GENERAL TERMS AND CONDITIONS TRANSPORT & STORAGE OF GOODS
PART 1: TRANSPORT
I. DEFINITIONS RELATING TO TRANSPORT TERMS AND CONDITIONS
“Carrier” in the general sense of the word means the company TRANS EUROPE EXPRESS BV, with registered offices at Evenbroekveld 1, 9420 Erpe-Mere.
“Client" in the sense of these terms and conditions means all those who place an order for transport, or more generally enter into a legal relationship with the Carrier on the understanding that by giving the order or by entering into a legal relationship, the Client declares themselves authorised to do so and consequently personally guarantees the obligations arising from the order. The Client also acts on behalf of the shipper and/or consignee within the framework of the present terms and conditions.
II. SCOPE OF APPLICATION
The general terms and conditions apply to all orders given to and agreements made with the Carrier. This means that the general terms of conditions of any other party, in whatever form, cannot in any way be applied to the legal relationship with the Carrier. Merely by accepting the offer and submitting the order for a transport, the Client also accepts these general terms and conditions.
All offers, in whatever form, are free of obligation and only serve as an invitation to submitting or issuing an order, unless the Carrier agrees otherwise in writing. Verbal orders are only definitively accepted if they have been confirmed in writing within 24 hours or if Carrier has started executing the order. Written confirmations shall be as complete as possible with all the information necessary for the correct execution of the order (nature and number of goods, weight, temperature, quay and/or depot, value, information for stowage and cargo insurance, etc.). The Carrier shall be in possession of this information sufficiently in advance in order to be able to carry out the order as requested, taking into account, among other things, distance, driving and resting times, time windows at loading and unloading points, administration, advance notification, etc. The Carrier reserves the right to refuse a transport order in spite of offers made.
IV. TRANSPORT DOCUMENTS
The Client shall be obliged on time to enclose all documents with the consignment which shall accompany the goods by virtue of law or regulations. Not submitting the required documents or submitting them late shall result in the discharge of the Carrier's liability, whereby the Client shall indemnify the Carrier, without prejudice to the possibility of refusing the consignment and the right to compensation. Under no circumstances shall the Carrier be liable for any incorrect or incomplete information on the transport documents. All costs, liabilities and damage that may result from this shall be borne exclusively by the Client and these may be recovered from the Client.
V. LOADING -– UNLOADING – WEIGHT – STOWAGE
Unless otherwise agreed in writing, the parties expressly agree that loading and unloading shall be carried out by the Client (or shipper) or the consignee respectively. To the extent that the driver is requested by the Client or the consignee to carry out these acts, this shall take place under the express supervision, control and responsibility of the Client or the consignee. The Carrier assumes no liability whatsoever for damage caused by and/or during loading and unloading.
Unless otherwise indicated in writing and to the extent that this is possible and/or necessary, the stowage shall be carried out by the Carrier on the basis of the instructions of the Client or shipper given in accordance with the applicable legislation given the route. If the vehicle used by the Carrier or the method of stowage used proves to be unsuitable because the Client or shipper has communicated incorrect or incomplete information or if the transport packaging proves to be insufficiently strong to allow the taking out of sufficient cargo insurance, the costs and damage arising as a result shall be borne in full by the Client. The Client or the shipper secures that the transport packaging of the goods is in accordance with the applicable standard EUMOS40509, valid on the moment of the performance of the transport.
Delivery takes place at the entrance or at the quay of the relevant building unless another place has been agreed upon. If loading or unloading has to take place on a public road, the Client, shipper or consignee shall arrange all necessary permits.
The manoeuvring of the vehicle within the premises of the Client, shipper or consignee is entirely at the instruction and under the responsibility of the latter. However, the Carrier may oppose such instructions if it is convinced that local circumstances endanger its vehicle or the load. The Client, shipper or consignee undertakes to construct and maintain access roads and standing areas so that the Carrier's vehicles easily and safely can be manoeuvred.
If there is no authorised person available at the time of delivery, the Carrier shall be instructed to unload the goods to be delivered on the spot, after which the delivery shall be communicated to the Client by the Carrier by any means and the latter shall be deemed to have accepted the delivery without reservation.
Unless the Client explicitly has asked the Carrier to check the gross weight of the load in the sense of Article 8 (3) CMR, the Client remains responsible for any excess loading, including any excessive loading per axle, that is determined during transport. The Client shall cover all costs arising from this, including damage caused by the vehicle being immobilised and any fines or other legal costs that may arise from this.
VI. LIABILITY AND LEGAL FRAMEWORK/CMR
The mandatory provisions of the CMR Convention apply to every transport assignment and its execution. The carrier exonerates himself from any other liability except for that provided for in the CMR Convention and any other mandatory provisions. If, as a result of the transport, damage occurs to other goods in the custody of the Client, loader or consignee, but which are not the goods to be transported, the carrier shall only be liable for damage attributable to his (or her) gross negligence or his own proven intent. The carrier shall therefore not be liable for any damage or delay arising during the loading and unloading of the goods (including defrosting). Under no circumstances can the carrier be held liable for consequential or indirect damage (except in the event of his own proven intent, gross negligence or gross negligence of his subordinates). In any event and except in cases of wilful misconduct, the extent of its liability for damage to goods other than the goods to be transported shall be limited per claim to a maximum of 8.33 STR for each gross kg of goods transported. Subject to the Carrier’s express prior written acceptance and express mention on the consignment note, no transport order shall be accepted under a cash-on-delivery-condition, under assumed value of the goods or special interest in delivery. The transport of high-value goods (jewellery, money, antiques, securities, excisable goods, etc.) shall only be accepted at the risk of the Client. In cases of force majeure (weather conditions, exceptional traffic conditions, strike, etc.), the Carrier is entitled either to adjust the freight rates and conditions or to cancel the contract of carriage without any compensation, unless otherwise agreed.
The client is responsible - in his respective capacity of consignor, packer or shipper - for the delivery of all necessary documents concerning the correct description of the goods, the total mass of the total load and the provision of the required information as described in article 45bis of the Road Code and, insofar as applicable, the ADR treaty. The principal is always responsible for all obligations as described in Part I, Chapter 1.4. ADR agreement, with the exception of those under section 220.127.116.11, also insofar as the principal would make use of third parties or appointees for this purpose. The principal, in its respective capacity as shipper, packer or dispatcher, also guarantees the provision of a correct securing and, if required, the provision of an alternative securing method in accordance with article 45bis of the Road Code and the correct distribution of the load across the loading surface, whereby the MGW and axle loads of the vehicle are respected. The principal shall indemnify TRANS EUROPE EXPRESS for any damage suffered as a result of non-compliance with the obligations as described in part I chapter 1.4. ADR convention, with the exception of those under point 18.104.22.168., the damage resulting from overloading and overloading of the axle loads or any negligence relating to the provision of information or the supply of documents to TRANS EUROPE EXPRESS. If TRANS EUROPE EXPRESS is required to pay a criminal fine as a consequence of an infringement of the ADR regulations, transhipment or overloading of the axle loads, or any conviction which is the consequence of a faulty act on the part of the principal or his subordinates, TRANS EUROPE EXPRESS is entitled to recover the amount of this criminal fine from the principal.
VII. FREIGHT CHARGES, TRANSPORT COSTS AND PAYMENT CONDITIONS
The freight charges and transport costs are owed by the Client. In the event of transport where the Client indicates that payment shall be made by the consignee, the Client and the consignee shall be jointly and severally liable for such payment. The loading and unloading of the transported goods is not included in the freight charges and shall take place at the Client’s expense and risk. The freight charge and any amounts claimed from the Carrier cannot be set off against each other.
Unless otherwise agreed in writing, the Carrier's invoices are payable not later than (30) thirty days after the invoicing date mentioned on the invoice and without any discount. Once the due date has expired, the Client shall be deemed ipso jura to be in default without the need for a written notice of default and shall immediately owe customary compensation to the sum of 10% of the amount due with a minimum of € 75 as well as interest from the due date to the sum of 1% per month, whereby part of the month shall be charged as a full month. The issuing of this customary compensation of 10% does not exclude the issuing of any judicial compensation or any other proven costs for recovery. In the event of non-payment by the due date, all invoices that are not due and payable shall also ipso jura become immediately due and payable in full and without notice of default.
The Carrier's various claims against the Client, even if they relate to different consignments and to goods which are no longer in its possession, constitute a single and indivisible claim in relation to which the Carrier may exercise all its rights and privileges. Furthermore, the Carrier shall be entitled to exercise a right of pledge and/or lien on all material and/or goods which they dispatch, transport, store or hold in its possession in any way, and this to cover all sums due or to be due from its Client for whatever reason.
Unless there are contrary stipulations in the contract or in the Carrier's offer, all transports shall be subject to the “diesel surcharge”. This is invoiced in addition to the freight charges. The original reference is the official rate of fuel without VAT published by the Ministry of the Economy on 31/12/2003 for 10ppm diesel for road haulage. This is calculated on the basis of a 0.5% increase or decrease in the price per part of € 0.022 which is changeable into an increase or decrease in the price per litre. This calculation is done monthly and applied to the average of the official rate for the expired month.
VIII. WAITING HOURS
The time frame for loading and unloading shall be calculated from the presentation to the consignee, irrespective of whether or not the goods have been accepted. An additional fee shall be charged for each additional hour.
Waiting hours are calculated per started hour. For LTL (Less Than Full Truckload) there is 45 minutes waiting time included, for FTL (Full Truck Load) there are 2 hours waiting time included.
IX. DISSOLUTION – CANCELLATION
In all cases where the order is not carried out or is dissolved, the Client undertakes to pay the Carrier compensation corresponding to 75% of the freight charges if the cancellation is notified less than 24 hours from loading time.
X. APPLICABLE LAW AND COMPETENT COURT
The Carrier and the Client submit themselves to Belgian law with regard to these general terms and conditions and with regard to all agreements between the parties. With regard to disputes between the parties, the Courts of the Carrier's registered offices, under which the Courts mentioned under Article 31 (1) of the CMR Convention have international jurisdiction, also are competent.
The possible nullity of one of the provisions of these terms and conditions shall in no way result in the nullity of the remaining provisions, which shall therefore continue to apply in full.
PART 2: STORAGE OF GOODS
I. DEFINITIONS RELATING TO CONDITIONS OF STORAGE OF GOODS
Storage contract: the contract by which the Depositee undertakes towards the Depositor to take the goods entrusted to them into storage.
Storage: the storage, keeping and removal of the goods entrusted to the Depositee.
Depositor: the Party that orders the goods to be stored. The term “Depositor” used in this contract is independent of its legal definition.
Depositee: the Party who accepts and carries out the order for storage, in particular TRANS EUROPE EXPRESS BV, with registered offices at Evenbroekveld 1, 9420 Erpe-Mere. The term “Depositee” used in this agreement is independent of its legal definition.
Receipt: work carried out by the Depositee after receipt in order to store the goods in the space designated for that purpose.
Delivery: work carried out by the Depositee in order to deliver the goods to the Depositor.
II.1 The Depositor wishes to make periodic use of the services of the Depositee for the receipt, storage and full pallet handling and delivery ("Logistics Services") of the goods designated by the Depositor.
II.2 The Depositee shall vis-à-vis the Depositor undertake to provide Logistic Services of the goods designated on the instructions of the Depositor at its warehouse located at Erpe-Mere B9420 and this in accordance with the provisions of this Agreement.
II.3 The Parties acknowledge that Logistic Services shall be considered as both physical and administrative logistic operations, whereby the Depositee shall explicitly undertake to take care of the administrative logistic handling requested by the Depositor including, but not limited to, receipt of goods, storage of goods, stock management, picking confirmations, delivery of goods, labelling, sampling and forwarding (including organising transport), and this within the mutually agreed periods and agreements.
II.4 The Depositee shall guarantee correct and timely pallet picking of the goods in accordance with the necessary instructions of the Depositor.
II.5 The Depositee shall undertake to take the necessary measures to provide the Logistics Services with a quality, service, flexibility, dedication and reliability as may reasonably be expected of a professional Depositee.
II.6 The Depositee shall undertake to take the necessary measures to use trained personnel as well as to make sufficient and appropriate material available to carry out the Logistics Services.
II.7 The Depositee shall acknowledge that the Goods in storage in the warehouse are and shall remain the property of the Depositor at all times.
II.8 During the Full Term of the Agreement, the Depositor, as well as its employees or appointees, shall have a right of access to the warehouse and the offices of the Depositee in order to ascertain
III. DURATION AND TERMINATION
III.1 This Agreement is entered into for an indefinite period of time.
III.2 During the term of this Agreement, either Party may terminate the Agreement by registered letter with a notice period of six (6) months without giving any reason.
III.3 During the entire term of the Agreement, the Agreement may be terminated by registered letter:
(i) with immediate effect if one of the Parties commits a gross breach of contract under this Agreement as a result of which the other Party may reasonably be expected not to continue this Agreement due to that breach or negligence. If so, the terminating Party shall state the reason for termination in the registered letter.
(ii) taking into account a notice period of one (1) month if one of the Parties breaches any provision of this Agreement, other than gross negligence, and does not rectify such breach within ten (10) days after this Party has been placed in default by registered letter.
III.4 The parties may terminate the Agreement by registered letter with immediate effect at any point during the entire term of the Agreement:
(i) in the event of fraud on the part of the Depositee; or,
(ii) in the event of late payment, insolvency, bankruptcy, judicial restructuring, the appointment of an administrator or any other proceedings initiated on behalf of the Depositee.
III.5 In the event of termination of the Agreement, the Parties agree to make commercial arrangements in good faith, in particular with regard to the destination of the remaining stock of the goods in the Depositee’s storage facility.
IV. INVOICING AND PAYMENT CONDITIONS
IV.1 The Parties agree to monthly invoicing for the services provided under this Agreement.
IV.2 The Parties agree that the payment term is thirty (30) days. This period of thirty (30) days shall commence on the date the invoice was issued.
IV.3 Once the due date has expired, the Depositor shall be deemed ipso jura to be in default without the need for a written notice of default and shall immediately owe customary compensation to the sum of 10% of the amount due with a minimum of € 75 as well as interest from the due date to the sum of 1% per month, whereby part of the month shall be charged as a full month. The issuing of this customary compensation of 10% does not exclude the issuing of any judicial compensation or any other proven costs for recovery. In the event of non-payment by the due date, all invoices that are not due and payable shall also ipso jura become immediately due and payable in full and without notice of default.
IV.4 The Depositee’s various claims against the Depositor, even if they concern different matters and goods which are no longer in the Depositee’s possession, shall constitute a single and indivisible claim in relation to which the Depositee may exercise all its rights and privileges. Furthermore, the Depositee shall be entitled to exercise a right of pledge and/or lien on all material and/or goods which they dispatch, transport, store or hold in its possession in any way, and this to cover all sums due or to be due from the Depositor for whatever reason.
V.1 Basic principle: the invoicing for the services provided by the Depositee to the Depositor shall take place on the basis of a storage rate, a receipt rate and a delivery rate, depending on the specific logistic service provided.
V.2 As the rates for receipt, storage and delivery depend on the warehouse used, the rates charged will be laid down separately in an appendix to this Agreement (see Appendix 1) and this appendix therefore forms an integral part of this Agreement.
V.3 Rates for logistics services other than storage, receipt and delivery:
• Only the stipulated and aforementioned services may be invoiced, unless otherwise is explicitly agreed. If at any time there are very specific services that the Parties agree in advance may be charged under management, a rate of € 50/manhour will be agreed for this.
V.4 The Depositee shall send the following documents to the Depositor by e-mail within 24 hours after receipt or dispatch of the goods:
• Copy of the signed CMR waybill
• The unloading report/dispatch note explicitly stating:
o Name of the product
o Reference of the Depositor (being invoice number or sales order number)
o The net quantity in kilograms or litres
o The number of pallets
o The lot numbers, if requested
The Parties shall agree on a monthly report. The Depositee shall submit a stock report to the Depositor at the beginning of each month, stating the total pallet quantity on the last day of the previous month. This report shall explicitly state the following information for each product:
• The number of pallets
• The net quantity
• The storage location
• The date of receipt
The Parties agree that the Depositee shall, annually and during the entire term of the Agreement and in particular at the end of each calendar year at a time to be determined by the parties, carry out a physical stock count at article level of the goods present in the Depositee's warehouse at that time and report the results to the Depositor. The results of this physical stock count shall then be compared by the Depositor with the recorded stock at that time In the event of any discrepancies, the Parties shall discuss this in mutual consultation. The Depositee shall also allow inspection of its own stock lists and any other relevant documents that may explain any discrepancies. The Depositee undertakes to carry out an interim stock count, at the mere request of the Depositor and in accordance with arrangements to be made by the Parties, in addition to the annual stock count.
V.5 The Parties agree that shortfalls in the annual stock count as provided for in Article V.4, last paragraph of this Agreement for which there is no plausible explanation, may be invoiced by the Depositor to the Depositee on the basis of the average sales price in Belgium for the goods concerned over the past twelve months.
VI. WAREHOUSE RESERVATION
VI.1 In view of the varying frequency at which the Depositor wishes to make use of the services of the Depositee, the Parties agree that the Depositor shall notify the number of pallet spaces it wishes to reserve ("Warehouse Reservation") for the coming month ("Reservation Period") on a monthly basis, and this based on the best possible estimation it can make of the future need at that time. The Depositor shall inform the Depositee one (1) month before the start of the Reservation Period concerned.
VI.2 The Parties agree the following in this regard:
• The Depositee undertakes to consider the corresponding number of pallet spaces per Warehouse Reservation as the minimum quantity and to keep these pallet spaces available for the Depositor during the Reservation Period ("Minimum Reservation");
• The Depositee acknowledges that the Depositor may subsequently order pallet spaces in addition to those stated in the Warehouse Reservation and to the extent that the Warehouse Reservation are exceeded, the Depositee shall undertake to meet this demand according to its capacity.
VI.3 The Parties agree that the Depositor has no obligation to reserve a minimum number of pallet spaces. The number of pallet spaces always depends on the warehouse used and is laid down in Appendix 1.
VI.4 The Depositee undertakes to inform the Depositor immediately if the maximum capacity changes in the course of this Agreement, both in case of decrease and increase.
VII. THE DEPOSITEE’S OBLIGATIONS
The Depositee is obliged:
• To carry out the storage, receipt, delivery and, as the case may be, any additional work agreed upon with the Depositor;
• To take receipt of the goods deposited at the agreed place, time and manner, accompanied by the documents provided by the Depositor, and to deliver them in the same condition as when the Depositee received them, or in the agreed condition;
• To ensure that the goods are stored and handled in suitable rooms;
• To take due care of the goods and, if necessary for the preservation of the goods and at the expense of the Depositor, to take all measures;
• Allow the Depositor or persons designated by the Depositor to be present, but only in the rooms or premises where the goods are located and only at the Depositor’s own risk and only during normal working hours, provided however that this:
- takes place in the presence of the provider of the logistic services;
- has been notified and approved in advance;
- takes place in accordance with the Depositee’s internal regulations;
VIII. THE DEPOSITOR’S OBLIGATIONS
The Depositor undertakes to:
• Provide the Depositee with all information concerning the goods (including the correct weight and centre of gravity), its handling and the way in which they are to be stowed prior to handing the goods over to the Depositee. The Depositor shall be obliged to provide or to communicate all documents and instructions for hazardous goods as mentioned in the conventions and regulations in this regard such as ADR, ADNR, IMDG,.... to the Depositee. The Depositor shall be responsible for any cost and damage which the Depositee would suffer as a result of the inaccuracy or inadequacy of the aforementioned information or documents. The Depositor shall also exclusively be responsible for any damage to the environment, damage to third parties or personal injury suffered by the Depositee as a result of insufficient information. The Depositor shall indemnify the Depositee against any sanctions concerning security of cargo or excessive loading in so far as it should appear that the aforementioned information were not to be available;
• Inform the Depositee of the permits necessary for the carrying out of its activities;
• Make the agreed goods available to the Depositee at the agreed place, time and manner, accompanied by a transport document and all other documents required by or pursuant to the law;
• Pay, in addition to the agreed price for the provision of services, the cost of maintaining the goods as referred to in Article VII as well as the cost incurred by the Depositee in connection with the additional operations within the set payment term. In addition, to pay all waiting hours within the same period of time;
• Indemnify the Depositee against third party claims concerning damage caused directly or indirectly by the goods, an act or omission by the Depositor, its subordinate or any other persons whose services the Depositor makes use of;
• To guarantee the material made available to the Depositee by the Depositor;
• To accept any adjustment of rates with regard to incurring expenses and/or bearing expenses (including new taxes) which are unprecedented at the time of entering into the legal relationship with the Depositee, and which the Depositor would have had also if the Depositor had carried out the activities mentioned in this Agreement for its own account;
• Pay for the cost of disposal and recycling of the packaging and of the waste resulting from the provision of services at cost price;
• Inform the Depositee in well in advance of any remarks concerning the execution of the order, especially in the event of damage, loss or delay. The Depositee must make any remarks concerning visible defects or losses at the time of delivery of the goods whereas a period of seven days shall apply for hidden losses or defects. Any remarks concerning a delay must be made within a period of 21 days. Failure to give forward any remarks on time shall result in the forfeiture of any right of claim in that regard;
IX. THE LIABILITY OF THE DEPOSITEE AND THE DEPOSITOR
IX.1 If goods received by the Depositee are not delivered to the Depositor and/or consignee in any possible packing in the same or in the agreed condition, the Depositee shall, except in case of force majeure and the further provisions of these conditions, be liable for any damage and/or loss caused in relation to this. The Depositor shall bear the burden of proof that the damage and/or loss occurred between the time of receipt and the time of delivery as provided for in these conditions.
IX.2 The Depositee shall not be liable for damage to and loss of goods to the extent that such damage/loss is the result of the special risks connected with storage in the open air as ordered of the Depositor.
IX.3 If the Depositee does not carry out the agreed services and/or additional work at the agreed time or within the agreed period, manner and place it shall be obliged to carry out these activities as soon as possible in the agreed manner.
IX.4 The Depositee shall not be liable for damage resulting from a lack of, insufficient or incorrect information as referred to in Article VIII, first bullet-point.
IX.5 Except for the liability laid down in this article, the Depositee shall not be liable for any damage, including any form of consequential damage, other than to the goods themselves, unless the damage was caused deliberately
IX.6 The Depositee may cause the goods to be sold without awaiting the instructions of the cargo interests if the perishable nature or the condition of the goods justifies this or if the cost of storage is out of proportion to the value of the goods. The value of the goods shall be the cost of production or, failing this, the current market price or, failing this, the usual value of goods of the same nature and quality. The Depositee may also cause the goods to be sold in the event that the goods are surrendered by the Depositor. In other cases, the Depositee may also have the goods sold if it has not received other instructions from the Party holding an interest in the cargo within a reasonable period of time, the execution of which can reasonably be demanded. If the goods were sold in application of the present article, the proceeds of the sale must be put at the disposal of the Party holding an interest in the cargo after deduction of the costs which relating to the goods. If these costs exceed the proceeds of the sale, the provider of the logistics services will be entitled to the difference. The manner of action in the event of sale is determined by law and customs of the place where the goods are located. In any event, in the case of perishable goods or goods where the storage costs are out of proportion to the value of the goods, a simple notice of sale shall be sent to the cargo interests. If the latter does not react immediately, the sale may proceed. In the case of non-perishable goods, a simple communication of sale shall also be addressed to the cargo interests. If the cargo interests do not respond within a period of 15 days, the sale may proceed.
IX.7 The Depositor shall be liable for any damage and cost caused by persons and/or goods which the Depositee, on behalf of the Depositor, has had to allow on its premises and/or in its facilities in accordance with Article VII, bullet-point 5.
IX.8 The Depositor shall be liable for any possible damage to the Depositee, employees or employees of the Depositee, to the environment and to third parties which may occur as a result of a lack of, insufficient or incorrect information and particulars ex Article VIII, first bullet-point.
X1 The Depositee warrants and undertakes to have valid insurance policies with a recognised insurance company for the entire duration of this Agreement with regard to its civil and professional liability in connection with the provision of the services contained in this Agreement.
X.2 In addition, the Depositee undertakes to have a valid and adequate insurance with a recognised insurance company for its warehouse where the goods are stored, including furniture and materials in the warehouse, against at least the risks of fire, explosion, theft, water damage or other natural damage.
X.3 The Depositor shall insure the goods against, among other things, fire, lightning, explosion, aircraft crashes, storm damage, water damage, flooding and burglary, including a waiver of recourse on the part of the insurers in relation to the Depositee and any other third parties. In any case, the Depositor shall also be responsible for the collection and handling of the goods damaged by fire and/or flood. The Depositor shall moreover pay all costs caused by the collection and handling of the goods damaged by fire and/or flood as well as all costs resulting therefrom in any way whatsoever, such as the costs of cleaning or sanitation of the premises or installations.
X.4 The Depositor and the Depositee shall waive any right of recourse against each other for any possible damage as insured under the insurance policies taken out for material damage, including but not limited to damage caused by fire, explosion, water, etc.
The aforesaid mutual waiver of recourse shall, however, have no effect in case of wilful act and if the person responsible for the damage occurred is effectively covered by an insurance policy covering their responsibility.
XI. FORCE MAJEURE
XI.1 Neither Party can be held liable for non-fulfilment of its obligations if the non-fulfilment is the result of circumstances beyond the control of the Party concerned (“force majeure”). Force majeure includes, among others, war, revolution, fire, explosions, earthquakes, floods, cyclones, tornadoes and other storms.
XI.2 In the event of force majeure, the affected Party shall immediately notify the other Party of such circumstances of force majeure. The affected Party undertakes to make every effort to mitigate and limit the effects or consequences of the force majeure. In addition, the Party concerned shall keep the other Party informed at all times until the circumstances of force majeure have ceased to exist. If the circumstances constituting force majeure last longer than a period of 3 months, the other Party may terminate this Agreement with immediate effect by registered letter and without mutual compensation.
The present Agreement binds both parties and their respective successors and legitimate claimants. Neither Party may transfer the rights and obligations under this Agreement to a third party except with the prior written consent of the other Party.
XIII. APPLICABLE LAW AND COMPETENT COURTS
Any dispute relating to the interpretation, content or execution of this Agreement between the Parties shall be governed by Belgian law. Only the courts of the place of the registered office of the Depositee shall have jurisdiction.
The total or partial invalidity or nullity of any provision of this Agreement shall not affect the remaining provisions. The Parties shall endeavour to replace the invalid or void provision in question with a valid provision that most closely matches the spirit and purpose of the invalid or void provision.