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Dutch Forwarding Conditions (Fenex)

VASCO-fulfilment, LLC

Article 1: Definitions

For the purposes of these Terms and Conditions, the following definitions apply:

Third Party(ies): all persons, other than employees, with whom the Freight Forwarder has entered into a contract on behalf of the Principal, regardless of whether the Freight Forwarder has entered into such a contract in its own name or in the name of the Principal;
Services: all acts and activities, in whatever form and of whatever nature, that the Freight Forwarder performs for or on behalf of the Client;
Freight Forwarder: the natural or legal person who provides Services to the Client and who applies these Terms and Conditions, whereby “Freight Forwarder” is not limited to the freight forwarder as defined in Book 8 of the Dutch Civil Code;
Client: any natural or legal person who instructs the Freight Forwarder to perform Services and enters into the Agreement with the Freight Forwarder for that purpose, regardless of the agreed method of payment;
Agreement: the agreement entered into by the Freight Forwarder and the Client regarding the Services to be performed by the Freight Forwarder, of which these Terms and Conditions form a part;
Force majeure: any circumstances that the Freight Forwarder could not reasonably have avoided and whose consequences the Freight Forwarder could not reasonably have prevented;
Terms and Conditions: these Dutch Freight Forwarding Terms and Conditions.
Goods: the items to be made available to the Freight Forwarder, its agents, or Third Parties by or on behalf of the Client in connection with the performance of the Agreement, or items that have already been made available.

Article 2: Scope

1 These Terms and Conditions govern all offers, agreements, legal acts, and factual acts relating to the Services to be performed by the Freight Forwarder, to the extent that they are not subject to mandatory law. These Terms and Conditions apply to the legal relationship between the parties, even after the Agreement has terminated.
2 If any provision of these Terms and Conditions is invalid or otherwise unenforceable, this shall not affect the validity of the remaining provisions of these Terms and Conditions. Furthermore, a provision that, to the extent permitted by law, most closely approximates the intent of the invalid or unenforceable provision shall be deemed valid.
3 In the event of any conflict with the translated terms and conditions, the Dutch version of these Terms and Conditions shall prevail.

Article 3:Third Parties

The Client grants the Freight Forwarder full discretion to engage Third Parties in the performance of the Agreement and to accept the (general) terms and conditions of such Third Parties at the Client’s expense and risk, unless otherwise agreed with the Client. The Freight Forwarder is obligated, at the Client’s request, to provide the Client with (a copy of) the (general) terms and conditions under which it has contracted with such Third Parties.

Article 4: Formation of the Agreement

1 All offers made by the Freight Forwarder are non-binding.
2 Agreements, as well as any amendments or additions thereto, shall only be deemed to have been concluded if and to the extent that the Freight Forwarder has confirmed them in writing or has commenced performance of the Services.

Article 5: Customs Operations

1 The provision of information to the Freight Forwarder, which is reasonably necessary for the completion of customs formalities, constitutes an instruction to that effect, unless otherwise agreed in writing.
2 The Freight Forwarder accepts this order by means of an express written confirmation or by commencing the performance of the order. The Freight Forwarder is never obligated to accept an order to perform customs formalities.
3 If the Freight Forwarder becomes aware of information or circumstances from which it can be inferred that the Client has not complied with Article 9(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 assignment to perform customs formalities, the Freight Forwarder is at all times entitled to terminate this assignment—whether or not set forth in a supplementary agreement and/or authorization—without any obligation to pay compensation, and to refrain from (further) performing it.

Article 6: Fees

1. Quotations are always provided based on the rates in effect at the time of the offer (quote). If, between the time of the offer and the time of performance of the Agreement, one or more cost factors (including, but not limited to, tariffs, wages, costs of social measures and/or laws, freight and exchange rates, etc.) increase, the Freight Forwarder is entitled to charge this increase to the Client. The Freight Forwarder must be able to substantiate the changes.
2 If the freight forwarder charges all-inclusive rates or flat rates, such rates shall be deemed to include all costs that are generally borne by the freight forwarder in the normal course of fulfilling the order.
3 Unless otherwise specified, all-inclusive rates and flat rates do not include, in any case: duties, taxes, and levies; consular and legalization fees; costs associated with issuing bank guarantees; and insurance premiums.
4 In the event of circumstances of such a nature that, at the time the Agreement was entered into, there was no need to take into account the possibility of their occurrence, which cannot be attributed to the Freight Forwarder and which significantly increase the costs of performing the Services, the Freight Forwarder shall be entitled to Where possible, the Freight Forwarder shall consult with the Client in advance. In such a case, the additional payment shall consist of the extra costs the Freight Forwarder has had to incur in order to perform the service, plus an additional fee to be determined in good faith for the services to be performed by the Freight Forwarder.
5 Extraordinary expenses and higher labor costs incurred when Third Parties, pursuant to any provision in the relevant agreements between the Freight Forwarder and Third Parties, proceed with loading or unloading during the evening, at night, on Saturdays, or on Sundays or public holidays in the country where the Service is performed, are not included in the agreed prices, unless this has been specifically stipulated. Consequently, such costs must be reimbursed by the Client to the Freight Forwarder.
6 Unless there is intent or willful recklessness on the part of the Freight Forwarder, any costs resulting from insufficient loading and/or unloading time, such as demurrage, waiting charges, etc., shall be borne by the Principal, even if the Freight Forwarder has accepted the bill of lading and/or the charter party from which the additional costs arise without protest. The Freight Forwarder shall use its best efforts to prevent such costs.

Article 7: Insurance

1 Insurance of any kind shall be taken out solely at the Client’s expense and risk only after the Freight Forwarder has accepted the Client’s express written instruction, in which the Client clearly specifies the goods to be insured and the insured value. A mere statement of the value or interest is not sufficient.
2 The Freight Forwarder shall arrange for the insurance to be underwritten by an insurer, insurance broker, or insurance intermediary. The Freight Forwarder is neither responsible nor liable for the financial soundness of the insurer, insurance broker, or insurance intermediary.
3 If, in the performance of the Services, the Freight Forwarder uses equipment such as trestles, cranes, forklifts, and other tools that are not part of its standard equipment, the Freight Forwarder is 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 Principal in advance regarding the use of such equipment. If timely prior consultation is not possible, the Freight Forwarder shall take the measures he deems best in the Principal’s interest and shall inform the Principal accordingly.

Article 8: Delivery Time, Shipping Method, and Route

1 A mere indication by the Client of a delivery time does not bind the Freight Forwarder. Estimated arrival times are not strict deadlines and are not guaranteed by the Freight Forwarder, unless otherwise agreed in writing.
2 If the Client has not provided specific instructions in this regard when placing the order, the method of shipment and the route shall be at the discretion of the Freight Forwarder, who may always adopt the practices customary among the companies with which he contracts for the performance of the order.

Article 9: Commencement of Services

1 The Client is required to make the Goods available to the Freight Forwarder or a Third Party in proper packaging at the agreed location, time, and manner.
2 The Principal is obligated to provide the Freight Forwarder, in a timely manner, with all information and documents regarding the Goods and their handling that the Principal knows or ought to know are of importance to the Freight Forwarder. If the Goods and/or services are subject to government regulations, including customs and excise regulations and tax regulations, the Principal must provide, in a timely manner, all information and documents necessary for the Freight Forwarder to comply with such regulations.
3 The Client warrants that the information and documents provided by it are accurate and complete, and that all instructions and Goods made available comply with applicable laws and regulations. The freight forwarder is not obligated, but is entitled, to verify whether the information provided to it is accurate and complete.

Article 10: Handling of Matters

1 All procedures, such as inspection, sampling, taring, counting, weighing, measuring, etc., as well as the acceptance of goods under judicial supervision, shall be carried out exclusively upon the express instruction of the Client and subject to reimbursement of costs.
2 Notwithstanding the provisions of paragraph 1, the Freight Forwarder is entitled, but not obligated, to take all measures on its own authority, at the Client’s expense and risk, that it deems necessary in the Client’s best 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 he deems best in the Principal’s interest and shall inform the Principal, as soon as reasonably possible, of the measures taken and the associated costs.
3 The Freight Forwarder is not an expert with respect to the Goods. The Freight Forwarder is therefore not liable for any damage arising out of or in connection with any statement made by the Freight Forwarder regarding the condition, nature, or quality of the Goods or regarding the conformity of samples with the Goods.

Article 11: Liability

1 All Services are provided at the Client’s expense and risk.
2 Without prejudice to the provisions of Article 17, the Freight Forwarder shall not be liable for any damage unless the Principal proves that the damage was caused by the fault or negligence of the Freight Forwarder or its employees.
3 The Freight Forwarder’s liability is in all cases limited to 000 SDR per event or series of events arising from a single cause of damage. Subject to the aforementioned limit, in the event of damage, depreciation, or loss of the Goods covered by the Agreement, liability shall be further limited to 4 SDR per kg of gross weight damaged, depreciated, or lost.
4 The damages to be compensated by the Freight Forwarder shall in no event exceed the invoice value of the Goods, as evidenced by the Client; in the absence of such evidence, the market value of the Goods, as evidenced by the Client, shall apply as of the time the damage occurred.
5 The Freight Forwarder shall in no event be liable for lost profits, consequential damages, or non-pecuniary damages, regardless of how they arise.
6 If, in the performance of the Agreement, damage occurs for which the Freight Forwarder is not liable, the Freight Forwarder shall, subject to the provisions of Article 19 of these Terms and Conditions, use its best efforts to recover the damage suffered by the Client from the party liable for the damage. The Freight Forwarder is entitled to charge the Client for the costs incurred in doing so. Upon request, the Freight Forwarder shall assign to the Principal its claims against the Third Parties engaged by it for the performance of the Agreement.
7 The Client is liable to the Freight Forwarder for all damages—including, but not limited to, property damage, non-property damage, consequential damages, fines, interest, as well as penalties and forfeitures, including consequences arising from the failure to clear customs documents or to do so in a timely manner, and claims arising from product liability and/or intellectual property rights—that the Freight Forwarder suffers directly or indirectly as a result of, among other things, the Client’s failure to fulfill any obligation under the Agreement or under applicable national and/or international lawand regulations, as a result of any incident falling within the Client’s sphere of risk, as well as as a result of the fault or negligence in general of the Client and/or its subordinates and/or third parties engaged by it and/or acting on its behalf.
8 The Principal shall at all times indemnify the Freight Forwarder against any claims by third parties, including employees of both the Freight Forwarder and the Principal, that are related to or arise from the damage referred to in the preceding paragraph.
9 The Freight Forwarder, who does not perform the transport itself, is not liable as a carrier but always as a person arranging transport under Title 2, Section 3 of Book 8 of the Civil Code, even if all-inclusive or flat-rate rates have been agreed upon, and such liability is governed by these Terms and Conditions.
10 If the Freight Forwarder is held liable by the Client outside the scope of the Agreement for damage arising from the performance of the Services, the Freight Forwarder’s liability shall not exceed the extent of its liability under the Agreement.
11 If the Freight Forwarder may invoke a defense against the Principal to avoid liability for the conduct of a Third Party or subordinate under the Agreement, then a Third Party or subordinate may also, if held liable by the Principal on the basis of such conduct, invoke this defense, as if the Third Party or subordinate were also a party to the Agreement.
12 If a Freight Forwarder is held liable outside the scope of the Agreement by a person who is not a party to the Agreement or to a contract of carriage entered into by or on behalf of the Freight Forwarder, for damage to or loss of Goods or for a delay in delivery, the Freight Forwarder’s liability to such person shall not exceed the liability that would apply under the Agreement.

Article 12: Force Majeure

1 In the event of force majeure, the Agreement shall remain in effect; however, the Freight Forwarder’s obligations shall be suspended for the duration of the force majeure.
2 All additional costs incurred due to Force Majeure, such as transportation and storage costs, warehouse or site rental fees, demurrage and detention charges, insurance, and handling fees, shall be borne by the Client and must be paid to the Freight Forwarder upon the latter’s first request.

Article 13: Refusal by Carriers

If carriers refuse to sign off on the quantity or weight, the freight forwarder is not liable for the resulting consequences.

Article 14: Contract for the Carriage of Goods

These Terms and Conditions are subject to Articles 8:61(1), 8:62(1) and (2), and 8:63(1), (2), and (3) of the Dutch Civil Code (BW)

Article 15: Terms of Payment

1 The Client is obligated to pay the Freight Forwarder the agreed fees and other costs, freight charges, duties, etc. arising from the Agreement at the start of the Services, unless otherwise agreed.
2 The risk of exchange rate fluctuations is borne by the client.
3 The amounts referred to in paragraph 1 are also payable if damage has occurred during the performance of the Agreement.
4 If, notwithstanding paragraph 1 of this article, the Freight Forwarder grants credit terms, the Freight Forwarder is entitled to charge a credit limit surcharge.
5 Upon termination or cancellation 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 become immediately due and payable in full if:
the Client is declared bankrupt, the Client files for a stay of payments, or otherwise loses full or substantial control over its assets;
the Principal offers a settlement to its creditors, fails to fulfill any financial obligation to the Freight Forwarder, ceases to conduct its business, or—in the case of a legal entity, partnership, or corporation—if it is dissolved.
6 The Shipper is obligated, upon the Freight Forwarder’s first request, to provide security for the amounts owed by the Shipper to the Freight Forwarder. This obligation also applies if the Shipper has already been required to provide security or has provided security in connection with the amounts owed.
7 The Freight Forwarder is not obligated to provide security from its own resources for the payment of freight charges, duties, levies, taxes, and/or other costs, should such a request be made. All consequences of the Principal’s failure to comply, or failure to comply immediately, with the Freight Forwarder’s request to provide security shall be borne by the Principal.

If the Freight Forwarder has provided security from its own funds, it is entitled to demand immediate payment from the Client of the amount for which security has been provided.

Where possible, the Freight Forwarder will consult with the Client in advance. If timely prior consultation is not possible, the Freight Forwarder will take the measures it deems best in the Client’s interest and will inform the Client accordingly.

8 The Client is at all times obligated to reimburse the Freight Forwarder for any amounts collected, to be collected, or to be levied by any government authority in connection with the Agreement, as well as any related fines.

The Client must also reimburse the freight forwarder for the aforementioned amounts if the freight forwarder is held liable by a third party engaged by the freight forwarder in connection with the Agreement for the aforementioned amounts.

9 The Client shall at all times reimburse the Freight Forwarder for any amounts charged in error for freight and other costs, as well as for any additional costs claimed or subsequently claimed from the Freight Forwarder in connection with the order.
10 The Client is not permitted to set off claims for payment of fees arising from the Agreement, claims for amounts owed by the Client in connection with the Services, or any other costs related to the Goods, against claims held by the Client, nor is the Client permitted to suspend the aforementioned claims.

Article 16: Allocation of Payments and Judicial and Extrajudicial Costs

1 Payments on account are deemed to have been applied first toward unsecured claims.
2 The Freight Forwarder is entitled to charge the Client for any extrajudicial and judicial costs incurred in collecting the debt. Extrajudicial collection costs are due from the moment the Client is in default and amount to 10% of the debt, with a minimum of €100.

Article 17: Security

1 The Freight Forwarder has the right to refuse to release any Goods, documents, or funds that the Freight Forwarder holds or will come to hold, regardless of the basis or destination, to any person.
2 The Freight Forwarder has a right of retention over all Goods, documents, and funds that it holds or will come to hold, regardless of the basis or intended destination, for all claims that the Freight Forwarder has or will have against the Principal and/or the owner of the Goods, including claims that do not relate to those Goods.
3 The Freight Forwarder has a security interest in all Goods, documents, and funds that the Freight Forwarder holds or will come to hold, regardless of the basis or intended destination, for all claims that the Freight Forwarder has or will have against the Client and/or the owner of the Goods.
4 The Freight Forwarder may consider any person who entrusts Goods to the Freight Forwarder on behalf of the Principal for the purpose of performing Services to be authorized by the Principal to create a security interest in such Goods.
5 If a dispute arises upon settlement regarding the amount due, or if determining such amount requires a calculation that cannot be performed promptly, the Client, at the Forwarder’s discretion, the Principal or the party claiming delivery shall, at the Forwarder’s request, immediately pay the portion of the amount owed on which there is agreement and provide security for the payment of the disputed portion or the portion for which the amount has not yet been determined.
6 The Freight Forwarder may also exercise the rights set forth in this article (right of lien, right of retention, and right to refuse delivery) with respect to amounts still owed to it by the Client in connection with previous orders and with respect to any cash-on-delivery charges applicable to the goods.
7 The sale of any collateral shall be conducted at the Client’s expense in the manner prescribed by law or, if agreed upon, by private sale.
8 Upon the Forwarder’s first request, the Principal shall provide security for costs paid or to be paid by the Forwarder to third parties or government authorities, as well as other costs that the Forwarder incurs or anticipates incurring on behalf of the Principal, including, but not limited to, freight, port charges, duties, taxes, levies, and premiums.
9 The Freight Forwarder is not obligated to issue indemnities or provide security in the absence of documents. If the Freight Forwarder has issued an indemnity or provided security, the Client is obligated to indemnify the Freight Forwarder against all consequences thereof.

Article 18: Termination of the Agreement

1 The Freight Forwarder may terminate the Agreement with immediate effect if the Client:
- ceases his profession or business entirely or to a significant extent;
- loses the free disposal of his assets or a significant portion thereof;
- loses its legal personality, is dissolved, or is effectively liquidated;
- is declared bankrupt;
- offers a settlement outside of bankruptcy;
- files for a stay of payments;
- loses possession of his property or a significant portion thereof as a result of seizure.
2 If the Freight Forwarder persistently fails, through its own fault, to fulfill one or more of its obligations under the Agreement, the Principal may, without prejudice to its right to compensation for damages suffered in accordance with Article 11, terminate the Agreement in whole or in part with immediate effect, after:
- he has notified the Freight Forwarder in writing by certified mail, specifying the nature of the Freight Forwarder’s breach and setting a deadline of at least thirty days for compliance; and
- if the freight forwarder has not yet fulfilled its obligations by the end of that period.
3 If the Client persistently fails, through its own fault, to fulfill one or more of its obligations under the Agreement, the Freight Forwarder may, without prejudice to its right to compensation for damages suffered, terminate the Agreement in whole or in part with immediate effect, after having set the Principal a deadline of at least fourteen days for performance by registered letter and the Principal has still not fulfilled its obligations upon the expiration of that period. If setting such a deadline would disproportionately harm the Freight Forwarder’s interest in the undisturbed operation of its business, it may terminate the Agreement even without setting a deadline.
4 Neither Party may terminate the Agreement if the breach, given its specific nature or minor significance, does not justify termination and its consequences.

Article 19: Proceedings against third parties

The Freight Forwarder will not initiate legal or arbitration proceedings against third parties, unless it agrees to do so at the Client’s request and at the Client’s expense and risk.

Article 20: Statute of Limitations and Lapse

1 Without prejudice to the provisions of paragraph 5 of this section, any claim shall be barred by the mere passage of nine months.
2 Any claim against the Freight Forwarder shall be barred by the mere passage of 18 months.
3 The time limits referred to in paragraphs 1 and 2 begin on the day following the day on which the claim became due, or the day following the day on which the injured party became aware of the damage. Notwithstanding the foregoing, the aforementioned time limits for claims relating to damage, depreciation, or loss of the goods shall commence on the day following the day on which the Goods were delivered or should have been delivered by the Freight Forwarder.
4 In the event that the Freight Forwarder is held liable by third parties, including any government authority, the time limits specified in paragraphs 1 and 2 shall commence on the first of the following days:
the day following the day on which the Freight Forwarder was sued by the third party;
the day following the day on which the Freight Forwarder has satisfied the claim made against him.

If the Freight Forwarder or a third party engaged by the Freight Forwarder has filed an objection and/or appeal, the time limits specified in paragraphs 1 and 2 shall commence on the day following the date on which the decision on the objection and/or appeal becomes final.

5 Unless the situation referred to in paragraph 4 of this section arises, if, after the statute of limitations has expired, one of the parties is held liable for an amount owed by that party to a third party, a new statute of limitations period of three months shall begin to run.

Article 21: Choice of Law

1 All Agreements to which these Terms and Conditions apply are governed by Dutch law.
2 The place of settlement and claims resolution shall be the Freight Forwarder’s place of business.

Article 22: Title of the Citation

These general terms and conditions may be referred to as the “Dutch Freight Forwarding Terms and Conditions”.

Article 23: Arbitration

1 Any disputes that may arise between the Freight Forwarder and the other party shall be settled by three arbitrators in accordance with the FENEX Arbitration Rules, to the exclusion of the ordinary courts of law. The FENEX Arbitration Rules and the current fees for the arbitration proceedings may be viewed and downloaded from the FENEX website. A dispute is deemed to exist when one of the parties declares that this is the case. Notwithstanding the provisions of the preceding paragraph, the Freight Forwarder is free to submit claims for due and payable sums, the liability for 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 place of business. The Freight Forwarder is also free to submit claims of an urgent nature in summary proceedings to the competent Dutch court in the Freight Forwarder’s place of business.
2 The arbitration shall be conducted by three arbitrators, unless neither party has submitted a request for the appointment of arbitrators and the parties jointly notify the FENEX Secretariat in writing that they wish to have the arbitration conducted by an arbitrator jointly appointed by them, with a written statement attached from the arbitrator jointly appointed by them, confirming his or her acceptance of the appointment and the operation and validity of the FENEX Arbitration Rules.
3 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 aforementioned Freight Forwarder is established; the third shall be appointed by mutual agreement between the two arbitrators thus appointed.
4 The Chair of FENEX shall appoint a person with expertise in shipping and logistics; the Dean of the Bar Association will be requested to appoint a lawyer with expertise in shipping and logistics; as the third arbitrator, preference should be given to a person with expertise in the branch of trade or business in which the Freight Forwarder’s opposing party operates.
5 Where applicable, arbitrators shall apply the provisions of international transport conventions, including, but not limited to, the Convention on the Contract for the International Carriage of Goods by Road (CMR).

FENEX, Dutch Association for Freight Forwarding and Logistics

PortCityII, Waalhaven Z.z. 19, 3rd floor, Port Number 2235, 3089 JH Rotterdam P.O. Box 54200, 3008 JE Rotterdam