GENERAL CONDITIONS
filed with the Chamber of Commerce at Amsterdam on 05-11-2009 under no. 34189505
Article 1 – Definitions
1. In these general conditions the following terms have the following meanings:
a. Flowerwings: Flowerwings Cargo B.V.
b. Customer: The party to whom Flowerwings’ offer is addressed and/or the party
entering into a contract with Flowerwings;
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 Flowerwings’ offers and to all agreements
entered into Flowerwings 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 Flowerwings 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 Flowerwings 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 Flowerwings 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 Flowerwings under normal
circumstances and during normal working hours, unless stated otherwise.
4. The contract comes into being immediately as soon as Flowerwings 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 Flowerwings are not
binding on Flowerwings until confirmed in writing by Flowerwings.
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
Flowerwings 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,
Flowerwings may increase the agreed price accordingly, irrespective of whether or
not that has already been agreed.
3. If Flowerwings performs any variations to the contract, the costs involved will be for
the Customer’s account.
4. Variations are any work carried out by Flowerwings, 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 Flowerwings’ 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. Flowerwings 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 Flowerwings
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 Flowerwings. If the Customer fails to pay within the
agreed period he shall be deemed to be in default and Flowerwings 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 Flowerwings as
the result of the Customer’s failure to comply with any obligation towards
Flowerwings 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 Flowerwings’ 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, Flowerwings
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 Flowerwings’ possession in good time. The Customer is liable for all delays
and all losses resulting from such delays to Flowerwings, and shall indemnify
Flowerwings 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. Flowerwings is free in the manner of performance of the contract, unless agreed
otherwise in writing. Flowerwings may bring in third parties for the performance of
the agreement without having to consult the Customer in advance.
Article 8 – Force majeure
1. Flowerwings 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,
Flowerwings 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 Flowerwings’ business, interference from legal provisions, official restrictions
and any other circumstance preventing performance that is not solely dependent
on Flowerwings’ 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, Flowerwings’ 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. Flowerwings 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. Flowerwings is not liable for loss resulting
from a wilful act or gross negligence by parties other than its subordinates.
3. Any person present on Flowerwings’ sites, in or on Flowerwings’ 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 Flowerwings, . Flowerwings accepts
no liability whatsoever for bodily injury or material damage.
4. Any claim against Flowerwings 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
Flowerwings 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 Flowerwings, to Flowerwings’ personnel or to third parties
brought in through Flowerwings 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 Flowerwings, Flowerwings’ personnel or the third parties brought in
through Flowerwings.
Article 10 – Indemnification
1. The Customer is obliged to indemnify and compensate Flowerwings in respect of
all damage, costs and interests, claimed from Flowerwings by third parties in connection
with the performance of the contract by Flowerwings.
2. In the event that Flowerwings has goods in his possession in connection with the
performance of the contract the Customer will be obliged to fully indemnify
Flowerwings 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 Flowerwings in respect of damage to
and/or penalties, claims, fines and other measures imposed by the Government.
4. The Customer’s obligation to indemnify Flowerwings also applies in respect of
managers and employees of and other persons involved at Flowerwings.
Article 11 – Right of retention and lien
1. Flowerwings 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. Flowerwings may also exercise that right for what
it is owed by the Customer under previous and subsequent contracts.
2. Flowerwings 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 Flowerwings for whatever
reason and for whatever purpose shall serve Flowerwings 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.