1.1. These General Terms and Conditions apply to all contractual and non-contractual relations between the customer (as defined below) and ShipSupport B.V. (as defined below) for all interactions which are (partly) done by usage of the platform (as defined below). In these conditions of delivery the following defined terms have the following meaning:
user of the platform
the website www.ShipSupport.com;
goods, as well as services such as maintenance, advice and inspection;
ShipSupport B.V. (company number 75558858), part of IHC Merwede Holding;
means any and all forms of taxation, social security charges, duties, imposts and other levies of whatever nature, including income tax, corporate income tax, capital tax, wage tax, real property tax, transfer tax, registration tax, value added tax, stamp duty, national social security contributions and employee social security contributions, customs and excise duties, environmental taxes and duties, dividend withholding tax, including any interest, penalties, surcharges, fines or other additions thereto separately or jointly due, payable, levied, imposed upon or claimed to be owned in any relevant jurisdiction to any relevant tax authority and regardless of whether these items are chargeable directly or primarily against or attributable directly or primarily to any other third party.
2. Product information
2.1 ShipSupport places product information on the platform. This information such as but not limited to technical specifications, price, delivery time and delivery terms are provided as an indication. This information is not an offer to accept but an invitation for the Customer to make an offer to ShipSupport for ShipSupport to sell and deliver certain products.
2.2 The content of the platform has been compiled with the utmost care. However, ShipSupport does not guarantee the correctness and completeness of the platform’s content. All prices, offers and other information on the platform or provided by ShipSupport are subject to any programming and typing errors.
2.3 Any data mentioned on the platform such as but not limited to illustrations, drawings, statements of weights and measures are for indication only and are estimates which are not binding except in so far as these are explicitly inserted in an order confirmation signed by ShipSupport.
3.1 Upon receipt of an offer from customer to ShipSupport for ShipSupport to sell and deliver certain products, ShipSupport will either (1) accept the offer after which an agreement between ShipSupport and customer is in effect; or (2) reject the offer without liability for either party or (3) make a counter proposal for customer to accept or reject within 1 working day without confirmation no agreement is reached and such is without liability for either party and with acceptance an agreement between ShipSupport and customer is in effect.
3.2 In the event payment has been made but ShipSupport and customer do not reach an agreement, ShipSupport will return payment within 60 days on the same account/mode of payment as the payment was made.
3.3 Customer and ShipSupport may agree by mutual consent that the content of the agreement with respect to quantities or otherwise is amended after the agreement is effective.
3.4 Verbal promises by and arrangements with subordinate employees of ShipSupport or subcontractors of ShipSupport do not bind ShipSupport except as they have been confirmed by ShipSupport in writing.
3.5 If customer has provided wrong information before or at the agreement becoming effective, ShipSupport may postpone its obligations until it has received the correct information. The delivery time will be automatically extended by the number of days of delay in providing the correct information.
4. Price and taxes
4.1 The prices indicated by ShipSupport on the Platform are exclusive VAT, GST and other similar government levies on turnover and are for delivery DDP (inside the European Union) or DAP (outside the European Union) at the location indicated in the order conformation in accordance with Incoterms 2010 applying on the date of the quotation, except and insofar as it is provided otherwise in these terms and conditions.
4.2 All taxes arising outside the Netherlands in connection with the execution and performance of the agreement shall be paid or caused to be paid by customer. However, in the event that VAT, GST or similar taxation is payable, customer shall pay such taxes.
4.3 All rates, sums and prices payable to ShipSupport under the agreement are payable to ShipSupport without deduction or withholding for or on account of any taxes and where customer is compelled by law to deduct or withhold such taxes, it makes the minimum deduction or withhold the necessary amount and pays ShipSupport such additional sums as may be necessary in order that the amount received by ShipSupport after such deductions or withholdings is equal to the amount which would have been received by ShipSupport had no such deduction or withholding been made (gross-up).
4.4 If one or more of the cost-price factors are raised after the agreement has been made, due to unforeseeable circumstances, ShipSupport is entitled to increase the price accordingly.
4.5 The packing is not included in the price and will be agreed and charged separately, unless this packing regards packing that is, in accordance with ShipSupport’s normal use and in accordance with the standards and specifications applicable at ShipSupport, included in the price. Packing is non-returnable.
5. Intellectual property rights and confidentiality
5.1 All intellectual property rights connected to products designed and/or constructed by ShipSupport for the customer and/or sold and/or delivered by ShipSupport to the customer and/or all intellectual property rights that arise during or are used for the completion of a work, or the performance of work vest with ShipSupport and/or one or more of the companies affiliated to ShipSupport. The customer shall not be entitled to copy items or parts thereof either wholly or in part or to breach these intellectual property rights in any other way.
5.2 If during the execution of any agreement between ShipSupport and the customer one or more patentable inventions are made or other rights are created that are eligible for registration, ShipSupport is entitled to apply for said patent or patents and the other rights and to register them or to instruct for such to be done. The costs thereof shall be borne by ShipSupport. Insofar as is required the customer cooperates wherever necessary to ensure that patents and other rights eligible for registration are applied for and granted in ShipSupport’s name, even insofar as the customer is involved in any way whatsoever in the creation of said patentable inventions or other rights eligible for registration.
5.3 Intellectual property rights as provided for in this article 5 include all intellectual property rights and comparable rights such as for example, but not limited to, patent rights, trademark rights, copyrights, know-how and registered and unregistered model rights.
5.4 The customer treats all information and data provided to it by ShipSupport with the strictest confidentiality. All this information and data customer is confidential and this information and data will not be passed to third parties without obtaining the written consent of ShipSupport beforehand. Furthermore, the customer guarantees that said information and data will only be used within the scope of the purpose for which these were made available to the customer.
5.5 The confidentiality obligation pursuant to paragraph 5.4 shall not apply to information:
(a) that was already in the possession of the customer at the moment it was revealed to the customer without there being any breach of a confidentiality obligation with ShipSupport or with a company affiliated to ShipSupport;
(b) that was already in the public domain at the moment it was made available or which enters the public domain thereafter, unless this involves publication as a result of a violation of a confidentiality obligation by customer or third party with respect to the customer or a company affiliated to the customer;
(c) that the customer is bound to reveal to an authority charged with implementing and/or enforcing regulations and legislation, provided ShipSupport is notified of such a revelation beforehand in writing; or
(d) that is obtained or developed independently by the customer or a third party other than a company affiliated to the customer, without any confidentiality obligation towards ShipSupport or a company affiliated to ShipSupport having been breached.
5.6 The product and other items developed for the customer by ShipSupport will not be made known to a third party not affiliated to the customer insofar as this would result in the publication of any intellectual property rights or confidential information connected to the product, except when this is required for servicing, reparation or any other adjustment to the product within the scope of normal use.
6. Time of delivery
6.1 The delivery period commences from the latest of the following dates:
(a) the date that an agreement is reached in accordance with clause 3.1;
(b) the date on which ShipSupport receives the (advance) payment if such is required;
(c) the date on which ShipSupport has received all information necessary for executing the agreement.
6.2 The delivery time is based on the working conditions prevailing at the date the agreement was concluded and on timely delivery of materials ordered by ShipSupport for the execution of the work. If, through no fault of ShipSupport, there is a delay due to a change in said working conditions or due to a delay in the delivery of materials ordered in time for the execution of the work, the delivery time will, insofar as necessary, be extended by such a period.
6.3 With regard to delivery time of the product, the product will considered to be delivered when the customer has been notified that the product is ready for shipment, regardless of the agreed upon Incoterm.
6.4 Without prejudice to that provided elsewhere in these terms and conditions with respect to extending the delivery period, the delivery period will be extended by the duration of the delay that arises due to the customer’s failure to fulfil any of its obligations arising from the agreement or to provide the cooperation required of him with regard to the execution of the agreement.
6.5 Except in the case of gross negligence on the part of ShipSupport any exceeding of the delivery time will not entitle the customer to dissolve the agreement either wholly or in part. Exceeding the delivery time, for whatsoever reason, shall not entitle the customer, without the authority of the court, to perform work or to have work performed in execution of the agreement.
6.6 ShipSupport’s liability for late delivery of the product is limited to the reimbursement of reasonable direct costs incurred by customer and in any event limited to 10% of the value of the (part of the) particular product which is delivered late.
7. Inspection and testing for acceptance
7.1 The customer must inspect and test the delivered product within 14 days of the delivery as stipulated in paragraph 6.3. If this term lapses without any written and specified notification of well-founded complaints the product will be deemed to have been accepted.
7.2 In the event of insignificant shortcomings, in particular those which do not or barely affect the expected use of the product, the product will, regardless of these shortcomings be deemed to have been accepted. ShipSupport will remedy said shortcomings as soon as reasonably possible.
7.3 Without prejudicing the obligation of ShipSupport to comply with its guarantee obligations, acceptance in accordance with the above paragraphs excludes any claim of the customer with respect to a shortcoming in the performance of ShipSupport.
8. Risks and transfer of ownership
8.1 The product will be delivered DDP (inside the European Union) and DAP (outside the European Union at the location indicated on the order confirmation except as agreed upon otherwise between customer and ShipSupport. The transfer of risk is governed by the Incoterms 2010.
8.2 Without prejudice to the provisions of the preceding paragraph and paragraph 6.3, the ownership of the goods does not pass to the customer until all the amounts due to ShipSupport in respect of the delivery or work, including interest and costs, have been paid in full to ShipSupport. Until the moment of full payment, ShipSupport is entitled to have free access to the product. Customer cooperates fully with ShipSupport in order to give ShipSupport the opportunity to exercise the ownership reservation by taking back the product, including any dismantling that may be required.
9.1 The agreed price will be paid in accordance with the agreed payment terms.
9.2 All payments will be made without deductions or settlements into an account indicated by ShipSupport. Furthermore, the customer is not authorised to suspend payment, either wholly or in part, nor may the customer otherwise withhold payment, either wholly or in part, from ShipSupport, whether or not this is temporary.
9.3 If the customer fails to pay within the agreed payment terms, the customer is deemed to be in default by operation of the law and with no notice of default being required, ShipSupport is entitled to charge interest with effect from the due date equivalent to the applicable statutory commercial interest rate percentage in the Netherlands as well as any legal or out of court costs ShipSupport may incur during the collection of its claim.
10.1 Without prejudice to the restrictions stipulated hereinafter ShipSupport guarantees both the reliability of the product delivered and the quality of the material used and/or delivered for this, insofar as this concerns defects to the delivered product that are non-observable during the inspection and testing as referred to in paragraph 7.1, with respect to which the customer has proof that said defects appeared within 6 months of the delivery in accordance with paragraph 6.3 exclusively or principally as a direct result of a mistake in the construction used by ShipSupport or of incorrect finishing or the use of poor materials.
10.2 The defects covered by the guarantee referred to in paragraph 10.1 will be remedied by ShipSupport by reparation or replacement of the defective part, at the customer’s company, or by sending a part for replacement, this being always at the discretion of ShipSupport. ShipSupport may refer the customer to a manufacturer or a supplier of ShipSupport. All costs exceeding the single obligation as described in the above sentence, such as, but not confined to, shipping costs, travel and accommodation expenses as well as the costs of dismantling and assembly, shall be for the account of the customer. No extended or new guarantee term applies with respect to the repaired or replaced part.
10.3 Defects that appear wholly or partly as a result of the below never fall under the guarantee:
(a) the failure to take operation and maintenance instructions into consideration or uses other than the expected normal use;
(b) normal wear and tear;
(c) assembly/installation or reparation by third parties, including the customer;
(d) the application of any government instructions with respect to the nature or quality of the applied materials;
(e) materials, items, work methods and constructions insofar as these are applied on the explicit instruction of the customer, as well as materials and items supplied by or on behalf of the customer;
(f) parts received by ShipSupport from third parties, insofar as the third party does not provide ShipSupport with a guarantee.
10.4 If the customer fails to fulfil any obligation arising for it from the agreement concluded with ShipSupport or from an agreement connected to it, or if the customer fails to do so promptly or correctly, ShipSupport is not bound to any guarantee, of whatever sort, in connection with these agreements. If, without first obtaining the written consent of ShipSupport, the customer starts to dismantle or repair the product or perform any other work with respect to the product, all claims under the guarantee lapse.
10.5 Complaints with regard to defects must be received in writing by ShipSupport as soon as possible after they have been observed and always within 14 days after the expiry of the guarantee period. If this term is exceeded all claims towards ShipSupport with respect to those defects lapse. Legal actions with regard to defects must be instigated within 1 year after a timely complaint under penalty of inadmissibility.
10.6 If ShipSupport replaces parts or products in fulfilling its obligations under the guarantee, replaced parts or products become the property of ShipSupport.
10.7 With respect to the reparation or revision work, inspections, recommendations or other services, performed or provided by ShipSupport, unless otherwise agreed, the only guarantee provided will be that these activities will be performed or services provided to the best of ShipSupport’s ability. No further reaching guarantee with respect to these services is provided.
10.8 The alleged failure of ShipSupport to fulfil its obligations under the guarantee does not release the customer from its obligations arising from any agreement it has concluded with ShipSupport.
11.1 The liability of ShipSupport is limited to the compliance with the guarantee obligations stipulated in paragraph 10.1 of these terms and conditions.
11.2 Except in the event of intent or gross negligence on the part of ShipSupport and except for that provided for in paragraph 11.1 all liability of ShipSupport, with respect to for example, loss of income, other indirect damage and damage due to liability towards third parties, is excluded.
11.3 ShipSupport is therefore also not liable with respect to:
(a) violation of patents, licenses or other third party rights due to the use of data provided by or on behalf of the customer;
(b) damage arising as a result of recommendations made by ShipSupport, employees of ShipSupport, other subordinates or auxiliary personnel.
11.4 The customer is bound to indemnify ShipSupport or compensate it with respect to all third party claims for damage compensation and all legal or out of court expenses, for which the liability of ShipSupport in these terms and conditions in the relationship with the customer is excluded.
12. Force majeure
12.1. In these General Terms and Conditions force majeure means any individual circumstance not within the control of ShipSupport, even if such circumstance could have been foreseen at the time the agreement was made, which temporarily or permanently hinders compliance with the agreement, and, insofar as not already included, embargoes, sanctions, war, danger of war, civil war, riots, strikes, lock-outs, transport difficulties, casting or forging failures, fire and other serious interruptions in the business activities of ShipSupport or its suppliers, such as product discontinuation.
13. Suspension and cancellation
13.1 In the event of inability to perform the agreement as a result of force majeure, ShipSupport is entitled to suspend the performance of the agreement for no more than 6 months, or to cancel the agreement in full or in part without being liable to pay damages and without the intervention of the courts being required. During the period of suspension ShipSupport is entitled, and at the end of such period it is obliged to decide on performance or on full or partial cancellation of the agreement.
13.2 Both in the event of suspension and in that of cancellation by virtue of paragraph 13.1 ShipSupport is entitled to demand immediate payment of allocated, processed and fabricated raw materials, parts and other items, at the value reasonably assigned thereto. In the event of cancellation by virtue of paragraph 13.1 the customer is bound, after the payment of the amount due in accordance with the previous sentence to take delivery of the items concerned; in default thereof ShipSupport is entitled to store the items for the account of and risk of the customer or to sell them for the latter’s account.
13.3 If the customer fails to fulfil any obligation arising from the agreement concluded with ShipSupport or from an agreement connected therewith, or if the customer fails to do so properly or in a timely fashion or if it is open to serious doubt whether the customer is capable of fulfilling its contractual obligations vis-à-vis ShipSupport, as well as in the event of bankruptcy, suspension of payment, closing down, winding up or partial transfer, whether or not as security, of the company of the customer, including the transfer of a major part of the latter’s receivables, ShipSupport is entitled, without a notice of default or the intervention of the court being required, either to suspend the performance of each of these agreements for no more than 6 months, or to cancel them in full or in part, without being liable to pay damages, or bound by any guarantee, and without prejudice to its further rights. During the period of suspension, ShipSupport is entitled, and at the end of such period he is obliged to decide on performance or on full or partial cancellation of the suspended agreement or agreements.
13.4 In the event of suspension by virtue of paragraph 13.3 the contract price becomes immediately payable, after deduction of any instalments already paid and the costs saved by ShipSupport in consequence of the suspension, and ShipSupport is entitled to store the raw materials, materials, parts and other items allocated, processed and fabricated by him for the account and risk of the customer. In the event of cancellation by virtue of paragraph 13.3 the contract price, insofar as no prior suspension has taken place, becomes immediately payable after deduction of instalments already paid and costs saved by ShipSupport in consequence of the suspension, and the customer is bound to pay the amount referred to above and to take delivery of the items concerned, in default whereof ShipSupport is entitled to store the items for the account and risk of the customer or to sell them for the latter’s account.
14.1 Parties will comply with and take reasonable measures to ensure that their subcontractors, agents or other third parties, will comply with all applicable laws, statutes, regulations and codes relating to anti-bribery and anti-corruption in relation to this agreement.
14.2 ShipSupport will not be obligated to fulfil any part of the agreement and ShipSupport is entitled to terminate the agreement immediately if such fulfilment is prevented by national or international foreign trade or customs requirements or any embargoes or other sanctions or if customer fails to act in accordance with Clause 14.1 without liability of ShipSupport. Customer shall indemnify ShipSupport for all losses, damages and costs incurred as a result of such non-fulfilment and/or termination.
15.1 Subject to the applicability of paragraph 15.2 and without prejudice to the application for provisional measures all disputes arising in connection with this agreement or other agreements connected to it are finally settled in accordance with the Arbitration Rules of the Netherlands Arbitration Institute. The court of arbitration consists of three arbitrators. The arbitration proceedings is conducted in the English language. The place of arbitration is Rotterdam (the Netherlands).
15.2 Insofar as the disputes described in paragraph 15.1 fall within the absolute jurisdiction of the district court in accordance with the rules of Dutch civil procedure law, the dispute are settled exclusively by the competent district court.
16. Applicable Law
16.1 The law of the Netherlands applies to all agreements to which these terms and conditions apply in whole or in part. The applicability of the Vienna Convention (CISG) is excluded. TOP