ARTICLE 1 – DEFINITIONS
1.1 Unless the context shows otherwise, any words and expressions which have been capitalised in these general conditions are defined terms to which the following meaning is assigned:
Article: an article to these General Conditions
Border Inspection Point: the border inspection point facilities of the Company for the Veterinary Inspection at Schiphol Airport
Company: Freshport B.V., having its corporate seat at Schiphol, Haarlemmermeer
Customer: the (potential) counter party of the Company, in the event of import in the Netherlands being the forwarding agent (“expediteur”) of the shipper, receiver or consignee of the Products and in the event of transit being the cargo handling agent of the onward carrier or the onward carrier itself
General Conditions: these general conditions of the Company
Party: the Company or the Customer, depending on the context
Parties: the Company and the Customer together
Products: products subject to the Veterinary Inspection
Services: any services carried out by the Company, inclusive of but not restricted to: the handling, arranging for the Veterinary Inspection by the VWA, customs clearance and storage of the Products
VWA: the Dutch Health Authorities for the Veterinary Inspection (“Voedsel en Waren Authoriteit”)
Veterinary Inspection: the veterinary inspection of the Products by theVWA at the Border Inspection Point, as further described in Article 4.2 of these General Conditions
1.2 Whenever “written” or “in writing” is used in these General Conditions it shall mean by fax, e-mail, Electronic Data Interchange, internet or by means of any other usual (electronic) trade medium.
ARTICLE 2 – CONCLUSION OF CONTRACT
2.1 Offers made by the Company, whether made in writing or verbally, are without engagement.
2.2 Unless agreed otherwise in writing, all offers are based on the assumption that the order of the Customer will be executed under normal labour conditions and during normal working time.
2.3 A contract between the Company and the Customer is concluded, if the Company accepts the Customer’s order (made verbally or in writing) in writing, or if the Company commences the execution of the order placed by the Customer (“the Contract”).
2.4 If the Company does not confirm an order placed by the Customer by electronic means within a reasonable period of time after receipt of such order, such non-confirmation shall not be considered a rejection. If receipt of the acceptance is not confirmed, the Customer is not entitled to rescind the Contract. The Company is at all times entitled to reject an
order placed by the Customer in whole or in part, regardless of whether such order was placed by electronic means or not.
ARTICLE 3 – APPLICABILITY
3.1 THE APPLICABILITY OF THE GENERAL CONDITIONS USED OR REFERRED TO BY THE CUSTOMER IS HEREWITH EXPLICITLY REJECTED.
3.2 Subject to Article 3.4 below, these General Conditions are applicable to all legal relationships of the Company acting as (potential) provider of Services.
3.3 The Contract governed by these General Conditions is a commission contract (“opdracht”) as meant in title 7 of book 7 of the Dutch Civil Code. In addition to the provisions of these General Conditions the provisions of title 7 of book 7 of the Dutch Civil Code are to apply to the Contract. In case of conflict of statutory non-compulsory provisions with provisions of these General Conditions, the provisions of these General Conditions are to prevail.
3.4 The contract is a deposit agreement (“bewaarneming”) as meant in Title 9 of Book 7 of the Dutch Civil Code insofar as the Services concern the storage of the Products by the Company. The storage of the Products by the Company is subject to the Nekovri Conditions issued by the Dutch Association of Cool- and Frozen Warehouses (“Vereniging van Nederlandse Koel- en Vrieshuizen”), version 2002 filed with the District Court of Rotterdam, the Netherlands. In case of conflict of the Nekovri Conditions with the statutory non-compulsory provisions of Title 9 of Book 7 of the Dutch Civil Code, the provisions of the Nekovri Conditions are to prevail.
ARTICLE 4 – VETERINARY INSPECTION
4.1 The Company shall arrange for the Veterinary Inspection of the Products submitted for inspection by the Customer to the facilities of the Company at the Border Inspection Point. For this purpose the Company shall arrange for VWA officers to be present at the facilities of the Company at the Border Inspection Point to carry out the Veterinary Inspection of the Products.
4.2 The Veterinary Inspection to be performed by the VWA at the facilities of the Company at the Border Inspection Point according to regulations set by the VWA.
4.3 In the event that the Veterinary Inspection by the VWA reveals that the Products do not comply with EU regulations and/or any other applicable national legislation or regulations in the respect, the Company shall promptly notify the Customer giving details of the grounds for non-compliance. Following such notification the Company shall keep the Products in storage in order to grant the Customer a reasonable period of time to endeavour to solve the non-compliance, if such non-compliance has been caused by incorrect documentation. If, however, the non-compliance was caused by the origin or condition of the Products, rather than the documentation thereof, or if the Customer fails to solve the non-compliance due to faulty documentation within a reasonable period of time, the Customer shall – if allowed by the VWA – as soon as possible and at its own risk and expense be obliged to arrange for the Products to be:
(a) returned to their country of origin, or
(b) transmitted to a non-European Union country, or
4.4 The Company shall not be liable and accepts no responsibility for the Veterinary Inspection or the consequences thereof as set out in this Article.
ARTICLE 5 – PAYABLE FEE
5.1 In consideration of the Services provided by the Company, the Customer shall pay the Company a fee as agreed upon by the Parties.
ARTICLE 6 – PAYMENT
6.1 The invoice for the Services rendered by the Company for the fee to be paid by the Customer as meant in Article 5.1 above shall be paid by the Customer within 14 (fourteen) days of the receipt of the invoice by the Customer.
6.2 Payment by Customer shall be made in the currency set out in the invoice and without any set-off, discount and/or suspension.
6.3 If payment is not received by the due date, the Company shall be entitled, without prejudice to any other rights and remedies the Company may have, and without any notice of default being required, to charge interest at the rate of 1% per month or part thereof over the outstanding amount(s) until full payment is received.
6.4 All reasonable extra-judicial and judicial costs which the Company may incur pursuant to a default of the Customer shall be borne by the Customer, with a minimum of ten percent (10%) of the principal amount.
6.5 Payments by the Customer shall be deemed to have been made first to settle judicial and extra-judicial costs as stipulated in Article 6.4, interest as stipulated in Article 6.3 and, thereafter they shall be charged to the oldest debt, irrespective of payment references made by the Customer.
6.6 The Company shall have the right to suspend the performance of Services for as long as any of the invoices of the Company remain unpaid after falling due.
ARTICLE 7 – LIABILITY AND INDEMNITY
7.1 All claims by the Customer must be made in writing within 30 (thirty) days after the delivery of the VWA’s report in respect of the Services from which the claim arises. Upon the expiration of 30 (thirty) days after the delivery of such report, any claim shall be deemed to be irrevocably waived by the Customer. In any event the Company, its employees, agents or sub-contractors shall be discharged from all liability unless suit is brought within 6 (six) months after the date of the invoice, or the completion of the Services.
7.2 The Company shall under no circumstances be liable to the Customer for any kind of damage of the Customer and/or loss of the Products in connection with the Services rendered by the Company, unless such damage and/or loss has been caused by the gross negligence or wilful misconduct of the Company or its directors.
7.3 The Company shall never be liable for consequential losses or damages, including but not limited to loss of profits, incurred losses and costs, loss of contracts or loss of savings. In no event shall the Company be liable for delay in the performance of the Services.
7.4 The Company shall not be liable for damages and losses caused by gross negligence or wilful misconduct of its employees, agents and/or subcontractors.
7.5 The Customer shall indemnify and hold the Company harmless against all claims and threatened claims by third parties against the Company, costs (including reasonable legal fees incurred in defending against such claims) and all liabilities of the Company to third parties, where such claims, costs and liabilities arise from or in connection with the performance of the Services by the Company.
7.6 The Company shall not be liable in respect of any Services for which the Company has to engage third parties, including but not limited to the VWA, and the Company shall also not be responsible for sampling and analyses results produced by such third parties, whether or not the Company has witnessed the taking of samples or the analyses.
7.7 The Company stipulates all legal and contractual defences that it can invoke in respect of its liability towards the Customer also for the benefit of its employees, agents and subcontractors for which it can be held liable.
7.8 Without prejudice to the applicability of the aforementioned provisions, any liability on the part of the Company, its employees, agents or subcontractors shall not exceed a sum equal to 20 (twenty) times the charges payable for the Services concerned or the sum of EUR 25,000.–, which ever is the lower. This remedy shall be the exclusive remedy against the Company, its employees or subcontractors arising out of performance or non-performance of the Services.
ARTICLE 8 – FORCE MAJEURE
8.1 Neither Party shall be liable for any default or delay in the performance of Services due to force majeure as defined in article 75 of book 6 of the Dutch Civil Code effecting that Party.
8.2 A Party who is prevented by force majeure from carrying out an obligation shall promptly give notice in writing of the force majeure to the other Party stating insofar as reasonably possible full particulars of such force majeure.
8.3 A Party claiming suspension of an obligation by reason of force majeure shall promptly remedy the situation created by the force majeure insofar as it is reasonably able to remedy.
ARTICLE 9 – GOVERNING LAW
9.1 The contract shall be governed by and construed in accordance with the laws of the Netherlands.
ARTICLE 10 – DISPUTES
10.1 Any dispute arising in connection with the Contract, or an agreement resulting therefrom, shall be submitted to the exclusive jurisdiction of the competent court in Amsterdam, the Netherlands.
10.2 The submission to the jurisdiction of the court referred in Article 10.1 above shall not limit the right of the Company to submit the dispute to arbitration by one or three arbitrators. The arbitration rules of the Netherlands Arbitration Institute (“Nederlands Arbitrage Instituut Rotterdam”) shall be applicable to this arbitration.
ARTICLE 11 – CONVERSION
11.1 If any provision of these General Conditions is invalid or unenforceable, the invalidity or unenforceability of such provision shall not affect the other provisions of these General Conditions which shall remain in full force and effect. The Company and the Customer agree to substitute any invalid or unenforceable provision with a valid and/or enforceable provision which achieves to the greatest extent possible the objectives of the invalid or unenforceable provision.
ARTICLE 12 – FILING
12.1 These General Conditions are filed with the District court of Amsterdam, the Netherlands, under number 832/94.