HenX Standard Trading Conditions
headings are indicative and do not form part of these conditions
HenX reserves the right at all times to vary, change, alter, amend, add to or remove any of these terms. By using the service of HenX you accept that you are bound by the current terms and conditions and notices and we therefore recommend that you check these each time you request the service of HenX or periodically if you are a customer.
DEFINITIONS AND APPLICATION
1. In these Conditions:
(A)“Forwarder”: is any HenX [parent, subsidiary, or associated companies]company exclusively trading as a forwarder under these conditions.
(B)“Consignee”: the Person to whom the goods are consigned
(C)“Customer”: any Person at whose request or on whose behalf the Forwarder undertakes any business or provides advice, information or services.
(D)“Direct Representative”: the Company acting in the name of and on behalf of the Customer and/or Owner.
(E)“Goods”: the cargo to which any business under these conditions relates.
(F)“Person”: natural person(s) or any body or bodies corporate.
(G)“SDR”: are Special Drawing Rights as defined by the International Monetary Fund.
(H)“Transport Unit”: packing case, pallets, container, trailer, tanker, or any other device used whatsoever for and in connection with the carriage of Goods by land, sea or air.
(I)“Owner”: the Owner of the Goods or Transport Unit and any other Person who is or may become interested in them.
2. (A) Subject to Sub-Paragraph (B) below, all and any activities of the Forwarder in the course of business whether gratuitous or not are undertaken subject to these Conditions.
(B) If any legislation is compulsorily applicable to any business undertaken, these Conditions shall, as regards such business, be read as subject to such legislation and nothing in these Conditions shall be construed as a surrender by the Forwarder of any of its rights or immunities or as an increase of any of its responsibilities or liabilities under such legislation and if any part of these Conditions be repugnant to such legislation to any extent such part shall as regards such business be overridden to that extent and no further.
(C) The Customer warrants that he is either the Owner or the authorised Agent of the Owner and also that he is accepting these Conditions not only for himself but also as Agent for and on behalf of the Owner.
(D) These general conditions shall apply to any form of service which the forwarder shall perform. Within the framework of these general conditions the term forwarder must not be understood exclusively to mean the forwarder as contemplated in Book 8 of the Dutch Civil Code. The party ordering the forwarder to carry out operations and activities shall be considered the forwarder's principal, regardless of the agreed mode of payment.
(E) With respect to the operations and activities, such as those of ship-brokers, stevedores, carriers, insurance agents, warehousing and superintending firms etc. which are carried out by the forwarder, the conditions customary in the particular trade, or conditions stipulated to be applicable, shall also be applicable.
(F) The forwarder may at any time declare applicable provisions from the conditions stipulated by third parties with whom he has made contracts for the purpose of carrying out the orders given to him.
(G) The forwarder may have his orders and/or the work connected therewith carried out by third parties or the servants of third parties. In so far as such third parties or their servants bear statutory liability towards the forwarder's principal, it is stipulated on their behalf that in doing the work for which the forwarder employs them they shall be regarded as solely in the employ of the forwarders. All the provisions (inter alia) regarding non-liability and limitation of liability and also regarding indemnification of the forwarder as described herein shall apply to such persons.
(H) Instructions for delivery C.O.D., against banker's
draft etc., shall be deemed to be forwarding work.
4. (A) Subject to Clauses 11 and 12 below, the Forwarder shall be entitled to procure any or all of its services as an Agent or to provide those services as a Principal.
(B) The Forwarder shall on demand by the Customer provide evidence of any Contract entered into as Agent for the Customer. Insofar as the Forwarder may be in default of this obligation, it shall be deemed to have contracted with the Customer as a Principal for the performance of the Customer's instructions.
5. When the Forwarder contracts as a Principal for any services, it shall have full liberty a) to perform such services itself or b) to subcontract the whole or any part of such services to third parties (including the Forwarder's own parent, subsidiary, or associated companies).
6. When the Forwarder acts as an Agent on behalf of the Customer, the Forwarder shall be entitled (and the Customer hereby expressly authorises the Forwarder) to enter into all such Contracts on behalf of the Customer as may be necessary or desirable to fulfil the Customer's instructions and subject to the trading conditions of the parties with whom such contracts are made.
7. The Forwarder reserves to itself a reasonable liberty as to the means, route and procedure to be followed in the handling, storage and transportation of goods.
8. (A) Subject to Sub-Clause (B) hereof, the Forwarder shall have a general lien on all goods and documents relating to goods in its possession, custody or control for all sums due at any time from the Customer or Owner, and shall be entitled to sell or dispose of such goods or documents as Agent for and at the expense of the Customer and apply the proceeds in or towards the payment of such sums on 28 days’ notice in writing to the Customer. Upon accounting to the Customer for any balance remaining after payment of any sum due to the Forwarder and the costs of sale or disposal the Forwarder shall be discharged of any liability whatsoever in respect of the goods or documents.
(B) When the goods are liable to perish or deteriorate, the Forwarder's right to sell or dispose of the goods shall arise immediately upon any sum becoming due to the Forwarder subject only to the Forwarder taking reasonable steps to bring to the Customer's attention its intention of selling or disposing of the goods before doing so.
9. The Forwarder shall be entitled to retain and be paid all brokerages, commissions, allowances and other remunerations customarily retained by or paid to Freight Forwarders.
10. (A) If delivery of the goods or any part thereof is not taken by the Customer, Consignee or Owner, at the time and place when and where the Forwarder is entitled to call upon such person to take delivery thereof, the Forwarder shall be entitled to store the goods or any part thereof at the sole risk of the Customer, whereupon the liability of the Forwarder in respect of the goods or that part thereof stored as aforesaid shall wholly cease and the cost of such storage if paid for or payable by the Forwarder or any Agent or Sub-Contractor of the Forwarder shall forthwith upon demand be paid by the Customer to the Forwarder.
(B) The Forwarder shall be entitled at the expense of the Customer to dispose of (by sale or otherwise as may be reasonable in all the circumstances):-
(i) on 28 days’ notice in writing to the Customer, or (where the Customer cannot be traced and reasonable efforts have been made to contact any parties who may reasonably be supposed by the Forwarder to have any interest in the goods) without notice, any goods which have been held by the Forwarder for 90 days and which cannot be delivered as instructed; and
(ii) without prior notice, goods which have perished, deteriorated or altered or are in immediate prospect of doing so in a manner which has caused or may reasonably be expected to cause loss or damage to the Forwarder or Third Parties or to contravene any applicable laws or regulations.
11. (A) No Insurance will be effected except upon express instructions given in writing by the Customer and all Insurances effected by the Forwarder are subject to the usual exceptions and conditions of the Policies of the Insurance Forwarder or Underwriters taking the risk. The risks to be covered shall be clearly stated. A mere statement of the value is not enough.
(B)If the forwarder has taken out any insurance in his own name he shall be bound - if so requested - only to transfer his claims against the insurer to his principal.
(C)The forwarder shall not be responsible as regards the choice of the insurer and the latter's solvency.
(D)When the forwarder uses derricks and any other such equipment for carrying out his orders he shall be entitled to take out insurance at his principal's expense to cover the forwarder's risk arising through the use of such equipment.
12. (A) Except under special arrangements previously made in writing or under the terms of a printed document signed by the Forwarder, any instructions relating to the delivery or release of goods in specified circumstances only, such as (but without prejudice to the generality of this Clause) against payment or against surrender of a particular document, are accepted by the Forwarder where the Forwarder has to engage third parties to effect compliance with the instructions, only as Agents for the Customer.
(B) The Forwarder shall not be under any liability in respect of such arrangements as are referred to under Sub-Clause (A) hereof save where such arrangements are made in writing.
(C) In any event, the Forwarder's liability in respect of the performance or arranging the performance of such instructions shall not exceed the limits set out in Clause 27 of these Conditions.
13. Advice and information, in whatever form it may be given, is provided by the Forwarder for the Customer only and the Customer shall not pass such advice or information to any Third Party without the Forwarder's written agreement . The Customer shall indemnify the Forwarder against all loss and damage suffered as a consequence of any breach of this Condition by the Customer.
14. (A) Except under special arrangement previously made in writing the Forwarder will not accept or deal with bullion, coin, precious stones, jewellery, valuables, antiques, pictures, human remains, livestock, pets or plants. Should any Customer nevertheless deliver any such goods to the Forwarder or cause the Forwarder to handle or deal with any such goods otherwise than under special arrangements previously made in writing the Forwarder shall be under no liability whatsoever for or in connection with such goods howsoever arising.
(B) The Forwarder may at any time waive its rights and exemptions from liability under Sub-Clause (A) above in respect of any one or more of the categories of goods mentioned herein or of any part of any category. If such waiver is not in writing, the onus of proving such waiver shall be on the Customer.
15. Except following instructions previously received in writing and accepted by the Forwarder, the Forwarder will not accept or deal with goods of a dangerous or damaging nature, nor with goods likely to harbour or encourage vermin or other pests, nor with goods liable to taint or affect other goods. If such goods are accepted pursuant to a special arrangement and then in the opinion of the Forwarder they constitute a risk to other goods, property, life or health, the Forwarder shall where reasonably practicable contact the Customer, but reserves the right at the expense of the Customer to remove or otherwise deal with the goods.
16. Where there is a choice of rates according to the
extent or degree of the liability assumed by the Forwarder and/or third
parties, no declaration of value will be made and/or treated as having been
made except under special arrangements previously made in writing by an officer
of the Forwarder so authorised as referred to in clause 27(D).
17. The Customer warrants:
(A) that the description and particulars of any goods furnished by or on behalf of the Customer are full and accurate.
(B) that all goods have been properly and sufficiently prepared, packed, stowed, labelled and/or marked, and that the preparation, packing, stowage, labelling and marking are appropriate to any operations or transactions affecting the goods and the characteristics of the goods.
(C) that where the Forwarder receives the goods from the Customer already stowed in or on a container, trailer, tanker, or any other device specifically constructed for the carriage of goods by land, sea or air (each hereafter individually referred to as "the transport unit" ), the transport unit is in good condition, and is suitable for the carriage to the intended destination of the goods loaded therein or thereon.
18. Should the Customer otherwise than under special arrangements previously made in writing as set out in Clause 15 above deliver to the Forwarder or cause the Forwarder to deal with or handle goods of a dangerous or damaging nature, or goods likely to harbour or encourage vermin or other pests, or goods liable to taint or affect other goods, he shall be liable for all loss or damage arising in connection with such goods and shall indemnify the Forwarder against all penalties, claims, damages, costs and expenses whatsoever arising in connection therewith, and the goods may be dealt with in such manner as the Forwarder or any other person in whose custody they may be at any relevant time shall think fit.
19. The Customer undertakes that no claim shall be made against any Director, Servant, or Employee of the Forwarder which imposes or attempts to impose upon them any liability in connection with any services which are the subject of these Conditions and if any such claim should nevertheless be made, to indemnify the Forwarder against all consequences thereof.
20. The Customer shall save harmless and keep the Forwarder indemnified from and against:
(A) All liability, loss, damage, costs and expenses whatsoever (including without prejudice to the generality of the foregoing, all duties, taxes, imposts, levies, deposits and outlays of whatsoever nature levied by any authority in relation to the goods) arising out of the Forwarder acting in accordance with the Customer's instructions or arising from any breach by the Customer of any Warranty contained in these Conditions or from the negligence of the Customer, and
(B) Without derogation from Sub-Clause (A) above, any liability assumed or incurred by the Forwarder when by reason of carrying out the Customer's instructions the Forwarder has reasonably become liable or may become liable to any other party, and
(C) All claims, costs and demands whatsoever and by whomsoever made or preferred in excess of the liability of the Forwarder under the terms of these Conditions regardless whether such claims, costs and demands arise from or in connection with the negligence or breach of duty of the Forwarder, its Servants, Sub-Contractors or Agents, and
(D) Any claims of a General Average nature which may be made on the Forwarder.
21. (A) The Customer shall pay to the Forwarder in cash or as otherwise agreed all sums immediately when due(prior to first shipment date or delivery, whichever date comes first), unless otherwise agreed to in writing by the Forwarder without reduction or deferment on account of any claim, counterclaim or set-off. In currency and to Bank Account as per invoice from Forwarder.
(B) In respect of all sums which are overdue(day ten onwards), the Customer shall be liable to pay to the Forwarder legal interest in conformity with Articles 6:119 or 6:119a of the Dutch Civil Code.
(C) Customer bears risk of foreign exchange fluctuations. Estimates of fees for Forwarder services may have been provided using exchange rates then in effect. Actual charges from Forwarder will reflect the currency exchange rate at time of invoice issue.
22. Despite the acceptance by the Forwarder of instructions to collect freight, duties, charges or other expenses from the Consignee or any other person the Customer shall remain responsible for such freight, duties, charges or expenses on receipt of evidence of proper demand and in the absence of evidence of payment (for whatever reason) by such Consignee or other person when due.
23. Where liability for
General Average arises in connection with the goods, the Customer shall
promptly provide security to the Forwarder or to any other party designated by
the Forwarder in a form acceptable to the Forwarder.
LIABILITY AND LIMITATION
24. The Forwarder shall perform its duties with a reasonable degree of care, diligence, skill and judgement.
25. The Forwarder shall be relieved of liability for any delay, loss or damage if and to the extent that such delay, loss or damage is caused by
(A) Acts of God, perils of the air, enemies, public authorities acting with actual or apparent authority or law, acts or omission of postal, customs or other government officials, riots, strikes, or other local disputes, hazard incidents to a state of war, weather conditions, temperature or atmospheric changes or conditions, mechanical or other delay, of any aircraft or vessel used in providing transportation services, or defects in the goods being shipped strike, lock-out, stoppage or restraint of labour, the consequences of which the Forwarder is unable to avoid by the exercise of reasonable diligence;
(B) any cause or event which the Forwarder is unable to avoid and the consequences whereof the Forwarder is unable to prevent by the exercise of reasonable diligence.
26. (A) Except under special arrangements previously made in writing with and accepted by the Forwarder all quotation’s, estimations are valid for one week(seven days) and the Forwarder will not be obligated to honour or extend any previously made exceptions or discounts in following quotations or estimations.
(B) )Except under special arrangements previously made in writing the Forwarder accepts no responsibility for departure or arrival dates of goods.
27. (A) Subject to clause 2(B) and 11(B) above and sub-clause (D) below the Forwarder's liability howsoever arising and not withstanding that the cause of delay, loss or damage be unexplained shall not exceed:
(i) 10,000 SDR per occurrence or series of occurrences with one and the same cause of damage, on the understanding that in the event of damaging, loss of value or loss of the goods comprised in the order, the liability shall be limited to 4 SDR per kilogram damaged or lost gross weight, the maximum being 4,000 SDR per consignment.
(ii) in the case of all other claims:
(a) the value of the goods the subject of the relevant transaction between the Forwarder and its Customer, or
(b) a sum at the rate of two SDRs per kilo of the gross weight of the goods the subject of the said transaction, or
(c) 10,000 SDRs in respect of any one transaction whichever shall be the least.
For the purposes of Clause 27(A) the value of the goods shall be their value when they were or should have been shipped. The value of SDRs shall be calculated as at the date when payment is due by the Forwarder.
(B) Subject to Clause 2(B) above, and Sub-Clause (D) below, the Forwarder's liability for delay, loss or damage as a result of failure to deliver or arrange delivery of goods in a reasonable time or (where there is a special arrangement under Clause 26(A)) to adhere to agreed departure or arrival dates shall not in any circumstances whatever exceed a sum equal to the amount of the Forwarder's charges in respect of the relevant transaction.
(C) Save in respect of such delay, loss or damage as is referred to in Sub-Clause (B) and subject to Clause 2(B) above and Sub-Clause (D) below, the Forwarder shall not in any circumstances whatsoever be liable for indirect or consequential loss such as (but not limited to) loss of profit, loss of market or the consequences of delay or deviation however caused.
(D) By special arrangement agreed in writing, the Forwarder may accept liability in excess of the limits set out in Sub-Clauses (A) to (C) above upon the Customer agreeing to pay the Forwarder's additional charges for accepting such increased liability. Details of the Forwarder's additional charges will be provided upon request.
28. (A) Any claim by the Customer against the Forwarder arising in respect of any service provided for the Customer or which the Forwarder has undertaken to provide shall be made in writing and notified to the Forwarder within five days of delivery for air or ground shipments and within three days of delivery for ocean shipments .Oral notice of claim must be followed by written notice of claim from Customer to Forwarder. The Forwarder shall be relieved of responsibility for any loss or damage by Customer if written notice of damage is not provided to Forwarder within ten days of delivery or in the event of loss within fifteen days from the date upon which the Customer became or should have become aware of any event or occurrence alleged to give rise to such claim and any claim not made and notified as aforesaid shall be deemed to be waived and absolutely barred except where the Customer can show that it was impossible for him to comply with this Time Limit and that he has made the claim as soon as it was reasonably possible for him to do so.
(B) Notwithstanding the provisions of Sub-Paragraph (A) above the Forwarder shall in any event be discharged of all liability whatsoever howsoever arising in respect of any service provided for the Customer or which the Forwarder has undertaken to provide unless suit be brought and written notice thereof given to the Forwarder within nine months from the date of the event or occurrence alleged to give rise to a cause of action against the Forwarder.
(C) Even where all-in or fixed rates, as the case may be, have been agreed, the forwarder, who is not a carrier, shall be liable under the present conditions and not as a carrier.
29. These Conditions and any act or contract to which they apply shall be governed by Dutch Law and any dispute arising out of any act or contract to which these conditions apply shall be subject to the exclusive jurisdiction of the Dutch Courts.