SMART AVIATION GENERAL AND SPECIAL TERMS AND CONDITIONS
CHAPTER 1. GENERAL TERMS AND CONDITIONS
1. General clauses
1.1. These General Terms and Conditions apply exclusively to every order, to the exclusion of the customer’s general terms and conditions, even if they contradict the customer’s terms and conditions, with the exception of derogations agreed in writing that may not be interpreted by the customer under any circumstances as a general derogation from these terms and conditions that applies to the previous and/or future commercial relations between the parties. Under no circumstances can our consent be assumed from the circumstance that we may have signed the contract without objecting to the customer’s conditions or equivalent clauses.
1.2. By placing an order, every customer is irrefutably considered to be aware of these General Terms and Conditions and to have accepted them without reservation. The fact that a clause included in one of the articles of these terms and conditions may be invalid or unenforceable shall in no way affect the enforceable nature of the other clauses, and the clause in question will be replaced – by Smart Aviation where applicable – with a valid/enforceable clause that approximates the intention of the parties as closely as possible.
2. Orders; concluding and implementing the contract
2.1. Photographs, catalogues, brochures or other publicity documents supplied by Smart Aviation do not have any contractual value whatsoever.
2.2. The contract is considered to have been concluded from the time when Smart Aviation has explicitly accepted the order. Amendments to the contract must be made in writing and will always be subject to explicit prior approval by Smart Aviation.
2.3. Smart Aviation supplies its services in accordance with the criteria of an undertaking to perform to the best of its ability and does not provide any guarantee whatsoever of specific results.
2.4. The customer acknowledges, if they place an order for services, that they have been sufficiently and correctly informed by Smart Aviation of all the important elements of the services and that they are well aware of these.
2.5. Smart Aviation will contact the customer by telephone, both when collecting and when delivering the luggage, to arrange a time period for the collection/delivery. If Smart Aviation cannot contact the customer by telephone, Smart Aviation will send the customer an e-mail with the request to make contact with Smart Aviation. If the customer is not present during the agreed time period for luggage collection, the courier will leave a message in the customer’s letterbox. In that case, the customer/authorised person is considered to have violated the contract and the customer has no right to a refund of the price in accordance with article 5.1. If the customer is not present during the agreed time period for luggage delivery, the courier will continue on their rounds and contact the customer to arrange a new time period in accordance with this article. Smart Aviation may charge an extra fixed-rate cost for this.
2.6. The customer is obliged to provide Smart Aviation by effective means and free of charge with all information and support that can reasonably be demanded/are useful for the delivery of the services in the normal manner.
2.7. The customer guarantees that they have all the rights, titles and powers/permits that are required in order to enable Smart Aviation to supply the services.
2.8. All the costs connected to the customer’s obligations are to be borne by the customer.
2.9. Without being obliged to pay any compensation for damage, Smart Aviation may decide that the implementation of the contract cannot take place due to external factors beyond Smart Aviation’s control and/or due to poor/incomplete information from the customer and/or another failure by the customer to meet their obligations. In that case, the services will still be charged to the customer, who will pay for them.
3. Entrusting goods to Smart Aviation
3.1. Only from the point when the goods that constitute the subject of the service (luggage) are received by Smart Aviation, up to the point when they are delivered to the customer/a location requested by the customer, does Smart Aviation bear the risks of loss, destruction and damage to the goods. This is however conditional upon the terms of article 7.
3.2. If the customer considers that the restrictions and limitations included in article 7 provide them with insufficient cover, they must sign an insurance policy of their own, in the absence of which the customer accepts all risks of loss or damage beyond these restrictions and limitations.
4. Deliveries/Force majeure
4.1. Smart Aviation will comply with the agreed time periods for collecting or returning the luggage to the customer as far as possible. Nonetheless, delivery outside the agreed time period does not give the customer the right to demand cancellation and/or compensation for damage, since no deadline whatsoever is binding upon Smart Aviation.
4.2. In the event of force majeure or an event that reasonably prevents Smart Aviation from fulfilling its obligations and for which it cannot bear responsibility, Smart Aviation retains the right respectively to prolong the fulfilment period or to terminate the contract with immediate effect, legally and without intervention in advance by the courts, by informing the customer of this by e-mail, without it needing to prove the unpredictability of this situation or to pay compensation for damage. Force majeure is understood to mean fire, flooding, poor weather conditions, war, unrest, a strike, a blockade, enforced closure of the business, illness, accidents, a problem with the business’ internal organisation, an import or export ban, transport problems, delayed supply/failure to supply by suppliers, all of these affecting both Smart Aviation or its suppliers or subcontractors or other third parties involved, as well as default by the aforesaid third parties.
5. End of the contract
5.1. The customer has the right to terminate the contract unilaterally up to 48 hours before the departure of the flight, on the condition of payment in full to Smart Aviation of the services that have already commenced and a fixed-rate, irreducible payment of 75% (excl. VAT) of the amount for the services that have not yet commenced, as an obligatory payment for exercising this unilateral right to termination. If the contract is cancelled less than 48 hours before the departure of the flight, the contracted price remains due in full. In the event of cancellation of the contract at the customer’s expense, Smart Aviation is entitled to receive payment for the services that have already been commenced and to a fixed-rate, irreducible payment of 75% (excl. VAT) of the amount for the services that have not yet commenced, notwithstanding Smart Aviation’s right to a higher amount of compensation (for damage), either (i) on the basis of a different condition in these General and Special Terms and Conditions or (ii) if it can demonstrate greater damage.
6. Prices and payment
6.1. The prices are always quoted excluding the taxes that are to be borne by the customer.
6.2. In the case of composite price quotations, Smart Aviation does not bear any obligation to deliver part of the supply in return for a corresponding proportion of the total stated price.
6.3. All Smart Aviation’s invoices are payable to Smart Aviation’s address, immediately and without discount. Any invoice that has not been paid by its expiry date will be subject to increase, legally and without prior warning or notification, by late payment interest of 12% per year, with a minimum of 125 EUR. In the event of late payment, any discount granted shall be cancelled.
6.4. Smart Aviation retains the right to make the supply dependent on the payment of a deposit or the full price.
6.5. All invoices are considered to have been accepted if they are not contested by the customer by registered letter within eight (8) calendar days.
6.6. Under no circumstances can payments be suspended or compensated in any way without prior written consent from Smart Aviation.
6.7. If an invoice is not paid by the expiry date, Smart Aviation retains the right to suspend all supplies without prior notification.
7.1. The customer is obliged to check the services and their subject (the luggage) for conformity immediately upon delivery. In the event of damage, incompleteness, error or any other visible defect or non-conformity, the customer is obliged to refuse the goods or services, or only to accept them with their reservations expressed in writing. If this is not done, in the absence of evidence to the contrary, the customer is considered to have accepted the services and their subject in the condition described in the consignment note.
7.2. Any complaint with respect to the services provided or their subject, insofar as it concerns invisible losses or damage, must be sent to us by registered letter within 7 (seven) working days of delivery, on pain of inadmissibility.
7.3. In the event of a delay to the delivery by Smart Aviation, the customer is obliged to report the damage suffered or their reservations to Smart Aviation in writing within 21 (twenty-one) days of delivery of the subject of the service.
7.4. A reaction from Smart Aviation to a late complaint/report does not detract from the aforesaid and always occurs without prejudice to any rights and without any acknowledgement to its disadvantage.
7.5. Reporting a complaint or refusing ordered services does not suspend the customer’s obligation to pay the invoice, however.
7.6. Smart Aviation will only compensate the customer for damage either (i) resulting from a defect in the goods/services or their subject, or (ii) suffered due to an error by Smart Aviation, and in all cases subject to the conditions in the other clauses of article 7.
7.7. If a complaint is found by Smart Aviation to be justified, it will either take back/repair/correct/ replace the services and/or grant a full or partial refund of the price received for the non-compliant part of the assignment, without being bound to provide any further compensation for damages.
7.8. If Smart Aviation’s liability (in terms of its pre-contractual, extra-contractual or contractual liability) should be upheld, subject to what is stated in article 7.9 of these General and Special Terms and Conditions, it shall in any event be limited to covering the direct damage, with a maximum of the totality of the amounts (excl. VAT) invoiced by Smart Aviation for the services for which the aforesaid liability is upheld, or in the event that the damage is insured, to the amount paid out by the insurance company for the insurance claim in question. Smart Aviation will not accept any liability for any form of indirect damage such as purely financial damage, loss of profits, loss of customers, loss of/damage to data, loss of working hours connected to services for which Smart Aviation’s liability is upheld.
7.9. Notwithstanding any other clause in these General and Special Terms and Conditions, Smart Aviation’s liability – including liability for the total or partial loss of or damage to the subject of the service (luggage) – shall in any event remain limited in the manner and within the limits determined in the Convention on the Contract for the International Carriage of Goods by Road signed on 19 May 1956 (CMR).
7.10. Notwithstanding the other clauses in these General and Special Terms and Conditions, Smart Aviation cannot be held liable for, nor can any guarantee provide coverage of, damage resulting from:
– a specific use of the items delivered, imposed by the customer in spite of written and substantiated reservations by Smart Aviation;
– force majeure, error on the part of the customer or a third party, external influences etc.
7.11. Any claim by the customer upon Smart Aviation must be lodged, on pain of inadmissibility, within the year, to be calculated:
– in the case of partial loss, damage or delay, from the day on which the subject of the service was delivered;
– in the case of total loss, from the thirtieth day after the end of the agreed delivery period;
7.12. The customer does not have a right of withdrawal as determined in art. VI.47 of the Belgian Economic Code (Wetboek Economisch Recht – hereinafter WER), in the light of art. VI.53 12° WER.
8.1. The customer accepts that electronic communications and back-ups can be used to provide evidence.
9.1. In the event of any dispute, Belgian law shall apply to the exclusion of all other laws, and the Dutch-language courts of the district of Brussels, or where appropriate the Justice of the Peace of the first canton of Brussels, shall have exclusive competence.
CHAPTER 2. SPECIAL CONDITIONS OF THE ‘HOME/HOTEL-CHECK-IN’ SERVICE
10. Orders; concluding and implementing the contract
10.1 The customer guarantees that the content of the luggage that is entrusted to Smart Aviation’s care is compliant with the requirements imposed by the airline (permitted weight, prohibited items etc.), about which the customer must in any event obtain information him or herself. Smart Aviation will conduct an internal scan without opening the luggage to check the luggage for prohibited items. If the scan reveals that the luggage contains one or more prohibited items, Smart Aviation is obliged to report this to the police and security services at the airport. If the permitted weight is exceeded, the extra costs charged by the airline for this will be automatically debited by the airline from the customer’s credit card, or if this is not possible, the customer will be obliged to report to the airline in advance for the purposes of making the payment. If this should occur, Smart Aviation will inform the customer. Until this amount has been paid, the luggage will not be loaded.