Article 1 Definitions
In these General Terms and Conditions, the following terms are used as follows, to the extent that the nature or intent of the clauses does not dictate otherwise.
1. All-in maintenance agreement: a maintenance agreement, which can be concluded together with a Purchase Agreement.
2. Equipment: the machine(s) delivered by CoffeeClick with accessories.
3. Loan Agreement: an agreement between CoffeeClick and Customer under which CoffeeClick provides Equipment on loan to Customer. The agreement further includes preventive and corrective maintenance, labor, call-out charges, parts and cleaning tablets. Client is obliged to pay the monthly agreed amount, regardless of the amount of consumptions consumed.
4. CoffeeClick: the private company with limited liability CoffeeClick B.V. located in (1175 RD) Lijnden at New Yorkstraat 2, registered in the Trade Register under KVK number 57115389.
5. Rental Agreement: an agreement between CoffeeClick and Client that consists of the (re)rental of Equipment, preventive and corrective maintenance, labor, call-out charges, parts, cleaning tablets and refreshments. Client is obliged to pay the monthly agreed amount, regardless of the amount of consumptions consumed.
6. Initial Contract Period: the duration of the Agreement originally agreed between the Parties.
7. Purchase Agreement: an agreement between CoffeeClick and Client that consists of the (re)purchase of Equipment, preventive and corrective maintenance, labor, call-out charges, parts, cleaning tablets and consumptions. Client is obliged to pay the monthly agreed amount, regardless of the amount of consumptions consumed.
8. Client (in male singular): any natural or legal person with whom CoffeeClick has concluded or intends to conclude an agreement.
9. Parties: CoffeeClick and the Client jointly.
10. Agreement/assignment: any agreement between CoffeeClick and Client in connection with CoffeeClick performing services for Client.
11. Written: communication in writing, communication by e-mail, by fax or any other means of communication that can be equated with this in view of the state of the art and socially accepted standards.
12. Renewal Period: a period equal to one-half the length of the Initial Contract Period.
1.1. No conditions other than those stated here shall be applicable to the agreements to be concluded between the Client on the one hand and COFFEECLICK B.V., hereinafter referred to as COFFEECLICK, on the other hand, as well as to prior offers and to the acceptance thereof, unless COFFEECLICK has explicitly established deviations in writing.
Article 2 Applicability
1. These general conditions are applicable to all offers, assignments, agreements and commitments between CoffeeClick and the Client, as well as to the execution thereof and the services provided to him by CoffeeClick.
2. CoffeeClick expressly rejects the applicability of Client's general terms and conditions, however named.
3. These general conditions also apply to agreements for the execution of which CoffeeClick involves third parties. Such third parties shall be entitled to invoke these General Terms and Conditions directly against the Customer.
4. The provisions of these general terms and conditions may only be deviated from in writing.
5. In the event of a conflict between CoffeeClick's General Terms and Conditions and the Agreement, what is contained in the Agreement shall prevail.
6. Destruction or nullity of one or more of the provisions of these general terms and conditions shall not affect the validity of the remaining clauses. In such a case the parties shall be obliged to enter into mutual consultation in order to reach a substitute arrangement in respect of the affected clause. The purpose and purport of the original provisions will be taken into account as far as possible.
7. CoffeeClick is entitled to unilaterally amend these General Terms and Conditions. Amendments will take effect one month after announcement or specified date by means of a written communication or a notice on the CoffeeClick website. If the Customer does not wish to accept the amendments to the General Terms and Conditions, he has the right to notify CoffeeClick of his complaints by registered letter until the amendments take effect. In that case the parties will enter into mutual consultation and try to reach a solution by mutual agreement. After the effective date the Customer is deemed to have accepted the changes - tacitly.
Article 3 Offer and formation of agreement
1. All quotations and offers from CoffeeClick are without obligation, even if they state a term for acceptance. CoffeeClick is never obliged to accept an order.
2. The Customer cannot derive any rights from an offer of CoffeeClick that contains an obvious error or mistake. Mention of sizes and/or weights of pictures and/or drawings of technical specifications, color and type, quantity, composition, power and quality, etc. in catalogs, brochures and/or in any other way is done as accurately as possible, but no rights can be derived from it.
3. An agreement is deemed to have been concluded only when the offer is accepted. If CoffeeClick has commenced its work without any protest from the Client, it shall be deemed that the offer has been accepted on the basis of the quotation. If the acceptance deviates from what is included in CoffeeClick's offer or quotation, the agreement will not be established in accordance with this deviating acceptance, unless CoffeeClick indicates otherwise.
4. An Order given to CoffeeClick shall be deemed irrevocable.
5. The concluded agreement shall commence at the time of delivery of the equipment ready for use, unless there is equipment already in use for which a new agreement has been concluded with COFFEECLICK. In the latter case, the effective date for the new term will be the next billing date.
6. The Client must treat the information from CoffeeClick's offer documents as confidential and may not use it for his own use or the use of third parties, or disclose it to third parties prior to the conclusion of the agreement.
7. If no contract is concluded on the basis of a CoffeeClick offer, the offer and all accompanying documents must be returned immediately by the Customer at CoffeeClick's first request and at his expense and risk to CoffeeClick's address.
8. Specific elaborations, customized advice, et cetera in the offer may not be used by Client in the event of rejection of the offer, and no rights may be derived therefrom vis-à-vis CoffeeClick, unless Client pays CoffeeClick a reasonable fee for the same.
9. An offer made by CoffeeClick does not automatically apply to any later agreements. However, in so far as no changes have been made therein, these General Terms and Conditions shall also apply to later agreements without CoffeeClick being obliged to make these General Terms and Conditions available to the Client each time.
Article 4 Obligations of Principal
1. Customer is obliged to provide CoffeeClick with all information reasonably relevant to the design and execution of the Agreement, as soon as possible as required for the design and (further) execution of the Agreement.
2. Client warrants the completeness and accuracy of all information provided by or on behalf of Client to CoffeeClick.
3. Client is obliged to provide the necessary facilities as indicated by CoffeeClick, so that CoffeeClick employees at the place of delivery can immediately start the work.
4. Client will timely designate two employees who will be instructed in the use of the Equipment upon installation.
5. Client shall provide, at its own expense, all necessary facilities such as electrical power, water supply, light, telecommunication facilities, and auxiliary materials at installation and during maintenance or repair.
6. Customer is obliged to use the Equipment with care, which includes correct adherence to the cleaning and decalcification procedures advised by CoffeeClick and manufacturer of the Equipment.
7. Client is obliged to connect the Equipment to a grounded outlet and a so-called "washing machine tap" with overflow protection. Use of the water filters prescribed by CoffeeClick is mandatory. Periodic replacement of spent water filters is at the expense of Client.
8. Customer shall immediately comply with instructions and directions of CoffeeClick and Customer shall, on his own initiative, promptly provide CoffeeClick with any information which Customer suspects or may suspect may be of importance or useful for CoffeeClick's performance of the Agreement.
9. Periodically, counter readings on the Equipment will be read by CoffeeClick. Customer is obliged to grant permission and access to CoffeeClick employees at all times to make this possible.
10. If the requested information has not been provided to CoffeeClick in a timely manner, CoffeeClick shall have the right to suspend the work in connection with the execution of the agreement and/or to pass on the damage resulting from the delay to the Client in accordance with the usual rates.
11. If the Parties have agreed that CoffeeClick will read counter readings by means of telecommunication facilities connected to the Equipment, Customer is obliged to maintain these facilities. Customer is not entitled to interrupt the telecommunication facilities without CoffeeClick's consent. Costs resulting from an interruption, other than as a result of a malfunction, will be charged to Customer in appropriate cases. In case of an interruption Customer is obliged to pass on counter readings to CoffeeClick on his own initiative.
12. If due to circumstances attributable to Customer the agreed performance cannot be carried out by CoffeeClick, CoffeeClick shall, at its own discretion, make the necessary arrangements at the expense of Customer or store the goods available for delivery at a location of its choice. By the mere written notification of this action, the delivery shall then be deemed to have taken place. In that case the Customer shall be obliged to reimburse CoffeeClick for any damage incurred, including any costs resulting from observance of waiting periods by CoffeeClick's personnel and persons employed by CoffeeClick and/or the costs of storage.
13. The Client is not permitted to transfer rights and obligations under the Agreement or these General Terms and Conditions to third parties without CoffeeClick's prior written consent.
Article 5 Execution of the Agreement
1. CoffeeClick shall execute the Agreement to the best of its knowledge and ability. CoffeeClick shall at all times only have an obligation of best efforts.
2. The parties are aware that the success of the Assignment depends on effort on both sides, good communication and good mutual cooperation. The Client shall therefore, at CoffeeClick's request, provide the cooperation that can reasonably be required of him.
3. If and insofar as the proper execution of the agreement requires it, CoffeeClick is free to have certain work done by third parties. The applicability of articles 7:404 and 7:407 paragraph 2 of the Dutch Civil Code is expressly excluded.
4. If during the execution of the Agreement it appears that for its execution it is necessary to modify or supplement it, then the Parties will promptly and in mutual consultation adapt the Agreement.
5. If the Parties agree that the Agreement will be amended or supplemented, this may affect the time of completion of the execution. CoffeeClick shall inform the Client of this as soon as possible.
6. If the amendment or supplement to the Agreement will have financial and/or qualitative consequences, CoffeeClick will inform the Client in advance. If a fixed fee has been agreed upon, CoffeeClick shall indicate the extent to which the amendment or supplement to the Agreement will result in a change of this fee.
7. If a time limit for the execution of certain work has been agreed upon or given, then this is an indicative time limit and never a strict deadline. Exceeding a deadline by CoffeeClick shall never result in CoffeeClick being liable for compensation.
8. All ingredients, which are included in the consumptions, are expressly stated in the Agreement. If the average consumption of both coffee and tea consumptions is lower than contractually agreed upon, Client is not entitled to a refund or otherwise.
Article 6 Service and maintenance
1. CoffeeClick shall perform the Agreement during office hours, that is, Monday through Friday from 8:30 a.m. to 5:00 p.m. If the Client wishes CoffeeClick to perform work outside the aforementioned times or under other circumstances, additional costs will be charged.
2. If the Equipment exhibits excessive downtime, CoffeeClick will provide replacement equipment at the then current contractual prices and conditions. This replacement equipment does not have to be factory new. In the context of these General Terms and Conditions, excessive downtime is defined as 5 downtimes per week. Customer must notify CoffeeClick of any downtime in writing and provide proof of this.
3. If an All-in Maintenance Agreement has been concluded between the Parties, CoffeeClick also undertakes to replace all parts if necessary, as well as to carry out interim repairs insofar as these have become necessary for normal use and are not due to displacement and/or inexpert use, culpable behavior with respect to, among other things, daily cleaning, or external influences and repairs carried out by third parties without CoffeeClick's consent.
4. Unless expressly agreed otherwise, the All-in Maintenance Agreement covers normal use of the Equipment during a 36 to 40 hour work week. If Customer intends to use the Equipment with greater intensity, an additional agreement must be concluded, in the absence of which CoffeeClick's obligations regarding maintenance will be suspended until that time.
5. CoffeeClick is entitled to supply remanufactured parts in case of repair. Replaced parts will become or remain the property of CoffeeClick.
Article 7 Deliveries
1. A delivery time agreed upon with CoffeeClick is an indication and never a deadline. Nevertheless, CoffeeClick will make every effort to specify the delivery time as accurately as possible.
2. Exceeding the specified delivery time, for whatever reason, shall not entitle the Client to compensation, to non-fulfillment of any obligation arising from the Agreement or to claim dissolution of the Agreement.
3. Any additional construction or installation work, such as provisions for hanging the equipment, installation of water pipes, grounded wall outlets, sockets, et cetera, will be at the expense of Client and will not be performed/delivered by CoffeeClick. Any additional labor hours as a result of the place of delivery not being ready will be charged to Client.
Article 8 Retention of title
1. All items delivered or to be delivered by CoffeeClick shall remain the property of CoffeeClick until Customer has fully satisfied all his payment obligations to CoffeeClick under any Agreement entered into with CoffeeClick.
2. Goods delivered by CoffeeClick under retention of title may only be used in the context of normal business operations. Customer is not permitted to pledge or otherwise encumber the goods delivered under retention of title.
Article 9 Duration of Agreement
1. Unless otherwise agreed, the Agreement is entered into for a definite period. At the end of the Initial Contract Period, the Agreement will be tacitly extended each time by the Renewal Period, unless one of the Parties cancels the Agreement by registered letter at least 12 months before the end of the Initial Contract Period or the Renewal Period. If the Agreement is not terminated no later than 12 months prior to the expiration of the Renewal Period, the Agreement will be extended by the same period each time. As an illustration, if the Initial Contract Period is 72 months and has not been terminated by registered letter at the latest 12 months prior to the expiration of this period, the Agreement will be extended by 36 months. In the absence of (timely) notice of termination, the Agreement will then be extended by 36 months each time.
Article 10 Termination of the Agreement
1. If Customer objects to an intended price change as referred to in 11.3 in a timely manner and fails to reach agreement with CoffeeClick even thereafter, Customer is entitled to terminate the Agreement by registered letter.
2. If Customer makes use of the cancellation option mentioned in the previous paragraph, CoffeeClick is entitled to charge a commutation sum over the remaining contract period. The buy-off sum consists of the sum of the remaining installment amounts.
3. In case the agreement is dissolved, € 275 in administrative costs will be charged.
Article 11 Prizes
1. Unless otherwise stated, the rates apply in accordance with the offer made by CoffeeClick. The prices stated in the offer are exclusive of VAT and other government levies, as well as any costs to be incurred in the context of the Agreement, including but not limited to administration costs, unless expressly stated otherwise. If no written offer was made, CoffeeClick's usual rates will be charged to the Client.
2. CoffeeClick is entitled to change the agreed prices and price structures from a time three months after the conclusion of the agreement. CoffeeClick will notify Customer of this change in writing no later than 30 days before the effective date of the price change.
3. The Client may object to the price increase as referred to in the previous paragraph by registered letter at least fifteen days before it is announced. The Parties will then enter into consultation.
4. If the Parties do not reach an agreement and the Client has exercised its right to terminate as described in Article 10.2, the rates will be maintained unchanged until the end of the period. If the Client does not exercise this right, the new rates will apply.
5. If, for any reason not attributable to CoffeeClick, CoffeeClick is unable to record the counter readings as referred to in Article 4.6, the Customer will be invoiced on the basis of an estimate, while any difference will be corrected after receipt of the counter readings. If CoffeeClick has to estimate the counter readings, CoffeeClick is entitled to charge administration costs equal to the costs CoffeeClick has had to incur for the estimation, with a minimum of € 45.
6. The price per coffee consumption is based on an average use of beans, namely 8 grams per consumption. If it appears that the average bean usage is higher than 8 grams of beans per consumption, this right will be invoiced proportionally to Client at an amount of € 16.00 per kilogram of beans. The same applies to the topping.
7. Additional order costs will be charged to Client for deliveries with a value below €185.00 excluding sales tax.
8. Costs of third parties involved in the execution of the agreement by CoffeeClick will be charged to the Client separately, unless expressly agreed otherwise between CoffeeClick and the Client.
Article 12 Payment
1. Invoicing of the agreed monthly installments takes place in advance every three months. Invoicing of additional consumptions will take place afterwards every three months.
2. Unless expressly agreed otherwise, invoices must be paid within thirty (30) days of the date indicated on the invoice, in the manner otherwise prescribed by CoffeeClick on the invoice.
3 CoffeeClick is entitled at all times to demand full or partial prepayment of the agreed amount or payment of an advance or other means of security, and to suspend its obligations until such time as the (partial) prepayment or security has been received.
4. CoffeeClick is not previously obliged to (further) execute the Agreement for as long as the Customer is in default of any payment obligation owed to CoffeeClick.
5. Invoices from CoffeeClick must be paid - without deduction, discount or set-off - in a timely manner. Customer is not authorized to suspend any payment obligation.
6. In the event of Customer's liquidation, bankruptcy, attachment or suspension of payments, CoffeeClick's claims shall be immediately due and payable.
7. In the event of a jointly given assignment, Clients, insofar as CoffeeClick's work has been performed on behalf of the joint Clients, are jointly and severally liable for payment of the invoice amount, regardless of the name of the invoice.
8. CoffeeClick is entitled to make the invoices due to the Client available to the Client by e-mail only.
9. Customer is never entitled to offset amounts he owes CoffeeClick with any counterclaim, for whatever reason, that Customer may have against CoffeeClick. This also applies if a suspension of payments and/or bankruptcy or a debt restructuring arrangement has been applied for or has been pronounced with regard to Customer.
10. If payment is not made on time, the Client shall be in default by operation of law. From the moment of entering into default, the Client shall owe interest on the amount due at a rate of 1.5% per month and in the event that the statutory interest rate is higher than the actual interest rate, whereby part of a month shall be considered a full month.
11. All reasonable costs, including judicial, extrajudicial and execution costs, incurred to obtain the amounts owed by the Client shall be borne by the Client. These costs amount to at least 15% of the amount due, with a minimum of € 250.
Article 13 Warranty
1. The warranty period for repairs made by or on behalf of CoffeeClick is three months.
2. Maintenance, changes or repairs to the Equipment carried out by unauthorized third parties, use other than prescribed or other than generally accepted, as well as defects due to external causes, such as fire or water damage, or due to other causes not attributable to CoffeeClick, void any warranty.
3. If new items and/or parts are delivered in fulfillment of the warranty obligations, Customer shall immediately return the items and/or parts originally delivered by CoffeeClick.
Article 14 Liability and damages
1. CoffeeClick only has an obligation of effort toward the Client.
2. CoffeeClick's liability is limited to direct, material damage caused by a failure attributable to it.
3. CoffeeClick shall never be liable for any indirect damage suffered by Customer in the event of a failure attributable to CoffeeClick in the execution of an agreement with Customer, including more specifically but not exclusively consequential damage such as loss of profit, lost turnover, missed savings, business stagnation or damage to third parties.
4. If CoffeeClick is liable for any kind of damage, CoffeeClick's liability shall be limited to the amount that is paid out under its liability insurance in the case in question, increased by any excess to be borne by CoffeeClick under the insurance policy, but at all times - whether or not the insurer pays damages - to an amount of the net invoice price of three months prior to the damaging event.
5. In no event shall the total compensation for damages under this article exceed €10,000 per event, whereby a series of related events shall be considered a single event.
6. Damage for which CoffeeClick can be held liable under these General Terms and Conditions must be reported to CoffeeClick in writing as soon as possible, but no later than fourteen (14) days after its occurrence. Damage that has not been reported within that period shall not be eligible for compensation, unless the Customer can make it plausible that he could not have reported the damage earlier.
7. CoffeeClick shall not be liable for Customer's damages due to the fact that it has relied on incorrect or incomplete information provided by Customer or third parties.
8. CoffeeClick is not liable for the quality and safety of facilities installed by third parties as referred to in Article 7.3.
9. CoffeeClick has the right to engage third parties in the execution of its services and work, making use of their services or products. CoffeeClick is not liable for any damage resulting from shortcomings of third parties engaged by it in the execution of the Agreement.
10. The Client indemnifies CoffeeClick for any claims of third parties who suffer damage in connection with the execution of the Agreement.
11. The limitations of liability in these General Terms and Conditions do not apply if the damage was caused by intentional or deliberate recklessness on the part of CoffeeClick.
Article 15 Force majeure
1. In the event of force majeure, CoffeeClick is entitled to temporarily suspend its obligations under the agreement without thereby becoming liable for damages. CoffeeClick cannot be held accountable for compliance during the period of force majeure.
2. Force majeure includes fire, fire at suppliers, power failure, Internet failure, illness of employees and all external causes, foreseen or unforeseen, on which CoffeeClick cannot exert any influence, but which prevent CoffeeClick from fulfilling its obligations. This also includes the case where third parties used by CoffeeClick in the execution of the agreement are not able to execute the agreement, for whatever reason.
3. CoffeeClick is no longer authorized to suspend if the force majeure has lasted for an uninterrupted period of three months, or so much earlier if it has been established that compliance has become permanently impossible due to force majeure. In that case the Parties have the right to dissolve the Agreement without the Parties being liable to each other for damages in any way. Dissolution shall not affect the Customer's due payment obligations.
Article 16 Suspension and dissolution
1. If the Customer does not, not properly or not timely fulfill any obligation that may arise for him under this or any other agreement with CoffeeClick, he is deemed to be legally in default and CoffeeClick, at its option, will always be authorized to suspend its own obligations in whole or in part, or to dissolve the agreement in whole or in part, or to claim fulfillment, without prejudice to CoffeeClick's claims for compensation. All such cases shall always result in the exigibility of all that is owed to CoffeeClick.
2. CoffeeClick is entitled to terminate all or part of the Agreement with immediate effect, without notice of default and without judicial intervention, by written notice to Client, in the event of suspension of payments, bankruptcy, receivership or receivership, and/or cessation or liquidation of Client, as well as if any executory seizure is made against Client.
Article 17 Claims and complaints
1. A complaint about work performed must be made known to CoffeeClick in writing within fourteen (14) days after Customer has discovered or reasonably should have discovered the shortcoming, whereby Customer must indicate, with the submission of evidence, what the shortcoming consists of and when and how he discovered the shortcoming. Exceeding this period will result in the forfeiture of all claims.
2. Complaints regarding the amount of invoice amounts must be submitted in writing to CoffeeClick within fourteen (14) days of the invoice date. Exceeding this period will result in the lapse of all claims.
3. Even if the Customer complains in a timely manner, his obligation to pay CoffeeClick on time remains.
Article 18 Disputes
1. Each agreement and all legal relations arising therefrom between the parties shall be governed exclusively by Dutch law.
2. Disputes arising from legal relationship(s) between CoffeeClick and Customer will be submitted to and settled by the District Court of Amsterdam. Notwithstanding this, CoffeeClick is free to submit disputes to the competent court under the law.
B. RENTAL AND LOAN
Article 19 Rental and Loan Agreements
1. In the event that Customer and CoffeeClick have entered into a Rental or Usage Loan Agreement, then Customer is obligated to use the Equipment exclusively for himself and his own business in the designated place, and the Equipment may only be moved with CoffeeClick's written permission.
2. CoffeeClick shall, at its option, provide new or refurbished Equipment.
3. Client is obliged to take out insurance for the Equipment, which will pay out at least the new value of the Equipment in the event of damage. Client shall ensure, at its own expense, that the Equipment is kept operational and cleaned on a daily basis.
4. In case of theft, fire and water damage as well as destruction of the Equipment, Customer is obligated to reimburse CoffeeClick for the resulting damage up to a maximum of the new price of the Equipment.
5. If the Rental or Loan Agreement is terminated for any reason, Customer is obliged to return the Equipment to CoffeeClick. In that case, Customer shall owe disposal costs amounting to € 285 per machine.
Lijnden, November 2020
