General terms and conditions of sale for MyTerminal
1. Applicability
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., Hutchison Ports Venlo B.V. and Hutchison Ports Europe Intermodal 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 update and amend these general terms and conditions at any time and without notice to the customer. Any change or update will become effective from the moment of publication of the amended general terms and conditions on the website of MyTerminal or at any other date as specified by ECT.
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 the website of MyTerminal (https://myterminal.ect.nl), the customer can see which services ECT is offering (both digital and operational), as well as the costs of those services. The customer can order these services from ECT by taking out a subscription for MyTerminal. ECT offers the following subscriptions: MyTerminal Free, MyTerminal Premium and MyTerminal Premium Plus. More information about these options is available on the website. These general terms and conditions apply to the subscriptions as well as to the separate service orders.
2.2. A subscription between ECT and the customer is formed: (1) if the customer has registered himself for using MyTerminal (MyTerminal Free or MyTerminal Premium) on the MyTerminal website, which registration has subsequently been validated by ECT, or (2) when a hard copy agreement has been signed between ECT and the Customer for MyTerminal Premium Plus. The customer can expand (upscale) a subscription at any time, in the sense that from that moment on it will purchase more services and/or more types of services. For limitation of the scope of the subscription (downscaling of the services and/or types of services) reference is made to Article 6.2.
2.3. Parties that owe a truck charge (reference is made to the General terms and conditions Truck Charges on www.ect.nl > services > road services), need to conclude one of the subscriptions, as mentioned above.
2.4. A subscription (as well as expansions mentioned in clause 2.2 above) is entered into for an indefinite period of time.
2.5. ECT is only bound by subscriptions that have been formed by using MyTerminal.
3. Prices and payment
3.1. Depending on the type of subscription and separate service orders, ECT offers several payment methods (direct payment upfront or payment after receipt of an invoice). In case of payment after receipt of an invoice, a payment term of 30 days after the invoice date applies.
3.2. Regarding the subscriptions, the customer can choose between monthly or yearly payment periods. 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 May, in case of monthly payment, the payment shall cover the period 9 May – 8 June of the respective year. In case of yearly payment, the payment shall cover the period 9 May – 8 May of the next year. Separate service orders are invoiced on a weekly basis.
3.3. All prices stated by ECT are in euros and exclusive of VAT.
3.4. 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 as from 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 subscription with immediate effect before the changes will enter into.
3.5. 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.
3.6. In the event of non-payment or another negligence regarding the existing subscription(s) 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 (for example by increasing degrees), without prejudice to its other rights it may have.
3.7. 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. ECT does not guarantee that the services will function without errors or interruptions, but will make reasonable effort to resolve errors and interruptions as quickly as possible. If ECT cannot perform a service for unforeseen reasons, it shall inform the customer thereof and it shall perform the services as soon as reasonable possible. The customer is not entitled to any type of damages, including reimbursement of fees already paid.
4.4. 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.
4.5. 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 subscription or the relevant part of the subscription.
4.6. The provisions of Article 4.5. do not apply if: (1) the customer was already in default towards ECT, (2) the customer itself has changed or otherwise edited the services provided, and/or (3) 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.
4.7. ECT has the right to adjust the services (or have them modified) at its own discretion, provided it informs the customer about this within a reasonable period of time.
4.8. 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.
4.9. 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.
4.10. Information obtained via MyTerminal will be used exclusively for a proper purpose of and will not be used for unlawful and/or unethical use.
5. Liability
5.1. This article 5 applies in addition to the provisions on liability in the Electronic Communication Procedure. In case of a contradiction, this article takes precedence.
5.2. ECT shall only be liable for damage if ECT has failed attributably in the performance of one or more of its obligations under a subscription, despite of the receipt of a notice of default from the customer and having been granted a reasonable period to still perform properly.
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 subscription 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 subscription, 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 subscription 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 subscriptions and which are based, for example, on the (monthly) prices due under the subscription, as referred to in Article 3.
6. Termination
6.1. ECT is entitled, without notice of default or judicial intervention being required, to suspend (further) performance of under the subscription, or to terminate the subscription in whole or partially with immediate effect, without prejudice to its other rights, in the following situations:
A. If the customer does not fulfill one of its obligations under the existing subscription(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 for the existing subscription(s);
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 subscription taking into account a notice period of one month.
6.2. The customer has the right to terminate the subscription 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 subscriptions, 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 regarding the existing subscription(s). 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 regarding the existing subscription(s), 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.
7.4. In order to optimize the services or to facilitate agreements between the customer and third parties, ECT is authorized to provide third parties with information about the identity of the customer (for example name and Chamber of Commerce number) and/or requested information. No personal data, as meant in the General Data Protection Regulation ("GDPR"), shall be provided.
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.