GENERAL TERMS AND CONDITIONS NIGHTSTAR EXPRESS HELLMANN B.V.
Version January 2013
Filed with the Registry of the Chamber of Commerce in Arnhem, Act number CRM 108781.
1.1 These general terms and conditions apply to every agreement and quotation between Night Star Express Hellmann BV, hereinafter referred to as NSE, and a Client, unless expressly agreed otherwise in writing by both parties. “Client” means any legal or natural person who has entered into, or wishes to enter into, an agreement with NSE, including their representatives or authorized agents.
1.2 The Client's general terms and conditions shall not apply to the agreements referred to in paragraph 1, unless expressly agreed otherwise in writing.
1.3 To the extent that an agreement concerns domestic transport, the current version of the General Transport Conditions (AVC 2002) shall apply in addition to and without prejudice to these terms and conditions. A copy will be provided to the Client free of charge upon request.
1.4 To the extent that an agreement concerns international transport, the Convention on the Contract for the International Carriage of Goods by Road (CMR) and the latest version of the General Transport Conditions shall apply in addition to these terms and conditions. A copy will be provided to the Client free of charge upon request.
1.5 To the extent that an agreement concerns forwarding activities, air freight services, and all other services, the latest version of the FENEX Conditions (Dutch Forwarding Conditions) shall apply in addition to these terms and conditions. A copy will be provided to the Client free of charge upon request.
1.6 To the extent that an agreement concerns sea transport evidenced by a bill of lading or similar document, the latest version of the Hague-Visby Rules, concluded in Brussels on 15 August 1979 and amended by the Protocol of 21 December 1979, shall apply in addition to these terms and conditions. A copy will be provided to the Client free of charge upon request.
1.7 In the event of any dispute and/or uncertainty between the Client and NSE regarding which of the conditions referred to in this article apply or have applied, NSE shall have the right to determine which conditions apply or have applied.
2.1 Quotations issued are non-binding and remain valid for three (3) months from the date of issue.
2.2 An order placed with NSE shall only bind NSE after it has been confirmed by NSE in writing or after NSE has commenced performance of the agreement.
2.3 Rates are exclusive of VAT.
2.4 Rates include only the freight charges from the loading location to the unloading location(s), unless agreed otherwise.
2.5 If there is any dispute regarding the rates applicable to the agreement with the Client, the rates stated in an offer issued by NSE shall prevail. Invoices shall be deemed accepted by the Client unless NSE receives a written objection within eight (8) days of the invoice date.
2.6 Every quotation is based on prices, wages, government-imposed charges, and other costs applicable at the time of issuance, including but not limited to diesel fuel prices, collective labor agreement changes, and taxes. If any of these factors change after the agreement has been concluded, NSE reserves the right to adjust its rates immediately. In addition, annual indexation of rates shall take place on January 1 of each calendar year, based on price index publications issued by the NEA and CBS.
2.7 The Client must pay all amounts due within fourteen (14) days of the invoice date, unless otherwise agreed in writing. If payment is not made within the agreed term, the Client shall be liable for statutory commercial interest pursuant to Article 6:119a of the Dutch Civil Code, in addition to the principal amount. The Client shall be deemed in default by operation of law without further notice of default.
2.8 If the Client fails to meet its payment obligations in full or on time, the Client shall reimburse NSE for all actual legal costs incurred, both judicial and extrajudicial, including non-liquidated litigation costs. Extrajudicial collection costs shall amount to at least 15% of the principal sum, with a minimum of €500.
3.1 If the Client fails to meet its payment obligations, NSE shall have a right of retention over all goods, funds, and documents belonging to the Client that are in its possession, in accordance with Articles 3:290–295 of the Dutch Civil Code.
3.2 NSE may also exercise its right of retention for amounts owed by the Client under previous agreements concluded between NSE and the Client.
3.3 All goods, documents, and funds that NSE has or will obtain from the sender/Client or owner, regardless of the basis or purpose, shall serve as security for all claims that NSE has or may acquire against them. If such claims remain unpaid, the collateral may be sold publicly or privately, provided agreement on such private sale has been reached after the right of sale arose.
3.4 The Client is not entitled to set off claims and debts existing between the Client and NSE.
Subcontracting transport services to third parties is permitted, provided that NSE remains responsible for the proper performance of the agreement.
5.1 The Client shall present the goods to NSE in good condition and, where applicable, properly packaged.
5.2 The Client shall ensure that all documents and instructions required for receipt and shipment, including collection and delivery times, are provided to NSE in a timely manner.
5.3 In the absence of cargo documentation, NSE shall not be responsible for the accuracy of the number of packages to be transported.
6.1 Prior to commencement of transport, NSE shall be given the opportunity to inspect the packaging and quality of the cargo at various points at its own discretion.
6.2 If the quality or packaging deviates from expectations, NSE shall note this on the accompanying transport documents.
6.3 If NSE or a third party engaged by NSE is not given the opportunity to inspect the cargo and/or packaging, NSE shall not be liable for loss or damage resulting from defective packaging or inadequate securing of the cargo.
7.1 NSE may terminate the agreement in whole or in part with immediate effect, suspend its obligations, and without prior notice of default or court intervention if:
a. NSE has reasonable grounds to fear that the Client will not fulfil its obligations;
b. NSE has requested security for the performance of the Client’s obligations and the Client fails to provide adequate security;
c. An application for a suspension of payments or debt restructuring under the Dutch Debt Restructuring Act for Natural Persons (WSNP) has been filed by or against the Client;
d. A bankruptcy petition has been filed against the Client;
e. Attachment or enforcement measures have been imposed on the Client's assets;
f. A resolution has been adopted for the dissolution and/or liquidation of the Client;
g. The Client has died or has been placed under legal guardianship;
h. The Client is otherwise in default under this agreement.
7.2 In the situations referred to above, all claims of NSE against the Client shall become immediately due and payable in full without further notice.
NSE is insured for transport activities on the basis of the CMR and AVC conventions. NSE shall only be liable insofar as coverage is provided by its insurer.
9.1 Force majeure means circumstances preventing performance of obligations that cannot be attributed to NSE.
9.2 Force majeure includes, but is not limited to, situations where a third party fails to fulfil contractual obligations towards NSE without fault on NSE’s part, resulting in NSE being unable to fulfil its obligations towards the Client; strikes; traffic congestion; weather conditions; emergencies; war; terrorist acts; and government measures preventing NSE from performing its obligations properly or on time.
9.3 During force majeure, NSE’s obligations shall be suspended. If performance is delayed for more than one month, either party may terminate the agreement without liability for damages.
9.4 NSE may invoke force majeure even if the circumstances preventing performance arise after NSE should have performed its obligations.
Claims by the Client against NSE arising from agreements governed by these terms and conditions shall become time-barred one (1) year after the day following delivery of the goods or the date on which they should have been delivered. In all other cases, the limitation period shall commence on the day following the conclusion of the agreement.
NSE may, at its discretion, offer website services to the Client. NSE strives for maximum availability and careful access security. If the Client suffers damage due to website unavailability, unauthorized access to Client data, or inaccuracies or incompleteness in data processing on the website, NSE shall only be liable insofar as such damage is covered by its liability insurer.
All agreements and quotations between NSE and the Client shall be governed exclusively by Dutch law.
Any dispute between the Client and NSE, insofar as the court has jurisdiction, shall be submitted to the competent court in Arnhem, the Netherlands.
If one or more provisions of these general terms and conditions are found to be null, void, or unenforceable, the remaining provisions shall remain in full force and effect between the parties. The parties undertake to replace the invalid or unenforceable provision with a valid provision that most closely reflects the purpose and intent of the original provision and the agreement between the parties.