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Certified Pick up (CPu) Terms & Conditions

Version 1 

1. General

The CPu Solution is offered by NxtPort BV, registered with the Crossroads Bank for Enterprises with enterprise number (LER Antwerp) 0429.672.881 with registered office at Sint-Pietersvliet 7, 2000 Antwerp (Belgium) ("NxtPort"). NxtPort is the concessionaire of a concession entrusted to it by the Port Authority. This concession concerns the centralised and secure processing and exchange of data relating to the handling status of Containers for the purpose of the uniform generation of a data set (audit trail) that is secured so as to be unique and creates (i) a Pickup Right for the effective collection of the Containers concerned and (ii) the secure collection by identity of the Containers concerned as determined and described in Art. 5.6. "Certified Pick up" of the Port Police Regulations ("Certified Pick up"). 

In accordance with the Port Police Regulations, the Maritime Transport Organiser, the First Authorised Representative in the collection process, the Terminal Operator and the Transport Organiser are required to join the CPu Solution, which then are the Users of the CPu Solution. 

This document describes the terms and conditions (the "CPu Terms and Conditions") under which a User will use the CPu Solution. These CPu Terms and Conditions shall apply to the use of the CPu Solution, once made available on the CPu Solution and accepted by the User. Upon explicit acceptance by the User, these CPu Terms and Conditions constitute the agreement between NxtPort and the legal or natural person registering as a user on the CPu Solution. 

NxtPort makes the CPu Solution available to Users in accordance with (1) the terms set forth in the Port Police Regulations, (2) the concession agreement between NxtPort and the Port Authority and, (3) the applicable laws and regulations. 

Neither the General Terms and Conditions for the Users nor those for NxtPort apply and are therefore expressly excluded, even if these General Terms and Conditions were to contain a similar clause.  

The use of the CPu Solution does not in any way affect the existing legal relationships, Maritime Transport Agreement, the existing agreement between the Maritime Transport Organiser and the Terminal Operator, the existing port regulations and everything that, within the meaning of the Shipping Code, governs the legal relationship between the Maritime Transport Organiser, the Terminal Operator, and the First Authorised Representative in the pickup process, other than to support the process of delivery of a full import container or empty shippers owned container that is supported by the CPu solution and to generate the Pickup Right as stipulated in these CPu Terms and Conditions. 

In these CPu Terms and Conditions, capitalised terms shall have the meaning assigned to them in Article 16. 

2. CPu Solution

2.1. Description

In respect of the Users, NxtPort offers the CPu Solution, providing the functionality and features needed for the recording, exchange, collection, retention of and access to the data required for Certified Pick up, as further set out in these CPu Terms and Conditions, for the purpose of supplying the Pickup Right and ensuring an audit trail. The CPu Solution has the object and purpose of enabling secure delivery of Containers at the Port of Antwerp. 

NxtPort supports the correct, timely and fully digital delivery of Containers between the Maritime Transport Organiser, the Terminal Operator, the First Authorised Representative and the further actors (further Release Party, Transport Organiser, Planner, Transporter) in the collection process under a Maritime Transport Agreement that gives entitlement to the delivery of goods.  

The CPu Solution is described in Annex 1 and will be implemented in phases. The CPu Solution may evolve based on changing functional, technical and security requirements as described in Documentation. 

The CPu Solution supports the ability to work with a third party application as described in clause 4 Article 5.6.3.1 "REQUIREMENTS UNDER CERTIFIED PICK UP" of the Port Police Regulations. Annex 3 sets forth the procedures that will apply in the event of the emergency situations described or if certain Containers are excluded from Certified Pick up. 

2.2. Registration – C-point account

The registration of a User and any use of the CPu Solution shall take place through each User's C-point account.  

Any use of the CPu Solution through a C-point profile is strictly personal. To ensure the security and integrity of the CPu Solution, the User must keep their C-point account and login credentials, including two-factor authentication codes, security settings and security tokens if applicable, secret and each User is responsible for the actions taken using their account and password. If the User suspects or discovers misuse of their account or login credentials, on the CPu Solution or otherwise, the User must immediately change their credentials and notify NxtPort and the Port Authority. The User must keep all contact details, billing details and other relevant information on their C-Point account up to date

NxtPort will act as the point of contact for C-Point incidents. 

2.3. Alfapass identification

CPu will use the Alfapass Validation Service to associate and validate a Pickup Right against an individual truck driver.  

  1. Alfapass will act as a subcontractor to NxtPort for CPu to provide the Alfapass Validation Service.   The Alfapass Validation service consists of confirmation from Alfapass of NxtPort's call confirming the validity of an Alfapass ID. Alfapass offers this service under the terms and conditions set forth in ANNEX and these are applicable to the User.  NxtPort will act as the point of contact for Alfapass Validation Service-related incidents. 

  2.  Alfapass is in charge of the Alfapass cards (issuing, checking, etc.). This is not part of the NxtPort-Alfapass relationship. 

  3. The Terminal will carry out a biometric check based on Alfapass technology where no biometric data is stored, either at the Terminal or in CPu. 

  4. The CPu Solution verifies that the Pickup Right is assigned to the Carrier picking up the container using the identity evidenced by the Alfapass

  5. NxtPort cannot be held liable for issuance to fake cards, or incorrect cardholders, as long as (2) is met, i.e. the Alfapass ID number is correct. 

2.4. API and User Interface

The CPu Solution is described in Annex 1 and consists of:

  • APIs made available to Users in order to maximise automatic mutual data exchange with the CPu Solution;

  • A User Interface that allows Users to exchange certain Data and perform a limited number of CPu functionalities.  

A limited number of EDIFACT message types will be temporarily supported for delivery of the Data.  The list of supported EDIFACT types is included on the NxtPort Website. 

Additional Add-on solutions may be offered, but they are not part of the CPu Solution.  Add-on solutions are listed in Annex 1.

2.5. Supply of Data via Third Party Application.

The User may elect to use a Third Party Application in order to fulfil the User's obligation under Certified Pick up, but only insofar as to provide the Mandatory Data on behalf of the User, by appointing the Third Party Application Provider as the User's subcontractor for the purposes of Certified Pick up.  

The Data must always be recorded and retained by the Third Party Application, whereby the Mandatory Data must be transferred to the CPu Solution. 

To qualify as a Third Party Application and Third Party Application Provider, the Third Party Application and Third Party Application Provider will need to comply with the Third Party Application Requirements. It is the responsibility of the User to appoint, as part of its obligations to Certified Pick up, a Third Party Application and Third Party Application Provider that meets these Third Party Application Requirements. The Third Party Application Requirements may, after prior discussion with the Third Party Application Provider, be modified from time to time by NxtPort to the extent required to guarantee the operational continuity and security of the CPu Solution.  

The use of a Third Party Application must never detract from the obligations of the User, who must ensure that all necessary actions are carried out and the correct and complete Data on behalf of the User is provided in a timely manner, and that they communicate all Data within the scope of Certified Pick up while taking account of their respective capacity and role. NxtPort is not liable for the Third Party Application or the services offered by the Third Party Application Provider.  The User will always be able to be held responsible for consequences from the use of or shortcomings in the Third Party Application. 

2.6. Service Level Agreement

NxtPort warrants that the CPu Solution will comply with the service levels set forth in the CPu Service Level Agreement as attached in Annex 2, which includes the mechanisms necessary to measure and report on compliance with these service levels. NxtPort will take all necessary measures to respect the service levels and will deploy all necessary available resources such that the service levels can remain assured in accordance with the provisions of the SLA. 

3. Right of use

3.1. Right to use the CPu Solution

NxtPort grants the User a worldwide, non-exclusive, non-transferable (without the right to sublicense) right to use the CPu Solution, solely to use the CPu Solution, with or without a Third Party Application, to fulfil its Certified Pick up obligation during the Duration of making the CPu Solution available. 

The User is only authorised to use the CPu Solution in accordance with the Documentation. 

3.2. Restrictions on the right of use

The User agrees to use the CPu Solution only within the scope of its Certified Pick up obligation. The User is not permitted to:

  1. decompile or reverse-engineer the source code (or the underlying ideas, algorithms, or structure) of the CPu Solution, or otherwise derive or attempt to derive or determine it, save for and only to the extent that such activity is expressly permitted by applicable law; 

  2. copy the CPu Solution; 

  3. gain unauthorised access to the accounts of other Users or use the CPu Solution to conduct or promote any illegal activities; 

  4. use the Data for any illegal activities; 

  5. use the Data through a specific API for purposes other than the intended purpose of that API; 

  6. impersonate another person or entity, or otherwise misrepresent affiliation with another person or entity; 

  7. use high-volume automatic, electronic or manual processes to access, search through or collect Data from the CPu Solution other than through the documented use of the APIs; 

  8. alter, remove or obscure any copyright notice, digital watermarks, proprietary legends or other notice contained in the CPu Solution; 

  9. intentionally spread worms, Trojan horses, corrupt files or other items of a destructive or deceptive nature in or through the CPu Solution; or

  10. remove or in any way circumvent technical or other protective measures in the CPu Solution. 

The User is not permitted to use the CPu Solution in a manner not permitted under the CPu Terms and Conditions. The User will use the CPu Solution only in accordance with (i) the CPu Terms and Conditions and (ii) any applicable laws and regulations. 

The User will only have access to the latest version of the CPu Solution. Any update or new version of the CPu Solution will supersede the previous version(s) of the CPu Solution. If necessary, the SLA will be modified when an update to or introduction of a new version of the CPu Solution occurs. The User, where appropriate, will be given the necessary time to schedule a technical migration to the update or latest version of the CPu Solution, following consultation with Community Representation. 

4. Data

4.1. Mandatory supply of Data

Each User is required, each within their role and capacity in the context of Certified Pick up, to take all necessary actions in a timely manner and to ensure that all Data, including Mandatory Data, in the context of Certified Pick up is communicated to and/or exchanged on the CPu Solution in a high-quality manner and without delay. The Mandatory Data must include all required information concerning the Container, the relevant legal entities, and natural persons, in order to create an Audit Trail. 

Each User is required to communicate any change or amendment to the relevant Mandatory Data within the scope of Certified Pick Up without delay. 

Data in messages supplied by Users on the CPu Solution that contain more data fields than the Mandatory Data or Supply Chain Data will not be processed by the CPu Solution. 

4.2. License to the Data

By communicating, uploading and/or exchanging Data, the User grants a non-exclusive licence to NxtPort, with the right to sub-license to its sub-contractors, to use and process the Data within the scope of Certified Pick up solely for the purpose of fulfilling the Certified Pick up obligation with regard to the respective Container. 

Status: Each Involved User will receive a personal, non-exclusive, limited licence without the right to sub-license to the Status of the Involved Container based on the Mandatory Data as further described in Annex 1, solely for the purpose of fulfilling the Certified Pick up obligation with respect to the Involved Container and to deliver the Involved Container.  

Data: Any Involved User may authorise NxtPort to disclose additional Data to other Involved Users (in addition to the Mandatory Data) with respect to an Involved Container. In such an event, each User receives a personal, non-exclusive, limited licence without the right to sub-license to the Data obtained from the CPu Solution, as further described in Annex 1. This licence may be revoked by the User at any time for future data sharing.

The User grants to NxtPort a non-exclusive right to license the Data used or generated in the context of Certified Pick up to the Port Authority for the sole purpose of using such Data in a generic manner for the purpose of the Port Authority's public duties, subject to the prior approval of the User and under the terms and conditions as agreed with the Users. This right shall survive termination of these CPu Terms and Conditions, unless otherwise agreed upon between the respective User and NxtPort.  

4.3. Access to Data in the context of police and Customs Administration duties

Without prejudice to the powers of the Harbourmaster's Office, the police and customs administration may gain access to the Data exchanged and generated in Certified Pick up within the limits of their statutory powers and in accordance with the applicable statutory provisions. 

4.4. Request for information – audit

If there are any concrete indications that there is a breach, irregularity or shortcoming by NxtPort as to Article 4 or the confidentiality commitments in Art. 8, any affected User may request information, and if this should prove insufficient, may have an audit performed by an independent third party, whose identity must be approved by NxtPort, which shall not unreasonably withhold its approval, on all relevant documents, processes or files relating to the confidential handling of the Data and the licences (and restrictions on these licenses) as set forth in this article. The cost of this audit will need to be borne by the requesting User, unless the audit were to show that there was a material breach of the provisions of these Terms and Conditions by NxtPort.

4.5. Active participation in new releases

The Users will actively participate in validating and testing new or updated functionality and interfaces for validation.  To this end, Users may associate and be represented by Community Representation or a particular User.  

5. Fees

5.1. The Variable Fee

The Users who qualify as Maritime Transport Organisers, the First Authorised Representative for the collection process, and the Terminal Operator (each a "Relevant User"), shall each pay for a period of six (6) years a fee per Container processed by the CPu Solution (the "Variable Fee"), with the Variable Fee to be divided between the Maritime Transport Organiser, the First Authorised Representative for the collection process, and the Terminal Operator, each for its share, as follows:

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Maritime Transport Organiser 

From 1 February 2021

0.50 euros per Container

From 1 February 2022

0.6666 euros per Container

From 1 February 2023

0.8333 euros per Container

 

 

Terminal 

From 1 February 2021

0.50 euros per Container

From 1 February 2022

0.6666 euros per Container

From 1 February 2023

0.8333 euros per Container

 

 

First Authorised Representative for the collection process 

From 1 March 2022

0.50 euros per Container

From 1 March 2023

0.6666 euros per Container

From 1 March 2024

0.8333 euros per Container

 

The Variable Fee is not applicable to Empty Shippers Owned Containers and the transshipment containers unloaded from a seagoing vessel at a Terminal in Antwerp and transported to another Terminal in Antwerp, provided that this information is correctly recorded or updated in CPu at the commercial release level before the container is released by the Maritime Transport Organiser. 

The Variable Fee applies in full in the event that the User, within the limits set forth in Article 2.5, uses a Third Party Application to supply the Data.   

If, within the limits set forth in Article 2.5, the User uses a Third Party Application to supply the Data, the Variable Fee for the Maritime Transport Organiser and for the First Authorised Representative shall be borne by the Maritime Transport Organiser.  

5.2. The Fixed Fee

For the use of CPu Solution, the Maritime Transport Organiser, the Terminal Operator and the First Authorised Representative owe an additional annual fee, and the Transport Organiser an annual fee (the "Fixed Fee"), if:

  • any use is made of a direct connection via the APIs/EDI in the context of Certified Pick up: an annual fixed fee of 2,500 EUR per year, on the understanding that this fee will also include the User Interface in the event of fallback scenarios;  

  • any use is made of the User Interface: an annual fixed fee to be paid as follows:

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5.3. Annual indexation

The Variable Fee and the Fixed Fees may be indexed yearly in line with the Belgian consumer price index (CPI) with 2020 as the base year in agreement with Community Representation.

6. Payment

6.1. Invoicing and payments

The Variable Fees are billed on a monthly basis for the past month. The Fixed Fee will be billed in advance on an annual basis. 

Invoices are payable within thirty (30) days of invoice date, except for the Transport Organiser Fixed Fee, which is payable annually prior to use.  

All fees are stated in EUR and exclude VAT, which is charged additionally to the User. 

6.2. Disputes

If a User disputes any part of an invoice, the User shall notify NxtPort of this within twenty (20) business days of the invoice date by e-mail (debiteurenbeheer@NxtPort.com), failing which the invoice shall be deemed accepted by the User. The undisputed portion of the invoice must be paid as stipulated in Art. 6.1 of these CPu Terms and Conditions. 

6.3. Late payment

In the event of non-payment, or incomplete payment on the due date of any of the undisputed invoices, by operation of law and without prior notice of default:

  1. a monthly interest rate of 1%, with each month started counting for a full month; 

  2. fixed damages equal to 5% of the unpaid invoice amount with a minimum of one hundred Euros (€100.00), without prejudice to NxtPort's right to demonstrate higher damages; 

  3. lower prioritisation in processing service requests in the event of recurring non-payment. 

7. Information security

NxtPort will have ISO 27001 certification or maintain an equivalent level of security and integrity over the duration of Certified Pick up and protect User Data from unauthorised access or use by a third party or from misuse, damage or destruction by a third party. 

NxtPort will conform to the NIS2 directive and relevant Belgian implementation law

Article 7 shall take precedence over provisions contained in Annexes in the event of any inconsistencies. 

NxtPort will immediately notify Users of incidents that potentially endanger Users' systems and Data, as set forth in Annex 2.  

8. Confidential Information

Neither Party shall use the Counterparty's Confidential Information except as reasonably necessary to perform its obligations under these CPu Terms and Conditions. Each Party shall keep the Confidential Information of the other Party secret with the utmost care and, in any case, by means no less restrictive than those it uses to protect its own confidential material. Each Party agrees not to make the Counterparty's Confidential Information available to persons other than its employees or subcontractors who are bound by a duty of confidentiality and need that same Confidential Information to perform the Party's obligations under these CPu Terms and Conditions. 

Notwithstanding anything in Art. 11.1, upon termination or expiration of the validity of these CPu Terms and Conditions, unless otherwise agreed in advance and in writing or unless otherwise provided for in these CPu Terms and Conditions, the receiving Party shall, at the request of the Party that made the Information available: either (i) return all Confidential Information of the Party that made the Information available, as well as all copies in the possession or under the control of the receiving Party, to the Party that made the Information available; or (ii) destroy all Confidential Information and copies thereof in the possession or under the control of the receiving Party, excluding any Confidential Information required to be retained for a longer period pursuant to art. 11.1. The receiving Party will then, at the request of the Party that made the information available, certify in writing that the receiving Party, its employees or agents did not retain any copies. 

Where a receiving Party in any procedure is required to disclose the Confidential Information of the Party that has made the Confidential Information available, the receiving Party must, where permitted by law, immediately and prior to the disclosure, inform the Party that has made the information available, in order to enable it to contest this obligation.

9. Intellectual property rights

9.1. CPu Solution

The CPu Solution, including all rights, titles and interest (including Intellectual Property Rights) therein, shall at all times remain the exclusive property of NxtPort and/or the licensor, and the User shall not acquire any rights or titles (including but not limited to Intellectual Property Rights) to the CPu Solution, except for the rights expressly granted under these CPu Terms and Conditions. The CPu Solution (including the Intellectual Property Rights) may not be modified, reproduced, distributed, and/or otherwise used in any form or manner, except as expressly permitted in these CPu Terms and Conditions.  

9.2. Data

The Data (including Intellectual Property Rights, if any) shall at all times remain the exclusive property of the User and/or its licensor. NxtPort and other Users do not acquire any rights or claims (including, but not limited to, Intellectual Property Rights) to the Data pursuant to the CPu Terms and Conditions, except those expressly granted pursuant to these CPu Terms and Conditions. 

10. Liability

10.1. Damage to and loss of Containers and their contents

NxtPort shall be liable, in whole or in part, for damage to or loss of (i) the contents of Containers or (ii) the Container body itself, including delivery to a third party not in accordance with the Pickup Right, as a result of any error or omission of the CPu Solution, and to the extent that the various actors have used the CPu Solution in accordance with the Documentation.  

 

NxtPort may be sued for such damage or loss by the Maritime Transport Organiser, the Terminal Operator, the First Authorised Representative in the collection process, the Shipping Agent, the Cargo Stakeholder or their legal successors. 

 

In addition, NxtPort shall be liable and indemnify the Users for all claims brought against the latter in application of Article 2.6.2.30 of the Belgian Shipping Code and subject to the application of the limitations provided for in the Belgian Shipping Code, or for any other liability that the User may incur for damage to or loss of the goods incurred due to delay, if such delay is merely the result of an error or omission on the part of NxtPort in the provision and making available of the CPu Solution. 

 

The liability that NxtPort might incur in application of Article 10.1 shall be limited to the amount to which the User making the claim can itself limit its liability, contractually or legally. 

 

Justified notification of potential claims (Notified Claims) against NxtPort must be communicated in writing as soon as the irregularity is established or reasonably should be established.  

Effective claims against NxtPort must be communicated in writing within three months of the statute of limitations for the respective right of claim by the Maritime Transport Organiser, the Terminal Operator, the First Authorised Representative in the collection process, the Shipping Agent, the Cargo Stakeholder or their legal successors pursuant to damage to and loss of the contents of Containers and/or to the Container body. However, this period may be extended by agreement concluded between the Parties, after the event giving rise to the claim has occurred. 

10.2. Customs duties, VAT and related fines

NxtPort shall be additionally liable, whether or not in indemnity, to the Maritime Transport Organiser, the Terminal Operator, the Shipping Agent, the First Authorised Representative in the collection process, the Cargo Stakeholder or their legal successors in compensation of customs duties and/or VAT and/or excise duties in the broadest sense, including costs, interest and fines in consequence of erroneous issue or exemption of Containers caused by an error or omission by NxtPort in the offer and provision of the CPu Solution that removes the contents of the Containers from customs supervision, insofar as the various actors have used the CPu Solution in accordance with the Documentation. 

 

Justified notification of potential claims (Notified Claims) against NxtPort must be communicated in writing as soon as the irregularity is established or reasonably should be established.  

Effective claims against NxtPort must be made in writing within three months of the statute of limitations for the respective right of claim of the Customs & Excise Administration and the VAT Administration by the Maritime Transport Organiser, the Terminal Operator, the First Authorised Representative in the collection process, the Shipping Agent, the Cargo Stakeholder or their legal successors. However, this period may be extended by agreement concluded between the Parties, after the event giving rise to the claim has occurred. 

10.3. General liability

In all cases other than those stipulated in Articles 10.1 and 10.2, NxtPort's liability shall be limited to the highest amount of either EUR 50,000 or the total amount of the Fees paid and/or still due in the 12 months preceding the damaging event. 

 

For breaches of Articles 8, 9 and/or 11, NxtPort's liability shall be limited to the highest amount of either EUR 100,000 or 200% of the total amount of the Fees paid and/or still due in the 12 months preceding the damaging event. 

 

With respect to the breaches referred to in Article 10.3 that occur during the first 12 months of the Agreement, the Fee shall be the fees that fall due during the first 12 months of the Agreement. 

 

In all cases other than those stipulated in Articles 10.1 and 10.2, NxtPort shall not be liable for consequential damages of any kind, such as loss of turnover or loss of goodwill. 

 

The compensation due on the part of NxtPort pursuant to Art. 10.1, 10.2 or 10.3 shall in any event be limited to the lawful amount effectively paid out by NxtPort's insurer(s) based on the insurance policy in response to the damaging event, it being understood that NxtPort shall maintain and properly pay its initial insurance coverage (or equivalent).  

 

NxtPort will make all reasonable efforts to ensure that, in the event of an insurance claim by the User, NxtPort's insurer will cover the damages, subject to the limitations and scope of the applicable insurance policy and in close consultation with Community Representation. 

 

In addition, a certificate of insurance can be requested at any time by Community Representation. 

 

However, NxtPort cannot limit its liability under any circumstances in the event of its own fraud or wilful misconduct. 

10.4. Force Majeure

A Party shall not be liable owing to the non-performance or delay in the performance of its obligations with respect to the CPu Solution due to force majeure (an extraneous cause). Force majeure is any circumstance that prevents or delays the Party's performance and over which it has or should have no control. The occurrence or circumstance in question shall not further exculpate the Party if it could have reasonably foreseen and avoided this, or prevented it, without prejudice to the general obligation of each Party to act in all circumstances in such a manner as to prevent and/or avoid and/or mitigate potential damages as much as possible.  

10.5. System audit following damages

Upon a Notified Claim, any affected User, may submit a request for root cause analysis, and if such root cause analysis should prove insufficient, a request for an audit by an independent third party of the specific system processes and system components associated with the Notified Claim. This request cannot be refused by NxtPort without a justifiable reason. The cost of this audit will need to be borne by the requesting User, unless the audit were to show that there was a material breach of the provisions of these Terms and Conditions by NxtPort. 

11. Data protection

11.1. Processing of personal data

Personal Data processed in the context of Certified Pick up may only be processed as described in this article and in accordance with applicable data protection legislation. 

NxtPort acts as a Data Controller with respect to the Personal Data processed by NxtPort in the context of Certified Pick up and is responsible for providing affected Users with all the information required under Data Protection Legislation regarding its respective processing activities.  

Personal Data, including but not limited to identity and contact details, of all data subjects within the scope of Certified Pick up, including but not limited to employees and agents of Users, shall be processed on the basis of the aforementioned statutory obligations for the purpose of registering and contacting these parties within Certified Pick Up and therefore achieving the aim described in 2.1.  

The aforementioned Personal Data may be shared by the Data Controller only with:

  1. Other Users in the context of Certified Pick up to the extent required for the purpose of delivering the Pickup Right and ensuring an Audit Trail; 

  2. as well as with Third Party Applications to the extent that such Third Party Applications are authorised for this purpose by the Users referred to in (i) and to the extent required for the purpose of delivering the Pickup Right and ensuring an Audit Trail; 

  3. with the Port Authority and NxtPort's subcontractors to the extent required for the CPu Solution and the task imposed by NxtPort upon the Users; 

Personal Data shall be retained for as long as the Users make use of Certified Pick up and in accordance with the statutory retention periods and time limits.  

This article shall be without prejudice to Article 4.3. 

Without prejudice to the foregoing, the information regarding the processing of personal data in connection with these CPu Terms and Conditions is set forth in Annex 6

11.2. Measures

NxtPort and the User shall each take the appropriate technical and organisational measures necessary to protect the Personal Data against accidental or unauthorised destruction, accidental loss, as well as against unauthorised alteration of or unauthorised access to it, and any other unauthorised processing of the Personal Data. 

12. Warranties and disclaimers

The User warrants that it has the required rights, licenses and authorisations to make the Data available to NxtPort and to other Users (to the extent that authorisation has been given to make it available) in accordance with the CPu Terms and Conditions.  

NxtPort is not responsible for the accuracy, timeliness and completeness of the original Data supplied to the CPu Solution by the Maritime Transport Organiser, the First Authorised Representative, the Terminal Operator, the Transport Organiser, the Carrier and the Planner, whether directly or using a Third Party Application. In addition, NxtPort does not need to guarantee the accuracy, timeliness or completeness of the information provided to it by Third Parties, including the Customs Administration.   

NxtPort warrants that the CPu Solution will operate in accordance with Documentation, including the timely processing of all Data. 

13. Indemnification against breaches of Intellectual Property Rights

13.1. Indemnification by NxtPort

NxtPort shall indemnify and hold the Users and their directors, employees, agents and representatives harmless from any claim, demand, loss, liability or damages of any kind, whether in tort (including fraud, wilful misconduct or gross negligence by NxtPort) or in contract, which it or any of them may incur as a result of or arising from a claim by a Third Party based on an infringement of such Third Party's Intellectual Property Rights by the CPu Solution, excluding any claims arising from:

  1. unauthorised use of the CPu Solution by the User; 

  2. Data provided by a user; or

  3. a modification to the CPu Solution by a Third Party or a User. 

This obligation to indemnify depends upon the following:

  1. NxtPort is notified in writing of such a claim as soon as possible, and in any case within 5 working days; 

  2. NxtPort shall have exclusive control over the defence and settlement of such a claim, provided that NxtPort confirms to the User that it holds exclusive responsibility for such a claim – in all other cases, each Party shall retain its own defence; 

  3. at NxtPort's request, the User shall fully cooperate with NxtPort in the defence of such a claim; and

  4. the User expresses no admission as to NxtPort's liability with respect to any such claim other than referral to NxtPort, nor does the User agree to any settlement without NxtPort's prior written consent.  

Provided these conditions are met, NxtPort shall indemnify the User for all damages and costs incurred by the User as a result of any such claim, as awarded by a court of competent jurisdiction of last resort, or as agreed to by NxtPort in a settlement. 

If, in NxtPort's reasonable judgement, the CPu Solution may be or become the subject of a claim by a Third Party (pursuant to Article 13.1), NxtPort shall have the right, at its own option and expense:

  1. to modify the CPu Solution such that it no longer infringes while maintaining materially equivalent functionality; 

  2. for the Users to obtain a licence to continue to use the CPu Solution in accordance with the CPu Terms and Conditions. 

13.2. Indemnification by the User

The User shall indemnify and hold NxtPort and its directors, employees, agents and representatives harmless from any justifiable claim, demand, loss, liability or damages of any kind that they or any of them may incur as a result of, or arising from, claims by Third Parties with respect to User Data that infringes the Intellectual Property Rights of another User or a Third Party. 

 

This obligation to indemnify depends upon the following:

  1. the User is notified in writing of such a claim as soon as possible, and in any case within 5 working days; 

  2. the User shall have exclusive control over the defence and settlement of such a claim, provided that the User confirms to NxtPort that it holds exclusive responsibility for such a claim – in all other cases, each Party shall retain its own defence; 

  3. at the User's request, NxtPort shall fully cooperate with the User in the defence of such a claim; and

  4. NxtPort expresses no admission as to the User's liability with respect to any such claim other than referral to the User, nor does NxtPort agree to any settlement without the User's prior written consent.  

Provided these conditions are met, the User shall indemnify NxtPort for all damages and costs incurred by the User as a result of any such claim, as awarded by a court of competent jurisdiction of last resort, or as agreed to by the User in a settlement. 

14. Duration and termination

14.1. Duration

The CPu Terms and Conditions shall apply for the entire duration that the Certified Pick up Solution is offered by NxtPort to the Users pursuant to a concession granted to NxtPort by the Port Authority. 

14.2. Termination for default

NxtPort may terminate a User's access to the CPu Solution only after intervention and prior authorisation by a court (or if so decided by such court, suspend access to the CPu Solution), and only if the User seriously violates the provisions of these CPu Terms and Conditions and fails to remedy such oversight within thirty (30) days of receipt of a notice of default. Violation by a User of provisions in any other agreement or legal relationship with NxtPort shall never be grounds for suspension or termination of that User's access to the CPu Solution.  

If a dispute arises between NxtPort and a User, the Parties undertake to meet within 20 days of a request by the most affected Party with the aim of attempting to resolve the dispute. In any event, the initiation of such consultations for amicable resolution cannot give rise to a suspension, or cessation of the task imposed by NxtPort, and the obligations of both Parties under these CPu Terms and Conditions shall in such an event remain in effect forthwith. If the dispute is not resolved within a period of 60 days after the request for a meeting has been submitted, and a solution accepted by all Parties, the Parties may submit the dispute to the competent court in Antwerp.  

This article is without prejudice to the right of the Parties to turn to a judge or take other urgent measures in the event of urgency without prior exhaustion of the escalation mechanism. 

14.3. Termination for non-payment

NxtPort may deny a User's access to the CPu Solution for non-payment if:

  1. A claim is more than 120 days past due;

  2. NxtPort notifies User in writing at least two times after expiration of claim with a period of at least 30 working days between the first and second notices.   

List of defaulters who have already received two reminders will be discussed with Community Representation before proceeding with termination. 

14.4. Consequences

Upon termination of access to the CPu Solution by NxtPort pursuant to Article 14.2 of the CPu Terms and Conditions, at the time of termination:

  1. the User will no longer have access to the CPu Solution; 

  2. all rights and obligations of NxtPort or the User under these CPu Terms and Conditions are terminated, except for the rights and obligations under the articles specifically mentioned in Article 15.6. 

14.5. Notification of termination of concession agreement.

In the event of termination of the concession agreement between NxtPort and the Port Authority, NxtPort will notify the Users of this immediately. 

15. Final provisions

15.1. No agency or mandate

NxtPort offers the CPu Solution in its own name and for its own account. Nothing in this Agreement creates, implies or evidences any form of mandate or agency between NxtPort on the one hand and a User on the other. 

15.2. Amendments to the CPu Terms and Conditions

NxtPort will be able to modify these CPu Terms and Conditions, but only after adequate and timely consultation with Community Representation and subject to approval of the modifications by the Port Authority. Any modification to these CPu Terms and Conditions will be effective upon at least one (1) month's prior notice.  

15.3 Changes to the CPu Solution and Documentation

NxtPort may modify the CPu Solution and/or Documentation, but only after adequate and timely consultation with Community Representation. In the event of urgency, this proactive consultation may exceptionally be waived and NxtPort may modify the CPu Solution and/or Documentation, but the Community Representation will be notified as soon as possible. 

15.4. Entire CPu Terms and Conditions

The CPu Terms and Conditions (including all annexes) include all the provisions in effect between the Parties on the subject of the CPu Solution. The CPu Terms and Conditions supersede all previous agreements, correspondence and exchange of information between the Parties regarding the use of the CPu Solution. 

15.5. Severability and conversion

The invalidity, illegality or unenforceability of any provision in the CPu Terms and Conditions shall not affect the validity, legality or enforceability of any other provision in the CPu Terms and Conditions or of the CPu Terms and Conditions as a whole. 

To the extent any provision of the CPu Terms and Conditions should be invalid, illegal or unenforceable, the Parties undertake, along with the professional associations, to negotiate in good faith a clause that comes as close as possible to the intended effect of the invalid, illegal or unenforceable provision. 

15.6. Continuing obligations

The expiration of the term of these CPu Terms and Conditions or the termination thereof in accordance with the provisions in the CPu Terms and Conditions shall not affect the obligations of the Parties, which by their nature are intended to continue unabated after the expiration of the CPu Terms and Conditions, such as Art. 4.3, 8, 9, 13 and 15.7.

15.7. Governing law and jurisdiction

These CPu Terms and Conditions are governed by Belgian law. 

Any dispute belongs to the exclusive jurisdiction of the courts of the judicial district of Antwerp (Antwerp section). If necessary, Parties may apply to the competent judge for summary proceedings of the judicial district of Antwerp (Antwerp section). 

16. Definitions

"Third Party Application Provider": a natural person or legal person appointed by a User as a Third Party Application Provider through which the User can partially fulfil its obligations in the context of Certified Pick up; 

"Account" means the User's personal account that enables access to and use of the CPu Solution; 

"Article": an article of these CPu Terms and Conditions; 

"API": an Application Programming Interface, a set of clearly defined communication methods, to communicate with the CPu Solution and to provide, obtain or process the Data; 

"Audit Trail": means electronic means of recording interactions with records within the Certified Pick up Solution, such that any access to the CPu Solution, to identify all authorised or unauthorised actions in relation to records within the CPu Solution, can be verified;  

"Professional associations": ASV, Forward Belgium, ABAS, TLV, Febetra, UPTR and KVBG. 

"Involved Container" means a Container to which the specific Release Right or Pickup Right applies with respect to a group of Involved Users; 

"Involved User" means any User with respect to a specific Involved Container that (i) acts as a Maritime Transport Organiser, (ii) acts as a Terminal or (iii) holds and/or has been assigned a Release Right or Pickup Right from another Involved User; 

"Certified Pick up": has the meaning set forth in Article 1, 

CPu Application”: the central application and associated functionalities, means of access and incidental matters that are provided by the authorised service provider, and that are managed and supported within the scope of Certified Pick up; 

"Certified Pick up Solution" or "CPu Solution" means Certified Pick up and the related CPu Application and services; 

Commercial release”: the notice from the Maritime Transport Organiser within the scope of Certified Pick up stating that it permits the Container to leave the port terminal; 

"Community Representation": means 1 or more points of contact designated by the Users' Professional Associations for NxtPort to discuss CPu-related topics and/or take on certain positions.   

Container”:

  • Any loaded container and any empty shipper-owned container that is delivered by seagoing vessel to a terminal at the Port and that will subsequently leave this terminal by inland navigation ship, truck, train, or any other mode of transport other than a seagoing vessel,

  • Any loaded container and any empty shipper-owned container that is unloaded by a seagoing vessel in another seaport, that is transported to a terminal at the port of Antwerp under an Antwerp Bill of Lading or under the control of the Maritime Transport Organiser and that will subsequently leave this terminal by inland navigation ship, truck, train, or any other mode of transport other than a seagoing vessel,

  • Any loaded container that is delivered by seagoing vessel to a terminal in the Port and is subsequently unloaded in this terminal; 

"C-Point": the C-Point service offered by the Port Authority as used for account management and entry into Certified Pick up; 

"C-Point Account": the account created by the User on C-Point; 

"CPu Error": Processing by NxtPort or the CPu Application of the Pickup Right that did not take place in accordance with the available Documentation, insofar as the Documentation was strictly followed by the User. 

"Third Party Application": an application from a Third Party Application Provider that is deployed by a User, along with the CPu Solution, in order to fulfil the obligations within the scope of Certified Pick up with respect to a particular set of Data, including Mandatory Data; 

"Third Party Application Requirements": the requirements imposed by NxtPort on the Third Party Application and the Third Party Application Provider to qualify as a Third Party Application pursuant to Art. 2.5 as attached in Annex 7

"Third Party" means natural persons or legal persons that do not qualify as Users (including their appointees or subcontractors), or NxtPort;  

"Customs Administration" the Belgian customs and excise administration; 

"Documentation": the applicable documentation, best practices, fair use policies and usage guidelines applicable to the CPu Solution as made explicit in Annex 1.   

"Customs Release": the CCRM message from the Customs Administration within the scope of Certified Pick up that, as far as the Customs Administration is concerned, the Container may leave the Terminal; 

EDI”: Electronic Data Interchange; 

First Authorised Representative”: the person designated by the Maritime Transport Organiser within the scope of Certified Pick up as the party who receives the first Release Right; 

"Fallback": alternative mode of operation as described in ANNEX 3

"Final Pickup Right": the right granted by Certified Pick up Application to the holder of the Pickup Right to remove a Container from a Terminal or to strip at the Terminal; "Gate-out message": digital message from to the Terminal Operator indicating at what time the Container left the Terminal; 

"User" means the legal person or sole proprietor who registers on the CPu Solution; 

"Data": any content uploaded and shared in the CPu Solution, regardless of the method of uploading or sharing, or regardless of whether the Data is the result of an upload, of a combination with other Data, or of an addition to the Data by NxtPort, or a User, including the Mandatory Data; 

"Data Processor" or "processor": has the meaning as defined in Data Protection Legislation; 

"Port Authority": HAVEN VAN ANTWERPEN-BRUGGE NV of public law, having its registered office at B-2030 Antwerp, Zaha Hadidplein 1 and registered at the Crossroads Bank for Enterprises with enterprise number 0248.399.380; 

"Port Police Regulations: the Port Police Regulations dated 1/12/2020 as approved by the Government of Flanders on 11 September 2020, as amended from time to time; 

"Intellectual Property Rights": all worldwide existing and future intellectual, industrial and other property rights, whether registered or unregistered, including, without limitation, inventions, patents and patent applications, trade secrets, know-how, database rights, trade names, trademarks, domain names, all other similar rights under applicable law, including all sign-ups and registrations, applications, renewals, continuations, divisions (of applications), reissues or improvements thereof or thereto; 

"Critical business processes of the CPu Solution" are processes that cannot be performed proactively, but are time-critical. 

"Maritime Transport Organiser": shipping company, whether or not represented by the Shipping Agent; 

"Party" and "Parties" means NxtPort and/or the User, as the case may be; 

"Personal Data": has the meaning as defined in Data Protection Legislation; 

"Pickup Right" for truck: the personalised right granted to the Carrier or Planner in the context of Certified Pick up by the Release Right Holder and then linked to a unique and personalised Alfapass, validated as such by CPu.  

Pickup Right” for barge and rail: the right assigned within the scope of Certified Pick Up by the Release Right holder to the Carrier or Planner and validated as such by CPu.  

Planner”: the legal entity that schedules the collection of the Container by inland navigation ship, train or any other mode of non-road transport or schedules the unloading of a Container in the name and on behalf of the Transport Organiser; 

Release Right”: the transferable right within the scope of Certified Pick up that permits a Pickup Right to be generated for a defined Container; 

"Relevant user": has the meaning set forth in Art. 5.1

"Service level": has the meaning set forth in Annex 2.

"Shipping Agent": the User (sole proprietor or legal person) mandated to represent the Maritime Transport Organiser and who, in the capacity of Shipping Agent, can act in the name and on behalf of the Maritime Transport Organiser for the purposes of Certified Pick up and assert the rights of the Maritime Transport Organiser; 

"Maritime Code": the Belgian Shipping Code, introduced by law on 8 May 2019, as amended from time to time; 

"Service Level Agreement": the service level agreement applicable to the CPu Solution as attached to these CPu Terms and Conditions as Annex 2

Shipper-owned container”: container that is not owned by a Maritime Transport Organiser; 

"Status" means the status of the various lights as defined in CPu's Documentation.   

"Supply Chain Data": Data uploaded by Users into the CPu Solution, other than the Mandatory Data determined, along with the professional associations, as being useful Data to be shared with other Users through the CPu Solution; 

"Terminal Operator": the terminal operator (stevedore) for the respective Container; 

"Terminal Release": the message from the Terminal Operator within the scope of Certified Pick up that, as far as the Terminal Operator is concerned, the Container may leave the Terminal; 

Carrier”: the natural person (designated by a User or sole proprietor) who transports a Container by road and physically collects the Container from the terminal; 

Transport Organiser”: the party that is the Release Right Holder for a Container at a given time within the scope of Certified Pick up, on which basis it either converts the Release Right into a Pickup Right that is then assigned to a Carrier or Planner or transfers the Release Right to a Transport Organiser of its choosing; 

User interface” or “UI”: user interface for which only a web browser and C-Point registration are required in order to work with the CPu Solution

"Fees": the Fixed Fee and / or Variable Fee due in connection with the use of the CPu Application; 

"Mandatory Data": the Data that is required to be supplied as set forth in the Port Police Regulations; 

"Confidential Information": non-public information, data, technical details, procedures or know-how of a Party, provided to the counterparty in writing, materially or in intangible form under these CPu Terms and Conditions. Oral disclosures shall also be deemed to be Confidential Information the confidential nature can reasonably be assumed or if confidentiality is confirmed at the time of disclosure. Notwithstanding the foregoing, Confidential Information does not include any information that: (i) is already lawfully in the possession of the receiving Party and is not subject to a duty of confidentiality to the Party providing the information; (ii) was independently developed by the receiving Party; (iii) has been disclosed, but not through fault of the receiving Party unless it should know that this is Confidential Information; (iv) was lawfully learned by the receiving Party from a Third Party, which is not subject to a duty of confidentiality; (v) was released with the written consent of the Party providing the information; or (vi) must be disclosed pursuant to a legal obligation, regulation, or court order, provided that the receiving Party, immediately and prior to disclosure, notifies the Party providing the information of such a requirement and cooperates to secure by all means a protective order or similar treatment. 

"Controller" or "Data Controller": has the meaning defined in the Data Protection Legislation. 

"Data Protection Legislation": means the following legislation, to the extent applicable from time to time: i) national laws implementing the Data Protection Directive (95/46/EC) and the Privacy and Electronic Communications Directive (2002/58/EC); ii) the General Data Protection Regulation (2016/679); and iii) any other similar national privacy legislation; 

 

"Maritime Transport Agreement": has the meaning as defined in the Maritime Code.   

"First Barge and Rail Cut Off (1BRCO)": Time when COPINO or similar documents are validated by the terminal for barge and rail containers. 

"Second Barge and Rail Cut Off (2BRCO): Time at which the loading process for containers leaving the terminal via barge and rail starts and from when no further CPu notifications will be processed by the terminal.

Annexes

EN_CPU Terms - Annex 3 tem 6.pdf EN_CPU Terms - Annex 1.pdf EN_CPU Terms - Annex 2.pdf

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