1. Applicability
1.1 These purchase conditions apply to all legal relationships involving Europe Container Terminals B.V.(Chamber of Commerce 24297115), ECT Delta Terminal B.V.(Chamber of Commerce 24328090), ECT Home Terminal B.V.(Chamber of Commerce 24328092) and/or their subsidiary undertakings, hereinafter referred to as ECT, in connection with the purchase of goods and services even when it forms part of any other kind of agreement. THE APPLICABILITY OF SUPPLIERS' GENERAL TERMS AND CONDITIONS IS EXPRESSLY REJECTED, regardless of when the supplier has referred to them.
1.2 While the matters specifically agreed upon shall always prevail, these conditions can add to and clarify the matters specifically agreed upon.
1.3 If there is a difference between the Dutch-language text of these conditions and the translation in another language, the Dutch-language text will be conclusive at all times.
2. Offers and orders
2.1 All offers to ECT should be made in writing.
2.2 Offers to ECT cannot be revoked once ECT has sent a written acceptance.
2.3 ECT will not be bound vis-à-vis the supplier until an authorised order has been issued on behalf of ECT. For the purposes of these conditions, authorised persons are the persons registered as such with the Chamber of Commerce concerned, as well as persons authorised on the basis of a special written power of attorney.
2.4 Every ECT order has to be confirmed by the supplier in writing resulting in a contract between the parties. If ECT so requests, the supplier shall sign for approval and return to ECT one copy of the written order sent by ECT. In the event of the supplier failing to confirm the order of ECT in writing, the order of ECT shall lapse after a period of one year.
3. Prices
3.1 Any price offered to ECT may not be increased during the period of validity of the offer and for at least one year after entering into the contract. This term shall be extended by the period during which the supplier is in breach of this contract, unless this breach is attributable to ECT.
3.2 Unless expressly agreed otherwise, all prices shall include the costs of packaging suitably adapted to the method of transport, stowage material, drawings, computations, royalties, and all accompanying documents and directions for use in the Dutch or English language.
4. Price review
4.1 If it has been explicitly agreed that the price is subject to review in the event of a change in the prices of materials, the exchange rates, the wage level, the social security charges or the taxes, the following applies:
a. the review must not be prohibited by the government/authorities;
b. the method of reviewing and the factors subject to adjustment have to be stated in the contract;
c. reviewing may only take place where the differences in price exceed the agreed-upon thresholds;
d. the changes shall lead to adjustments only if they occur between the date of the offer and the date on which the processed goods are delivered;
e. an increase in the factors subject to adjustment occurring after the agreed-upon delivery term has expired shall not result in any review, unless failure to abide by the delivery term is due to force majeure or a fault by ECT. A pre-delivery decrease in the factors subject to adjustment shall always result in review;
f. no profit adjustment shall be made in respect of the differences arising from the review.
5. Maximum guide price and actual costs
5.1 If and to the extent that a maximum guide price has been agreed it will be incorporated into the price to be charged on the basis of the actual costs.
5.2 The price to be charged shall never exceed the maximum guide price stated in the order. The price to be charged includes:
a. the costs of executing the contract;
b. the profit;
c. the duties and taxes, excluding VAT, taking into account the designated use of the goods.
5.3 The costs of executing the contract include:
a. the costs of necessarily consumed / processed materials and parts, based on the net purchase price less volume discount and annual rebates, excluding VAT;
b. the direct costs attributable to the essential application of production capacity (man/hours, machine/hours and the like);
c. any other necessary direct costs such as freight and transport insurance, excluding VAT;
d. the costs of the work carried out by third parties contracted by ECT, insofar as necessary to the execution of the contract, excluding VAT;
e. a part of the costs incurred during the financial year concerned that are not directly attributable to the contract but that have a causal relationship with the execution of the contract.
5.4 The profit is determined by taking the agreed-upon profit percentage(s) of the costs of executing the contract.
5.5 Overtime is only allowed subject to prior written approval, unless the overtime does not involve any extra costs for ECT.
6. Term of delivery, transport, delivery and transfer of title
6.1 If a deadline for the delivery of goods or services has been agreed upon, the mere failure to meet this deadline shall constitute default on the part of the supplier, without any further notice of default being required, even if ECT gives another term for performance of the contract.
6.2 If for whatever reason, a supplier expects to be unable to comply with any obligation in time, the supplier shall inform ECT forthwith in writing thereof, stating the reason and the expected duration of the delay.
6.3 If ECT takes care of transport, the supplier takes care of loading the means of transport and of stowage material and packaging appropriate to ensure safe transport to the place of destination.
6.4 The supplier shall take care of the timely availability of despatch notices, complete packing lists or packing slips, delivery notes, customs forms and the like.
6.5 If Incoterms apply they shall have the meaning referred to in the latest version published by the international Chamber of Commerce.
6.6 Delivery shall be DDP (Delivered Duty Paid) agreed-upon ECT location (according to Incoterms), punctually at the time agreed-upon or within the term agreed-upon. ECT has the right to inspect the goods delivered and in the event of evidence of variations from the order to refuse delivery of the goods or return them to the supplier. In the latter event, the supplier shall accept the goods returned for its own account within the term set by ECT. This shall be without prejudice to the right of ECT to claim performance of the contract or to dissolve the contract, whether subject to damages or not.
6.7 The ownership of all goods ordered by ECT including the related intellectual property rights to drawings, computations, directions for use, etc., is transferred from the supplier at the time of delivery regardless of whether the goods have been definitively accepted or whether they have been paid.
7. Penalty clause
7.1 If goods that comply with the contract have not been delivered on the agreed-upon term at the agreed-upon place, the supplier shall owe ECT without any notice or other prior demand a penalty payable immediately amounting to 0.1% of the price of the goods in question, plus VAT, for each day that the default continues, to a maximum of 10%. If the delivery has become definitively impossible, the penalty is payable in full immediately.
7.2 The penalty shall accrue to ECT regardless of any other rights or claims, including:
a. its claim to demand performance of the obligation to deliver goods in compliance with the contract;
b. its claim to damages, to the extent that the damage exceeds the amount of the penalty.
7.3 The penalty shall be set off against the payments owed by ECT, regardless of whether the action for payment has passed to a third party.
8. Invoices and payment
8.1 ECT is to receive invoices from the supplier with a sufficiently clear description of the goods and/or services supplied and stating the ECT order number.
8.2 Payment shall be made within 30 days of receipt of the invoice and shall only be due if the goods and/or services supplied are fully in compliance with the contract. Invoices for partial deliveries shall be paid – subject to the same conditions – only after the last (partial) delivery, unless explicitly agreed otherwise in writing.
8.3 Payment of an invoice shall not imply any admission that the goods and/or services supplied are fully in compliance with the contract and shall not release the supplier from any guarantee and/or liability arising from the contract.
8.4 Default interest for overdue payment shall be owed by ECT only after receiving notice of default and if it continues to default on effecting any payment due.
8.5 ECT shall not accept any supplier credit restriction surcharges.
8.6 Amounts due by ECT may not be transferred to a third party without ECT’s written consent. Any amount payable by ECT shall expire by the mere fact that 12 months have passed since the amount due arose, unless prior proceedings were instituted in respect of the amount due in conformity with the provisions of clause 17.
8.7 If the supplier owes ECT an amount, the supplier shall pay the amount or transfer it to the account designated by ECT.
9. Special rights and obligations
9.1 The supplier shall inform itself of the purpose for which, the specific circumstances under which and the place where the service is to be rendered or the goods supplied are to be used by ECT. ECT undertakes to inform the supplier as much as possible in this respect.
9.2 The supplier warrants that:
a. the goods supplied and/or services rendered are complete and suitable for the intended purpose in the circumstances and at the place anticipated, are of good quality, free of any faults in design, manufacturing and materials and free of viruses;
b. the goods and/or services supplied are state-of-the-art and fully comply with all applicable legal standards and requirements;
c. only expressly agreed-upon materials, services and working methods have been used;
d. all drawings, computations, operating and maintenance instructions and other information required for the operation, repair or maintenance of the goods and/or services, are provided and are fully correct and that these as well as all parts will be available at all times for at least ten years after delivery;
e. all shortcomings occurring during the guarantee period, except for the shortcomings that occurred as a result of normal wear and tear, are fully remedied and/or replaced upon ECT’s first request thereto;
f. the supplier will bear all the costs that are required to be made to take care of the replacement or repair of unsuitable or defective goods it supplied;
g. ECT is entitled to remedy primary malfunctions at the expense of the supplier;
h. ECT or representatives designated by it will have access at all times to the supplier’s workshops and offices in order to acquaint itself/themselves with the progress and quality of the work on or in respect of the goods ordered;
i. ECT will have the same right with suppliers’ sub-contractors and sub-suppliers;
j. at ECT’s first request it will be given the opportunity to inspect the agreements and other documents exchanged between supplier’s sub-contractors and sub-suppliers;
k. the goods and/or services supplied comply with ECT’s reasonable standardisation requirements;
l. the use of the goods supplied will not result in any breach of any third party’s industrial or intellectual property rights. The supplier shall hold ECT harmless against all claims of this nature and shall compensate any damage caused as a result thereof;
m. its employees and all those it involves in the execution of the contract will comply strictly with the traffic and safety regulations applicable at ECT, such as the access regulations applicable to the supplier. These instructions or regulations, as the case may be, are available and will be furnished to the supplier upon its first request.
These obligations shall not be diminished by any guarantee furnished on the part of the supplier. ECT can invoke the guarantee described in clause 9.2 during a period of two years after ECT has started using the goods and/or services supplied.
9.3 ECT warrants that:
a. all information it furnishes to the supplier, other than technical computations and drawings for which the supplier is to be responsible, is correct;
b. it is not aware of any circumstances that are not known to third parties and that it has to make known to the supplier in connection with the execution of the contract;
c. if it makes available designs, drawings, computations and the like to the supplier, their use by the supplier shall not cause any breach of third parties’ industrial or intellectual property rights;
d. it will give the supplier sufficient time and space to enable the timely delivery and operation of the goods supplied or the rendering of the service agreed-upon insofar as this does not hamper ECT’s business operations; however, the loading or unloading by ECT of accepted ships, trains, trucks or other means of transport shall always enjoy priority.
10. Liability
10.1 The supplier accepts full liability for all damage which ECT and/or its employees and/or third parties might suffer as a result of the supplier’s non-compliance, late compliance or less than full compliance with any obligation under the contract and holds ECT harmless against any claims in this respect.
10.2 The supplier will take out an insurance with a first class insurance company to cover the risks referred to in clause 10.1 for an amount of at least € 1,000,000 (one million euro) as maximum per event, with a series of related events qualifying as a single event, and € 2,500,000 (two and a half million euro) as maximum per year. Upon ECT’s first request, the supplier will provide it with an insurance certificate showing details of the insurance in question, as well as proof that the premium due has been paid. If the documents referred to are not conclusive, ECT shall have the right to request the opportunity to inspect the policy.
10.3 ECT’s liability vis-à-vis the supplier, its employees or all those who, subject to the prior written permission of ECT, the supplier involves in the execution of the contract, will be limited to € 1,000,000 (one million euro) as maximum per event, with a series of related events qualifying as a single event, and € 2,500,000 (two and a half million euro) as maximum per year. Upon the supplier’s first request ECT will provide it with an insurance certificate showing details of the insurance in question, as well as proof that the premium due has been paid. If the documents referred to are not conclusive, the supplier shall have the right to request the opportunity to inspect the policy.
11. Force majeure
The supplier will not be held liable for its failure to perform any obligation vis-à-vis ECT only when this failure can be attributed to ECT. A circumstance for which the supplier cannot be held liable but which occurs after an imputable shortcoming on the part of the supplier will always be attributed to the supplier.
12. Engaging the services of third parties
12.1 The supplier may not transfer or contract out its obligations under the contract either in part or in full to third parties, unless ECT has given its prior permission in writing to this effect.
12.2 If the supplier engages the services of third parties in the execution of an assignment, as sub-contractor, sub-supplier or otherwise, it will demand of these third parties that they, too, are bound by these conditions, subject to the exclusion of the conditions, if any, of these third parties.
12.3 A permission granted by ECT does not release the supplier of any obligation or liability under the contract. The supplier will hold ECT fully harmless against all claims by a third party whose services the supplier has engaged and will compensate all payments made by ECT to a third party or third parties.
13. Publicity
13.1 The supplier shall not be entitled to refer in any way to the existence of the contract in brochures, adverts, newspapers or otherwise without ECT’s written permission.
14. Virus protection
14.1 The supplier shall take all necessary steps (including checking with the latest commercially available anti-virus software) to prevent virus infections from affecting the systems of ECT as a result of using the goods and/or services supplied or during the work carried out by the supplier at ECT. For the purposes of this clause, the term ‘viruses’ shall include ‘logic bombs’, ‘worms’ or other foreign elements in the operating environment, which terms are in general use in the computer and computer software industries.
15. Private Individuals’ Data Protection Act
15.1 For the purpose of the supplier’s execution of the contract, the supplier is allowed for the benefit of ECT to perform acts as the responsible / processing party such as using, gathering, furnishing and dispersing data of private individuals as referred to in the Private Individuals’ Data Protection Act.
15.2 The supplier shall comply with any subsequent detailed technical and organisational protection measures, which ECT may impose under the Private Individuals’ Data Protection Act.
15.3 Parties shall comply with the obligations arising from the Private Individuals’ Data Protection Act. If a party acts in breach of the Private Individuals’ Data Protection Act this party will hold the other party harmless against all claims and damage arising therefrom.
16. Miscellaneous provisions
16.1 Both parties undertake vis-à-vis one another and as against third parties to treat everything they are told or learn about the other as strictly confidential. If a contract is not entered into or is terminated, all the information and documents the parties exchanged between them shall be returned and any copies thereof destroyed.
16.2 Where necessary, the supplier shall take definite measures so that ECT cannot be held liable for any government imposed obligation to remit taxes and/or social security premiums in connection with payments due to employees or third parties and shall hold ECT harmless against any claims in this respect. If the contract has been made subject to ECT’s supplementary purchase conditions, these supplementary purchase conditions shall take precedence over this clause 16.2.
16.3 The supplier shall not transfer the rights and obligations under the contract to a third party without ECT’s prior written permission. ECT shall be entitled without the supplier’s permission to transfer the rights and obligations under the contract to a third party.
16.4 If for the execution of the contract the supplier makes use of ECT's industrial or intellectual property rights, this will never imply that ECT has granted its permission to make use of such rights in the execution of other contracts. Any transfer of such rights shall always require a separate deed signed by ECT.
17. Disputes and applicable law
17.1 All disputes between the parties concerning questions of a technical nature and concerning the question whether the goods supplied are in accordance with the contract will be settled by an independent expert to be appointed by mutual consent or – failing this – by the Judge President of the Rotterdam Court. This expert will issue a binding opinion on the question concerned in conformity with the procedure contained in the Rules of the Dutch Arbitration Institute (NAI).
17.2 All other disputes, insofar as they fall under the jurisdiction of a Court, will be settled in the first instance by the Rotterdam Court.
17.3 The laws of the Netherlands shall apply to all legal relationships between the parties. The applicability of the United Nations Convention on Contracts for the International Sale of Goods (the Vienna Sales Convention of 1980 - CISG) is excluded.
Additional purchase conditions