General terms and conditions of Rederij ‘t Smidtje, with registered office at Ruysdaelkade 174, 1072 AT Amsterdam
Filed with the Chamber of Commerce of Amsterdam under number 34122188
1. Definitions
The terms below shall be taken to mean as follows:
a. Services: The services offered and to be provided by Rederij ‘t Smidtje in the context of these general terms and conditions concern our offering the other party/client one or more cruises with one or more vessels, for a number of persons as further set forth in the contract established between parties. b. The other party and/or the Client: The party to whom Rederij ‘t Smidtje has made an offer or with whom a contract has been entered into, as well as persons/passengers on behalf of whom the other party has entered into the contract. c. Contractor: Rederij ’t Smidtje (referred to hereinafter as “Rederij ‘t Smidtje”), which company carries out work or provides services on behalf of the client, as described below.
2. Applicability of these terms and conditions a. These terms and conditions apply to all quotations and contracts issued by Rederij ‘t Smidtje. Unless agreed otherwise in writing, the other party shall be assumed to have accepted these terms and conditions. It is only possible to deviate from these terms and conditions if Rederij ’t Smidtje has confirmed this in writing. b. Anyone who participates in a cruise offered by Rederij ’t Smidtje shall be deemed to have read and understood the contents of these general terms and conditions and to agree to them. c. These general terms and conditions are deemed, as standard and permanent terms and conditions, to have been declared to apply to future subsequent and/or supplementary offers as well as to contracts or the conclusion and/or execution thereof. d. Any general terms and conditions that the other party may utilise do not apply, unless Rederij ’t Smidtje has expressly accepted these in writing. The fact that Rederij ’t Smidtje has signed documents of the client to which such general terms and conditions are declared to apply will not be deemed to constitute written acceptance thereof by Rederij ‘t Smidtje.
3. Offers a. Unless a period of validity is specified in an offer, all offers made by Rederij ‘t Smidtje are without obligation. b. Rederij ‘t Smidtje reserves the right to refuse an order without being required to specify a reason. c. If, at the request of the other party, Rederij ’t Smidtje commences the execution of an offer that Rederij ’t Smidtje has made to the other party, the other party shall be deemed – commencing on the date of execution – to have entered into a contract with Rederij ’t Smidtje entirely in accordance with the offer Rederij ‘t Smidtje made in this regard.
4. Formation and execution of the contract a. A contract is established when Rederij ‘t Smidtje confirms in writing to the client that the order has been accepted or else when the other party signs the contract. In urgent cases the contract may also be established orally. In this instance, the fact that Rederij ’t Smidtje has executed the order that was granted demonstrates that a contract has been established, and Rederij ‘t Smidtje shall confirm the contract in writing within 48 hours. b. The client does not have the right to transfer a contract with Rederij ’t Smidtje to third parties, whether in whole or in part, without the prior written permission of Rederij ’t Smidtje.
c. Rederij ‘t Smidtje determines the manner in which the order is executed, within the limits of that which has been agreed in writing between the parties.
5. Changes in the contract Should it become evident, prior to or during the execution of the contract, that, on account of unexpected circumstances, it is necessary to make changes to a contract or part thereof before it can be executed, the party which first became aware of those circumstances shall consult with the other party. If such a situation occurs, Rederij ’t Smidtje must inform the other party of the financial consequences.
6. Amendments Amendments to the contract and deviations from these general terms and conditions shall only apply if the parties have agreed to them in writing. If amendments lead to an increase or decrease in costs, the price shall be adjusted accordingly, to be agreed in writing by the parties.
7. Cancellation by the other party a. The other party has the right, under the conditions specified below, to cancel a contract that has been established between the parties. The other party can effect cancellation by sending written notice by registered post to Rederij ‘t Smidtje. The date on which Rederij ‘t Smidtje receives the notice of cancellation shall be deemed to be the cancellation date. b. If the other party cancels the contract less than two months before the cruise, the contract between the parties shall be terminated subject to the condition that the other party must pay Rederij ‘t Smidtje 40% of the total amount owed to Rederij ‘t Smidtje on the basis of the contract. c. If the other party cancels the contract less than one month before the cruise, the contract between the parties shall be terminated subject to the condition that the other party must pay Rederij ‘t Smidtje 50% of the total amount owed to Rederij ‘t Smidtje on the basis of the contract. d. If the other party cancels the contract less than fourteen days before the cruise, the contract between parties shall be terminated subject to the condition that the other party must pay Rederij ‘t Smidtje 60% of the total amount owed to Rederij ‘t Smidtje on the basis of the contract. e. If the other party terminates the contract less than seven days before the cruise, the contract between parties shall be terminated subject to the condition that the other party must pay Rederij ‘t Smidtje 80% of the total amount owed to Rederij ‘t Smidtje based on the contract. f. If the other party cancels the contract less than 48 hours before the cruise, the contract between the parties shall be terminated subject to the condition that the other party must pay Rederij ‘t Smidtje 95% of the total amount owed to Rederij ‘t Smidtje based on the contract.
8. Payment a. The other party must make payments to Rederij ‘t Smidtje in accordance with the payment conditions specified in the invoice, without adjustment or postponement for any reason whatsoever. If no such conditions are specified, payment must be made within fourteen days after the date of the invoice. In any case, the entire amount must be paid at the latest two days before the cruise. Payment must be made without the client being permitted to block his payment obligation by levying an attachment on his own behalf in respect of a counterclaim against Rederij ‘t Smidtje or otherwise. The other party will be in default if the payment has not been received within the agreed period. b. Rederij ‘t Smidtje must receive any complaints in writing concerning invoices within 8 days after the invoice date. c. Rederij ‘t Smidtje reserves the right to demand payment in advance. d. With regard to giro payment, the date of payment is deemed to be the date upon which Rederij ‘t Smidtje’s giro account has been credited. With regard to cash payment, the receipt issued by Rederij ‘t Smidtje is deemed to be the sole proof and confirmation of the date of payment. e. Payment must be made within the specified period, in the absence of which the other party will be legally in default. Commencing on the date of default, the other party will be liable to pay contractual interest of 2% per month, with a portion of a month being viewed as an entire month. In addition, Rederij ‘t Smidtje is then authorised
to suspend the execution of the contract, and the other party is obliged to reimburse all costs, both judicial and extrajudicial, which Rederij ‘t Smidtje incurs as a consequence of the other party’s failure to fulfil his obligations.
9. Costs resulting from failure to pay (on time) a. All costs incurred by Rederij ‘t Smidtje in order to enforce its rights, including all extrajudicial and judicial costs, due to the need to obtain the services of a representative, solicitor, or process-server, are for the account of the client. b. Any relevant extrajudicial costs equal to at least 15% (excluding VAT) of the amount being claimed, with a minimum of EUR 250 (excluding VAT) per claim. If Rederij ‘t Smidtje can reasonably demonstrate that it was, of necessity, compelled to incur higher extrajudicial costs, these, too, will be for the account of the other party. All costs associated with debt recovery through the courts are for the account of the other party, including the costs of enforcing a court decision. c. Rederij ‘t Smidtje retains the right, without prejudice to its other rights in accordance with the terms and conditions and/or the law: d. To demand immediate payment and/or a guarantee of payment from the other party with respect to all contracts in progress; e. To suspend its work, including that based on other contracts with the other party, without prejudice to its right to demand simultaneous or later guarantees of payment. f. To dissolve the relevant contract in its entirety or to the extent that it has not been executed, by way of a written statement originating from Rederij ‘t Smidtje; g. To dissolve one, several, or all contracts in progress with regard to which the other party is not in default, in their entirety or to the extent that these have not yet been executed, by way of a written statement from Rederij ‘t Smidtje. h. To demand payment in a lump sum of the entire amount due if payment in instalments has been agreed upon. i. Unless it invokes its right to dissolve the contract, Rederij ‘t Smidtje is authorised at all times to amend any of the rights specified in this article at its discretion.
10. Price All prices and rates are exclusive of VAT and possible other levies that may be imposed by the authorities. All prices are based on the circumstances as these existed at the time at which the contract was concluded. Should these circumstances change after the contract was concluded, Rederij ‘t Smidtje is authorised to increase or decrease the agreed costs, specifying the resultant additional or lesser costs, by the amount by which its costs have increased or decreased. These types of circumstances include national or foreign taxes, wages, prices or exchange rate fluctuations.
11. Confidential information Parties undertake reciprocally to maintain secrecy with regard to confidential information of the other party. Each party shall take all reasonable precautions to comply with this obligation to the best of its ability.
12. Cooperation of the other party a. The client shall at all times provide Rederij ‘t Smidtje with all necessary information without delay. b. If information that is necessary for the execution of the contract is not provided to Rederij ‘t Smidtje, not provided on time or not provided in accordance with agreements, or if the other party in some other way fails to fulfil its obligations vis-à-vis Rederij ‘t Smidtje, then the latter may suspend compliance with its obligations, and the other party may be invoiced for the additional costs. c. The other party must follow all instructions issued by Rederij ‘t Smidtje’s employees without delay. Rederij ‘t Smidtje may deny access to a vessel or jetties without being required to specify any reasons, should this be considered necessary in connection with safety or public order. d. The commencement time of the cruise cannot be varied. The vessel will depart at the agreed time. The failure of some or all passengers to be present on time is for the account and risk of the other party. It may be possible for the vessel to wait until all passengers are present if the other party makes a specific request to that effect, which is to be confirmed in writing. Deviations from the agreed-upon departure time are entirely for the account
and risk of the other party. The duration of the cruise shall then be shortened by as much time as the delay lasted. Other parts of the cruise may be changed/shortened or even cancelled entirely as a result of such a delay.
13. Complaints a. Complaints are understood to mean all grievances of the other party with regard to the execution of the contract by Rederij ‘t Smidtje. b. Complaints will only be considered if they are lodged in writing with substantiating reasons within 8 working days after the services were provided or work was performed by Rederij ‘t Smidtje, without prejudice to the provisions in the following articles. c. Minimal deviations that are acceptable in terms of daily procedures in or during the execution of the contract cannot be considered grounds for complaint. d. The lodging of a complaint does not constitute grounds for the other party to suspend its payment obligations. e. If the client has not filed a complaint within the time specified above, the client shall be considered to have approved the services provided and the invoices issued. Any further claims by the other party shall become null and void in the absence of such notification.
14. Liability for loss a. Rederij ‘t Smidtje will not be held liable for loss because of the incorrect or late execution of the contract, nor is it liable for any other direct and/or indirect loss, including physical injury incurred by the other party, unless such loss is attributable to gross culpability, recklessness or intent. b. In all instances in which Rederij ‘t Smidtje is obliged to pay any damages, these shall in no case equal more than the total of the amounts invoiced and/or eligible for invoicing (excluding VAT) by Rederij ‘t Smidtje based on the relevant contract. c. After the complaint period as meant in Article 12 has expired, Rederij ‘t Smidtje will no longer be liable for any failures unless a written guarantee agreed by the parties applies. d. Rederij ‘t Smidtje specifically rules out any and all liability with respect to any persons for whom Rederij ‘t Smidtje is in any way responsible or liable, including third parties whom Rederij ‘t Smidtje has hired for the provision of services. e. The legal claims of the other party for the compensation of its loss shall lapse and are therefore inadmissible if they are filed after the passage of one year subsequent to the execution of the relevant contract. The other party shall indemnify Rederij ‘t Smidtje against any loss that third parties may suffer in the execution of the contract between parties. f. The other party is responsible and liable for the behaviour of the passengers which he brings on board. The other party must purchase the necessary insurance coverage at his own risk. g. The other party is liable for any loss of and/or damage to the property and possessions of Rederij ‘t Smidtje for any reason whatsoever. The other party is also liable for damage caused by passengers to the personnel or property and possessions of Rederij ‘t Smidtje personnel, as well as of third parties hired by Rederij ‘t Smidtje, unless the situation involves gross culpability on the part of persons who incurred the loss.
15. Force majeure a. None of the parties is obliged to fulfil any obligation if it is prevented from doing so as a consequence of a circumstance not attributable to its fault or for which it is not responsible, in the context of legislation, legal action or such generally accepted concepts as storm damage, natural disasters, obstruction by third parties, inhibitive measures imposed by any official body, war, strikes, fire, malfunctions or accidents in the business operations of third parties, or any failures on the part of or force majeure affecting suppliers or third parties whose services Rederij ‘t Smidtje uses. b. In case of force majeure or other circumstances of such a nature that, in accordance with fairness and reasonableness, further fulfilment of the contract cannot be demanded, the execution of the contract shall be suspended or, if such suspension has lasted for an uninterrupted period of at least three months, or as soon as it is established that the situation will last for longer than three months, the other party may terminate the contract, in whole or in part with immediate effect and without the need for judicial intervention, by sending a registered letter to the first party. This right of termination will lapse if the obligation that could temporarily not be fulfilled because of force majeure is after all fulfilled before this right could be invoked. c. In the event that the contract is terminated on account of force majeure, the obligations under the contract shall
cease to exist, subject to the condition that if Rederij ’t Smidtje has already partly fulfilled the contract the other party shall be liable to pay a proportionate part of the agreed price to Rederij ‘t Smidtje. d. Parties cannot claim damages from each other in the event of force majeure.
16. Suspension and termination
a. If, in the opinion of Rederij ‘t Smidtje, the creditworthiness of the other party justifies this, Rederij ‘t Smidtje can demand a further guarantee or payment in advance at any given time, in the absence of which Rederij ‘t Smidtje has the right to suspend execution of the contract. b. If the other party fails to fulfil one or more of his obligations, fails to fulfil them on time or fails to fulfil them correctly, if he applies for suspension of payments, is declared bankrupt, part or all of his assets are seized and/or loses the power to dispose of his capital in whole or in part, Rederij ‘t Smidtje has the right to suspend execution of the contract or to dissolve it by means of a written statement, all of the foregoing at its discretion and without prejudice to any rights that may accrue to Rederij ‘t Smidtje as regards payment of damages, costs or interest. c. Rederij ‘t Smidtje’s use of its authorisation to suspend the execution of the contract as stated in the paragraph above will not affect the other party’s obligation to pay any compensation agreed upon with Rederij ‘t Smidtje during the period when Rederij ‘t Smidtje suspended fulfilment of its obligations. d. The other party can only dissolve a contract if Rederij ‘t Smidtje remains imputably in default as regards fulfilment of its obligations based on the contract, after it has received proper written notice of default granting it a reasonable period of time still to meet its obligations, in such a manner that the other party cannot reasonably be expected to allow the contract to remain in effect. e. If Rederij ‘t Smidtje dissolves the contract due to non-performance on the part of the other party, Rederij ‘t Smidtje reserves the right to demand payment of the full agreed price. f. Dissolution of the contract can only be effected by registered letter sent to the other party; judicial intervention is not required. If at the time that the contract is dissolved the other party has already received work forming part of the execution of the contract, he may only dissolve the part of the contract that has not yet been executed by Rederij ‘t Smidtje. Amounts that Rederij ‘t Smidtje has invoiced before the contract was dissolved in connection with the part of the contract it has already executed or delivered continue to be payable without diminution, and will fall due immediately at the time the contract is dissolved.
17. Proof Unless there is proof to the contrary, Rederij ‘t Smidtje’s administrative data shall be decisive as regards contracts to which these terms and conditions apply and contracts arising from such contracts.
18. Applicable law and disputes
Dutch law applies to these general terms and conditions and all contracts entered into by Rederij ‘t Smidtje. Any disputes that may arise with regard to the interpretation or the execution of these terms and conditions shall be submitted exclusively to the competent court in … (Rederij ’t Smidtje)
Amsterdam, April 2001. Rederij ‘t Smidtje, T. de Smidt