“The General Terms and Conditions of Martens Havenontvangstinstallatie Vlissingen B.V. (Version A) are part of our offers. The Middelburg District Court has exclusive jurisdiction to examine disputes between Martens and its principal, even if a Lloyds Open Form has been signed.”
“Signature for receipt of Martens’ General Terms and Conditions (Version A) and in approval of Martens’ offer.”
General Terms and Conditions of Martens Havenontvangstinstallatie Vlissingen B.V. (Version A)
1. Martens Havenontvangstinstallatie Vlissingen B.V. (hereinafter Martens) is a private company with limited liability involved in, among other things, the collection of (shipping) waste, ship cleaning and (industrial) cleaning.
2. These General Terms and Conditions are part of all offers made by Martens and apply to all agreements which it enters into with its principals. Martens considers those agreements to be commission contracts. In the event of any conflicts between the main agreement and these General Terms and Conditions, the main agreement prevails. Martens is authorised to engage the services of third parties for the performance of the agreement. Third parties engaged by Martens in the performance of the assignment can also invoke these General Terms and Conditions against Marten’s principal.
3. If one or more provisions of these General Terms and Conditions are or become non-binding, the other provisions will continue to be applicable. The parties undertake to adopt a new provision or provisions in that event that approximate the purport of the non-binding provision(s) as much as possible.
4. The dates or terms used by Martens for the commencement or duration of the activities are intended as an indication and never constitute a deadline as referred to in Book 6, Section 83a of the Dutch Civil Code.
II. The principal’s obligations
1. The principal warrants the accuracy and completeness of the information it provides, including relevant information regarding the origin, quantity and composition of the (waste) substance to be collected, the characteristics of the object to be cleaned, the products that were stored in that object, and the location where the work is to be performed.
2. The principal is responsible for ensuring that, as from the scheduled commencement date, i) the location where the work and/or collection are to be performed is sufficiently accessible for the equipment/personnel to be deployed by Martens and ii) the work can commence safely and iii) if so desired by Martens, the work can be performed in succession. The principal must
at all times comply with the instructions given by Martens. Book 7, Section 402 (1) of the Dutch Civil Code is not applicable. The principal will be charged for any delays or costs incurred by Martens if the work cannot be started or finalised and this is not attributable to Martens. In the case of (industrial) cleaning activities, the principal is responsible for the security of the installation or the object to be cleaned.
3. The principal is responsible for ensuring that separate samples can be taken of the waste to be collected. If, during the sample taking, the principal does not object to the sampling method and does not request a sample for its own analysis, the principal will act in accordance with Marten’s sampling method and accept the results of the analysis.
1. Martens is not required to compensate any loss or damage other than direct harm to individuals or damage to goods that can be attributed to its intent or gross neglect. Martens is not liable for consequential damage or losses due to delays. Martens is not liable vis-à-vis the principal for a failure by a third party engaged by Martens. Martens is authorised by the principal to accept any third-party limitations on liability. Any and all liability on the part of Martens is limited to the invoice value of the assignment during which the harmful event occurred.
2. Martens is only required to pay damages if and insofar as Martens’ liability insurer pays out, plus the deductible that the insurer is not required to pay according to the policy conditions.
3. The principal indemnifies Martens against all claims by third parties that are related in any way to the work performed for the principal, and is responsible for the actual costs of legal assistance and internal organisational costs incurred by Martens, except in the case of gross neglect or intentional misconduct on the part of Martens. The internal organisational costs have been fixed at € 125,– per hour. The number of hours will be established based on Martens’ accounting records, with the exception of proof to the contrary.
4. If the information provided by the principal is incomplete or incorrect or there are any signals in that respect and Martens is forced to incur additional costs (for example, additional processing costs/analysing costs) or otherwise suffers loss or damage (for example, as a result of penalties, other government measures, a lower sales price, contamination of other lots, stagnation of its collection centre or damage to its (collection) equipment), the principal will be liable.
IV. Composition of (shipping) waste
The principal warrants that the (waste) substances it delivers meet Martens’ acceptance conditions, which are based on its collection permit. Additional costs ensuing from the failure, presumed or otherwise, to comply with said acceptance conditions will be charged on to the principal. No waste substances may be presented as shipping waste if they were not generated in connection with ordinary operations on board the ship and/or the shipment of cargo.
The principal is liable for all loss or damage ensuing from deviations between the specifications and the (waste) substances delivered, regardless of the fact that Martens will subsequently analyse the substances delivered. This is because the results of the analysis are not announced until after further processing. Book 7, Section 17 (5) of the Dutch Civil Code is never applicable.
V. Force majeure
If the performance of the agreement by Martens is delayed or impeded by force majeure, Martens will be authorised to suspend the performance of the agreement or terminate the agreement in full or in part without this entitling the principal to any damages. Force majeure
also includes (strong indications of) incorrect or incomplete information provided by the principal, inaccessibility of the location, the failure of the principal to be prepared for the work, lack of personnel or collection equipment, government impediments, changed scheduling as a result of an urgent assignment, inclement weather and if there are grounds to fear that the principal will not comply with its obligations.
VI. Compensation, invoicing and payment
1. Offers made by Martens are valid for 30 days, are free of obligation as referred to in Book 6, Section 219 (2) of the Dutch Civil Code, and can be cancelled. Offers made by Martens are exclusive of VAT and expenses, and pertain to a single lot of waste or a single project. The prices stated are expressed as prices per quantity of waste and as prices per quantity of contamination to be removed. The prices stated for carriage per hour and/or working hours are standard prices for carriage or work during the day. A rate of 150% will be charged for assignments to be performed during the evening, at night, on Saturday or for urgent assignments. Work performed on Sunday will be subject to a rate of 200%.
2. Additional costs or additional work, in other words, that which is not described in the offer as being included in the price, will be charged separately based on Martens’ customary rates. No explicit assignment is required.
3. If and insofar as the principal has paid for the collection of the (shipping) waste offered via Zeeland Seaports, Stichting Scheepsafvalstoffen Binnenvaart or Stichting Financiering Afvalstoffen Visserij, Martens will be paid via the organisation in question, if the amount paid is sufficient to that end. Any other costs will be charged to the principal separately. If Zeeland Seaports, SAB or SFAV does not pay Martens (in full), Martens reserves the right to charge the outstanding amount directly to the principal as yet, and the principal is required to pay Martens directly.
4. Payment must be made into Martens’ account within 30 days after the invoice date, without the principal being entitled to offset amounts or to suspend payment. After the lapse of this period, the principle will be in default and all costs, legal and otherwise, actually incurred in order to obtain payment out of court will be borne by the principal and the principal will owe statutory commercial interest.
5. Payments serve first as payment of costs owing, then to interest owing and finally as payment of outstanding invoices, beginning with the oldest outstanding invoice, even if the principal states that the payment pertains to a later invoice.
The principal can only terminate the agreement if Martens has not yet commenced its work. Termination is effected in writing and, upon termination, the principal is required to pay any preparation costs incurred thus far. Martens can establish such costs unilaterally.
1. The legal relationship between Martens and the principal is governed by the laws of the Netherlands.
2. The Middelburg District Court has exclusive jurisdiction to examine disputes between Martens and the principal, even if a Lloyds Open Form has been signed.