DUTCH FORWARDING CONDITIONS
1 May 2018 as deposited with the District Court of Amsterdam under number 23/2018 and with the District Court of Rotterdam under number 16/2018

Definitions

Article 1. Definitions
In these Conditions the following terms are understood to mean:
1. Third Party/Parties: all those, not being subordinates, with whom the Forwarder has entered into an engagement on behalf of the Client, regardless of whether the Forwarder has entered into the engagement in its own name or in the name of the Client;
2. Services: all activities and work, in whatever form and however described, that the Forwarder carries out for or on behalf of the Client;
3. Forwarder: the natural or legal person who carries out Services for the Client and who makes use of these Conditions, by which person is not understood exclusively the forwarder as referred to in Book 8 of the Dutch Civil Code;
4. Client: any natural or legal person who instructs the Forwarder to carry out Services and to that end concludes the Agreement with the Forwarder, regardless of the agreed method of payment;
5. Agreement: the agreement concluded by the Forwarder and the Client with regard to the Services to be carried out by the Forwarder, of which these Conditions form part;
6. Force Majeure: all circumstances that the Forwarder could not reasonably have avoided and the consequences of which the Forwarder could not reasonably have prevented;
7. Conditions: these Dutch Forwarding Conditions.
8. Goods: the goods to be made available or made available to the Forwarder, its auxiliary persons or Third Parties by or on behalf of the Client in connection with the performance of the Agreement.

Scope

Article 2. Scope
1. These Conditions govern all offers, agreements, legal acts and factual acts with regard to the Services to be carried out by the Forwarder, in so far as these are not subject to mandatory law. These Conditions apply to the legal relationship between the parties, also after the Agreement has ended.
2. In so far as any provision in these Conditions is null and void or otherwise unenforceable, this does not affect the validity of the other provisions in these Conditions. Furthermore, such a stipulation shall be deemed to apply that, while legally permitted, comes closest to the purport of the void or annulled stipulation.
3. In the event of conflicts with translated conditions, the Dutch version of these Conditions prevails.

Article 3. Third Parties
The Client gives the Forwarder a free hand to engage Third Parties in performing the Agreement and to accept the (general) conditions of those Third Parties for the account and risk of the Client, unless agreed otherwise with the Client. The Forwarder is obliged, at the Client's request, to hand over to the Client (a copy of) the (general) conditions under which it has contracted with those Third Parties.

Conclusion of the agreement

Article 4. Conclusion of the Agreement
1. All offers made by the Forwarder are without obligation.
2. Agreements, as well as amendments and additions thereto, are only concluded if and in so far as the Forwarder has confirmed them in writing or the Forwarder has commenced the performance of the Services.

Customs activities

Article 5. Customs activities
1. The provision to the Forwarder of data that is reasonably provided for carrying out customs formalities constitutes an instruction to that effect, unless agreed otherwise in writing.
2. This instruction is accepted by the Forwarder by means of an express written confirmation or by the Forwarder commencing the performance of the customs formalities. The Forwarder is never obliged to accept an instruction to carry out customs formalities.
3. If the Forwarder becomes aware of data or circumstances from which it can be deduced that the Client has not complied with Article 9 paragraph 3 of these Conditions (has made available incorrect and/or incomplete data and/or documents) and on the basis of which the Forwarder would not have accepted the instruction to carry out customs formalities, the Forwarder is at all times entitled to terminate this instruction, whether or not laid down in an additional agreement and/or authorisation, without any obligation to pay compensation, and not to carry it out (any further).

Fees and other costs

Article 6. Fees
1. Price quotations are always made on the basis of the prices applicable at the time of the offer (quotation). If, between the moment of the offer and the moment of the performance of the Agreement, one or more cost price factors (including, among other things, rates, wages, costs of social measures and/or laws, freight and exchange rate quotations, etc.) undergo an increase, the Forwarder is entitled to charge this increase to the Client. The Forwarder must be able to demonstrate the changes.
2. If all-in rates or flat (fixed) rates are charged by the forwarder, these rates must be deemed to include all costs that generally, in the normal handling of the instruction, are for the account of the Forwarder.
3. Unless the contrary has been stipulated, all-in rates and flat (fixed) rates do not in any case include: duties, taxes and levies, consular and legalisation costs, costs for drawing up bank guarantees and insurance premiums.
4. In the event of circumstances that are of such a nature that, at the conclusion of the Agreement, no account had to be taken of the chance that they would occur, that cannot be attributed to the Forwarder and that considerably increase the costs of the performance of the Services, the Forwarder is entitled to an additional payment. Where possible, the Forwarder consults the Client in advance. The additional payment shall then consist of the extra costs that the Forwarder has had to incur in order to carry out the performance, increased by an extra fee to be determined fairly for the performances to be carried out by the Forwarder.
5. Extraordinary expenses and higher wages, which arise when Third Parties, pursuant to any provision in the relevant agreements between the Forwarder and Third Parties, proceed to load or unload during the evening, the night, on Saturdays or on Sundays or public holidays in the country where the Service is carried out, are not included in the agreed prices, unless this has been stipulated separately. Such costs must consequently be reimbursed by the Client to the Forwarder.
6. Unless there is intent or deliberate recklessness on the part of the Forwarder, in the event of insufficient loading and/or unloading time all costs arising from this, such as demurrage, waiting costs, etc., are for the account of the Client, also when the Forwarder has accepted the bill of lading and/or the charter party from which the extra costs arise without protest. The Forwarder must make an effort to prevent the costs.

Insurance

Article 7. Insurance
1. Insurance of whatever nature is only taken out for the account and risk of the Client after acceptance by the Forwarder of the express written instruction of the Client, in which the Client clearly specifies the goods to be insured and the value to be insured. A statement of the value or the interest alone is not sufficient.
2. The Forwarder shall (have) place(d) the insurance with an insurer / insurance broker / insurance intermediary. The Forwarder is not responsible nor liable for the soundness of the insurer / insurance broker / insurance intermediary.
3. The Forwarder is, when in the performance of the Services it makes use of materials, such as sheerlegs, cranes, forklift trucks and other implements that do not fall under its standard equipment, entitled to take out insurance for the account of the Client that covers the risks arising for the Forwarder from the use of these implements. Where possible, the Forwarder consults the Client in advance about the use of such materials.
If no timely prior consultation is possible, the Forwarder takes the measures that seem best to it in the interest of the Client and informs the Client thereof.



Performance of the agreement

Article 8. Delivery time, method of dispatch and route
1. Mere mention by the Client of a time of delivery does not bind the Forwarder. Times of arrival are not final deadlines and are not guaranteed by the Forwarder, unless agreed otherwise in writing.
2. If the Client has given no specific instructions about this in its order, the method of dispatch and the route are at the choice of the Forwarder, whereby it may always accept the documents that are customary at the companies with which it contracts for the performance of the instruction given to it.

Article 9. Commencement of the Services
1. The Client is obliged to make the Goods available to the Forwarder or a Third Party in sound packaging at the agreed place, time and manner.
2. The Client is obliged to provide the Forwarder, in good time, with all those statements and documents about the Goods as well as about the handling thereof of which it knows or ought to know that they are of importance to the Forwarder. If the Goods and/or activities are subject to government provisions, including customs and excise provisions and tax regulations, the Client must provide, in good time, all information and documents that are necessary for the Forwarder to comply with those provisions.
3. The Client guarantees that the data and documents provided by it are correct and complete and that all instructions and Goods made available are in accordance with the laws and regulations. The forwarder is not obliged, but is entitled, to investigate whether the statements made to it are correct and complete.

Article 10. Handling of Goods
1. All manipulations such as checking, sampling, taring, counting, weighing, measuring, etc. and receiving under judicial expertise take place exclusively at the express instruction of the Client and against reimbursement of the costs.
2. Notwithstanding the provisions of paragraph 1, the Forwarder is entitled, but not obliged, to take on its own authority, for the account and risk of the Client, all measures that it deems necessary in the interest of the latter. Where possible, the Forwarder consults the Client in advance. If this is not possible, the Forwarder takes the measures that seem best to it in the interest of the Client and informs the Client, as soon as this is reasonably possible, of the measures taken and the costs associated therewith.
3. The Forwarder is not an expert with regard to the Goods. The Forwarder is therefore not liable for any damage arising from or connected with any statement of the Forwarder with regard to the condition, nature or quality of the Goods or with regard to the conformity of samples with the Goods.


Liability

Article 11. Liability
1. All Services take place for the account and risk of the Client.
2. The Forwarder is - without prejudice to the provisions of Article 17 - not liable for any damage, unless the Client proves that the damage arose through fault or negligence of the Forwarder or its subordinates.
3. The liability of the Forwarder is in all cases limited to 10,000 SDR per event or series of events with one and the same cause of damage. With due observance of the aforementioned limit, in the event of damage, depreciation or loss of the Goods included in the Agreement, the liability shall be further limited to 4 SDR per kg of damaged, depreciated or lost gross weight.
4. The damage to be compensated by the Forwarder shall never exceed the invoice value of the Goods to be proven by the Client, in the absence of which the market value to be proven by the Client at the moment the damage arose shall apply.
5. The Forwarder is never liable for lost profit, consequential damage and immaterial damage, however arising.
6. If, during the performance of the Agreement, damage arises for which the Forwarder is not liable, the Forwarder must, with due observance of the provisions of Article 19 of these Conditions, make an effort to recover the damage of the Client from the party who is liable for the damage. The Forwarder is entitled to charge the costs incurred thereby to the Client. If so requested, the Forwarder assigns its claims against the Third Parties engaged by it for the performance of the Agreement to the Client.
7. The Client is liable towards the Forwarder for all damage – including but not limited to material damage, immaterial damage, consequential damage, fines, interest, as well as penalties and confiscations, including consequences due to non-clearance or late clearance of customs documents and claims due to product liability and/or intellectual property rights – that the Forwarder suffers directly or indirectly as a result of, among other things, the non-performance by the Client of any obligation under the Agreement or under applicable national and/or international laws and regulations, as a result of any event that lies within the risk sphere of the Client, 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 or working for it.
8. The Client shall at all times indemnify the Forwarder against claims of third parties, including subordinates of both the Forwarder and the Client, that are connected with or arise from the damage referred to in the previous paragraph.
9. The Forwarder that does not itself carry out the carriage is, also in the event that all-in or flat rates respectively have been agreed, not liable as a carrier, but always as a party causing carriage to be performed pursuant to Title 2 Section 3 of Book 8 of the Dutch Civil Code, whereby the liability is governed by these Conditions.
10. If the Forwarder is held liable by the Client outside the agreement with regard to damage arising during the performance of the Services, the Forwarder is not liable any further than it would be on the basis of the Agreement.
11. If the Forwarder can derive a defence towards the Client from the Agreement to ward off its liability for an act of a Third Party or subordinate, then a Third Party or subordinate, if it is held liable by the Client on the basis of this act, can also invoke this defence, as if the Third Party or subordinate were itself party to the Agreement.
12. If a Forwarder is held liable, outside the agreement, with regard to damage to or loss of a Good or delay in the delivery, by someone who is not party to the Agreement or to an agreement of carriage concluded by or on behalf of the Forwarder, it is not liable towards this party any further than it would be under the Agreement.

Article 12. Force Majeure
1. In the event of Force Majeure the Agreement remains in force; the obligations of the Forwarder are, however, suspended for the duration of the Force Majeure.
2. All extra costs caused by Force Majeure, such as transport and storage costs, warehouse or site rent, demurrage and standing charges, insurance, removal from storage, etc., are for the account of the Client and must be paid to the Forwarder at the Forwarder's first request.

Article 13. Refusal by carriers
If carriers refuse to sign for number, weight, etc., the Forwarder is not responsible for the consequences thereof.


Mandatory law

Article 14. Agreement to cause goods to be carried
These Conditions leave unaffected Articles 8:61 paragraph 1 of the Dutch Civil Code (DCC), 8:62 paragraph 1 and 2 DCC, 8:63 paragraph 1, 2 and 3 DCC.


Payment

Article 15. Payment conditions
1. The Client is obliged to pay the Forwarder the agreed fees and the other costs, freights, duties, etc. arising from the Agreement at the commencement of the Services, unless agreed otherwise.
2. The risk of exchange rate fluctuations is for the account of the client.
3. The amounts referred to in paragraph 1 are also owed if damage has occurred during the performance of the Agreement.
4. If, in deviation from paragraph 1 of this article, a credit term is applied by the Forwarder, the Forwarder is entitled to charge a credit restriction surcharge.
5. Upon cancellation or dissolution of the agreement, all claims - also future ones - of the Forwarder become immediately and entirely due and payable. In any event all claims shall be immediately and entirely due and payable if: - the bankruptcy of the Client is pronounced, the Client applies for a suspension of payments or otherwise loses the free disposal, wholly or for an important part, of its assets; - the Client offers a composition to its creditors, is in default in the performance of any financial obligation towards the Forwarder, ceases to carry on its business or - in the event of a legal person, partnership or company - if this is dissolved.
6. The Client is obliged, at the Forwarder's first demand, to provide security for what the Client owes or will owe to the Forwarder. This obligation also exists if the Client itself has already had to provide or has provided security in connection with the amount owed.
7. The Forwarder is not obliged to provide security from its own funds for payment of freight, duties, levies, taxes and/or other costs, should this be demanded. All consequences of not complying, or not immediately complying, with the Forwarder's request for an obligation to provide security are for the account of the Client. If the Forwarder has provided security from its own funds, it is entitled to demand from the Client immediate payment of the amount for which security has been provided. Where possible, the Forwarder consults the Client in advance. If no timely prior consultation is possible, the Forwarder takes the measures that seem best to it in the interest of the Client and informs the Client thereof.
8. The Client is at all times obliged to reimburse the Forwarder for amounts to be collected, recovered or additionally levied by any government in connection with the Agreement, as well as related fines. The aforementioned amounts must likewise be reimbursed by the client to the forwarder if the forwarder is held liable for the aforementioned amounts, in connection with the Agreement, by a third party engaged by it.
9. The Client shall at all times reimburse the Forwarder for the amounts that, as a result of incorrectly levied freights and costs, as well as all extra costs, are demanded or additionally demanded from the Forwarder in connection with the instruction.
10. An appeal to set-off of claims for payment of fees arising from the Agreement, of what is owed by the Client on other grounds in respect of the Services or of further costs charged to the Goods, against claims of the Client, or suspension of the aforementioned claims by the Client, is not permitted.

Article 16. Allocation of payments and judicial and extrajudicial costs
1. Payments on account are deemed to have been made in the first place in deduction of unsecured claims.
2. The Forwarder is entitled to charge extrajudicial and judicial costs for the collection of the claim to the Client. The extrajudicial collection costs are owed from the moment the Client is in default and amount to 10% of the claim with a minimum of € 100.

Article 17. Securities
1. The Forwarder has the right to refuse, towards anyone, the surrender of Goods, documents and monies that the Forwarder has or will obtain in its possession on whatever grounds and with whatever destination.
2. The Forwarder has a right of retention on all Goods, documents and monies that it has or will obtain in its possession on whatever grounds and with whatever destination, for all claims that the Forwarder has or will obtain against the Client and/or the owner of the Goods, also with regard to claims that do not relate to those Goods.
3. The Forwarder has a right of pledge on all Goods, documents and monies that the Forwarder has or will obtain in its possession on whatever grounds and with whatever destination, for all claims that the Forwarder has or will obtain against the Client and/or the owner of the Goods.
4. The Forwarder may regard anyone who, on behalf of the Client, entrusts Goods to the Forwarder for the performance of Services as authorised by the Client to establish a right of pledge on those Goods.
5. If, on settlement, a dispute arises about the amount owed or if, to determine it, a calculation that cannot be carried out quickly is required, the Client or the party demanding delivery is obliged, at the choice of the Forwarder and at the Forwarder's request, to pay immediately the part about the indebtedness of which there is agreement, and to provide security for the payment of the disputed part or of the part the amount of which has not yet been established.
6. The Forwarder may also exercise the rights referred to in this article (right of pledge, right of retention and right to refuse surrender) for what is still owed to it by the Client in connection with previous instructions and for what is charged to the goods by way of cash on delivery.
7. Sale of any collateral takes place for the account of the Client in the manner prescribed by law or, if there is agreement about this, privately.
8. At the Forwarder's first request, the Client shall provide security for costs paid or to be paid by the Forwarder to third parties or governments and other costs that the Forwarder incurs or foresees it will incur on behalf of the Client, including, among other things, freight, port costs, duties, taxes, levies and premiums.
9. The Forwarder is not obliged, in the absence of documents, to issue indemnities or to provide securities. If the Forwarder has issued an indemnity or provided security, its Client is obliged to indemnify it against all consequences thereof.


Final provisions

Article 18. Termination of the Agreement
1. The Forwarder may terminate the Agreement with immediate effect if the Client:
- discontinues its profession or business wholly or for an important part;
- loses the free disposal of its assets or an important part thereof;
- loses its legal personality, is dissolved or is in fact liquidated;
- is declared bankrupt;
- offers a composition outside bankruptcy;
- applies for a suspension of payments;
- loses the disposal of its goods or an important part thereof as a result of attachment.
2. If the Forwarder continually attributably fails in the performance of one or more of its obligations under the Agreement, the Client may, without prejudice to its right to compensation for damage suffered in accordance with Article 11, dissolve the Agreement with immediate effect wholly or partly, after:
- it has indicated to the Forwarder by registered letter, with reasons, in what respect the Forwarder has failed and has thereby set it a term of at least thirty days for performance, and;
- the Forwarder has, at the expiry of that term, still not complied with its obligations.
3. If the Client continually attributably fails in the performance of one or more of its obligations under the Agreement, the Forwarder may, without prejudice to its right to compensation for damage suffered, dissolve the Agreement with immediate effect wholly or partly, after it has set the Client by registered letter a final term of at least fourteen days for performance and the Client has, at the expiry thereof, still not complied with its obligations. If, by setting such a term, the interest of the Forwarder in an undisturbed exploitation of its business would be disproportionately harmed, it may also dissolve the Agreement without observing a final term.
4. Neither of the Parties may dissolve the Agreement if the failure, in view of its special nature or minor significance, does not justify the dissolution with its consequences.

Article 19. Proceedings against third parties
Judicial and arbitral proceedings against third parties are not conducted by the Forwarder, unless it declares itself willing to do so at the desire of the Client and for the Client's account and risk.

Article 20. Limitation and lapse
1. Without prejudice to the provisions of paragraph 5 of this article, every claim is barred by the mere lapse of nine months.
2. Every claim against the Forwarder lapses by the mere lapse of 18 months.
3. The terms referred to in paragraphs 1 and 2 commence on the day following the day on which the claim became due and payable, or the day following the day on which the injured party became aware of the damage. Without prejudice to the foregoing, the aforementioned terms for claims with regard to damage, depreciation or loss of the goods commence on the day following the day on which the Goods were delivered or should have been delivered by the Forwarder.
4. In the event that the Forwarder is held liable by third parties, including any government, the terms referred to in paragraphs 1 and 2 commence from the first of the following days:
• the day following the day on which the Forwarder was held liable in law by the third party;
• the day following the day on which the Forwarder satisfied the claim directed at it.
If the Forwarder or a third party engaged by it has lodged an objection and/or appeal, the terms referred to in paragraphs 1 and 2 commence on the day following the day on which the decision in objection and/or appeal became final.
5. Unless the situation referred to in paragraph 4 of this article occurs, if, after the limitation term, one of the parties is held liable for what is owed by it to a third party, a new limitation term commences that runs for three months.

Article 21. Choice of law
1. All Agreements to which these Conditions apply are subject to Dutch law.
2. The place of settlement and damage adjustment is the place of establishment of the Forwarder. Citation title: These general conditions may be cited as "Dutch Forwarding Conditions".

Article 22. Citation title
These general conditions may be cited as "Dutch Forwarding Conditions".
These general conditions may be cited as "Dutch Forwarding Conditions".


Disputes

Article 23. Arbitration
1. All disputes that may arise between the Forwarder and its counterparty shall be decided, to the exclusion of the ordinary courts, in the highest instance by three arbitrators in accordance with the FENEX arbitration regulations. The FENEX arbitration regulations and the current rates of the arbitration procedure can be read and downloaded via the FENEX website. A dispute exists when one of the parties declares that this is the case. Without prejudice to the provisions of the preceding paragraph, the Forwarder is free to submit claims for due and payable sums of money, the indebtedness of which has not been disputed in writing by the counterparty within four weeks of the invoice date, to the competent Dutch court in the place of establishment of the Forwarder. The forwarder is likewise free to submit claims of an urgent nature in summary proceedings to the competent Dutch court in the place of establishment of the forwarder.
2. The arbitration is settled by three arbitrators, unless neither of the parties has submitted a request to proceed to the appointment of arbitrators and the parties jointly inform the FENEX secretariat in writing that they wish the arbitration to be settled by the arbitrator jointly appointed by them, with as an annex the written statement of the arbitrator jointly appointed by them containing his/her acceptance of the appointment and the operation and validity of the FENEX arbitration regulations.
3. One of the arbitrators is appointed by the Chairman or Vice-Chairman of FENEX respectively; the second is appointed by the Dean of the Bar Association of the district within which the aforementioned Forwarder is established; the third is appointed by both arbitrators thus designated in mutual consultation.
4. The Chairman of FENEX shall appoint a person who is an expert with regard to forwarding and logistics; the Dean of the Bar Association will be requested to appoint a lawyer who is an expert with regard to forwarding and logistics; as the third arbitrator, preference should be given to a person who is an expert with regard to the branch of trade or business in which the counterparty of the Forwarder is active.
5. Where applicable, arbitrators shall apply the provisions of international transport conventions, including, among others, the convention on the contract for the international carriage of goods by road (CMR).

FENEX, Dutch Organisation for Forwarding and Logistics

Boris Pasternaklaan 22-30, 2719 DA Zoetermeer

P.O. Box 3008, 2700 KS Zoetermeer