General conditions

GENERAL TERMS AND CONDITIONS OF

Captrain Belgium NV

Mensura House, Italiëlei 2, 2000 Antwerp, Belgium

 1.             DEFINITIONS

Unless indicated otherwise the following terms shall be used throughout with the meanings as defined below:

2.             GENERAL

2.1           The applicability of the general terms and conditions which are used by the Client is hereby specifically rejected.

2.2           The General Terms and Conditions shall apply to all the legal situations in which CAPTRAIN BELGIUM shall act a provider of Train Services.

2.3           Any deviation from the General Terms and Conditions may take place only by agreement in writing between CAPTRAIN BELGIUM and the Client.

2.4           In the General Terms and Conditions, by ‘in writing’ shall also be understood ‘by fax’ or ’by e-mail’.

3.            OFFERS AND ORDERS

3.1           All the offers from CAPTRAIN BELGIUM are without obligation and shall remain valid for 1 (one only) month after the date on which the offer was presented.

3.2           An order from the Client shall be fulfilled only if it contains the following information:

(a)           name and address of the Client;

(b)           date and place of Loading and, where it differs from the  place of Loading, details of the place of departure of the Freight;

(c)           quantity, type, weight, mass and dimensions of the Freight;

                                (d)           place of destination of the Freight

(e)           the number of Wagons, mass and weight per Wagon, type of Wagon (open or closed);

(f)            the number of wagons supplied by the Client including details of mass and weight per wagon and type of wagon (open of closed);

                                (g)           the number of Containers.

4.            FORMATION OF CONTRACTS

4.1           CAPTRAIN BELGIUM shall have the authority at all times to break off negotiations with the Client without being required to cite reasons and without obligation to pay compensation.

4.2           A Contract between CAPTRAIN BELGIUM and the Client is formed as soon as CAPTRAIN BELGIUM has confirmed the order from the Client in writing or CAPTRAIN BELGIUM has received the offer made by CAPTRAIN BELGIUM and signed by the Client and, contrary to the Train Services, where it concerns haulage contracts, when CAPTRAIN BELGIUM has received the Freight. If a consignment note has been drawn up it shall be deemed to be an order. In that case the Contract comes into being by the fact that a date stamp is placed on the consignment note.

5.            CONSIGNMENT NOTE

                Unless agreed otherwise, the consignment note must be drawn up in accordance with the example printed in the Operational Plan and in accordance with Article 56 of the General Transport Regulations (ARV) and/or applicable international regulations. CAPTRAIN BELGIUM may charge a fee for drawing up a consignment note.

6.            LOADING AND UNLOADING

6.1           Unless agreed otherwise, Loading and Unloading of the Wagons and Containers by or on behalf of the Client shall take place at the locations and times of which the Client was notified by CAPTRAIN BELGIUM in writing and also as stated in the Operational Plan.

6.2           The Client is bound to ensure that the wagons and containers are loaded in the prescribed, permitted manner, taking into account the correct distribution and lashing down of the load in the wagons and the containers and any other loading instructions provided by CAPTRAIN BELGIUM. Should SNCF  FRET BENELUX find that loading has not taken place in accordance with the instructions in the previous sentence, it is entitled to apply appropriate measures including correcting the incorrect loading and removing the freight. The Client shall be liable for all damage and losses, costs and fines which CAPTRAIN BELGIUM may suffer through or in connection with its failure to fulfil this obligation.

6.3           CAPTRAIN BELGIUM shall inspect the wagons as well as the Wagons for Loading made available by the Client for their suitability and for visible defects and shall inform the Client if any are found to be unsuitable or to have defects. If the Client made wagons available, replacement of unsuitable or defective wagons shall be the responsibility of the Client, unless agreed otherwise.

                If CAPTRAIN BELGIUM makes Wagons and/or Containers available to the Client, the latter shall inspect them for their suitability and visible defects and if any are found to be unsuitable or defective the Client shall make this known to CAPTRAIN BELGIUM. The Client shall be liable for all damage to the Wagons and/or Containers that is found when the Wagons and/or Containers are returned and that the Client failed to report to CAPTRAIN BELGIUM as required by virtue of this article.

6.4           CAPTRAIN BELGIUM is liable for the Freight, unless agreed otherwise or agreed differently in these terms and Conditions, from the time when Loading is completed until the time when Unloading commences. On occasions when CAPTRAIN BELGIUM or a third party collects Freight from the Client on the instructions of CAPTRAIN BELGIUM, CAPTRAIN BELGIUM shall be liable for the Freight from the moment that the Freight has been placed at its disposal or that of the third party acting on its instructions in accordance with Article 74(2) of the General Transport Regulations (ARV).

6.5           The Loading and Unloading must take place within four (4) hours from the loading or unloading time indicated by CAPTRAIN BELGIUM, unless agreed otherwise. Should the stipulated number of hours be exceeded, a stabling fee, as referred to in the CAPTRAIN BELGIUM charges shall be charged. The loading is completed as soon as CAPTRAIN BELGIUM has received a written notice to that effect from the Client or the loader or the Terminal.

6.6           The Client undertakes to make the Wagons and Containers available after Unloading completely empty, clean, complete and in undamaged condition to CAPTRAIN BELGIUM at the agreed time and location.

6.7           If any obstacles arise during the haulage and it is not possible for CAPTRAIN BELGIUM to obtain instructions from the Client within a reasonable time, CAPTRAIN BELGIUM is entitled to make arrangements at its own discretion. CAPTRAIN BELGIUM shall not be liable for the freight during delays in the haulage unless it has sustained damage through acts or omissions on the part of CAPTRAIN BELGIUM that has occurred either with the deliberate intention of causing such damage or recklessly and in the knowledge that such damage would be the likely result. Costs relating to obstacles during haulage shall be for the account of the Client.

7.            CUSTOMS AND OTHER FORMALITIES

7.1           Any customs documents concerning the Freight that may be required shall be drawn up by the Client and must be included by the Client with the consignment note in compliance with Article 64 of the General Transport Regulations (ARV) and/or applicable international regulations. The customs documents must be valid for no less than 5 (five) calendar days after completion of the Unloading.

7.2           If haulage is delayed or if customs or another government department seizes the Freight or a charge is laid because of a failure to provide customs or other documents or because of incomplete, invalid or incorrect documentation, CAPTRAIN BELGIUM shall have the right, independently and without prior consultation with the Client, to carry out the resultant formalities on behalf of the Client, without any liability being accepted by CAPTRAIN BELGIUM. The Client indemnifies CAPTRAIN BELGIUM against all claims in connection with this and is bound to pay all the costs, damages and fines incurred by CAPTRAIN BELGIUM as a result of or in connection with this, including legal and/or tax-related aid.

7.3           A consignment note issued by or on behalf of CAPTRAIN BELGIUM may never serve as or be used by the Client as a customs document. Should CAPTRAIN BELGIUM nevertheless be held liable on those grounds for the payment of any customs or related duty such as excise duty, VAT, etc. the Client shall immediately when requested by CAPTRAIN BELGIUM provide security for the payment of that type of duties, possible fines, etc. in the form desired by CAPTRAIN BELGIUM.

8.            TRANSPORT OF DANGEROUS SUBSTANCES

8.1           If the Client presents Dangerous Substances for haulage, all applicable legislation with regard to the packaging, labelling and transportation of Dangerous Substances as well as other conditions and instructions imposed by CAPTRAIN BELGIUM must be complied with by the Client and in respect of the Dangerous Substances all declarations must be made that the Client is capable or should be capable of making, or concerning which it knows or should know that they are important to CAPTRAIN BELGIUM in its capacity as transporter. Should the Client fail to do this, CAPTRAIN BELGIUM is entitled to refuse to transport the Freight and to hold the Client liable for any resultant loss or damage. All the costs in connection with the haulage of Dangerous Substances are for the account of the Client.

8.2           The Client guarantees that it shall take all measures that are required for the safety of the haulage of Dangerous Substances from Loading to Unloading inclusive. CAPTRAIN BELGIUM shall have the right to demand a written guarantee from the Client in respect of this matter. Should the Client fail to do this, CAPTRAIN BELGIUM is entitled to refuse to transport the Dangerous Substances.

8.3           If a situation should arise during the haulage of the Dangerous Substances that leads to the need to take immediate measures or if the Client has failed to provide all the declarations, or has provided incomplete or incorrect details in respect of the Dangerous Substances, CAPTRAIN BELGIUM is entitled to unload or destroy the Dangerous Substances or have them rendered harmless or to give instructions to this effect and to cancel the Contract, without obligation to compensation and without prejudice to the right of CAPTRAIN BELGIUM claim compensation from the Client for the losses or damage, costs, fines, etc. it has suffered as a consequence.

8.4           Dangerous Substances shall not be taken into storage by CAPTRAIN BELGIUM. This shall also apply in the event that loaded Wagons are stabled along the Route.

8.5           CAPTRAIN BELGIUM shall only stable Containers in which Dangerous Substances are transported and which have not been cleaned after Unloading by or on behalf of the Client, if this was agreed in advance in writing, on the understanding that the duration of the stabling time is never longer than 1 (one) month.

8.6           The Client must indemnify CAPTRAIN BELGIUM against all claims from third parties, including  employees and non-employees of CAPTRAIN BELGIUM, arising out of or in connection with the haulage of Dangerous Substances, without prejudice to the provisions of Article 8:1673 (1) of the Netherlands Civil Code.

9.            WEIGHING, COUNTING, MEASURING

CAPTRAIN BELGIUM shall not be required to weigh the Freight, to determine the numbers or dimensions or to weigh the empty or loaded Wagon(s) before departure. If it complies with the Client’s requests to do so, CAPTRAIN BELGIUM shall charge the Client for the associated costs.

10.          PERSONNEL

10.1         Personnel that is used by CAPTRAIN BELGIUM to carry out the Train Services shall be directed and supervised by CAPTRAIN BELGIUM. The Client is not entitled to give instructions to the personnel used by CAPTRAIN BELGIUM.

10.2         CAPTRAIN BELGIUM shall have the right to replace any personnel used to carry out the Train Services at any and all times during the performance of the services.

11.          DELIVERY TIMES

Where CAPTRAIN BELGIUM has agreed on a delivery date with the Client, this date will not be a strict deadline. CAPTRAIN BELGIUM shall not be in default in respect of the agreed delivery date until it has received written notice of default and has, after a reasonable extension of time, failed to meet the arranged deadline.

12.          ELECTRONIC MESSAGES

If CAPTRAIN BELGIUM and the Client agree to the exchange of information by electronic means other than e-mail, the conditions concerning this shall be laid down in a supplementary agreement.

13.          CHARGES

13.1         All charges for haulage and other services provided CAPTRAIN BELGIUM are set out in a list of charges of CAPTRAIN BELGIUM, unless agreed otherwise in writing between the Parties. The charges that are valid are those contained in the most recent list of charges. All amounts are cited exclusive of VAT.

13.2         If the contract is concluded for a longer term and the Client has undertaken to provide a certain amount of Freight, the Client shall be required to make a compensatory payment when less Freight is supplied than agreed. The way this compensatory payment is calculated shall be laid down in the Contract and if this is not the case, it shall be determined by CAPTRAIN BELGIUM on the basis of its current rates.

14.          PAYMENT

14.1         Payment by the Client must be effected within 21 (twenty-one) calendar days after the invoice date.

14.2         If requested by CAPTRAIN BELGIUM, the Client is bound to pay a deposit or the entire amount owed before the execution of the Contract within a term determined by CAPTRAIN BELGIUM.

14.3         Payments made by the Client must be made in no other currency than that in which the prices were stated, and no offset, discount or suspension shall be allowed.

14.4         All costs relating to payment, including the provision of security, are for the account of the Client.

14.5         If the agreed date for payment is not met, the Client shall owe the statutory interest rate on commercial transactions on the outstanding invoice amount until the full amount has been paid, without prejudice to the rights of CAPTRAIN BELGIUM and without prior notice of default being required. All outstanding invoices shall be immediately payable and all consequences of non-payment shall take effect without delay.

14.6         All extrajudicial costs, with the specific inclusion of the costs incurred for the drawing up and sending reminder and warning notices, conducting negotiations to reach a settlement and other activities to prepare for possible legal action, as well as all judicial costs, which CAPTRAIN BELGIUM is in all reasonability required to incur in consequence of the Client’s failure to pay, shall be for the account of the Client.

14.7         Payments made by the Client shall in the first instance be used in settlement of the costs owed as per Article 14.6 and after that in settlement of interest owed. Payment will then be used in settlement of that part of the principal sum designated by CAPTRAIN BELGIUM, irrespective of other instructions in the matter by the Client.

15.          SECURITY AND RIGHT OF PLEDGE AND RETENTION

15.1         Should there be grounds to suspect that the Client will not fulfil its obligations vis-à-vis CAPTRAIN BELGIUM properly or in time, the Client shall be obliged when required by CAPTRAIN BELGIUM, to provide immediate security, in a form as desired by CAPTRAIN BELGIUM, for the full payment of its (payment) obligations or to replace or supplement the security that has already been provided. If the Client fails to comply within 7 (seven) days after a request for the provision of security was received, all consequences of non-compliance shall take immediate effect.

15.2         In respect of all the claims it has or may have against the Client, CAPTRAIN BELGIUM has the right of pledge or retention on allproperty, documents, and moneys which CAPTRAIN BELGIUM for whatever reason has or shall have in its custody. When request by CAPTRAIN BELGIUM the Client shall provide all such cooperation as may be required for the establishment of a pledge.

16.          LIABILITY

16.1         In the case of damage or loss as a consequence of the complete or part loss of or damage to wagons and/or Freight provided for haulage by the Client and as a consequence of a delay in their/its delivery, the Parties apply the liability regime, the limitations of liability and limitation and expiry periods as laid down in the Uniform Rules Concerning the Contract for International Carriage of Goods by Rail(CIM – Annex B to the Protocol of 3 June 1999 for the Modification of the Convention concerning International Carriage by Rail (COTIF) of 9 May 1980), irrespective of whether the Route is a national or an international one but without prejudice to the mandatory national legislation to which a national Route may be subject.

16.2         CAPTRAIN BELGIUM has taken out insurance cover for any liability on its part as referred to in paragraph 1 of this article with an insurance company of good name and reputation.

16.3         CAPTRAIN BELGIUM shall never be liable for consequential loss or damage, which may be understood to include loss of profit, loss of market, losses  or costs that have been incurred, as well as missed orders and missed savings, damage or loss on account of interruption to production or business operations or stoppage.

16.4         CAPTRAIN BELGIUM shall not be liable for damage or loss caused intentionally or through gross negligence on the part of its employees and/or non-employees for whom it is responsible by law or treaty.

16.5         CAPTRAIN BELGIUM insists on all legal and contractual rights which it can call on to contest its own liability and also in respect of all who are involved in the execution of the Contract.

16.6         For the execution of the Contract CAPTRAIN BELGIUM may involve third parties and shall at all times have the right to invoke limitations of liability in respect of those third parties vis-à-vis the Client.

17.          EARLY TERMINATION OF THE CONTRACT

17.1         Either of the Parties may terminate the Contract with immediate effect by giving notice by registered letter to the other party as soon as one of the following occurs:

(a)           the other Party gives notice of having been declared bankrupt, is declared bankrupt or has applied for suspension of payment, a liquidator is appointed for the other Party or another similar event has occurred in respect of the other Party or a significant part of its capital in a country other than the Netherlands;

(b)           the other Party is dissolved or ceases to operate its business or a significant part of its business or it has been decided to cease business activities;

(c)           changes have occurred in the (legal) persons who have the authority to determine the management and policy of the other Party:

(d)           the other Party continues to fail to fulfil any obligation under the terms of the Contract, notwithstanding the outcome of a written notice allowing 14 (fourteen) days to rectify the matter.

17.2         CAPTRAIN BELGIUM shall furthermore have the right to terminate the Contract with immediate effect, if the Client does not fulfil its obligations as laid down in Articles 8.1 and 8.2 of the General Terms and Conditions.

18.          FORCE MAJEURE

18.1         Unless stipulated otherwise below, and without prejudice to mandatory statutory national and international provisions, neither of the Parties shall be liable for any shortcoming or delay in its obligations where such shortcoming is the consequence of Force Majeure.

18.2         The term "Force Majeure" as used in this Contract, shall mean every circumstance, the cause of which cannot in all reasonability be attributed to the Party invoking the Force Majeure and which affects the fulfilment of the obligations by that Party and shall, without restriction, also include regulations issued or about to be issued by a government authority that limit or obstruct that party’s ability to fulfil its obligations, strikes, lockouts or industrial disputes or disturbances, civil unrest, actions or omissions of third parties, fire, storms, flooding, explosions, terrorist attacks or the threat of such attacks, hold-ups in the haulage and the impossibility of obtaining or keeping the required authorizations or permits.

18.3         As soon as an event occurs that results in Force Majeure, the affected party shall take all measures as may be reasonably considered necessary to enable it to fulfil its obligations as soon as possible. The parties, shall, if necessary, jointly investigate measures that need to be taken to limit the consequences of the Force Majeure.

18.4         In the event that a Party wishes to invoke Force Majeure, that Party shall speak to the other Party about this as soon as possible, though in any case no later than 24 (twenty-four) hours after discovering the Force Majeure situation. This oral notification shall be followed by written notification from the Party invoking Force Majeure in respect of the other Party within 72 (seventy-two) hours after the discovery. If the Force Majeure lasts longer than 7 (seven) calendar days the Party not affected by the Force Majeure is entitled to terminate the Contract.

19.          CONFIDENTIALITY

19.1         Both Parties bind themselves never to disclose information concerning the Contract or to use it in a way that could harm the other Party excepting:

                (a)           where provided for by applicable law or imposed by public authority, but in that case only after consulting with the other Party about the time and the contents of the disclosed information;

                (b)           to its professional advisers under an injunction of secrecy and only in so far as necessary for a legal purpose;

                (c)           where this information was made public on or after the date of the Contract.

19.2         Parties bind themselves to also impose this duty to confidentiality on their employees and non-employees employed by them in the execution of the Contract

20.          ASSIGNMENT TO OTHERS

20.1         Neither of the Parties may assign a right or obligation or several of its rights or obligations arising from this Contract to a third party without prior written permission from the other Party.

20.2         Permission for such assignment shall not be required where the assumer is part of the same group within the meaning of Article 2:24b of the Netherlands Civil Code as the assigning Party and the assigning Party guarantees compliance under the Contract and the assigning Party additionally guarantees that the Contract shall be taken back by the assigning Party before the assumer ceases to be part of the group.

21.          PARTIAL INVALIDITY

If any provision of the General Terms and Conditions of the Contract becomes invalid, unlawful, nonbinding or not able to be executed (in their entirety or in part), the remaining provisions of the General Terms and Conditions of the Contract shall continue to exist. The Parties shall do everything possible to reach agreement about a new provision that departs as little as possible from the invalid, unlawful, nonbinding or impossible to execute provision while keeping in mind the content and purpose of the General Terms and Conditions of the Contract.

22.          APPLICABLE LAW AND THE COMPETENT COURT

22.1         All legal relationships between CAPTRAIN BELGIUM and the Client shall be governed by the laws of Belgium where train services begin or end in Belgium, and are governed by the laws applicable in the Netherlands for train services which begin or end in the Netherlands.

In the case of train services performed between Belgium and the Netherlands, Belgian laws shall apply.

22.2         Without prejudice to the provisions of any treaty, the competent court in Rotterdam shall have exclusive jurisdiction to hear any and all disputes that may arise between CAPTRAIN BELGIUM and the Client from or in relation to (the execution of) the Contract as well as in relation to the General Terms and Conditions.