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. ECT reserves the right to amend the general terms and conditions of sale at any time.
1.6. 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 (1) when the customer places a digital order for using MyTerminal (My Terminal Free or My Terminal Premium) or (2) when an agreement has been signed between ECT and the Customer for MyTerminal Premium Plus (i.e. MyTerminal Premium + API connection) . The customer can choose between different services. Depending on the choice made, ECT will invoice monthly or yearly (reference is made to Article 3). This shall hereinafter referred to as “payment period”. 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. For limitation of the scope of the agreement (downscaling of the services and/or types of services) reference is made to Article 6.2.
2.2. An agreement is entered into for an indefinite period of time.
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 by using MyTerminal.
3. Prices and payment
3.1. All prices stated by ECT are in euros and exclusive of VAT.
3.2. Depending on the choice of the customer, ECT will invoice monthly or yearly. A month and a year are not automatically equal to respectively a calendar month and a calendar year. For example: if the services have been ordered at the 9th of a month, the payment period of a month in this context will end at the end of the 8th of the next calendar month. If the services have been ordered at the 17th of May, the payment period of a year will end at the end of the 16th of May of the next calendar year. Besides the payment period, the customer can choose for a payment method: direct debit card or credit card. In case the customer has chosen a yearly payment period, he can also choose for payment after receipt of an invoice. In that case, a payment term of 14 days after the invoice date applies.
3.3. The rates for the services will be indexed on 1 January of every year on the basis of the CPI of Statistics Netherlands (CBS), without further notice. In addition, ECT has the right to change the prices stated on its website. These changes will be published on the ECT website. The changed price will come into effect the next payment term, under the condition that the change has been published on the ECT website at least 60 days in advance. During this period of at least 60 days, the customer has the right to terminate the agreement with immediate effect before the changes will enter into.
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. In the event of non-payment or another negligence under the agreement on the part of the customer, at the discretion of ECT, ECT has the right to temporarily deny access to MyTerminal in whole or in part, without prejudice to its other rights under the agreement.
3.6. 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 € 50.00. 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 conditions 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.
4.7. To access MyTerminal, the customer must have the login details of its unique account, to be provided by external login providers (e.g. Microsoft and Secure Logistics). The customer is responsible for the confidentiality and secrecy of these login details. The customer is liable for the (unlawful) use by third parties of the login data and for all actions and/or expressions made via the customer's account. If third parties undesirably have access to the customer's account, the customer shall inform ECT immediately after becoming aware of this. The customer indemnifies ECT against any pretended claim from parties as a result of damage caused by unauthorized access to the customer's account.
5.1. This article 5 applies in addition to the provisions on liability in the Electronic Communication Procedure.
5.2. If ECT has failed attributably in the performance of one or more of its obligations under an agreement, despite having received a notice of default from the customer and having been granted a reasonable period to still perform the agreement properly, subject to the limitations mentioned in this clause.
5.3. ECT is only liable for direct damage, liability for indirect damage, including but not limited to consequential damage, loss of profit, business interruption, loss of data and data degradation, is excluded.
5.4. 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 € 7.50 per service, provided that a combination of services relating to one container is considered a single service.
5.5. In all cases, regardless of the cause of the damage, the monthly liability of ECT is limited to the maximum amount owed for the relevant month by the customer to ECT under the related agreement, without taking any upscaling which took place in that month but after the damage occurred into account. If the customer has chosen for a yearly payment term, the maximum monthly liability is ECT is limited to 1/12 part of the yearly invoice.
5.6. The customer indemnifies ECT against claims from third parties, which arise from or are related to the execution of the agreement by the customer.
5.7. 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.
5.8. 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. ECT is entitled, without notice of default or judicial intervention being required, to suspend (further) performance of under the agreement, or to terminate the agreement in whole or partially with immediate effect, without prejudice to its other rights under the agreement, in the following situations: A. If the customer does not fulfill one of its obligations under the existing agreement(s) towards ECT or if ECT has good reason to fear that the customer will not fulfill its obligations: B. (An application for) the bankruptcy or suspension of payments of the customer; C. (A temporary) cessation of the business operations of the customer’s enterprise; D. Revocation of the permits necessary for the customer’s normal business operations; E. Attachment of all or part of the customer’s business property or of goods relevant to the performance of the agreement; F. Liquidation, takeover or a similar situation at the customer’s company; G. Breach of one or more provisions of these general terms and conditions of sale and/or applicable laws and regulations by the customer.
In other cases, ECT is entitled, without notice of default or judicial intervention being required, to terminate the agreement taking into account a notice period of one month.
6.2. The customer has the right to terminate the agreement or to limit the scope (downscaling of the services and/or types of services), always before the end of the payment term (this can be either a month or year, dependent on the choice of service by the customer).
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. Third parties
7.1. 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.
7.2. 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.
7.3. 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.
8. Disputes and applicable law
8.1. All disputes between the parties will, at first instance, be settled by the competent court in Rotterdam.
8.2. 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.