Terms and conditions

DUTCH TENDER SERVICE B.V. (DTS) (Chamber of Commerce: 74606999)

General terms and conditions

1.1.1 To all contracts concluded by DTS, Dutch law applies including these general terms and conditions (GTC) whereby DTS will also be referred to as carrier.

If DTS is performing services which are covered by the scope of application of the sectoral terms and conditions and/or statutory law and/or convention and/or regulations as set out in article 1.3 apply.

If DTS is performing tender services and/or transport by sea these GTC apply, except for those situations as referred to in article 1.3.

1.1.2 Regarding the obligations of the shipper, the contractor of the Carrier and/or the recipient of the services and/or goods et cetera, hereinafter also to be referred to as the Merchant, articles 3 and 4 apply, even if the conditions and/or statutory and/or convention law regulations as is referred to in article 1.3 apply.

1.1.3 In any way, the liability of DTS will be governed by article 1.2., and if article 1.2 cannot validly be applied, the limitation as per sectoral terms and conditions and/or statutory law and/or convention and/or regulations as set out in article 1.3 apply.

1.2. Liability

1.2.1 All actions and activities are performed at the risk and expense of the Merchant as defined in article 2.

1.2.2 DTS shall not be liable for any damage, including but not limited to damage to the goods and/or damage caused by the goods or the handling thereof, save where the contracting party proves that the damage was caused as a result of an act or omission on the part of the board or management of DTS, done either with the intent to cause that damage or recklessly and with the knowledge that such damage would probably result therefrom. Any liability of DTS shall in any event never exceed the renumeration for the particular services rendered during which the damage occurred and with an absolute maximum of € 5,000 for each occurrence or series of occurrences with the same cause. Damage shall also be understood to include damage to third parties which DTS is obliged to compensate; damage shall also be understood to include damage caused by death or injury and any form of financial loss and costs for destruction of the goods or other property.

1.2.3 The contracting party shall be obliged to compensate DTS for any damage caused to DTS due to the performance of its services and/or the handling of the goods, including but not limited to damage caused by material or goods provided by the contracting party to DTS for the purpose of executing the agreement and/or damage caused as a result of handling that material or those goods, save where the damage was caused as a result of an act or omission on the part of the board or management of DTS, done either with the intent to cause that damage or recklessly and with the knowledge that such damage would probably result therefrom. Damage shall also be understood to include damage to third parties which DTS is obliged to compensate; damage shall also be understood to include damage caused by death or injury, any form of financial loss and costs for destruction of the goods or other property.

1.2.4 DTS shall never be liable for any direct or indirect or consequential loss, damage (material or immaterial) or costs or for loss of profits. That also applies when such loss or damage arises prior to loading on or subsequent to discharge from the Vessel. DTS shall in no circumstances be liable damage or costs caused by delay. Loss of demurrage of any means of transport (floating or rolling) or dispatch money are deemed to be consequential damage.

1.2.5 When DTS performs activities for whatever reason, has already performed activities, or has yet to perform activities relating to any object, be it a vessel, or any other object, including its contents and regardless of whether the object is entrusted to it or not, DTS will not be liable for damage, including trading losses, to that object, or anything on or in that object or that will be on or in that object, or is part of that object or will be part of that object, which may arise, and not for damage to persons that are in or near that object at the time, or working on or for the object (tugboat operators, rowers, and similar persons included), regardless of whether the damage is caused by persons employed by, or working for, DTS , or caused by matters that are DTS’s responsibility.

DTS will also not be liable for damage as referred to above if the object, upon termination of the work, remains DTS’s responsibility, either because the client so requires, or because the amount payable by the client has not be paid in full, or for whatever other reason.

1.2.6 DTS shall be discharged from all liability unless the Contracting Party notifies DTS in writing of any damage or loss, either within 4 (four) weeks after the Contracting Party has become aware of such damage or loss, or within 3 (three) months after the means of transport involved, the goods or the person involved, has/have left the premises of DTS, whichever term is shorter. All and any claims against DTS shall lapse by the mere expiry of 9 (nine) months since such claim has arisen.

1.3. Sectoral terms and conditions applied by DTS

1.3.1 Unless specifically and in writing agreed otherwise, all services rendered by DTS, besides its tender services, are performed by DTS acting in its capacity of either forwarder [‘expediteur’] (including but not limited to services such as chartering of trucks, barges, trains and/or vessels, even if these services are performed pursuant to a transport order, services performed as receiving agent [‘ontvangst expediteur’] and/or services performed as customs agent [‘douaneagent’]) and/or shipbroker [‘cargadoor’] and/or carrier by inland waterways/road/rail and/or warehouse keeper and/or stevedore and/or towage and/or and/or anchor handling.

1.3.2. Save as specifically and in writing provided otherwise, the following general sectoral terms and conditions or any hereinafter mentioned statutory law or convention or regulations, with the exception of any choice of forum clause or arbitration clause included in such general sectoral terms and conditions, shall apply:

a. Forwarding
When acting in the capacity of forwarder as described in Article 1.3.1 of these conditions, the Dutch Forwarding Conditions [‘Nederlandse Expeditievoorwaarden’] shall apply.

b. Shipbrokers activities
In case of shipbrokers activities, the General Conditions for Dutch Shipbrokers and Agents (‘Algemene Nederlandse Cargadoorsvoorwaarden’) shall apply.

c. Carriage by inland waterways
In case of national carriage by inland waterways, in addition to the mandatory provisions of Section 8.10.2 of the Dutch Civil Code, the International Conditions of Loading and Transportation (ICLT) 2010 (‘Internationale vervoervoorwaarden (IVTB) 2010’) shall apply. In case of international carriage by inland waterways, in addition to the Budapest Convention on the Agreement for the Carriage of Goods by Inland Waterways (‘Verdrag van Boedapest inzake de Overeenkomst voor het vervoer van goederen over de binnenwateren’) (CMNI) of 22 June 2001, provided that Van Uden or its subcontractor is not liable for damage caused by the incidents listed in Article 25, paragraph 2 (a) (‘error in navigation’), (b) (‘fire or explosion’) or (c) (‘defects in the vessel’), the International Conditions of Loading and Transportation (ICLT) 2010 (‘Internationale vervoervoorwaarden (IVTB) 2010’) shall apply.

d. Carriage by road
In case of national carriage by road, the Dutch General Transport Conditions (‘Algemene Vervoercondities 2002’) shall apply.
In case of international carriage by road, in addition to the ’Convention for the International
Carriage of Goods by Road’ as amended by the Protocol of 5 July 1978 (CMR), the provisions of the aforementioned Dutch General Transport Conditions (‘Algemene Vervoercondities 2002’) shall apply.

e. Carriage by rail
In case of carriage by rail, the COTIF-CIM 1999 shall apply.

f. Warehousing
In case of warehousing services, the Warehousing Conditions Amsterdam-Rotterdam 2006 [‘Veemcondities 2006’] with the exception of Art. 1.4 of these Warehousing Conditions shall apply.

g. Stevedoring
In case of stevedoring services, the VRTO General Terms and Conditions shall apply.

h. towage and/or anchor handling
In case of towage and/or anchor handling, the Dutch Towage Conditions (Nederlandse sleepconditiën 1951) shall apply.

2. The Merchant includes, jointly and severally, the Shipper, the receiver, the Consignee, any person owning or entitled to the possession of the Goods (the whole or any part of the cargo accepted from the Shipper and includes any Containers not supplied by or on behalf of the Carrier) and anyone acting, whether as servant or agent or otherwise, for any of them.

3. Merchant´s warranty:
(i) The Merchant warrants that in agreeing to the terms and conditions hereof he is, or has the authority of, the Person owning or entitled to the possession of the Goods.
(ii) The Merchant warrants to the Carrier that the particulars relating to the Goods as set out overleaf have been checked by the Shipper and that such particulars and any other particulars furnished by or on behalf of the Shipper are correct and complete in all material respects and no representation of any nature as to such particulars, in favour of any person, is made, either directly, or by implication by the Carrier.
(iii) The Merchant warrants that the Goods are in a condition and packed in a manner adequate to withstand the ordinary risks of the Carriage contemplated for in this contract having regard to their nature and in compliance with all laws, regulations and requirements which may be applicable.

4. (i) The Merchant undertakes that no claim or allegation shall be made against any servant, agent or sub-contractor of the Carrier, including but not limited to stevedores and terminal operators, which imposes or attempts to impose upon any of them or any Vessel owned by any of them any liability whatsoever in connection with the Goods, or the Carriage of the Goods, and, if any such claim or allegation should nevertheless be made, to defend, indemnify and hold harmless the Carrier against all consequence thereof. Without prejudice to the foregoing, every such servant, agent and sub-contractor shall have the benefit of all exceptions, limitations, provisions, conditions and liberties herein benefiting the Carrier as if such provisions were expressly made for their benefit; and, in entering into this contract, the Carrier, to the extent of these provisions, does so not only on its own behalf, but also as agent and trustee for such servants, agents and sub-contractors. The Carrier shall be entitled to be paid by the Merchant on demand any sum recovered or recoverable by such Merchant from any servant, agent or sub-contractor of the Carrier for any loss, damage, delay or otherwise.

(ii) The Merchant further undertakes that no claim or allegation howsoever in respect of the Goods shall be made against the Carrier by any Person other than in accordance with these terms and conditions, which imposes or attempts to impose on the Carrier any liability whatsoever in connection with the Goods, or the Carriage of the Goods, whether or not arising out of negligence on the part of the Carrier and, if any such claim or allegation should nevertheless be made, to defend, indemnify and hold harmless the Carrier against all consequences thereof.

5. The Carrier does not undertake that the Goods shall arrive at the Port of Discharge or Place of Delivery at any particular time or to meet any particular sale contract, market or use.

6. The Carrier may at any time and without notice to the Merchant use any means of transport or storage whatsoever, transfer the Goods from one conveyance to another including transhipping or carrying the same on another Vessel or on any other means of transport whatsoever and even though transhipment or forwarding of the Goods may not have been contemplated or provided for herein;

7. The Carrier may at any time and without notice to the Merchant before giving delivery of the Goods at the Port of Discharge or the Place of Delivery and with liberties as aforesaid leave and then return to and discharge the Goods at such port, tow or be towed, make trial trips, adjust compasses, or instruments or repair or dry-dock, with or without cargo on board.

8. The Carrier may unpack and remove the Goods which have been packed into a Container and/or forward the same in Containers or otherwise as the Carrier in its sole discretion may decide, load and unload the Goods at any port(s) or place(s) (whether or not any such port is agreed upon and store the Goods for any period at any such port(s) or place(s).

9. The Merchant shall be liable for and shall defend, indemnify, and hold harmless the Carrier and the Vessel against any payment, expenses, fines, dues, duty, tax, impost, loss, damage or detention, sustained or incurred by or levied upon the Carrier or the Vessel in connection with the Goods for any cause whatsoever, including but not limited to their nature, quality or condition (whether known to the Carrier or master) and any breach of warranty under this contract. Also for any action or requirement of any government or governmental authority or person purporting to act under the authority thereof, seizure under legal process or attempted seizure, incorrect or insufficient marking, numbering or addressing of packages or description of the contents, failure of the Merchant to procure consular, safety or health authority, customs, or other certificates to accompany the Goods or to comply with laws or regulations of any kind imposed with respect to the Goods by the authorities at any port or place or any act or omission of the Merchant. If for any reason whatsoever the Goods are refused at importation the Merchant shall be liable for and shall pay return freight and charges thereon.

10. Containers:
(i) Goods may be stowed by the Carrier or its agents or servants in Containers and/or consolidated with other Goods in Containers. Containers whether stowed as aforesaid or received in a stowed condition from the Merchant may be carried on or under deck without notice to the Merchant and Containers shall contribute in General Average and/or salvage whether carried on or under deck.
(ii) If a Container has not been stowed, filled, packed, stuffed or loaded by the Carrier the document/receipt of DTS shall be a receipt only for such a Container and the Carrier shall not be liable for loss of or damage to the contents and the Merchant shall defend, indemnify and hold harmless the Carrier against any loss, damage, liability or expense incurred by the Carrier, if such loss, damage, liability or expense has been caused by;- (a) the manner in which the Container has been stowed, filled, packed, stuffed or loaded; or (b) the unsuitability of the contents for carriage in Containers; or (c) the unsuitability or defective condition of the Container arising without any want of due diligence on the part of the Carrier to make the Container reasonably fit for the purpose for which it is required; or (d) the unsuitability or defective condition of the Container which would have been apparent upon reasonable inspection by the Merchant at or prior to the time when the Container was stowed, filled, packed, stuffed or loaded; or (e) packing Goods which need temperature control, including refrigerated Goods, that are not at the correct temperature for carriage hereunder.
(iii) The Merchant shall inspect Containers before packing them and the use of Containers shall be prima facie evidence of the Containers being sound and suitable for use.
(iv) The Carrier shall be entitled, but under no obligation, to open any Container at any time and to inspect the contents. If it thereupon appears that the contents or any part thereof cannot safely or properly be carried or carried further, either at all or without incurring any additional expense or taking any measures in relation to the Container or its contents or any part thereof, the Carrier may abandon transportation thereof and/or take any measures and/or incur any reasonable additional expense to carry or to continue the Carriage or to store the same ashore or afloat under cover or in the open, at any place, which storage shall be deemed to constitute due delivery. The Merchant shall indemnify the Carrier against any reasonable additional expense so incurred.
(v) Where a Container owned or leased by the Carrier is unpacked at the Merchant`s premises the Merchant is responsible for returning the Container with interior brushed and cleaned to the place of discharge or to the point designated by the Carrier, its servants or agents, forthwith or within the prescribed time. The Merchant shall be liable for hire, cleaning costs, demurrage, loss and expenses which may result from any failure or delay in return of the Container. In case the Merchant does not return a Container within the time stipulated by the Carrier the Carrier shall have the right to retrieve the Container himself from the Merchant without notice at Merchant´s risk and cost.
(vi) The Merchant shall be liable for any loss of or damage to Container and other equipment while in the custody of the Merchant for whatever purpose. The Merchant shall indemnify and hold the Carrier harmless for all loss of and/or damage and/or delay to such Container and other equipment.

11. Lien: (i) The Carrier shall have a lien on the Goods and any documents relating thereto, inclusive of any Container owned or leased by the Merchant, for: a) all sums payable to the Carrier under this contract, b) all sums due from the Merchant to the Carrier under any other contract, whether connected with Carriage of Goods or not, and c) general average and/or salvage contributions to whomsoever due. The lien shall in any event extend to cover the costs and expenses of exercising such a lien and for that purpose the Carrier shall have the right to sell the Goods and documents by public auction or private sale in the manner the Carrier deems most advantageous without notice to the Merchant and without any responsibility whatsoever attaching to the Carrier. The Merchant agrees that no valuation of the Goods will be carried out before such sale. If on sale of the Goods the proceeds fail to cover the amount due and the costs and expense incurred, the Carrier shall be entitled to recover the difference from the Merchant. The Merchant shall defend, indemnify and hold harmless the Carrier against all and any cost incurred by the Carrier in exercising its rights under this clause.

12. Dangerous Goods:
(i) The Merchant undertakes not to tender for transportation any Goods which are of a dangerous, inflammable, radio-active, or damaging nature without previously giving written notice of their nature to the Carrier, marking the Goods and the Container or other covering on the outside as required by any laws or regulations which may be applicable during the Carriage.
(ii) The Merchant undertakes that the Goods are packed in a manner adequate to withstand the ordinary risks of Carriage having regard to their nature and in compliance with all laws or regulations which may be applicable during the Carriage.
(iii) If the requirements of paragraphs (i) and (ii) are not complied with the Merchant shall defend, indemnify and hold harmless the Carrier against all loss, damage or expense arising out of the Goods being tendered for transportation or handled or carried by the Carrier.
(iv) Goods which are or at any time become dangerous, inflammable, radio-active or damaging may at any time or place, be unloaded, destroyed, or rendered harmless without compensation, and if the Merchant has not given notice of their nature to the Carrier under
(i) above, the Carrier shall be under no liability to make any General Average contribution in respect of such Goods.

13. Notification and Delivery:
(i) Any mention herein of parties to be notified on the arrival of the Goods is solely for information of the Carrier, and failure to give such notification shall not involve the Carrier in any liability nor relieve the Merchant of any obligation hereunder.
(ii) Where the Carriage called for is a Port to Port Shipment the Carrier shall be at liberty to discharge the Goods or any part thereof from the Vessel without notice directly they come to hand at or on to any wharf, craft or place on any day and at any time and the Merchant shall take delivery of the Goods as soon they have been discharged as aforesaid. Such discharge shall constitute due delivery, and thereupon all liability of the Carrier (if any) in respect of the Goods or that part thereof discharged as aforesaid shall wholly cease notwithstanding any custom of the port to the contrary and notwithstanding that any Charges, dues or other expenses may be or become payable.
(iii) Where the Carriage called for is Combined Transport the Merchant shall take delivery of the Goods as soon as they have arrived at the Place of Delivery, or as soon as they have been discharged from the Vessel if the Place of Delivery is not named on the face hereof in accordance with paragraph (ii) of this Clause. Such arrival or discharge, as the case may be, shall constitute due delivery, and thereupon the liability of the Carrier (if any) in respect of the Goods shall wholly cease notwithstanding any custom to the contrary and notwithstanding that any Charges, dues or other expenses may be or become payable.
(iv) If the Merchant fails to take delivery of the Goods as provided for in this Clause the Carrier shall be entitled, without notice and without any responsibility whatsoever attaching to him, to unpack the Goods if packed in Containers and/or to store the Goods ashore, afloat, in the open, under cover or in any other way, at the sole risk and expense of the Merchant.
(v) If the Goods are unclaimed within ten running days of delivery becoming due under this Clause or if in the opinion of the Carrier they are likely to deteriorate, decay, become worthless or incur charges whether for storage or otherwise, the Carrier may, at his discretion and subject to his lien and without notice and without any responsibility whatsoever attaching to him, sell, destroy or otherwise dispose of the Goods in the manner the Carrier deems most advantageous in each individual case at the sole risk and expense of the Merchant and in case of sale apply any proceed of sale in reduction of the sums due to the Carrier from the Merchant.

14. In case loading and/or discharge are effected by the Merchant at his expense the Carrier’s responsibility shall, notwithstanding above, commence when loading has been completed and/or cease when discharge has begun respectively, and shall be exonerated from any loss of or damage to or in connection with the Goods occurring during such loading and/or discharge, even if such loading and/or discharge are done with the assistance and/or advice of the Master/Vessel’s officers/crew, who in such cases, are deemed to be an agent(s) or employee(s) of the Merchant.

15. Goods: if the goods/cargo are accepted for transport and tender services this does not mean that these goods, when received, were undamaged, free of visible rust or moisture etc..

16. DTS rejects the applicability of the Merchant’s general terms and conditions.

17. For tender services DTS carries Goods on deck of the vessel that is carrying out the tender services. Therefore, DTS is not liable to any damage to cargo transported in tender services.

18. All services rendered by DTS are governed by the law of The Netherlands. Any dispute arising out of or in connection with this agreement shall be referred to arbitration in Rotterdam, the Netherlands in accordance with the Unum arbitration rules.