General Terms and Conditions

Article 1. Definitions
In these General Terms and Conditions, the following terms are defined as:

• Aequinox: the company as defined in Article 2 of these General Terms and Conditions;
• Counterparty: the client/customer with whom Aequinox has entered into an Agreement and/or the party negotiating such an Agreement with Aequinox;
• Consumer: a natural person not acting in the course of a profession or business;
• Agreement: any arrangement/contract between Aequinox and the Counterparty for the provision of services and/or delivery of goods by Aequinox to the Counterparty;
• Party/Parties: Aequinox and the Counterparty collectively or each as an individual contractual party;
• Written/Writing: communication via email, postal mail, or WhatsApp;
• Third Party/Parties: other natural or legal persons not part of this Agreement;
• Product(s): the Products offered by Aequinox, which include but are not limited to Single Surf Capsule machines, coolers, milk frothers, and cleaning products such as descalers and milk cleaners, specifically designed for premium coffee solutions.

Article 2. Identity of Aequinox

Company name: Aequinox
Address: Sint Elisabethstraat 35
Postal code and location: 5361 HJ Grave
Chamber of Commerce number: 23060211

Article 3. General Provisions

• These General Terms and Conditions apply to every offer and all (legal) acts of Aequinox, as well as to every Agreement concluded between Aequinox and the Counterparty.
• If the Agreement is concluded electronically, the text of these General Terms and Conditions will be made available electronically to the Counterparty prior to the conclusion of the Agreement in such a way that it can be easily stored on a durable medium. If this is not reasonably possible, it will be indicated where the General Terms and Conditions can be accessed electronically, or that they will be sent to the Counterparty free of charge upon request.
• Unless explicitly agreed otherwise in Writing, the applicability of other (general) terms and conditions is excluded.
• Deviations from or additions to these General Terms and Conditions are only valid if explicitly agreed upon in Writing.
• If Aequinox does not always strictly enforce compliance with these General Terms and Conditions, this does not imply that the provisions are not applicable or that Aequinox waives its right to require strict compliance in other cases.
• If a provision of these General Terms and Conditions cannot be invoked due to principles of reasonableness and fairness or its unreasonably burdensome nature, the provision will, as far as possible, be given a meaning corresponding to its purpose and intent, so it can still be invoked.
• Aequinox cannot guarantee that the work performed will always achieve the result desired by the Counterparty. The accepted assignment constitutes a best-efforts obligation and explicitly not a result obligation.
• Aequinox is entitled to engage Third Parties for the execution of the Agreement.
• The applicability of Articles 7:404 and/or 7:407(2) of the Dutch Civil Code (hereinafter “DCC”) is excluded.

Article 4. The Offer

• If an offer is subject to a limited validity period or specific conditions, this will be explicitly stated in the offer.
• A quotation or offer made by Aequinox is to be regarded as a non-binding offer, unless explicitly agreed otherwise in Writing. A non-binding offer may be withdrawn by Aequinox after acceptance. An agreement shall only be deemed to have been concluded once Aequinox has confirmed the assignment in Writing.
• The offer contains a complete and accurate description of the offered Products. The description is sufficiently detailed to enable the Counterparty to assess the offer properly. Apparent mistakes or errors, such as incorrect amounts, are not binding on Aequinox.

Article 5. The Agreement

• The Agreement is concluded when the Counterparty accepts the offer and fulfills the conditions set forth in the offer.
• If any provision of these General Terms and Conditions or the Agreement is nullified or annulled, this does not affect the validity of the remaining provisions. The Parties will consult to agree on a new provision that closely matches the purpose and intent of the nullified or annulled provision.
• Aequinox reserves the right not to execute an Agreement, for example, if it has reasonable doubt or information suggesting that the Counterparty will not (or cannot) fulfill its financial obligations. In such cases, Aequinox will notify the Counterparty in Writing within a reasonable time after concluding the Agreement.
• The Counterparty’s right to suspend or offset obligations is excluded if the Counterparty acts in the course of a profession or business. This provision does not apply if the Counterparty acts as a Consumer.
• In addition to the previous clause, Aequinox reserves the right to offset and/or suspend performance in the case of outstanding claims against the Counterparty or if the Counterparty fails to properly, fully, or timely fulfill its obligations.
• These General Terms and Conditions also apply to future, additional, and/or follow-up assignments.
• If the Counterparty accepts the offer electronically, Aequinox will confirm receipt of the acceptance electronically without delay.

Article 6. Right of Withdrawal

• A Consumer may cancel a distance Agreement or an Agreement concluded outside the sales premises without providing reasons within a period of fourteen (14) days. This period commences on the day the Consumer, or a Third Party designated by the Consumer who is not the carrier, receives the Product.
• If the Products offered by Aequinox are made according to specific instructions or customized for the Consumer/Counterparty, such Products are exclusively intended for that individual buyer. Consequently, the right of withdrawal is exacluded for such Products, and the Consumer cannot invoke it.
• The exclusion mentioned in clause 2 becomes effective once Aequinox can no longer cancel its necessary order for the Agreement with its supplier free of charge.
• If a Consumer exercises their right of withdrawal, they must ensure the Product is returned in proper condition and on time in its original packaging.
• The right of withdrawal explicitly does not apply if the Counterparty is not a Consumer.

Article 7. Exercise of the Right of Withdrawal

• If a Consumer wishes to exercise their right of withdrawal, they must notify Aequinox within the withdrawal period using the return form provided by Aequinox.
• The Consumer shall return the Products as soon as possible, but no later than fourteen (14) days after notifying Aequinox of their intention to exercise the right of withdrawal. The Consumer must return the Product along with all accessories, if reasonably possible in its original condition and packaging, and in accordance with the reasonable and clear instructions provided by Aequinox.
• The risk and burden of proof for the correct and timely exercise of the right of withdrawal lie with the Consumer.
• The Consumer shall bear the direct costs of returning the Product.
• During the withdrawal period, the Consumer shall handle the Products with care and only unpack or use the Products to the extent necessary to test them. The Consumer may test the Product as they would in a physical store.
• If the Consumer acts contrary to this article, they are liable for any depreciation and/or damage to the Products.

Article 8. Liability

• Aequinox shall only be liable as explicitly stated in this article.
• The limitations of liability of Aequinox included in these terms and conditions do not apply if the damage is due to intent or gross negligence on the part of Aequinox and/or its subordinate(s).
• Aequinox has no influence over the eventual use of the delivered Products. The Customer is therefore solely responsible for the use of the results of the Agreement.
• Aequinox is not liable for damages arising from reliance on incorrect, untimely, or incomplete information provided by or on behalf of the Customer.

• Aequinox is not liable for any form of damage, and the Customer cannot invoke the applicable warranty if the damage results from:
  a. failure to comply with the instructions for use and/or other manuals of a Product;
  b. failure to comply with or follow Aequinox’s instructions regarding the Product;
  c. repair or maintenance of the Product by parties other than Aequinox;
  d. improper and/or incorrect use or maintenance of the Product;
  e. wear and tear due to normal use of the Product;
  f. limescale buildup on, in, or around components that come into contact with water;
  g. external influences other than those against which the Products should ordinarily be resistant;
  h. errors or omissions in the information provided by or on behalf of the Customer to Aequinox;
  i. instructions or directions from or on behalf of the Customer;
  j. decisions made by the Customer that deviate from Aequinox’s recommendations and/or customary practices.

• Aequinox can only be held liable for direct damages caused by an attributable failure to perform obligations arising from the Agreement. Direct damages include:
  a. reasonable costs for determining the cause and extent of the damage, insofar as the determination relates to damage as defined in these terms and conditions;
  b. reasonable costs incurred to ensure that Aequinox’s defective performance complies with the Agreement;
  c. reasonable costs incurred to prevent or limit damage, provided the Customer demonstrates that these costs have resulted in limiting direct damage as defined in these terms and conditions.
• Aequinox shall never be liable for indirect damages, including but explicitly not limited to consequential damages, lost profits, missed savings, and business interruption losses.
• The (cumulative) liability of Aequinox, regardless of the legal basis, is always limited to the amount paid out under Aequinox’s liability insurance in the respective case. If, for any reason, no payment is made under said insurance, any (cumulative) liability, regardless of the legal basis, shall not exceed the invoiced amount of the portion of the Agreement to which the liability pertains. In any case, the (cumulative) liability is limited to a maximum of €5,000.
• Any liability of Aequinox expires six months after the Agreement has been concluded, dissolved, or terminated in any other manner.
• The Counterparty indemnifies Aequinox against all third-party claims that are related to or arise from the legal relationship between Aequinox and the Customer.

Article 9. Force Majeure

• In addition to the provisions of Article 6:75 DCC, a failure by Aequinox to fulfill any obligation to the Counterparty cannot be attributed to Aequinox if it is due to a circumstance beyond Aequinox’s control, which prevents the fulfillment of its obligations to the Counterparty either entirely or partially, or which makes the fulfillment of its obligations reasonably impossible. Such circumstances include but are not limited to failures by suppliers or other Third Parties, power outages, computer viruses, extreme weather conditions, fire (or risk thereof), (threat of) war, pandemics, epidemics, quarantines, absenteeism due to illness, work incapacity, strikes, government measures, and the failure of vehicles or equipment required for transporting or assembling the Products.
• If a situation as described in paragraph 1 of this article arises, as a result of which Aequinox cannot fulfill its obligations to the Counterparty, those obligations will be suspended for as long as Aequinox is unable to fulfill them. If the force majeure situation lasts for thirty (30) calendar days, both Parties have the right to terminate the Agreement in whole or in part in Writing. In such cases, Aequinox is not obliged to compensate any damages, even if Aequinox benefits from the force majeure situation.
• If the Agreement is terminated due to force majeure as described in this article, Aequinox is entitled to payment for the hours worked or investments made up to the time of termination.

Article 10. Warranty for Aequinox Products

• Aequinox guarantees that the Products comply with the Agreement, the specifications stated in the offer, the reasonable requirements of reliability and/or usability, and the legal provisions and/or governmental regulations in effect on the date the Agreement was concluded.
• The warranty period for Aequinox Products is generally one (1) year. The general warranty period does not include any damages arising from dirt, molest, over usage or failure to (timely) descale.
• The warranty will lapse in the following cases:
  a. The Counterparty has installed, repaired, and/or modified the delivered Products themselves or has had them installed, repaired, and/or modified by Third Parties;
  b. The delivered Products have been exposed to abnormal conditions, treated negligently, or used/handled contrary to Aequinox’s instructions and/or the instructions on the Product’s packaging;
  c. The defect is wholly or partly caused by governmental regulations concerning the nature or quality of the materials applied, issued after the conclusion of the Agreement.

Article 11. Service and Repairs

• For coffee machines of a certain size or price category, service and repairs are carried out by the specialized company Service First or by a company that is explicitly appointed by Service First.
• Service First reserves the right to determine, at its professional discretion, whether a defect is covered by the warranty.
• If the defect is covered by the warranty, the repair costs will be fully covered. For repairs outside the warranty period or for non-warranty cases, Service First will provide a quotation for the repair costs.

Article 12. Fees/Prices

• All amounts are stated in euros (EXWORKS Nijmegen) and exclude VAT and other government-imposed taxes unless otherwise agreed.
• The agreed amounts are based on cost-determining factors at the time of the offer. Aequinox reserves the right to pass on changes in cost-determining factors that arise within three (3) months after the conclusion of the Agreement and over which Aequinox cannot reasonably exert influence, such as increases in excise duties, social security contributions, insurance premiums, or VAT, up to a maximum of 20% of the original amount.
• Aequinox also reserves the right to increase the amounts mentioned in the offer above the maximum of 20% as stated in the previous paragraph. In such cases, the Counterparty has the right to terminate the Agreement immediately when the price change takes effect. Aequinox will always notify the Counterparty of such a price change at least one (1) month before its implementation.
• A composite price quotation does not oblige Aequinox to perform a portion of the Agreement at a corresponding part of the quoted amount.
• Discounts and quoted amounts do not automatically apply to future and/or follow-up Agreements.

Article 13. Payment and Invoicing

• Unless otherwise specified in the Agreement or supplementary conditions, amounts owed by the Counterparty must be paid within 14 days of the invoice date.
• If delivery takes place in partial shipments, the payment term for the delivered part will commence after each partial delivery, unless explicitly agreed otherwise in Writing between the Parties.
• The Counterparty is obligated to promptly report any inaccuracies in the provided or stated payment details to Aequinox.
• If the Counterparty does not fulfill their payment obligation(s) on time, Aequinox will notify them of the late payment and grant a period of fourteen (14) days to comply with their payment obligations. Failure to pay within this period will result in the Counterparty being in default. Consequently, the Counterparty will owe statutory (commercial) interest on the outstanding amount, and Aequinox is entitled to charge extrajudicial collection costs.
• In the event of (imminent) bankruptcy, liquidation, suspension of payments, or debt restructuring under the Debt Restructuring Natural Persons Act (WSNP), Aequinox’s claims against the Counterparty and the Counterparty’s obligations to Aequinox become immediately due and payable.
• Payments made by the Counterparty will always first be applied to settle all interest and costs owed, then to the oldest outstanding invoices, even if the Counterparty specifies that the payment relates to a later invoice.

Article 14. Delivery

• The place of delivery is Aequinox’s premises, located at St. Elisabethstraat 35 Grave, unless explicitly agreed otherwise in Writing. The Counterparty is responsible for collecting the Products from Aequinox.
• The delivery period will not commence until Aequinox has received all necessary information from the Counterparty required to prepare the Product for collection.
• If the Counterparty requests Aequinox to arrange transport, Aequinox will provide this service at the Counterparty’s expense. Transport costs will be invoiced separately, and the risk of damage or loss will transfer to the Counterparty once the Products are handed over to the carrier.
• If the delivery of an ordered Product proves impossible, Aequinox will make every effort to offer a substitute Product. This will be clearly communicated prior to collection or, at the latest, upon handover. The right of withdrawal cannot be excluded for substitute Products, and the Counterparty may return the substitute Product in accordance with Articles X and X. Any costs of returning substitute Products will be borne by Aequinox.
• The risk of damage and/or loss of Products transfers to the Counterparty at the moment the Products are made available for collection at Aequinox’s premises, unless Aequinox arranges transport, in which case the risk transfers upon delivery to the carrier.
• All delivery periods are indicative. The Counterparty cannot derive any rights from stated periods. Exceeding a delivery period does not entitle the Counterparty to compensation.

Article 15. Complaints

• The Counterparty may no longer invoke a defect in performance if they fail to notify Aequinox within two (2) months after discovering or reasonably should have discovered the defect. For visible defects upon (or after) delivery, a notification period of forty-eight (48) hours applies.
• The Counterparty must allow Aequinox at least four (4) weeks to resolve the complaint in mutual consultation.
• If a complaint is not reported to Aequinox within the timeframes specified in the preceding paragraphs, the Product and/or Service will be deemed to comply with the Agreement and function accordingly.
• Complaints do not suspend the payment obligations of the Counterparty if the Counterparty acts in the course of a profession or business.

Article 16. Transfer

• The financial rights and obligations of the Counterparty under this Agreement cannot be transferred to a Third Party without the prior Written consent of Aequinox. This provision is a clause with proprietary effect as referred to in Article 3:83(2) of the Dutch Civil Code.
• The rights and obligations of Aequinox under this Agreement may be transferred to Third Parties. If the Counterparty is a Consumer, they have the right to terminate the Agreement if Aequinox’s rights and obligations are transferred to a Third Party. This provision is a clause with proprietary effect as referred to in Article 3:83(2) of the Dutch Civil Code.

Article 17. Retention of Title

• Ownership of all items sold and delivered by Aequinox to the Counterparty remains with Aequinox:
  a. if and insofar as the Counterparty has not yet fulfilled the claims arising from the Agreement or similar previous Agreements;
  b. if and insofar as the Counterparty has not yet fulfilled claims arising from future Agreements as described in Article 3:92(2) of the Dutch Civil Code;
  c. if and insofar as the Counterparty has not yet fulfilled the work performed or to be performed under this or similar Agreement(s);
  d. if and insofar as the Counterparty has not yet fulfilled Aequinox’s claims due to non-compliance with such obligations, including claims for penalties, interest, and costs as referred to in Article 3:92 of the Dutch Civil Code.
• The Counterparty is not authorized to pledge or otherwise encumber items subject to retention of title.
• If Third Parties seize items delivered under retention of title, or wish to establish or enforce rights on them, the Counterparty is obligated to inform Aequinox as soon as reasonably possible.

Article 18. Intellectual Property

• All intellectual property rights related to or resulting from the Agreement performed by Aequinox rest with Aequinox. The Counterparty only obtains non-exclusive and non-transferable usage rights explicitly granted by these General Terms and Conditions and by law. Any other or broader rights are excluded.

Article 19. Confidentiality

• The Counterparty is obligated to maintain the confidentiality of all confidential information obtained from Aequinox under the Agreement. Information is considered confidential if Aequinox has indicated it as such or if it reasonably follows from the nature of the information.

Article 20. Employee Clause

• During the term of the Agreement and for one (1) year after its termination, the Counterparty may not, without prior Written consent from Aequinox, employ Aequinox’s employees involved in the execution of the Agreement or otherwise, directly or indirectly, engage them.
• Aequinox will not withhold consent if the Counterparty offers appropriate compensation. Appropriate compensation is defined as at least the equivalent of ten (10) months’ salary.
  
  

Article 21. Exclusivity

• For the duration of the Agreement, the Counterparty grants Aequinox the exclusive right to perform the assigned Agreement.

Article 22. Alternative Dispute Resolution

• If disputes arise between Aequinox and the Counterparty regarding the formation or performance of the Agreement, both Parties may choose alternative dispute resolution instead of regular court proceedings.
• If the Counterparty is a Consumer and Aequinox opts for alternative dispute resolution, Aequinox will inform the Consumer of this choice. The Consumer has the option to choose regular legal proceedings instead. This choice must be communicated in Writing to Aequinox within one (1) month of Aequinox’s notification of the choice for alternative dispute resolution.

Article 23. Governing Law

• Agreements between Aequinox and the Counterparty are exclusively governed by Dutch law.
• Disputes between the Parties will, as much as possible, be resolved through mutual consultation. Any disputes that cannot be resolved will be submitted exclusively to the competent court in the district where Aequinox is established.

Article 24. Survival

• Provisions of these General Terms and Conditions and the Agreement that are intended to remain in effect after the termination of the Agreement will continue to apply in full force.

Article 25. Amendments or Additions

• Aequinox is entitled to unilaterally amend or supplement these General Terms and Conditions. In such cases, Aequinox will inform the Counterparty of the changes or additions in a timely manner.
• A minimum of thirty (30) days will elapse between this notification and the effective date of the amended or supplemented terms.
• If the Counterparty is a Consumer, they have the option to reject the amendment of these General Terms and Conditions or to terminate the Agreement.
• If the amendment referred to in the previous paragraph is based on a valid reason stated in the Agreement, the Counterparty does not have the right to reject the amendment or terminate the Agreement. An example of a valid reason is a change in legislation requiring amendments to the terms.