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TOETER SKY HANDLING B.V.
GENERAL CONDITIONS
filed with the Chamber of Commerce at The Hague on 09-11-2009 under no. 27323494
Article 1 – Definitions
1. In these general conditions the following terms have the following meanings:
a. TSH: Toeter Sky Handling B.V.
b. Customer: The party to whom TSH’ offer is addressed and/or the party entering into a contract with TSH;
c. Rules: The rules and regulations referred to in article 3 paragraph 1 of these conditions.
Article 2 - Applicability
1. These general conditions apply to all TSH’ offers and to all agreements entered into TSH insofar as the parties have not expressly agreed otherwise in writing.
2. If any deviation is agreed in the provisions of these General Conditions the remaining articles that have not been changed will remain in force in full.
3. The Customer may not derive any future rights from any agreed written deviations from these General Conditions.
4. Depending on the nature of the work as specified in article 3 of these conditions, the Rules shown against that type of work in that article shall apply. If and insofar as the provisions of articles 2 to 14 of these conditions differ from or conflict with the provisions in the said Rules, the provisions of articles 2 to 14 of these conditions shall prevail. The Rules have a solely supplementary effect in respect of the provisions of articles 2 to 14 of these conditions.
Article 3 – Rules
1. Subject to the provisions in article 14 below, the following Rules in the most recent version apply to the following types of work:
a. Forwarding:
The Dutch Forwarding Conditions, with exception of the arbitral stipulations, as filed by FENEX (Netherlands Association for Forwarding and Logistics) with the Registry of the District Courts in Amsterdam, Arnhem, Breda and Rotterdam on July 1, 2004.
b. All carriage of goods by road within the Netherlands:
The General Conditions of Carriage 2002 (de Algemene Vervoerscondities 2002: AVC 2002), filed with the Registry of the District Court in Amsterdam and Rotterdam.
c. All international carriage of goods by road:
The Convention on the Contract for the International Carriage of Goods by Road (CMR), concluded in Geneva on May 19, 1956.
2. If the contract includes different types of performance to be rendered consecutively, each type of performance shall be treated as being independent from the other and shall be subject to the Rules relating to that specific type of performance.
3. Where two or more sets of Rules apply to one type of performance, the Rules which are mentioned first in the above listing shall prevail unless the parties have agreed otherwise.
4. The Rules listed in this article are available from TSH on request.
Article 4 - Offer and Contract
1. All offers, including quotations and price estimates are noncommittal, unless explicitly indicated in the offer. The mere fact that TSH has issued and offer, quotation or price estimate is noncommittal and will in no way lead to any obligation to enter into a contract.
2. If reserves are added to or changes are made in the acceptance compared with the offer, notwithstanding the provisions contained in the first paragraph of this article, the agreement will not be concluded until and as soon as TSH has confirmed to the Customer in writing that it accepts those changes to the offer. However, under no circumstances such an acceptance will be deemed to relate to acceptance of applicability of general terms and conditions applied by the Customer.
3. All offers are based on the performance of the contract by TSH under normal circumstances and during normal working hours, unless stated otherwise.
4. The contract comes into being immediately as soon as TSH has confirmed the Customer’s order in writing or has started to perform the order, whichever is the first.
5. Verbal promises made by employees or other subordinates of TSH are not binding on TSH until confirmed in writing by TSH.
Article 5 – Prices / tariffs
1. The agreed prices are based on the tariffs, wages etc. applying on the date of offer or the date of the finalization of the agreement or actual performance of the contract as appropriate. They include only the payment for the work to be performed by TSH under the agreement. They are therefore exclusive of packing, C.O.D. charges, VAT, penalties and all other taxes and duties, costs and charges of whatever description. Any such costs are payable by the Customer unless agreed otherwise in writing.
2. If one or more of the cost components is subject to an increase (even where the increase is the result of foreseeable circumstances) after the date of an offer, TSH may increase the agreed price accordingly, irrespective of whether or not that has already been agreed.
3. If TSH performs any variations to the contract, the costs involved will be for the Customer’s account.
4. Variations are any work carried out by TSH, whether or not recorded in writing, during the performance of the agreement that goes beyond the work expressly laid down in the agreement or the order confirmation, or additional costs resulting from performing the work in a different way to what is stated in the agreement. Such work may include for instance special services, unusual work, particularly time-consuming work or work demanding additional efforts. These general conditions also apply to variations.
5. All prices mentioned in the contract are in Euro unless stated otherwise.
6. If the prices are expressed in a foreign currency and the value of that currency against the euro changes to TSH’ disadvantage after the contract has been finalized, the prices shall be increased so that the equivalent value in euro is equal to the value applying at the time when the contract was finalized.
7. TSH will not be bound in the future by prices and / or tariffs that have been agreed upon or charged in the past.
8. Before starting performance of the contract or continuing the contract TSH will be entitled to demand that the Customer will furnish adequate security in respect of its compliance with its payment obligations.
Article 6 – Payment
1. Unless expressly agreed otherwise in writing, payment of the agreed price shall be made within a period of 14 days.
2. All payments shall be made without any deduction or set-off to a bank or giro account to be specified by TSH. If the Customer fails to pay within the agreed period he shall be deemed to be in default and TSH shall by operation of law be entitled to interest on the overdue amount at a rate 12%, calculated from the date on which payment was due to the date of full settlement.
3. All costs, including both legal and extrajudicial costs, incurred by TSH as the result of the Customer’s failure to comply with any obligation towards TSH shall be payable by the Customer.
4. In the event of failure to pay on time, the extrajudicial costs shall amount to at least 10% of the sums due, without prejudice to TSH’ right to make additional demands, including but not limited to a (temporary or permanent) suspension of the work, the dissolution of the contract (in part or in whole), and/or a claim for damages.
5. Any payments shall be deducted first from the due interest and costs, and then from the principal sum.
Article 7 – Performance of the contract
1. Dates, periods and/or number of hours are stated approximately. Where a period of time or number of hours is agreed for the performance of the contract, TSH will strive to comply with it as precisely as possible. Nevertheless, failure to meet that time period or number of hours for whatever reason shall not give the Customer any right of compensation or any right to demand the dissolution of the agreement on that ground.
2. The Customer must ensure that all the details and documents to be provided by him are in TSH’ possession in good time. The Customer is liable for all delays and all losses resulting from such delays to TSH, and shall indemnify TSH against third-party claims in that respect. The Customer is at all times responsible for the contents of the details and documents provided by him.
3. TSH is free in the manner of performance of the contract, unless agreed otherwise in writing. TSH may bring in third parties for the performance of the agreement without having to consult the Customer in advance.
Article 8 – Force majeure
1. TSH will not under any circumstances be liable for non-performance or late performance of its obligations as a result of force majeure, or for the consequences of such non-performance or late performance. In case of force majeure, TSH will have the right either to extend the agreed period for the performance of the contract by the duration of the force majeure or to cancel the agreement or the nonperformed part of the agreement without being liable.
2. Force majeure includes but is not restricted to war, threat of war, mobilization, riots, siege, sabotage, quarantine, disturbance to traffic, storm, fog, lightning strike, flood, high and low water, frost, freezing, ice, strike or lockout, fire, other serious disturbances in TSH’ business, interference from legal provisions, official restrictions and any other circumstance preventing performance that is not solely dependent on TSH’ will, even where already foreseeable at the time when the agreement was finalized.
3. The Customer’s financial and other obligations arising before the commencement of the force majeure shall remain in force despite the force majeure.
Article 9 – Liability
1. Where contracts are subject to Rules under article 3 above, TSH’ liability shall be determined by the Rules in question. However, in cases where the aforementioned Rules do not determine such liability, the following provisions shall apply.
2. TSH is only liable for loss if and in so far as that loss is proved to be the result of a wilful act or gross negligence. TSH is not liable for loss resulting from a wilful act or gross negligence by parties other than its subordinates.
3. Any person present on TSH’ sites, in or on TSH’ vehicles etc., or at the place where the work is being performed is there with everything in his possession at his own risk and must strictly adhere to the regulations and instructions laid down and provided by the authorities and by TSH, . TSH accepts no liability whatsoever for bodily injury or material damage.
4. Any claim against TSH shall be made in writing with 24 hours after delivery of the goods to the Customer or his representative or the completion of the work.
5. Subject to the Rules mentioned in article 3 in any event all claims against TSH will be time barred after a period of one year as of the date of delivery of the goods or the date of completion of the work.
6. If loss is caused to TSH, to TSH’ personnel or to third parties brought in through TSH during the performance of the contract, the Customer shall be liable for that loss unless he proves that the loss in question was caused by TSH, TSH’ personnel or the third parties brought in through TSH.
Article 10 – Indemnification
1. The Customer is obliged to indemnify and compensate TSH in respect of all damage, costs and interests, claimed from TSH by third parties in connection with the performance of the contract by TSH.
2. In the event that TSH has goods in his possession in connection with the performance of the contract the Customer will be obliged to fully indemnify TSH in respect of any claims by third parties, even if these claims are involved for compensation of damage that is directly related to such goods.
3. The Customer is also obliged to indemnify TSH in respect of damage to and/or penalties, claims, fines and other measures imposed by the Government.
4. The Customer’s obligation to indemnify TSH also applies in respect of managers and employees of and other persons involved at TSH.
Article 11 – Right of retention and lien
1. TSH has a right of retention on goods and documents held by it under the contract; that right applies in respect of any party demanding the surrender of the goods or documents in question. TSH may also exercise that right for what it is owed by the Customer under previous and subsequent contracts.
2. TSH shall not under any circumstances be liable for any loss resulting from the exercise of a right of retention.
3. All goods, documents, and money held by or obtained by TSH for whatever reason and for whatever purpose shall serve TSH as a pledge for all claims that it has or may acquire against the Customer or any other party with rights to the goods, documents, or money in question.
Article 12 – Applicable law
1. This agreement and all agreements resulting from it shall be governed by Dutch law.
Article 13 – Interpretation of conditions
1. These conditions have been drawn up in Dutch and in English. In the event of any difference in content or tenor, the Dutch text is binding.
2. If in the opinion of the competent Court any provision of these conditions is void, contrary to the law, or unenforceable in any respect, that shall not affect the remainder of the provisions in these conditions and the court’s ruling shall be restricted solely to the provision to which it referred.
Article 14 – Resolution of disputes
1. Contrary to what is provided in the Rules mentioned in article 3 in respect of the competent jurisdiction or arbitration, the District Court in Haarlem has sole jurisdiction to take cognizance of disputes concerning the present agreement or related agreements arising from it.