Article 1. - Scope of application
1.1 All our activities are exclusively governed by these general conditions which have been explicitly known and accepted by the client at the moment of entering into any contract with RAIL SERVICE NET BV.
1.2 Any deviation from these general conditions is only possible by written agreement between RAIL SERVICE NET BV and the client. Under no circumstances will the general conditions of the client be applied to the contract between RAIL SERVICE NET BV and the client.
1.3 In case of discussion the Dutch version of the general conditions prevails over the other language versions.
Article 2.- Quotes / Orders / Prices
2.1 Our quotations are valid for 60 days. Until the moment of acceptance by the customer, our offers are always without obligation and the prices can be changed without prior notice. The customer expressly agrees that orders will be carried out at the prices applicable on the day of delivery. In case a repair estimate (quotation) is made after the expertise of the goods and before the execution of the repairs, the offer is final only after acceptance of the estimate and after receipt of this acceptance by RAIL SERVICE NET BV.
2.2 Unless otherwise stated during the acceptance of an offer, all RAIL SERVICE NET BV's prices are "EX WORKS", as meant in the INCOTERMS 2020. All prices are also exclusive of VAT and other government levies.
Our prices are based on the wages, social charges and material prices in force at the time of the offer. In the event of an increase in our rates or the costs of the aforementioned components (when the increase occurs after acceptance of the offer but before the work or deliveries are carried out), the prices will automatically be adjusted proportionately.
2.3 With respect to tenders which have been accepted by the client but subsequently cancelled, RAIL SERVICE NET BV will be entitled, in accordance with article 1152 B.W., to claim immediate compensation for suffered damages and loss of profit amounting to 50% of the invoice amount, on the understanding that the minimum amount of compensation will not be less than 500,00 EUR. RAIL SERVICE NET BV will also be entitled to claim the actual damages suffered by it at the cost of the customer.
2.4 Unless expressly agreed otherwise, the assessment and (de)assembly costs, either on site or in our work house, will be invoiced to the client if no order follows the quotation.
Article 3. - Supply and delivery costs
3.1 All locomotives, wagons, wheelsets and other goods (e.g. spare parts) which have to be handled must be delivered by the client at his own risk, danger and expense to the RAIL SERVICE NET BV premises. If these expenses are advanced by RAIL SERVICE NET BV at the request of the client, these expenses will be recovered from the client, increased by bank and administration charges.
3.2 The delivery of the goods by RAIL SERVICE NET BV will take place the moment they leave the RAIL SERVICE NET BV's workplace, so that their transport is always at the risk and cost of the client.
Article 4.- Execution
4.1. All activities performed by RAIL SERVICE NET BV are carried out under normal circumstances and during normal working hours.
4.2. Under penalty of dissolution at the cost of the client, the client is not entitled to transfer his contract with RAIL SERVICE NET BV to a third party. In case of this RAIL SERVICE NET BV will be entitled to claim a compensation by analogy with article 2. RAIL SERVICE NET BV is entitled to outsource its activities to third parties at its own discretion without any influence on the contractual relationship between RAIL SERVICE NET BV and the client.
4.3. Delivery times quoted by RAIL SERVICE NET BV are purely indicative and do not bind RAIL SERVICE NET BV. In case of delays the client is not entitled to any fine or compensation of any kind or to the complete or partial cancellation of the contract, except in case of an intentional fault on the part of RAIL SERVICE NET BV or its appointees. Nevertheless RAIL SERVICE NET BV will make reasonable efforts to meet the delivery deadlines it has quoted.
4.4 In case the execution of the contract is delayed due to force majeure (i.e. any circumstance beyond RAIL SERVICE NET BV's control - even if it was foreseeable at the time the contract was concluded - which prevents fulfilment of the contract permanently or temporarily, as well as, as far as not already included, war, danger of war, civil war riots, strikes, lock out, transport difficulties, fire and other serious disturbances at RAIL SERVICE NET BV or its suppliers) becomes impossible, the agreement will be considered as dissolved by right or its execution will be suspended, without any compensation for the client.
4.5 In any case RAIL SERVICE NET BV will be entitled to consider the contract as terminated by right without prior notice in case of bankruptcy, opening of the procedure of judicial reorganisation or apparent insolvency of the client, or in case the client does not collect the ordered or repaired goods within thirty days, without RAIL SERVICE NET BV being obliged to pay any compensation and without prejudice to RAIL SERVICE NET BV's rights.
4.6 In case the activities are performed at RAIL SERVICE NET BV's premises (including but not limited to RAIL SERVICE NET BV's workshops, warehouses, company headquarters, ...) they will be delivered and accepted at that place before their eventual dispatch. In case the activities are performed at the client's premises or at his request at any other location, the client has the obligation to ensure - at his own expense - that RAIL SERVICE NET BV can perform its activities to the best of its ability.
4.7 Acceptance by the client of RAIL SERVICE NET BV's deliveries and performances is presumed as soon as the goods have left RAIL SERVICE NET BV's workplace.
4.8 Any complaint concerning performances of RAIL SERVICE NET BV must be notified by registered letter within 15 days after delivery, in absence of which it will not be accepted.
4.9 All used or damaged parts which are not recovered at the time of taking possession of the locomotive, wagon or any other repaired object become the property of RAIL SERVICE NET BV.
Article 5. - Retention of title / Right of retention
5.1 RAIL SERVICE NET BV retains ownership of the delivered goods until full payment of the price. Goods are shipped at the exclusive risk of the client, even if they are sent carriage paid or delivered by RAIL SERVICE NET BV's own services.
5.2 The various claims of RAIL SERVICE NET BV against a client/debtor will be considered as one single and indivisible claim, even if the claims result from various orders or if they are related to goods which are no longer in RAIL SERVICE NET BV's possession.
All goods of the client/debtor which are in RAIL SERVICE NET BV's possession will be used as a pledge and RAIL SERVICE NET BV is entitled to exercise a right of retention on them as soon as the client/debtor fails to pay the price for the delivered services and/or goods, even if RAIL SERVICE NET BV's claim is related to previous delivered services and/or goods or if the claim results from a contractual relationship of any kind with the same client.
RAIL SERVICE NET BV is only willing to give up her right of retention in exchange for a guarantee acceptable to her, such as a bank guarantee from a first-rate Belgian bank.
Article 6.- Payment
6.1 Unless otherwise agreed in writing or if a due date is explicitly indicated, our invoices are payable as well as cash and without discount at the registered office of RAIL SERVICE NET BV. Payment should be made to one of the bank accounts mentioned on the invoice. RAIL SERVICE NET BV's prior consent is required for any other payment methods.
The drawing of bills of exchange does not detract from this clause and any delay in payment will, by law and without prior notice, result in late payment interest calculated at 10% per year from the due date of the invoice.
6.2 The client accepts that any non-execution or only partial execution of a payment will be considered as a contractual error in accordance with article 1147 of the Civil Code whereby RAIL SERVICE NET BV is entitled to claim a fixed compensation (i.e. for additional costs, debtor's supervision and disruption of the commercial event) which will be determined at 10% of the invoice price with a minimum of 125,00 EUR by mutual agreement between RAIL SERVICE NET BV and the client.
This fixed compensation is due by right and without proof of default from the due date of the invoice and does not include the legal costs and the costs within the meaning of article 1022 of the Legal Code, being the fixed compensation for the fees connected with the assistance of a lawyer.
6.3 Any protest concerning invoices must be lodged within eight days after dispatch of the invoice by registered letter addressed to the registered office of RAIL SERVICE NET BV.
6.4 In case of non-payment on the due date RAIL SERVICE NET BV reserves the right to suspend current deliveries and repairs. Moreover, RAIL SERVICE NET BV reserves the right to consider the contract as dissolved by law and without prior notice of default in accordance with article 3 for the complete or partial execution of it which still has to take place.
Notwithstanding article 1583 of the Civil Code, RAIL SERVICE NET BV retains full ownership of the delivered goods until full payment has been made.
6.5 Unless agreed upon otherwise in writing with clients established within the EU but outside Belgium and having a VAT number, invoicing will be based upon the assumption that the locomotives, wagons, wheelsets and other goods, entrusted to RAIL SERVICE NET BV for repair or revision, will be released for free circulation outside Belgium as soon as possible after repair or revision.
6.6 Should RAIL SERVICE NET BV be requested to carry out repairs and should these exceed the amount of 250,00 EUR, RAIL SERVICE NET BV reserves the right to claim a commission or an advance payment prior to the repair works.
Article 7. - Warranty
7.1 Unless otherwise agreed upon in writing, all services rendered by RAIL SERVICE NET BV are subject to a 3 month guarantee from the moment the goods leave RAIL SERVICE NET BV's workshop.
7.2 The guarantee is exclusively limited to the repair of direct damage, more specifically the replacement of parts and/or performances of RAIL SERVICE NET BV which have been found defective. The guarantee covers only the work carried out, unless the parts are supplied by the customer. In that case the guarantee covers only the assembly work.
Article 8. - Liability
8.1. RAIL SERVICE NET BV enters into an obligation of means concerning the execution of its performances. RAIL SERVICE NET BV does not guarantee any specific result.
8.2. The burden of proof of fault or negligence rests entirely with the client.
8.3. RAIL SERVICE NET BV is not responsible under any circumstances for accidents which may occur as a result of e.g., but not limited to, breakage of a piece due to hidden or other defects. In case locomotives, wagons or any other equipment entrusted to RAIL SERVICE NET BV for repair or revision have to be driven by a RAIL SERVICE NET BV employee on the occasion of taking possession, delivery or test, this will always be under the full responsibility of the client.
8.4. The locomotives, wagons, wheelsets or any other goods (including all spare parts) which are entrusted to RAIL SERVICE NET BV for repair or revision stay at the RAIL SERVICE NET BV workshops at the client's risk and the liability cannot be invoked in case of accident, force majeure (theft, fire, ...), normal wear and tear of the goods and parts, decay through negligence, faulty supervision or maintenance of the client, a hidden and inherent defect of the goods and parts.
The client, his appointee and the persons accompanying them stay at the RAIL SERVICE NET BV premises under their entire responsibility and RAIL SERVICE NET BV will not be held responsible in case of any accident.
8.5. RAIL SERVICE NET BV is not responsible for any indirect damage (consequential loss, commercial or financial loss, ...) suffered by the client or third parties.
8.6. In any case, RAIL SERVICE NET BV's liability with regard to the services rendered is limited to the amount of its invoice, on the understanding that its liability will never exceed 10.000,00 EUR per incident.
8.7. The client is obliged to safeguard or indemnify RAIL SERVICE NET BV on demand against all claims of third parties for compensation of damages, for which RAIL SERVICE NET BV's liability is excluded in these conditions in its relation with the client.
Article 9. Deviations
Any deviation of one of the provisions of these general conditions does not imply the non-application of the other provisions of these general conditions and does not create any precedent under any circumstances.
Article 10. - Right of recourse
The VAT system is applied in accordance with the customer's instructions. In case these instructions lead to a revision or an assessment of the VAT administration, RAIL SERVICE NET BV reserves the right to recover this revision or assessment, as well as all related costs, from the client.
Article 11. - Personal details
The personal details provided by the clients of RAIL SERVICE NET BV for the proper execution of the contracts governed by these general conditions will be registered in the RAIL SERVICE NET BV database unless they are opposed at the moment of communication.
They are intended for internal use within our company and by our suppliers. Clients have the right to inspect their data and to request their correction or deletion in accordance with the provisions of the law of 30 July 2018 on the protection of individuals with regard to the processing of personal data (GDPR).
Article 12.- Applicable law and competent courts
The interpretation, validity and application of these general terms and conditions are subject to Belgian law. All disputes relating thereto are subject to the exclusive jurisdiction of the courts of the judicial district of Antwerp, without prejudice to the exclusive right of RAIL SERVICE NET BV to choose to submit the dispute to any other competent court.