GENERAL TERMS AND CONDITIONS DJ CONTAINERS B.V.
Article 1 - Definitions.
In these Terms and Conditions, the following definitions shall apply:
Customer: the other party to DJ Containers;
Parties: DJ Containers and Customer jointly;
Agreement: the sales or rental agreement between DJ Containers and Customer;
Container(s) means the container(s), office units and other container applications, including fixtures, components, inventory and installations, as well as all related products and services, as specified by DJ Containers in the (attachments to the) Agreement;
Delivery: the time when possession or right of use of the Container(s) is transferred by DJ Containers to Customer or offered or held ready for such transfer;
Rental Time: the period between the date of Delivery and the first day following the day on which the Container(s) are received back by DJ Containers;
Container Projects: the realization or construction by DJ Containers on behalf of Customer of special uses of the Container(s), including designing, erecting or converting, furnishing, placing, switching or making Container(s) suitable for certain purposes.
Article 2 - General
These General Terms and Conditions apply to all offers, agreements and other legal relationships between DJ Containers and Customer regarding the sale and rental of Container(s) by DJ Containers. DJ Containers rejects the applicability of General Terms and Conditions of Customer, unless the Parties expressly agree otherwise in writing.
These General Terms and Conditions also apply to all Agreements with DJ Containers, for the execution of which third parties (should) be involved.
DJ Containers is entitled to amend these General Terms and Conditions at any time. The amended General Terms and Conditions will apply to all Agreements concluded from the moment DJ Containers has filed them with the trade register of the Chamber of Commerce or the registry of a court.
The applicability of the Vienna Sales Convention (CISG) to the Agreement is expressly excluded.
Article 3 - Offers and Agreement.
All offers and quotations of DJ Containers are without obligation and revocable, regardless of whether the offer or quotation mentions a deadline for acceptance. Images, specifications, descriptions and quantities included in the offers and quotations are not binding. With regard to Container(s) and parts manufactured by third parties, DJ Containers expressly reserves the applicable tolerances and warranties that the manufacturer can assert against it.
If Customer desires special qualities and/or (technical) specifications with an order, he must agree this expressly in writing with DJ Containers. In all other cases DJ Containers delivers in accordance with the quality described in these General Terms and Conditions.
A composite quotation does not obligate DJ Containers to any partial delivery of the Container(s) included in the offer or quotation at a corresponding part of the quoted price.
DJ Containers, in its sole discretion, has the right to have all or part of a Contract performed by third parties.
Article 4 - Delivery, Inspection and Transfer of Risk.
Delivery times given in quotations from DJ Containers are indicative, unless expressly agreed otherwise. The mere expiration of the specified delivery time does not constitute default. Except in case of intent or gross negligence on the part of DJ Containers or managerial subordinates of DJ Containers, DJ Containers is not liable for damage as a result of exceeding the (delivery) term.
Delivery and return of the Container(s) takes place at a depot to be designated by DJ Containers in Belgium, unless Parties agree otherwise in writing. If no depot is designated in the Agreement, DJ Containers' depot in Antwerp applies as depot.
If the Container(s) are delivered to another location, DJ Containers is entitled to charge the transport and delivery costs. Customer must give DJ Containers or its transporter unhindered access to the delivery location(s) in question and ensure safe (working) conditions on site. On all transport of Container(s) by or on behalf of DJ Containers by road, the CMR Convention applies and the General Transportation Conditions 2002 apply additionally.
If Customer refuses or fails to take delivery of the Container(s) after Delivery, DJ Containers is entitled to store the Container(s) at the expense and risk of Customer.
DJ Containers is entitled to partial deliveries of the Container(s), unless this is deviated from by Agreement. DJ Containers is entitled to invoice the thus delivered Container(s) separately.
At the time of Delivery, but in any case within 2 days after delivery, Customer is obligated to inspect the Container(s) and to investigate whether quantity and quality of the Container(s) correspond with what was agreed upon and whether there are any other defects. In case of Container Interchange, a Container Interchange Report ("CIR") will be drawn up for each transfer (both intake and issuance). If Customer does not proceed to inspection, the Container(s) are deemed to be delivered complete and in good condition, at least in accordance with the relevant CIR. Inspections by a third party to be appointed by Parties in joint consultation are binding between Parties.
Prior to delivery, Customer is entitled in mutual consultation with DJ Containers to inspect the Container(s) (or have them inspected) at the location designated by DJ Containers for that purpose. This inspection is considered a delivery inspection as mentioned in paragraph 6 of this article.
Any shortages and visible defects must be reported in writing to DJ Containers upon delivery, but no later than 3 days after delivery or inspection.
If Customer wishes to return defective Container(s), this shall only be done with DJ Containers' prior written consent and in the manner specified by DJ Containers.
The risk of the Container(s) that are the subject of the Agreement, such as, inter alia, from loss or damage due to fire, theft, improper use or management, shall pass to Customer at the time the Container(s) are legally and/or actually delivered in accordance with the agreed delivery category of the ICC Incoterms then in effect.
Article 5 - Prices and Payments
All prices stated by DJ Containers are exclusive of VAT, changed exchange rates, shipping, transport, packaging, storage and security costs, levies and taxes, including import and export duties and clearance costs. In case of sale, the foregoing applies without prejudice with regard to import duties, other taxes and costs involved with the import by Customer of Container(s) that are in free circulation at the time the Purchase Agreement comes into effect.
If DJ Containers has agreed a fixed price with the Customer, DJ Containers is nevertheless entitled to pass on to the Customer any structural change in the factors influencing the price, regardless of whether it concerns changes that were foreseeable or unforeseeable at the conclusion of the Agreement. DJ Containers will notify Customer of such price changes in advance.
Except in the cases referred to in Articles 15(3) and 16(13) and unless otherwise agreed, payments must be made no later than 30 days after the invoice date (hereinafter both: "Payment Term"), in the manner to be indicated by DJ Containers and in the currency in which the invoice was issued. Objections by Customer to the amount of the invoices do not suspend the payment obligation.
Article 6 - Payment and Default
If Customer fails to make payment within a Payment Period, Customer shall be in default by operation of law. The Customer shall then owe interest of 1.5% per month on the amount due and payable until the amount due has been paid in full, with part of a month counting as a full month, unless the statutory commercial interest rate is higher, in which case the statutory commercial interest rate shall apply.
If Customer remains in default of fulfilling one or more of his (payment) obligations after a payment deadline set by DJ Containers, Customer is obliged to reimburse DJ Containers for all extrajudicial and judicial costs actually incurred (including costs of experts, lawyers, etc.). These costs amount to at least 15% of the amount due with a minimum of EUR 250.
DJ Containers is entitled to have the payments made by Customer go first of all to reduce the costs, then to reduce the interest falling due and finally to reduce the principal sum and the current interest.
All amounts owed by Customer under an Agreement must be paid to DJ Containers without discount, deduction or setoff. Customer is never entitled to suspend its (payment) obligations under an Agreement.
Article 7 - Warranty and Warranty Limitation.
DJ Containers guarantees that the Container(s) at the time of Delivery meet the agreed specifications and the usual requirements and standards set for them within the industry and are free of defects due to material or manufacturing faults (the "Warranty"). DJ Containers explicitly does not guarantee any specific quality, operation, purpose, application or (special) use of the Container(s).
The Warranty is expressly limited to the time of Delivery and, if applicable, to the scope and duration of the warranty provided to DJ Containers by the manufacturer of the Container(s).
The Warranty does not apply to: (i) Defects or shortcomings which concern minor deviations in quality, color, size and/or weight which are considered acceptable in the trade or which are technically unavoidable; (ii) Separate parts or installations belonging to the Container(s); (iii) Defects arisen as a result of normal wear and tear, injudicious or improper use or management, or use contrary to instructions provided by DJ Containers; (iv) Delivered used, or at least not new, Container(s). These are delivered in the condition and state in which they are at the time of the conclusion of the Agreement.
If delivered Container(s) do not comply with the Warranty and if Customer has complained within the time limits set in these General Terms and Conditions, DJ Containers is only obliged, at its own choice, to replace the Container(s) or take care of repair.
Article 8 - Liability and Indemnification.
Any liability of DJ Containers toward Customer is excluded for damage as a result of a circumstance as mentioned in Article 7 Paragraph 3 and is in any case limited to liability for direct damage, which is limited, at DJ Containers' free choice, to replacement or repair of the possibly defective Container(s), or to restitution of the rental or purchase price paid or a proportional part thereof. The total liability of DJ Containers is at all times limited to a maximum of the amount of the payment to be provided by the insurer of DJ Containers in the occurring case, and, insofar as the damage is not covered by insurance, to the amount of the agreed purchase or rental price over a maximum period of one year, up to a maximum amount of EUR 100,000.
When pursuant to any treaty provision concerning transportation of goods by road or sea, compensation may be charged in whole or in part to DJ Containers, such compensation shall be calculated according to the economic value of the Container(s) at the place and time of Delivery.
In no event shall DJ Containers be liable for indirect damages, including consequential damages, lost profits, cargo damage or loss, missed savings or damages due to business interruption.
Customer indemnifies DJ Containers for all claims of third parties regarding (the execution of) the Agreement and the use and destination of the Container(s), however and by whomever caused, including claims regarding the transport of the Container(s) and their contents over public roads, water and the open sea.
Article 9 - Secrecy
The parties are obliged to keep confidential all confidential information they have obtained from each other or from other sources in the context of the Agreement. Information is considered confidential if it has been communicated by a party or if it arises from the nature of the information or Agreement. The obligation under this article applies subject to mandatory disclosure of confidential information under any statutory provision or court order.
Article 10 - Suspension, Termination and Dissolution.
DJ Containers is authorized to suspend the fulfillment of the obligations from the Agreement or to terminate or dissolve the Agreement entirely and with immediate effect and to take back (or have it taken back) the Container(s), if: (i) Customer is in default with the fulfillment of any obligation resting on it under the Agreement or the law; (ii) after the conclusion of the Agreement facts or circumstances come to DJ Containers' knowledge giving good ground to fear that Customer will not fulfill its obligations; (iii) Customer fails to provide agreed securities for the fulfillment of its obligations under the Agreement; (iv) Customer acts in violation of any legal obligation resting on it; (v) Customer is declared bankrupt or is granted suspension of payment or is subjected to debt restructuring under the Dutch Natural Persons Debt Rescheduling Act, or submits a request to that end, or the assets of Customer or the Container(s) are seized; (vi) Customer is dissolved, ceases its activities and/or ceases to exist; (vii) the control over Customer or its company or a substantial part thereof is transferred or passes to one or more others by means of a merger as referred to in the SER Decree Merger Behavior Rules 2015, regardless of whether those Behavior Rules are applicable in the case concerned (other than by death); (viii) Customer uses or causes the Container(s) to be used for a purpose other than that for which they are intended; (ix) if the Container(s) is lost, regardless of the cause thereof; (x) any circumstance occurs, whether or not under foreign law, which has a similar effect for Customer as the foregoing circumstances.
Furthermore, DJ Containers is authorized to terminate the Agreement if circumstances arise which are of such a nature that fulfillment of the Agreement cannot possibly or according to standards of reasonableness and fairness can no longer be required or if other circumstances arise which are of such a nature that unaltered maintenance of the Agreement cannot reasonably be expected.
If the Agreement is dissolved or terminated, DJ Containers' claims on Customer are immediately due and payable. If DJ Containers suspends fulfillment of its obligations, it retains its claims under the law and the Agreement.
Article 11 - Force majeure
Force majeure is defined as any circumstance beyond the control of the Contract which prevents the fulfillment of obligations under the Contract in whole or in part or as a result of which the fulfillment of obligations under the Contract cannot reasonably be required. Such circumstances include, but are not limited to: war, threat of war, civil war, riots, hostage-taking, acts of war, fire, water damage and extreme weather conditions such as flooding, storm, hurricane, lightning etc, strikes, sit-down strikes, lockouts, defects in machinery and installations, disruptions in the supply of energy, obstructive measures by any government agency, the absence of any government permit to be obtained, terrorist actions or consequences thereof as well as any failure to perform by third parties, whether or not imputable, as a result of which DJ Containers is unable to fulfill its obligations vis-à-vis the Customer. Insofar as DJ Containers has already partially fulfilled its obligations under the agreement at the time such a circumstance occurs or will be able to partially fulfill them, and independent value can be attributed to the part already fulfilled or to the part to be fulfilled respectively, DJ Containers is entitled to separately invoice the part already fulfilled or to be fulfilled respectively. Customer is obliged to pay this invoice as if it were a separate contract.
Article 12 - Disputes and Applicable Law
The court within whose jurisdiction DJ Containers' place of business falls has exclusive jurisdiction to take cognizance of all disputes concerning the Agreement. Nevertheless, DJ Containers is entitled to submit the dispute to another judge competent according to the law or treaties. Dutch law applies to every Agreement between DJ Containers and Customer.
Article 13 - Applicability and Location
These General Terms and Conditions have been filed at the offices of the Chamber of Commerce in Rotterdam, in Dutch, German, Spanish and English versions. The Dutch text is decisive with regard to the interpretation of the contents and scope of these General Terms and Conditions. The most recently filed version of these General Terms and Conditions shall always apply. Insofar as the Specific Terms and Conditions below do not stipulate more or otherwise, the provisions of the General Terms and Conditions remain fully applicable.
Article 14 - Specific Provisions Container Projects
Without an express agreement to that effect between DJ Containers and Customer, DJ Containers can never be considered a contractor of work in the sense of Book 7, Title 12 of the Civil Code when executing Container Projects.
Container projects will only be performed by DJ Containers if, in DJ Containers' judgment, the specifications of the Container(s) to be delivered are sufficiently clearly specified in a separate agreement. DJ Containers will never be obliged to do more or otherwise in the execution of Container Projects than what has been explicitly specified in writing in such an agreement in this regard.
Unless otherwise agreed between Parties, what is stipulated in the General Terms and Conditions concerning delivery, inspection, claims and warranty in the execution of Container Projects will remain applicable accordingly. In particular DJ Containers does not provide delivery and/or maintenance guarantees which in their scope and duration extend further than the general product guarantees described in the General Terms and Conditions.
Article 15 - Specific Sales Provisions
Unless otherwise specified by DJ Containers in writing, the delivery time starts when DJ Containers has received payment of the purchase price.
Delivery and return of the Container(s) shall be Ex Works depot DJ Containers and in accordance with Incoterms 2010, unless the Parties agree otherwise in writing.
Unless DJ Containers indicates otherwise, payment of the full purchase price must be made prior to delivery.
Customer is obliged to remove (or have removed) the B.I.C. (Bureau International des Containers, Paris, France) alpha code of DJ Containers as well as all other (proprietary) characteristics of DJ Containers from the Container(s), not earlier than but also not later than after Customer has discharged all (payment) obligations incumbent upon it under the Agreement.
All Container(s) delivered by DJ Containers remain the property of DJ Containers until Customer has completely fulfilled all obligations from the Agreement concluded with DJ Containers. Customer is not authorized to pledge or encumber in any other way the Container(s) falling under the retention of title. In case DJ Containers wants to exercise its property rights indicated above, Customer gives irrevocable and unconditional permission to DJ Containers or third parties to be appointed by DJ Containers to enter all those places where the property of DJ Containers is located and to take back such property.
Article 16 - Specific Rental Provisions.
In consultation with DJ Containers it is possible to reserve Container(s) for rent in a certain period, which Customer is obliged, subject to timely cancellation, to rent the Container(s) in the reserved period. A reservation made can only be cancelled in writing, in which case Customer owes DJ Containers by way of compensation for the costs incurred or damage suffered by DJ Containers:
(i) 50% of the lease price if the cancellation date is less than 4 weeks before the start of the Lease Period;
(ii) 80% of the lease price if the cancellation date is less than 2 weeks before the start of the Lease Period;
(iii) 100% of the lease price if the cancellation date is less than 1 week before the start of the Lease Period;Parties intend with the Agreement to provide only a temporary right of use of the rented Container(s) to Customer, the ownership of the Container(s) always rests with DJ Containers. It is Customer prohibited without prior written permission from DJ Containers to give the Container(s) in use to third parties, to pledge, alienate or otherwise encumber for the benefit of third parties.
Customer is obligated to manage the Container(s) during the Lease Period at its expense and risk as a good tenant and to keep them in proper and operable condition, which means, among other things, that Customer;
(i) only uses the Container(s) within its normal business operations and for the purpose for which they are leased and suitable by their nature;
(ii) uses the Container(s) with due observance of the instructions given to it by DJ Containers;
(iii) is bound to manage and transport the Container(s) as the recognizable property of DJ Containers and to respect the (ownership) characteristics of DJ Containers present on the Container(s), including its B.I.C. alpha code, not to remove or cause to be removed;
(iv) continuously inspects the Container(s) for proper and safe operation and, to the extent not otherwise agreed upon, promptly provides the daily maintenance necessary to maintain such proper and safe operation, all in accordance with the manufacturer's specifications, if available;
(v) takes all reasonable measures to prevent damage, loss or theft of the Container(s);
(vi) is obliged to comply with all national and international statutory, treaty and other regulations applicable to the Container(s) as well as their use, transport and destination;
(vii) ensures that the surface on which the Container(s) must be placed is flat, paved and otherwise suitable for both placement and presence of the Container(s), as well as ensures that the owner of the site where the Container(s) are placed grants permission for the placement of the Container(s);
(viii) does not place or use the Container(s) in locations where there is chemical or other type of soil or groundwater contamination. If, notwithstanding the foregoing, the Container(s) are used on chemically or otherwise contaminated soil, Customer shall be obligated to ensure complete cleaning of the Container(s) prior to return. This obligation also applies if Customer becomes aware of the contamination after commencement of the Lease Period;In case of rental by DJ Containers of Container(s) intended for accommodation of and residence by persons, such as but not limited to so-called office units, the following provisions apply in addition to these general rental conditions:
(i) Customer is independently responsible and obliged to determine for its own account and risk a suitable, correctly prepared, solid and for the users of the Container(s) and third parties safe location on which the Container(s) will be placed and used, in connection with and in accordance with the intended use of the Container(s);
(ii) Customer is obligated to inspect the Container(s), their construction, surface, use and application with adequate regularity for defects and safety for users and third parties, and furthermore at its own expense and risk to take all (maintenance) measures which are necessary to guarantee the absence of defects or to immediately repair any defects or safety deficiencies that arise;
(iii) Customer or a third party appointed by Customer takes care, at its own account and risk, of assembly, construction, use and disassembly of the Container(s), unless otherwise agreed between parties in writing;
(iv) Customer takes care, at its own account and risk, that all necessary permits and/or approvals for installation, construction, presence, use and disassembly of the Container(s) are obtained and remain in force during the Agreement and as long as necessary thereafter;If the Agreement does not concern Container(s) intended for transport by road, water or open sea, Customer is not entitled to move the Container(s), except with the written permission of DJ Containers. In case of relocation of the Container(s), Customer is always obliged at DJ Containers' first request to immediately state the destination and/or location of the Container(s).
DJ Containers is always entitled to inspect the Container(s) (or have them inspected) for proper compliance by Customer with the Agreement. Customer is obligated to cooperate fully with these inspections.
7. As of the moment of Delivery of the Container(s), the entire risk of loss, decay, damage, salvage and/or repair of the Container(s), regardless by which event or cause this is caused, therefore also in case of force majeure and for example by fire, water, storm, vandalism, theft, embezzlement or improper use or management of the Container(s), will be for the account of Customer.Customer is required to reimburse DJ Containers for all damages to the Container(s) arising from the risks described in the preceding paragraph, without prejudice to Customer's obligation to continue paying the rental price until it has fully reimbursed DJ Containers for the damages.
Customer must properly insure and keep the Container(s) insured against the damages and losses mentioned in paragraph 7 of this article and will provide DJ Containers with proof of the conclusion of an insurance policy to that effect on first request. Customer further undertakes, at DJ Containers' first request, to assign its rights vis-à-vis the insurance company to DJ Containers.
Customer is obligated to immediately report any damage, loss and perish of the Container(s) in writing to DJ Containers and furthermore to give DJ Containers all cooperation that DJ Containers needs in this matter. Degradation occurs if the costs of repairing damage to the Container(s) exceed, in DJ Containers' judgment, the rental value of the Container(s) at that time. Unless DJ Containers makes replacement equivalent Container(s) available after reporting the loss or decay of the Container(s), the Agreement will end in that case.
With respect to the presence of damage to the Container(s) as well as its extent and remedial measures, DJ Containers uses the IICL (Institute of International Container Lessors, Briarcliff Manor, NY, U.S.A.) Standards for Repair and Cleaning as the minimum standard but DJ Containers is authorized at any time to have otherwise determined if the damage extent is greater or the cost of repair is greater than application of the IICL standard would entail.
Customer owes the lease price from the date of Delivery, regardless if the Container(s), due to whatever cause, are collected or received by Customer on the date of Delivery. When the Container(s) are returned before the end of the agreed Lease Period, Customer owes the lease price over the entire agreed Lease Period. In case the Agreement is continued after the expiration of its term, this is done with the same period and under the same conditions as mentioned in the original Agreement.
Rental periods expire on the first day of the month to which the rental period relates. DJ Containers is at all times entitled to demand that Customer provide proper security or deposit for the payment of the Rent. In case of failure to pay, DJ Containers is entitled, without prejudice to its right to claim payment of the unpaid Rental Terms plus interest and costs, to immediately remove (or have removed) the Container(s) from Customer's premises without any further notice of default and without any judicial intervention and to charge this to Customer.
DJ CONTAINERS BV
Date: February, 2025