D-MARE LTD. TERMS & CONDITIONS

Welcome, and thank you for your interest in www.d-mare.com, a product of and operated by D-Mare, a company incorporated in the Registrar of Companies for England and Wales, with the company number 12861740.

  1. General conditions

1.1. The following Terms and Conditions shall apply to all deliveries, services, offers or any other declarations relating to legal transactions of D-mare. Any conflicting or deviating terms and conditions of the Customer shall not become part of the Agreement unless this is expressly agreed upon and confirmed in writing. The foregoing shall apply even if D-Mare does not explicitly contradict these terms and conditions or performs deliveries/services without reservation. Any agreements deviating from these Terms and Conditions as well as any amendments and supplements to existing agreements, shall require express written confirmation to become effective.

1.2. These Terms and Conditions shall apply to all future sales, deliveries, services or declarations relating to legal transactions to the Customer also, even if these have not been explicitly restated as the basis for said services.

1.3. If any provision of these terms and conditions is determined to be invalid or unenforceable, that provision shall be severed from these terms and conditions, and the remaining provisions shall remain in full force and effect.

1.4. The Customer agrees to comply with all applicable laws and regulations relating to the use, possession, or ownership of shipping containers in its place of residence. In the US, this includes but is not limited to, the Customs and Border Protection (CBP) regulations, the International Maritime Dangerous Goods (IMDG) Code, the US Department of Transportation (DOT) regulations, the US Environmental Protection Agency (EPA) regulations, and the US Occupational Safety and Health Administration (OSHA) regulations. The Customer further agrees, independently of its place of residence, to indemnify and hold Seller harmless from any and all claims, damages, losses, costs, and expenses arising out of or in any way connected with the Customer’s failure to comply with this clause. D-Mare shall not be liable for any costs or delays incurred by the Buyer due to the Customer’s failure to obtain the necessary permits and licenses.

1.5. D-Mare may modify these terms and conditions at any time by posting a revised version on its website. The revised version will become effective upon publication. The Customer agrees to periodically examine these terms and conditions to remain informed of any modifications.

1.6. Notwithstanding the foregoing, D-Mare will do its best in order to inform the Customer of the existence and/ or changes of these terms and conditions.

 

  1. Definitions:

2.1. Customer: any individual or organisation that, explicitly or tacitly, enters into an obligation with D-Mare in exchange for any kind of product offered by D-mare. This encompasses a broad range of entities, such as private individuals, commercial enterprises, government agencies, non-profit organisations, and any other parties that engage in services from D-Mare, without any restrictions.

2.2. Ex-stack: means the container(s) that shall be released will be the first from stack, unless your haulier does not consider that said/assigned container is in good cargo-worthy condition, in which case the haulier shall choose the next equivalent container.

2.3. Neutralisation: It means the process of removing all identifying marks and information from a container so that it can no longer be traced back to the original owner or leasing company, who no longer has control over it. The neutralisation process includes but is not limited to (i) the erasure of the previous owner’s container prefix and (ii) the removal of ownership markings from the container number.

2.4. Invoice storage fee: this means the amount of money corresponding to the deposit services contracted as a consequence of the inability of the Customer to comply with his obligation to collect the container on the agreed date.

2.5. Deferred payment limit: It refers to a specified sum in Euros, USD, or GBP that is sent to the Customer by their D-Mare representative through an email to an email address specified in the Deferred Payment Agreement. This cap, as agreed upon in the Deferred Payment Agreement, prevents the Customer from making further purchases under the deferred payment terms once it has been reached.

2.6. The PTI (Pre-Trip Inspection) means the process by which most of the electrical and mechanical components of the reefer container machinery are inspected under the control of the central memory called the ‘Controller,’ with the aim of ensuring its proper functioning when it is assigned to the final customer for subsequent loading. Notwithstanding the foregoing, unless agreed otherwise, for the purposes of these general terms of sale, PTI shall be understood as any formal pre-trip inspection carried out by a competent entity, regardless of the level of rigor or duration, including but not limited to PTIs of 30 minutes, 90 minutes, and 180 minutes.

  1. Offers and Purchase Orders

3.1. Offers made by D-mare are subject to confirmation unless otherwise defined in the offer.

3.2. An agreement shall only come into effect by written acknowledgement of the order.

3.3. The descriptions of the containers in the offers, confirmations of orders etc., are only approximate in nature. Used containers are sold “AS IS” without any warranty, express or implied, including, but not limited to, any implied warranty of merchantability or fitness for a particular purpose.

3.4. Upon fulfilling the payment obligations stipulated in these general terms, the seller commits solely to delivering the product specified in the Sales Order (“SO”). The product description in the Sales Order is definitive, and as such, the seller may not request the delivery of a product or specification not outlined in the “SO.”

3.5. The Customer shall take possession of the container within twelve (12) days from the date of receipt of the release document. In the event the Customer fails to collect the container within the specified time period, D-Mare reserves the right, at its sole discretion, to either (a) terminate the sale agreement and/or (b) impose a storage fee, as invoiced. Should D-Mare elect to terminate the sale, the Customer shall be entitled to a refund of any amounts paid, less a cancellation fee of one hundred and fifty United States Dollars (USD 150).

3.6. Any reimbursement process resulting from the cancellation of a sale shall be handled by D-Mare using a credit note.

3.7. The parties agree, accept and understand that, unless otherwise stated in the contract, releases are given only after the reception of funds. The parties understand that this process could take between 1 to 72 working hours.

  1. Prices and Terms of Payment

4.1. Unless otherwise agreed to in writing, D-mare’s prices are quoted net EXW depot plus statutory VAT and any expenses associated with the sale if applicable. Any other additional cost associated, including but not limited to statutory delivery duties, costs of transportation, insurance, etc., shall be covered by the Customer unless specified in the release order.

4.2. All invoices shall become due for immediate payment without deductions. If, in exceptional cases, payment by instalments has been agreed and should the Customer fail to pay the instalments by the agreed deadlines, D-Mare shall be entitled to request immediate payment of the total outstanding amount.

4.3. The Customer is only entitled to set off and/or assert his rights of retention if his counterclaims have legal force, are undisputed or are accepted by D-mare.

4.4. Should the Customer fall into arrears on a due instalment or should doubts exist as to his ability to pay, D-mare shall not be under any obligation to make deliveries/render services to the Customer under this or any other agreement concluded with the Customer and may postpone performance until such a time as all due payments have been made and may furthermore cancel any payment deadlines granted.

  1. Delivery

5.1. Unless nothing has been agreed to the contrary in writing, D-mare will make all deliveries EXW depot and ex-stack.

5.2. Customer shall always call the depot before attempting to pick up any purchased goods to D-Mare.

5.3. In spite of prior cargo-worthy certification by the depot, it is always considered the due diligence of the Customer to instruct its haulier to check if the purchased unit is in good cargo-worthy conditions before you gate it out of the depot.  D-mare shall not be liable for any direct or indirect damage resulting from the lack of due diligence of the Customer or its haulier.

5.4. Specified delivery periods are non-binding unless explicitly confirmed as binding in writing. Changes to orders shall result in the cancellation of any agreed deadlines.

5.5. Any events or circumstances beyond the reasonable control of D-mare, including but not limited to war, civil unrest, strikes, lockouts, pandemics, governmental restrictions, transportation delays, or acts of God, that directly or indirectly impact D-mare’s suppliers, shall relieve D-mare of its obligation to provide the services or complete the delivery for the duration and extent of such events or circumstances. If such events or circumstances render the performance of the Agreement economically unfeasible for the foreseeable future, D-mare shall be released from its obligations. In such cases, any agreed-upon service or delivery timelines shall be reasonably extended. D-mare reserves the right to terminate the Agreement under these conditions without any liability for damages to the Customer.

5.6. Unless otherwise stated in the release order, the Customer agrees, accepts and understands its obligation to undertake the proper neutralisation of the container. Accordingly, the Customer shall indemnify, defend, and hold harmless D-Mare, its officers, directors, employees, and agents from and against any and all claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or in any way connected with the neutralisation of the containers. This indemnification obligation includes but is not limited to, claims resulting from the use, misuse, handling, storage, transportation, or disposal of the containers, whether such claims are made by third parties or are a direct result of the Customer’s actions or omissions. The Customer’s indemnification obligations under this clause shall survive the termination or expiration of this Agreement.

  1. Passing of risk

6.1. The risk of loss or damage to the container shall pass to the Customer upon delivery of the container to the Customer at the premises specified by D-Mare’s, ex works. This means that the Customer shall be responsible for any loss or deterioration of the container that occurs after it is delivered to the Customer. D-Mare shall not be responsible for loading or unloading the containers, and the Customer shall be responsible for all costs associated with loading and unloading the goods.

  1. Liability in case of defects

7.1. All cargo-worthy containers sold under this agreement are equipped with a Container Safety Convention (CSC) plate, evidencing compliance with the applicable safety standards. This CSC plate includes an engraved Automated Continuous Examination Program (ACEP) number, validating that the container meets the required safety and fitness standards for carrying cargo. Furthermore, some of D-Mare’s cargo-worthy containers may also be equipped with a CSC validation decal or sticker as an additional indication of compliance.

7.2. The presence of a CSC plate with a valid ACEP number serves as sufficient proof of the container’s continuous examination and compliance with CSC standards. A separate CSC validation decal or sticker is not necessary for containers that possess a CSC plate with a valid ACEP number.

7.3. Should the Customer specifically request a CSC validation decal or sticker on a container that either does not have one or seeks an additional one, despite the container having a CSC plate with a valid ACEP number, D-Mare agrees to inquire with the depot about the possibility of affixing such a validity sticker. It is noted that the availability of this service is subject to depot capabilities and is not guaranteed by D-Mare.

7.4. If it is not possible to affix a CSC validation decal or sticker as requested by the Customer, or if the Customer requires further certification beyond the ACEP validation, the Customer shall be solely responsible for appointing a certified surveyor and arranging for the necessary certification process at their own expense. This includes any costs associated with obtaining a CSC certificate or any additional validation stickers as required for the buyer’s specific needs.

7.5. Responsibility for maintaining the container’s CSC compliance, including the arrangement and expense of any required re-examinations or certifications, transfers from D-Mare to the Customer upon the pickup of the container. The Customer acknowledges their obligation to ensure the container continues to meet CSC requirements in accordance with current regulations.

7.6. For off-hire containers, the Customer must inspect the deliveries immediately following receipt and issue notices by email of loss for any discernible damages within seven working days to D-mare. Otherwise, the deliveries/services are regarded as having been accepted. The Customer shall be responsible for any costs incurred by D-Mare in rectifying any defects in the goods that are caused by the Customer’s negligence.


7.7. All claims arising from a defect must be asserted in writing.

7.8. Marginal deviations of the delivered containers from the offer, confirmation of order and/or samples do not account for a defect. Liability for defects shall further not extend to natural wear and tear nor to such defects that occurred following the transfer of risk as a consequence of incorrect or negligent handling, excessive loads or due to such influences not provided for in the Agreement etc. Furthermore, D-mare shall not accept liability to the extent that the delivered components display signs of premature wear-and-tear in accordance with their natural quality or the nature of their use.

7.9. Insofar as the goods are intended for international use, D-Mare shall not be held accountable for adhering to past or present public law provisions or customs regulations in the destination country or any other countries. The Customer shall assume full responsibility for all costs and risks related to the importation and usage of the goods within the destination country or any other country.

 

  1. Liability for damages and reimbursement of costs

8.1. In the event of any breach of obligation, even in the event of faulty delivery, tort or manufacturer’s liability, D-mare shall only be liable for damages and reimbursement of costs in the event of intent or gross negligence or the event of the breach of a cardinal obligation. The Customer agrees that indirect or consequential losses are excluded.

8.2. D-Mare shall not be held liable for consequential or indirect loss or damage, including but not limited to loss of profits or loss of use. A This shall, however, not apply to cases of intent. Therefore, D-mare is under no circumstances liable for abnormal occurrences of loss, unanticipated consequential damages, or damages that the Customer may have reasonably been expected to prevent.

8.3. The parties hereby agree that their total liability for delay or any other circumstance attributable to ordinary negligence arising from or in connection with this Agreement shall not exceed five per cent (5%) of the agreed purchase price. The Customer acknowledges awareness of this limitation, considering any trade customs and previous dealings between the parties. Nothing herein shall limit or exclude either party’s liability for gross negligence, wilful misconduct, or any other liability that cannot be lawfully limited or excluded under applicable law.

8.4. Irrespective of clauses 8.1, 8.2, and 8.3, any liability for ordinary negligence shall be excluded with the exception of breaches of essential obligations and shall, in any event, be limited to the purchase price.

8.5. The exclusion of liability in accordance with sections 7.1 to 7.4 shall not apply in the event of the assumption of a guarantee, the malicious concealment of a defect, as well as for damages resulting from loss of life, physical harm, or damage to health and in cases of compulsory liability under the product liability act.

8.6. All claims for damages and reimbursement of costs, irrespective of their legal basis – shall be considered time-barred one year following the delivery of the container to the Customer, unless mandatory legal stipulations provide for a longer period of limitation.

8.7. Under no circumstances, including, but not limited to, negligence, will D-mare or its affiliates, contractors, employees, agents, or third-party partners, licensors, or suppliers be liable for any special, indirect, incidental, consequential, punitive, reliance, or exemplary damages (including without limitation damages arising from any unsuccessful court action or legal dispute, lost business, lost revenues, or loss of anticipated profits or any other pecuniary or non-pecuniary loss or damage of any nature whatsoever) arising out of or relating to these terms and conditions or that result from your use of or your inability to use D-mare products or services.

8.8. In so far as D-mare liability is excluded, this shall also extend to the personal liability of the staff, management, representatives, and vicarious agents of D-mare.

8.9. The parties accept, agree, and understand that that is not D-MARE’s expertise nor capability to evaluate the Depot’s capacity or competence to execute PTIs. In consequence D-MARE shall not be liable for any act of negligence or bad faith committed by depot that may has affected the Buyer.

 

  1. Refrigerated Containers

9.1. The buyer accepts, understands, and agrees that functional Reefer containers offered by D-MARE have undergone a Pre-Trip Inspection process unless the parties have expressly and in writing negotiated otherwise.

9.2. The buyer accepts, understands, and agrees that the execution of a PTI means that the container works correctly at the time of collection, but the latter does not guarantee that the reefer will function correctly during transport and/or unloading.

9.3. The buyer accepts, understands, and agrees that they are solely responsible for damages, whether direct or indirect, arising from the malfunction of the unit or from mishandling, including but not limited to, short circuits after collection, poor logistical management leading to cargo damage, software errors, improper handling of the unit, sudden deterioration of equipment components, among others.

9.4. The parties understand, agree, and accept that the container will be released by the depot in the conditions that the latter deems appropriate, unless the buyer has indicated at the time of purchase that they wish to receive the container under specific conditions of temperature, humidity, or any other.

 

9.5. The parties may agree that the container, at the time of collection, has specific conditions such as temperature, humidity, among others. The buyer accepts, understands, and agrees that the responsibility for ensuring compliance with the agreed-upon release conditions rests with the hauler and the depot. Likewise, the buyer accepts, understands, and agrees that, in the absence of proof, the collection of the container constitutes tacit acceptance that it met the specific conditions that may had been agreed in the purchase agreement.

9.6. D-MARE may sell reefer containers subject to proof of export. Failure by the Buyer to fulfill this obligation will make them liable for any resulting damages due to the breach of contract.

 

  1. Retention of Title

10.1. Delivered containers shall remain the property of D-mare until all claims resulting from the current business relationship with the Customer have been satisfied.

10.2. In the case of the Customer being in breach of contract, in particular in the case of default in payment, D-mare is without grace period entitled to take back the delivered container at the expense of the Customer. In the withdrawal, no rescission of contract is made unless expressly stated by D-mare. D-mare is authorised to release the delivered containers after taking them back, the realisation proceeds are to be credited against the accounts payable of the Customer less fair costs of realisation.

10.3. The Customer shall only be permitted to resell the reserved goods following payment in full of the purchase price and any other liabilities resulting from the business relationship. At this point, however, the Customer hereby assigns to D-mare all claims – up to but not exceeding the payment amount to which D-mare is entitled – which arise from the rental of the container or any resale contrary to the terms of the Agreement. The Customer is still authorised to collect this claim. D-mare power to collect its assigned claims remains unaffected. D-MARE will, however, not collect the claims itself as long as the Customer fulfils his contractual obligations, in particular he does not default in payment. Should this be the case, the Customer is obliged to disclose the assigned claims and their debtors to D-mare, to give the required information on the collection of the claims, to hand over all the documents and to inform the debtors (third parties) of the assignment.

 

10.4. Should the securities provided exceed D-mare’s claims by in excess of 25%, D-mare shall release such securities at his own discretion at the Customer’s request.

10.5. The Customer must notify D-mare immediately should the container be seized or impeded in any other way by third parties. All costs incurred in warding off the assertion of third-party rights shall be for the Customer’s account.

  1. Purchase agreements with lessees

11.1. If the purchase agreement relates to a container that is on lease to the Customer at the point in time when the Agreement was concluded, the Customer shall be obligated to pay the agreed rental fee until the purchase price has been paid in full.

  1. Deferred payments

12.1. The parties agree and understand that deferred payments shall only apply to the transactions or payments arising from a special invoice. 
12.2. The parties agree and understand that any deferred payment shall be conducted in accordance with the “Guidelines for deferred payments agreements” attached or sent together with the special invoice.

12.3. The parties agree, accept and understand that the deferred payments agreement signed between the Customer and D-Mare does not imply that all the transactions between the Customer and D-Mare shall benefit from the deferred payment.

12.4. The parties agree, accept and understand that deferred payment does not necessarily mean a transaction under urgent release conditions. In some cases, it may take a few days to process a special invoice and provide the release. The parties agree to be patient and understanding during this time.
12.5. The parties agree, accept and understand that the number of transactions arising from the deferred payment agreement is limited to the deferred payment limit that was granted to you.

  1. Credit notes

13.1. Credit notes shall be valid for six months as of the date of their issuance.

13.2. Once the Credit note’s validity period has passed, D-Mare shall transfer to the client’s bank account the sum of money in the currency that appears on the credit note, the cost of which, shall be assumed by the client, which includes but is not limited to: i) bank fees; 2) bank exchange rate commissions, 3) any other fee arising out of the transaction.

 

13.3. Credit Notes are intuitu personae documents which means that the client is not entitled to transfer or assign to a third party the rights and obligations stemming from the credit note.

13.4. Credit notes shall only be used for payment towards future purchases of goods and services offered by D-Mare Ltd.

  1. Place of Performance, Legal Venue, Governing Law

14.1. If one or more clauses of this section of the contract should be or become invalid, the clause shall be substituted by a valid one which, as closely as possible, achieves the economic purpose of the invalid clause. The other provisions shall remain unaffected thereby and remain in full force.

14.2. Place of performance and jurisdiction shall be London, in so far as the Customer is a merchant. D-mare shall, however, at his own discretion, also be entitled to bring action against the Customer at his normal legal domicile. 

14.3. All contractual relations between D-mare and its Customer shall be governed exclusively by the Law of England and Wales. The United Nations Convention on Contracts for the International Sale of Goods or any other principle of conflicts of law shall not be applicable.