- Unless otherwise agreed to in writing all services are performed in compliance with the conditions mentioned hereafter that take legal precedence over any other conditions of the co-contractors, which will therefore not be applicable. If a stipulation in these conditions becomes invalid, illegal or unenforceable in any manner, pursuant to any current and applicable law or regulation, it will be considered unwritten. The before mentioned invalidity, illegality or unenforceability will not affect the other stipulations in this Agreement.
- Insofar as this is not provided for in these General Conditions, the General Logistical Conditions, as published on http://www.transportenlogistiekvlaanderen.be/, shall apply, or, in the event of shipping, the General Belgian Shipping Conditions (published in the annex to the Belgian Official Gazette of the 24th of June under number 05090237).
- These conditions shall apply to any and all requests, offers, quotes, order confirmations and agreements, as well as to the services performed by H. Essers en Zonen Internationaal Transport NV and its affiliated companies (jointly referred to as “H. Essers” in these conditions) or any other third party appointed by H. Essers during these agreements. By assigning the order to H. Essers, the Client explicitly agrees that these conditions apply.
- Affiliated companies under these conditions are defined as follows:
a) the companies H. Essers en Zonen Internationaal Transport NV has power of control over;
b) the companies that have power of control over H. Essers en Zonen Internationaal Transport NV;
c) the companies with which H. Essers en Zonen Internationaal Transport NV forms a consortium;
d) the other companies who are under control of the companies as in a), b) and c),
- H. Essers is entitled to change or add clauses to these General Conditions unilaterally, without prior notice.
- Unless mentioned otherwise in special conditions, all orders are performed by H. Essers or any other third party appointed by H. Essers.
- All orders shall be given in writing. Orders by phone will only be considered final after written confirmation by the Client.
General Obligations of the Client
- The Client shall guarantee that the provided information is complete, accurate and correct. H. Essers shall not be presumed to examine the accuracy, completeness and authenticity of the information, instructions or documents given by the Client. H. Essers will accept all this information, instructions and documents in good faith.
- All customs related formalities shall be fulfilled by the Client and the Client shall be responsible to provide the necessary documents and information to H. Essers upon pick-up of the goods. If H. Essers is requested to perform customs services, and H.Essers accepts this, the Client shall inform H. Essers in a timely manner, provide H.Essers with all the necessary information (such as but in no way limited to: certificates of origin, customs value, customs classifications, etc.) and the Client agrees that these customs services are performed on the Client’s account and risk. H. Essers will only act as a direct representative, i.e. on behalf and for the account of the Client. If the customs authorities demand further documentation to verify the import/export declaration or a status in the customs procedure, it shall be the Client’s sole responsibility to submit the necessary documents at their own cost. If direct representation is operationally not possible, H. Essers will act as an indirect representative.
- The Client shall guarantee that, if applicable, all goods have the required registrations, licenses and authorizations. H. Essers does not accept goods or shipments i) of which the transport, transfer, storage or any other action is forbidden by any law or regulation, and/or ii) which have been excluded by H. Essers itself and/or iii) which do not meet the stipulations in these Conditions.
Transport and Related Activities
- In the event of transport orders (and related activities), the order shall contain all necessary information to allow H.Essers to successfully complete the order, such as but not limited to: pick-up and delivery dates, pick-up and delivery place, description of the nature of the goods, weight, dimensions, amount of packages, ADR data, specific qualities of the goods (e.g. asymmetric center of gravity), etc. The Client shall submit this information to H. Essers no later than 10 a.m. on the workday before loading.
- The Client guarantees that the pick-up and delivery place, including the grounds, are easily accessible. The grounds will always be passable.
- Unless in case of explicit, prior written instructions by the Client, H.Essers will decide autonomously on the means and conditions to complete the order. All transports are considered to be transports for goods without specific safety, transport and/ or temperature requirements and for which the use of specific vehicles are not necessary, unless requested explicitly before the performance by the Client and accepted by H.Essers.
- In the event of air freight transport, the Client shall inform H.Essers of shipments containing dangerous goods (as defined in the IATA Dangerous Goods Regulations) beforehand by means of a Dangerous Goods Declaration. The Client shall be responsible for the completion and accuracy of the content of this notice.
H. Essers always retains the right to refuse a load if it is not in compliance with the statements in the notice.
- All delivery and completion times are always indicative. All H. Essers’s commitments are best efforts commitments, unless i) this qualification as best efforts commitment would be incompatible with the nature of the relevant commitment or ii) it was agreed explicitly otherwise or iii) unless otherwise required by law.
- Goods are, unless agreed otherwise, picked up and delivered on working days between 8 a.m. and 5 p.m. The goods must therefore be made available in a timely, complete and correct manner to H.Essers at the agreed location, time and manner, whereby the goods are packed and marked sufficiently, efficiently and in accordance with the nature of the goods, and packaged in such way that they, on the one hand, can withstand transport under normal conditions and are, on the other hand, not a danger to the employees of H. Essers and/or could cause damage to third parties or third party goods. The Client shall guarantee that the packaging is in compliance with the stipulations of the “European Guidelines on the Securing of Cargo on road vehicles” (http://ec.europa.eu/transport/roadsafety/vehicles/best_practice_guidelines_en). The goods shall also be accompanied by all required documentation and other legally required documents.
- If goods have to be transported within a shorter time period than the period indicated by H. Essers, the transport will be considered an ‘express shipment’ and an additional surcharge will apply. The surcharge depends on the time and possibilities.
- The application of CMR articles 24 and 26 is explicitly excluded for any transport.
- Loading and unloading shall always be performed by the Client, the consignor or the consignee. Should the driver or any other person or party acting on behalf of H.Essers have to perform the loading and unloading, this activity shall also fall under the stipulations of the CMR Convention. The Convention relating to the Agreement for the International Carriage of Goods by Road of the 19th of May 1965 (hereafter referred to as “CMR Convention” also regulates all other (related) services performed by H. Essers. If the driver cannot or may not be present during loading, H. Essers will not accept any liability for the quality or quantity of the goods, the composition and content of the shipment nor for the accuracy of the packaging. In such case, H. Essers shall also not accept any liability for any overloading or securing of the goods.
- The risk of the transported goods will be transferred to H. Essers when the consignment note is signed off by the driver and ends when the goods are delivered at the time of the first reception on the address of the consignee. If a representative of the consignee is not present or if the grounds are not accessible or passable, H. Essers will be entitled to unload the goods at the first access gate, without the requirement of a signed consignment note. The Client will in that case carry the risk in relation to the goods.
- In the event of loss or damage, the Client and/or recipient shall have to inform H. Essers in writing of any reservation (i) no later than the time of delivery when it relates to visible loss or damage, as well as make a reservation on the consignment note, or (ii) within 7 days after delivery if it relates to invisible loss or damage. Any reservation shall specifically state the nature of the loss or damage. Any claim for damages shall be submitted to H. Essers within sixty (60) days after the performance of the order, in the absence of which any claim shall lapse.
Palettes and Other Packaging
- Palettes and other packaging (such as but not limited to gitter boxes) shall be returned within 15 days to H. Essers or shall be exchanged at the time of delivery for palettes of equal quality in accordance with the 80/20 rule, otherwise H. Essers will charge them to the Client at € 40/piece.
Storage and Related Activities
- If storage is required, the Client shall submit all information in relation to the goods with the request for storage. This information contains, but is in no way limited to: the number of goods, the nature of the goods, the qualification of the goods in terms of storage and other applicable regulations, etc. The Client shall in this regard, before the storage or when new goods are added, supply the MSD sheets and all other relevant information of all goods for which H. Essers will perform logistical services. The Client shall immediately inform H. Essers of all changes that occur during storage.
- The goods must be made available in a timely manner to H. Essers at the agreed location, time and manner, whereby the goods were packaged and marked sufficiently and efficiently, in accordance with the nature of the goods, and, on the one hand, packaged in such a way that they are suitable for the foreseen storage and required handling under normal conditions and will cause, on the other hand, no danger to the employees of H. Essers and/or could cause damage/danger to third parties or third party goods. The goods shall also always be accompanied by all required documentation and other legally required documents.
- When the transport arrives at H. Essers’ warehouses and after the goods were unloaded by the transporter, H. Essers shall inspect the goods for visible damage and compare the amounts to the information on the CMR consignment note. H. Essers may make any reservations on the CMR consignment note or pass on remarks to the Client.
- H. Essers shall only be liable for stock differences if after an annual stock renumeration a difference remains that is higher than 0.5% of the total annual volume of the handled goods (inbound + outbound) , whereby positive and negative stock differences are settled, and this only for the amount exceeding 0.5% of the actual production cost of the lost or damaged goods. Stock differences are compensated at the purchase or production cost of the lost goods.
- H.Essers’ liability in connection to national and international transport and related activities (irrespective of the chosen modalities) shall be exclusively governed by the CMR Convention. Liability in relation to the transport of air freight shall be managed by the Warsaw Convention (International Convention of the 12th of October 1929 for the unification of certain rules for international carriage by air) and by the Montreal Convention (Montreal Convention of the 28th May of 1999 for the unification of certain rules for international carriage by air).
- In terms of storage and related activities, H. Essers shall only be liable for visible damage that is the direct and exclusive result of a fault of H.Essers. H. Essers’ liability for damaged and/or lost goods shall always be limited to their purchase or production costs and shall at all times be limited to 8.33 STR/kg, whereby H. Essers will not intervene if the damage is less than € 500.
- H. Essers shall never be liable for indirect, immaterial, non-pecuniary and/or consequential damage. This exclusion includes, irrespective of the given classification and without being in any way limited to: damage from loss of profit, commercial losses, damage as a result of loss of production, employee costs, administrative costs, third party claims, damage to reputation or image and/or damage as a result of data loss.
- The general, contractual and extra-contractual, liability of H. Essers is, insofar legally permitted, limited to a maximum of € 25,000 per occurrence and to € 75,000 in the annual aggregate.
- Unless stated otherwise in binding legislation, the Client shall, in the event of loss or damages, file a complaint or claim with H. Essers no later than 7 days after the damage or loss was ascertained. Any complaint or claim shall specifically state the nature of the loss or damage. Any claim for damages shall be submitted to H. Essers in writing within sixty (60) days after the damage was ascertained, in the absence of which any claim shall lapse.
- In case H. Essers has to fulfill custom formalities, as described in article 9 of these conditions, H. Essers shall only be liable for the direct proven damage, loss or cost/ fine of which the Client can demonstrate that this damage, loss or cost can directly and exclusively be attributed to a willful misconduct of H. Essers or when the Client can demonstrate that H. Essers processed the timely received correct information incorrectly and the Client itself can prove they acted in accordance to this terms and conditions. H. Essers’ liability shall in these cases always be limited to a maximum of € 10,000 in the annual aggregate.
- H. Essers shall never accept any liability for the technical and/or chemical composition of the goods. H. Essers shall never presumed to inspect this composition.
- H. Essers shall never accept any form of product liability. The Client shall be responsible to insure its goods.
- H. Essers shall not be liable in the event of force majeure or in case of any other circumstance outside the control of H. Essers or over which H.Essers does not reasonably have any control and that makes the fulfillment of their obligations reasonably difficult or impossible. Furthermore, H.Essers shall not accept any liability in the event of concealed defects or defects in terms of the content of the shipment, or in the event of fire and related events and/or criminal acts of third parties such as theft or arson or in the event of any negligence by the Client or any person acting on behalf of the Client.
- The Client shall indemnify and hold H. Essers harmless against any and all damage, loss, liability, claim, cost and/or fine following a) the action or negligence of i) the Client, ii) people acting in the Client’s name or based on the Client’s information or instruction, or b) due to the nature of the goods or c) a violation of the articles in this document. The Client shall also indemnify and hold H. Essers harmless against any and all claims, costs or any other demand from any other party that exceeds the liability that H. Essers accepts in these General Conditions.
Rates and Payment Terms
- All rates are in Euro (€) and are exclusive of VAT, possible road tax and other taxes, levies or surcharges, unless otherwise stated by H. Essers. The currency exchange risk is always for the Client. The rates in an offer remain applicable for a 15 day period.
- All rates are based on the current rates, costs, levies, employment conditions and fuel prices, whereby they are offered based on the information that was provided by the Client. If one of these factors changes, or in case of new cost price elements or new data, H.Essers is entitled to change the rates accordingly and retroactively. The rates does not include the fuel surcharge and toll, unless H. Essers indicates otherwise. The fuel surcharge, which is reviewed monthly, unless agreed explicitly otherwise, depends on the average diesel price of the previous month, as communicated by the government, and is linked to the share of the diesel in the transport cost price.
- H. Essers is entitled to charge a surcharge in the event of specific circumstances, unforeseen costs, waiting hours, unforeseen and/or not-agreed activities. Such surcharge shall be determined by H.Essers in good faith.
- Payments shall be made within the time period stated on the invoice. If no time period is mentioned on the invoice, payment shall be made within 30 days after the invoice date.
- H. Essers will not provide any security from its own resources. The payment of customs duties or any other form of security that was paid by H. Essers shall be refunded by the Client on first request and in no way later than 7 days after the first request.
- If payment is late, the defaulting party shall legally and without prior notice owe late payment interest calculated at a conventional interest rate of 10% starting on the due date until the day the payment has been made in full.
The defaulting party shall also owe a fixed compensation for the extrajudicial collection costs for an amount of 10% of the amount that was not paid, with a minimum of € 100. H. Essers is also entitled to charge an additional surcharge of € 15 per invoice when payment is late to cover additional administrative costs.
- H.Essers has a right of retention on the goods. Set-off is never allowed.
- H. Essers will be entitled to invoice 70% of the rates if the Client cancels the order after 4 p.m. on the day before the loading or if the pick-up was unsuccessful. In case of cancellation of special, express or dedicated transports, H.Essers is entitled to invoice the full transportation cost at 100%.
- If H. Essers has to load less than ordered, the ordered amount shall be taken into account and compensated. If H. Essers has to load more, it will be settled against the actual load. Additional orders are possible if this is practically feasible and may incur extra charges.
- If the Client is bankrupt, in the event of suspension of payment, court composition, bankruptcy or other form of collective debt settlement of one of the parties or in case the Client cannot fulfil its obligations, H.Essers is entitled to demand immediate payment of all outstanding balances. Possible permitted postponement of payment will in this case lapse ipso jure.
- Unless agreed otherwise, complaints in relation to services provided shall be sent to H. Essers within 7 days after the receipt of the invoice in writing and via registered mail.
- Unless stated otherwise in binding legislation, any claim under this Agreement shall lapse 12 months after the damage was ascertained.
- Contestation, damage or loss may never give rise to partial payment or non-payment. The Client waives any form of set-off in relation to unpaid balances.
- H.Essers shall retain the right to demand strict adherence to the stipulations in these General Conditions. Not demanding strict adherence or not invoking certain articles does not constitute a waiver of rights.
- The Commercial Courts of Antwerp, Division Tongeren shall have exclusive jurisdiction over all disputes which may arise between the parties. The terms and conditions, as well as any order, is governed exclusively by Belgian law.