DOCKX LOGISTICS' GENERAL TERMS AND CONDITIONS
ART. 1. APPLICATION
1.1. These general terms and conditions apply to all deliveries of performance and/or goods by Dockx Logistics N.V., [hereinafter referred to as "DL" in short, having its registered office at B-2610 Wilrijk (Belgium), Terbekehofdreef 14 and (CBE-) enterprise number 0718.701.110] for the DL customer, to all quotes and transactions in question and to all resulting rights and obligations between DL and its customer as defined hereinafter in article. 1.4. [hereinafter referred to as "the customer" in short].
1.2. These general terms and conditions are an integral part of the agreement between DL and its customer, are supplemented by the more specific ("special") terms and conditions of this agreement confirmed in writing and are notified to the customer on reaching this agreement by DL.
1.3. By commissioning DL, contracting with DL, accepting an offer/quote of DL and/or agreeing with the execution of professional activities of DL, the customer declares and acknowledges that he [the customer] has taken note of the general and special terms and conditions of the agreement with DL and to accept and approve them without reservation.
These general terms and conditions are supplemented, depending on the nature of the customer's specific commission by:
(1) the reconcilable, non-contradictory provisions that have legal effect vis-à-vis the customer and the activities in question of DL of the general terms and conditions of the Confederatie der Expediteurs van België, the Vereniging voor Expeditie, Logistiek en Goederenbelangen van Antwerpen (VEA), the Algemene Beroepsvereniging voor het Antwerpse Stouwerij- en Havenbedrijf (ABAS), the Koninklijk Verbond der Beheerders van Goederenstromen (KVBG), the Koninklijke Federatie van Belgische transporteurs en logistieke dienstverleners (FEBETRA) and/or the Belgische Kamer der Verhuizers, more specifically by the most recent version of these provisions which are applicable, notified by DL to the customer and accepted by the customer,
(2) the Belgian and international legal rules to which DL's activities in question are subjected and/or for the application of which consensus has been achieved between DL and the customer.
1.4. The customer is the conventional other party of DL, more specifically its de facto client and/or the party which was validly identified as the other party by DL's de facto client, at the latest on the reaching of the agreement between DL and the customer.
With a view to the performance of the agreement between the parties and at the latest on the reaching thereof, DL's de facto client is obliged to identify DL's customer correctly and fully (with specification of the official name, legal form, enterprise number or VAT number, registered office, authorised agent, possible capacity of consumer, address and date of birth).
In case of non-observance of this obligation, DL may assume that its de facto client has committed itself, more specifically in its own name, for its own account and solely for professional purposes, to DL and has reached the agreement with DL.
1.5. Barring a specific agreement unambiguously to the contrary and in writing between DL and the customer; its de facto client and conventional other party commit themselves jointly and severally and in solidum and shall observe all customer obligations pursuant to the Agreement between DL and the customer.
1.6. The application of the general and special terms and conditions of the agreement between DL and the customer has priority on the application of any conditions of the customer and/or third parties.
1.7. In case of a contradiction between the special terms and conditions of the agreement between DL and the customer, the application of the general terms and conditions of the agreement between DL and the customer take priority over the application of the special terms and conditions in question of the agreement between DL and the customer.
1.8. The terms and conditions of the agreement between DL and the customer can only be deviated from on the grounds of a special, written, unambiguous, dated and signed agreement between DL and the customer. A tacit waiver of rights and/or recognition on the part of DL is excluded.
1.9. Barring written agreement to the contrary between DL and the customer, DL's quotes/offers (including DL's conditions in question) are valid for maximum sixty (60) calendar days after the date of the notification thereof by DL to the customer in question.
1.10. DL reserves the right to make changes to prices and/or terms of delivery by a motivated written notification to the customer by registered letter within thirty calendar days before the envisaged change, with specification of the intended change and the entry into force thereof.
If the customer does not accept the change he must notify this within thirty calendar days after the posting date of the aforementioned notification by registered letter to DL. If this is the case, the customer's refusal implies he wants to immediately terminate the agreement with DL without costs or damages and ending on the date of commencement of the envisaged change announced by DL in accordance with art. 1.10 paragraph 1 and that DL therefore (i.e. on the date of the entry into force of the envisaged change validly announced by DL) is entitled to consider this agreement as terminated (see also, art. 6.4. of these general terms and conditions).
In the absence of prompt notification by the customer by registered letter of his refusal to accept changes to prices and/or terms of delivery announced on time by DL, this absence shall be considered as a tacit acceptance by the customer of the change in question.
ART. 2. SPECIFIC PROVISION OF DL AND REQUIRED INFORMATION, DOCUMENTATION AND INDEMNITY
2.1. Barring a specific agreement unambiguously to the contrary and in writing between DL and the customer, DL is only committed by way of a best-efforts contract, as agent of the customer, to perform a specific commission of the customer payable by the customer, insofar this is compatible with DL's corporate purpose and based on the instructions, information, documents, authorisations and required licenses which the customer must provide in good faith, on time and in full and also effectively provided to DL.
DL's commission, responsibility and liability are restricted in this sense.
The customer is responsible at all times vis-à-vis DL to make sure that the identification of the customer is on time, correct, complete and up to date (including the statement of his capacity), for the description of his commission to DL and of all instructions, information, documentation, authorisations and licenses which DL needs to perform the customer's commission normally, in predictable circumstances and without complications. The customer must indemnify DL against all adverse effects and risks of the non-observance of this obligation.
2.2. The thus determined and restricted commission of DL could comprise:
1° a commission relating to the forwarding, organisation of transport and/or moving of goods under the direction of Dockx Logistics: in that case and unless explicitly specified otherwise in writing between DL and the customer, DL only commits itself as forwarding agent.
2° a commission to fulfil customs formalities: in that case and unless explicitly specified otherwise in writing between DL and the customer, DL only commits itself as an indirect customs representative of the customer.
3° a commission to store, safekeep, manage, handle and/or distribute goods (including commodities, furniture and/or archives) destined for professional purposes.
4° a commission of the customer as consumer to DL and/or the chief objective of which is the delivery of goods and/or performance (such as storage, safekeeping, management, handling and/or distribution) destined for private purposes.
5° a commission to deliver another performance and/or goods.
2.3. Unless explicitly and unambiguously stipulated in a written agreement between DL and the customer, DL does not accept any cash on delivery commissions, nor cash payments without discharge, nor commissions relating to goods that could harm national health and/or safety and/or are dangerous, perishable, flammable and/or harmful.
2.4. Unless explicitly and unambiguously stipulated in a written agreement between DL and the customer, DL can assume that the goods it was entrusted by the customer are the customer's property.
2.5. If DL (pursuant to the Agreement between DL and the customer) makes available its own goods (such as vehicles, loading and/or unloading vehicles, packaging and/or packaging carriers) and/or delivers them to the customer, the customer must reimburse them on time and at its own cost to DL, failing which DL reserves the right to charge damages to the amount of the replacement value of these goods, legal interest and/or additional costs to the customer.
DL remains the owner of the goods in question, and the customer is prohibited in any way whatsoever to dispose of them or to encumber them. Vis-à-vis DL, the customer and the third parties are liable for all adverse effects of the disregard of this prohibition. DL's right and reservation of ownership have legal effect vis-à-vis the customer and third parties, also if it legally comes to a grouping of creditors regarding the goods in question.
2.6. Under no circumstance is DL obliged to deliver a performance, goods and/or means, pay and/or advance any costs, provide securities and/or together with and/or instead of the customer institute proceedings, unless this has been explicitly and unambiguously stipulated in a written agreement between DL and the customer which implies a list of DL's terms and conditions (including any funds and/or securities to be provided by the customer to DL).
2.7. The customer must indemnify DL at all times and on its first request and as soon as DL is requested by third parties and/or subcontractors to provide provisioning, payment, compensation and/or security.
DL is entitled at all times to demand that the customer immediately makes available sufficient financial resources (funds) and/or securities (more specifically a sufficient bank guarantee of a recognised Belgian bank at terms and conditions acceptable to DL) to fully (i.e. both in terms of principal amount and in terms of interest and costs) cover the advances, costs and risks, to provision and/or compensate, which DL takes on and/or is subjected to in the execution of and/or pursuant to the Agreement between DL and the customer and/or the customer's commission.
ART. 3. FINANCIAL CONDITIONS OF DL AND PENALTIES
3.1. Barring a written agreement to the contrary between DL and the customer every invoice of DL to the customer must be immediately and fully paid to the address of DL's registered office. DL shall never tacitly accept receipt of partial and/or late payments.
Any invoice of DL which has not been paid in full and on time, more specifically the still owed balance in principal amount, is automatically increased with 10% a year by way of delayed interest (from the due date of the invoice in question to the full payment thereof), and with 10% and minimum 250.00€ as fixed payment of the costs of the extrajudicial credit management and extrajudicial collection charges.
3.2. Possible complaints and/or claims of the customer relating to the invoices and/or bills of DL and/or the subject thereof, are only valid in so far the customer has notified them on time (i.e. within the terms specified in art. 5.8 of these general terms and conditions) by motivated registered letter to DL and if applicable brings the matter before the court by means of a bailiff's notification.
3.3. Performance, goods, costs, levies, claims and/or risks over which no consensus is reached between DL and the customer, at the latest on reaching the agreement, remain exclusively for the customer's account and risk.
3.4. The customer waives any right to offset, deduct and/or suspend payment of any amounts owed to DL (in terms of principal amount, interest and/or expenses) on the grounds of other debts and/or disputes of and/or with the customer and/or third parties.
3.5. In case of a partial or complete default of payment and/or breach of contract by the customer, DL has the right to suspend the performance of its obligations vis-à-vis the customer with a notice of default to demand immediate payment of all invoices DL has sent the customer and has not yet paid to DL, to revoke all credit and payment facilities, discounts and/or commercial concessions granted to the customer and/or to declare the extrajudicial termination of the agreement between DL and the customer and/or to dissolve it judicially .
3.6. Until all amounts owed to DL have been fully (more specifically in terms of principal amounts, interest and costs) paid, DL is entitled to exercises a right of retention on all goods and/or documents which pursuant to the Agreement between DL and the customer are in DL's possession, including the goods and/or documents which in pursuance of consecutive commissions and/or shipment of the customer are in DL's possession. This right of retention has legal effect vis-à-vis the customer and third parties, also if it legally comes to a grouping of creditors regarding the goods in question.
ART. 4. ADDITIONAL WORK AND SUPPLEMENTS
DL reserves the right vis-à-vis its customer to refuse or not execute work, deliveries and/or pay costs that fall outside its original commission and to charge them to the customer as "additional work" or a "supplement" on the grounds of a separate dated and signed written agreement between DL and the customer which describes the additional work in question, the supplement and the conditions in question of DL (including the supplement and the required payment, provisioning and/or security).
ART. 5. LIABILITY AND INSURANCE
5.1. DL's commission, responsibility and liability are restricted to the execution of its commission within the meaning of article 2.1. of these general terms and conditions, and for each separate claim up to the refundable damage proven by the customer (in terms of principal amount, interest and expenses) which is the direct result of DL's error and/or negligence. The amount of the damages DL owes to the customer on the grounds of DL's proven contractual and/or extra-contractual liability remains restricted in any way to the sum up to which DL's professional liability insurer effectively and separately (more specifically relating to the claim in question) provides coverage.
5.2. Performance, goods, costs, levies, claims and/or risks over which no consensus is reached between DL and the customer, at the latest on reaching the agreement, remain exclusively for the customer's account and risk.
5.3. The Parties to the agreement between DL and the customer are not liable if force majeure and/or an external cause prevent the normal performance of this agreement. As such the following circumstances are equivalent to "force majeure" and "external cause", regardless of whether they occur on the site of DL, on the site of the customer and/or beyond: the inevitable and unforeseeable circumstances, abnormal complications, fire, floods, natural disasters, persistent bad weather and/or abnormal weather conditions and/or temperatures, problem in the energy supply, strike, deliberate blocking of public traffic, government measures (such as a government prohibition of transport and/or traffic and/or a government order to close the public highway), risk of war, riots, burglary, theft, violence, manipulations, loss, delay, errors, negligence and/or intentional acts of third parties and/or people and/or governments for which DL is not responsible on reaching the agreement between DL and the customer.
5.4. DL is not liable for the damage (in terms of principal amount, interest and/or expenses) caused and/or incurred through no fault of DL, nor for the damage caused and/or incurred following the intervention, manipulation, loss, delay, error, negligence, faulty inspection on delivery and/intentional act of the customer and/or of people and/or goods for which the customer is responsible.
DL is not liable for the consequences of the lack of correct, complete and prompt information, instructions, documents, authorisations and/or licenses of the customer and/or third parties, nor for the poor state and/or inherent defects of the goods and/or their packaging, nor for the consequences of how the goods were loaded, packaged, stowed, handled and/or manipulated before the customer effectively gave custody of the goods to DL and/or after they were delivered by DL in accordance with the customer's commission.
5.5. Barring a specific agreement unambiguously to the contrary and in writing between DL and the customer, DL is not liable for the damage, loss and/or delay in delivery of IT files and/or software. In this respect the customer is responsible at his own expense to make the necessary spare copies on time.
5.6. If DL, with the customer's consent, carries out work on a time and expense basis, the customer, barring a specific agreement unambiguously to the contrary and in writing between DL and the customer- waives any recourse against DL relating to the number of hours worked on a time and expense basis and/or charged to the customer.
5.7. The customer undertakes, vis-à-vis DL, to always take out sufficient insurance and at his own cost against all risks relating to the goods entrusted by the customer to DL (including the risks of damage, loss, theft and fire) and/or arising from the professional activities, goods, vehicles, packaging and/or customer's equipment, all this with a waiver of the right of recourse of the insurer(s) in question against DL and with the condition that the insurance policy(cies) in question cannot be terminated without notifying DL of this at least 30 calendar days beforehand by registered letter. The customer undertakes at all times at DL's first request to provide proof of this insurance and of the (receipt for) payment of the required insurance premiums.
In the absence of insufficient insurance of the risks in question, these risks and the damage, interest and costs arising from it are fully payable by the customer.
5.8. The customer must notify any complaints and problems relating to the delivered goods and services and/or DL's invoicing to DL in a motivated registered letter the posting date of which dates within a period of 8 calendar days upon receipt of the performance and invoicing in question respectively. Moreover, all possible claims of the customer must be brought before the court by means of a summons of DL within 180 calendar days after the date on which the delivery of the work and/or goods in question was conventionally stipulated between the parties and/or invoiced by DL to the customer.
The customer accepts that the non-observance of the aforementioned periods shows acceptance of the goods, services and DL's invoices and automatically results in the expiry of the claims and rights of the customer vis-à-vis DL.
ART. 6. TERM, TERMINATION AND END OF THE AGREEMENT BETWEEN DL AND THE CUSTOMER
6.1. Unless explicitly specified otherwise in writing between DL and the customer, the agreement between DL and the customer is entered into for an indefinite period of time and this agreement can at all times be terminated by either one of the parties without specification of a reason, subject to sending a registered letter of termination to the other party in which a period of notice of at least 180 calendar days is announced vis-à-vis this other party and specified(in terms of start and end of the period of notice), and subject to effective observance of this period of notice by the terminating party.
6.2. The agreement between DL and the customer can be terminated immediately and unilaterally by each of the parties on the grounds of the gross contractual breach of contract of the other party, provided this is done by means of a registered letter in which the decision for a unilateral termination for gross a contractual breach of contract is explained and motivated.
6.3. The agreement between DL and the customer ends automatically and immediately in case of bankruptcy, judicial reorganisation, judicial or extra-judicial dissolution, insolvency, incompetence and/or inability of, appointment of a temporary administrator and/or involving the cessation of payment of at least one of the parties. In that case the already acquired and/or rights of the parties that were exercised on time have legal effect vis-à-vis their representatives and/or third parties.
6.4. In the absence of agreement of the customer with a valid change notified by DL (i.e. in accordance with art. 10.1, paragraph 1 of these general terms and conditions) of its prices and/or terms of delivery, DL is entitled to consider the agreement between DL and the customer as terminated on the date of commencement of the envisaged change notified by DL in accordance with art. 1.10. paragraph 1.
ART. 7. OBLIGATION OF CONFIDENTIALITY AND PROHIBITION TO HIRE EACH OTHER'S STAFF
7.1. DL and the customer both undertake to consider and treat all sensitive information and documentation relating to their companies, which they consider sensitive and therefore explicitly want to see treated and handled as "confidential", such as more specifically non-public information, documents and material relating to the services and goods of parties, their clientele, their financial, accounting, technical, commercial and/or tax conditions, their company and/or trade secrets, their payrolls, specifications, reports, software, hardware, and/or information and/or documentation directly or indirectly related with their activities and/or management, as confidential, both during and following termination of the present agreement. The information, documents and material in question may only be used for the performance of the agreement between DL and the customer and not be reproduced or disclosed or notified to third parties without the parties' explicit written and prior consent. On termination of the agreement between the customer and DL the documents and/or goods still belonging to one of the parties must be promptly returned to this party.
7.2. DL and the customer undertake vis-à-vis each other to refrain from any activity, and/or attempt to do so, to directly and/or indirectly hire each other's staff, directors or contracting parties in the territory of Belgium, the Netherlands and Luxembourg, during the term of the agreement and for 365 calendar days following termination of this agreement.
Any separate infringement of this obligation shall be punishable, per infringement and payable by the infringing party, with (payable by the infringing party to the harmed other party) damages to the amount of six times the average monthly gross pay or gross monthly payments of the unlawfully approached and/or hired person for six months preceding the calendar month in which the infringement took place.
7.3. DL and the customer undertake to impose the obligation of confidentiality and prohibition to hire each other's staff on all its representatives, contracting partners, agents, representatives, affiliated companies and company bodies and make sure they respect it.
ART. 8. OBSERVANCE OF INTELLECTUAL RIGHTS AND PRIVACY
8.1. DL and the customer undertake vis-à-vis each other to respect their intellectual rights at all times, for instance concerning their rights on their commercial and company names, brands, patents, - drawings and designs, their copyrights, their intellectual user and operating rights.
Barring an explicit and written agreement to the contrary between DL and the customer, the agreement does not imply any transfer, nor any waiver and/or licence relating to the intellectual rights of the parties.
8.2. DL and the customer are aware of the need to respect privacy laws and undertake to take the necessary efforts to do so.
The processing by DL of the customer's data chiefly concerns the performance of the agreement between DL and the customer as well as the management of the customer's data, promotion of DL's professional activities and/or the management of the customer's access to DL's website(s) and/or web shops, in accordance with the legislation relating to the protection of privacy and electronic commerce. The customer is entitled to access to data concerning him and/or rectification and may exercise this right by sending a written request to DL (by letter or by e-mail). In the same way the customer can notify DL that he [the customer] no longer wishes to receive DL's commercial advertising and/or offers, provided he [the customer] specifies the means of communication in question in writing.
8.3. DL and the customer undertake to impose the same obligation to respect their intellectual rights and privacy laws on all their representatives, contracting partners, agents, affiliated companies and company bodies.
ART. 9. 'INTUITU PERSONAE' CHARACTER OF THE AGREEMENT BETWEEN DL AND THE CUSTOMER AND NON-TRANSFERABILITY OF THE RESULTING RIGHTS AND OBLIGATIONS
9.1. The agreement between DL and the customer has a personal ("intuitu personae") character: the identity, capacity and qualities of the parties are decisive for reaching the agreement.
9.2. DL and the customer 's conventional rights and obligations (those arising from the general and special terms and conditions of the agreement between DL and the customer) are not transferable, nor to third parties, unless this transferability is stipulated in advance, unambiguously and in writing between DL and the customer.
ART. 10. RULES OF EVIDENCE AND DISPUTES SETTLEMENT MECHANISM
10.1. The possible invalidity of clauses and/or parts of these general terms and conditions and/or special terms and conditions of the agreement between DL and the customer do not prejudice the validity of the agreement and the conditions thereof.
10.2. To the extent that it does not prejudice the other provisions of the agreement between DL and the customer and/or the applicable provisions of the Civil Code, the parties accept that they can use their electronic communication and back-ups in question against each other as evidence
10.3. All possible disputes relating to these general terms and conditions and/or the agreement between DL and the customer, including their legal effect, conclusion, application and interpretation, are only subjected to the application of Belgian law and the exclusive international jurisdiction of the Belgian courts, more specifically (territorially) only to the court that has jurisdiction in the judicial district of Antwerp, department Antwerp, and (materially and in first instance) only to the Court of Commerce of Antwerp, department Antwerp.