Article 1 Definitions
In these General Terms and Conditions the following terms are used, insofar as not otherwise follows from the nature or tenor of the terms.
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. User Agreement: an agreement between CoffeeClick and Customer by virtue of which CoffeeClick provides Equipment on loan to Customer. Furthermore, the agreement includes preventive and corrective maintenance, labour costs, call-out charges, spare parts and cleaning tablets. Customer is obliged to pay the monthly agreed amount, regardless of the amount of consumptions enjoyed.
4. CoffeeClick: the private company with limited liability CoffeeClick B.V., established in (1175 RD) Lijnden at the New Yorkstraat 2, registered in the Trade Register under Chamber of Commerce number 57115389.
5. Lease Agreement: an agreement between CoffeeClick and Customer consisting of the lease of Equipment, preventive and corrective maintenance, labour costs, call-out charges, parts, cleaning tablets and consumptions. Customer is required to pay the agreed monthly amount, regardless of the number of consumptions enjoyed.
6. Initial Contract Period: the duration of the Agreement originally agreed between the Parties.
7. Purchase agreement: an agreement between CoffeeClick and Customer consisting of the purchase or sale of Equipment, preventive and corrective maintenance, labour costs, call-out charges, parts, cleaning tablets and consumptions. Customer is obliged to pay the agreed monthly amount, regardless of the amount of consumptions consumed.
8. Client (in masculine singular): every 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: every agreement between CoffeeClick and Client in connection with the performance of services by CoffeeClick for Client.
11. In writing: communication in writing, by e-mail, by fax or any other means of communication which, in view of the state of the art and generally accepted practice, can be regarded as equivalent to this.
12. Extension Period: a period equal to half the duration of the Initial Contract Period.
1.1. No other terms and conditions than those stated here shall apply to the agreements to be concluded between the customer on the one hand and COFFEECLICK B.V., hereinafter referred to as COFFEECLICK, on the other hand, as well as to any previous offers and to the acceptance thereof, unless COFFEECLICK has explicitly laid down deviations in writing.
Article 2 Applicability
1. These general conditions apply to all offers, assignments, agreements and undertakings between CoffeeClick and Client, as well as to the execution thereof and the services rendered by CoffeeClick to Client.
2. CoffeeClick explicitly rejects the applicability of Client's general conditions, however named.
3. These general conditions are also applicable to agreements for the execution of which CoffeeClick engages third parties. These third parties can directly appeal to Client on these general conditions.
4. The provisions of these general terms and conditions may only be deviated from in writing.
5. In case of conflict between the general conditions of CoffeeClick and the Agreement, the provisions of the Agreement shall prevail.
6. The nullity or invalidity of one or more provisions of these general terms and conditions shall not affect the validity of the remaining provisions. In such a case, the parties are obliged to enter into mutual consultation in order to reach a substitute arrangement with regard to the clause affected. In doing so, the purpose and purport of the original provisions shall be taken into account as much as possible.
7. CoffeeClick is entitled to unilaterally modify these general conditions. Amendments shall take effect one month after their announcement or a further specified date by means of a written notification or a notification on CoffeeClick's website. If Client does not wish to accept the amendments of the general conditions, he has the right to communicate his complaints to CoffeeClick by registered mail, until the time the amendments take effect. Parties shall then enter into mutual consultation and try to find a solution by mutual agreement. After the effective date, Client is considered to have tacitly accepted the modifications.
Article 3 Offer and conclusion of agreement
1. All offers and tenders by CoffeeClick are without engagement, even if they contain a term for acceptance. CoffeeClick is never obligated to accept an offer.
2. The Client cannot derive any rights from an offer of CoffeeClick which contains an obvious mistake or error. Indications of sizes and/or weights of images and/or drawings of technical specifications, colour and type, quantity, composition, power and quality etc. in catalogues, brochures or otherwise are made as accurately as possible, yet no rights can be derived from them.
3. An agreement is only considered to be established when the offer is accepted. If CoffeeClick has started its activities without Client protesting, the offer is considered accepted. If the acceptance deviates from the offer or quotation of CoffeeClick, the agreement is not concluded in accordance with this deviating acceptance, unless CoffeeClick indicates otherwise.
4. An Assignment given to CoffeeClick shall be considered irrevocable.
5. The agreement concluded shall take effect at the time the equipment is delivered ready for use, unless it concerns equipment already in use for which a new agreement has been concluded with COFFEECLICK. In the latter case, the commencement date for the new term shall be the next invoice date.
6. Client shall treat the information in CoffeeClick's offer documents as confidential and shall not use it for his own use or for the use of third parties, or disclose it to third parties prior to the conclusion of the agreement.
7. If no agreement is concluded on the basis of an offer made by CoffeeClick, the offer and all corresponding documents must be returned by Client to CoffeeClick's address immediately upon request and for Client's account and risk.
8. Specific elaborations, custom-made advice, etc. in the offer cannot be used by Client in case of rejection of the offer and no rights can be derived therefrom towards CoffeeClick, unless Client pays CoffeeClick a reasonable fee for this.
9. An offer of CoffeeClick does not automatically apply to any later agreements. Provided no amendments have been made thereto, these general conditions shall nevertheless also apply to any subsequent agreements, without CoffeeClick being obliged to provide Client with these general conditions again and again.
Article 4 Obligations of the Client
1. The Client is obliged to provide CoffeeClick with all information reasonably relevant to the setup and execution of the Agreement, as soon as possible as required for the setup and (further) execution of the Agreement.
2. The Client is responsible for the completeness and correctness of all information provided by him or on his behalf to CoffeeClick.
3. Client is obligated to take care of the necessary facilities as indicated by CoffeeClick, so that CoffeeClick employees can start work immediately at the place of delivery.
4. The Client shall, in a timely manner, appoint two employees to be instructed in the use of the Equipment upon its installation.
5. Client shall at its own expense provide all necessary facilities such as electric tension, water supply, light, telecommunication facilities and auxiliary materials during installation and maintenance or repair.
6. Customer is obliged to use the Equipment with care, which includes correctly following the cleaning and decalcification procedures advised by CoffeeClick and manufacturer of the Equipment.
7. Client is obligated to connect the Equipment to an earthed wall socket and a so-called "washing machine tap" with overflow protection. Use of the water filters prescribed by CoffeeClick is mandatory. Periodic replacement of the used water filters is at Client's expense.
8. The Client shall immediately comply with instructions and directions of CoffeeClick and the Client shall, on its own initiative, timely provide CoffeeClick with all information which the Client suspects or can suspect to be of interest or useful for the execution of the Agreement by CoffeeClick.
9. CoffeeClick will periodically read out the meter readings on the Equipment. Customer is obligated to grant CoffeeClick employees access and permission to do so at all times.
10. If the requested information is not provided to CoffeeClick in time, CoffeeClick has the right to suspend activities related to the execution of the agreement and/or to charge Client for damages resulting from the delay at the usual rates.
11. If Parties have agreed that CoffeeClick will read out the meter 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, shall be charged to Customer when appropriate. In case of interruption, Customer is obliged to pass on meter readings to CoffeeClick on his own initiative.
12. If the agreed performance cannot be performed by CoffeeClick due to circumstances attributable to Client, CoffeeClick shall, at Client's option, make the necessary arrangements at Client's expense or store the goods available for delivery at a location chosen by CoffeeClick. By the mere written notification of this action, delivery is deemed to have taken place. Client is then obligated to compensate CoffeeClick for all damage, including possible costs resulting from observance of waiting times by CoffeeClick personnel and by persons engaged by CoffeeClick and/or the costs of storage.
13. Client is not allowed to transfer rights and obligations from the agreement or from these general conditions to third parties without prior written consent of CoffeeClick.
Article 5 Execution of the Agreement
1. CoffeeClick shall perform the agreement to the best of its abilities. CoffeeClick shall only be obligated to perform to the best of its abilities at all times.
2. Parties are aware that the success of the Assignment depends on efforts from both sides, good communication and good mutual cooperation. The Client shall therefore provide CoffeeClick, upon request, with the cooperation that can reasonably be expected of it.
3. If and to the extent required for a proper execution of the agreement, CoffeeClick is free to have certain activities performed by third parties. The applicability of sections 7:404 and 7:407 section 2 of the Dutch Civil Code is explicitly excluded.
4. If, during the execution of the agreement, it appears that for the execution thereof it is necessary to amend or supplement the agreement, the Parties will proceed to adapt the agreement in good time and in mutual consultation.
5. If Parties agree that the Agreement will be amended or supplemented, this may influence the time of completion of the execution. CoffeeClick shall inform Client of this as soon as possible.
6. If the change or addition to the Agreement will have financial and/or qualitative consequences, CoffeeClick shall inform Client thereof in advance. If a fixed fee has been agreed upon, CoffeeClick shall indicate to what extent the change or supplement to the Agreement will result in a change of this fee.
7. If a term has been agreed or specified for the execution of certain activities, this term is indicative and never a deadline. Exceeding a deadline by CoffeeClick shall never result in CoffeeClick being held liable.
8. All ingredients included in the consumptions will be explicitly stated in the Contract. If the average consumption of both coffee and tea is lower than contractually agreed, Client shall not be entitled to a refund or otherwise.
Article 6 Service and maintenance
1. CoffeeClick performs the Agreement during office hours, i.e. from Monday to Friday from 8:30 a.m. to 5:00 p.m. If Client wishes CoffeeClick to perform activities outside these hours or under different circumstances, additional costs will be charged.
2. If the Equipment shows excessive downtime, CoffeeClick will provide replacement equipment at the contractual prices and conditions applicable at that time. This replacement equipment does not have to be factory new. In the context of these General Terms and Conditions, excessive downtime is understood to mean 5 stoppages of the Equipment per week. Customer shall inform CoffeeClick in writing each time of any standstill of the Equipment, submitting evidence.
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 perform interim repairs insofar as these have become necessary for normal use and are not due to displacement and/or inexpert use, culpable conduct with regard to daily cleaning, for example, or external influences and repairs performed by third parties without CoffeeClick's consent.
4. Unless explicitly agreed otherwise, the All-in maintenance agreement covers normal use of the Equipment during a 36 to 40 hour working week. If Customer intends to use the Equipment more intensively, an additional agreement must be concluded, in the absence of which CoffeeClick's obligations regarding maintenance shall be suspended until such time.
5. CoffeeClick is entitled to supply revised parts in case of repair. Replaced parts become or remain CoffeeClick's property.
Article 7 Deliveries
1. A delivery time agreed upon with CoffeeClick is an indication and can never be considered as a deadline. Nevertheless, CoffeeClick will make every effort to indicate the delivery time as accurately as possible.
2. Exceeding the specified delivery time, for whatever reason, will not entitle the Client to compensation, to non-compliance with any obligation arising from the Agreement on his part or to claim dissolution of the Agreement.
3. Any additional constructional or installation work, such as facilities for hanging the equipment, installation of water pipes, earthed wall sockets, etc. are at Client's expense and are not performed/supplied by CoffeeClick. Possible extra working hours as a result of the delivery location not being ready, will be charged to Client at a rate of € 98,00 per hour for the first hour and € 24,50 per quarter hour thereafter.
Article 8 Retention of title
1. All products delivered or to be delivered by CoffeeClick remain the property of CoffeeClick until Client has completely fulfilled all his payment obligations towards CoffeeClick on account of any agreement concluded with CoffeeClick.
2. Goods delivered by CoffeeClick under retention of title may only be used in the normal course of business. Client is not allowed to pledge or otherwise encumber the goods delivered under retention of title.
Article 9 Duration of the Agreement
1. Unless otherwise agreed, the Agreement is entered into for a definite period. After the end of the Initial Contract Period, the Agreement will be tacitly renewed by the Renewal Period, unless either Party has terminated the Agreement by registered mail not later than 12 months before the end of the Initial Contract Period or the Renewal Period. If the Agreement is not terminated not later than 12 months before the end of the Renewal Period, it will be extended each time by the same period. By way of illustration: if the Initial Contract Period is 72 months and notice of termination has not been given by registered mail at least 12 months before the end of this period, the Agreement will be extended by 36 months. In the absence of a (timely) termination, the Agreement will subsequently be extended by 36 months each time.
Article 10 Termination of the Agreement
1. In case Customer objects in time to an intended price change, as referred to under 11.3, and fails to reach an agreement with CoffeeClick even after that, Customer is entitled to terminate the Agreement by registered letter.
2. If Customer makes use of the possibility of dissolution mentioned in the previous paragraph, CoffeeClick is entitled to charge a lump-sum over the remaining contract period. The surrender charge consists of the sum of the remaining contractual amounts.
3. In case the agreement is dissolved, € 275,- for administration costs will be charged.
Article 11 Prices
1. Unless stated otherwise, the rates are in accordance with the offer made by CoffeeClick. The prices mentioned in the offer are exclusive of VAT and other government levies, as well as of any costs to be made in connection with the Agreement, including but not limited to administration costs, unless explicitly stated otherwise. If no written offer was made, Client will be charged CoffeeClick's usual rates.
2. CoffeeClick is entitled to change the agreed prices and price structures from a point in time three months after the Agreement was concluded. CoffeeClick shall inform Client of the price change in writing no later than 30 days before the price change becomes effective.
3. Client may object to the price change by registered letter no later than fifteen days prior to the announcement of the price increase as referred to in the previous paragraph. Parties will then consult with each other.
4. If the Parties fail to reach an agreement and Customer has exercised its right to dissolve the agreement as described in Article 10.2, the rates will remain unchanged until the end of the period. If Customer does not make use of this right, the new rates will apply.
5. If CoffeeClick, for any reason not attributable to CoffeeClick, is unable to record the meter readings as stated in section 4.6, Client will be charged on the basis of an estimate, while after receipt of the meter readings the possible difference will be corrected. If CoffeeClick has to estimate the meter readings, CoffeeClick is entitled to charge administration costs equal to the costs CoffeeClick had to make for the estimate, 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 use of beans is higher than 8 grams per consumption, this will be invoiced proportionally to Client at an amount of € 16.00 per kilogram of beans. The same applies to the topping.
7. For deliveries with a value of less than € 185.00 excluding VAT, the Client will be charged additional order costs.
8. Costs of third parties involved in the execution of the agreement by CoffeeClick shall be charged to Client separately, unless otherwise explicitly agreed upon by CoffeeClick and Client.
Article 12 Payment
1. Invoicing of the agreed monthly instalments shall take place in advance per three months. Additional consumptions shall be invoiced afterwards on a three-monthly basis.
2. Unless explicitly agreed otherwise, invoices must be paid within thirty (30) days of the date mentioned on the invoice, in the manner otherwise prescribed by CoffeeClick on the invoice.
3 CoffeeClick is at all times entitled 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 the provision of security has been received.
4. CoffeeClick is not obliged to (further) execute the Agreement as long as Client is in default of fulfilling his payment obligations towards CoffeeClick.
5. Invoices of CoffeeClick must be paid in time, without deduction, discount or settlement. Client is not authorized to suspend any payment obligation.
6. In case of liquidation, bankruptcy, seizure or suspension of payment of Client, CoffeeClick's claims shall be immediately due and payable.
7. In case of a jointly given order, Client is jointly and severally bound for the payment of the invoice amount, regardless of the name of the invoice, to the extent that CoffeeClick's activities have been performed for the joint Clients.
8. CoffeeClick is entitled to make the invoices due to Client available by e-mail only.
9. Client is never entitled to offset amounts he owes to CoffeeClick with any counterclaim, for whatever reason, that Client may have against CoffeeClick. This also applies if a moratorium and/or bankruptcy or a debt rescheduling arrangement has been requested or pronounced with regard to the Client.
10. If payment is not made in due time, the Client shall be in default by operation of law. From the moment of entering into default, the Client shall owe an interest of 1.5% per month on the amount due and payable, and if the statutory interest rate is higher than the actual interest rate, part of a month shall be regarded as a full month.
11. All reasonable costs, including judicial, extrajudicial and execution costs, incurred to obtain the amounts due 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 on repairs performed by or on behalf of CoffeeClick is three months.
2. Maintenance, modifications or repairs to the Equipment performed by unauthorised third parties, use other than prescribed or other than accepted in society, as well as defects due to external causes, such as for example fire or water damage or due to causes otherwise not attributable to CoffeeClick, void any guarantee.
3. If new goods and/or parts are delivered to meet the guarantee obligations, Client shall immediately return the goods and/or parts originally delivered by CoffeeClick.
Article 14 Liability and damage
1. CoffeeClick only has an obligation to perform to the best of its abilities towards Client.
2. CoffeeClick's liability is limited to direct, material damage caused by a shortcoming that can be attributed to it.
3. CoffeeClick is never liable for indirect damage suffered by Client, including but not limited to consequential damage such as loss of profit, loss of turnover, missed savings, business stagnation or damage to third parties, in case of a breach in the execution of an agreement with Client that can be attributed to CoffeeClick.
4. Should CoffeeClick be liable for any damage whatsoever, CoffeeClick's liability shall be limited to the amount paid out under its liability insurance in the matter concerned, increased by any excess possibly to be borne by CoffeeClick on account of the insurance, but at all times - whether or not the insurer will pay compensation - to an amount of the net invoice price of the three months preceding the damage inflicting event.
5. In no event shall the total compensation for damage under this article exceed € 10,000 per event, whereby a series of connected events shall be deemed to be a single event.
6. Damage for which CoffeeClick can be held liable on the basis of these general conditions must be reported in writing to CoffeeClick as soon as possible, but no later than fourteen (14) days after its occurrence. Damage which has not been reported within that period is not considered for compensation, unless Client can demonstrate that he could not have reported it sooner.
7. CoffeeClick is not liable for Client's damages because it relied on incorrect or incomplete information provided by Client or third parties.
8. CoffeeClick is not liable for the quality and safety of facilities provided by third parties as referred to in article 7.3.
9. CoffeeClick is entitled to engage third parties for the execution of its services and activities and to use 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. Client indemnifies CoffeeClick against any claims by third parties who may suffer damage in connection with the execution of the Agreement.
11. The limitations of liability of these general conditions do not apply if the damage is caused by intent or gross negligence of CoffeeClick.
Article 15 Force majeure
1. In case of force majeure, CoffeeClick is entitled to temporarily suspend its obligations under the agreement without being held liable for damages. During the period of force majeure, CoffeeClick cannot be held accountable for compliance.
2. Force majeure is understood to include fire, fire at suppliers' premises, power failure, internet malfunction, employee illness and all external causes, foreseen or unforeseen, on which CoffeeClick has no influence but which prevent CoffeeClick from fulfilling its obligations. This also includes the eventuality that third parties engaged by CoffeeClick in the execution of the agreement are not able to execute the agreement, regardless of the reason.
3. CoffeeClick is no longer authorized to suspend performance if the force majeure has lasted for an uninterrupted period of three months, or if it has been established earlier that fulfilment has become permanently impossible due to force majeure. In that case, the Parties shall have the right to dissolve the Agreement without being liable to each other for damages in any way. Dissolution will not affect the Client's due and payable payment obligations.
Article 16 Suspension and dissolution
1. If Client does not, not correctly or not timely comply with any obligation resulting from this or any other agreement made with CoffeeClick, he is considered to be legally in default and CoffeeClick shall be entitled to suspend its own obligations in whole or in part, or to dissolve the agreement in whole or in part, or to claim reimbursement, without prejudice to CoffeeClick's claims for damages. All these cases shall result in the exigibility of all CoffeeClick's debts.
2. CoffeeClick is entitled to dissolve the Agreement partially or completely with immediate effect, without proof of default and without judicial intervention, by means of a written notification to the Client, in case of suspension of payment, bankruptcy, receivership or administration and/or closing down or liquidation of the Client, and if the Client is subject to any form of attachment.
Article 17 Complaints
1. A complaint about activities performed must be submitted to CoffeeClick in writing within fourteen (14) days after Client discovered or reasonably should have discovered the shortcoming, whereby Client must indicate, submitting evidence, what the shortcoming consists of and when and how he discovered it. Exceeding this term leads to forfeiture of all claims.
2. Complaints regarding the amount of the invoice must be submitted in writing to CoffeeClick within fourteen (14) days of the invoice date. Exceeding this term leads to the forfeiture of all claims.
3. Even if the Client complains in time, his obligation to pay CoffeeClick in time remains.
Article 18 Disputes
1. Each agreement and all legal relationships arising from it between the parties is governed exclusively by Dutch law.
2. Disputes arising from legal relationship(s) between CoffeeClick and Client shall be submitted to and settled by the District Court of Amsterdam. CoffeeClick is free to submit disputes to the competent court based on the law.
B. RENTAL AND LOAN
Article 19 Rental and loan agreements
1. In case Customer and CoffeeClick have entered into a Lease or Use Agreement, Customer is obliged to use the Equipment exclusively for himself and his own business in the place designated for it, and the Equipment may only be moved with the written consent of CoffeeClick.
2. CoffeeClick will provide new or refurbished Equipment at its own discretion.
3. Client shall be obliged to take out insurance for the Equipment, which in the event of damage shall pay out at least the new value of the Equipment. The Client shall, at his own expense, take care of keeping the Equipment operational and cleaning it on a daily basis.
4. In case of theft, fire or water damage as well as destruction of the Equipment, Client is obliged to reimburse CoffeeClick for any resulting damage up to a maximum of the new price of the Equipment.
5. If the Lease or Use Agreement is terminated for any reason, Customer is obliged to return the Equipment to CoffeeClick. In that case Customer owes disposal costs of € 235,- per machine.
(c) COFFEECLICK November 2020
Filed with the Amsterdam Chamber of Commerce under no. 57115389.