the Freight Forwarder has not yet fulfilled the obligations.
- If the Client consistently imputably fails to fulfil one or more of its obligations under the Agreement, without prejudice to its right to compensation for any damage that may have been suffered, the Freight Forwarder can dissolve the Agreement with immediate effect in full or in part after, by registered letter, it has stipulated a deadline to the Client of at least fourteen days for fulfilment of the obligations and upon expiry of that deadline, the Client has not yet fulfilled its obligations. If, by stipulating such a period, the Freight Forwarder’s interests in the undisturbed conduct of its business would be impaired disproportionately, the Freight Forwarder may dissolve the Agreement without observing a time limit.
- Neither of the Parties may dissolve the Agreement if, considering its special nature or limited significant, the failure does not justify dissolution with all implications thereof.
Article 19 – Proceedings against Third Parties
Legal and arbitration proceedings against Third Parties shall not be conducted by the Freight Forwarder unless it agrees to do so at the Client’s request and at the latter’s expense and risk.
Article 20 – Prescription and limitation
- Notwithstanding the provisions in paragraph 5 of this article, every claim is subject to prescription by the expiry of a period of nine months.
- Every claim vis-a-vis the Freight Forwarder shall be time-barred by the mere expiry of a period of 18 months.
- The periods of time stated in paragraphs 1 and 2 commence on the day following the day on which the claim has become due and payable, or the day following the day on which the prejudiced party had the knowledge of the loss. Notwithstanding the foregoing provisions, the aforementioned periods of time for claims with regard to damage, value depreciation or
loss of the Goods, commence on the day following the day on which the Goods are delivered by the Freight Forwarder or should have been delivered.
4. In the event that the Freight Forwarder is held liable by Third Parties, including any public authority, for damages, the periods of time stated in paragraphs 1 and 2 commence as from the first of the following days:
• the day following the day on which the Third Parties have brought action against the Freight Forwarder;
• the day following the day on which the Freight Forwarder has settled the claim brought against it.
If the Freight Forwarder or the Third Party whose services it has engaged objects and/or appeals, the periods of time stated in paragraphs 1 and 2 commence on the day following the day on which a final ruling has been given on the objections and/or appeal.
- Unless the situation referred to in paragraph 4 of this article occurs, if following the term of prescription a claim is brought against one of the parties for that payable by that party to a Third Party, a new term of prescription of three months commences.
Article 21 – Choice of law
- All Agreements to which these Conditions apply are governed by Dutch law.
- The place of payment and settlement of claims shall be the Freight Forwarder’s place of business.
Article 22 – Reference title
These general terms and conditions can be cited as “Dutch Forwarding Conditions”.
Article 23 – Disputes Arbitration
- All disputes which may arise between the Freight Forwarder and its Other Party shall be decided by three arbitrators to the exclusion of the ordinary courts of law, in accordance with the FENEX Rules of Arbitration. The FENEX Rules of Arbitration and the current fees for the arbitration process can be read and downloaded from the FENEX website. A dispute shall exist whenever either of the parties declares that this will be so.
Without prejudice to the provisions of the preceding paragraph, the Freight Forwarder shall be at liberty to bring before the competent Dutch court in the Freight Forwarder’s place of business, claims for sums of money due and payable, the indebtedness of which has not been disputed in writing by the Other Party within four weeks after the invoice date. The Freight Forwarder is also at liberty to institute interim relief proceedings for claims of an urgent nature at the competent Dutch court in the Freight Forwarder’s place of business.
- The arbitration shall be settled by three arbitrators, unless neither of the parties has submitted a request for arbitrators to be appointed and the parties have jointly informed the FENEX secretariat in writing that they wish to have the arbitration settled by an arbitrator who they have appointed jointly, appending the written declaration of the arbitrator who they have appointed jointly containing his/her acceptance of the appointment and the force and validity of the FENEX Arbitration Rules.
- One arbitrator shall be appointed by the Chairman or the Vice-Chairman of the FENEX; the second shall be appointed by the Dean of the Bar Association of the district in which the aforesaid Freight Forwarder has its registered office; the third shall be appointed by mutual agreement between the two arbitrators so appointed.
- The Chairman of the FENEX shall appoint an expert on forwarding and logistics; the Dean of the Bar Association shall be asked to appoint a specialised lawyer in forwarding and logistics; the third arbitrator shall preferably be an expert on the trade and trade and industry in which the Freight Forwarder’s Other Party is engaged.
- Where applicable, arbitrators shall apply the provisions of international transport conventions, including the Convention on the Contract for the International Carriage of Goods by Road (CMR).
FENEX: Netherlands Association for Forwarding and Logistics
Boris Pasternaklaan 22-30, 2719 DA Zoetermeer
P.O. Box 3008, 2700 KS Zoetermeer