Lievaart Expeditie B.V., Kapo Containers B.V. and Davinha B.V.
Article 1: Applicability
1. Unless expressly stated and/or agreed otherwise, these general conditions apply to all the following offers or agreements between the abovementioned companies, jointly as well as individually (hereafter to be referred to as: Lievaart) and third parties (hereafter to be referred to as: the client):
- offers, tenders and/or agreements that relate to activities consisting of delivery, sale and/or rental of containers and/or other goods in the broadest sense of the word.
2. Notwithstanding paragraph 1 of this article, the following conditions, besides the Dutch law, apply to offers or agreements from Lievaart depending on the nature of the activities. In the event that Lievaart carries out activities ordered by the client:
- as forwarding agent: the Dutch Forwarding Conditions including arbitration clause apply, latest version as filed by FENEX at the registry (or registries) of the District Court (or Courts) of Amsterdam (Rotterdam, Breda and Arnhem).
- as regards transport by road: the General Transport Conditions apply, latest version that was filed at the registry of the court in Amsterdam and Rotterdam.
- consisting of cross-border transport: the General Transport Conditions apply, in addition to the Convention on the Contract for the International Carriage of Goods by Road (CMR).
The aforementioned conditions shall be sent free of charge to the client upon request.
3. The applicability of possible purchase or other conditions of the client is expressly rejected, except if and insofar as these conditions of the client have been expressly accepted in writing by Lievaart.
Article 2: Offer and acceptance; conclusion of agreements
All Lievaart’s offers and/ or quotations are without any obligations unless the parties have expressly agreed otherwise in writing.
An agreement between Lievaart and the client shall come into being in one of the following ways:
- through Lievaart’s confirmation of an order placed by the client;
- at the moment that Lievaart has started the execution of activities;
- at the moment that an offer from Lievaart has been accepted by the client verbally or in writing.
The client is bound to the agreement and is obliged, when the agreement is changed and/ or cancelled, to compensate Lievaart the ensuing loss that Lievaart has incurred, expressly including costs incurred, loss of profits, a reservation of production capacity and loss of interest, irrespective of the reason – including force majeure – for the change and/or cancellation and irrespective of its acceptance by Lievaart.
Article 3: Prices; additional costs
1. The prices stated by Lievaart are based on the costs of materials, transport, wages, government taxes and levies, import duties and other factors that determine prices, as they apply on the day of the formation of the agreement.
2. All prices stated by Lievaart are excluding VAT.
3. At all times Lievaart is entitled to pass on to the client any increases due to factors that determine prices as referred to in the first paragraph of this article. Lievaart shall inform the client of price changes as soon as possible and with a specification. Payment of possible additional costs pursuant to this article shall take place at the same time as the principal sum, or with the last instalment.
Article 4: Payment term
Article 5: Delivery
1 Unless expressly agreed otherwise, a delivery term stated by Lievaart is only indicative and can not be considered a deadline. The client is obliged to take delivery of and pay for the goods and services also when the stated delivery term deviates from the original. Lievaart is only in default after the client has given a notice of default, also when a deadline has been agreed.
2 Lievaart’s commitment to an agreed deadline lapses if the client wants to make changes in the specifications of the work or does not comply with any obligation to provide information, materials or cooperation. When executing the agreement, the client is obliged to do all that is reasonably necessary or desirable to enable a timely delivery by Lievaart.
Article 6: Inspection and complaints
1. Upon delivery, the client is obliged to immediately inspect the delivered goods and/ or services or the carried out activities. Furthermore, the client is obliged to immediately inform Lievaart in writing of any observed defects, at the latest within 24 hours after the delivery.
2. After expiry of the term mentioned in paragraph 1 of this article, Lievaart shall be considered to have fulfilled the agreement satisfactorily and the client no longer has a right to submit a claim.
3. The client must provide Lievaart the opportunity at all times to remedy defects, in any case if there are obvious defects, otherwise guaranties and/ or claims for compensation shall lapse.
Article 7: Termination
1. Lievaart can completely or partially dissolve or terminate the agreement with the client with immediate effect and without judicial intervention by means of a notification to that effect to the client:
a: in the event of the client’s notification of or application for bankruptcy, or the granting of a bankruptcy or moratorium of payments to the client or in the event of a comparable situation;
b. if the client does not fulfil the obligations pursuant to the present agreements;
c: if the Debt Rescheduling Natural Persons Act applies to the client or the client has lost the control over his assets in another way;
d: the client dies;
e: if the corporate status is lost, in the event of a dissolution, complete or partial winding-up or actual winding-up of the client’s company, termination of the client’s company;
f: if containers and/or other goods are not returned to Lievaart on first demand.
2. Lievaart shall never be obliged to pay any compensation to the client due to a dissolution or termination as referred to in the previous paragraph.
3. In the event of a dissolution or termination as referred to in the first paragraph of this article, Lievaart can demand from the client that containers and/or other goods are immediately returned. If the client does not meet this return obligation, Lievaart can arrange for the containers and/or other goods concerned to be picked up at the client’s expense.
Article 8: Ownership, retention of title
All delivered goods remain Lievaart’s property until all claims that Lievaart has against the client (including possible related (collection) costs and interest) have been fully paid.
Before the aforementioned transmission of ownership, the client is not authorised to sell, deliver or otherwise dispose of these goods, other than in accordance with the normal business activities and the normal designated use of the goods. Furthermore, the client is not allowed to pledge these goods or to grant any other right thereon to third parties as long as the ownership of these goods has not been transferred to the client.
As regards the goods that have been supplied subject to retention of title, the client is obliged to handle them with due care and retain them as recognisable property of Lievaart.
Lievaart is entitled to reclaim the goods that have been delivered subject to retention of title and that are still at the client’s premises if the client does not provide a timely payment of the invoices or has or is likely to have financial difficulties. At all times, the client shall provide Lievaart free access to his goods for an inspection and/or to execute Lievaart’s rights.
Article 9: Force majeure
1. Lievaart’s shortcomings in the fulfilment of the agreement can not be attributed to Lievaart if they are not its fault nor should they be for its account pursuant to the law, the agreement or generally accepted practice. Such shortcomings that cannot be attributed to Lievaart Expeditie B.V. are in any case understood to mean the consequences of war, mobilisation, commotion, floods, traffic congestion, stagnation or limitation or termination of the delivery by public utility companies, work strike, fire or a breakdown in Lievaart’s company or in one or more of its suppliers, extreme weather conditions, governmental measures, failure to deliver, or timely deliver, the necessary materials and semi-finished goods by third parties, intent or gross negligence of helpers and other similar circumstances.
2. Notwithstanding other rights that Lievaart is entitled to, if Lievaart is prevented from fulfilling agreements (in a timely manner) due to force majeure, Lievaart is entitled to suspend the execution of that agreement or to dissolve the agreement completely or partially by a written statement, without judicial intervention at Lievaart’s discretion and without being liable to pay any compensation. This does not affect the client’s obligation to pay for what has already been delivered and the costs that have already incurred.
Article 10: The containers
The containers with accessories and/or other goods may not be painted or in any other way provided with markings, symbols or names other than the markings that Lievaart has applied, as long as the client has not acquired ownership.
Article 11: Liability
1. Lievaart’s liability is limited to the obligations that Lievaart has undertaken pursuant to these general conditions.
2. The client agrees to indemnify Lievaart against any claims for compensation from third parties, insofar as Lievaart is not obliged to pay the compensation concerned pursuant to these General Conditions.
3. Insofar as Lievaart’s liability can be established, it shall at all times be limited to the amount that is paid out by Lievaart’s business liability insurance in the case concerned.
4. A precondition for any right on compensation is that each time it occurs the client must report the damage to Lievaart as soon as is reasonably possible and in writing.
Article 12: Applicable law and disputes
1. Dutch law applies to all agreements to be concluded by Lievaart as well as the ensuing obligations. All disputes that result from or are related to these conditions and the ensuing legal relationships between the parties, also those which are just considered as such by one of the parties, shall be settled exclusively by the court of Rotterdam.
2. The parties expressly exclude the applicability of the Vienna Sales Convention.