Terms & Conditions (Europe)

General Terms and Conditions Heniff Transportation Europe B.V.

12 December, 2024

General

Article 1. Definitions

1.1 In these general terms and conditions (hereinafter: Conditions) the following terms are defined as follows:

• Agreement: any agreement between Heniff and the Customer.
• Heniff: Heniff Transportation Europe B.V. or any of its group companies that is a party to an Agreement with a Customer.
• Container: any type of container, silo, tank or trailer or related equipment or accessories, that is the subject of Heniff's Services, such as ISO containers, Intermediate Bulk Containers (IBC), tote containers and drum containers.
• Customer: any (legal) person to whom the Heniff has made an offer or with whom Heniff concludes an Agreement.
• DCC: Dutch Civil Code.
• Parties: Heniff and the Customer.
• Services: all services provided by Heniff or a Subcontractor to the Customer, such as cleaning services, maintenance and repair services, heating services and storage services.
• Service Location: the premises of Heniff or a Subcontractor.
• Subcontactor: a third party contracted by Heniff to provide any or all of the Services.

Article 2. Applicability

2.1 All offers made by Heniff and all Agreements concluded between Parties are subject to these Conditions. No deviation from these Conditions will be valid unless confirmed in writing by Heniff. 

2.2 In case of discrepancies between the provisions set out in the Conditions and the Agreement, the provisions set out in the Agreement will prevail.

2.3 In case of discrepancies between the meaning of provisions in the English version of these Conditions and any translations thereof, the English version will prevail.

2.4 If any provision in these Conditions is deemed null and void (nietig) or otherwise non-binding, that provision will be read in such a way that its nullity or non-bindingness is remedied in a way that is closest to the intention of the null and void or non-binding provision. The other provisions will remain in full force and effect.

Article 3. Offers and Conclusion Agreement

3.1 All offers are exclusive of VAT, other government levies and other costs, such as transport and (un)loading costs unless explicitly stated otherwise. In addition, all offers are non-binding (vrijblijvend), unless they contain a specific term for acceptance.

3.2 An Agreement will only be concluded if the Customer accepts an offer made by Heniff in writing. If the Customer accepts an offer verbally, no Agreement will be concluded, unless Heniff confirms the existence of an Agreement in writing or Heniff starts with the provision of the Services as set out in the offer and verbally accepted. If the offer contains a specific term for acceptance and the Customer fails to accept the offer within that term, no Agreement will be concluded.

3.3 Heniff may revoke a non-binding offer within two (2) workdays after receiving the written acceptance of the offer. If Heniff revokes a non-binding offer, no Agreement will be concluded.

3.4 Offers made by Heniff are based on the costs of labor and/or material at the time the offer is issued. In case of an increase in costs of labor and/or material after the Agreement is concluded, but before the Services are provided, Heniff may rescind (ontbinden) or terminate (opzeggen) the Agreement with immediate effect by written notice and amend its offer accordingly. Heniff will notify the Customer of the amended offer without delay.

3.5 If Heniff amends its offer in accordance with article 3.4, the Customer must inform Heniff without delay, but ultimately three (3) calendar days after receiving the amended offer whether it accepts the amended offer.  

3.6 If the Customer wishes to amend the (scope of the) Services after the Agreement has been concluded, Heniff may decide whether a separate Agreement for the amended Services will be concluded or the existing Agreement will be amended accordingly.

Article 4. Payment

4.1 Unless otherwise agreed in writing, the Customer must pay Heniff's invoice for the Services within fourteen (14) calendar days after the invoice date, by transferring the amount into a bank account designated by Heniff. This term is to be considered a strict deadline (fatale termijn). Heniff may require the Customer to make an advance payment prior to the provision of the Services.

4.2 If the Customer fails to pay the invoice within the agreed term, the Customer will be in default (verzuim) without notice being required. The statutory commercial interest as mentioned in article 6:119a DCC will be due from the first day after the expiry of this term.

4.3 If the Customer fails to pay the invoice within the agreed term, and Heniff has to collect payment, the Customer must reimburse Heniff all judicial and extrajudicial costs incurred. The extrajudicial collection costs are due from the moment the Customer is in default and will amount to 15% of the unpaid amount with a minimum of EUR 100, unless the actual extrajudicial costs exceed this amount. In that case, the Customer must reimburse Heniff the actual extrajudicial costs.

4.4 The Customer may not suspend (opschorten) payment or set off (verrekenen) payment of the invoice against any claims it may have against Heniff.

Article 5. Third Parties

5.1 Heniff may transfer its rights and obligations under this Agreement to a third party. The Customer may not transfer its rights and obligations under this Agreement to a third party without prior written consent of Heniff.  Such transfer is null and void and Heniff will not be required to perform the Agreement in relation to that third party.

5.2 With prior consent of the Customer, Heniff may hire a Subcontractor to perform the Services under Heniff's supervision. Heniff is entitled to compensation for the supervision of the Subcontractor if the Services are provided by the Subcontractor at the Customer's request.

Article 6. Transportation

6.1 All Services will be performed at the Service Location. The Customer is responsible (i.e. in terms of arranging transport, risks, costs and insurance) for the transportation of the Container to and from the Service Location.  If Heniff arranges for the transportation of the Container to the Service Location, this will be at the risk and cost of the Customer.

6.2 If, after the provision of the Services, the Customer does not remove the Container at the agreed time, Heniff may arrange for transportation of the Container to the premises of the Customer or store the Container at Heniff's or a third party's premises. The Customer must reimburse Heniff for all costs incurred for arranging transportation to the Customer's premises or storing the Container.

Article 7. Execution Agreement

7.1 The agreed term for provision of the Services is an indication only and can never be considered a strict deadline (fatale termijn). The term will only commence after the Container has arrived at the Service Location and after Heniff has received all necessary information for the provision of the Services and, if applicable, after the required advance payment has been made.

7.2 The indicative term as mentioned in article 7.1 may be extended if, for example, the Customer requests Heniff to provide Services other than the ones that are part of the Agreement or if Heniff has suspended the performance of the Agreement.

7.3 If an indicative term is exceeded, Heniff will never be in default, unless the Customer gives Heniff written notice of default which includes a reasonable term (i.e. of at least seven (7) workdays) for the performance of the Agreement. If Heniff is in default, the statutory interest as mentioned in article 6:119 DCC will be due after the expiry of the reasonable term.

7.4 The Customer must immediately comply with all instructions provided by Heniff in relation to the provision of the Services. The Customer is liable for all damages suffered and costs incurred by Heniff due to the Customer not (correctly) following Heniff's instructions.

7.5 The Customer may inspect the Container after the provision of the Services at the Service Location. If the Customer inspects the Container at the Service Location and complains about the Services in case of visible defects, the Customer will grant Heniff a reasonable opportunity (i.e. at least seven (7) workdays) for remedy (herstel).

7.6 If the Customer does not inspect the Container at the premises or does not complain immediately during the inspection in case of visible defects, the Customer is deemed to have accepted the Services as having been duly provided. As soon as the Container leaves the Service Location, including in the situation described in article 6.2, the Customer loses the right to complain, to demand performance (nakoming) or damages, or to rescind (ontbinden)the Agreement.

Article 8. Obligations

8.1 The Customer must provide Heniff in writing with all information necessary for the provision of the Services prior to the conclusion of the Agreement to enable Heniff to make an accurate offer. This information consists, among other things of:

- information concerning the last load that was carried in the Container;

- a copy of the current Material Safety Data Sheet (MSDS);

- all documentation, chemical safety reports, safety data sheets demonstrating that the Container and (residual) load are in accordance with applicable regulations;

- all information Heniff needs to in order to provide the Services in accordance with applicable regulations;

- whether residual load is present in the Container, and if so, details about the residual load;

- in case of cleaning services, the cleaning method desired by the Customer; and

- any other instructions and information that may be relevant for the provision of the Services.

8.2 Heniff may rely on the information provided by the Customer. The Customer warrants that all information provided to Heniff is accurate and complete and the Customer will be liable for any damages suffered and costs incurred by Heniff as a result of the inaccuracy and incompleteness of the information. The Customer will indemnify Heniff against and keep Heniff harmless from any claim by any third party, including but not limited to employees of Heniff or a Subcontractor as a result of or in connection with any inaccuracy or incompleteness of any information provided by the Customer.

8.3 Heniff may rescind (ontbinden) the Agreement or terminate (opzeggen) the Agreement by written notice with immediate effect if the information provided by the Customer under  article 8.1 turns out to be inaccurate or incomplete, without having to any damages to the Customer as a result of the rescission or termination of the Agreement.

Article 9. Claims

9.1 Heniff's claims against the Customer are immediately due and payable (opeisbaar) in the following cases:

- if the Customer fails to fulfill any obligation arising from the Agreement after being given the opportunity to remedy a default;

- if the Customer is declared bankrupt or an application for bankruptcy has been filed;

- if the Customer applies for a debt restructuring scheme (schuldsaneringsregeling) if such a scheme is declared applicable, or if curatorship (ondercuratelestelling) is requested;

- if a substantial part of the Customers assets has been attached and this attachment hasn't been lifted within a period of seven (7) calendar days;

- if the Customer dies, or indicates that it will cease or has ceased its business operations;

- if the Customer transfers (part of) its business or operations to a third party, or if there is a change of control over the Customer.

9.2 Heniff has a right of retention (retentierecht) and the Customer must immediately cooperate with a request of Heniff for the establishment of a right of pledge (pandrecht) on the Containers, documents and any other objects of the Customer which it has in its possession as security for the payment of all claims it has against the Customer.

9.3 Heniff has the right to suspend (opschorten) payment or performance of any obligation under any Agreement with the Customer, and to set off (verrekenen) any payment obligation Heniff and/or its group companies may have to the Customer against any claims the Customer and/or its group companies may have against Heniff and/or its group companies if the Customer fails to fulfill its obligations under the Agreement.

Article 10. Liability

10.1 Heniff is not liable for any damages unless the damages are the result of willful intent (opzet) or deliberate recklessness (bewuste roekeloosheid). Heniff is never liable for indirect damages, e.g. loss of profit, consequential damage and/or intangible loss.

10.2 Any claim against Heniff expires (vervalt) if it hasn't been submitted in writing, within three (3) calendar months after the Customer became aware or could reasonably have become aware of the facts on which is the claim is based

10.3 If Heniff is liable for any damages, the liability will be limited to the amount that was invoiced by Heniff for the provision of the relevant Services under the Agreement exclusive of VAT. The amount of the damages to be paid by Heniff will in no event exceed the amount that is covered by Heniff's liability insurance.

10.4 The Customer is liable for all damages suffered by Heniff in relation to the Agreement. In addition, the Customer will indemnify Heniff from all and any claims by third parties against Heniff in relation to the Agreement.

Article 11. Termination and Rescission Agreement

11.1 Unless the nature of the Agreement dictates otherwise, all Agreements are entered into for a fixed term.

11.2 Insofar as Parties have entered into an indefinite term Agreement, Parties may at all times terminate (opzeggen) the Agreement by providing a notice of termination, taking into account a notice period of at least two (2) calendar months. Heniff is not required to pay any damages to the Customer upon termination.

11.3 In case of force majeure (overmacht) with a duration of three (3) calendar months or more, Parties may terminate the Agreement by written notice with immediate effect without being obliged to pay any damages.

11.4 Heniff may terminate (opzeggen) the Agreement at any moment by written notice with immediate effect if an urgent cause (dringende reden) for termination exists. An urgent cause exists if:

- there is a genuine fear that the (content of the) Container poses a threat to the environment, any person or any asset of Heniff's or a third party that was unknown to Heniff at the time the Agreement was concluded.

Article 12. Confidentiality

12.1 The Customer will keep the existence, nature and content of the Agreement, as well as other business information concerning Heniff and/or its group companies confidential and will not disclose any such confidential information to third parties without Heniff's prior written consent.

12.2 If the Customer acts in violation of article 12.1, the Customer will forfeit to Heniff an immediately due and payable penalty of € 10,000 for each violation and € 1,000 for each day that the violation continues. Heniff may, in its own name and/or on behalf of one or more of its group companies claim damages in addition to the penalty. This penalty will not affect any other rights and claims of Heniff and its group companies.

Article 13. Applicable Law and Jurisdiction

13.1 All offers made by Heniff and all Agreements will be governed exclusively by Dutch law.

13.2 All disputes arising from or relating to an Agreement concluded will be settled by the Dutch courts, which have exclusive jurisdiction. 

Article 14. Intellectual Property Rights

14.1. Heniff will be regarded as maker, designer or inventor, respectively, of the works, models or inventions created under the Agreement. Heniff therefore has the exclusive right to apply for a patent, trademark or model. Heniff does not transfer any intellectual property rights to the Customer in the performance of the Agreement.

14.2 Heniff will not be liable for damage suffered by the Customer as a result of an infringement of intellectual property rights of third parties.

Specific Services

Article 15. Cleaning Services

15.1 Heniff will make every effort to provide the Customer with a clean Container in accordance with the Customer's instructions. A Container is to be considered clean when no visible traces or odors of the last cargo or cleaning agent are detected during a visual inspection without tools and all steps of the agreed cleaning procedure have been carried out. For objects with manholes, the visual inspection will take place from within the manholes.

15.2 Unless otherwise agreed in writing, Heniff may remove and/or destroy the residual load located in the Container prior to the provision of the Services at the expense and risk of the Customer. The Customer will reimburse Heniff for any costs incurred for the removal/destruction of the residual load. The Customer will indemnify Heniff against any costs and claims of third parties in connection with the removal/destruction of the residual load.

15.3 If Heniff or a Subcontractor is unwilling and/or unable to remove and/or destroy the residual load, the Customer will be responsible for the removal and/or destruction of the residual load. The Customer may not destroy the residual load at the Service Location.

15.4 In the event that Heniff deems repair or maintenance works to the Container urgently required for the correct provision of the Services, Heniff is entitled to carry out such repair or maintenance works, or have them carried out by a third party, at the risk and expense of the Customer.

Article 16. Storage Services

16.1 Heniff may decide the location where the Container will be stored. Heniff may at all times move the Container to a different location. If Heniff moves the Container to a different location, Heniff will notify the Customer thereof.

16.2 Heniff is not required to take out insurance for the Container and/or, if applicable, for the goods therein.