General Terms

General Conditions of  RAIL SERVICE NET BV

 Article 1.- Scope

 1.1 All our activities are exclusively subject to the general conditions of RAIL SERVICE NET BV, which are explicitly known and accepted by the customer at the moment that each contract is made with RAIL SERVICE NET BV.

1.2 No deviation from these general conditions is allowed nor accepted, unless the customer and RAIL SERVICE NET BV expressly agree in writing. On no account and under no condition will the general conditions of the customer be applicable.

1.3 In case of discussion, the Dutch version of the general conditions prevails over the English version. 

  

Article 2.- Tenders / Orders / Prices

 2.1 Our tenders are valid for 60 days. Until the moment of acceptance by the customer, our tenders are always without engagement and the prices can be altered without prior notice. The customer explicitly agrees with the fact that the orders are executed at the prices valid on the day of the delivery. If a repair estimate (tender) is issued after survey of the products and before performance of the repairs, the tender will only become effective and final after acceptance of the estimate by the customer and after the reception of this acceptance by RAIL SERVICE NET BV.

2.2 Unless otherwise mentioned upon acceptance of a tender, all prices of RAIL SERVICE NET BV are “EX WORKS”, as intended in the INCOTERMS 2020. Furthermore, all prices are exclusive of VAT and other taxes imposed by the government.

Our prices are based on wages, social costs and prices of materials applicable at the time of the tender. In case of an increase of our tariffs or the costs of the above mentioned components (when the increase occurs after the acceptance of the tender but before performance of the works or deliveries), the prices will be adjusted automatically in proportion.

2.3 With regard to the tenders which are accepted but afterwards, for whatever reason, annulled by the customer, RAIL SERVICE NET BV will be entitled, in accordance with article 1152 of the Belgian Civil Code, to claim immediately, on account of a.o. suffered damage and loss of profits, an indemnity of 50% of the amount of the invoice, with a minimum indemnity of 500,00 EUR. RAIL SERVICE NET BV will also be entitled to claim the actual suffered damage from the customer.

2.4 Unless expressly otherwise agreed, the survey and (dis)assembly costs , either on site or at the premises of RAIL SERVICE NET BV, will be charged to the customer, if the tender is not followed by an actual order.

 

Article 3.- Costs of delivery.

3.1 All locomotives, wagons, wheelsets and other goods (e.g. spare parts) to be handled, are to be delivered at the premises of RAIL SERVICE NET BV at the customer’s  risk, expense and perils. If those expenses would be advanced by RAIL SERVICE NET BV, they will be claimed back, increased with bank and administration costs.  

3.2 The delivery of the goods by RAIL SERVICE NET BV takes place upon leaving the premises of RAIL SERVICE NET BV Accordingly, the transport of the goods is always at the customer’s risk and costs.

Article 4.- Execution

 4.1. All activities executed by RAIL SERVICE NET BV are executed in normal circumstances and during normal working hours. 

4.2. Under penalty of dissolution of the contract at the expense of the customer, the customer is not entitled to transfer the contract to a third party. In such case RAIL SERVICE NET BV will be entitled to claim an indemnity correspondingly with article 2. With regard to the execution of its activities, RAIL SERVICE NET BV is permitted to outsource them to third parties at its own discretion. The outsourcing of activities will have no influence at all on the contractual relation between RAIL SERVICE NET BV and the customer.

4.3. The terms of delivery provided by RAIL SERVICE NET BV are merely an indication and are not binding. In case of delay, the customer is not entitled to claim any penalty or compensation, nor the complete or partial dissolution of the contract, except in case of an intentional error by RAIL SERVICE NET BV or its employees.

4.4 In case the execution of the contract becomes impossible due to force majeure (this is any independent circumstance outside the control of RAIL SERVICE NET BV  - even if it was forseeable at the time that parties entered the contract - that temporarily or permanently obstructs the execution of the contract, as well as, if not yet included, war, risk of war, civil war, disturbance, strike, lock-out, difficulties of carriage, fire and other serious obstructions at RAIL SERVICE NET BV), the contract can as of right be considered as dissolved or the execution of the contract will be suspended, without any compensation for the customer.

4.5 Anyway, without prejudice to its rights, RAIL SERVICE NET BV is entitled to consider the contract as dissolved as of right without prior formal notice in case of bankruptcy, reorganization approved by the court or apparent insolvency of the customer, or in case the customer does not collect his ordered or repaired goods within 30 days. In such case, RAIL SERVICE NET BV will not be obliged to pay any indemnity. 

4.6 In case the activities are executed at RAIL SERVICE NET BV (a.o. but not restricted to the workhouses, warehouses, registered offices of RAIL SERVICE NET BV), the activities are accepted and delivered at that place and prior to a possible shipment. In case the activities are executed at the premises of the customer or, following his request, at any other place, the customer has the obligation to - at his own expense - make sure that RAIL SERVICE NET BV can execute its activities with due care.

4.7 The acceptance by the customer of the deliveries and services performed by RAIL SERVICE NET BV, is assumed on at the moment the wheelsets and other goods leave the premises of RAIL SERVICE NET BV.

4.8 Each claim concerning services performed by SAT N.V. must be notified by registered letter within 15 days after delivery. In absence thereof, the claim will not be accepted.

4.9 All used or damaged parts which are not reclaimed at the moment the customer takes possession of the wheelsets and any other goods, become the property of RAIL SERVICE NET BV.

Article 5.- Reservation of property / Right of retention

 5.1 RAIL SERVICE NET BV reserves itself the property of the delivered goods until full payment of the price. Goods are shipped at the sole risk of the customer, even when shipped prepaid or delivered by the own services of RAIL SERVICE NET BV.

5.2 The various claims of RAIL SERVICE NET BV against a customer / debtor, will be considered as one single and indivisible claim, even if they result from different orders and if they are in respect of goods that are no longer in the possession of RAIL SERVICE NET BV Up to the outstanding amount of the total claim, RAIL SERVICE NET BV is entitled to exercise all its rights and privileges, liens and securities.

All the goods of the customer / debtor that come into the possession of RAIL SERVICE NET BV, will be used as a pledge and RAIL SERVICE NET BV is entitled to exercise its right of retention on these goods as soon as the customer / debtor does not pay the price for the services and/or goods rendered, even if the claim of RAIL SERVICE NET BV relates to prior performances and/or goods rendered, resp. if the claim arises from any kind of contractual relation with the same customer.

RAIL SERVICE NET BV is willing to give up its right of retention in exchange for an acceptable security, like a bank guarantee of a first class Belgian bank. 

Article 6.- Payment.

 6.1 Unless stipulated otherwise in writing or if a due date is explicitly indicated, our invoices are deliverable and also payable in cash and without discount at the registered office of RAIL SERVICE NET BV Payment must be executed on one of the bank accounts mentioned on the invoice.

The drawing of bills of exchange is not detrimental to this clause and each delay in payment shall automatically and without prior formal notice generate  an annual interest of 10%, calculated as of the due date indicated on the invoice.

6.2 The customer accepts that each not executed or partially executed payment is to be considered as a contractual failure in accordance with article 1147 of the Belgian Civil Code, in which case RAIL SERVICE NET BV is entitled to claim an indemnity on a flat rate basis (a.o. for additional costs, debtor administration and commercial disruption), which is determined with mutual consent to 10% of the amount of the invoice, with a minimum of 125,00 EUR.

This fixed indemnity is automatically and without formal notice indebted as of the due date of the invoice and does include the judicial costs and the costs in accordance with article 1022 of the Belgian Judicial Code, being a compensation on a flat rate basis for the fees in connection with the assistance of a lawyer.

 6.3 Each protest with regard to an invoice must be notified to the registered office of RAIL SERVICE NET BV by registered letter within 8 days as of the sending of the invoice.

6.4 In absence of payment on the due date, RAIL SERVICE NET BV also reserves the right to suspend running deliveries and repairs. Moreover, in accordance with article 4, RAIL SERVICE NET BV reserves the right to consider the contract as dissolved automatically and without prior formal notice with regard to the complete or partial execution that still has to take place.

By way of derogation from article 1583 of the Belgian Civil Code, RAIL SERVICE NET BV reserves the complete property right of the delivered goods until the integral payment.

6.5 Unless agreed otherwise in writing with customers settled within the EU but outside Belgium who have a VAT number, the billing will occur based on the assumption that the locomotives, carriage coaches, wheelsets and other goods, entrusted to RAIL SERVICE NET BV for repair or revision, will be put in free circulation outside Belgium after the repair or revision as soon as possible.

6.6 If RAIL SERVICE NET BV is requested to perform repairs, which exceed amount of 250,00 EUR,   RAIL SERVICE NET BV reserves the right to demand a provision or an advance payment prior to the repairs.  

 Article 7.- Guarantee

7.1 Unless stipulated otherwise in writing, the performances of RAIL SERVICE NET BV are under a guarantee of 3 months as of the moment that the goods leave the premises of RAIL SERVICE NET BV.

7.2 The guarantee is exclusively limited to the repair of direct damage only, more specific the replacement of parts and / or performances by RAIL SERVICE NET BV found to be defective. The guarantee only covers the performed works, unless the parts are delivered by the customer. In that case, the guarantee only covers the assembly work.  

 Article 8.- Liability

 8.1. With regard to the execution of its performances, RAIL SERVICE NET BV only undertakes the obligation to act with due care. RAIL SERVICE NET BV does not commit to a specific result.

8.2.  With regard to failure or neglect, the burden of proof  solely lies with the customer.

8.3. Under no circumstances, RAIL SERVICE NET BV is liable for possible accidents which may occur due to, a.o. but not restrictive, a crack of a part caused by hidden as well as other failures . If locomotives, wagons or other goods, entrusted to  RAIL SERVICE NET BV for repair or revision, must be piloted during the taking possession, delivery or testing, this will always happen under the complete and exclusive liability of the customer.

 8.4. The locomotives, wagons, wheelsets and other goods (among which all spare parts), entrusted to  RAIL SERVICE NET BV for repair or revision, stay on the premises of RAIL SERVICE NET BV at the sole risk of the customer. RAIL SERVICE NET BV cannot be held liable in case of accident, force majeure (theft, fire, …), normal wearing of the goods and parts, deterioration by neglect, bad management or maintenance by the customer, a hidden and inherent failure of the goods and parts.

The customer, his employees and the persons who accompany the customer, reside on the premises of RAIL SERVICE NET BV at their own complete responsibility. RAIL SERVICE NET BV cannot be held liable in case on of them would be the victim of an accident.

8.5. RAIL SERVICE NET BV is not liable for any indirect damage (consequential loss, commercial or financial loss, …) suffered by the customer or third parties. 

8.6. In any case, the liability of RAIL SERVICE NET BV with regard to its performed services is limited to the amount of the invoice. The liability of RAIL SERVICE NET BV shall never exceed 10.000,00 EUR per loss. 

8.7. The customer is obliged to safeguard resp. reimburse RAIL SERVICE NET BV at first request concerning all third party claims for the reimbursement of damage, wherefore the liability of RAIL SERVICE NET BV towards the customer is excluded in these conditions.

 Article 9.- Deviations

Under no circumstances will a deviation from one of the articles of the present general conditions bring along the non-applicability of the other articles, nor will it create a precedent.

 Article 10.- Right of recovery

The VAT mechanism will be applied in accordance with the instructions of the customer. In case these instructions would lead to a revision resp. a claim from the VAT-administration,  RAIL SERVICE NET BV reserves the right to recover the revision resp. claim, as well as all costs in connection herewith, from the customer.

Artikel 11.- Personal data

The personal data, provided by the customer for the proper execution of the contracts subject to the present general conditions, are registered in the databank of RAIL SERVICE NET BV, except when protest is given at the moment the data is provided. The data is designated for internal use by RAIL SERVICE NET BV and its suppliers. The customer has the right to look into the data connected with him and to ask for a possible correction or removal in accordance with the stipulations of the law of July 30th 2018 concerning the protection of natural persons regarding the processing of personal data (GDPR).

 Article 12.-Applicable law and competent courts.

The interpretation, validity and applicability of these general conditions are subject to Belgian law. The exclusive competence for all disputes lies with the Antwerp courts, notwithstanding the exclusive right of RAIL SERVICE NET BV to present the dispute to another competent court.