These terms & conditions ("Terms and Conditions"), are used by CARU Containers B.V., located at Seattleweg 34, 3195ND Pernis Rotterdam, Nederland ("CARU").
GENERAL TERMS AND CONDITIONS CARU CONTAINERS B.V.
These general terms and conditions ('General Terms and Conditions'), are used by CARU Containers B.V., established at Seattleweg 34, 3195ND Pernis Rotterdam, Nederland ('CARU').
Article 1 - Definitions Client: CARU's counterparty; Parties: CARU and the Client jointly; Agreement: the sales agreement or rental agreement between CARU and the Client; Container(s): the container(s), office units and other container applications, their interior, parts, inventory and installations and all the related products and services, as specified by CARU in the (appendices to) the Agreement; Delivery: the time at which, pursuant to the Sales Agreement or Rental Agreement, CARU transfers the ownership or the right of use of the Container(s) to the Client or such a transfer is offered or kept ready; Rental Period: the period between the date of Delivery and the first day following the day on which the Container(s) are returned to CARU; Container Projects: CARU realising or constructing special applications of the Container(s) on the Client's instruction, which includes designing, constructing, reconstructing, furnishing or placing them, linking them together or making them suitable or available for certain purposes;
Article 2 - General
- These General Terms and Conditions apply to every offer, agreement and other legal relationship between CARU and the Client with regard to CARU's sale and rental of Container(s). Unless the Parties expressly agree otherwise in writing, CARU rejects the applicability of General Terms and Conditions of the Client.
- These General Terms and Conditions also apply to all Agreements with CARU, for the performance of which third parties are or are to be engaged.
- The Supplier is authorised to amend these General Terms and Conditions at all times. The amended General Terms and Conditions will apply to all Agreements entered into from the moment CARU has deposited these with the commercial register of the Chamber of Commerce or filed them at the court registry.
- Applicability of the Vienna Sales Convention (CISG) to the Agreement is expressly excluded.
Article 3 - Quotations and Agreement
- All CARU's offers and quotations are free of obligation and revocable, regardless of whether such offer or quotation contains a term for acceptance. Images, specifications, descriptions and numbers contained in the offers and quotations are not binding. With regard to Container(s) and Container Parts manufactured by third parties, CARU expressly reserves the right to rely on the applicable tolerances and guarantees that the manufacturer can rely on towards CARU.
- If a Client requires special qualities and/or technical specifications or other specifications with regard to an order, it must expressly agree on those with CARU in writing. In all other cases, the quality CARU will deliver will be as described in the General Terms and Conditions.
- A combined quotation does not oblige CARU to supply any part of the Container(s) included in the offer or quotation for a corresponding proportion of the quoted price.
- CARU is authorised to – at its own discretion – have an Agreement performed by third parties, in full or in part.
Article 4 - Delivery, Inspection and Transfer of Risk
- Unless expressly agreed otherwise, delivery times contained in CARU's offers are indicative. The mere expiry of the indicated delivery term does not constitute a failure. Except in the event of wilful misconduct or gross negligence on CARU's part or on the part of CARU's managing employees, CARU is not liable for loss caused by delivery terms being exceeded.
- Unless the Parties agree otherwise in writing, the Container(s) will be delivered and returned to a depot in the Netherlands to be designated by CARU. If the Agreement does not specify a depot, the depot in question will be CARU's depot in Pernis Rotterdam.
- If the Container(s) are delivered to a different location, CARU is authorised to charge the transport and delivery costs. The Client must provide CARU or its transporter unhindered access to the relevant delivery location(s) and ensure that the working conditions and other conditions on the location(s) are safe. All transport by road of Container(s) to be carried out by CARU or on CARU's instruction is subject to the CMR Convention and, additionally, the General Conditions of Transport (Algemene Vervoerscondities) 2002.
- If, upon Delivery, the Client refuses or fails to take receipt of the Container(s), CARU will be authorised to store the Container(s) at the Client's expense and risk.
- Unless this is derogated from in the Agreement, CARU is authorised to make partial deliveries of the Container(s). CARU is authorised to invoice the Container(s) delivered in this manner separately.
- At the time of Delivery, though no later than within 2 days after the Delivery, the Client is obliged to inspect the Container(s) and check whether the quantity and quality of the Container(s) are as agreed, and whether there are other defects. In the event of an interchange of Containers, a Container Interchange Report ('CIR') will be drawn up of every transfer (i.e. both for every intake and for every issue). If the Client does not proceed with this inspection, the Container(s) will be considered to have been delivered complete and in a good condition, in accordance with the relevant CIR. Inspections performed by a third party to be jointly appointed by the Parties will be binding on the Parties.
- Prior to delivery, the Client is authorised to inspect the Container(s) or have them inspected in mutual consultation with CARU, on a location designated by CARU. This inspection will be considered the delivery inspection as referred to in paragraph 6 of this article.
- Any deficits and visible defects must be reported to CARU in writing upon delivery, though no later than within 3 days of delivery or inspection.
- If the Client wishes to return defective Container(s), it can only do so with CARU's prior written approval and in the manner indicated by CARU.
- The risk of the Container(s) that are the subject of the Agreement, such as the risk of loss or damage due to fire, theft, incorrect use or incorrect management, will transfer to the Client at the time at which the Container(s) are legally and/or actually delivered in accordance with the agreed delivery category of the ICC Incoterms that apply at that time.
Article 5 - Prices and Payments
- All the prices stated by CARU are exclusive of VAT, changed exchange courses, shipping costs, transport costs, packaging costs, storage costs and security costs, and levies and taxes, including import duties, export duties and clearance charges. In the event of sale, the above applies in full with regard to import duties, other taxes and costs that are associated with import by the Client of Container(s) that are in free circulation at the time of formation of the Purchase Agreement.
- If CARU and the Client have agreed on a fixed price, CARU will nevertheless be authorised to charge every structural change in the factors that influence the price on to the Client, regardless of whether such change could be foreseen at the time of formation of the Agreement. CARU will inform the Client of any such price changes in advance.
- Except in the circumstances as referred to in Article 15, paragraph 3 and Article 16, paragraph 13, and except insofar as it has been agreed otherwise, invoices must be paid within 30 days of the invoice date (hereinafter both referred to as: the 'Payment Term'), in the manner to be indicated by CARU and in the currency used in the invoice. Complaints of the Client with regard to the amount of the invoices do not suspend the payment obligation.
Article 6 - Payment and Failure
- If the Client fails to make the payment within a Payment Term, the Client will be in default by operation of law. At such time, and until the amount owed has been paid in full, the Client will owe an interest of 1.5% of the outstanding amount per month, with part of a month being counted as a full month, unless the statutory commercial interest is higher, in which case the statutory commercial interest will apply.
- If the Client continues to fail to comply with one or more of its payment obligations or other obligations after CARU sets another term for payment, the Client will be obliged to compensate CARU for all the extrajudicial costs and legal costs actually incurred (including the costs of experts, lawyers, etc.), which costs will be at least 15% of the amount owed, with a minimum of EUR 250.
- CARU has the right to apply payments made by the Client first to reduce the costs, then to reduce the interest that has fallen due and finally to reduce the principal sum and the accrued interest.
- All the amounts owed by the Client within the framework of an Agreement must be paid out to CARU without discounts, deductions or set-off. The Client will under no circumstances have the right to suspend compliance with its payment obligations or other obligations under an Agreement.
Article 7 - Guarantee and Guarantee Restrictions
- CARU guarantees that, at the time of Delivery, the Container(s) will meet the agreed specifications and be in accordance with the usual requirements and standards set for these within the sector, and will be free from defects due to faulty materials or manufacturing faults (the 'Guarantee'). CARU expressly does not guarantee a specific quality, function, objective, application or (special) use of the Container(s).
- The Guarantee is expressly limited to the time of Delivery and – if applicable – the extent and term of validity of the guarantee that the manufacturer of the Container(s) has given to CARU.
- The Guarantee does not apply: (i) with regard to defects or shortcomings that are small deviations in terms of quality, colour, size and/or weight that are considered allowable in the trade or are technically unavoidable; (ii) with regard to separate parts or installations that are part of the Container(s); (iii) with regard to defects that are the result of normal wear and tear, incorrect or improper use or management or use in violation of CARU's instructions; (iv) with regard to used Container(s) that have been delivered to the Client, i.e. that are not new. These will be delivered in the state and condition they are in at the time the Agreement is entered into.
- If the delivered Container(s) are not in accordance with the Guarantee and the Client has complained within the term set for that in these General Terms and Conditions, CARU will only be obliged to – at its own discretion – replace the Container(s) or see to it that these are repaired. In the event of consumer sale as referred to in Section 7:5 of the Dutch Civil Code ('Consumer Sale') the rights and claims owed to the Client pursuant to this article will apply, without prejudice to the rights and claims assigned to the Client by law.
Article 8 - Liability and Indemnification
- Any liability of CARU towards the Client for loss as a result of a circumstance as referred to in Article 7, paragraph 3 is excluded, and in any case limited to liability for direct loss, which – at CARU's discretion – is limited to replacement or repair of any defective Container(s), or reimbursement of the rent or purchase price, or a proportionate part thereof. CARU's total liability will at all times be limited to the amount of the payment to be made by CARU's insurer in the relevant case and, insofar as the loss is not covered by insurance, to the amount of the agreed purchase price or rent for a maximum of a year, to a maximum amount of EUR 100,000.
- In the event that, pursuant to any provision under treaty law on transport by road or sea transport of goods, a compensation is at CARU's expense, in full or in part, this compensation will be determined on the basis of the economic value of the Container(s) on the location and at the time of Delivery.
- CARU will under no circumstances be liable for indirect loss, which includes consequential loss, lost profit, cargo damage or cargo loss, lost savings or loss due to business interruption.
- The Client indemnifies CARU against all third-party claims with regard to the Agreement or the performance thereof, and the use and intended use of the Container(s), regardless of how and by whom
such claims were caused, which includes claims with regard to the transport by public road, transport over water and open sea transport of the Container(s) and their content.
Article 9 - Confidentiality The Parties are obliged to preserve the confidentiality of any confidential information that they obtain from each other or from other sources within the framework of the Agreement. Information will be considered confidential if a party has indicated this or this arises from the nature of the information or the Agreement. The obligation pursuant to this article does not apply with regard to mandatory publication of confidential information pursuant to any statutory provision or court decision.
Article 10 - Suspension, Termination and Cancellation
- CARU is authorised to suspend compliance with the obligations under the Agreement or fully terminate the Agreement with immediate effect or to cancel it and take the Container(s) back (or have them taken back), in the event that: (i) the Client fails to comply with any of its obligations under the Agreement or pursuant to the law; (ii) facts or circumstances that have become known to CARU since the Agreement was entered into give good cause to fear that the Client will fail to comply with its obligations; (iii) the Client fails to provide the agreed securities for compliance with its obligations under the Agreement; (iv) the Client acts in violation of any of its obligations under the law; (v) the Client is put into liquidation or applies for a moratorium, becomes subject to a debt adjustment under the Dutch Debt Management (Natural Persons) Act (Wet Schuldsanering Natuurlijke Personen) or submits an application to that end, or assets of the Client or the Container(s) are attached; (vi) the Client is dissolved, discontinues its activities and/or ceases to exist; (vii) the control of the Client or its company or a significant part thereof is transferred to one or more others by means of a merger as referred to in the SER Resolution concerning the Merger Code 2015, regardless of whether that code applies in the relevant case (and other than through death); (viii) the Client uses the Container(s) or allows the Container(s) to be used for a purpose other than that for which these are intended; (ix) if the Container(s) are destroyed, regardless of the cause thereof; (x) any circumstance arises that has a similar effect for the Client as those described above, whether or not under foreign law.
- In addition, CARU is authorised to terminate the Agreement in the event of circumstances, the nature of which is such that compliance with the Agreement cannot possibly be expected or can no longer be expected in accordance with the principles of reasonableness and fairness, or if there are other circumstances, the nature of which is such that unamended maintenance of the Agreement cannot reasonably be expected.
- In the event that the Agreement is terminated or cancelled, CARU's claims on the Client become immediately due and payable. If CARU suspends compliance with the obligations, it will retain its rights under the law and the Agreement.
Article 11 - Force Majeure (list examples of force majeure, but is that list exhaustive?) Force majeure must be understood to be any circumstance beyond a Party's control, as a result of which compliance with obligations under the Agreement is fully or partially hindered, or as a result of which compliance with the obligations under the Agreement cannot reasonably be expected. These circumstances include, among others and without limitation: war, threat of war, civil war, uprisings, hostage situations, acts of war, fire, water damage and extreme weather conditions such as floods, storms, hurricanes, lightning strikes etc., work strikes, sit-down strikes, lockouts, defects in machinery and installations, disruptions in the supply of energy, obstructive measures by any government institution, the absence of any permit or approval to be obtained from the appropriate authorities, terrorist actions or consequences thereof, as well as any non-attributable failure in performance by third parties, as a result of which CARU cannot comply with its obligations towards the Client. Insofar as, at the time of the relevant circumstance arising, CARU has already complied with some of its obligations under the Agreement or will be able to comply with some of its obligations, and the part of the Agreement that has been or can be complied with has independent value, CARU will be authorised to invoice the part it has complied with or will be able to comply with separately. The Client is obliged to pay this invoice as if it were a separate Agreement.
Article 12 - Disputes and Applicable Law Only the court within whose competence CARU's place of business falls is authorised to take cognizance of any disputes regarding the Agreement. Nevertheless, CARU has the right to submit the dispute to another court that is competent according to the law or treaties. Every Agreement between CARU and the Client is subject to Dutch law. Article 13 - Applicability and Site These General Terms and Conditions have been deposited at the offices of the Chamber of Commerce in Rotterdam, in the form of a Dutch version, a German version, a Spanish version and an English version. The Dutch text is decisive with regard to the interpretation of the contents and purport of these General Terms and Conditions. In all cases, the most recently deposited version of these General Terms and Conditions applies.
Insofar as the below Specific Conditions do not contain additional or derogating provisions, the provisions of the General Terms and Conditions will continue to apply in full.
Article 14 - Specific Provisions for Container Projects
- Unless CARU and the Client have entered into a specific agreement to that end, with regard to the implementation of Container Projects, CARU can under no circumstances be considered a contractor for works within the meaning of Book 7, Title 12 of the Dutch Civil Code.
- CARU will only implement Container Projects if, in CARU's opinion, the specifications of the Container(s) to be delivered are sufficiently clear and specified in a separate agreement. In the implementation of Container Projects, CARU can under no circumstances be obliged to do more than or do something other than that which has been expressly agreed upon in such an agreement.
- Without prejudice to other arrangements between the Parties, that which has been agreed upon in the General Terms and Conditions with regard to the implementation of Container Projects, in terms of delivery, inspection, complaints and guarantees, will apply by analogy. In particular, CARU does not provide delivery guarantees and/or maintenance guarantees that, in terms of their extent and term of validity, go beyond the general product guarantees described in the General Terms and Conditions.
Article 15 - Specific Provisions for Sale
- Unless CARU has indicated otherwise in writing, the delivery term starts at the time CARU has received the payment of the purchase price.
- Unless the Parties agree otherwise in writing, the Container(s) will be delivered and returned Ex Works from CARU's depot and in accordance with the Incoterms 2010.
- Unless CARU indicates otherwise, the full purchase price must be paid prior to delivery.
- The Client is obliged to remove CARU's B.I.C. (Bureau International des Containers, Paris, France) alpha code, as well as all ownership characteristics and other characteristics of CARU from the Container(s), or have these removed, no sooner, but also no later than after the Client has complied with all its payment obligations and other obligations under the Agreement.
- All the Container(s) delivered by CARU will continue to be CARU's property until the Client has complied with all its obligations under the Agreement with CARU in full. The Client is not authorised to pledge the Container(s) that are subject to the retention of title or encumber these in any other way. In the event that CARU wishes to exercise the ownership rights as described above, the Client hereby irrevocably and unconditionally authorises CARU or third parties to be appointed by CARU to access all sites at which CARU's property is located and take such property back.
Article 16 - Specific Provisions Rental
In consultation with CARU, Container(s) can be reserved for rental during a certain period. In such case, the Client is obliged to actually rent the Container(s) during the reserved period, except in the event of timely cancellation. A reservation made can only be cancelled in writing, in which case the Client will owe CARU, by way of compensation for the costs incurred or the loss suffered by CARU: (i) 50% of the rent if the cancellation date is less than 4 weeks before the start of the Rental Period; (ii) 80% of the rent if the cancellation date is less than 2 weeks before the start of the Rental Period; (iii) 100% of the rent if the cancellation date is less than 1 week before the start of the Rental Period;
Through the Agreement, the Parties only aim to grant the Client a temporary right of use of the rented Container(s), while the ownership of the Container(s) will at all times rest with CARU. Without CARU's prior written permission, the Client is forbidden from giving third parties the use of the Container(s), or pledging them, disposing of them or otherwise encumbering them for the benefit of third parties.
For the duration of the Rental Period, the Client is obliged to manage de Container(s) at its own expense and risk, with all due care, and to keep them in an acceptable and operational condition, which means – among other things – that the Client: (i) may only use the Container(s) in the normal conduct of its business and for the purpose for which they were rented, and are inherently suitable; (ii) must use the Container(s) in accordance with CARU's instructions; (iii) is obliged to manage and transport the Container(s) as recognisable property of CARU and to refrain from removing CARU's ownership characteristics and other characteristics, such as its B.I.C. alpha code, or having these removed; (iv) must continuously inspect the Container(s) to ensure their proper and safe operation and – insofar as it has not been agreed otherwise – perform the maintenance required to preserve this proper and safe operation, all this in accordance with the specifications of the manufacturer, if available; (v) must take any reasonable measures to prevent damage to or loss or theft of the Container(s); (vi) is obliged to observe all the applicable national and international statutory regulations, regulations under treaty law and other regulations that apply with regard to the Container(s) and their use, transport and destination; (vii) must ensure that the subsoil on which the Container(s) are to be placed is level, paved and otherwise suitable for both the placement and the presence of the Container(s), and must ensure that the owner of the site on which the Container(s) are to be placed gives its permission for the placement of the Container(s); (viii) may not place or use the Container(s) on locations that suffer from chemical soil pollution, other forms of soil pollution or groundwater pollution. If, in spite of the above, the Container(s) are used on soil that is chemically or otherwise contaminated, the Client is obliged to ensure that the Container(s) are completely cleaned before being returned. This obligation also applies if the Client becomes aware of the contamination after the start of the Rental Period.
In the event that CARU rents out Container(s) for people to use as accommodation and reside in, such as – without limitation – so-called office units, the following provisions apply in addition to these general rental conditions: (i) The Client is independently responsible for and obliged to, at its own expense and risk, select a site for placement and use of the Container(s) that – in connection and in accordance with the intended use of the Container(s) – is properly prepared, solid and suitable for the users of the Container(s) and third parties; (ii) The Client is obliged to inspect the Container(s), their construction, subsoil, use and application with adequate regularity for defects and safety for users and third parties, and – at its own expense and risk – take all the maintenance measures and other measures that are required to guarantee the absence of defects, or immediately remedy any defects or faults in the safety; (iii) Unless the Parties have agreed otherwise in writing, the Client or a third party appointed by the Client must, at the Client's expense and risk, see to the assembly, construction, use and disassembly of the Container(s); (iv) The Client must ensure – at its own expense and risk – that any permits and/or approvals that are required for the installation, construction, presence, use and disassembly of the Container(s) are obtained, and remain valid for the term of the Agreement and for as long as is required after that;
If the Agreement does not concern Container(s) intended for transport by road, transport over water and open sea transport, the Client is not authorised to move the Container(s), except with CARU's written permission. In the event that Container(s) are moved, the Client is obliged to immediately provide the destination or location of the Container(s) at CARU's first request.
CARU is always authorised to inspect the Container(s) or have them inspected for proper compliance by the Client with the Agreement. The Client is obliged to cooperate fully in these inspections.
From the moment of Delivery of the Container(s) and for the duration of the Rental Period, the entire risk of loss and destruction of, damage to and storing and/or repairing the Container(s) will be at the Client's expense, regardless of which event or cause has led to that, therefore including in the event of force majeure and in the event that it was caused by – for example – fire, water, storms, acts of war, theft or misappropriation or incorrect use or management of the Container(s).
The Client is obliged to compensate CARU for any damage to the Container(s) caused by the risks as described in the preceding paragraph, without prejudice to the Client's obligation to pay the rent until CARU has been compensated for all such loss.
The Client must properly insure the Container(s) against the damage and loss as referred to in paragraph 7 of this article, and keep them insured, and must, at CARU's first request, provide CARU with evidence that it has taken out the relevant insurance. In addition, the Client undertakes to, at CARU's first request, assign its claims on the insurance company to CARU.
The Client is obliged to immediately inform CARU in writing of any damage, loss or destruction of the Container(s), and render CARU every assistance that it requires in that connection. Container(s) will be considered to be a destroyed if, in CARU's opinion, the costs of repairing damage to the Container(s) exceed the rental value of the Container(s) on the market at that time. Unless, after loss or destruction of the Container(s) is reported, CARU makes similar replacement Container(s) available, the Agreement will be terminated at such time.
With regard to the presence of damage to the Container(s) as well as its extent and the remedial actions taken, CARU applies the IICL (Institute of International Container Lessors, Briarcliff Manor, NY, U.S.A.) Standards for Repair and Cleaning as a minimum standard, though CARU will at all times be authorised to determine otherwise if the extent of the damage or the costs of repairs are higher than application of the IICL standard implies.
The Client owes the rent from the Delivery Date onwards, even if, for whatever reason, the Client fails to collect or take receipt of the Container(s) on the date of delivery. If the Container(s) are returned before the end of the agreed Rental Period, the Client will owe the rent for the entire agreed Rental Period. In the event that the Agreement is renewed at the end of its term, it will be renewed for the same period and under the same conditions as stated in the original Agreement.
Rent Instalments are payable on the first day of the month to which the Rent Instalment pertains. CARU will at all times be authorised to require that the Client provide adequate security or surety for the payment of the rent. In the event of default of payment, CARU will – without prejudice to its right to claim payment of the unpaid Rent Instalments, plus interest and costs – have the right to, at its own discretion; (i) take measures that cause the Client to be unable to use the Container(s) until the arrears in payment of the Rent Instalments owed have been made up in full; (ii) terminate the Agreement with immediate effect and take the Container(s) back or have them taken back at the Client's expense.
The Client undertakes to inform CARU of a return of the Container(s) at least two working days in advance, at which time CARU will indicate the location and time of the return, failing which the Container(s) are to be returned to CARU's site in Rotterdam, the Netherlands.
At the end of the Rental Period, the Client is obliged to return the Container(s) in the condition these were in upon commencement thereof, and completely clean. In the event of a difference of opinion on the condition of the Container(s) at that time, the burden of proof that the Container(s) were returned in a good condition rests with the Client.
CARU will inspect, repair and clean returned Container(s) insofar as CARU deems this necessary. All costs incurred in this connection will be at the Client's expense and will be invoiced separately.
The Client is liable for any costs arising from a failure to return the Container(s) in time, to be calculated in proportion to the number of days the rent is owed, in accordance with the agreed rent, plus an immediately due and payable penalty of € 250 per day per Container, which the Client will owe until the date on which the Container(s) are returned to CARU. All this is without prejudice to CARU's other rights, such as – among others – the right to compliance with the obligation to return and the right to compensation.
Unless the Parties agree otherwise in writing, the Container(s) will be delivered and returned Ex Works from CARU's depot and in accordance with the Incoterms 2010.
CARU CONTAINERS B.V. Date: August 2018