GENERAL TERMS AND
CONDITIONS FOR Q8 LIBERTY CARDS
These General Terms
and Conditions govern the rights, obligations and the responsibilities of the
Parties with regard to the provision and the use of Cards and the provision and
purchase of Products.
These General Terms
and Conditions, together with the Online Application form, the Participation
confirmation and the possible Special Conditions constitute the Contract which
is or will be entered into between the Participant and KPB with regard to the
above. The Contract replaces all prior written or verbal communications, representations
and understandings with respect to the subject matter of the Contract. The
general and/or special conditions of the Participant are not applicable to this
Contract, notwithstanding any other provision to the contrary. Without
prejudice to clause 17 (Variations), the Contract can only be modified
by written mutual agreement of both Parties.
By accepting (by
means of ticking the applicable box) the General Terms and Conditions during
the completion of the Online Application form, and/or by using a Card in any
way whatsoever, the Participant confirms explicitly to have read, understood
and accepted this Contract and to respect it. If Mobile Fueling was not chosen
at the start of the Contract, the relevant clauses on this matter apply as soon
as this option is opened by the Participant.
Cards can only be
applied for and used for professional reasons. Consumers are not allowed to
apply for and /or use Cards.
1.
Definitions
In the Contract, the capitalized terms and expressions
shall have the following meanings except when it would appear from the context
of a specific provision that this meaning cannot be applicable in the said
provision:
"Application confirmation":
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the email confirming receipt of the application sent
by KPB, which includes a finalized application form completed with the
specifications as chosen by the Participant and the applicable rebates which
the Participant needs to activate by clicking on the link provided in such
email;
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"Card":
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the KPB or a member of the Kuwait Petroleum Group
issued card with the name "Q8 Liberty Card", provided for the
purpose of making purchases by the Participant;
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"Cardholder":
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the Participant and/or any person to whom the
Participant has provided a Card and associated PIN code and to whom approval
to use the Card is given;
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"Card Limit":
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the limits applied to a Card in terms of, for
instance the volume of Product able to be purchased per transaction, the
total volume of Product able to be purchased within a pre-determined period
and/or the total number of transactions able to be carried out within a pre-determined
period;
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"Card-Stop List":
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the list of lost, stolen or otherwise blocked cards;
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"Contract":
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the General Terms and Conditions with annexed Data
Processing Addendum, the Online Application form, the Application
confirmation, the Participation confirmation and possibly applicable Special
Conditions;
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"Credit Limit"
"Data Processing Addendum"
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the maximum amount Products can be purchased by the
Participant;
the annex referred to in clause 14 below and annexed
to these General Terms and Conditions forming an integral part of the
Contract which describes the data processing obligations of KPB in its processor
role of limited personal data of certain Cardholders in accordance with the
General Data Protection Regulation;
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"Documentation":
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online and/or paper information which is provided,
at regular times, by KPB to the Participant and/or cardholders and which includes
more information in terms of the application and the use of the Card by the
Participant and/or the Cardholders;
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"E-invoice":
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an invoice which has been issued and sent in an
electronic format as chosen by KPB;
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"E-invoicing":
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providing an E-invoice via electronic means;
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"Estimated Annual Volume":
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the fuel volume which the Participant expects to
purchase within a period of one (1) year, as indicated on the Online
Application form;
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this document entitled "General
Terms and Conditions for Q8 Liberty Cards" and its annexed Data
Processing Addendum;
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"KPB":
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Kuwait Petroleum
(Belgium) N.V., with registered office at Brusselstraat 59, box 1, B- 2018
Antwerpen, RLP Antwerp (division Antwerp), VAT BE 0404.584.525;
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"KPL":
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Kuwait Petroleum (Luxembourg) SA, with registered
office at Rue de l'Industrie 12, L- 8069 Bertrange, RCS Luxemburg B49456, VAT
LU 16241579);
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"KPN":
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Kuwait Petroleum
(Nederland) BV, with registered office at Schenkkade 50, NL- 2595 AR Den Haag,
KvK 24025263, VAT NL 001250590B01;
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"Kuwait Petroleum Group":
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any legal entity or the group of legal entities
directly or indirectly controlled by Kuwait Petroleum Europe B.V.;
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"Means of Acces":
"Mobile Fueling":
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the User name and Password;
option for an existing Cardholder, subject to the
consent of the Participant, to enroll the Q8 Liberty card digitally in the
previously downloaded Q8 smiles app on 1 (one) smartphone in order to enable digital
authentication to refuel at Q8 stations in Belgium during an initial phase,
possibly extendable to other countries in the future. The use of a physical Card
remains possible. Mobile Fueling is therefore merely a parallel digital authentication
option.
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"Online Application form":
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the online form provided by KPB via http://q8liberty.q8.be, in order to enable potential Participants to
order the Card;
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"Online Services":
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services provided to the Participants via Q8 Liberty
Web;
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"Participant":
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the company or an
individual acting in a business capacity, mentioned on the Online Application
form;
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"Participation
confirmation":
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the confirmation
by KPB that it has accepted the application to obtain a Card by a potential
Participant and the notification that the fuel card(s) is being produced;
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"Party" or "Parties":
"Password":
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KPB and/or the Participant, as applicable;
the password of a Participant required for
connection to and use of the Q8 Liberty Web;
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"PIN code":
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the personal identification number unique to each
Card that, for security purposes, is issued by an independent third party to
the Participant, for subsequent distribution to the Cardholders;
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"Product":
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Product categories or services such as fuel,
lubricants, carwash and/or shop goods as mentioned by the Participant on the
Online Application form;
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"PTI":
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"PTO":
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the abbreviation for "payment terminal outside"
being the electronic payment and fuel card terminal on the forecourt of a
Sales point at which payment and fuel cards can be read;
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"Q8 Liberty Card Support":
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the customer service of Q8 Liberty with the
following contact details: Address: Brusselstraat 59, box 1, B-2018 Antwerp; Email: [email protected]; Tel: 0032 (0)3 2413730; Fax: 0032 (0)3 2413531
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"Q8 Liberty Web":
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Online platform on which the Participant can manage
the Cards and control the transactions;
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"Rebate":
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the discount granted to the Participant as
determined in the Application confirmation;
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"Sales point":
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a point of sales where the Q8 Liberty Card can be
used by the Cardholder with a view to purchase Products. The list of Sales
points is available on the Website;
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"Security":
"Security code":
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a bank guarantee, a (parent) guarantee or any other
form of financial security in a form accepted by KPB;
a unique six-figure code, to be treated as
confidential, with a limited validity period, required along with other
elements to enroll the Q8 Liberty card in the Q8 smiles app and which must be
applied for via the Q8 Liberty Web or the Participant's fleet manager to
enable Mobile Fueling. This code can only be used once to register the Q8
Liberty card in the Q8 smiles app on one smartphone.
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the additional, complementary or
deviating conditions agreed between the Parties and which form part of the
Contract;
the screen of the smartphone for Mobile Fueling must
be set with a locking screen that can be unlocked using a PIN code,
fingerprint or face recognition. Mobile Fueling is not possible if the locking
screen is not activated in the smartphone.
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"User name":
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the identification code of a Participant necessary
to use the Online Services;
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"Website":
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http://q8liberty.q8.be
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2.
Participation
2.1. In order to apply for one or more Cards for
solely professional use, an Online Application form needs to be filled in
correctly and completely by the potential Participant. After completion and
sending the Online Application form, the Participant needs to activate the
application by clicking on the link in the activation email sent to the
potential Participant at the by the potential Participant specified email
address. Applications in any form other than the Online Application form will
not be dealt with, unless KPB decides otherwise. KPB reserves the right to, at
its discretion and without having to provide any reason, refuse an application
for one or more Cards, or make the receipt and use of Cards subject to certain
conditions (such as but not limited to the provision of Securities or direct
debit mandates, etc.).
2.2. The Contract between the Participant and KPB
comes into existence at the moment that the Participation confirmation is sent.
The Mobile Fueling option is activated as soon as this is opened by the
Participant and once the Card has been digitally enrolled in the Q8 smiles app
on (1) one smartphone.
2.3. The Card(s) will include the relevant data as
indicated in the Documentation) based on the information provided in the Online
Application form. A PIN code is issued per Card to the Participant and is sent
separately. Cards and PIN codes are only dispatched to the registered office of
the Participant, as specified on the Online Application form. The Participant
acknowledges and accepts that KPB and its employees have no knowledge of the
PIN codes, which are produced and sent by a third party. The risk in respect to
the Cards and PIN codes shall transfer to the Participant from the moment they
there are dispatched by the third party. The Participant is responsible for
making sure that the Cards and PIN codes are handled in a secure manner so as
to reduce the risk of fraud (for which the Participant is solely liable). These
Card PIN codes do not apply for Mobile Fueling, for which smartphone Unlocking
must be used, namely the smartphone PIN code, a fingerprint or face
recognition, depending on the settings of the smartphone used, and known only
to the Cardholder.
2.4. If the Participant wishes to request additional
Cards, to the Participant must contact Q8 Liberty Card Support or make a
request via Q8 Liberty Web. KPB reserves the right to, at its discretion and
without having to provide any reason, (i) grant the request; (ii) grant the
request conditional upon receipt of additional Securities (in an amount
determined by KPB) and/or any other conditions; or (iii) decline the request
(for instance if the Participant refuses to provide additional Securities or
refuses to comply with other conditions).
2.5. For purchases of Products from Sales points in
Belgium, respectively the Netherlands and the Grand Duchy of Luxemburg, KPB is
acting as the seller. In the Netherlands and the Grand Duchy of Luxemburg, KPB
is registered for the VAT and KPN and KPL respectively act as fiscal
representative of KPB. Invoicing is always done by KPB (or by a third party
authorized by KPB) for transactions made via the Card in Sales points located
respectively on the territory of the Netherlands and Luxemburg.
2.6. The Documentation describes to which information
the Participant and/or Cardholders have access during the term of the Contract.
The Documentation does not form part of the Contract and can be modified at any
time by KPB without notice. The Participants and/or Cardholders are advised to
regularly consult the Documentation in order to be up to date of any
variations.
3.
Rights
and obligations of the Participant and the Cardholders
3.1. The Card allows the Participant and the
Cardholders to purchase the Products specified by the Participant on the Online
Application form and accepted by KPB at Sales points in Belgium or the Benelux,
as applicable. The Card hereby operates as authentication-instrument. In an
initial phase, digital authentication for Mobile Fueling using the Card enrolled
in the Q8 smiles app will only enable fueling in Belgium; this may be extended
to other countries later on. This digital authentication via the smartphone may
only be carried out in the vehicle; outside the vehicle, the use
of smartphones at filling stations remains forbidden. The Participant
undertakes to respect this and guarantees that the Cardholders will comply with
this obligation. The Participant is responsible for the costs related to Mobile
Fueling, such as paying Wi-Fi connections, roaming costs, (mobile) data use
costs, etc.
3.2. Except as provided in clause 12.3, and without prejudice to any rights of KPB
under this Contract at law or otherwise, the Participant is liable to pay for
all Products which were delivered using the Cards.
3.3. The Participant commits to and guarantees that
the Cardholders are obliged to carefully store
each provided Card. Cards shall not be left unattended in vehicles or
elsewhere. The PIN code shall only be used by the Cardholder to whom it is
supplied and shall not be disclosed to any other person. The PIN code shall be
memorized by the Cardholder and shall not be kept by the Cardholder in any
written form. This also applies for the smartphone unlocking code for Mobile Fueling.
3.4. The Participant is responsible towards KPB for
making sure that no Card is put at risk of being counterfeited, adapted or
duplicated in any way. Except as provided in clause 12.3 and without prejudice
to any other remedies of KPB under the Contract, at law or otherwise, the
Participant shall be liable to pay for all Purchases made with a counterfeited,
adapted, or duplicated Card.
3.5. Each Cardholder shall be deemed to have been
given authority to use the Card as a duly authorized representative of the
Participant. In addition to the use of a physical Card, the Participant can
also authorize the Cardholder to use the Mobile Fueling option alongside this by
means of the digital enrolment of the Card in the Q8 smiles app on one (1)
smartphone. To this end, the Participant will have to allow the Mobile Fueling
option on the Q8 Liberty Web (www.q8libertyweb.com), have the Security code
generated and pass this on confidentially to the Cardholder, who can supplement
this information with the last six figures of the Card in order to be able to enroll
the Card in the Q8 smiles app. For this option, the Cardholder will therefore
have to register in the Q8 smiles loyalty program and download the Q8 smiles
app beforehand. To be able to use the Mobile Fueling option, the Cardholder
should activate location services on his smartphone. When using the Mobile Fueling
option, the Cardholder will receive Smiles automatically for the liters of fuel
purchased, as specified in the Q8 smiles program (1 liter = 1 Smile). The
Participant is responsible for making sure that no Card remains in the
possession of any person who is no longer authorized to use the Card and to
this end will block the card (or have it blocked) so that the card is also
rendered inactive for Mobile Fueling in the Q8 smiles app. The Participant is responsible
for making sure that each Cardholder and User is informed of and complies with
the Contract, and guarantees that the Cardholders shall so comply with the
Contract. The Participant is liable for each breach of the Contract by a
Cardholder.
3.6. The Participant shall pay to KPB a sum of 12,50
EURO per Card for administrative costs. If, for whatever reason, a Card and/or
PIN code needs to be replaced, the same sum can be charged by KPB.
3.7. The Participant shall inform KPB immediately in
writing of any changes to the information provided in the Online Application
form. The same applies for changes in respect of the direct debit or in any data
which is of importance to the Securities provided by the Participant.
3.8. Without prejudice to the above, the Participant shall
inform Q8 Liberty Card Support in writing at least four (4) weeks in advance in
the event of a change of name, address the VAT or bank account number.
3.9. In the event that the Cardholder fails to hook
the nozzle properly into the fuel pump, the Participant shall be liable for the
cost of any continuous supply to the next customer.
4.
Online
Services
4.1. KPB may grant the Participant access to the
Online Services. KPB reserves the right to make the provision of such Online Services
subject to fees.
4.2. The use by the Participant of the Online
Services requires internet access, hardware and software (together called the "Equipment").
The Participant shall be responsible for the Equipment and the fees associated
with it.
4.3. The Participant is responsible for the use of the
Online Services as well as for the use, storage and the protection of
information obtained via the Online Services. The Participant commits to use
the Online Services in compliance with the Documentation and the possible
additional instructions from KPB.
4.4. The Participant shall report any malfunction of
the Online Services to KPB immediately on becoming aware of such malfunction
and shall not take advantage of such malfunction.
4.5. Without prejudice to any other remedies of KPB
under the Contract, at law or otherwise, KPB may
(i) in an emergency and/or in the event the Participant fails to comply
with the Contract, suspend the Participant's access to the Online Services in
whole and/or in part;
(ii) suspend the Participant's access to the Online Services
partially and/or totally
in order to vary the specification of the Online Services and/or the underlying
systems for repair, maintenance or improvement; and
(iii) give instructions to the Participants which KPB deems reasonable.
5.
The
use of the Card
5.1. A Card may only be used by the Cardholder (i) to
make Purchases in accordance with the applicable Card Limit and Credit Limit,
subject to any transaction and/or volume limits that may be applicable in the
Sales Point; and (ii) if
the Card has not expired or has not been (temporarily) blocked by KPB or the
Cardholder, in accordance with
the provision of the Contract and in particular with clause 9. The relevant
Card Limits and the Credit Limit apply cumulatively for purchases using the
Card and via Mobile Fueling together.
5.2. Only automatic acceptance of the Card is
permitted on Sales points, i.e. via the use of the PTO and/or PTI. Shop goods
can only be purchased via the use of the PTI. The Cardholder shall identify
himself via the PIN code.
5.3. The administration of the Sales point
constitutes the complete evidence of the transaction(s) and the Participant
accepts such as being a binding and sufficient means of proof of the
transaction. The use and the provision of Online Services can be proven using
the electronically stored transaction logs of the systems utilized by KPB. The Participant
accepts the evidential value of such electronically stored transaction logs. For
Mobile Fueling at participating Q8 stations, the Cardholder can also consult an
overview of transactions in the Q8 smiles app.
5.4. A Card is valid for use for a maximum period of
48 (forty-eight) months unless otherwise stated. The expiry date (month/year)
is mentioned on the Card. A Card is valid until the end of the month mentioned
in the Card.
5.5. The Participant shall automatically receive a
new Card with a maximum validity period of 48 (forty-eight) months against
payment of EURO 12.5 per Card except (i) if the Participant no longer complies
with the conditions to obtain a Card, (ii) in the event of late payment, (iii) in
one of the events in which a Card may be blocked or (iv) if the Participant has
not used the Card in the four (4) months prior to the expiry of the validity
period of the Card. The expired Card must be destroyed when receiving the new
Card as set out in clause 13.1. When the Card is replaced, the Cardholder
should enroll the new Card with a new Security code in the Q8 smiles app in
order to continue to use the Mobile Fueling option.
5.6. Purchases are always connected to the Card with
which the Transactions were made. A transaction cannot be transferred to
another Cardholder or any other third party.
5.7. KPB reserves the right at all times to limit or
extend the use of the Card to certain products and services and to issue a new
Card to this end. KPB is not responsible for any damage which would result from
this for the Cardholder.
5.8. KPB can at any moment prior to the lapsing of
the validity period modify the Card Limit or issue a new Card.
5.9. The Participant acknowledges that the Products
are subject to laws and regulations applicable to the purchase and/or use of
the Products ("Regulatory Requirements") which may vary from country
to country. The Participant is solely responsible for complying with these
Regulatory Requirements in the conduct of its business. The Participant will
defend, hold harmless and indemnify Kuwait Petroleum Group against any losses
arising out of or in connection with the Participant's failure to comply with
such Regulatory Requirements.
5.10. The Participant shall utilize and solely rely on
its own expertise, know-how and judgment in relation to the Products and the
Participant' use thereof.
5.11. Property of and risk in the Product shall pass
to the Participant at the moment it leaves the hose nozzle of the dispensing
equipment of the Sales point.
5.12. Any complaint regarding the Products shall be
made by the Participant within forty-eight (48) hours after the Purchase of the
Product. Any complaint regarding a Product during such period shall be made by
telephone immediately upon the Participant becoming aware of a
potential issue with the Product and shall subsequently be confirmed in writing
to KPB within two (2) hours thereof. The Participant shall upon contacting KPB
provide KPB with the date and time of the Purchase, the Sales Point at which
the Purchase was made and the number of the Card used to make the Purchase. The
Participant shall within seven (7) calendar days of notifying KPB in writing
provide all evidentiary documents and other proof (such as samples) substantiating
its complaint. The Participant shall take all reasonable steps to assist KPB to
investigate the complaint. In case the Participant fails to comply with the
time periods as set out in this clause, he will be deemed to have waived its
complaint.
6.
Means
of Access
6.1. General
(i) The Participant shall keep any Means of
Access safe and strictly confidential at all times.
(ii) If KPB has any reason to suspect that the
confidentiality and/or security of a Means of Access has been breached or they
are being misused, KPB may, without prior notice at its sole discretion block
the Participant's access to Q8 Liberty Web (it being understood that KPB has no
obligation to actively monitor such breaches of confidentiality or security or
misuse). To the maximum extent permitted by applicable law, Kuwait Petroleum
Group shall not be liable for any losses suffered or incurred by the
Participant arising out of or in connection with any such actions carried out
in accordance with this clause 6.1(ii).
(iii) The Means of Access may only be used by
the Participant for those purposes explicitly set out in the Contract, and for
no other purposes, unless specifically agreed in writing.
(iv) The Participant is liable for all Losses
suffered or incurred by the Participant, KPB, Kuwait Petroleum Group and/or any
other third Party arising out of or in connection with the use of the Means of
Access and/or the Online Services.
6.2. User names and Passwords
(i) If the Participant receives a written request
from KPB to change a Password, the Participant commits to change the relevant
Password immediately.
(ii) In order to prevent unauthorized access to Q8 Liberty Web, the Participant will notify
KPB immediately in writing of the (presumed) loss, theft, non-receipt, breach
of confidentiality or any (risk of) misuse of the User ID or Password.
(iii) The Participant will notify KPB in the
event that access to the Q8 Liberty Web needs to be blocked (e.g. in the event
a person is no longer authorized).
7.
Credit
Limit
7.1. The Credit Limit is determined by KPB taking
into account various factors (e.g. Product Price, invoice frequency, payment
terms, creditworthiness of the Customer, provision of Securities, etc.) and can
be modified at any time by KPB, without KPB having to provide reasons. KPB will
subsequently notify the Participant in writing of any change in the Credit
Limit. The Credit Limit applies cumulatively for both purchases using the Card
and via Mobile Fueling.
7.2. In establishing and sustaining the Credit Limit,
KPB reserves the right to demand Securities from the Participant. The provision of Securities shall not affect the
Participant's liability under the Contract.
7.3. The Participant shall notify KPB in writing in
the event of a change in its business activities, corporate or group structure
and/or Estimated Annual Volume requirements that may require a change in its
Credit Limit so as to avoid a possible blocking of its Cards.
7.4. Without prejudice to any other remedies of KPB
under the Contract, at law or otherwise, if the Securities provided to KPB by
the Participant have been compromised, have expired, have become insufficient,
or have been withdrawn or amended without KPB' prior written approval, KPB may,
at its discretion and on written notice to the Participant, require the
Participant to and the Participant shall promptly: (a) pay invoices notwithstanding
the fact that the relevant payment term has not yet expired; (b) provide
additional Securities and/or increase existing Securities; and/or (c) accept a
revision of commercial conditions ( such as payment terms and Rebates If the
Participant does not honour these requirements, KPB is entitled to terminate
the Contract in accordance with clause 16.2.
7.5. Upon termination of the Contract, KPB will
release any Security provided by the Participant, provided that all obligations
of the Participant under the Contract have been met. As long as this is not the
case, all Securities provided by the Participant may be used by KPB to
compensate any amounts due to KPB or the Kuwait Petroleum Group.
8.
Rebates
and Estimated Annual Volume
8.1. If applicable, Rebates shall be applied taking
into account a number of factors, including the volume of Products purchased by
the Cardholder.
8.2. KPB assesses on a regular basis whether the actual
volume of Products purchased by the Participant exceeds or is below the
Estimated Annual Volume as set out in the Online Application form. The
Participant acknowledges and accepts that KPB may subsequently, at its discretion,
vary the Rebates, including in cases where for instance if the actual volumes
differ from the Estimated Annual Volume and/or as a result of changing Product
prices.
8.3. Unless otherwise agreed, KPB shall inform the
Participant at its registered office address of changes to the applicable
Rebates at the latest two (2) weeks prior to the revised Rebate applies. The
revised Rebate shall apply, and be deemed accepted by the Participant from the
date set out by KPB, unless the Participant notifies KPB in writing of its
refusal to accept such revised Rebate prior to the date on which the revised
Rebate would apply. In such event KPB has the right to terminate the Contract
immediately without liability and/or indemnity towards the Participant.
8.4. Participant acknowledges and accepts that KPB
makes reasonable efforts in order to apply Rebates on as many sales Points as
possible but KPB cannot guarantee that such Rebates can be applied on all Sales
points. The Rebate can vary depending upon the type of Sales point.
9.
Blocking
of Cards
9.1. Blocking on Participant's request:
(i) The Participant has the right to have a Card blocked at any time and
for any reason. If a Cardholder is no longer authorized or if a Card/smartphone
is lost/stolen, the Card must be blocked. Blocking the Card also causes the
Card to be blocked in the Q8 smiles app for Mobile Fueling.
(ii) The request from the Participant to block a Card shall be made via
telephone to Q8 Liberty Card Support. The contact details for notifying Q8
Liberty Card Support, are available on the Website and also contained in clause
1 of these General Terms and Conditions.
(iii) When requesting a Card to be blocked via telephone, Participant
shall provide to Q8 Liberty Card Support the complete Card number and some
personal identification which will assist Q8 Liberty Card Support to identify
the Card to be blocked. The transmission of incorrect information can lead to
blocking the wrong Card, and as a result only the Participant remains liable
for the Products purchased with the Card which was meant to be blocked.
(iv) Any request made by the Participant via telephone to block a Card
shall subsequently be confirmed in writing to KPB as soon as possible. Only as
from the moment of receipt of such written confirmation by KPB shall the
Participant have no further liability for any Products purchased with the
blocked Card.
(v) KPB shall use undertakes all reasonable efforts to block a Card
within twenty-four (24) hours of Participant 's written request to block.
(vi) As soon as Q8 Liberty Web provides the relevant functionality, the
Participant can also block a card directly via Q8 Liberty Web in accordance
with the modalities as specified in the Documentation which will then be put at
the disposal of the Participant.
9.2. Blocking on KPB's initiative
(i) Without prejudice to any other remedies of KPB under the Contract,
at law or otherwise, KPB may block a card immediately and subsequently request
the return of any Cards at any time (and/or to refuse to reissue, replace or renew any Card) if:
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the
Participant fails to pay any invoice by the date of expiry of the payment term;
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the
Participant's invoices are paid by a third party without a specific written
agreement between the Parties and that third party;
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the
Participant has reached its Credit Limit;
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the
Securities provided to KPB by the Participant are compromised, have expired,
have become insufficient, or have been withdrawn or amended without KPB' prior
written approval;
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in
the situations as described in clause 16.24;
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fraudulent
use of a Card or any issue pertaining to Card security is suspected;
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the
Card has not been used for a consecutive period of twelve (12) months;
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the
Card is defective;
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a
wrong PIN code is used three (3) consecutive times;
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the
Means of Access are used in an unauthorized manner; and/or
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objectively justified
reasons relating to the security of Mobile Fueling in the Q8 smiles app or if any
non-authorized or fraudulent use of Mobile Fueling in or of the Q8 smiles app are
suspected.
(ii) If the Card is blocked by KPB, the Card will also be blocked in the
Q8 smiles app for Mobile Fueling.
10.
Invoicing
10.1. Unless otherwise stated by KPB, KPB shall invoice
the Participant at least two (2) times per month for the Products provided via
the Card. The prices mentioned on the invoice are equal to the official price
minus the possibly applicable Rebate, or the price of the Sales point,
whichever is the lowest. Mobile Fueling transactions are marked in the invoice
using the indicator (M) while card transactions are marked with the indicator (C).
10.2. The invoices will be issued by KPB. For
transactions made with the Card in Sales points located in the Netherlands and
Luxemburg, KPB will issue invoices that include (as applicable) its Dutch or Luxemburg
VAT number and whereby KPN and KPL act as fiscal representative in the name of
KPB. The invoices shall include details of the delivered Products, the due
amount for the Products and the due amount of VAT or the local applicable
equivalent. The total amount to be paid shall be included in in EURO.
10.3. If invoices are to be sent via E-invoicing, KPB
always has the right to issue paper invoices (i) for purchases in jurisdictions
where E-invoicing is not permissible (ii) for another reason at its discretion.
The Participant acknowledges that it is responsible for the fulfillment of the
all legal requirements with respect to receipt and storage of E-invoices.
10.4. In accordance with clause 10.3, the Participant
accepts that, if was opted for E-invoicing, it will not receive paper invoices
for the Products purchased under the Contract.
11. Payment
11.1. The Participant should pay the amounts due
within 9 (nine) calendar days after invoice date unless otherwise agreed.
11.2. The Participant commits to undertake all
necessary actions in order to activate a SEPA direct debit of the amounts which
are due or will become due by the Participant via the use of the Card. The Participant
shall instruct its bank to pay the invoice by way of SEPA direct debit payment
and the Participant will ensure that there is always sufficient funds in the
relevant bank account. Failing to do so, KPB is entitled to terminate this
Contract immediately, without liability and/or indemnity.
11.3. The Participant commits to check every invoice
and debit thoroughly. The Participant has the right to lodge a complaint within
5 (five) working days after invoice date sent by registered letter. Failing to
do so within the said timescale, the Participant will be deemed to have
accepted the correctness of the amounts mentioned irrevocably and in full. If a
complaint shows an incorrect amount in an invoice (and the debit resulting from
it), the amount will be corrected by KPB.
11.4.
Without
prejudice to any other remedies of KPB under the Contract, at law or otherwise,
if the Participant
fails to pay any invoice in time, KPB may, at its discretion, charge the
Participant interest on overdue amounts without prior notice to put in default
being required, at a rate equal to 10% per annum, calculated as from the date
of expiry of the payment tern until the date of payment. KPB has the right to
increase the amount due with an amount for compensation of costs in relation to
the collection. Without prejudice to the aforementioned interest on overdue
amounts, the amounts of the invoice which were not paid by the due date will be
increased with 10% with a minimum of EUR 150 as a fixed compensation, possible
judicial costs not included.
11.5. KPB is at all times entitled to set off amounts
which it can claim on whatever ground from the Participant against amounts
which KPB or any other member of the Kuwait Petroleum Group, due to the
Participant.
12.
Loss
- theft -misuse-liability
12.1. In case of loss, theft, serious risk of misuse
or misuse of the Card (physically or via the Q8 smiles app) and/or PIN code,
including misuses with a copied Card, or if a Card is not
received within one (1) week after receipt of the Online Application form
and/or the application for a card by the Participant, the Participant will
notify Q8 Liberty Card Support immediately via telephone, fax or email. Such
notification should without any delay be confirmed by registered letter whereby
a new Card can be applied for. KPB has the right in the afore-mentioned
situations to refuse a new Card to the Participant. Theft or misuse of a Card
should also be immediately reported to the competent police force and the
Participant will transmit as soon as possible the reference of the police
report and, if permitted, a copy hereof to KPB.
12.2. In case of loss, theft, serious risk of misuse
or misuse of the Card (physically or via the Q8 smiles app) and/or PIN code
during the weekend or outside working hours, the Participant must immediately block
these Cards on the Q8 Liberty
Web.
12.3. The Participant remains liable for the payment
of all transactions carried out with the Card, for no longer than 24 hours in
respect of transactions within Belgium and 48 hours in respect of transactions
outside of Belgium, after receipt of the fax, the registered letter or the
email stated in clauses 12.1 and 12.2 by KPB.
12.4. Each misuse or use of the Card (physically or via
the Q8 smiles app) or PIN code, including also the use or misuse by any person of
a copied, stolen or lost Card, is entirely at the charge and risk of the Participant
for the period during which the Participant has the Card in use and until notification
is made to KPB as specified in the clauses 12.1 and 12.2. The burden of proof of possible misuse rests
entirely with the Participant. KPB excludes all liability towards the
Participant for the use of the Card or a copied version thereof and/or the PIN
code by others than the Participant.
12.5. The Participant shall provide to KPB without any
delay all required and useful information in respect of the description of the
circumstances mentioned in clauses 12.1 and 12.2 and shall provide full co-operation to KPB.
12.6. The maximum period of 24 and 48 hours as stated
in clause 12.3, does not apply in case of willful misconduct,
fraud or gross negligence of the Cardholder. Gross negligence includes but is
not limited to: the storing of Card and PIN code together rather than
separately, the storing of a written PIN code, the absence of measures necessary
to secure the confidentiality of the PIN code or unlocking code, the communication
of the PIN code or unlocking code to non-authorized persons, the non-timely notification
to KPB and the competent police force in case of loss, theft, serious risk on
misuse or effective misuse of the Card (physically or via the Q8 smiles app) and/or
PIN code and the unattended leaving behind of the Card in vehicles or
elsewhere.
13.
Returning
of Cards - liability
13.1. All Cards shall remain the property of KPB. On
termination of the Contract, the Participant shall return all Cards having been
cut in two (2) pieces, which were put at its disposal, to KPB, Q8 Liberty Support
within forty-eight (48) hours of such termination by registered mail. Also, on
termination of the right to use one or more Cards, for whatever, reason, the
Participant shall return the respective Cards having been cut in two (2) pieces
by registered mail within forty-eight (48) hours to KPB, Q8 Liberty Support. If
a Card which was notified as lost or stolen, is retrieved it must be returned
to KPB in the same manner.
13.2. Without prejudice to clause 12.3, the Participant will remain fully liable
without limitation for any use and/or misuse of all Cards until such time as
KPB is in receipt of the Cards having been cut in two (2) pieces.
14.
Processing
of personal data
Applicable to all individuals whose personal data are processed (possibly
Participants, Participant representatives and/or the Cardholders, also called "data
subjects" in data protection legislation)
14.1. With regard to personal data submitted by the
Participant without legal entity with legal personality, the Participant representatives
and/or Cardholders or otherwise collected by KPB in its capacity as controller
and which are recorded in databases or otherwise controlled and processed by
KPB, KPB undertakes to comply with the applicable data protection legislation
with regard to the processing of personal data.
14.2. KPB will process the personal data in its
capacity as a controller. The Participant is and remains at all times entirely
responsible for its own processing of personal data from Cardholders for its
own purposes. The services in scope of these General Terms and Conditions are accompanied
by the provision of an online platform through which further information can be
collected. KPB refers to the privacy policy on the online platform for further
information.
14.3. Subject to certain conditions, Participants,
Participant representatives and Cardholders have rights relating to their
personal data. They may ask information from KPB about any personal data that
relates to them and may ask access to their personal data. Where appropriate, they
may request that incorrect or incomplete data be amended. They can also
request to erase personal data or to stop a certain processing activity with
the personal data and in specific circumstances they can withdraw their consent
possibly having a (limiting) impact on the use of Q8Liberty card & services
or ask a copy of certain personal data in a structured, commonly used and
machine-readable format (portability). They may request to exercise these rights
by sending KPB a signed and dated written request to [email protected]. Participants, Participant representatives
and Cardholders may also file a complaint to the supervisory authority.
14.4. KPB may share the personal data of Participants,
Participant representatives and Cardholders with companies in the Kuwait
Petroleum Group. KPB may also share with third parties including (i)
authorities or other third parties upon the request of an authority, when
legally obliged, or when it is necessary to identify, establish contact with or
initiate legal proceedings against individuals; (ii) third parties to whom KPB may
sell or transfer its business or assets in whole or in part after which Participant
representatives and Cardholders will be able to contact the third party for any
questions regarding the processing of their data; (iii) third party storage
providers, (iv) IT support providers and (v) third parties who provide
administration and communication services or does transaction management on KPB's
behalf including the companies who produce and send the Card and PIN mails,
and/or the service providers in respect to (electronic) invoicing and/or, as
the case may be, the management of (marketing)actions, who collect and /or process
the data at the instruction of KPB for the above-mentioned purposes as well as
bailiffs and/or lawyers .
14.5. Personal data of Participants, Participant
representatives and Cardholders may be transferred outside the European
Economic Area to a country which, in accordance with applicable data protection
law, is not deemed to offer adequate protection with regard to the processing
of personal data and on the free movement of such data. KPB will ensure that the
appropriate security measures and controls are in place, and that such
transfers are in accordance with applicable data protection laws and
regulations. KPB implements an intra-group data transfer agreement between the
relevant entities based on the European Commission's standard contractual
clauses and uses the same standard contractual clauses with third parties that
process on its behalf when required.
14.6. Personal data of Participant, Participant
representatives and Cardholders will be retained for a period based on the duration
of the contract and the applicable statute of limitations or litigation
document preservation requirements, increased with the time period needed for
the destruction process.
Participant or Participant representatives
14.7. KPB may collect the following personal data of
Participant or Participant representatives:
contact
details including name, telephone number, email address, if applicable a number
for trading purposes (e.g. registration and/or VAT number) of a Participant
without legal entity with legal personality, as well as usual profession and
job information. KPB will ask in the order process to upload a copy of the
front of the ID of a director who is officially authorized to represent the
Participant.
14.8. KPB will process the personal data of the Participant
and Participant representatives to perform and manage this Contract and to
liaise with the Participant or Participant representatives in relation to it.
Based on the legitimate interest of KPB and its commercial partners, KPB may process
their personal data for marketing purposes and for the purposes of a credit check. The Participant or Participant representatives may
at any time ask KPB to be excluded free of charge from the marketing list(s) in
case it does not wish to receive messages in the context of direct marketing
campaigns.
14.9. Participant is responsible for making sure it
has received all prior, individual and necessary consents, approvals and
authorizations from Participant representatives and Cardholders and that it has
informed these individuals to allow such processing of personal data by KPB in
accordance with this clause. Participant will defend, hold harmless and
indemnify KPB against any Losses arising out of or in connection with the
Participant's failure to obtain all individual and necessary consents and
approvals.
Cardholders
14.10. KPB may collect the following personal data of
Cardholders: name, telephone number, email address, address, the license plate,
the expected consumption habits. If a subaccount is made for the Cardholder on
the online platform, the Cardholder will receive a login and password for the
portal from KPB, which password should be changed by the Cardholder.
14.11. KPB may process the personal data from
Cardholders in order to perform its services and to send marketing communications
based on the legitimate interest pursued by KPB, in particular its economic,
commercial and financial interests, business continuity, security and
confidentiality of information and products, security of digital and physical infrastructure.
14.12. KPB will process the personal data of Cardholders
for the following purposes:
(i)
for customer management (for example for the
issuing of invoices, for the exchange of correspondence in the context of the
contractual relationship with the Participant, for entry in private
directories, to prevent misuse and fraud, in the event of disputes);
(ii)
for fulfilment of the Contract and provision of the
Cards and Services in the context of the Contract;
(iii)
for the prevention and investigation of abuses and
frauds (including the transfer of the data to the judicial authorities);
(iv)
for statistical purposes in connection with the use
of the Cards and Services.
14.13. Sales points can use surveillance cameras. Images
from surveillance cameras shall be registered, processed and stored in compliance
with applicable legislation and shall be used for the purposes of (i) surveillance
(security objective) and supervision, including prevention, establishment or
detection of crimes or other violations and also to track down and identify the
culprits, witnesses or victims such as the identification of persons involved
in fraudulent use of Cards and systems, nuisances, custom and excise matters and/or
(ii) persons or events causing damage to property of members of the Kuwait
Petroleum Group, and/or (iii) for technical /operational verifications. The
Participant shall timely inform each Cardholder of such camera use.
14.14. In some cases KPB may also process the personal
data of Cardholders on the instruction of the Participant including for the
creation of the fuel cards and placing for example the name of the Cardholder
on the fuel cards, for hosting and making available this Cardholder data via
the online platform to the Participant's representatives and/or the Cardholders
if the Participant chooses this option and the distribution of cards. KPB will
therefore process the personal data in its capacity as a processor and refers
to the annexed Data Processing Addendum for further description of the
contractual obligations between the Participant and KPB.
14.15. If
the Cardholder wishes to make use of the Mobile Fueling option in the Q8 smiles
app, the location data of the Cardholder will also be processed by KPB for this
purpose. This processing of location data is necessary for the Mobile Fueling
service. These location data will not be further processed for other purposes.
15.
Liability
15.1. To the maximum extent permitted by applicable
law and without prejudice to clause 15.2, KPB shall not be liable for any
losses suffered or incurred by the Participant arising out of or in connection
with:
-
any act, fraud ("bedrog"/"fraude"),
negligence, default or omission on the part of independent contractors,
intermediaries, partners and agents engaged by Kuwait Petroleum Group or the employees;
whether any such damage,
loss, etc. shall be founded in statute, law, contract, tort or otherwise.
15.2. Nothing
in the Contract shall exclude or limit Kuwait
Petroleum Group's liability for fraud ("bedrog"/"fraude") or wilful
misconduct ("opzet"/"dol").
15.3.
Without
prejudice to clause 15.2, KPB is not liable for indirect or direct damages, due
to, arising out of or connected with the disruption of the PTO and/or PTI, the
non or not properly functioning of the pumps and other distribution
installations, damaging or any other form of non-acceptance of the Card which
would make the delivery of Products completely or partially impossible or the
use of the Card.
15.4. Without prejudice to clause 15.2, KPB is not liable for:
(a)
any loss of data or damage or modification of the
equipment of the Cardholder including (but not limited to) the mobile device of
the Cardholder, as a result of the installation, upgrading, updating or use of
the Q8 smiles app;
(b)
the temporary non-availability, suspension,
interruption or delay of the Q8 smiles app as a result of maintenance work,
faults, force majeure or events beyond the reasonable control of KPB;
(c)any difficulty in
or the impossibility of downloading the Q8 smiles app or gaining access to the
contents thereof or any other communication system error which may mean that
the Q8 smiles app is not available;
(d)
any damage which may be suffered by the Cardholder as
a result of the non-availability of websites or information of third parties
included as a hyperlink in the Q8 smiles app, or as a result of the
incorrectness, incompleteness or inaccuracy of the information provided by
third parties, nor can such external information give rise to any commitment on
the part of KPB;
(e)
any direct or indirect damage as a result of or
relating to the (poor) working of the mobile device of the Cardholder or the telecommunication
services or soft- or hardware from a third party;
(f)
any direct or indirect damage as a result of the
interception of the mobile device (on which the Q8 smiles app was installed) of
the Cardholder by a third party;
(g)
any damage of whatsoever nature, resulting from the
unlawful use of the Q8 smiles app.
15.5.
Without
prejudice to clause 15.2, KPB shall not be liable for any indirect, special,
incidental or consequential damages of any kind including, without limitation,
disruption of the business, claims from third parties, damages due to business
interruption or lost profits, loss of stock, of competitive advantage or of goodwill
arising from or related to the Contract, whether or not foreseeable, and
regardless of other cause of such damages even if the Party has been advised of
the possibility of such damages in advance under any legal theory (statute,
law, tort, contract or otherwise).
15.6.
Without
prejudice to clause 15.2, if, despite KPB's efforts, the Cardholder, cannot
purchase Products at a sales point (e.g. unavailability of Product or
malfunctioning equipment), the Kuwait Petroleum Group shall not be liable for
any losses suffered or incurred by the Cardholder arising out of or in
connection with the same.
15.7.
KPB
shall not be liable for any losses suffered or incurred by the Participant,
arising out of or in connection with (i) inaccurate or incomplete data provided
by the Participant, (ii) acts or negligence by a Cardholder, and/or (iii) the
failure or delay of the Participant in acting on any notice, alert or
information when communicated.
15.8.
The
Participant is liable for any loss suffered or incurred by KPB arising out of or
in connection with actions, omissions, negligence, gross negligence wilful
misconduct ("opzet"/"dol") or fraud ("bedrog"/"fraude")
of the Participant and Cardholders, including the use in whatever manner of the
Products, and shall hold KPB harmless in case of claims by third parties
arising out or in connection with the same.
15.9.
Any
claim by the Participant under the Contract shall be made against KPB and not
against any other member of the Kuwait Petroleum Group, irrespective of whether
the claim relates to KPB or any other member of the Kuwait Petroleum Group.
15.10. If KPB, irrespective of the exclusions and
limitations of liability as stated in this clause 15, would nevertheless be held liable by a
competent court for a loss which is not caused by wilful misconduct ("opzet"/"dol")
or fraud ("bedrog"/"fraude") of KPB, then the aggregate
liability of KPB is limited to 200 € per year and per Card which gives rise to
the damage.
16.
Term
and termination
16.1. The Contract is entered into for an undetermined
period unless agreed otherwise. KPB as well as the Participant may terminate
the Contract for convenience at any time, by giving not less than thirty (30)
days prior written notice to the other Party In case of termination of the
Contract, the Participant shall return the Cards having been cut in two (2)
pieces to KPB as stated in clause 13.1.
16.2. Without prejudice to any other remedies of KPB
under the Contract, at law (including the right to obtain damages) and to the
maximum extent permitted by applicable law, KPB has the right, subject to
giving written notice, with immediate effect and without written letter to put
in default (i) to terminate the Contract without court intervention, (ii) to
block the card at any moment and to request the return thereof without
notification of any reasons, (iii) to refuse to issue new cards, to replace or
to renew them, and/or (iv) to suspend the execution of the Contract, if:
-
the Participant fails to comply
with its obligations (including payment obligations) owed to KPB and such
failure is incapable of remedy or, if capable of remedy,
is not remedied within ten (10) days of receipt of notice from KPB;
-
serious indications exist,
according to KPB, of insufficient solvability of the Participant;
-
the Participant would
transfer one or more assets of his business to a third party or would
contribute this into (another) company;
-
a petition, writ of summons
or any other mode of bringing a case before a court or a resolution or judgment
being passed or an order or any other decision being made or issued for the
winding-up, bankruptcy or dissolution of the Participant;
-
the
Participant suffers any event analogous to the events set out in clauses to in any jurisdiction;
-
the Securities provided as a
guarantee for the amounts due or would become due as a result of debts which
result from the use of the Card by the Cardholders, decrease or disappear or if
at KPB's discretion, there are serious indications that such is the case
(including but not limited to the case whereby KPB is informed of the
termination of a credit insurance);
-
the direct debit which was
provided for by the Participant has ceased or threatens to be ceased;
-
the Participant has reached
its Credit Limit, as determined in accordance with clause 7;
-
fraudulent use of a Card or
any issue pertaining to Card security and/or the PIN code; and/or
-
if the Card was not used
during a period of twelve (12) consecutive months.
In the events stated in clause 16.2, all claims from KPB on the Participant become
immediately claimable.
16.3. On termination of the Contract by KPB, the whole
outstanding balance of the Participant's account shall become immediately
claimable by KPB and the right of the Cardholder to use the Card will be
stopped immediately.
16.4. On termination of the Contract, the Participant
shall return all Cards to KPB in accordance with clause 13.1. The Participant will remain fully liable
without limitation for any use and/or misuse of the Cards in accordance with
the provisions of the Contract until such time as KPB is in receipt of the
Cards.
16.5. The Participant is not entitled to claim against
KPB for the termination, exclusion and variation referred to in this clause 16.
17.
Variations
17.1. KPB may, at any time, vary, add to or delete any provision of these General
Terms and Conditions via one or more
means of communication as stated in clause 18.2. The varied or new terms and conditions shall
apply and be deemed accepted by the Participant as from the date set out by
KPB, unless the Participant notifies KPB in writing within the given notice
period of its refusal to accept such varied or new terms and conditions. If the
Participant notifies KPB in writing of its refusal to accept the new General Terms and Conditions prior to their date of entry into force, KPB
has the right to terminate this Contract immediately without costs and/or
indemnity towards the Participant.
17.2. Notwithstanding the above-mentioned provisions,
KPB may at any time vary unilaterally the categories of Products which can be
purchased via the Card and can require that the provided Cards be replaced to
this end. The Participant acknowledges and accepts that, if KPB would bring a
loyalty card on the market, KPB can reserve the right to determine that
transactions with the Card are not entitled to the benefits of such a loyalty
card and/or saving points.
17.3. KPB may at any time change the IT-systems and
infrastructure used by KPB in the framework of the card's management.
18.
General
18.1. The Contract and all transactions which take
place via use of the Card are exclusively governed and interpreted in
accordance with Belgian law without reference to the conflict of law rules. The
Dutch speaking commercial court of Antwerp, division Antwerp, Belgium has
exclusive jurisdiction to settle any and all disputes between KPB and the
Participant which may arise directly or indirectly out of or in connection with
this Contract. The applicability of the United Nations Convention on Contracts
for the International Sale of Goods (CISG) of Vienna of 11 April 1980, ratified
by law of 4 September 1996 (Belgian Official Gazette 1 July 1997) is excluded.
18.2. Notices of whatever nature, can at the
discretion of KPB, lawfully be sent to the contact person specified in the
Online Application form or to the Participant itself. Notices can lawfully be
sent by (registered) mail, facsimile or email. The Participant agrees not to
dispute the evidential value of such e-mails. Any variation in the data as
specified above, shall be notified immediately to KPB. The Participant is
responsible for making sure that any notice from the Participant is made by
persons authorized to represent the Participant.
18.3. KPB shall not be liable for losses suffered or
incurred by the Participant and arising out of or in connection with the non-compliance
or delay in compliance of obligations resulting from a case of force majeure or
any other events which are not under the reasonable control of KPB. "Force
majeure" is understood as being an act or event beyond the reasonable
control of a Party, its agents or contractors, affecting the performance by
such Party of its obligations under the Contract, including without limitation
disaster, fire, flood, earthquake, elements of nature, acts of God, actual or
threatened terrorist attacks, acts of war, sabotage, explosion, riots, civil
disorders, rebellions, revolutions and strikes, lockouts or labour disputes,
government acts, accident or breakdown of plant or machinery, shortage of
materials, failure by a utility provider (including electricity, gas, network
or telecom provider) to provide services and any actions or omissions of third
parties beyond reasonable control of a party.
18.4. To the maximum extent permitted by applicable
law, if, despite KPB's commercially reasonable efforts, the Participant and/or
Cardholder is unable to make Purchases at a Sales point (e.g. unavailability of
Product or malfunctioning equipment) or access Services, KPB shall not be
liable for any losses suffered or incurred by the Participant and/or Cardholder
arising out of or in connection with the Participant and/or Cardholder being
unable to make Purchases at the Sales points or access the Services.
18.5. The Participant shall not disclose to any third
party, publish, or disseminate the terms of the Contract (including without
limitation any applicable commercial terms) without KPB' prior written consent.
This obligation of confidentiality shall not apply where
disclosure is a requirement of any law; regulation; binding judgment, order or
requirement of any court or other competent authority.
18.6. The Participant is not entitled to assign the
Contract or any rights and obligations arising from the Contract to any other
party without the prior written consent of KPB. KPB has the right to assign the
Contract, wholly or partly, or any rights and obligations arising therefrom to
any member of the Kuwait Petroleum Group and the Participant hereby provides
its consent to such assignment.
18.7. Those clauses that by their nature are expressly
or implicitly intended to survive the termination or expiry of the Contract, shall
so survive, including but not limited to clauses 13 (Liability); 14.3 until
14.5 included (Consequences of Termination); 16.1 (Governing Law and
Jurisdiction) and 16.5 (Confidentiality).
18.8. If a provision of the Contract is finally
determined to be, or becomes, invalid, illegal or unenforceable, then such
provision shall, if possible, and insofar as such clause is invalid, illegal or
unenforceable, be replaced by the Parties by a valid, legal and enforceable
clause reflecting as close as possible the initial intentions. If the invalid,
illegal or unenforceable provision cannot be validly replaced, then no effect
shall be given to said clause and it shall be deemed not to be included in the
Contract, such without affecting or invalidating the remaining provisions of
the Contract.
18.9. The Participant can only invoke a waiver of
rights and remedies by KPB under, or in connection with, the Contract only in
the event that the Participant receives an express written notice of such
waiver from KPB to the Participant. Any waiver shall apply only in the
instance, and for the purpose for which it is given. No right or remedy of KPB
under, or in connection with, the Contract shall be precluded, waived or
impaired by (i) any failure to exercise or delay in exercising it before any
statutory time bar; (ii) any single or partial exercise of it; (iii) any
earlier waiver of a similar right or remedy, whether in whole or in part; or
(iv) any of the above in relation to any other right or remedy (be it of
similar or different character)