General Terms and Conditions of Fresh-y
ARTICLE 1 DEFINITIONS
In these general terms and conditions, the following definitions apply:
Fresh-y: the private limited company Fresh-y.
Customer: the company that takes machines from Fresh-y on loan, rents them, purchases them and/or purchases protein products from Fresh-y.
Agreement: the agreement between Fresh-y and the company (the Customer) that takes machines on loan, rents or purchases them from Fresh-y and/or purchases products from Fresh-y.
Machine: the protein machine sold, rented out or provided on loan by Fresh-y to the Customer.
Protein products: the protein products supplied by Fresh-y to the Customer, intended for the protein machine or for separate sale by the Customer.
ARTICLE 2 APPLICABILITY
2.1 These general terms and conditions apply to every quotation, offer, delivery and every agreement between Fresh-y and the Customer, insofar as the parties have not expressly deviated from these general terms and conditions in writing. Agreed deviations from the general terms and conditions apply only once, for the specific case for which the deviation was agreed. Any general terms and conditions used by the Customer, by whatever name, are hereby expressly rejected by Fresh-y and do not apply to agreements between Fresh-y and the Customer. Fresh-y is entitled to make changes to these terms and conditions. Such changes take effect as soon as they have been communicated to the Customer.
2.2 These general terms and conditions are divided into general provisions (Articles 1, 2, 3, 4, 18), special provisions relating to the sale and purchase of products (Articles 5, 6, 7, 8, 9, 10, 11, 12) and special provisions relating to the rental and loan of machines (Articles 13, 14).
2.3 In the event of any conflict between the general provisions and the special provisions in these general terms and conditions, the special provisions shall prevail.
2.4 If any part of these general terms and conditions is annulled or declared null and void, this shall not affect the validity of the remaining parts. The null and void and/or annulled part shall be converted into a valid part insofar as this is possible in keeping with the spirit of the null and void and/or annulled part.
ARTICLE 3 NOTICE OF THE GENERAL TERMS AND CONDITIONS
3.1 Physical sale
These general terms and conditions will be handed to the Customer or sent to the Customer (upon request).
3.2 Electronic sale
In the case of online sales, these general terms and conditions will be made available to the Customer in such a way that they can be stored for later reference.
3.3 Services
These general terms and conditions will be made available to the Customer by publishing them on the Fresh-y website: https://www.fresh-y.com/algemenevoorwaarden.html.
ARTICLE 4 OFFER AND FORMATION OF THE AGREEMENT
4.1 If the Customer places an order by telephone or by e-mail, this order will be confirmed by Fresh-y, either by post or by e-mail. This confirmation does not state prices, but does state the delivery time, quantities and types; these general terms and conditions are also enclosed with this confirmation. Fresh-y may refuse an order without being liable for any compensation.
4.2 Every offer made by Fresh-y is without obligation. An offer may be revoked even after it has been accepted, provided that the revocation takes place immediately after receipt of the acceptance.
4.3 Article 6:225 paragraph 2 of the Dutch Civil Code does not apply. This means that if the acceptance of an offer made by Fresh-y deviates from the offer made, no agreement is formed, even if the acceptance deviates from the offer only on minor points.
ARTICLE 5 PRICES
5.1 All quoted prices are exclusive of VAT and any other taxes, levies and duties.
5.2 The content of price lists used by Fresh-y and/or prices on the website www.fresh-y.com do not bind Fresh-y unless this is expressly stipulated in the agreement or expressly referred to in the agreement. Fresh-y is never bound by any printing and/or typesetting errors.
ARTICLE 6 DELIVERY
6.1 In the confirmation referred to in Article 4, Fresh-y indicates a planned delivery time. This is never a strict deadline. Failure to meet the delivery time stated by Fresh-y cannot be regarded as an attributable failure on the part of Fresh-y and does not entitle the Customer to dissolve the agreement or to cancel the order, nor does it constitute grounds for compensation. If delivery proves to be impossible at any time, Fresh-y will make this known as soon as possible.
ARTICLE 7 DUTY OF INSPECTION, COMPLAINTS, WARRANTY AND FORFEITURE PERIODS
7.1 The Customer is obliged to inspect the goods for visible defects upon delivery. If the Customer discovers defects after receipt of the goods, it must report this in writing to Fresh-y within 10 working days after delivery, stating precisely the nature and extent of the complaints. If the Customer does not report the defects in time, the right to dissolve the agreement and the right to demand performance and/or compensation shall lapse.
7.2 If Fresh-y acknowledges that it has failed in the delivery of a product, Fresh-y has the right, within a reasonable period after the Customer has informed Fresh-y of the existence of a defect, to replace the product or to deliver what is missing after all. If Fresh-y performs properly within that period, the agreement has been correctly performed and the Customer is not entitled to compensation.
7.3 No warranty applies in the event of force majeure. Warranty is only given if the Customer has fulfilled all of its obligations (including financial obligations). Any claim under the warranty lapses if the products delivered by Fresh-y have been handled and/or processed improperly by the Customer and/or the instructions given by Fresh-y have not been followed. Nor does any warranty apply in the case of normal wear and tear. If (technical) changes have been made to the machine (such as opening/unscrewing the machine and attempted repair by unauthorised persons) without informing Fresh-y, the right to service under the agreement lapses.
7.4 Any service offer is excluded if the machine:
a) has been used other than as described in the instruction card/factory manual on how to use a Fresh-y machine,
b) protein products and related ingredients and cleaning agents other than those of Fresh-y have been used, or these have been brought into contact with the machine’s technology in an incorrect manner,
c) the machine has been placed elsewhere, moved, relocated or handled incorrectly, has been neglected, or has been damaged by vandalism, an event, an accident and/or misuse.
7.5 To ensure that Fresh-y can handle the complaint properly, the complaint must be submitted to Fresh-y within 10 working days after the Customer has become aware of the complaint. Fresh-y shall be given the opportunity to examine all complaints. If Fresh-y finds the complaint to be well-founded, it has the choice between: replacement of the delivered goods; crediting the Customer with a proportionate part of the invoice amount; or taking other measures.
7.6 If the Customer — after timely notification of the complaint — has not brought a legal claim within 1 year after delivery by Fresh-y, the right to demand dissolution of the agreement (in court) and/or the right to demand performance and/or compensation shall lapse.
ARTICLE 8 PAYMENT BY THE CUSTOMER TO FRESH-Y FOR PROTEIN PRODUCTS
8.1 The Customer is obliged to purchase from Fresh-y, against payment, protein products intended for direct sale to the clientele of the Customer’s business outside the machine(s). These general terms and conditions apply to orders for these consumables.
Unless otherwise agreed, payment of the invoices sent by Fresh-y to the Customer must be made within 14 days of the invoice date. If the Customer has an objection to the invoice, the Customer must notify Fresh-y of this in writing within 14 days of the invoice date. If the Customer fails to do so, the invoiced amount shall be deemed to have been acknowledged. Objections to the invoice do not suspend the payment obligation.
Where Fresh-y delivers in parts, each part may be invoiced separately.
8.2 The Customer is not entitled to any set-off, suspension and/or discount, unless the parties have agreed otherwise in writing.
8.3 If the invoice has not been paid within 14 days, the Customer is in default without any demand or prior notice of default being required. From the due date, the Customer shall owe default interest on the outstanding amount equal, on an annual basis, to the statutory commercial interest rate plus 2%. In the event of default, Fresh-y also has the right to make no further deliveries to the non-paying or partially paying Customer until payment has been made in full.
8.4 Payments made by the Customer shall always be applied first to all costs due, secondly to all (default) interest due and thirdly to the due and payable invoices that have been outstanding the longest, even if the Customer states that the payment relates to a later invoice.
8.5 If Fresh-y makes partial deliveries, it is entitled to invoice these separately as well.
8.6 Fresh-y is entitled to engage third parties if the Customer does not pay on time. All collection costs, both judicial and extrajudicial, shall be borne by the Customer.
8.7 All claims of Fresh-y are immediately due and payable in full if and as soon as:
a. the Customer does not pay or does not pay on time;
b. the Customer does not provide appropriate security following a request to that effect by Fresh-y as referred to in Article 8.9;
c. the bankruptcy/suspension of payments/debt restructuring of the Customer is and/or has been applied for;
d. any part of the Customer’s possessions or assets is seized;
e. the Customer applies for/obtains a suspension of payments;
f. the Customer sells or terminates its business/enterprise in whole or in part;
g. the direct or indirect control over the Customer changes;
h. the Customer fails to fulfil its obligations towards Fresh-y.
8.8 In the cases described in Article 8.7, Fresh-y has the right to:
a. suspend its contractual obligations until the moment the Customer has fully complied with its obligations;
b. cancel and/or dissolve the agreement in whole or in part by means of a simple notice, without any notice of default or judicial intervention being required, without prejudice to Fresh-y’s right to performance and/or compensation.
8.9 After the conclusion of the agreement, Fresh-y is entitled to demand security from the Customer if Fresh-y has good grounds to fear that the Customer will not fulfil its payment obligations, or will not do so on time. As long as the Customer does not provide the security, Fresh-y may suspend the performance of the agreement. In that case, Fresh-y may also dissolve the agreement (out of court). The Customer is obliged to inform Fresh-y if there is any seizure of its movable or immovable property, bankruptcy, suspension of payments or other circumstances that could have an adverse effect on Fresh-y with regard to the performance of the agreement concluded.
8.10 Fresh-y is entitled to set off its claims against the Customer against one or more claims that the Customer has against Fresh-y at any time.
ARTICLE 9 RETENTION OF TITLE
9.1 All goods delivered or to be delivered by Fresh-y to the Customer remain the exclusive property of Fresh-y until the Customer has paid in full all claims that Fresh-y has and/or will acquire against the Customer. The Customer may not pledge or otherwise encumber the products delivered under retention of title as long as they have not been paid for in full.
9.2 The Customer is obliged to store the goods delivered by Fresh-y under retention of title with due care and as recognisable property of Fresh-y.
9.3 If a third party seizes the products delivered under retention of title or wishes to establish a right over them, the Customer must inform Fresh-y of this as soon as possible.
9.4 The Customer is obliged, where possible, to insure the products delivered under retention of title and to keep them insured against fire, explosion and water damage, as well as against theft. At Fresh-y’s request, Fresh-y may inspect the insurance policy.
9.5 If the Customer fails to fulfil its obligations under the agreement or these general terms and conditions, Fresh-y is entitled, without notice of default or judicial intervention, to take possession of the goods that are still its property on the basis of the retention of title and, to that end, to enter (or have others enter) the Customer’s premises.
ARTICLE 10 RETURNS
10.1 Return shipments will only be accepted if the return shipment has been approved in advance by Fresh-y and provided that the goods are offered in good condition and in their original packaging. Return shipments that meet these requirements will be credited at the original purchase price less 20% as compensation for Fresh-y’s costs. The Customer must return the goods to Fresh-y at its own expense and at its own risk. If damage occurs before or during transport, Fresh-y is not obliged to credit the purchase price.
ARTICLE 11 FORCE MAJEURE
11.1 Force majeure means circumstances that prevent the performance of the obligation by Fresh-y and that are not attributable to Fresh-y. These circumstances include, among other things, government measures, war, riots, civil commotion, fire, water damage, strikes, excessive staff absenteeism due to illness, transport difficulties, import and export restrictions, defects in machinery, disruption in the supply of energy and weather conditions, all of this both within the business of Fresh-y and at third parties, including its suppliers and third parties engaged by it in the performance of the agreement, as well as breaches of contract by these suppliers and/or third parties. Force majeure is in any event regarded as circumstances not attributable to Fresh-y and therefore does not entitle the Customer to dissolution of the agreement or to compensation.
11.2 In the event of force majeure, Fresh-y has the right, without judicial intervention, to dissolve the agreement in whole or in part or to suspend its performance in whole or in part, without being liable for any compensation.
11.3 If, at the time the force majeure situation arises, Fresh-y has already partially fulfilled the agreed obligations, it is entitled to invoice the delivered goods separately and in the interim, and the Customer must pay this invoice as if it concerned a separate transaction.
ARTICLE 12 LIABILITY
12.1 Fresh-y is only liable for damage suffered by the Customer if this damage is the direct result of a failure attributable to Fresh-y in the fulfilment of its obligations under the agreement. Fresh-y’s liability is limited to the amount of the relevant invoice to which the attributable failure relates and to the amount of the payout by its insurer, plus the deductible.
12.2 Fresh-y’s liability is limited to direct property damage and personal injury insofar as this damage is the result of a demonstrable defect in a machine, up to a maximum of the amount eligible for compensation under the liability insurance taken out by Fresh-y.
12.3 Fresh-y is never liable for any indirect damage suffered by the Customer or third parties, including but not limited to consequential damage, loss of profit, loss of turnover, business interruption, missed savings and/or reduced goodwill in the Customer’s business or profession, arising from whatever cause, including delay in the delivery time of goods. The Customer guarantees that it will include this provision in its dealings with its own customers. Fresh-y is entitled to invoke this provision against third parties as well.
12.4 Fresh-y is not liable for damage if the goods are used for a purpose other than that for which they are suitable on the basis of the information provided by Fresh-y and — in any event — for which they are normally used.
12.5 The Customer indemnifies Fresh-y against liability towards third parties.
12.6 Any claim against Fresh-y for compensation becomes time-barred 1 year after the moment at which the claim arose.
12.7 If Fresh-y is liable, Fresh-y has the choice between: replacement of the delivered goods or crediting the Customer with a proportionate part of the invoice amount.
ARTICLE 13 IN THE CASE OF LOAN FOR USE AND RENTAL
13.1 During the term of the agreement, Fresh-y shall make the machine(s) specified in the agreement available to the Customer. These machine(s) remain the property of Fresh-y at all times. The loan and/or rental agreement is entered into for a fixed period of 12 months, calculated from the installation date of the machine(s), with tacit renewal for successive periods of the same duration, unless one of the parties terminates the agreement in writing within one month before the start of the next year of use.
13.2 During the term of the agreement, Fresh-y guarantees the proper functioning of the machine(s), unless there is improper use, theft, fire damage or water damage.
13.3 The Customer is obliged to manage the goods with the care of a prudent custodian and to use them in accordance with their intended purpose. The Customer is liable for damage caused to the machine(s).
13.4 In the case of a loan for use, no costs are attached to the machine(s) made available, other than in the event of improper use.
13.5 In the case of rental, the Customer must pay monthly, in advance, the rental price specified in the rental agreement.
13.6 The machine(s) and related products will be delivered, installed and connected at the agreed location.
13.7 If the delivery of the machine(s) and related products cannot take place normally or without interruption due to causes beyond Fresh-y’s control, Fresh-y is not liable to the Customer in that respect.
13.8 All expenses incurred by Fresh-y at the request of the Customer shall be borne entirely by the latter, unless otherwise agreed in writing.
13.9 With regard to the machine(s), the Customer shall only use ingredients and ancillary products etc. originating from Fresh-y, in order to prevent malfunctions. Additional costs arising from not using ingredients and/or ancillary products etc. originating from Fresh-y shall be borne by the Customer.
13.10 If the rental or loan agreement expires, is terminated or is dissolved, Fresh-y is entitled to take back the machine(s) and the related items forthwith and immediately.
13.11 The Customer is obliged to ensure that the rented and/or loaned machine(s), when taken back by Fresh-y, are in the condition in which the Customer received them, except for wear and tear resulting from normal use.
13.12 During the term of the rental or loan agreement, Fresh-y is entitled to make changes to the machine(s) or to install (a) similar new or refurbished machine(s) to replace (a) previously installed machine(s).
ARTICLE 14 SUPPLY AND PAYMENT BY FRESH-Y TO THE CUSTOMER
14.1 Fresh-y is solely and exclusively authorised to supply the protein products specified in the agreement for the machine(s) and shall ensure timely and regular supply. With regard to the vending machines, the Customer shall only use ingredients and ancillary products etc. originating from Fresh-y, partly in order to prevent malfunctions. Additional costs arising from not using ingredients and/or ancillary products etc. originating from Fresh-y shall be borne by the Customer.
14.2 The Customer is obliged to refill the machine(s) daily with these protein products, the ingredients originating from Fresh-y, and to remove the waste water and protein residues daily.
14.3 On the 25th day of each month, Fresh-y shall pay the Customer, as commission, 15% of the preceding month’s gross turnover generated by the Fresh-y machine(s) stationed at the Customer’s premises.
ARTICLE 15 SERVICE AGREEMENT
15.1 For the machine(s) and related products sold, rented out or provided on loan by Fresh-y, the Customer is under an obligation to conclude the service agreement. This agreement is subject to the same terms and conditions.
15.2 The service agreement is entered into for a period of 12 months from the installation date of the machine(s), with tacit renewal for successive periods of the same duration, unless one of the parties terminates this service agreement in writing within one month before the start of the next year of use.
15.3 Early termination does not entitle the Customer to a full or partial refund of the annual fee due.
15.4 If the Customer has concluded a service agreement with Fresh-y, Fresh-y will remedy malfunctions of the machine(s), carry out necessary repairs and/or arrange for the replacement of parts.
15.5 In addition, during the above-mentioned corrective maintenance, Fresh-y will provide preventive maintenance, such as cleaning, adjusting, replacing or fitting parts, etc.
15.6 The Customer must report malfunctions and non-functioning of the machine(s) to Fresh-y without delay.
15.7 If work is the result of improper or incorrect use of the equipment by the Customer, its personnel or other users of the machine(s), insufficient maintenance of the machine(s) by the Customer, repairs, modifications or adjustments etc. that were not carried out by technical personnel from Fresh-y, damage to the machine(s) caused, whether or not intentionally, by the Customer, its personnel or third parties, or if ingredients or ancillary products not originating from Fresh-y are used, as a result of which a malfunction occurs, the performance of the work by Fresh-y is deemed not to be included in the fixed rates and will be charged according to the generally applicable rates.
15.8 The Customer may not transfer the rights and obligations under the service agreement.
ARTICLE 16 CONFIDENTIALITY OBLIGATION
16.1 The Customer shall treat the information it has received from Fresh-y as strictly confidential and shall not disclose it or make it available to third parties. The Customer is only entitled to disclose the information to its personnel insofar as this is necessary for the realisation of the project. The Customer guarantees that the personnel to whom the information is made available will comply with the Customer’s confidentiality obligation as set out in this Agreement.
ARTICLE 17 NON-COMPETE CLAUSE
17.1 The Customer is prohibited, without the prior express written consent of Fresh-y, for a period of 12 months after the end of the parties’ agreement and within an area of 1 kilometre from the Customer’s location, from directly or indirectly manufacturing/producing protein shakes or similar products in order to sell/trade/offer them either in its own business or elsewhere.
17.2 Violation of the provisions of Article 17.1 constitutes grounds for compensation payable to Fresh-y as well as an immediately payable penalty of € 500 (five hundred euros) for each day that the violation continues.
ARTICLE 18 APPLICABLE LAW AND DISPUTE RESOLUTION
18.1 All agreements and obligations that Fresh-y concludes with Customers are governed by Dutch law. The operation of any international convention concerning the sale of movable goods whose operation can be excluded between the parties is hereby expressly excluded. More specifically, the applicability of the United Nations Convention on Contracts for the International Sale of Goods (Vienna Sales Convention 1980) is expressly excluded.
18.2 All disputes arising from or in connection with a quotation, offer, delivery or agreement or any other type of obligation to which these terms and conditions apply, or concerning these terms and conditions themselves, shall be submitted for adjudication to the competent Dutch court, unless the subdistrict court (kantonrechter) has jurisdiction in the matter.