Article 1 - Object
1.1 This Agreement between, on the one hand, (i) SMARTCHARGERS BV ("SMARTCHARGERS"), with its registered office at 9190 Stekene, Zavelstraat 21 box 1, with company number 0461.285.280 and the Customer on the other hand, is governed by the terms and conditions of the rental agreement entered into between the parties, including these general terms and conditions, invoices and any special terms and conditions (hereinafter collectively referred to as the "Rental Agreement"). The Rental Agreement shall enter into force upon signature of the agreement by the Customer and SMARTCHARGERS whereby the signature shall also constitute acceptance of these general terms and conditions, and it shall nullify and replace all written or oral contracts, proposals and commitments relating to the same object that would precede the date of this Rental Agreement. The Rental Agreement excludes the application of the Customer's own potential general and/or other terms and conditions.
1.2 The services of the Lease include the rental of one or more Charging Facilities ("Charging Facility(s)") made available to the Customer by SMARTCHARGERS as evidenced by the special terms of the Rental Agreement and the certificate of inspection (hereinafter the "Rental"). The fees for the Rental consist of a monthly rental amount (hereinafter "Rent").
1.3 The agreed rental period as stipulated in the Rental Agreement shall commence on the date of the inspection of the Charging Equipment. The lease term is not tacitly renewable.
1.4 The Charging Installations are chosen by the Customer under his sole responsibility. The Customer chooses the supplier and the Charging Installations on its own initiative and freely determines the technical characteristics, modalities and location of the installation. The Customer releases SMARTCHARGERS from any information obligation and confirms that it is contracting with full knowledge of the facts. Under no circumstances may the Customer invoke difficulties related to the Charging Installations, their use or performance and their unsuitability in relation to its needs. SMARTCHARGERS or its appointee shall only take care of setting up, adjusting and testing the Charging Installations and provide the Customer with information on putting the Charging Installations into operation.
1.5 The Rental Agreement is always subject to the condition precedent of a positive solvency check of the Customer by SMARTCHARGERS. If a solvency check shows that, in SMARTCHARGERS' opinion , the Customer does not have sufficient financial capacity to ensure the proper performance of this Lease, SMARTCHARGERS will notify the Customer (for information purposes only) that the condition precedent has not been fulfilled. This condition can only be invoked by SMARTCHARGERS and not by the Customer.
Article 2 - Installation and reception
2.1 The Charging Plants will be delivered by SMARTCHARGERS directly and accepted by the Customer at the designated site. Prior to the planned installation, the Customer shall provide SMARTCHARGERS with all useful and necessary information relating to the installation including but not limited to the plans of the subsoil indicating gas pipes, pipes, cables, sewers and the like present at the location where the Charging Plants are to be installed. If the installation cannot take place at the agreed time, the costs associated therewith will be borne by the Customer. The installation will take place at the Customer's expense and risk. Under no circumstances can SMARTCHARGERS be held directly or indirectly liable for any direct or indirect damage resulting from incorrect information regarding the presence of gas pipes, tubes, cables, sewers and the like.
2.2 Specified installation periods are purely indicative and constitute an obligation of means on SMARTCHARGERS' part. The acceptance of the Charging Plants by the Customer implies acceptance of the installation period, even if the indicative installation period was thereby exceeded.
2.3 The installation of the Charging Installations shall be performed by SMARTCHARGERS and/or a qualified installer. The Customer shall (i) ensure that the location where the Charging Installations are to be installed complies with relevant requirements and applicable laws, that all necessary facilities are available for installation, and that all necessary permits to install the site have been obtained; (ii) take all necessary precautions (including complying with the instructions of SMARTCHARGERS or its designee) to enable safe and trouble-free installation of the Charging Installations at the site; and (iii) notify SMARTCHARGERS of gas lines, cables, sewers and the like that would be located at the site; and (iv) notify SMARTCHARGERS of electronic installations and live parts or cabinets. SMARTCHARGERS shall not be held liable for any damage caused by or related to any excavation or the temporary interruption of electricity supply at the site necessary for the installation of the Charging Plants. If SMARTCHARGERS is of the opinion that the installation cannot be carried out in a safe manner, SMARTCHARGERS will have the right to interrupt or suspend the installation until safe execution can be guaranteed (in which case working hours may be charged by SMARTCHARGERS ).
2.4 After installation, the Customer shall check the conformity of the Charging Installations and proceed with all tests and checks agreed upon or required by the nature of the Charging Installations. After installation, the Charging Installations will be subject to a mandatory inspection prior to use in accordance with the General Regulations on Electrical Installations (AREI). The Customer undertakes not to use the Loading Installations prior to receipt of the inspection certificate. The receipt of the inspection certificate by the Customer is proof that the Loading Installations correspond to the agreed equipment (including accessories, etc.) as stipulated in the special terms and conditions, that the Loading Installations are in perfect condition and have no (visible) defects, as well as that all the necessary documents, instructions and equipment are present and have been provided along with them.
2.5 Hidden defects must be reported in writing to SMARTCHARGERS at the latest within 24 hours of their observation and discovery, but at the latest within 12 months of delivery. In the absence of timely and written observations in accordance with the above, the Charging Systems delivered including all accessories will be deemed to have been delivered according to the rules of the art, in conformity and without defects and will be deemed to have been thus accepted by the Customer. Under no circumstances shall SMARTCHARGERS be held to any intervention or be liable in any way for any non-conformity or defects due to the Customer's own actions or resulting from improper use by the Customer or non-compliance with the terms of this Lease.
2.6 SMARTCHARGERS reserves the right to have third parties perform its obligations under the Lease Agreement on its behalf.
Article 3 - Mode of use and insurance
3.1 The Customer is obliged to use the Charging Installations in accordance with the manuals accompanying the Charging Installations and SMARTCHARGERS' instructions . The Customer shall use said Charging Installations exclusively for purposes as a good custodian. The Customer shall take care not to use any spare parts or accessories other than those supplied or approved by SMARTCHARGERS. The spare parts and all accessories fitted shall become the property of SMARTCHARGERS by operation of law without any compensation to the Customer. The Customer shall not be permitted to remove the Charging Equipment from the location, where it is installed, except with the prior written consent of SMARTCHARGERS. The Customer shall, at its expense, perform all maintenance work and all repairs, if necessary in accordance with a separate maintenance agreement or terms of use with SMARTCHARGERS. Such maintenance agreement or terms of use are separate from this Lease, and any failure or non-performance of such maintenance agreement or terms of use shall not impact the Lease.
3.2 Insurance
During the entire term of the Lease until the Charging Equipment is returned, the Customer will have its civil liability arising from the use and custody of the Charging Equipment insured by an authorized solvent insurance company for any damage caused both to persons and to property. The insurance company will waive any form of recourse against SMARTCHARGERS. The insurance contract will also cover SMARTCHARGERS' liability to third parties with respect to the leased Charging Equipment. The Customer instructs its insurer and its insurance intermediary to (i) transmit to SMARTCHARGERS the corresponding insurance certificate annually and for the first time and at the latest on the effective delivery date of the Charging Installations together with the signed document of receipt of the Charging Installations and (ii) immediately notify SMARTCHARGERS of the termination, cancellation or suspension of the insurance contract as well as of any premium default.
The Customer shall, during the entire term of the Hire until the moment of the return of the Charging Equipment, have the Hired Charging Equipment insured in favor of SMARTCHARGERS against the damage caused by fire, by lightning, by explosion, by implosion, by the action of electricity, by water damage, by natural forces, by machine breakdown and by theft. SMARTCHARGERS has the right to check compliance with this obligation at any time or to have it checked by a third party appointed by it. In this context, SMARTCHARGERS may communicate the necessary contact details of the Customer, the relevant information regarding the rented Charging Equipment and the scheduled duration of this Lease to the third party appointed by it, which will contact the Customer. The insured value shall at all times be sufficient to cover the total loss of the rented Charging Installations, in accordance with the article relating to termination of the Lease (article 8) plus the residual value. The Customer shall, either on its own initiative or in any event at SMARTCHARGERS' first request, instruct its insurer and/or its insurance intermediary to (i) transmit to SMARTCHARGERS or a third party designated by SMARTCHARGERS the corresponding insurance contract as well as the proofs of payment of the premiums and (ii) immediately notify SMARTCHARGERS or a third party designated by SMARTCHARGERS of the termination, cancellation or suspension of the insurance contract as well as of any premium default. If the necessary supporting documents were not provided in time (30 days after the date of the letter by which SMARTCHARGERS or the third party appointed by it requested the communication of the documents) or if the documents provided do not sufficiently prove that the Charging Plants are insured in accordance with this Lease Agreement, SMARTCHARGERS will be entitled but not obliged to include the Charging Plants in the insurance policy underwritten by SMARTCHARGERS in its own name. SMARTCHARGERS will charge the Customer an additional amount for this purpose. SMARTCHARGERS will notify the Customer of this in advance. This amount will be payable under the same terms and conditions as provided for all other payments due under this Lease and will be invoiced together with the periodic rental charges. The Customer always retains the option of having the Charging Equipment insured through its insurer or insurance intermediary at any time and providing proof thereof.
As security for the proper performance of its commitments, the Customer declares from now on to pledge to SMARTCHARGERS, for the full term of this Lease, its claims under insurance policies taken out for the leased Charging Plants. The Customer undertakes to neither assign nor pledge the sums due or to become due to it under the pledged claims, and to ensure that they are not the subject of any assignment, offsetting, garnishment by third parties or opposition, and expressly disclaims the right to perform any acts that might hinder or limit the effect of this pledge. The Customer hereby authorizes SMARTCHARGERS, as the sole party entitled to collect, on all due dates and at any time when the pledged claims become due, to collect all sums relating to these claims and to charge them to the amounts owed by the Customer, and this without judicial intervention. This pledge will be made as security for all amounts that the Customer owes or will owe to SMARTCHARGERS under leasing contracts and/or renting, and/or arising from the business relationship between the Customer and SMARTCHARGERS, and this in the amount of a maximum amount equal to the number of lease terms multiplied by the amount of the periodic lease term, in principal and incidentals, plus the amount of the purchase option under a leasing contract.
Article 4 - Force majeure
Any event that constitutes an insurmountable obstacle to the normal performance of the Lease or seriously impedes or complicates it will be considered a case of force majeure, including (but not limited to): strikes, government measures, (temporary) company closures, transport difficulties, delays or impossibility of supply and damage to - or defects in - SMARTCHARGERS' operating assets essential to the contract, delays or impossibility of supply on the part of SMARTCHARGERS' suppliers. In case of force majeure, SMARTCHARGERS will be entitled either to suspend performance of the Lease for a period not exceeding three months or to terminate the Lease in whole or in part, without being liable for any compensation. Financial commitments of the Customer can never be suspended or dissolved as a result of force majeure.
Article 5 - Price and payment
5.1 The Rent is payable from the inspection in advance according to the modalities agreed upon in the Special Conditions.
5.2 SMARTCHARGERS reserves the right to change the Rent in the interim, no more than once a year, but no earlier than six months after commencement of the Lease. Among other things, the change may be made as a result of objective criteria such as cost increases and/or changes in the exchange rate ratio and/or price-increasing measures taken by the Belgian government.
5.3 All taxes and charges, however called, which shall now, or at any time, be levied on the sums payable by the Customer, or on the Lease or on the Charging Installations and/or on the use of the Charging Installations, irrespective of in whose name they are placed, shall be borne by the Customer.
5.4 The Customer may only invoke its rights under Article 1184 of the Dutch Civil Code, or suspend, discount or set off against SMARTCHARGERS, insofar as the Customer has given SMARTCHARGERS prior notice of default in which SMARTCHARGERS was granted a period of 30 (thirty) days to remedy any shortcomings.
5.5 Payment of the Rent shall be made by debit from the bank account specified by the Customer. The Customer undertakes to provide a SEPA mandate to SMARTCHARGERS upon SMARTCHARGERS' first request.
5.6 SMARTCHARGERS has the right (but is not obligated) to make invoices available to the Customer electronically by email or through a customer portal.
5.7 SMARTCHARGERS is entitled to require security for the Customer's compliance with its payment obligations. This security may be provided by issuing an unconditional and irrevocable bank guarantee in favor of SMARTCHARGERS at SMARTCHARGERS's first request or by providing personal security in the form of sureties or declarations of liability (hereinafter collectively the "Guarantee"). In the case of a partnership, the directors are in any case personally and jointly and severally liable for the fulfillment of obligations by the partnership under the Lease Agreement. The Customer shall notify SMARTCHARGERS by return of registered letter as soon as the Customer becomes aware of (the intention to) withdraw a Guarantee. Without prejudice to SMARTCHARGERS' other rights, it will in that case be entitled to demand additional or replacement security from the Customer. The Customer shall be obliged to supplement or replace such security. If a Guarantee of a third party for the Customer's obligations has been or is withdrawn, SMARTCHARGERS will be entitled immediately and by operation of law, without notice of default or other formality, to terminate the Lease and immediately proceed to collect the amounts still owed by the Customer, including the compensation provided for under Article 10 in the event of early termination or termination.
5.8 Unless otherwise stated above, all invoices are payable at the address of SMARTCHARGERS' registered office and, unless otherwise stipulated, must be paid within 14 days of the invoice date. In the event of failure to pay on time, interest on arrears of 1.5% per month will be owed, ipso jure and without notice of default, as well as a fixed compensation of 10% with a minimum of EUR 65, by way of irrevocable damages and irrespective of the legal costs. Per reminder sent, an additional reminder fee of 15,00 Euro will be charged in addition to the costs for registered mail. All complaints and protests must be formulated within 7 days of the invoice date.
5.9 The Customer must always promptly inform SMARTCHARGERS of any changes in the address and billing information communicated when the Lease was signed.
Article 6 - Transfer of the Rental to a Partner
6.1 The Customer irrevocably grants to SMARTCHARGERS the right to transfer ownership of the Charging Facilities and the Rental to a leasing company and/or a partner of SMARTCHARGERS (hereinafter the "Partner"). The Customer hereby consents to this transfer and shall be legally bound to the Partner to perform the obligations under this Lease. Upon notification of the transfer, the Rent shall only be paid in full discharge to the Partner, who shall then have all rights and obligations of SMARTCHARGERS with respect to this Lease.
6.2 SMARTCHARGERS shall additionally have the right to waive or pledge the claim arising from this Lease. If the waiver or pledge is made later than when this Lease is signed, the Customer declares that it has been sufficiently informed of such waiver or pledge by simple letter from SMARTCHARGERS.
6.3 The Customer is not permitted to sell, pledge, transfer or encumber any rights and obligations arising from the Lease in whole or in part to third parties.
6.4 Upon an assignment of the Lease as provided in Section 6.1, the Partner shall not indemnify the Concealed Breach. No recourse may be exercised against the Partner for such breach. SMARTCHARGERS (and not the Partner) will continue to indemnify the Customer for hidden defects on an exceptional basis, which the Customer expressly accepts, and this irrespective of the assignment of the Hire to the Partner. The Customer will therefore turn exclusively to SMARTCHARGERS for these complaints, and exercise all recourse against the latter.
Article 7 - Liability and damages
7.1 The Customer indemnifies SMARTCHARGERS against all claims by third parties, including employees, for compensation for damage (partly) caused by, or in connection with, the Charging Installations or the use of the Charging Installations, insofar as the damage to third parties was caused by defects in the Charging Installations, of which SMARTCHARGERS is not the supplier. The Customer waives any recourse against SMARTCHARGERS for any damage caused by the rented Charging Installations to its own patrimony. The Customer shall indemnify SMARTCHARGERS against all claims by third parties, including claims by persons whose personal data have been registered or are being processed in the context of a register of persons kept by the Customer or for which the Customer is otherwise responsible, for compensation for damage (partly) caused by or in connection with the equipment or the use of the Charging Installations or their condition.
7.2 SMARTCHARGERS' liability for any loss of enjoyment, loss of profit and/or indirect damage is excluded in any case, and SMARTCHARGERS will not be able to be held liable for any compensation for this under any circumstances. For direct damage, SMARTCHARGERS's liability is limited to what it is insured for, in particular a maximum of EUR 100,000.00 for material damage and EUR 20,000.00 for physical damage. In case of non-conformity or defects of the Charging Plants, for which SMARTCHARGERS is obliged to intervene, SMARTCHARGERS's liability and intervention shall be limited exclusively to repairing or, as the case may be, replacing the defective or non-conforming Charging Plants.
7.3 In case of loss or destruction of the leased Charging Equipment, regardless of the cause, the Customer shall indemnify SMARTCHARGERS for all damages suffered by the latter.
7.4 In the case of multiple tenants, each individual tenant shall be jointly and severally liable for the performance of the Lease.
Article 8 - Right of rescission and termination
The Rental Agreement may be terminated by right by SMARTCHARGERS by ordinary written notice to the Customer, without any judicial formality:
If the Customer should unilaterally terminate or breach the Lease early and prior to the expiry of the contractual term or commit a contractual breach, the Customer shall owe SMARTCHARGERS at least liquidated damages as provided below. In all cases of premature termination, without prejudice to SMARTCHARGERS's right to full compensation, the Customer will owe SMARTCHARGERS, in addition to the expired and unpaid sums, plus interest on arrears, compensation fixed at the value of the rental instalments still due, plus the residual value, plus EUR 150 + VAT handling charges, on the one hand. The Customer expressly waives the benefit of Article 1231 of the Civil Code. This compensation does not cover the loss in value resulting from the damaged condition of the returned equipment. This loss of value must be compensated separately. The payments made by the Customer will first be charged on the stipulated compensation and on the interest on arrears, then on the unpaid costs and finally on the principal sums. This settlement shall also be applied in the event of a total loss determined and confirmed by expert assessment.
Article 9 - End of the Agreement
9.1 The Customer is obliged to make the Charging Installations available to SMARTCHARGERS in good and complete condition at the end of the Lease for any reason.
9.2 The cost of return transportation shall be borne by the Customer.
9.3 If the Customer refuses to make the Charging Installations available to SMARTCHARGERS at the end of the Lease in accordance with Clause 9.1, a lump-sum compensation of EUR 100.00 per Charging Pole per day, including part of a day, for each day that the Charging Pole is not surrendered with a maximum of EUR 5,000.00 per Charging Pole will be imposed by operation of law and without prior notice of default.
Article 10 - Property Rights.
10.1 For the entire term of the Lease, the Charging Facilities, including all accessories, shall remain the property of SMARTCHARGERS or its assigns.
10.2 The Customer is not permitted to rent out or sublet the Charging Installations, to assign their use to third parties under any title whatsoever, or to pledge, sell, alienate or otherwise encumber them, or to assign them to third parties in any other way. The Customer is not permitted to remove, cover up, change (or cause to be changed) or damage the trademarks, numbers, names and/or other inscriptions affixed to the Charging Installations, or to add any other to them. Any necessary or desired changes to the Charging Installations may only be made by SMARTCHARGERS.
10.3 The Customer is obliged to immediately notify any person who wishes to exercise any right to, or in respect of, the Charging Facilities that the Charging Facilities are the property of SMARTCHARGERS. The Customer will also immediately notify SMARTCHARGERS by registered letter, submitting all relevant documents, of (i) imminent enforcement measures, (ii) attachment or retention of all or part of the leased Charging Installations, (iii) accident involving all or part of the leased Charging Installations, (iv) requisition theft, or (v) damage to the leased Charging Installations.
10.4 If the Charging Equipment would be considered immovable by incorporation, SMARTCHARGERS and the Customer agree to consider the Charging Equipment as movable in advance by the fact that it will be detached within a technically and economically reasonable period at the expiration of the Lease.
Article 11 - GDPR
SMARTCHARGERS respects the Customer's privacy and processes the Customer's personal data for the purpose of customer or prospect management this in accordance with the applicable regulations (in particular Regulation No. (EU) 2016/679 of 27 April 2016 on the protection of natural persons with regard to the processing of personal data). These processing operations are carried out on the basis of the Customer's consent and the agreements made. By signing this Lease, the Customer accepts that SMARTCHARGERS may perform solvency checks. These data may be used by SMARTCHARGERS or its group for the execution of the Lease Agreement, the fulfillment of their legal obligations and in order to send information regarding products or services that may be of interest to the Customer. These data may also be transmitted to the Partner in the context of a transfer of the Rental. This collection is done in accordance with the privacy policy of the SMARTCHARGERS concerned. The Customer has the right to be informed about its personal data processed by SMARTCHARGERS and/or SMARTCHARGERS, as well as to ask for the rectification of inaccurate data, the deletion of data and/or the restriction of processing, always to the extent provided for in the applicable regulations. The Customer also has the right to object to any processing and to request the transfer of personal data, again in accordance with applicable regulations. The Customer may exercise these rights by sending a written request to SMARTCHARGERS and/or SMARTCHARGERS, dated and signed, with a copy of both sides of the identity card attached. In case of problems, the Customer has the right to complain to the Belgian Data Protection Authority (Printing Press Street 35, 1000 Brussels +32 (0)2 274 48 00; +32 (0)2 274 48 35; contact@apd-gba.be).
Article 12 - Applicable law and choice of forum
Any dispute relating to the Lease, its execution, interpretation and termination shall be subject to the exclusive jurisdiction of the Dutch-speaking courts of Brussels. The Rental Agreement is governed by Belgian law.
