General Terms and Conditions
GENERAL TERMS AND CONDITIONS GADOT Group
These General Terms and Conditions (GTC) govern Customer’s purchase of logistic, chemical filling, blending, storage, manufacturing, handling, terminaling and other (value added) services and works performed by GADOT Group (collectively referred to as “Services”) from Service Provider. “Service Provider” means GADOT Group BV identified in the applicable Service Agreement.
GADOT Group means:
Registered seat: Hamelach 5, Netanya, Israel
Tel. +972-9-89295500 -11 Fax. +972-9-8653385
1. Commercial Conditions
(a) Contractual Documents. The Customer will place all orders for Services via: (i) a signed order form referencing these General Terms and Conditions (GTC) (“Order Form”); or (ii) a purchase order or a written Service Agreement based on Service Provider’s standard Service Agreement templates for various Services, as will be decided by Service Provider, from Customer that is accepted by Service Provider (a “Services Agreement”) referencing these General Terms and Conditions (GTC). The Order Form and/or Services Agreement are “Contractual Documents”. These General Terms and Conditions (GTC) together with its applicable schedules and Service Agreement constitute the “Service Agreement”.
These General Terms and Conditions (GTC) incorporate GADOT Group’s Privacy Statement which is also applicable to Customer’s purchase of Services.
(b) Payment. Customer will pay Product and Services fees (“Fees”) in the currency set forth in the Service Agreement within thirty (30) days of invoice date. Service Provider reserves the right to require pre- payment, down payment, standby letter of credit, or bank guarantee at any time.
(c) Late Payment; Non-Payment. If the Customer fails to pay any Fees due, Service Provider may (i) immediately suspend the delivery of any Service until all amounts due are paid; (ii) request immediate payment or pre-payment for Services; and/or
(iii) cancel, without liability to Service Provider, any or all Service Agreements.
All Fees due and unpaid shall bear default interest at the higher rate of one and a half percent (1.5%) per month or the applicable legal rate.
(d) Legal Retention right and lien. The Customer grants the Service Provider a right of retention and a lien in accordance with the provisions of Section 1948 of the Civil Code and the Law of May 5th 1872 (Law on the Sale of Pledge) by way of guarantee for all his undertakings and the payment of all sums incurred by reason of same. Should the Customer default any undertaking to pay, the Service Provider is given the right to proceed to a sale of pledge procedure.
(e) The Customer undertakes to assume all current and future charges and taxes on the storage or the handling of the goods subject to the Service for his own account. A commission of 3% a month will be charged to the Customer for all advance payments, charges, deposits, sureties and similar provisions paid by the Service Provider.
(f) Taxes and Charges. All Fees are exclusive of any Value Added Taxes, withholding taxes, sales and other taxes, customs duties, and similar assessments in any jurisdiction based on gross revenue, delivery, possession, and/or use of the Services, or the execution or performance of a Service Agreement, except corporate taxes assessed on Service Provider.
Customer will pay all duties and taxes in any form such as service taxes, excise duties, VAT, GST, WHT, and similar charges and, when applicable, provide Service Provider with an appropriate certificate of exemption. Should the Fees be subject to withholding tax or any deduction, Customer agrees that the payment will be increased by such an amount to ensure that Service Provider receives and retains the net fee it would have received had no such withholding or deduction been made.
(g)Complaints. All complaints regarding the Services must be communicated by Client to Service Provider in the following timelines:
• Non-delivery/late delivery: within 5 business days after the contractually agreed delivery date
• Defects: within maximum 30 calendar days after delivery
• All other service deficiency: within maximum 30 calendar days after execution of the service
In case the above timelines are not respected, the complaint and potential claim deriving therefrom are unconditionally and irrevocably waived by Client and the claim of Client automatically and as per law expires.
2. Disclaimer of Warranties
EXCEPT AS EXPRESSLY SET FORTH HEREIN OR IN THE APPLICABLE CONTRACTUAL DOCUMENTS, ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, AND GUARANTEES WITH RESPECT TO THE SERVICES, WHETHER EXPRESS, IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS BY SERVICE PROVIDER OR OTHERWISE (INCLUDING, BUT NOT LIMITED TO ANY WARRANTY OF CONDITION OR OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT) ARE HEREBY OVERRIDDEN, EXCLUDED, AND DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
The Customer accepts full liability for all harm, both direct and indirect, including loss of profits, that may be the consequence of any non-compliance by the Customer with any obligation or undertaking provided for by law and/or by these General Terms and Conditions (GTC) and the Service Agreement.
The Customer must also hold the Service Provider harmless and indemnified for and against all claims that may be made by third parties by reason of losses, damages, physical injury, or in any other form whatsoever against the Service Provider in consequence of any breach by the Customer of any Service Agreement or legal obligation.
The Customer is jointly and severally liable with and for the actions, inactions, errors and omissions all third parties contracted by Customer for all damages and losses, whether direct or indirect, caused by any reason whatsoever to the latter, and which might be caused by the Customer and such third parties.
4. Limitation of Liability
SERVICE PROVIDER NOR ITS AFFILIATES, LICENSORS, OR SERVICE PROVIDERS SHALL, UNDER ANY CIRCUMSTANCES, HAVE ANY LIABILITY TO THE CLIENT FOR ANY INDIRECT, RELIANCE, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUE OR PROFITS, LOST OR DAMAGED DATA, SERVICE DOWNTIME, CHANGE IN IP ADDRESS, BUSINESS INTERRUPTION, REPLACEMENT OR RECOVERY COSTS OR OTHER COMMERCIAL OR ECONOMIC LOSS, EVEN IF THE CLIENT WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, AND WHETHER ARISING OUT OF BREACH OR FAILURE OF AN EXPRESS OR IMPLIED WARRANTY, BREACH OF SERVICE AGREEMENT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT, OR OTHERWISE.
IN NO EVENT WILL THE AGGREGATE LIABILITY OF SERVICE PROVIDER AND ITS AFFILIATES AND LICENSORS FOR ANY AND ALL CLAIMS, ACTIONS OR PROCEEDINGS BASED ON BREACH OR REPUDIATION OF SERVICE AGREEMENT, BREACH OF WARRANTY, NEGLIGENCE, TORT, STATUTORY DUTY, OR OTHERWISE ARISING OUT OF OR IN CONNECTION WITH A SERVICE AGREEMENT EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY CUSTOMER FOR THE SPECIFIC SERVICE THAT DIRECTLY CAUSED THE DAMAGE IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM.
The Service Provider can furthermore not be held liable by the Customer for harm to goods that should be the object of Goods Insurance.
Should the contractual or extra-contractual liability of the Service Provider be proven, the liability of Service Provider for loss or damages to goods subject to the Services is limited to damages or losses caused by an operational fault of Service Provider (no all-risk property liability!) € 500.00 per ton of lost or damaged goods and may in no case exceed more than € 250,000.00 per loss. The amount that the Customer receives in the context of this limited liability may, however, not be more that his proportional share of the various claims that may arise from a single loss, and such as this might be claimed by the Customer or together with other Customers.
Service Provider is in any event (but not limited to the below cases) relieved of all liability for the following, whereby this list is by no means exhaustive :
– indirect, consequential and non-property damages or losses, including third party claims, such as among other things waiting times, demurrage, business losses, etc.;
– Penalties, damages or losses for late performance of delivery of Services or goods
– all losses before and after the period the Service Provider has the goods in its care;
– force majeure;
– third party error;
– concealment or false declaration by the Customer or third parties;
– damage to the goods covered by the goods insurance as set out in Article 9 (Goods Insurance);
5. All-risk Property Insurance for goods delivered to or manufactured by Service Provider
The Customer undertakes to cause the goods and his liabilities pursuant to these General Terms and Conditions (GTC) to be insured against all risks (“Goods Insurance”) with waiver of recourse by the insurer and the Customer himself against the Service Provider except in case of damages or losses caused by the operational fault of the Service Provider. The Customer undertakes to submit the relevant insurance certificates to the Service Provider prior to delivery of the goods subject to the Services at the premises of Service Provider. All deductibles and exclusions of the Goods Insurance shall be for the sole account of Customer.
6. Force Majeure
If Service Provider is prevented or delayed in the performance of any obligation in a Service Agreement by any event beyond its reasonable control (including, strikes, accidents, fires, explosions, earthquakes, the inability to procure materials from the usual sources of supply, or act, requisition, or order of any governmental authority restricting or prohibiting the supply of the Services, all events that occur independently of its will, war, lock out, riot, mobilization, epidemic, disease, fire, change of transport rates, customs rates, measures of government in general, late delivery, third party strikes, bankruptcies of third parties, labor shortage, fuel shortage, destruction of the storage facilities or parts of same), Service Provider shall be excused from performance or punctual performance for so long as the cause of prevention or delay continues.
Every form of force majeure releases Service Provider from its liability.
7. Confidential Information
“Confidential Information” means all information disclosed by either party (as “Discloser”) directly or indirectly in any form such as written, oral or visual, in machine-readable or other tangible form, relating to its business. Confidential Information includes but is not limited to patents, trade secrets, research and development plans, current and future products, product pricing, Customers lists, markets, business plans, financial data, contractual terms, documentation, records, studies, reports, know-how, test results, software, and software source code. Excluded are information: (a) known to Recipient before receiving it from Discloser; (b) independently developed by Recipient without use of or reference to any Confidential Information of Discloser; (c) acquired by Recipient from another source not otherwise subject to confidentiality obligations; or (d) in the public domain through no fault or action of Recipient.
Protection of Confidential Information. Recipient shall use no less than reasonable means to prevent the disclosure and to protect the confidentiality of the Confidential Information of Discloser. Recipient shall not knowingly disclose Confidential Information to any third party, except on a need-to-know basis and for purposes of a Service Agreement, and under confidentiality obligations at least as restrictive as contained herein. Each party may disclose Confidential Information to its Affiliates in the administration or performance of a Service Agreement. While maintaining the confidentiality of Customer’s Confidential Information, Customer permits Service Provider to gather and use Services usage data for business intelligence purposes, including for Service Provider to develop new features or functionalities that will benefit users of the Services.
Required Disclosure. If Recipient is required by law to disclose Discloser’s Confidential Information or the terms of a Service Agreement other than as permitted under this Section, Recipient will give prompt written notice to Discloser before making the disclosure, unless prevented by the legal or administrative process, and will reasonably assist the Discloser to obtain when available an order protecting the Confidential Information from public disclosure.
Remedies. Recipient acknowledges that any actual or threatened breach of this Section may cause irreparable, non-monetary injury to the Discloser. Accordingly, the Discloser is entitled to seek injunctive relief in addition to all remedies available at law and/or in equity, to prevent or mitigate any breaches of these General Terms and Conditions (GTC) or any Service Agreement, or any damages that may otherwise result from those breaches.
8. Data Protection
Service Provider and its affiliates may collect, use, process, transfer, and store Personal Data in the form and manner described in GADOT Group’s Privacy Statement and GDPR Readiness Statement.
Provider as Data Controller: Service Provider may collect certain personal or personally identifiable information, such as name, e-mail, phone number, postal address, IP address, position and other related information (“Personal Data”) of Customer’s representatives (e.g. employees and agents) when necessary to establish and/or perform a Service Agreement. Personal Data of Customer’s representatives may be transferred to, processed, and stored in the European Union or other jurisdictions in the operation of Service Provider’s business and for the performance of a Service Agreement.
Service Provider as Data Processor: As Data Processor, Service Provider will never process Personal Data for and on behalf of the Customer. Customer as a Controller represents and warrants that Customer (i) will transfer to Service Provider only Personal Data necessary for the performance of the Service Agreement, (ii) has provided notice to and obtained all necessary consents of the data subject for the transfer and use of Personal Data to Service Provider; and (iii) maintains security and safety measures in the transfer and access to Service Provider of Personal Data.
Service Provider takes reasonable and appropriate measures to safeguard the confidentiality and security of Personal Data and to prevent its unauthorized use or disclosure. Customer can request access to Personal Data that Service Provider maintains. To protect privacy of Personal Data, Service Provider will take reasonable steps to verify Customer’s or the requesting person’s identity before granting access to or making changes to Personal Data.
All trademarks and service marks (registered or not), patents, copyrights, trade secrets, and all other intellectual property and proprietary rights in and to GADOT Group’s logos, trademarks, standard documentation, operation procedures, processes and practices and information used for the execution of the Services and/or Services including in any copy, translation, localization, adaptation, improvement, development, or derivative thereof (“Intellectual Property”), are and will remain the exclusive property of Service Provider, its affiliates or its licensors, whether or not specifically recognized or perfected under applicable law. Customer shall not acquire any rights to or take any action prejudicial to Service Provider’s Intellectual Property rights. Customer waives and will not exercise any rights it may have in the Intellectual Property, and shall cause its employees and contractors to do the same.
Customer may not use the Service Provider trademarks or other Intellectual Property. Customer shall not alter or remove any Service Provider trademarks applied to the Services. Customer shall not challenge or assist others to challenge the Service Provider trademarks, Intellectual Property or the registration thereof or attempt to register any trademarks, service marks or trade names confusingly similar to those of Service Provider, its affiliates or its licensors.
10. Governing Law
This Service Agreement shall be governed by and interpreted in accordance with the laws of Belgium, the place of performance of the Services. In case of dispute only the court of Ghent shall be competent.
The parties exclude from this Service Agreement the application of the United Nations Convention on Service Agreements for the International Sale of Goods. Service Provider may seek injunctive relief or file for collection of debt in Belgian courts as may be necessary.
11. Compliance with Laws
Customer shall, at its expense, comply with all laws, regulations, authorizations, and any legal requirements in its jurisdiction that apply to its performance of the Service Agreement and to the Services.
Service Provider’s provision of the Services, technical information, and related materials is not subject to EU and US export control and trade sanctions laws and regulations (“Trade Controls”). Customer acknowledges to be solely liable and responsible for the application of such Trade Controls for the goods handed over to Service Provider for the provision of the Services or for the goods manufactured, filled, blended or tolled as part of the Services. Customer agrees at its sole risk and cost to (i) comply strictly with the legal requirements established under the Trade Controls, (ii) cooperate with Service Provider in any official or unofficial audit, inspection or investigation that relates to the Trade Controls, and (iii) not export, re-export, distribute, use or otherwise transfer, directly or indirectly, the Services, any technical information or materials, or any related product thereof to any destination, company or person restricted or prohibited by the Trade Controls, unless authorized or permitted under applicable Trade Controls and unless Customer has obtained prior written authorization from Service Provider and the applicable governmental organization.
Customer agrees that Service Provider’s Services do not include any adherence, compliance or requirements related to Trade Controls. The compliance with Trade Controls will be an obligation of Customer only and non-compliance by Customer with Trade Controls may constitute a breach of the Service Agreement.
12. Customer’s Warranties
Customer is responsible for the proper and authorized use of the Services. Customer represents and warrants that: (i) it will not use or allow use of the Services for or in connection with any illegal or unlawful purpose or activity where the Services are made accessible or available; and (ii) it will not use or deal with the Services in any way that will expose Service Provider or any of its directors, officers, or employees to liability including without limitation under tax, fiscal, anti-money laundering, environmental, securities, anti-corruption or other penal laws, or Trade Controls.
13. Term and Termination
The Service Agreement commences on the date indicated in the applicable Service Agreement (“Effective Date”) and continues for the period stated therein (“Term”), unless terminated as set forth herein.
Without prejudice to any of the parties’ rights and obligations, either party may terminate the Service Agreement by written notice to the other party
(i) if the other party is dissolved, declared bankrupt, granted suspension of payments, moratorium, has a receiver, administrator or manager appointed over the whole or part of its assets or business, (ii) if the business of the other party has been discontinued, or (iii) for material breach of a Service Agreement and such breach is incapable of cure; or being capable of cure, remains uncured for 30 days after the breaching party receives detailed written notice thereof.
Service Provider may terminate the Service Agreement at any time, without liability, with a 90 days written notice (for convenience) or suspend or terminate the Service Agreement immediately upon written notice if Customer violates the terms set forth herein.
Upon the termination of a Service Agreement for any reason, all rights granted to Customer will cease and Customer will delete and destroy all copies of the documents received from Service Provider. Termination of any Service Agreement does not relieve payment obligations due prior to termination and does not give either party any right to compensation, reimbursement, refund, credit, or any other damages or losses.
Service Provider shall be entitled, at its expense and with reasonable notice to Customer, to perform an audit at Customer’s headquarters or any other relevant premises to verify Customer’s conformity with its obligations.
15. Resale of Services
Customer may obtain certain Services from Service Provider for integration, distribution, and/or resale to a third party only upon Service Provider’s prior written consent and subject to a separate written agreement.
The Service Agreement constitutes the entire agreement between the parties with respect to the subject matter therein and supersedes any prior proposal, representation, or written agreement, except if specifically agreed otherwise. Any modification or waiver of any provision of the Service Agreement is binding only if made in writing signed by both parties.
All notices or approvals must be given in writing to Service Provider at the address of Service Provider’s registered seat. Notwithstanding the foregoing, Service Provider may give Customer notice electronically. Electronic notice to Customer is deemed given when transmitted to an email address furnished by Customer to Service Provider.
Customer may not assign or transfer its rights or duties in whole or in part to a third party without written consent of Service Provider. Notwithstanding the foregoing, Service Provider may assign its rights and/or obligations hereunder with notice to the other party, to (i) a related party, group company or affiliate, or (ii) an unrelated party pursuant to an assignment, transfer and conveyance of substantially all or a portion of its assets, a merger, consolidation or other corporate reorganization.
Any assignment in violation of this Section is void and of no force or effect.
If a court declares any provision of the Service Agreement as unlawful, void, or for any reason unenforceable, such declaration shall not affect the validity or enforceability of the remaining provisions.
A Service Agreement may be executed by means of electronic signature, or in any number of counterparts, where all such counterparts taken together will be deemed to constitute one and the same instrument. A signed or e-signed copy of a Service Agreement delivered by facsimile, e-mail, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed Service Agreement.
17. Technical and Operational Conditions
17.1. Undertakings of the Customer.
* Prior to signature of the Service Agreement and acceptance by Service Provider of execution of the Services, the Customer will provide – among other information – the Service Provider with the following written information:
* a Safety Datasheet as per the EU Regulation (EC) No 1907/2006 (REACH). Each such Safety Datasheet (SDS) shall be fully compliant with CLP. CLP means the Regulation (EC) No 1272/2008 on the Classification, Labeling and Packaging of substances and mixtures, replacing the Dangerous Substances Directive 67/548/EEC (DSD) and Dangerous Preparations Directive 1999/45/EC (DPD) and introducing the United Nations globally harmonized system (UN GHS) for classification and labeling of chemicals into Europe, entered into force on 20/01/2009.
* a correct and accurate description of the goods by type, quality, condition and hazard class (explosive, flammable, oxidizing, corrosive, toxic, radioactive, vapor pressure, etc.)
* all instructions and information useful for the satisfactory handling and conservation of the goods such as flash point, freezing point, solidification point, product temperature, dew point, discoloration, moisture tolerance, polymerization conditions, and all other details that are relevant to the storage or handling of the goods in terms of regulation or otherwise.
* The Customer agrees to entrust the Service Provider to the exclusion of all others with the handling, storage and processing of the goods which are the subject of the Services.
* The Customer agrees to provide all instructions and communications relating to the goods which are the subject of the Services and all matters relating to the reception, release, storage and handling in writing and at least 72 hours in advance (not including Saturdays, Sundays and public holidays).
* The Customer guarantees that the goods subject to the Services conform to all obligations imposed by the REACH regulations (as set out by Regulation 1907/2006 of the European Parliament and Council of 18 December 2006 concerning the Registration, Evaluation, Authorization and Restriction of Chemicals). The Customer will communicate all required information to the Service Provider, including the registration number of the products such as communicated by the European Chemicals Agency established by the REACH Regulation.
* The Customer will hand over all the required documents including those relating to the safety data concerning the products. In the event that the Customer fails to comply with the above the Service Provider will be authorized to refuse to store and handle the goods, or to terminate the immediate operation of the Service Agreement without any notice whatsoever. In such cases the Customer is required to hold the Service Provider free and to indemnify same for all claims, costs and fines that the Service Provider might incur in consequence of the non-compliance with the provisions of REACH by the Customer.
* The Customer guarantees that the goods are not of a nature to cause direct or indirect harm to the tanks, the pumping lines, the pumps or to any other part of the installations of the Service Provider or to the other goods stored there.
* The Customer declares that he has been given the opportunity to inspect the tanks, pipelines, pumps and every other relevant part of the installations of the Service Provider prior to the Service Agreement, upon the reception of the goods, as well as thereafter. In the absence of any written objection prior to the Service Agreement or reception of the goods, the foregoing are held to have been found to be suitable, clean and in a good state of maintenance.
* The Customer agrees to ensure that upon the reception and release of the goods this can take place on time and without delay. The Customer undertakes to provide for the required handling and transport facilities and to make these available effectively, in good time and at his own risk and liability on the site of the Service Provider. The Customer agrees to ensure that these facilities conform to all requirements of suitability, utility, and all technical and regulatory provisions.
* The Customer undertakes upon every release of the goods and for the very last time upon the termination of the Service Agreement, to make the tanks, pipelines, pumps and every part of the installations that he has used available again in the same condition as that in which they were upon the reception or at the start of the Service Agreement. The Customer undertakes in consultation with the Service Provider to clean same and to remove all goods, waste and all flushing agents at his own risk, expense and liability. Should no agreement otherwise have been made with the Customer, the Service Provider has the right to remove the wastes in accordance with regulation at the risk and for the account of Customer.
17.2. Loading, discharging and handling.
Unless otherwise agreed between the Service Provider and the Customer, the goods subject to the Services are received and released at the expense, risk and liability of the Customer, using the Customer’s own provisions and means, including the Customer’s pumps and power and all other means made available by him and which must ensure that the reception or release of the goods proceeds in a professional, continuous, fast and effective manner in accordance with the regulations.
Should the reception or release take longer than is technically usual for the volume and nature of the consignment, the Service Provider is entitled to demand the termination of the operations and the vacation of the loading and/or unloading bay. Should such an instruction not be immediately complied with, the Customer will be liable to the Service Provider for compensation, among other things because of the immobilization of the facilities. The loading and discharging of goods takes place in the order determined by the Service Provider and in accordance with its directions. The stowage and loading of the goods takes place at the risk, costs and subject to the responsibility of the Customer.
It is agreed between the Customer and the Service Provider that all quoted rates and prices apply to those services performed by the Service Provider during normal working hours and not on Saturdays, Sundays, public holidays or holidays given in lieu of same.
Overtime performed at the request of or in the interests of Customer by carriers or third parties, among others, relating to the reception or release of the goods – for example for the completion of loading or discharging works for ships and other means of transport that has already been commenced – will be the subject of an additional charge to the Customer as set out in the supplements and rates agreed in the storage and handling Service Agreement.
The Service Provider will inform Customer of this by telephone, email, fax, or by any other means, whenever such is physically possible.
17.4. Measurements, nature and condition of the goods.
* The Customer discharges the Service Provider from testing the goods for conformity to description, nature and condition.
* The Customer has the right in consultation with the Service Provider and at his own expense, risk and responsibility to cause checks to be carried out on the goods and the operations conducted on them in the installations of the Service Provider.
* The volumes discharged from or loaded into seagoing vessels and barges are determined from the difference between the measurements made before and after the operation in the shore tanks. The weight of the load of road tankers, tank containers and rail tankers is determined from the difference in their weight before and after loading or discharge as indicated by the weighbridges of the Service Provider or by means of liquid meters certified by the customs and excise service.
* When the Customer does not supervise these measurements or weighing or cause them to be supervised, the quantities determined by the Service Provider will be binding on both parties.
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