Terms & Conditions Services Netherlands

General Terms and Conditions (“GT&C”) of Gerlach & Co. Internationale Expediteurs B.V. (“Gerlach”)

Preamble

§ 1 Conclusion of the contract for Customs Services

1) The customer may post price requests for specific Customs Services, as defined Section 1, § 1 sub 1), on the Gerlach platform (“Platform”). After reviewing the requested Customs Service and the information entered by the customer in this context, Gerlach will, at its entire discretion, submit to the customer an offer for the provision of the Customs Services, unless there are legal or operational reasons to oppose to that.

2) Gerlach’s offer is binding, subject to the assumptions made by Gerlach and the correctness and completeness of the entered information, and can be accepted by the customer within the acceptance period displayed on the platform for the respective order.

3) A Customs Clearance Contract is concluded upon acceptance of the offer by the customer.

4) The customer must provide accurate and complete information about the goods to be cleared, the place of collection and the place of delivery, including any data necessary to contact the consignee or his representative.

§ 2 Parties to the agreement

The parties to the agreement for the Customs Services offered via the platform are Gerlach and the customer (“Customer”). Gerlach and the Customer are also jointly called “the Parties”.

§ 3 Subject matter of the contract

Gerlach provides Customs Services in accordance with these GT&C.

§ 4 Confidentiality, data protection

1) The Parties undertake to keep strictly confidential any trade secrets and other commercial or technical information or know-how of the respective other party which they receive within the scope of the Customs Clearance Contracts as well as the conclusion of the agreement as such, and to oblige their employees and third parties, insofar as they commission them with the execution of the concluded Customs Clearance Contracts, to maintain a corresponding confidentiality.

2) Each party undertakes to observe the relevant provisions of the applicable data protection laws and to protect the data relating to the other party that is collected and stored during the performance of the Customs Clearance Contract against unauthorized third-party access. Gerlach is entitled to process data transmitted by the Customer insofar as this is necessary for the execution of the Customs Clearance Contracts. Furthermore, Gerlach points out that it may be legally obliged to notify personal data or shipment data to courts and authorities. Customer permits Gerlach to use its email address in order to provide it with information on new offers. The Customer may at any time withdraw such permission free of charge by email to the following [email protected]. If the Customer provides Gerlach with the email address and, if applicable, other contact details of the recipient of the shipment for the purpose of informing them of the shipment status, it warrants to be legally entitled to do so (for example, by consent). In case of unauthorized disclosure of personal data by the Customer to Gerlach, the Customer indemnifies Gerlach upon first written demand from all claims asserted by third parties, in particular by recipients, as far as Gerlach processes the data in accordance with the contract. Gerlach will maintain data protection in accordance with applicable laws.

Section I. Special contractual provisions for Customs Services

§ 1 Service specification and further obligations

1) The Services cover import customs clearance, export customs clearance and transit customs clearance (to the extent made available on the Gerlach Platform) only and in this respect in direct representation of the Customer by using the document templates provided by Gerlach such as Power of Attorney and other supporting documents (“Customs Services”) only. The Customs Clearance Contracts concluded by the Customer and Gerlach via the Platform are considered as agreements on the Customs Services.

2) The Customer must provide the information required for the provision of the Customs Services in a timely and complete manner via the Platform (unless original documents are to be provided). In particular, the information must be provided at least five days prior to the customs declaration and must be applicable with regard to the goods to be declared to customs. In particular, relevant import restrictions, preferential regulations, so-called dual-use information as well as required original documents and information on the transport company used (in particular the names of any subcontractors who carry out the transport / manage the import) and information on the so-called importer of record must be provided. The Customer shall also provide Gerlach with the customs tariff number and the description of the goods. If no customs tariff number is available at the time of the import declaration, Gerlach shall be entitled, but not obliged, to determine this independently on the basis of the information available to it in order to coordinate this with the Customer. The Customer undertakes to make available to Gerlach, without being requested to do so, any existing binding tariff information or any binding tariff information issued to the Customer at a later date, and to inform Gerlach in good time if a binding tariff information loses its validity. In doing so, the Customer shall ensure that a contact person is appointed for the processing of Customs Services and shall plan for the corresponding use of resources. The Customer shall fully indemnify Gerlach against damages and claims of third parties resulting from a breach of obligations under this paragraph.

3) In case of delays in the customs procedure (e.g. due to incompleteness of documents and clearance obstacles of any kind) Gerlach will inform the Customer within a reasonable period of time. Original documents will be kept by Gerlach in accordance with legal regulations and time limits. The Customer will keep the documents relevant for the customs declaration in accordance with the legal regulations and time limits.

4) The Customer acknowledges that by making a customs declaration, the Customer becomes a declarant under applicable law and agrees to pay all duties, including any customs and late payment penalties, on time and in full in the amount assessed by the applicable authorities. Should the Customer elect to contest such fines, this shall not relieve the Customer from paying such fines to the appropriate authority pending resolution of the matter if the appropriate authorities require payment prior to a decision.

5) Unless otherwise provided in section I. § 4 (2), customs duties and taxes shall be paid by the Customer to Gerlach in advance upon request.

6) Unless otherwise provided in section I. § 4 (2), the Customer shall be liable to Gerlach for the payment of all customs duties and taxes and/or increased customs duties and taxes imposed by the customs authorities for reasons not due to Gerlach’s sole fault. This liability includes in particular penalties or fines imposed by authorities (example: increased taxes and duties due to missing or incorrect documents/declarations regarding the goods concerned). Gerlach shall settle underlying liability claims against the Customer separately. The Customer shall immediately settle or reimburse any corresponding invoices or claims for reimbursement of expenses.

7) The Customer undertakes to support Gerlach fully and free of charge in the defense against and the contestation of levies, including inspections by the customs authorities. This includes, in particular, access to the accounting/settlement systems (e.g. to verify the customs value) as well as the provision of all documents required or requested for the purpose of customs supervision or customs audit and the reimbursement of legal fees. This obligation shall apply for an indefinite period of time, even beyond the term of a Customs Clearance Contract.

8) The Customer shall further ensure that each customs procedure is properly carried out and completed in accordance with the applicable customs regulations. The Customer shall provide Gerlach with evidence of the proper performance and completion of the customs procedure, if required.

9) In the event of a system failure, the Customer must provide Gerlach with relevant information by email or in another suitable form.

§ 2 External trade rules

The Customer shall ensure compliance with all applicable legal provisions, in particular customs and foreign trade law provisions, including prohibitions and restrictions under national and European law, with regard to its shipments on its own responsibility.
He guarantees in particular that:

1. neither the Customer nor any of Customer’s affiliates, Customer’s agents, any consignee of the underlying shipment, or any third party directly engaged to transport the goods is subject to any applicable restraint on disposal or disposition;
2. the Customer has independently checked all goods, including software and technology, contained in the shipment on which customs clearance is based against applicable lists of goods (e.g. annexes of applicable sanctions ordinances of the European Union);

iii. the consignment on which customs clearance is based does not contain any goods, including software and technology, which are subject to applicable licensing requirements or prohibitions with regard to their import, transit, re-export, export, transfer, use or end-use, transport or destination (e.g. armaments, war weapons, dual-use goods, firearms);

1. if the shipment underlying the customs clearance contains goods subject to authorization, the Customer will inform Gerlach accordingly well in advance of the customs clearance and has obtained all necessary permits, licenses or other official authorizations required for the delivery of the shipment to its final destination and end-use;
2. that Gerlach is authorized to act on behalf of and for the account of the Customer (direct customs representation). The Customer further declares that Gerlach acts for or on behalf of the Customer in connection with the shipment underlying the customs clearance neither as an exporter or importer under customs or foreign trade law, nor as a permit or authorization holder with respect to prohibitions and restrictions under national and European law.

The Customer shall provide Gerlach with all information, including complete and correct document coding, required for Gerlach to properly clear the shipment. The Customer acknowledges that Gerlach processes the information and personal data provided by the Customer to ensure compliance with its own legal obligations.

The Customer fully indemnifies Gerlach against any damages and claims of third parties resulting from a breach of obligations under this paragraph.

§ 3 Code of Conduct

The Customer undertakes to comply with the principles of the DHL Code of Conduct. These can be downloaded here.

§ 4 Billing, payment and remuneration

1) The Customs Services shall be invoiced on the basis of Gerlach’s offer.

2) When making the offer, Gerlach shall decide at its own discretion whether or not Gerlach’s deferment account can be used for the payment of customs duties. If Gerlach’s offer provides that the Customer itself should make payments directly to the customs authority, the Customer is obliged to make such payments itself without delay.

3) Insofar as nothing to the contrary arises from the aforementioned clause (2), Gerlach’s deferment account will be used within the scope of the performance of the Customs Services. Full payment of customs duties is due on the day of invoicing. The Customer will be charged a money provision fee of 1.5% of the advanced customs duties for the advancement of the customs duties plus a one-off advancement commission of 3% of the advanced customs duties.

4) Gerlach reserves the right to charge against claims of the Customer against Gerlach with all claims of Gerlach against the Customer with regard to the business relationship (using the Platform). In particular, Gerlach is entitled to set off against claims of the Customer for reimbursement of differential amounts in connection with the Customs Services provided by Gerlach, e.g. if the Customer has paid an overestimated duty, or against claims of the Customer for reimbursement of advance payments made.

5) Additional fees from authorities may apply (e.g. inspection costs, veterinary costs). All invoices will be subject to VAT, if applicable.

6) The Customer shall pay the agreed price for the Customs Services by using the payment methods offered on the platform. If the Customer chooses a payment method requiring him to provide upfront payment, but fails to do so, Gerlach is entitled to treat the relevant Customs Clearance Contract as cancelled and charge the cancellation fees up to the amount of the clearance costs (depending on the processing status).

7) All items in Gerlach invoices must be paid in full. No setting off or retention of amounts claimed by Customer against Gerlach is permitted. However, Customer may offset claims which are finally decided, ready for decision or undisputed.

§ 5 Force majeure

1) If, as a result of force majeure, a Party fails to fulfil its obligations under a Customs Clearance Contract, this shall not be deemed a breach of contract. The foregoing provision shall not apply to the obligation to pay due liabilities.

2) Force majeure shall be deemed to include, for example, fire, explosions, action of the elements, civil war, riot, revolution, legislation and official measures, strikes, lockouts, business interruptions, computer viruses, cyber risks, shortage of raw materials, epidemics, pandemics or similar unforeseeable and serious events beyond the control of the Parties.

3) The Party affected by a case of force majeure shall inform the other Party without delay.

4) The other Party may terminate the agreement with immediate effect in writing if the force majeure situation lasts longer than four (4) weeks.

§ 6 Liability

1) Insofar as there are no mandatory regulations to the contrary, Gerlach shall be liable for all its operations in accordance with the General Conditions of FENEX (Netherlands Association for Forwarding and Logistics) deposited at the Registry of the District Court at Amsterdam and Rotterdam on 1 May 2018 ("Dutch Forwarding Conditions”). The limitations of liability shall also apply to non-contractual claims against Gerlach, its employees and other vicarious agents.

2) The Customer shall be liable in accordance with the statutory regulations, taking into account its obligations under these GT&C.

§ 7 Assignability

The rights and obligations arising from a Customs Clearance Contract may not be assigned to third parties without the consent of the other Party. Consent to assignment shall not be withheld without reasonable cause.

§ 8 Applicable law/court of jurisdiction

1) The Customs Clearance Contract is subject to the laws of the Netherlands.

2) The place of jurisdiction for all disputes arising from or in connection with the Customs Services is Rotterdam, the Netherlands.

Section II. Miscellaneous

1) Gerlach shall notify the Customer of any changes to these GT&C in text form (e.g. by Platform or e-mail), so-called “Notice of Change”. The changes shall take effect vis-à-vis Customer and the contractual relationship shall continue under the changed conditions if Customer does not object to these changes within one week after receiving the notification of changes by means of written notification to Gerlach. This deadline shall be deemed to have been met if the objection has been sent to Gerlach within this period. Gerlach shall specifically point out to Customer in the written notification of changes the above consequences of failure to object.

2) Should any individual provision of these GT&C be or become ineffective, the validity of the remaining provisions shall remain unaffected. In this case, the parties undertake to agree on a valid replacement provision which most closely approximates to the invalid provision or the intended purpose of the invalid provision. The same shall apply to contractual omissions. No verbal side agreements to these GT&C have been made.

3) The contracting language is English. In the event of any conflict or inaccuracy between the English version and the Dutch convenience translation of the GT&C, the English version shall prevail. Any interpretation of the English or Dutch provisions shall be construed in accordance with Dutch law not taking into account any other foreign law concepts.

4) Insofar as written form is required in these GT&C or declarations are to be made “in writing”, the transmission of a document signed by hand with a name signature by means of a physical letter or by ordinary e-mail shall be sufficient for the written form requirement.

Section III. Annexes

Annex 1

Dutch Forwarding Conditions