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Terms and Conditions

DUTCH FREIGHT FORWARDING TERMS AND CONDITIONS

General Conditions of Forwarding – FENEX (Netherlands Association for Forwarding and Logistics)

Filed with the Registry of the District Courts in Amsterdam and Rotterdam on May 1, 2018.

Definitions

Article 1. Definitions

The following definitions apply to these Conditions:

  1. Third Party(ies): Any party, other than the employees, that the Forwarder engages to perform services for the Client, regardless of whether the Forwarder acts in its own name or on behalf of the Client.
  2. Services: All actions and work performed by the Forwarder for or on behalf of the Client, in any form or manner.
  3. Forwarder: The individual or entity performing services for the Client under these Conditions, including not only the forwarding agent as defined under Book 8 of the Civil Code.
  4. Client: Any individual or entity commissioning services from the Forwarder by entering into an agreement, regardless of the agreed method of payment.
  5. Agreement: The contract between the Forwarder and the Client regarding the services to be provided, which these Conditions form part of.
  6. Force Majeure: Circumstances beyond the reasonable control of the Forwarder, which the Forwarder could not have avoided or prevented.
  7. Conditions: These Dutch Forwarding Conditions.
  8. Goods: Items provided or made available by or on behalf of the Client to the Forwarder or its agents for execution of the Agreement.

Scope of Application

Article 2. Scope

  1. These Conditions apply to all offers, agreements, legal, and factual actions concerning the services performed by the Forwarder, unless otherwise mandated by mandatory law. These Conditions remain applicable even after the Agreement has ended.
  2. If any provision in these Conditions is found to be invalid or otherwise unenforceable, the validity of the remaining provisions remains unaffected. Any provision that comes closest to the legal intent of the invalid provision will be deemed valid.
  3. In case of discrepancies with translated versions, the Dutch version of these Conditions will prevail.

Article 3. Third Parties

  1. The Client allows the Forwarder full discretion to engage Third Parties for the performance of the Agreement and accept the Third Parties’ (general) conditions at the Client’s risk, unless otherwise agreed with the Client. The Forwarder must provide the Client with a copy of these Third Parties’ conditions upon request.

Formation of the Agreement

Article 4. Formation of the Agreement

  1. All offers made by the Forwarder are non-binding.
  2. Agreements, including amendments and additions, are only valid if confirmed in writing by the Forwarder or if the Forwarder has commenced the services.

Customs Activities

Article 5. Customs Activities

  1. The provision of information to the Forwarder necessary for customs formalities is considered an instruction unless agreed otherwise in writing. This instruction is accepted by the Forwarder through written confirmation or by starting the customs formalities. The Forwarder is under no obligation to accept an instruction for customs activities.
  2. If the Forwarder becomes aware of inaccurate or incomplete information provided by the Client, which would have prevented the acceptance of the customs instruction, the Forwarder may terminate the assignment without compensation.

Fees and Additional Costs

Article 6. Fees

  1. Price quotes are based on the rates applicable at the time of the offer. If, between the time of the offer and the execution of the Agreement, cost factors such as tariffs, wages, or freight rates increase, the Forwarder is entitled to pass on these increases to the Client.
  2. All-in rates or fixed rates charged by the Forwarder include all costs normally associated with the execution of the services, unless otherwise agreed. However, they do not cover taxes, consular fees, legalisation costs, or insurance premiums, unless specified otherwise.
  3. If unforeseen circumstances increase the cost of the services significantly, the Forwarder is entitled to charge the Client for these additional costs.
  4. Extraordinary costs for loading or unloading at night, on weekends, or public holidays are not included in agreed prices unless otherwise agreed. Such costs will be charged to the Client.
  5. Unless caused by the Forwarder’s intent or gross negligence, additional costs due to insufficient loading or unloading time, such as detention or waiting charges, are the Client’s responsibility.

Insurance

Article 7. Insurance

  1. Insurance is only arranged at the Client’s risk and expense after the Forwarder has received the Client’s express written instruction specifying the goods and their value.
  2. The Forwarder is not responsible for the solvency of the insurer or intermediary.
  3. If the Forwarder uses equipment not standard in its operations, it may take out insurance at the Client’s expense for risks related to that equipment. The Forwarder will consult the Client whenever possible.

Execution of the Agreement

Article 8. Delivery Time, Method of Shipment, and Route

  1. The Forwarder is not bound by any specific delivery times unless agreed in writing. The method of shipment and route are at the discretion of the Forwarder, provided that necessary documents are accepted from parties involved.

Article 9. Commencement of Services

  1. The Client must ensure that the goods are delivered in proper packaging at the agreed location, time, and manner.
  2. The Client is required to provide the Forwarder with all necessary information and documents for handling the goods and compliance with legal regulations, including customs and tax laws.

Article 10. Handling of Goods

  1. Any manipulations, such as checking, sampling, weighing, etc., are carried out only at the Client’s express instruction and at their expense.
  2. The Forwarder is not liable for any damage caused by or related to the condition or quality of the goods unless this was explicitly stated by the Forwarder.

Liability

Article 11. Liability

  1. All services are provided at the Client’s risk. The Forwarder is only liable for damages caused by its own negligence or fault.
  2. The Forwarder’s liability is limited to 10,000 SDR per event or series of events resulting from the same cause. In case of damage, depreciation, or loss of goods, liability is further limited to 4 SDR per kilogram of the damaged, depreciated, or lost gross weight.
  3. The Forwarder is not liable for lost profits, consequential damage, or intangible damage.
  4. If the Forwarder is not liable, it will make efforts to recover the damages from the party responsible, with any costs being charged to the Client.

Force Majeure

Article 12. Force Majeure

  1. In case of Force Majeure, the Agreement remains in force, but the obligations of the Forwarder are suspended for the duration of the Force Majeure.
  2. All additional costs caused by Force Majeure, such as transport and storage costs, warehouse or site rental, waiting charges, insurance, etc., are to be borne by the Client and must be paid upon the Forwarder’s request.

Refusal by Carriers

Article 13. Refusal by Carriers

  1. The Forwarder is not responsible for the consequences if carriers refuse to sign for quantities, weights, etc.

Mandatory Law

Article 14. Agreement for Transporting Goods

  1. These Conditions do not affect the provisions of Articles 8:61(1), 8:62(1) and (2), and 8:63(1), (2), and (3) of the Dutch Civil Code.

Payment

Article 15. Payment Terms

  1. The Client is required to pay the agreed fees and other costs related to the Agreement at the start of the services unless otherwise agreed.
  2. The Client bears the risk of currency fluctuations.
  3. Amounts due are payable even if damage occurs during the execution of the Agreement.
  4. If the Forwarder grants a credit period, it is entitled to charge a credit fee.
  5. In the event of termination or dissolution of the Agreement, all claims of the Forwarder – including future claims – become immediately due.
  6. If the Client fails to comply with any payment obligations or loses control over its assets, the Forwarder is entitled to demand immediate payment of all amounts owed.
  7. The Client must provide security for any outstanding amounts upon the Forwarder’s request.
  8. The Forwarder is not obligated to provide security for freight, taxes, fees, or other costs unless otherwise required.
  9. If the Client is subject to government taxes or fines related to the Agreement, the Client must reimburse the Forwarder for these amounts.
  10. The Forwarder may not offset claims from the Client against amounts owed under the Agreement.

Article 16. Allocation of Payments and Legal and Extrajudicial Costs

  1. Advance payments are considered to reduce outstanding claims first.
  2. The Forwarder is entitled to charge the Client for any legal or extrajudicial collection costs. Extrajudicial collection costs are due once the Client is in default and amount to 10% of the claim, with a minimum of €100.

Security

Article 17. Security

  1. The Forwarder has the right to refuse delivery of goods, documents, and funds under its control for any reason.
  2. The Forwarder holds a lien on all goods, documents, and funds in its possession for all claims it has against the Client or the owner of the goods, including claims unrelated to those goods.
  3. If any disputes arise regarding the amount due or if an extensive calculation is required, the Client must immediately pay the part of the amount that is undisputed and provide security for the disputed part.
  4. The Forwarder can exercise lien or pledge rights on goods for any outstanding claims, including amounts due for previous assignments.
  5. In the event of a sale of pledged goods, the Client is responsible for the costs, and the Forwarder is entitled to sell these goods in accordance with the law or as agreed.
  6. The Client must provide security for any amounts the Forwarder has paid or is expected to pay on behalf of the Client.

Final Provisions

Article 18. Termination of the Agreement

  1. The Forwarder may terminate the Agreement immediately if the Client:
  • Ceases its business activities entirely or in part.
  • Loses control over its assets.
  • Loses its legal status or is liquidated.
  • Is declared bankrupt or requests suspension of payments.
  • Offers a composition outside bankruptcy.
  • Loses control over its goods due to attachment.
  1. If the Forwarder continually defaults on obligations, the Client may terminate the Agreement after giving written notice and a 30-day period for rectification.
  2. The Forwarder may terminate the Agreement immediately if the Client continually defaults, after giving a 14-day period for rectification.
  3. Disputes

Article 19. Disputes

  1. The Forwarder does not initiate legal or arbitration procedures against third parties unless explicitly requested by the Client, at the Client’s risk and expense.

Article 20. Prescription and Expiry

  1. Claims expire after nine months. Claims against the Forwarder expire after 18 months. These periods begin the day after the claim becomes due or the damage is known.

Choice of Law

Article 21. Choice of Law

  1. These Conditions and any Agreements are governed by Dutch law. The competent court for disputes will be located in the Forwarder’s place of business.

Article 22. Citation

  1. These conditions can be referred to as the “Dutch Forwarding Conditions.”

Disputes

Article 23. Arbitration

  1. All disputes that may arise between the Forwarder and its counterpart will be resolved by three arbitrators, to the exclusion of the ordinary courts, in the highest instance, in accordance with the FENEX arbitration regulations. The FENEX arbitration regulations and the current rates of the arbitration procedure can be read and downloaded from the FENEX website. A dispute is deemed to exist when one of the parties declares this to be the case. Notwithstanding the provisions in the previous paragraph, the Forwarder is free to submit claims for payable sums, the due date of which has not been disputed by the counterparty in writing within four weeks of the invoice date, to the competent Dutch court in the place of establishment of the Forwarder. The Forwarder is also free to submit claims with an urgent character to the competent Dutch court in the place of establishment of the Forwarder through summary proceedings.
  2. The arbitration will be conducted by three arbitrators unless neither party has requested the appointment of arbitrators, and both parties jointly notify the FENEX Secretariat in writing that they wish to resolve the arbitration with the arbitrator they have jointly appointed, along with the written statement from the jointly appointed arbitrator confirming their acceptance of the appointment and the applicability and validity of the FENEX arbitration regulations.
  3. One of the arbitrators will be appointed by the Chairperson or Vice-Chairperson of FENEX; the second will be appointed by the Dean of the Bar Association of the district in which the aforementioned Forwarder is established; the third will be appointed by the two arbitrators thus appointed, in mutual consultation.
  4. The Chairperson of FENEX will appoint a person with expertise in forwarding and logistics; the Dean of the Bar Association will be asked to appoint a lawyer with expertise in forwarding and logistics; the third arbitrator should preferably be someone with expertise in the field of trade or business in which the Forwarder’s counterparty operates.
  5. Where applicable, the arbitrators will apply the provisions of international transport treaties, including but not limited to the convention on the contract for the international carriage of goods by road (CMR).

 

FENEX, Netherlands Organization for Forwarding and Logistics
PortCityII, Waalhaven Z.z. 19, 3rd floor, Port Number 2235, 3089 JH Rotterdam
P.O. Box 54200, 3008 JE Rotterdam