General terms and conditions of sale for MyTerminal
1.1. These general terms and conditions of sale apply to all legal relationships involving companies that are part of the group (as referred to in Article 2:24b Dutch Civil Code (DCC)) of Europe Container Terminals B.V., including but not limited to ECT Delta Terminal B.V., Euromax Terminal Rotterdam B.V., TCT Venlo B.V. and European Gateway Services B.V., referred to hereinafter as “ECT”, in connection with the electronic sale of services, offered by ECT via “MyTerminal” (a digital platform ECT uses to offer services, including the provision of information), even if the sale is part of any other kind of agreement.
1.2. The acceptance of an offer or the placing of an order implies that the customer accepts these general terms and conditions of sale.
1.3. The applicability of the customer’s general terms and conditions is expressly rejected, regardless of whether or not the customer referred to those terms and conditions.
1.4. If any provision of these general conditions of sale is null and void or is voided, the other provisions will remain fully effective. In that case, the parties will consult with each other in order to agree upon a new provision to replace the null and void or voided provision, taking into account the purpose and purport of that provision as much as possible.
1.5. If there is a difference between the Dutch text of these conditions and the translation thereof into another language, the Dutch text will always be conclusive.
1.6. ECT reserves the right to amend the general terms and conditions of sale at any time.
1.7. These general terms and conditions of sale are subject to the Electronic Communication Procedure. In the event of any conflict, the provisions of these general terms and conditions of sale will prevail.
2. Offers and orders
2.1. By accessing MyTerminal, the customer can see which services ECT is offering digitally, as well as the costs of those services. The customer can order these services from ECT using MyTerminal. In these general terms and conditions of sale, orders are referred to as “agreements” and “agreement”. An agreement between ECT and the customer is formed when the customer places an order using MyTerminal.
2.2. An agreement is entered into for an indefinite period of time. The customer can expand (upscale) an agreement at any time, in the sense that from that moment on it will purchase more services and/or more types of services. Expansions are also entered into for an indefinite period of time. Refer to Article 6.2. for limitation of the scope of the agreement (downscaling of the services and/or types of services).
2.3. If ECT cannot perform an agreement for unforeseen reasons, it is required to inform the customer of this as soon as possible. In that case, the customer is not entitled to any type of damages.
2.4. ECT is only bound by agreements that have been formed using MyTerminal. Modifications of agreements must be agreed in writing.
3. Prices and payment
3.1. All prices stated by ECT are in euros and exclusive of VAT.
3.2. ECT has the right to change the prices stated on its website.
3.3. Once a month, ECT will send an invoice to the customer for the agreements entered into. Refer to the provisions in Article 6.2. for the definition of ‘month’. Payment must be made within 30 days of the invoice date.
3.4. The customer can only discharge its obligations ensuing from an ECT claim in full by transferring the invoice amount into the bank account indicated in the invoice. The customer is not entitled to any set-off.
3.5. If the customer fails to meet its payment obligation or obligations or fails to do so in good time, it will be in default by operation of law. In that case, the customer owes ECT the late payment interest, as referred to in Article 6:119a of the Dutch Civil Code, as from the due date until the date of full payment. In addition, ECT is entitled to charge the extrajudicial collection costs it has incurred. These collection costs amount to a maximum of 15% on outstanding amounts up to € 2,500.00; 10% on the following € 2,500.00 and 5% on the following € 5,000.00 with a minimum of € 40.00. Each payment made by the customer serves primarily to pay the interest and collection and/or other costs owed, and will subsequently be deducted from the oldest outstanding claim.
4. Terms and condition of service provision
4.1. All data required for the provision of services by ECT must be made available to ECT and in good time. ECT is not responsible if the customer fails to receive, or fails to receive in good time, what has been sent by ECT and in good time.
4.2. The customer itself is responsible for applying the correct computer settings and installing the necessary related software, such as firewalls, spam filters and virus scanners.
4.3. The customer is obliged to check the services provided immediately upon receipt. If it is found that ECT has provided services incorrectly or that the services provided were defective or incomplete, then the customer must immediately report these defects to ECT in writing. Any defects must be reported to ECT in writing no later than one month after the services were provided.
4.4. If ECT concludes that the customer’s complaints are well-founded, ECT will, at its discretion, either still provide the service ordered or refund the amount paid by the customer under the agreement or the relevant part of the agreement.
4.5. The provisions of Article 4.4. do not apply if: A. The customer was already in default towards ECT; B. The customer itself has changed or otherwise edited the services provided; C. The defectiveness results, in whole or in part, from rules that the government has adopted or will adopt with regard to the nature or the quality of the services provided.
4.6. ECT can take MyTerminal and its related systems out of service for the purposes of repair and/or maintenance. To the extent possible, ECT will announce this on MyTerminal no later than 24 hours prior to the repair and/or maintenance. ECT is not liable for any resulting damage.
5.1. The following applies in addition to the provisions on liability in the Electronic Communication Procedure: if ECT has failed imputably in the performance of one or more of its obligations under an agreement, ECT is liable for the direct damage that the customer suffers as a consequence, despite having received notice of default from the customer to this end and having been granted a reasonable period in which to still perform the agreement properly. To the extent that ECT’s obligation under the agreement entails the provision of information, in digital form or otherwise, this liability is limited to € 20.00 per service, provided that a combination of services relating to one container is considered a single service. The monthly liability is limited to the maximum amount owed for the relevant month by the customer to ECT under the related agreement, without taking account of any upscaling which took place in that month but after the damage occurred.
5.2. Article 6 at A. (liability and indemnification of the Terminal Operator) of the general terms and conditions of the Rotterdam Terminal Operators’ Association (VRTO) (see Article 3.7. of the Electronic Communication Procedure) does not apply.
5.3. Any amounts owed by ECT to the customer under this article will first be set off against payments that the customer owes or will owe to ECT under existing agreements and which are based, for example, on the (monthly) prices due under the agreement, as referred to in Article 3.
6.1. Any party is entitled, without notice of default or judicial intervention being required, to terminate an agreement early, without prejudice to its other rights under the agreement with the customer, in the following situations: Reasons ECT considers to be well-founded include, but are not limited to: A. (An application for) the bankruptcy or suspension of payments of the customer; B. (A temporary) cessation of the business operations of the customer’s enterprise; C. Revocation of the permits necessary for the customer’s normal business operations; D. Attachment of all or part of the customer’s business property or of goods relevant to the performance of the agreement; E. Liquidation, takeover or a similar situation at the customer’s company; F. Continued inability on the part of one of the parties to perform the obligations under the agreement; G. Breach of one or more provisions of these general terms and conditions of sale and/or applicable laws and regulations by the customer.
6.2. The agreement can be terminated or limited in scope (downscaling of the services and/or types of services), always with effect from the end of the month. In this context, the term ‘month’ refers to periods of 30 or 31 days (February: 28 or 29 days), succeeding each other after the agreement has been formed, i.e. the term ‘month’ does not refer to a calendar month.
6.3. In the event of termination, cancellation, refusal and/or (temporary) denial of access to MyTerminal, as referred to in paragraphs 1, 2 and 3, any claims of ECT against the customer become immediately due and payable.
7. Force majeure
7.1. In addition to the provisions of the Electronic Communication Procedure regarding force majeure, the customer is entitled to terminate the agreement due to force majeure if the customer cannot reasonably be required to wait for the duration of the force majeure.
7.2. If ECT is permanently unable to meet its obligations under the agreement due to force majeure, each of the parties is entitled to terminate the agreement, in so far as it has not yet been performed at that time.
8. Third parties
8.1. The customer may not transfer or contract out its rights and obligations ensuing from agreements, in whole or in part, to third parties, unless ECT has given prior written permission to do so.
8.2. Any permission granted by ECT does not release the customer from any obligation or liability under the agreements. The customer will indemnify ECT in full against all claims by any third parties engaged by the customer and will reimburse all payments made by ECT to a third party or third parties.
8.3. ECT is entitled to transfer the rights and obligations under the agreement, in whole or in part, to a third party, without the customer’s consent if this transfer takes place within the group of Europe Container Terminals B.V., as referred to in Article 2:24b DCC.
9. Disputes and applicable law
9.1. All disputes between the parties will, at first instance, be settled by the competent court in Rotterdam.
9.2. All legal relationships between the parties are governed by Dutch law. The applicability of the United Nations Convention on Contracts for the International Sale of Goods (1980 Vienna Sales Convention) is excluded.