This text aims to set out the conditions under which the Services of Armos BV, with registered office at 2180 Antwerp, Kapelsesteenweg 611, are provided. In these terms and conditions (the “Terms”) the following definitions shall apply:
“the Client”: the Freight Forwarder’s client on whose instructions or for whose account the Freight Forwarder provides Services, information or advice, free of charge or for a fee.
“the Freight Forwarder”: Armos BV, having its registered office at 2180 Antwerp, Kapelsesteenweg 611 and registered in the Crossroads Bank for Enterprises with the number 0437.311.533.
“the Service”: any order of shipment of Goods offered, accepted for execution or executed by the Freight Forwarder, any related acts and any information or advice therefor.
“the Goods”: all Goods, including their packaging, entrusted or to be entrusted to the Freight Forwarder by the Client. This includes all trade goods, as well as any titles or documents representing or to represent such Goods
“the Owner”: the Owner of the Goods, to which the Service provided by the Freight Forwarder relates.
“Third Parties”: the non-contracting parties, in particular the natural or legal persons with whom the Freight Forwarder acts in performance of its obligations.
Unless expressly agreed in writing, these conditions shall prevail over any previous and/or conflicting conditions stipulated by the Client, in particular its purchase conditions, its order forms or any previous contract. Any commitment or transaction with the Freight Forwarder shall be considered as acceptance without reservation of these terms and conditions by the Client. Acceptance of the Freight Forwarder’s offer includes acceptance of the general terms and conditions.
The terms and conditions may be amended at any time at the Freight Forwarder’s discretion and are available on the website www.armos.be The applicable Terms are those in force on the date of the order placed by the Client.
These conditions shall not constitute a waiver by the Freight Forwarder of any right, nor shall they give rise to any greater liability than that to which he would be liable under any law or regulation applicable in addition to these terms
FREIGHT FORWARDING SERVICES In the performance of Services, the Freight Forwarder shall always act as a forwarding agent (commisionaire-éxpediteur) under Belgian law: his duty is limited to forwarding Goods, either in his own name or in the name of his Client, but always on the latter’s behalf, and pursuant thereto, to providing only such Services as may be necessary in respect thereof, performing only such formalities and concluding such agreements as are necessary for such purpose. The Freight Forwarder does not subscribe to any transport commitments.
TITLE TO THE GOODS The Client confirms that the Goods, which he entrusts to the Freight Forwarder as a result of his order, are his property, or that he may dispose of these Goods as the Owner’s agent, so that he accepts these conditions not only for himself but also for his principal, as well as for their Owner.
CONCLUSION AND EXECUTION OF THE AGREEMENT
Unless otherwise stipulated or in case of external cause independent of the Freight Forwarder’s will, any offer made by the Freight Forwarder shall be valid for a period of 8 days. It is based on existing rates, wages, freight and exchange rate quotations and data subject to change, valid on the date the quotation is sent to the Client. If one or more of these factors change, the prices offered shall also be changed accordingly and retroactively. The Freight Forwarder shall at all times be entitled to charge to the Client all amounts, which were charged to him as a result of incorrectly charged freights, costs or rates by Third Parties.
The Client undertakes to notify the Freight Forwarder, prior to or at the latest at the time of order confirmation, of any useful information, in particular concerning the nature of the Goods, the method of shipment, the place of dispatch and destination, the desired dispatch sequence as well as and in particular any information or knowledge attributable to the Client as manufacturer, trader, Owner or consignor of the Goods and of a nature to ensure their preservation, shipment, arrival or delivery at their destination.
The Freight Forwarder is not expected to examine the correctness of the information provided by the Client, nor the authenticity or regularity of the documents provided by the Client, and these are accepted in good faith.
In the absence of any precise instructions or special agreement to the contrary, the Freight Forwarder shall be free to choose the means to be employed to organise and perform the Services to the best of its ability, in accordance with normal commercial practice, including groupage of the Goods.
The Freight Forwarder shall be entitled to charge lump sums for his fees due in respect of his expenses and interventions.
In carrying out his assignment, the Freight Forwarder may rely on Third Parties and performance agents, who demonstrate normal professional competence. The intermediaries and subcontractors chosen by the Freight Forwarder shall be deemed to have been approved by the Client. The Freight Forwarder shall not be liable for any error or shortcoming by such Third Parties, executing agents, intermediaries and/or subcontractors.
Unless otherwise instructed, the Freight Forwarder shall be entitled to take charge of or retain any Goods which for any reason cannot be delivered and to store such Goods at the expense and risk of the Principal or of the Goods themselves. The Freight Forwarder may sell the Goods in accordance with the provisions of the Belgian Act of 5 May 1872 on Commercial Pledges for the purpose of collection of his claims. The Freight Forwarder may, subject to justification and to prior written notice to the Client, destroy, remove or sell dangerous, perishable, flammable, explosive or other Goods which may cause damage to persons, animals or property at the expense and risk of the Client.
The Freight Forwarder shall be entitled to suspend performance of the order if the Client fails in any way to fulfil its obligations or fails to do so adequately. In the event of force majeure, the agreement shall remain in force; however, the obligations of the Parties shall be suspended for the duration of the force majeure. For special services, unusual, particularly time-consuming or effort-consuming work, an additional fee may always be charged. Any additional costs caused by force majeure shall also be borne by the client. If the Goods are to be shipped under specific conditions (including but not limited to refrigerated Goods, dangerous Goods, …), the Client must provide all instructions regarding such Goods at least 24 hours before the Freight Forwarder or its subcontractor takes delivery of such Goods. If he fails to do so, the Freight Forwarder’s liability for not making available the specialised equipment for sending the Goods is excluded.
Unless otherwise agreed in advance and in writing, the Freight Forwarder shall not be required to guard the Goods intended for shipment or to have them guarded or insured, wherever the Goods are located, even in open air.
PAYMENT
The amounts or fees charged by the Freight Forwarder for the Services provided shall, unless otherwise expressly agreed in writing by the parties, be payable immediately on receipt of the invoice, at the place where it was issued. Losses due to exchange rate fluctuations shall be borne by the Client. All payments may be freely deducted by the Freight Forwarder from what is owed by the Client to the Freight Forwarder.
Any protest against any invoice or against the Services and amounts charged must be received in writing by the Freight Forwarder within 8 days following the invoice date.
The Client waives any right to invoke any circumstance under which he would be entitled to suspend some or all of its payment obligations and waives any set-off in respect of all amounts charged to him by the Freight Forwarder. Any offsetting of the amounts invoiced by the Forwarder, for whatever reason, is prohibited.
Where, exceptionally, specific payment terms have been agreed, they may in no case exceed 30 days from the date of issue of the invoice. Any partial payment will be deducted first from the unsecured part of the outstanding amounts, then from the secured part, then from the costs advanced, then from the other costs, and finally from the interest. Failure to pay an invoice when due will result in immediate forfeiture of any credit for other outstanding amounts due to the Freight Forwarder. In addition the Forwarder reserves the right to suspend new Services until the outstanding amounts are paid in full.
The Freight Forwarder shall not be assumed to provide security out of his own resources for payment of freight, duties, levies, taxes or any obligations whatsoever, should these be required by Third Parties. If the Freight Forwarder has provided security from his own resources, the Client shall be liable, upon the Freight Forwarder’s first written request, to pay to the Freight Forwarder, by way of security, any amount for which the Freight Forwarder would have provided security for the benefit of Third Parties.
Any non-payment, even partial, of an invoice on its due date shall, by operation of law and without notice of default being required, by the mere fact of non-payment, yield statutory interest as stipulated in Article 5 of the Belgian Act of 02/08/2002 on combating late payment in commercial transactions. If an invoice remains unpaid after the expiry of the deadline, the outstanding amount of the invoice shall be increased automatically and without notice of default being required by 10%, with a minimum of EUR 40 to cover economic and administrative losses, without prejudice to the Freight Forwarder’s right to prove the existence of greater damage.
OBLIGATIONS OF THE CLIENT The Client undertakes and warrants:
that the order and description of the Goods described by him is complete, correct and accurate;
that the Goods to be entrusted by him to the Freight Forwarder, are made available in a timely, complete and useful manner, adequately and efficiently loaded, stowed, packed and marked in accordance with the nature of the Goods and place of shipping or destination to which they are entrusted to the Freight Forwarder so that they can withstand the Services to be performed under normal conditions; The Freight Forwarder shall not be held liable for the consequences of the absence, inadequacy or defect of packaging, wrapping, marking and/or labelling, or of any defect relating to the protection of the Goods entrusted to it, in particular as a result of, inter alia, humidity, condensation, atmospheric phenomena, falling dust or foreign objects, lack of sufficient information on the nature and particulars of the Goods.
that all documents provided by him to the Freight Forwarder are complete, correct, valid, authentic and not improperly drafted or used;
that, unless the Freight Forwarder has been notified in advance and in writing, the Goods entrusted to him are not of a dangerous, perishable, flammable and/or explosive nature or nature which may otherwise cause damage to Third Parties, persons or property;
that he will examine all documents made available to him by the Freight Forwarder upon receipt and verify that they are in accordance with the instructions given to the Freight Forwarder.
that he will spontaneously and prior to any Service, provide the Freight Forwarder with all regulatory information relating to the entrusted consignment in order to enable its perfect identification, and that he will be solely liable for any consequences of incorrect, incomplete, inapplicable or late declarations or documents provided, including the information necessary for the transmission of any summary declaration required by all regulations, including customs, whereby the Freight Forwarder reserves the right to refuse the Goods.
that if the Freight Forwarder considers the information provided insufficient, he shall provide any additional information, supplemented with the necessary documents, upon first request. However, this provision does not impose any obligation on the Freight Forwarder to verify such information.
that, if customs or tax services are to be provided, the Freight Forwarder shall be liable to pay the duties and taxes relating to the Services only if the corresponding amount has actually been paid in advance by the Client to the Freight Forwarder. If, exceptionally, the Freight Forwarder has expressly agreed to carry out customs operations without advance payment, he may suspend or cancel these advances in case of delay in one or more requested payments and/or in case of proven financial difficulties of the Client.
that the Client shall indemnify the Freight Forwarder against all financial consequences arising from erroneous instructions, non-applicable documents, etc., which generally lead to the payment of import duties and/or additional or added taxes, fines, etc.
LIABILITY OF THE CLIENT
The Client shall be liable to the Freight Forwarder and shall indemnify him on first demand:
for any damage and/or loss in the context of the order given to the Freight Forwarder, as a result of the nature of the Goods and their packaging, the incorrectness, inaccuracy or incompleteness of instructions and data, the failure to make the Goods available at the agreed time and place or in good time, as well as the failure to provide documents and/or instructions in good time and the fault or negligence in general of the Client and the Third Parties engaged by him;
for any damage and/or loss, costs and expenses to the amount of which the Freight Forwarder is addressed by authorities, Third Parties or executing agents, from whatever cause, in respect of, inter alia, the Goods, damage, expenses, costs, rights, claimed directly or indirectly as a result of the Service provided on the instructions of the Client, unless the Client proves that such claim is directly caused by a fault for which the Freight Forwarder alone is liable;
for any damage and/or loss in the context of the order given to the Freight Forwarder, for costs and expenses to the amount of which the Freight Forwarder is liable in cases where the Freight Forwarder is subject to any personal and/or joint and several liability under Union or national laws and regulations for the payment or discharge of customs duties and/or other fiscal debts.
If the claim for which the Freight Forwarder addresses its Client in payment or indemnification concerns a customs or other fiscal claim caused by a customs order entrusted to him by or on behalf of its Client, the Client undertakes, in favour of the Freight Forwarder or in favour of a Third Party designated by the Freight Forwarder and at the former’s first request, to provide a financial guarantee up to the amount of this claim, of a nature to unconditionally guarantee the Client’s liability to the Freight Forwarder and/or the Third Party.
LIABILITY OF THE FREIGHT FORWARDER
The Freight Forwarder shall not be liable for the performance of any contract which he has entered into for and on behalf of its Client with Third Parties, subordinates or agents and which relates to storage, transport, clearance or handling of Goods, unless it is proved by the Client that the defective performance thereof was directly caused by the Freight Forwarder’s fault.
The Freight Forwarder shall not be liable for damage when caused by any foreign cause, which includes war, riot, strike, lockout, boycott, work congestion, transportation shortage or weather conditions.
The Freight Forwarder shall not be liable for damage or loss as a result of theft of Goods in his possession, unless the Client proves that the theft took place as a result of circumstances which the Freight Forwarder, in observance of its agreement with the Client, had to prevent or foresee and to the extent that, pursuant to local regulations or commercial practice, the risk of theft is not borne by the Goods.
The Freight Forwarder shall not be liable for any indirect damage, including economic loss, damage to reputation, consequential damage or immaterial damage.
The Freight Forwarder shall not be responsible for the good outcome of the debt collection orders assigned to him unless it is proved that the bad outcome is due to negligence, which can be equated with gross misconduct on his part.
The Freight Forwarder’s liability shall at all times be limited to the liability of its subcontractors in the context of the Services entrusted to such subcontractors. Where the limits of liability of intermediaries or subcontractors are not known or do not result from contractual or legal provisions, they shall be deemed to be equal to those set out in Article 8.8 below.
The Freight Forwarder carries out his assignment with reasonable care, diligence and understanding, and guarantees normal professional performance of the assignment entrusted to him.
The Freight Forwarder’s liability is limited to errors or omissions committed by him in the performance of the order given to him. To the extent that such errors or omissions have caused direct material or financial damage to the Client or Third Parties, the Freight Forwarder shall be entitled to limit his liability to EUR 5 per damaged or missing kilogram of gross weight of the Goods, with a maximum of EUR 25,000 per order or shipment. For shipments in bulk, the compensation cannot exceed EUR 0.76 per kilogram of lost or damaged Goods, with a maximum of EUR 8,000.00 per order or shipment, respectively.
Delivery times, arrival and departure dates are not guaranteed by the Freight Forwarder, unless otherwise agreed in writing in advance. The mere statement by the Clientof a delivery date shall not bind the Freight Forwarder.
HANDLING OF GOODS
If Goods handled by the Freight Forwarder, to the extent that this is not part of his normal duties, are not delivered to the Client in their packaging, if any, or in the same condition or in the agreed condition, the Freight Forwarder shall, subject to force majeure and any other provisions in these conditions, be liable for the related damage and/or loss to the extent that such damage and/or loss was caused by any fault or negligence on the part of the Freight Forwarder, its representatives, personnel and/or any subcontractors. The Client shall bear the burden of proof that the damage and/or loss occurred between the time of receipt and the time of delivery.
Except where the damage or loss is caused intentionally by the Freight Forwarder’s management, the Freight Forwarder’s liability under these conditions is limited to EUR 5 per damaged or missing kg gross weight of the Goods with an absolute maximum of EUR 25,000.00 per damaging event or series of events with the same cause of damage.
The Client acknowledges that the Freight Forwarder never has the capacity of consignor or consignee of the Goods for which handling has been entrusted to him, and that he is acting in his capacity as a simple handler acting exclusively in the Client’s name and on the Client’s behalf. As such, the Client undertakes to immediately assume responsibility and pay the beneficiary any amount that may be claimed from the Freight Forwarder.
PRIVILEGE AND LIEN
The amounts charged by the Freight Forwarder to his Client shall be privileged in accordance with the law and in accordance with these conditions.
The claims of the Freight Forwarder against his Client are privileged under Article 14 of the Act of 5 May 1872 on Commercial Pledges, Article 20,7° Mortgage Act and Article 136 of the General Act on Customs and Excise to the extent of all Goods, documents or monies currently in his possession and that will be in his possession, irrespective of whether the claim is partly or wholly related to the reception or shipment of Goods other than those in his possession.
All Goods, documents and monies held by the Freight Forwarder for the Client shall serve as a lien and/or pledge to him for all claims he has against the Client. If the latter fails to pay the sums he owes the Freight Forwarder and for which the Freight Forwarder has a lien and/or a pledge under the agreement between them, the Freight Forwarder shall be entitled to sell the Goods stored with him or with Third Parties on his instructions at the Client’s expense, in payment of his own claim, in accordance with the Act of 5 May 1872. For the purposes of this article 10 the Freight Forwarder shall be considered a “commissionair” within the meaning of Article 11 of the Act of 5 May 1872. If the debt is not paid on the due date, the Freight Forwarder may, after notifying the Client, by applying with the President of the Enterprise Court, obtain authorization to sell the Goods, at his will, publicly or privately by the person he designates. The above procedure is without prejudice to any other right or procedure of sale of pledged Goods available to the Freight Forwarder as authorized under applicable law. The Freight Forwarder shall have a lien / right of retention on the Goods and shall be entitled to sell such Goods in full discharge of his claim; they shall also serve as a pledge to him, irrespective of whether the Client is the Owner of the Goods.
INSURANCE The Freight Forwarder may make insurance available to the Client when requested in writing, allowing the Client to insure any order standing in connection with an international transport against freight forwarding risks. The cost of this insurance shall be borne by the Client.
TIME-BAR
Any claim for damages against the Freight Forwarder must be notified to him in writing, stating the reasons, within 14 days of delivery of the Goods or shipment of the Goods. Any potential liability of the Freight Forwarder shall automatically and definitively extinguish when the Client has received back the documents relating to a particular operation within the scope of the Services after their performance, without the Client having formulated a reasoned reservation agaisnt the Freight Forwarder no later than the 10th day after the dispatch of these documents.
Any claim in liability against the Freight Forwarder shall be extinguished and time-barred if it is not brought before the competent court within a period of 6 months. The time bar shall run from the day following the day on which the Goods were delivered or should have been delivered, or failing that from the day following the day on which the event giving rise to the claim occurred.
APPLICABLE LAW AND JURISDICTION – MISCELLANEOUS
These terms and conditions, as well as any dispute between the Freight Forwarder and the Client as a result of any offer by the Freight Forwarder, any performance of the Freight Forwarder, or any agreement between the Freight Forwarder and the Client, are governed by Belgian law. In the event of a dispute, only the Antwerp Enterprise Court has jurisdiction, unless mandatory law expressly prohibits the choice of court.
Legal and arbitration proceedings against Third Parties shall not be conducted by the Freight Forwarder unless he agrees to do so at the principal’s request and for the Client’s account and risk.
In the case any of the provisions of these terms and conditions, in whole or in part, are found to be unlawful, inapplicable or null and void, the other terms of these terms and conditions shall not be affected. The parties undertake, in such event, to replace the affected clause by a clause that best fulfils their intentions as expressed in these terms and conditions, in so far as legally allowed.
Any failure by any of the parties to invoke any provision included in these terms and conditions shall not be constituted as a waiver of such provision and shall not preclude the Party to invoke such provision at any later stage.