Article 1, DEFINITIONS
a. For the purposes of these General Trading Conditions, “Martrade” is the Dutch private company with limited liability Martrade BV.
b. For the purposes of these General Trading Conditions, the “Client” is the natural person or legal entity for whom/which and/or on behalf of whom/which Martrade performs activities as described in these General Trading Conditions.
c. Martrade provides the following services for its Client or third parties: “Services to be provided for owners, ship-owners, charterers, operators or managers of (sea-going & inland) vessels and other floating objects, providing advice or act as an intermediary, whether as agent or broker, to broker agreements for sale, purchase, charter, repair, management, responsible dismantling and similar marine-related agreements, processing of documents for registration or cancellation of ships in maritime register and transport related documentation for of ship’s parts”.
d. “advice” within the meaning of these General Terms is considered that can be given in accordance with the contract regarding issues in the maritime field, to the extent that these can be assessed by Martrade
e. “intermediate” efforts by Martrade, with or without a power, aiming to conclude an agreement for the benefit of the Client.
Article 2, GENERAL CLAUSE
a. Every Martrade quotation is without obligation.
b. The agreement is effected after written confirmation by Martrade.
c. All assignments are deemed to be given to Martrade only and not to any person associated with Martrade. This applies even if the explicit or implicit intent that an assignment will be performed by a specific person.
d. Martrade is entitled to make use of the services of third parties for the performance of the agreement, whether or not such parties are subcontractors, on conditions considered reasonable by Martrade.
e. In the framework of any of the activities to be carried out by Martrade, contract variations shall only be undertaken after written confirmation by the Client. If contract variations are agreed in writing in advance by one of the Client’s employees, the Client cannot invoke the fact that the employee was not authorised to issue the written order nor authorised to sign.
f. These General Trading Conditions shall be applicable as from first contact between the Client and Martrade.
g. These General Trading Conditions apply as well at all times to all quotations provided by Martrade, all agreements signed by Martrade, and any actual and legal acts undertaken to perform all this, with the explicit replacement of any general terms and conditions used by the Client.
h. Any deviations from these General Trading Conditions are only valid if and in so far as expressly confirmed in advance in writing by Martrade.
i. All prices quoted by Martrade are excluding VAT (BTW) and appropriate for the situation at the time of the quotation. In case of subsequent increases of one or more cost price factors, Martrade will be entitled to increase the original price accordingly without giving detailed reason.
j. All prices include so-called office-cost. All other costs (e.g. travel-, visa- and accommodation cost, communication cost, any additional insurances and cash expenses etc), as well as third party cost + handling fee, are for the account of the Client
k. In respect of any liability, Martrade shall take out a general liability insurance (aansprakelijkheidsverzekering -AVB).
l. Unless requested by the Client and confirmed by Martrade, Martrade does not take out additional insurances in respect of an agreement entered into with the Client.
m. Without any additional request, Martrade and its employees shall be deemed to be co- insured on the general liability of the Client.
n. Prior to commencing performance of a received order and at any time during the subsequent activities, Martrade will be entitled to require from the Client adequate security for performance of its obligations.
o. As long as the Client has not provided the requested security, Martrade will be entitled to suspend its performance without prejudice to any regulations concerning suspension and termination of a contract resulting from the law and from the specific general terms and conditions declared applicable in these General Trading Conditions.
p. Unless otherwise expressly agreed in writing by Martrade, all services provided by Martrade shall be considered irrevocably earned as time progresses, irrespective whether the services have been completed or the Client’s required result has been achieved or not and the Client is obliged to pay the invoices sent to him/it within 14 days.
q. If payment is not received within this period, the Client will be in default by operation of law and Martrade will be free to exercise all of its legal rights and remedies resulting from this. The Client will in that case be liable for payment of liquidated damages of 10% over the outstanding (invoice) amount and the statutory commercial interest over the outstanding (invoice) amount and the amount of the liquidated damages, within the meaning article 6:119a in conjunction with article 120, paragraph 2, of the Netherlands Civil Code.
r. Unless expressly agreed in writing by Martrade, the Client will not be entitled to set off invoices or claims for whatever reason.
(Right of Retention and Right of Pledge)
s. Martrade has a right of retention and a right of pledge on any goods, documents and monies which are in Martrade’ possession or which Martrade may gain possession of for whatever reason and with whatever destination towards anyone requiring surrender thereof, for all claims Martrade has or may have against the Client.
t. Martrade is entitled to exercise the right of retention and/or right of pledge referred to under s. for that which the Client still owes Martrade in relation to previous orders.
Article 3, LIABILITY MARTRADE
Notwithstanding any other provision in these General Trading Conditions or otherwise, all actions and activities carried out by Martrade, its employees or its subcontractors or otherwise, including the provision of advice, are for the sole risk and expense of the Client. Martrade shall under no circumstances be held liable, and the Client shall indemnify Martrade, its employees and its subcontractors, for any loss, damage, injury or death or of any other form whatsoever, other than if and insofar as such loss has been solely caused by proven willful misconduct or gross negligence on the part of Martrade or its employees.
Furthermore, the following shall apply:
a. If by or caused in connection with the execution of an assignment of a Client or otherwise, damage to persons or property for which Martrade is liable, such liability shall be limited to the amount paid under the Martrade’ general liability insurance (aansprakelijkheidsverzekering – AVB).
b. If for whatever reason the above mentioned insurance does not cover for a claim, the liability of Martrade is limited to the remuneration as a result of the applicable agreement with a maximum of € 10.000, –
c. Under no circumstances shall Martrade be held liable for any loss of income, loss of profit, direct or indirect consequential loss, damage, loss of use or loss of production, whether foreseeable or not, irrespective of its cause.
d. Legal claims regarding liability on any grounds whatsoever can only be instituted by the Client or a third party within the constraints of these General Trading Conditions.
e. Any claim against Martrade shall become null and void through the mere expiry of one year from the moment such liability for Martrade would have arisen.
Article 4, CLIENT’S LIABILITY
Notwithstanding any other provision in these General Trading Conditions or otherwise, the Client is, in the broadest sense, is responsible for any damage to Martrade entrusted affairs and responsible for damages resulting from incorrect, inaccurate and late instructions, responsible for damage to their property or property of a third party which are under the control or care of the Client and responsible for the welfare of its own personnel and subcontractors, as well as the act, neglect or omission of the Client, its employees or third parties engaged by him.
Article 5, VERSIONS
These General Trading Conditions have been translated into English. In the event of disputes of any nature in the interpretation of these General Trading Conditions, the Dutch text and context shall prevail.
Article 6, APPLICABLE LAW, COMPETENT COURT
These General Trading Conditions as well as every agreement and all correspondence between the Client and Martrade will be exclusively governed by Dutch Law.
Any and all disputes between the Client and Martrade shall exclusively be settled by a competent court in Rotterdam, The Netherlands.
Article 7, Severance
If by reason of an enactment or judgement, any provision of these General Trading Conditions shall be deemed or held to be illegal, void or unenforceable in whole or in part, all other provisions of these General Trading Conditions shall be unaffected thereby and shall remain in full force and effect.