Jun 06, 2012
General conditions of Nirint Inc.
(a) Unless it has been unambiguously agreed otherwise in writing, the following conditions apply to all offers or orders of, and all activities, agreements, services, performances and deliveries executed or to be executed by Nirint Inc. (below: Nirint) in the widest possible sense, regardless of whether these have been or will be made or performed or executed by or with the assistance of employees of Nirint or by agents/intermediaries or subcontractors instructed by Nirint.
(b) General conditions used by principals or contractual partners of Nirint or third parties (regardless of whether they are contractually involved or not) will not be accepted by Nirint and cannot be considered binding for Nirint unless this has been agreed in writing, with express exclusion of any contradictory conditions of Nirint.
(c) These conditions also apply to all documents issued by Nirint, including bills of lading, warehouse receipts or other storage documents, booking notes, charter parties, waybills or consignment notes, receipts, delivery orders, arrival notices, mates receipts, or any other document, everything in as far as this is not contrary to compulsory provisions of Dutch law or international Conventions which apply in The Netherlands and to Dutch legal entities or persons.
(d) A brief summary of these conditions in the English language is mentioned on the letters and invoices of Nirint; the complete text has been deposited with the Chamber of Commerce in Rotterdam under the name Nirint Shipping BV, can be consulted on the website of Nirint: www.nirint.com and is furthermore sent on first request. Contractual partners and other parties involved who have not protested against these conditions after they have been able to take note of them will be deemed to have accepted their application. Non-contractual partners who have given others the liberty to agree to these conditions with Nirint will be deemed to have accepted that the conditions can then also be invoked against them.
II Applicable law and jurisdiction
All agreements, activities, documents and legal relationships mentioned above will be governed by Dutch law. The Court of Rotterdam will have exclusive jurisdiction to hear claims of and against Nirint unless it has been otherwise agreed in writing by means of a document that is validly signed by or on behalf of Nirint itself; Nirint however reserves the right to sue counterparts wherever they are established or domiciled or where claims can be enforced against them.
III Time bar
Every claim right against Nirint other than arising from forwarding activities is forfeited by the mere passing of twelve months from the moment on which the claim arose, unless the applicable law or the relevant contract entails a shorter term. Claims against Nirint arising out of forwarding activities become time barred by the passing of nine months from the moment on which the claim arises. All incidents which can lead to the bringing of a claim against Nirint must be reported to Nirint in writing immediately, but ultimately ten working days after this has become known, under penalty of forfeiture of all claim rights.
IV Rates, invoices and payment
(a) Rates are based on the price level, wages, costs of social security and/or laws, taxes, insurance and exchange rate notations existing at the time of the provision of the instruction or the conclusion of the agreement. In case of an increase of one or more of those costs, the customary or agreed rates can be amended by Nirint with immediate effect.
(b) For special and/or unusual activities and/or unexpectedly time consuming services or services requiring unexpected effort, a reasonable remuneration can always be charged.
(c) Invoices must be paid within the term mentioned therein, or, in the absence of such term, within a term of 15 days from the invoice date. If the principal does not settle an invoice within the given term, the principal is due to pay the statutory (trade) interest from the date on which payment should have been made until the date of full payment. If non-payment leads to collection of the claim, the amount will be increased by 10% administration costs and moreover the in and out of Court costs can be charged. In case of Court proceedings the counterpart of Nirint is bound to pay in full all the actual costs effectively spent in that connection (also if these exceed the costs allowed by the Court).
(d) Contrary to the above section of this article, a claim of Nirint will become due and payable immediately if the principal is granted a (provisional or definite) suspension of payments or if it is declared bankrupt, or if it effectively ceases trading, or if an arrest is made against the principal or if the principal or his representative or subcontractor fails to comply with obligations under any agreement with Nirint.
(e) The principal, counterpart or debtor of Nirint will not be entitled to invoke any set off, on whatever ground, in respect of amounts charged or invoiced or claimed by Nirint to such party.
(f) Disputes between Nirint and the principal, counterpart, subcontractor or representative thereof concerning any invoice or the performance of any agreement or activity or document of Nirint as related under Article I will not suspend the payment obligation of the principal. Whenever on the basis of any compulsory statutory provision or judicial decision there would be a right to suspend payments, the counterpart of Nirint will promptly provide security in the form of a guarantee of a first class Dutch bank, to cover the suspended obligations.
V Lien and right of pledge
(a) Nirint will have a right of pledge and a lien/ a right of retention towards anyone who demands delivery of all objects, documents and funds (which right will be established by the mere handing over or putting at the disposal of such items) which it will have in its possession on whatever basis and to whatever purpose, in security of all claims which it has or will in the future obtain against the principal or his representative or subcontractor, and/or the owner or party otherwise entitled to such items.
(b) Nirint is entitled to regard whoever brings the objects, documents or funds as meant in Articlesection I into its power or possession (or that of its subcontractor or intermediary or agent) as being entitled to do so, or to regard such person as the authorised representative of the owner of such items or the party entitled thereto.
(c) Nirint is entitled to give notification of its right of pledge on the basis of this article to whoever, and whenever, it deems fit in its sole discretion.
(d) Nirint will also be entitled to exercise the rights mentioned in this article for whatever is (or will become) payable by the principal or counterpart in connection with previous instructions of that principal or counterpart or its representatives or subcontractors.
VI Employees and subcontractors of Nirint
Nirint shall be entitled to have any service performed by its own employees or by intermediaries or subcontractors, with its own materials or materials of third parties. All parties thus involved may invoke these conditions.
(a) All acts and services of Nirint will be performed onfor account of, and at the risk of, the principal unless this would be contrary to the nature or the purpose of the agreement, taking into account the contents of these Conditions.
(b) Nirint binds itself to apply reasonable effort to comply with its obligations, but if in spite of this, those obligations are not fulfilled, Nirint will not be liable for any damage or loss, unless the principal or counterpart proves that the loss as was caused by the intent or gross negligence of Nirint Shipping B.V., in the sense of: the legal entity itself or statutory directors thereof (or persons that can be identified with such directors).
(c) If Nirint should still be liable in view of the provisions under (a) and (b), then that liability will in all cases be limited to the following amounts:
- in case of damage to goods: 2 SDR per kilogram damaged or lost product;
- for other losses: 10% of the value of the specific contract relating to the relevant incident or the part of such contract relating to such incident,
in all cases with an overall maximum of SDR 7,500 per incident or chain of incidents with the same cause, in as
far as this is not contrary to compulsory law, in which case only the compulsory arrangement will apply. The . indemnification payable by Nirint shall in no event exceed the invoice value of the goods at the time they were received by Nirint, respectively the invoice value for Nirint of the relevant contract or service; liability for indirect loss, loss for delay or consequential loss is entirely excluded in all cases.
(d) Notwithstanding the provisions of Aarticle III, but exclusively to the extent that compulsory law does not provide otherwise, Nirint must be notified in writing of all (threatening) damage or claims ultimately at the time of completion of the activities or the termination of the agreement. In the absence of such notification, Nirint will merely be bound to transfer any rights it may have against third parties, even if the law does not oblige Nirint to do so, against abandonment by the principal or counterpart of all its rights against Nirint.
(e) Nirint will furthermore not be liable for losses which areis, or could have been, covered by insurance of the principal or counterpart.
VIII Liability of the principal
The principal (which includes its representatives or subcontractors) is liable towards Nirint for all losses which Nirint suffers or may suffer from the acceptance and performance of the relevant agreement or relative activities, or from the nature or condition (possible radioactivity or danger for the environment or other hazards included)
of the relevant goods and the packing thereof, the incorrectness, inaccuracy or incompleteness of instructions and data, any failure to put the goods at disposal at the agreed time and place, and the non-provision or untimely provision of documents and/or instructions, as well as any faulty or negligence in general of the principal and his subordinates and third parties instructed by him or working for him.
The principal will hold Nirint and its employees, intermediaries or subcontractors or other persons working for or on behalf of Nirint harmless in respect of all claims of third parties against whom Nirint or the said persons will not able to invoke these general conditions. For that purpose the principal shall on first demand provide security for, and will arrange and pay for the defence against, any claims notwithstanding the right of Nirint to do this itself for account of the principal.
Insurance ofpf whatever nature will only be arranged in the name and for account and at the risk of the principal on the basis of a written instruction to Nirint if and to the extent that this has been explicitly accepted. Nirint then is free in the choice of an insurer. In the absence of such instruction Nirint is entitled to assume that the principal has arranged for insurance itself in respect of all risks for which insurance is possible.
XI Language – abbreviated version
These conditions are in the Dutch language; no rights or defences can be derived by the principal from translations made available in English, Spanish or other languages which are not based on the Dutch version. The summary printed on letters and invoices are for information purposes only; by having been able to read these the principal acknowledges that he has also had the opportunity to consult the complete wording.
1. To the exclusion of any and all other Conditions, these General Conditions shall apply to all offers made by, orders given to, agreements concluded with, and in general to work performed by Nirint Inc. (hereinafter to be referred to as “NIRINT”).
2. NIRINT shall be entitled to invoke the provisions of these conditions both against the principal and against his servants and/or representatives. The exemptions or limitations, as the case may be, of liability laid down in these General Conditions have also been made in favour of NIRINT’s servants as well as in favour of all persons whose services NIRINT shall make use of or shall have third parties make use of for the purpose of executing an agreement.
3. In deviation from some provisions of the General Conditions (“Standard Conditions”) referred to in Aarticle 4 of these Conditions NIRINT shall never effect insurance of any kind whatsoever in respect of the goods to which agreements concluded, orders given, or work to be executed relate. Any insurance in that context, if desired, must be taken out by the principal.
4. The following terms and conditions shall apply to the work to be performed by NIRINT, as may be required by the nature of such work:
a. To all work exclusively relating to the storage of goods / warehousing:
the “Veemcondities Amsterdam-Rotterdam” (Warehousing Conditions Arnsterdam-Rotterdam) laid down by the “Vakgroep Veem-, Opslag- en Controlebedrijven van de Scheepvaart Vereniging Noord te Amsterdam” (Section Warehousing, Storage and Superintending Companies of the Shipping Association North at Amsterdam) and the “Vereniging van Geaccrediteerde Vemen” (Association of Accredited Warehousing Companies) at Rotterdam, as filed with the Registrars of the District Courts in Amsterdam and in Rotterdam on 1 March 1994.
b. To all shipbroking:
the “Algemene Nederlandse Cargadoorsvoorwaarden” (General Dutch Shipbrokers’ Conditions), as filed with the Registrars of the District Courts in Amsterdam, Dordrecht, Groningen, Leeuwarden, Middelburg and Rotterdam on 1 December 1992.
c. To all stevedoring relating to containers, general cargo and conventional cargo:
the “Algemene Voorwaarden van de Vereniging van Rotterdamse Stuwadoors” (General Conditions of the Association of Rotterdam Stevedores) (the “Rotterdamse Stuwadoorscondities” – Rotterdam Stevedoring Conditions), as filed with the Registrar of the District Court in Rotterdam on 12 August 1976.
d. To all stevedoring relating to bulk cargo and bulk goods:
the “Voorwaarden Massagoed-stuwadoors Rotterdam 1991” (Conditions of Rotterdam Bulk Goods Stevedores 1991) of the “Vereniging van Rotterdamse Machinale Overslagbedrijven” (Association of Rotterdam Mechanized Transhipment Companies), as filed with the Registrar of the District Court in Rotterdam under number 505 on 8 May 1991.
If and to the extent that NIRINT expressly binds itself to inland carriage of goods by road:
e. The “Algemene Vervoercondities 1983 (AVC)” (General Carriage Conditions), as filed with the Registrars of the District Courts in Amsterdam and Rotterdam on 1 September 1983
f. To all forwarding and all further work to be done by us, in so far as such work falls beyond the scope of the work referred to in this article:
the “Algemene Voorwaarden” (General Conditions) of the FENEX (“Nederlandse Organisatie voor Expeditie en Logistiek” -Netherlands Association for Forwarding and Logistics), also called the “Nederlandse Expeditievoorwaarden” (Dutch Forwarding Conditions), as filed with the Registrars of the District Courts in Amsterdam, Arnhem, Breda and Rotterdam on 2 March 1992.
The Conditions referred to under paragraphs a to f inclusive of Aarticle 4 are available from NIRINT and will be sent free of charge on request. In all cases of uncertainty on the applicable Conditions, NIRINT reserves the right to render a decision thereon that is binding to all parties involved.
5. Unless expressly agreed otherwise in writing, NIRINT shall not enter into contracts of affreightment for its own account but solely as agent of the shipowner / carrier concerned or as forwarder by order of the charterer, in which case the Dutch Forwarding Conditions as referred to in Aarticle 4 under f above shall apply.
INDEMNITY CLAUSE WITH REGARD TO CUSTOMS DECLARATIONS:
6. In case the principal orders NIRINT to make customs declarations and/or perform other customs formalities and NIRINT executes such order or charges a third party engaged by NIRINT to do so, the principal shall, if the customs authorities and/or the Dutch Inland Revenue Department and/or any other competent authority directs any claim in respect of levies, customs duties, excise duties, fines and/or otherwise against NIRINT or against the third party engaged on that account by NIRINT and if in the latter case NIRINT is required to render that third party harmless, be required to render NIRINT fully harmless on that account and in that case fully compensate NIRINT on demand, unless the principal proves that such claim is the consequence of an action or omission made by NIRINT either with the intention to cause such claim or recklessly in the knowledge that such claim was likely to ensue. Orders to NIRINT to make customs declarations and/or perform other customs formalities shall specifically be agreed upon in writing by NIRINT and the principal.
APPLICABLE LAW AND JURISDICTION:
7. Unless the General Conditions (“Standard Conditions”) referred to under paragraphs a to f inclusive of Aarticle 4 specify otherwise in respect of the settlement of disputes, all disputes which may arise between NIRINT and the principal in connection with agreements to which these general conditions apply shall, notwithstanding any appeal, be exclusively decided by the court having jurisdiction in Rotterdam. The laws of the Netherlands shall apply.
FILED CONDITIONS :
8. These Conditions have been filed with the Registrars of the District Courts in Breda and Rotterdam in both the Dutch and the English language. In the relationship between NIRINT and the principal, the Dutch text shall be binding on the parties at all times.
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