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Flexport EU Customs Brokerage Terms and Conditions

These EU Customs Brokerage Terms and Conditions (“EU Brokerage Terms”) govern all customs services provided by Flexport Customs B.V., registered in Amsterdam, with EORI number NL861534785 and AEO license number 0002767 acting as ‘((In-)Direct) Representative’. The customer is identified as ‘Principal’.

Article 1. GENERAL TERMS AND CONDITIONS OF CUSTOM BROKERAGE SERVICE

  1. Unless otherwise agreed, the relationship between the parties is governed by these EU Brokerage Terms. For all matters not expressly addressed herein General Forwarding Terms and Conditions for the country in which customs services are performed excluding any arbitration clause shall apply. In the event of any conflict between these EU Brokerage Terms and the local General Forwarding Terms and Conditions, these EU Brokerage Terms shall prevail. The Representative reserves the right to amend these Terms from time to time; the most recent version published on the Customs Agent’s website shall apply.
    1. By instructing the Representative to act, the Principal is deemed to have accepted these EU Brokerage Terms and the General Forwarding Terms and Conditions per country in full.
    2. The Representative acts as Direct Representative, in the name and for the account of the Principal or Indirect Representative, for the account of the Principal as specified in the separately signed agreement containing the power of attorney (“Authorization”). The Principal remains the declarant and importer/export of record unless otherwise specifically agreed in writing.
    3. Unless otherwise agreed, the Representative shall, if this serves the interests of the Principal, on the basis of the information known to the Representative, be present at the taking of samples and the examination of the goods.
    4. The Representative is entitled to refuse to perform acts and activities ensuing from this agreement/authorisation, providing that the Representative communicates this as soon as possible.

Article 2. OBLIGATIONS OF THE PARTIES

  1. The Principal is obliged to, at the first request, provide the Representative with all required records, information, statements and data necessary for the execution of this agreement (also for each individual shipment/transaction), which may be required on the basis of the applicable rules and regulations and the present agreement.
    1. In order to submit a correct customs declaration, the Representative must receive from the Principal the required records, information, statements and data, the relevance of which must be reasonably known to him/it.
    2. The Principal warrants that the value of the goods and the nature of the transaction by which the goods are being imported or exported is fully and accurately described to the Representative and that any commercial invoice reflecting the value of the goods is an invoice issued by a true seller to a true buyer reflecting the real sum payable.
    3. The Principal guarantees to inform the Representative in writing of any changes in licenses or permits that are important for the activities to be performed by the Representative within no more than two working days after the aforesaid change.
    4. The Principal is solely responsible and shall ensure full compliance with applicable laws and all EU regulatory obligations arising from or in connection with the import or export of its goods, including but not limited to the EU Deforestation Regulation (Regulation (EU) 2023/1115), the Carbon Border Adjustment Mechanism (Regulation (EU) 2023/956), and any future EU regulations imposing reporting, due diligence or compliance obligations on importers or exporters. The Representative shall not be responsible for monitoring, reporting or ensuring the Principal’s compliance with any such obligations, including conducting due diligence assessments.
    5. The Representative will file an import or export declaration with the customs authorities based on the above mentioned information, data and documents provided by the Principal.
    6. The Representative may at all times engage third parties at the expense and risk of the Principal for the purpose of carrying out an order. In doing this, the Representative will exercise due care. but is not liable for their acts or omissions.

Article 3. EXPORT COMPLIANCE / NON DIVERSION

  1. The Principal agrees to have an affirmative non-delegable duty to disclose all information to the Representative required for the export of goods, including export licenses etc.
  2. The Principal understands and agrees that additional commercial costs and civil and criminal penalties may be imposed for making false or fraudulent statements or for the violation of any EU or UN laws or regulations on exportation, including but not limited to dual use regulations (Regulation (EU) 2021/821) and trade sanctions regulations..
  3. Goods that are subject to an export license and authorized for export only to a specific country of ultimate destination are for use by the ultimate consignee or end-user identified on that export license only.
  4. The Principal understands and warrants that no person may resell, transfer or otherwise dispose of these goods to any other country or to any person other than the authorized ultimate consignee or end-user, either in their original form or after being incorporated into other goods, without first obtaining express approval from the appropriate authority.
  5. The Principal, its subsidiaries and its authorized agents including their officers and employees involved in transacting these goods agree to comply with all applicable EU laws and regulations, including Regulation (EU) 2021/821 (dual use) and EU restrictive measures (sanctions).
  6. The Principal shall inform the Representative in writing if any export license is required for the goods. The Principal warrants that, unless disclosed in writing to the Representative, neither the goods, the Principal, the owner, the ultimate consignee nor any person connected with the goods are the subject of any trade sanctions or restrictions imposed by the EU, the UN, the USA or any other government or authority.

Article 4. PROVISION OF SECURITY / PAYMENT OF DUTIES AND TAXES

  1. Unless otherwise agreed, use will be made of the facilities of the Representative in order to provide security and ensure payment of duties, other charges and taxes to the Customs Authorities.
  2. The Representative is allowed to settle possible remissions, refunds or drawback awarded in the name of the Principal with their direct debit account facilities, receive repayment directly in their bank account and subsequently deduct this from the invoice issued.
  3. All duties, taxes, charges and fees advanced by the Representative on behalf of the Principal are due for payment within 14 days of invoice. The Representative reserves the right to charge interest on overdue amounts at 3% above the European Central Bank main refinancing rate and to suspend services until all outstanding amounts are settled in full.
  4. The Representative shall have a right of retention and general lien on all goods and documents in its possession, custody or control for all sums due from the Principal, whether or not related to the particular goods or documents held.

Article 5. OBLIGATION TO KEEP RECORDS

  1. On the basis of the license to submit an electronic declaration to the Customs Authorities issued to him/it, the Representative is obliged to keep records and keep the (original) documents and records pertaining to each declaration for the legally required period of 7 years. The Principal is obliged to keep a copy of the documents and records provided by him/it for the same period of time.
  2. Subject to Article 5.1, the Principal is under a statutory obligation to keep all data relating to the declaration, the records and other data in connection with the transaction on file insofar as these pertain to the declaration also for 7 years.

Article 6. DURATION AND TERMINATION/REVOCATION OF THE AUTHORISATION

  1. This Authorization is entered into/applies for an indeterminate period of time, effective as of the signing date of this Authorization. The Authorization may be terminated by either party giving not less than 30 days’ written notice. The Representative may terminate immediately by written notice if the Principal: (a) supplies incorrect or misleading information; (b) fails to fulfil its obligations under these Terms; (c) is declared bankrupt, enters administration or liquidation, or otherwise becomes insolvent; or (d) fails to pay any sums due within 30 days of the due date
  2. Cancellation/revocation is to be affected by registered letter or email with confirmation receipt.
  3. The provisions under this agreement/authorisation continue to apply also after cancellation/revocation, where relevant in connection with fulfilment of obligations imposed in the name of government.
  4. The Representative is entitled to keep the present authorisation also after revocation for the purposes of possible controls in the name of the government.

Article 7. THIRD PARTIES

  1. The Representative is entitled to have this Authorisation performed by one of the partners appointed and incorporated in the list in Annex C. It is up to the Representative to decide which partner will be most suitable in a certain situation to make the declaration.
  2. The Representative is authorized by the Principal to issue powers of attorney on behalf of the Principal to a third party (i.e. other customs brokers or freight forwarders) to transact customs formalities on his behalf.
  3. The Principal will be informed in advance if the declaration will be made by a third party.
  4. The third party referred to above may invoke local forwarding conditions of the country activities are performed such as;
    • the Dutch Forwarding Conditions (excluding the Arbitration Clause) for activities performed in the Netherlands.
    • the Belgian Freight Forwarders Standard Trading Conditions for activities performed in Belgium.
    • the Allgemeine Deutschen Spediteurbedingungen (ADSp) for activities performed in Germany.
    • the Standard Transport Conditions (BIFA conditions) for activities performed in the UK.
    • the Nordic Association of Freight Forwarders (NSAB)
  5. The required records, information, and data, with the inclusion of this Authorisation, must be made available to the third party referred to above.
  6. Principal consents to the disclosure by Representative of records pertaining to Principal’s business to any affiliated companies of the Representative and their employees who provide customs, forwarding and transportation services to Principal. Principal permits such disclosure and the sharing of such records for this specific purpose.

Article 8. INDEMNITY

  1. The Principal will indemnify, defend and hold the Representative harmless from any claims, fines and/or liability arising from import or export filings, the importation or exportation of the Principal’s merchandise and/or any conduct of the Principal that violates any EU laws or regulations or the violation of any of the provisions in this Authorisation.
  2. The confiscation or detention of the goods by any governmental authority shall not affect or diminish the liability of the Principal to the Representative to pay all charges or other money due promptly on demand.
  3. This provision will remain into force for five years after the last declaration has been submitted for any claim and/or liability arising from import or export filings, the importation or exportation of the Principal’s merchandise and/or any conduct of the Principal regardless of termination of the contract based on article 6.
  4. Where the Representative acts as Indirect Representative, the indemnity in this Article 8 extends to, and the Principal shall indemnify, defend and hold harmless the Representative against, any duties, import VAT, excise, penalties, interest, fines, or other sums that customs authorities or any other governmental authority assesses against or recovers from the Representative in its capacity as declarant or joint and several debtor for the customs debt pursuant to Article 77(3) and Article 84 of the Union Customs Code (Regulation No 952/2013), unless such sums arise from the Representative's fraud or wilful misconduct. The Principal shall reimburse the Representative for any such sums within 14 business days of demand, and this payment obligation is not conditional on resolution of any dispute over the underlying declaration

Article 9. LIMITATION OF LIABILITY

  1. The Representative’s total aggregate liability under or in connection with these EU Brokerage Terms, whether in contract, tort (including negligence), breach of statutory duty or otherwise, shall not exceed the lesser of: (a) the total fees paid by the Principal to the Representative in the twelve months preceding the event giving rise to liability; or (b) €50.000,-.
  2. The Representative shall not be liable for any indirect, consequential or special loss, loss of profit, loss of business, loss of goodwill, or loss of anticipated savings.
  3. Nothing in these EU Brokerage Terms excludes or limits liability for death or personal injury caused by negligence, fraud or fraudulent misrepresentation, or any other liability that cannot be excluded or limited by applicable law.

Article 10. FORCE MAJEURE

  1. The Representative shall not be liable for any failure or delay in performing its obligations where such failure or delay results from any cause beyond its reasonable control, including but not limited to: acts of God, governmental actions, sanctions, embargoes, strikes, IT system failures at customs authorities or port systems, pandemic, or failure of third-party systems upon which customs declarations depend.
  2. In the event of force majeure, the Representative shall notify the Principal as soon as reasonably practicable and use reasonable endeavours to mitigate the effects of the force majeure event.

Article 11. APPLICABLE LAW AND DESIGNATED COURT

  1. These Terms and the Authorisation and everything related thereto are governed by the Dutch Law.
  2. The national courts of the country where the activities are performed, has sole jurisdiction to hear any disputes arising from this agreement and everything related