In this Agreement, the following terms shall have the meaning as given hereunder:
Agreement meansthis agreement including the Specific Terms and Conditions, the General Terms and Conditions and the Appendixes.
Appendix means an appendix to this Agreement.
Article means an article of either the General Terms and Conditions or the Specific Terms and Conditions, depending on the context.
Base Deed meansthe base deed, the regulations of co-ownership and the rules of internal order in relation to the Eurobuilding, as attached to this Agreement as Appendix 2, as referred to in Article 11.
Client means the legal entity with whom the Service Provider has entered into this Agreement.
Eurobuilding means the building on and with land located at Plantin en Moretuslei 285, 2140 Antwerpen.
Fee means the fee, as referred to in Article 6, due by the Client in return for the rendering of the Services by or on behalf of the Service Provider to the Client and its Worforce.
General Terms and Conditions means the general terms and conditions set out in this Appendix 4.
Indexed Fee has the meaning given to it in Article 7.
Internal Rules means the Property’s internal rules, as referred to in Article 11.
Manager means the Service Provider.
Modification Effective Date thedate as of which the possible modification/switch of premises shall have effect in accordance with Article 2.
Occupant means an individual workforce whose name and details are mentioned on the “List of authorized Occupants” attached to this Agreement as Appendix 3 as the case may be modified in accordance with Article 20, entitled by the Client to make use of the Services (including occupation of the Premises (or a part thereof)) in accordance with the provisions of this Agreement, with whom the Client has entered into a labour agreement, and whereby this individual’s right to make use of the Services is accessory to its labour agreement.
Parties means the Service Provider and the Client.
Party means the Service Provider or the Client, each being referred to individually.
Police Regulation means the Antwerp police regulation for the letting of rooms for temporary accommodation of workforces.
Premises means the premises being made available to the Client and the Occupants pursuant to this Agreement, subject to modification in accordance with Article 2.
Property means the building, comprising of 95 rooms suitable to provide housing accomodation to 183 persons as well as multiple common areas, with a total surface of approximately 3,600 sqm, in which the Service Provider will render the Services.
Security Deposit means the security deposit, as referred to in Article 16, paid by the Client into the Service Provider’s bank account as security for the fulfilment of any obligations by the Client under this Agreement.
Service Provider means FRECO BV, private limited company incorporated under Belgian law, with registered office at Lage Kaart 79 2930 Brasschaat, registration number 0691.981.073.
Services means the services that are rendered by or on behalf of the Service Provider to the Client pursuant to this Agreement, as limitatively listed in the Specific Terms and Conditions.
Special Terms and Conditions means the special terms and conditions set out in this Agreement.
Starting Date means the date as of which this Agreement shall enter into force.
Pursuant to this Agreement, the Service Provider undertakes to render the Services to the Client and the Occupants, in accordance with the terms and conditions of this Agreement, and the Client accepts this.
This Agreement does not qualify as a ‘lease’ agreement in the sense of article 1709 of the (old) Civil Code (or any future law or decree that would replace this legislation) but it is to be considered as a sui generis accommodation services agreement because of the predominant aspect of the Services rendered by or on behalf of the Service Provider other than the access to and availability of the Premises. Consequently, this Agreement shall not be governed by any provisions on lease imposed by any present or future legislation, including but not limited to article 1762bis of the (old) Civil Code and any future law or decree that would replace this legislation. This paragraph is an essential element of the Agreement without which the Service Provider would not have concluded it.
The Service Provider shall, at its sole discretion, be entitled to modify or switch the designated rooms, parking spaces and/or common spaces being made available to the Client and the Occupants at any moment in time should this be required for the internal organisation of the Property or any other objective reason that justifies such change. Unless in the event of force majeure, the Service Provider acknowledges that the above described modification will not have an impact on the actual number of rooms, parking/common spaces being made available to the Client and the Occupants, nor on the Services rendered. The Service Provider undertakes to notify the Client in advance of any modification/switch in application of this clause, whereby:
- the notification of the Service Provider must clearly mention the premises that will be no longer available to the Client and the Occupants and therefore need to be vacated as well as those premises which are (newly) made available to the Client and the Occupants;
- the date as of which the modification/switch shall have effect (the Modification Effective Date) will be mentioned in the Service Provider’s notification, on the understanding that the Modification Effective Date shall not fall before [five (5) calendar days] have lapsed after receipt of the Service Provider’s notification in application of this clause;
- as of the Modification Effective Date the concept of “Premises” shall, for the application of this Agreement, be deemed to exclude those premises that are no longer available to the Client and the Occupants as indicated in the Service Provider’s notification; as for what concern these premises the Agreement shall be deemed to be terminated as of the Modification Effective Date and the provisions of Article 13 shall apply mutatis mutandis in relation thereto.
- as of the Modification Effective Date the concept of “Premises” shall, for the application of this Agreement, be deemed to include those premises that are (newly) made available to the Client and the Occupants as indicated in the Service Provider’s notification; with respect to these premises, a physical tour will take place in the presence of the Service Provider and the Client’s representative by the date on which the first of the following two events occurs: (i) the Modification Effective Date; (ii) the date on which the Occupant(s) take(s) effective possession of these premises (or a part thereof); during this tour an entry survey of the Premises as well as an inventory of any loose infrastructure present in the Premises shall be drawn up and signed on behalf of both Parties. The Client shall hand over a copy of this entry survey and inventory to each Occupant.
The Premises are perfectly known to the Client, which therefore does not require any further description thereof.
The Client accepts the Premises in their condition at the Starting Date (or as the case may be the Modification Effective Date) and hereby exempts the Service Provider from performing any works in the framework of making the Premises available to the Client and the Occupants pursuant to this Agreement.
[The surfaces mentioned in the Special Terms and Conditions (if any) are for indicative purpose only and are not guaranteed. [JV1] Each Party waives all rights of recourse against the other Party in the case where the actual surfaces vary, in more or in less, from those mentioned in this Agreement.]
The Premises are hereby made available to the Client and the Occupants subject to all the easements it may benefit from or be encumbered by at the time when this Agreement is signed or by which they may subsequently be encumbered. The Client shall be barred from creating any easements over the Premises.
The Service Provider shall be entitled to put other premises located within the same Property at the disposal of other parties or occupants, whether or not they exercise the same activity as the Client, and the Service Provider hereby disclaims any liability in this respect.
- Use of the Services
The Services are to be used solely by the Client (and its workforce as specified hereunder), it being understood that:
- the Client is allowed to have the Services (including access to and availability of the Premises) used by the Occupant(s), i.e. only the individual(s) listed in the “List of authorized Occupants” as attached to this Agreement as Appendix 3, as the case may be modified in accordance with Article 20 (with the exclusion of any other third parties) provided that the Occupant(s) has/have undertaken in writing the commitments as stipulated hereunder and that the Client shall, in accordance with Article 17, be liable for the proper and complete performance by the Occupant(s) of any obligations incumbent upon the latter resulting from this Agreement, the Base Deed and the Internal Rules;
- [the Occupant(s) is/are not allowed to establish its/their principal residence in the Premises or the Property]; [JV2]
- a double room (two beds) in the Premises cannot be occupied by more than two Occupants and a single room (one bed) in the Premises cannot be occupied by more than one Occupant; and
- the Occupant(s) is/are not allowed to bring visitors into the Eurobuilding.
Under no circumstances is the Client allowed to change the designated use of the Premises.
- commitment by the Occupant to respect this Agreement, the Internal Rules and any other Appendix of this Agreement;
- acknowledgement and acceptance by the Occupant that the right to use the Services is accessory to the labour agreement entered into between the relevant Occupant and the Client, in the sense that the aforementioned right to use the Services shall terminate automatically and by operation of law if the underlying labour agreement comes to an end for any reason whatsoever, without any right or recourse against the Service Provider;
- acknowledgement and acceptance by the Occupant that no contractual relationship exists and in no circumstance will exist between the Service Provider and the Occupant and that the Client is and will remain the only counterparty of the Occupant, so that the Occupant has and in no circumstance whatsoever will have any right or recourse against the Service Provider.
It is expressly stated that the Premises may not under any circumstance be used for or in connection with a retail business or with the activities of a craftsman who operates in direct contact with members of the public which means that this Agreement is not and shall never be governed by the law of 30 April 1951 governing retail leases (and any future law, decree or order that would implement or replace the aforementioned legislation). This clause is an essential element of the Agreement without which the Service Provider would not have concluded it.
The Services are rendered by or on behalf of the Service Provider in order to temporary accommodate, in accordance with the Police Regulation, the Client’s workforces with whom it has entered into labour agreements and are directly involved in executing Client’s operations in Belgium. The Service Provider’s business concept aims to quickly respond to the needs of clients active in the [construction sector] to accommodate their workforces on a temporary basis. As such the Premises may under no circumstance be used for establishing a principal residence which means that this Agreement is not and shall never be governed by the Residential Housing Act of 20 February 1991 nor by the Decree of 9 November 2018 on the letting of goods destined for housing or parts thereof (and any future law, decree or order that would implement or replace the aforementioned legislation). This clause is an essential element of the Agreement without which the Service Provider would not have concluded it.
The Client hereby undertakes to use and occupy the Premises with due care and attention and never to carry out any activity which is noisy, which might interfere with or disturb the other occupants’ peaceful use/enjoyment or which might jeopardise the reputation of the Property or the Eurobuilding. In particular, the Client shall be barred from storing on the Premises any materials or substances which might harm health and safety on the Premises, even if these materials or substances are merely intended to be used as samples. The parking spaces may only be used for parking [cars, motorcycle, scooter and small vans][JV3] . It is strictly forbidden to store goods or to wash/maintain vehicles in the parking spaces. The Client may not proceed with any public sales of furniture or other goods on the Premises for any reason and in any form whatsoever. The Client may not install telephone infrastructure, radio and television sets, computers and other technical devices on the Premises. In accordance with safety rules, fire doors must never be kept open.
The respect by the Client of the designated use of the Premises throughout the entire duration of the Agreement is an essential element of the Agreement without which the Service Provider would not have concluded it. In the event that the Client and/or the Occupant change(s) the designated use without the Service Provider’s prior and express written consent, this is a ground for dissolution of the Agreement subject to the terms and conditions of Article 5.
As an essential condition for the Service Provider and the Client based on which they rely when entering into this Agreement, this Agreement is concluded for the term which is stated in the Special Terms and Conditions.
The Parties shall not be entitled to terminate the initial duration of the Agreement before its expiration date, without prejudice to Article 5.
This Agreement shall come to an end definitively upon the expiration of the initial term without a notice of termination being required. Under no circumstances tacit renewal or tacit extension of the Agreement is possible.
Each Party [A4] reserves the right to unilaterally terminate this Agreement before its expiration, if:
– the other Party ceases or threatens to cease its activities;
– the other Party ceases its payments, declares bankruptcy, declares bankruptcy, commences liquidation or similar proceedings, when a receiver is appointed in respect of part or all of its assets or when a court decision cannot be enforced (without prejudice to Article 6 in fine);
– the other Party engages in fraud or any conduct contrary to commercial practices;
– the other Party is unable to perform its obligations under this Agreement for more than [six (6) months] due to a force majeure event;
– after having sent a notice of default to the other Party whereby the default concerned has not been remedied within [fifteen (15) calendar days] following the date of receipt of the notice of default, the Client and/or any Occupant (if the Service Provider invokes application of this clause) or respectively the Service Provider (if the Client invokes application of this clause ) is in serious or repeated default under any obligation incumbent upon them in accordance with this Agreement, it being understood that the following cases will in any case be considered as a justified reasons for unilateral termination of the Agreement by the Service Provider (non-exhaustive enumeration):
- serious or repeated failure by the Client or any Occupant to respect the designated use of the Premises in accordance with this Agreement, the Based Deed and the Internal Rules;
- serious or repeated failure by the Client or any Occupant to respect the Internal Rules;
- failure by the Client to pay the Fee for one (1) quarter in accordance with Article 6;
- whole or partial cancellation by Client of the Agreement before the Starting Date; and
In the event of termination of the Agreement to the prejudice of the Client in accordance with this Article 5, the Client shall bear all costs, expenses of any kind, including the legal costs and lawyers’ fees of the Service Provider, arising or that will arise from this termination, and in addition to the Fee for the quarter in which this Agreement was terminated and any other sums due under this Agreement, as well as compensation in the amount of [six (6) months] Fee, plus VAT if applicable, whereby the Service Provider reserves the right to claim a higher compensation if and insofar as the amount of the actual damage in this respect is higher. It is expressly stipulated that only the Service Provider can exercise the right, in the event of fault on the part of the Client/Occupant(s), to claim the unliteral termination of the Agreement and payment of these damages. The Client cannot invoke his own fault to claim the termination and/or dissolution of this Agreement due to his own fault by paying a termination fee. This clause can therefore in no way give the Client the right to terminate/dissolute the Agreement subject to payment of the damages mentioned in this clause.[A5]
In case the Occupant(s) would continue occupying the Premises (or a portion of it) despite the termination of the Agreement or, as the case may be, the Agreement as extended in accordance with Article 4, then this continued occupation of the Premises can under no circumstances lead to a renewal or an extension of the Agreement nor can it give rise to a direct relationship between the Occupant(s) and the Service Provider; in such a case, the Service Provider shall be entitled to have the relevant (part of the) Premises vacated at the Client’s expense and risk, without any recourse against the Service Provider.
The Fee that is due by the Client in return for the rendering of the Services by or on behalf of the Service Provider, is stated in the Special Terms and Conditions.
The Fee shall be payable monthly in advance on 1st of the month, in euros, into the bank account held by the Service Provider as determined in the Specific Terms and Conditions. The Client undertakes to pay the Fee by means of a standing order that he places with his financial institution. The Client shall provide the Service Provider with evidence of such standing order at the beginning of the Agreement. Unless otherwise stated herein, the fee payable in connection with the first and last period of this Agreement shall be calculated pro rata. Fee instalments shall be payable whenever they fall due without any need for prior notification.
The Service Provider reserves the right, in the event that the Client fails to pay any outstanding sums under the Agreement, to suspend the rendering of Services and all other performances and obligations under this Agreement towards the Client until all due sums are effectively settled.
Set-off of any sums due by the Client to the Service Provider under this Agreement against any potential claims from the Client is not permitted. However, the Service Provider is entitled at any time, even in the event of bankruptcy, WCO proceedings, judicial reorganisation or any other insolvency proceedings of the Client, to apply set-off between any reciprocal receivables that exist (at any moment) between the Service Provider and the Client, including but not limited to the Security Deposit. This set-off can be applied by the Service Provider regardless of the subject-matter, form or origin of the reciprocal receivables.
The amount of the Fee is linked to the consumer price index which is published monthly by the Ministry of Economic Affairs.
The fee due under this Agreement shall be indexed automatically on an annual basis, and for the first time at the anniversary date of the Staring Date, on the basis of the positive evolution of the consumer price index, based on the following formula:
Indexed Fee = (Fee * New Index) / Base Index, whereby
– Fee = Fee as referred to in Article 6;
– New Index = consumer price index which is published monthly by the Ministry of Economic Affairs for the month preceding the month of indexation; and
– Base Index = consumer price index for the month preceding the month during which the Parties agreed on the Fee.
The indexation will occur automatically without prior notice, on the understanding that the indexed fee (the Indexed Fee) shall never be set lower than the last Indexed Fee that was applicable on the date of the indexation.
It is expressly agreed that a waiver by the Service Provider pertaining to the increases resulting from the present clause shall only be valid if made in writing.
Should the basis for calculation of the official consumer price index be modified or should the index be abolished, the Parties hereby agree that the fee shall be linked to the conversion rate published in the Belgian Official Gazette (Belgisch Staatsblad/Moniteur Belge), or to any other system which shall replace this index to serve as the basis for remuneration of civil servants, provided that this provision shall never cause the reviewed fee for a given period to be set lower than the latest fee applicable as calculated in accordance with the previous method of calculation of the index. In the event that there is no such index calculation system in force, whatever the reason for this, the Service Provider shall be entitled to increase the fee in line with the increase in the cost of living. The Parties shall use their best efforts to reach agreement over the use of a suitable replacement formula. Should the Parties fail to reach agreement over this matter, they hereby agree to submit their dispute concerning the replacement formula and the indexing of the rent to the arbiter in accordance with Article 28.
- Late payments
Without prejudice to any other right or remedies of the Service Provider and in accordance with the law of 2 August 2002 combating late payment in commercial transactions, any sums due or which could become due by the Client under this Agreement shall automatically and without any notice, without prejudice to the following paragraph, accrue interest as of their due date at a rate fixed in accordance with the law of 2 August 2002 concerning the fight against late payment in commercial transactions, as communicated by the Ministry of Finance. This interest rate shall never be less than [ten percent (10%)] per year. Should such delay in payment exceed fifteen (15) calendar days after the issuance by the Service Provider of a registered letter of summons, an additionnal irreductible penalty equal to [ten percent (10%)] of the late amounts shall be due to the Service Provider.
- VAT
The Fee will be subject to VAT. In accordance with article 6, VAT on the Fee shall be due in one go, at the time when the payment of the Fee takes place. This VAT shall be invoiced via a VAT-compliant invoice to be provided by the Service Provider.
The Fee includes the cost of the Services, of the real estate withholding tax (onroerende voorheffing/précompte immobilier), and of the insurance premium concerning fire and natural risks concerning the Premises as taken out by the Service Provider in accordance with Article 18.[A7] [FF8] [JV9]
For the avoidance of doubt, the Fee is exclusive of VAT and of any costs and charges that would be incurred by the Service Provider for a reason attributable to the Client and/or the Occupant(s) including but not limited to any costs of repair required to have the Premises (including the loose infrastructure present therein) reinstated in their original condition in accordance with Article 13.
The Client hereby acknowledges, accepts and undertakes to abide by the provisions of the base deed, the regulations of co-ownership and the rules of internal order (hereinafter collectively referred to as the Base Deed) attached to the Agreement as Appendix 2 and the Property’s internal rules attached to this Agreement as Appendix 1 (the Internal Rules), as well as any other guidelines and instructions which the Service Provider shall impose upon all the occupants of the Property.
The Client also undertakes to comply with any modifications and amendments which are made to the Base Deed and/or to the Property’s Internal Rules and which are notified in writing to the Client. The modifications and amendments in question shall come into force one (1) month after the date on which the notification is sent out. The Client shall provide each Occupant with a copy of the Internal Rules and the Base Deed (including any written notifications on amendments of modifications thereof).
The Client hereby undertakes to ensure that the Occupants who enter the Property and/or the Premises with its consent shall abide by the foregoing undertakings, without prejudice to Article 3. The Client shall be fully and integrally liable for any breach by the Occupant(s) of any provision of the Internal Rules and/or the Base Deed, and the Client undertakes to indemnify and hold the Service Provider harmless for any damages incurred by the latter resulting from such a breach.
In case of contradiction between the Property’s Base Deed and this Agreement and/or the Internal Rules, the Base Deed shall prevail. In case of contradiction between the Property’s Internal Rules and this Agreement, the Agreement shall prevail.
A physical tour of the Premises will take place in the presence of the Service Provider and the Client’s representative at the latest by the date on which the first of the following two events occurs:
- the Starting Date;
- the date on which the Occupant(s) take(s) effective possession of the Premises (or a part thereof).
During this tour an entry survey of the Premises as well as an inventory of any loose infrastructure present in the Premises, shall be drawn up and signed on behalf of both Parties.
The Client shall hand over a copy of this entry survey and inventory to each Occupant.
Upon expiry of this Agreement or in case of earlier termination of this Agreement, for any reason whatsoever, the Client shall return the Premises (and any loose infrastructure present therein) to the Service Provider in their original condition as described in the entry survey and inventory (except for normal wear and tear).
The Client shall be liable for any damage (except for normal wear and tear) or loss caused to the Premises [A10] and any loose infrastructure present therein, by reference to the entry survey and inventory.
Any work, action or measure which would be required to reinstate the Premises and any loose infrastructure present therein to their original condition (except for normal wear and tear), including but not limited to any purchase in order to replace any stolen or damaged loose infrastructure, will be carried out by or on behalf of the Service Provider but at the expense of the Client.
At the end of the Agreement, a physical tour of the Premises will take place in the presence of the Service Provider and the Client’s representative. During this tour an entry survey of the Premises as well as an inventory of any loose infrastructure present in the Premises, which shall be binding on both Parties, shall be drawn up and signed on behalf of both Parties, in order to ascertain the liability of the Client in accordance with this Article 13 and the amount of damages which the latter must pay for.
Should the Client not fulfil the obligation to return the Premises and/or, as the case may be, the loose infrastructure present therein present in their original condition by the end of the Agreement, the Client, without prejudice to its other obligations, must pay the Service Provider a minimum compensation equivalent to the monthly Fee payable at the time when this Agreement ends, per month of vacancy (until they have been reinstated to their original condition). The minimum period shall be one month, and any month which has started shall be counted as for a full month.
The Client procures at its own risk and costs that, upon the expiry of this Agreement or in case of earlier termination of this Agreement, the Premises shall be vacated no later than by the end of the Agreement. Should the Premises not be vacated by the end of the Agreement, the Service Provider shall be entitled to have them vacated at the expense of the Client.
- Transformation/alteration
The Client may not make any changes or alterations, nor proceed with any construction or demolition work on the Premises.
The Service Provider shall be responsible for any maintenance works in relation to the Property and/or the Premises, without prejudice to the responsibilities incumbent upon the Client and the Occupant(s) particularly in terms of maintenance and use in relation to the Property, the Premises (including the loose infrastructure present therein), as set out in this Agreement, the Internal Rules and the Base Deed.
The Client shall endure any maintenance works, modifications or enhancements or other works in relation to the Property and/or the Premises which the Service Provider considers to be necessary or useful during the entire term of this [A12] Agreement without being entitled to claim any compensation or fee reduction, whatever the duration of such work. The Client shall endure in the same manner all works that would be performed on the public road or in the neighbouring properties, even though these works would inconvenience the occupation of the Premises and without the Service Provider being troubled in any way in connection thereto.
The Client may not claim any compensation or fee reduction in case of any inconvenience, damages, or in case of any interruption or temporary breakdown/suppression in the Property’s services as a result of any maintenance works, enhancements or alterations or as a result of any events which are beyond the control of the Service Provider. In particular, the Service Provider shall not be liable for inconvenients or damages in relation to the disfunctioning of one or several collective or private equipments or facilities existing in the Property or in the Premises, whatever the duration and the origin. Where any interruption in the Property’s services arises owing to a cause which is beyond the control of the Service Provider, provided that the latter has taken reasonable care to ensure the operation of these services or their reinstatement, the Client shall be barred from claiming any compensation from the Service Provider for any inconvenience which the Client may be exposed to as a result. Without prejudice to the foregoing, and without prejudice to the responsibilities incumbent upon the Client and the Occupant(s) pursuant to this Agreement, the Service Provider shall be responsible for keeping up to standards the Property’s infrastructure. Any interventions that would be required in order to have any defect to the Property repaired and/or to have remedied any inconvenients or damages in relation to the disfunctioning of one or several collective or private equipments or facilities existing in the Property or in the Premises shall be coordinated by the Manager and the latter shall endeavor to limit the throughput time for the relevant reparation or remediation as much as possible.
The Client shall allow the Service Provider or any other person designated by the Service Provider to access the Premises in order to carry out inspections, maintenance works and other works, to render the Services, and in order to ascertain the state of the Premises in general, subject to observing the terms and conditions of the Internal Rules in this respect.
As security for the fulfilment of any obligations by the Client under the Agreement, the Client must establish on the date of signature of this Agreement a guarantee in the form of a security deposit for the benefit of the Service Provider (the Security Deposit).
The Client shall pay the Security Deposit into the Service Provider’s bank account. The account details as well as the amount of the Security Deposit are determined in the Specific Terms and Conditions. The Client undertakes to update the amount of the Security Deposit on a yearly basis so that it corresponds at all times to the amount of the security deposit as determined in THE Specific Terms and Conditions, as indexed as the case may be in accordance with Article 7.
This guarantee shall be abstract, irrevocable and unconditional and may be used by the Service Provider on its first demand, if and to the extent that the Client fails to comply with any present or future obligations incumbent upon the Client towards the Service Provider under this Agreement including any failure by the Client to pay the fee or any fines or to indemnify the Service Provider for any damages etc..
The guarantee will automatically terminate on the latest of the following dates: (i) [one (1) month] after the end of the Agreement or (ii) when the Client has fulfilled all his obligations under this Agreement, as shown in the written consent of the Service Provider or upon presentation of an enforceable arbitral decision. Within fourteen (14) days following the termination of the guarantee in accordance with the aforementioned provisions, the security deposit will be returned by the Service Provider to an account to be indicated by the Client, without prejudice to the Service Provider’s right to apply set-off, in accordance with the provisions of Article 6, between the Security Deposit on the one hand and any receivable which the Service Provider has towards the Client at that moment on the other hand.
If the security deposit has been used, wholly or partially, during the term of the Agreement (as the case may be extended in accordance with Article 4), the Client will have to renew or, as the case may be, reconstitute it, each time within five (5) calendar days from the use thereof by the Service Provider, up to the amount as determined in the Specific Terms and Conditions, as indexed as the case may be in accordance with Article 7.
- Assignment and putting the Premises (or a part thereof) at the disposal of third parties
The Client may not wholly or partly put the Premises at the disposal of any third party other than the individuals as listed in the “List of authorized Occupants” attached to this Agreement as Appendix 3, as the case may be modified in accordance with Article 20, without prejudice to Article 3.
Should the Client put the Premises (or a part thereof) at the disposal of an individual as listed in the aforementioned “List of authorized Occupants”, the Client shall remain liable for any of its obligations under this Agreement and the Client shall furthermore be fully and integrally liable towards the Service Provider for the proper and complete performance by the Occupant(s) of all obligations incumbent upon the Occupant under this Agreement, the Base Deed and the Internal Rules. Under no circumstances shall the term of the putting at the disposal of the Premises (or part thereof) by the Client to an Occupant exceed the term of this Agreement. The putting at the disposal of the Premises (or a part thereof) by the Client to an Occupant can under no circumstance give rise to a direct relationship between the Occupant and the Service Provider.
The Client may not assign this Agreement without the prior, express and written consent of the Service Provider, which consent the Service Provider shall always be entitled to refuse without motivation.
Should the Client assign this Agreement with the consent of the Service Provider to a third party, the Client and its assignee shall be jointly and severally liable towards the Service Provider for performing all of the Client’s obligations under this Agreement. The Client hereby undertakes to ensure that its assignee signs a similar written undertaking towards the Service Provider, unless the Service Provider expressly renounces the benefit of same.
The Service Provider shall be authorized to assign this Agreement at any time in favour of any third person or company and this, for any reason whatsoever and without the approval of the Client being required in order to release the Service Provider from its obligations under this Agreement, the Client hereby already accepting such assignment.
The Service Provider declares that he has taken out an insurance policy against fire and other natural risks in respect of the Property (including the Premises) at market conditions. This insurance covers [description of risks being covered – including risk of liability towards neighbors, tenant liability, business interruption, loss of income, etc.][A13] . The insurance premiums in this regard are paid by the Service Provider.
In this regard, the Client acknowledges and accepts, without having any right of recourse against the Service Provider, that all compensation received from the insurance company in connection with the aforementioned insurance policy will be paid to the Service Provider which will be the only entitled party in this regard.
In the case of an increase in the insurance premiums which the Service Provider has to pay and provided that such increase has been caused by an act of negligence committed by or any other reason attributable to the Client or any Occupant, this price increase shall be exclusively at the expense of the Client.
Parties mutually waive any recourse they may have, in the context of the abovementioned insurance policy, against each other and against any Occupants, transferors, assignees, users and managers of the Property with respect to any damages or accidents.
- Risks and liabilities – exoneration of the Service Provider and its successors and assignees
As from the Starting Date:
- Nothing in this Agreement attempts to limit or exclude any liability that cannot be legally limited, including any liability for: i) death, personal injury and/or psychological injury or distress caused by negligence; ii) fraud or fraudulent misrepresentation; iii) for any act, omission or matter, liability for which may not be excluded or limited under any applicable laws.
- The Service Provider shall be solely liable for its own obligations under this Agreement. The Service Provider’s total aggregate liability under or in connection with the Agreement shall in all circumstances be limited to the amount equal to 2 times the Monthly Fee.
- In any event, the liability of the Service Provider shall be limited to direct damage, excluding any indirect or consequential damage (including but not limited to loss of profit, loss of production, loss of opportunities,…).
- The Client is liable for all risks relating to the use by the Occupant(s) of the Property and the Premises (including the loose infrastructure present therein), irrespective of their extent, nature or cause, without any recourse against the Service Provider, if and to the extent that such risks are caused by the Client or any other person for whom the Client is responsible including the Occupant(s));
- the Client waives any claim against the Service Provider for theft, riots or any other disturbances occurring near or within the Property and/or the Premises (including for any theft, loss or other disturbance in relation to any loose infrastructure or any personal belongings of the Occupant(s)), if and to the extent that such theft, riot or any other disturbance is committed/caused by the Client or any other person for whom the Client is responsible including the Occupant(s);
- the Client shall be liable for any accidents and any damage or loss arising in or related to the Property and/or the Premises (including any loose infrastructure present therein or any personal belongings of the Occupant(s)), without any recourse against the Service Provider (if and to the extent that such accidents, damage or loss are caused by the Client or any other person for whom the Client is responsible including the Occupant(s));
- the Client shall indemnify and hold the Service Provider harmless against any claims and liabilities deriving from the use of the Services (including but not limited to occupation of the Premises) by the Occupant(s) (including but not limited to any claim made by a third party on the basis of articles 544 et seq. and insofar as necessary, 1384 and/or 1386 of the (old) Belgian Civil Code);
- the Client expressly waives without reservation any recourse that he may exercise towards the Service Provider under article 6.3, first paragraph of the Belgian Civil Code, as a result of which any form of extra-contractual liability arising from the execution of the Agreement cannot be invoked against the Service Provider (and its auxiliary persons, affiliates and representatives) (within applicable statutory and legal limits).
The Client procures that the Occupants and insurers shall consent in writing to the same waivers of claims and recourse, and the Client shall indemnify and hold the Service Provider harmless against any such claim or recourse that may be exercised by any of the Occupant(s) or insurers.
In the event that proceedings are brought against the Service Provider, before any public authority or private body, as a result of any Occupant’s presence in the Premises, the Client undertakes to intervene voluntarily in the dispute, to indemnify the Service Provider and to reimburse him for all costs arising from this procedure (including among other things lawyers’ fees).
Management
The Client acknowledges and accepts that, in accordance with article 11 of the Police Regulation, the Service Provider has been assigned and charged with the daily management and monitoring of the Property.
Upon the signature of this Agreement the Client shall provide the Service Provider with a “List of authorized Occupants” setting out for each Occupant the details mentioned below under (i) up to (iv). This “List of authorized Occupants” shall constitute Appendix 3 of this Agreement.
- name and surname
- beginning date of occupation by the relevant Occupant
- number of the room occupied by the relevant Occupant
The Client undertakes to notify any changes with respect to this “List of authorized Occupants” to the Service Provider without any delay, whereby such notification must also be accompanied with an up-to-date “List of authorized Occupants”.
Any “List of authorized Occupants” provided by the Client to the Service Provider in accordance with this Article 20 shall be deemed to replace (the previously applicable version of) Appendix 3 and to constitute, as of that moment onwards, the new Appendix 3.
- Expropriation
Should the Premises or a portion thereof be expropriated by the authorities for public purpose, this Agreement shall terminate on the very date on which the expropriating authority takes possession of the Premises. The Service Provider undertakes to inform the Client immediately of the decision of the expropriating authority to expropriate.
Under no circumstances may the indemnity, which the Client might be entitled to request from the expropriating authority, reduce the indemnity due to the Service Provider.
The Client shall be barred from claiming any compensation in this regard from the Service Provider.
- Visiting of the Premises
During the [number] months prior to the end of this Agreement or if the Property is put up for sale, the Client shall allow any persons who are accompanied by a representative of the Service Provider to visit the Premises at the same time as cleaning interventions occur in the Premises pursuant to this Agreement.
- Warranty
The Client warrants to the Service Provider that the signing and execution of the Agreement (as well as the execution of any acts described therein) in accordance with the provisions of the Agreement shall in no way contravene (i) any regulations applicable to the relevant Party providing such warranty, (ii) any judgment or decision of any court or tribunal or arbitration decision of which the relevant Party is the object, or (iii) any agreement to which the relevant Party is a party.
The Client warrants to the Service Provider that, on the date of this Agreement, it is not in a state of cessation of payments, receivership or liquidation, and/or is not the subject of any measure likely to restrict its ability to enter into or perform the Agreement, is not concerned by an application for nullity or dissolution, and is solvent.
Each Party is independent and neither Party is, nor shall be considered to be, the other’s agent, distributor, partner, fiduciary, joint venture partner, co-owner, or representative.
The Service Provider’s relationship is solely with the Client and the Occupant’s relationship is solely with the Client. Under no circumstances the Service Provider can be considered as the Occupant’s employer.
This Agreement contains the entire agreement between the Parties and supersedes all prior agreements and understandings, communications, correspondence, offers (oral or written) or warranties exchanged or entered into between the Parties with respect to the elements that are the subject of this Agreement.
None of the terms and conditions of this Agreement may be modified, waived, or modified in any way, except by way of written agreement validly signed by the Parties.
No Party to this Agreement shall be presumed to have waived any of its rights arising out of this Agreement or from a breach of any provision of this Agreement, unless such Party has unequivocally waived them in writing. If a Party, in accordance with this Article 25, waives a right arising out of this Agreement or out of a breach thereof by any other Party, such waiver shall not be considered as a waiver of any other such right, even if the latter is a similar right.
In the light of Articles VI.91/1 to VI.91/6 of the Belgian Code of Economic Law, each Party acknowledges that it has negotiated each Article of this Agreement in good faith with the other Party on the basis of an equal bargaining position and that it gives its informed agreement to each Article and that it is aware that the consequences of these Articles, be fair, balanced and appropriate in the context of the entire Agreement. Article 5.74 of the Civil Code of the Civil Code do not apply to this Agreement.
- Costs
Each Party shall bear its own costs for negotiating, concluding and performing this Agreement as well as the costs it is required to pay for any person involved in the negotiation, conclusion and performance of this Agreement on its behalf.
- Severability
If any provision of the Agreement is determined to be invalid, illegal or unenforceable, in whole or in part, such invalidity, illegality or unenforceability shall only affect such provision or part thereof, and the remaining part of such provision and all other terms of the Agreement shall continue in full force and effect and be replaced by valid and enforceable substitute provision as close as possible to the intended effect and meaning of the invalid/unenforceable provision.
This Agreement (including but not limited to its existence, validity, interpretation, performance and non-performance, enforceability and termination) shall be exclusively governed by and construed and interpreted in accordance with Belgian law.
The Parties shall endeavour to settle amicably any disputes that may arise between them regarding the existence, validity, interpretation or performance of this Agreement.
Any dispute relating to the existence, validity, interpretation or performance of the Agreement, including any dispute relating to any non-contractual obligation arising out of or in connection with this Agreement, which the Parties cannot settle amicably, shall be finally settled by an arbitral tribunal consisting of three arbitrators (unless the Parties agree in advance to appoint only one arbitrator) appointed in accordance with the CEPANI rules (see https://www.cepani.be/rules/?lang=nl). The arbitration proceedings will take place in [Antwerp], Belgium, and will be conducted in [English], without the need to translate documents into another language.
This arbitration clause does not affect the right of each Party to seek interim measures from the President of the Commercial Court in Antwerp or any other competent authority.
- GDPR
Data Protection (GDPR) The Service Provider shall process personal data in compliance with Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 (General Data Protection Regulation – GDPR) and with the Belgian Data Protection Act of 30 July 2018.
- Camera surveillance
CCTV Surveillance For the safety and security of the Property and its Occupants, CCTV surveillance systems are installed and operational in Eurobuilding. The surveillance is carried out in accordance with the Belgian Act of 21 March 2007 regulating the installation and use of surveillance cameras and is registered with the competent Data Protection Authority.