"Art of Private Shaking" Glass & Bar Supply BV

Last updated: June 20, 2024

These are the general terms and conditions (the “ Terms ”) of “Art of Private Shaking” Glass & Bar Supply BV (“ APS ”). APS is a wholesaler specializing in catering supplies, with a focus on quality and customer service. For more information, please visit the website: https://apssupply.nl/ and/or https://www.thingsfordrinks.com/ (the “ Website ”).

These Terms and Conditions apply to all offers, agreements, and other relationships between APS and its customers (" Customer "), to the exclusion of any third-party terms or conditions. APS offers its Products subject to the Customer's acceptance of these Terms and Conditions. APS may amend these Terms and Conditions. The latest version of the Terms and Conditions will always apply between APS and the Customer.

1. DEFINITIONS

1. APS: “Art of Private Shaking” Glass & Bar Supply BV thodn APS Glass & Bar Supply, established in Amsterdam (1069 CD) at Keurenplein 5 and registered in the trade register of the Chamber of Commerce under number 34199129.

2. Purchaser: any natural person or legal entity that purchases Products and enters into an Agreement with APS, or negotiates with APS to enter into an Agreement.

3. Perishable Products : fresh food products or other products that deteriorate in quality over a relatively short period of time.

4. Consumer: a Purchaser who is a natural person and who does not act in the exercise of a profession or business.

5. Durable Products: frozen food products and other food products with a relatively long shelf life, as well as all other products that do not have a shelf life.

6. Order: any order that the Purchaser gives to APS for the delivery of Products, in whatever form.

7. Agreement: the agreement concluded between APS and the Purchaser at the time that APS accepts the Order, including any amendment or supplement thereto.

8. Parties: APS and Purchaser jointly.

9. Products: APS products, both durable and perishable products.

2. APPLICABILITY

1. These Terms and Conditions apply to all offers, agreements, and other relationships between APS and the Purchaser, to the exclusion of any third-party terms or conditions. APS offers its Products subject to the Purchaser's acceptance of these Terms and Conditions. The applicability of other general terms and conditions or purchasing conditions is explicitly rejected.

2. APS may amend these Terms and Conditions. The latest version of the Terms and Conditions will always apply between APS and the Customer.

3. Provisions that deviate from these Terms and Conditions will only form part of the Agreement if and to the extent that the Parties have expressly agreed to this in writing.

4. If any provision of these Terms and/or the Agreement is deemed unlawful, void, voidable, or otherwise unenforceable, this will not affect the validity and enforceability of the remaining provisions of these Terms and/or the Agreement. The unlawful, void, voidable, or otherwise unenforceable part will be (deemed to be) replaced by a valid and enforceable provision that most closely approximates the purpose and intent of the replaced provision.

5. The Purchaser cannot rely on the fact that these Terms and Conditions have not been provided if APS has already provided the same Terms and Conditions to the Purchaser several times and referred to them.

3. OFFERS AND QUOTES

1. All offers, quotations, price lists, etc. from APS are non-binding, unless they contain a term for acceptance. If a quotation or offer contains a non-binding offer and this offer is accepted by the Buyer, APS has the right to revoke the offer within two business days of receiving the acceptance.

2. APS reserves the right to apply a minimum or maximum order quantity for a particular Product and/or the Order.

3. The prices charged by APS for businesses, as well as those in offers, quotations, price lists, etc., are shown exclusive of VAT and any other costs. These costs may include transport costs, administration fees, and invoices from third parties. All prices listed for Consumers include VAT and exclude shipping costs. Any other applicable costs are clearly displayed, unless expressly stated otherwise in writing.

4. A composite quotation does not oblige APS to supply part of the Products included in the offer or quotation for a corresponding part of the price.

5. Prices in quotes are based on information provided by the Customer upon request or order. APS reserves the right to adjust prices if this information subsequently changes.

6. Offers, quotes and prices do not automatically apply to repeat orders.

7. APS is not bound by an acceptance from the Buyer that deviates from the offer. In that case, no agreement has been reached.

8. All images, specifications, and information in offers and quotations are for illustrative purposes only and cannot give rise to compensation or termination of the Agreement. These samples and models remain the property of APS at all times and must be returned upon APS's first request.

4. ESTABLISHMENT AND EXECUTION OF AGREEMENT

1. The Agreement between APS and the Purchaser is concluded either when APS accepts an Order from the Purchaser in writing, or when APS executes the Order. APS reserves the right to refuse Orders without stating reasons.

2. Additions or amendments to these Terms and Conditions or to the Agreement will only become binding after written confirmation by APS.

3. The Purchaser is not entitled to transfer its rights and obligations under these Terms and/or the Agreement to a third party.

4. If, between the date of conclusion of the Agreement and its execution, the government and/or trade unions make changes to wages, employment conditions, or social security, etc., and subject to Article 4.5, APS is entitled to pass these increases on to the Purchaser. Should APS implement a new price list between the aforementioned dates, APS is entitled to charge the Purchaser the prices stated therein.

5. For the Agreement concluded with the Consumer, price increases may be passed on or charged for three months after the Agreement's conclusion. If price increases occur within a period of less than three months, the Consumer is entitled to terminate the Agreement.

6. Purchaser agrees that APS may have the Order carried out by a third party to be designated by APS.

5. ACCOUNT AND AGE LIMIT

1. To place an order via the Website, the Customer needs to create an Account on the Website.

2. The Customer is obligated to provide complete and accurate information when creating the Account. The Customer is responsible for keeping this information up to date.

3. The Account is exclusively for the Customer's own use. The Customer is responsible for ensuring that third parties do not gain access to the Account. APS is not liable for any damages resulting from unauthorized use of the Account. The Customer must immediately notify APS if they suspect misuse of the Account (without prejudice to the Customer's own obligation to prevent further misuse, for example, by changing the Account password).

4. Some orders require an 18-year age limit. Upon delivery, the delivery person will ask for identification if the order contains alcoholic products and there is any doubt about the age of the person to whom the order is being delivered. The age verification is valid for orders up to 25 years of age. Valid identification includes a national passport and a European identity card. If the minimum age requirement is not met, the delivery person will be required to take the order back or not deliver it. Unless mandatory law dictates otherwise, APS will charge the Customer a cancellation fee of €50.

6. DELIVERY AND TRANSFER OF RISK

1. APS reserves the right to deliver in installments. In the event of partial deliveries, each delivery or phase may be invoiced separately.

2. The risk for the delivered Products passes to the Purchaser at the moment of delivery. For the purposes of these Terms and Conditions, delivery means the moment at which the Products to be delivered leave the premises, warehouse, or store of APS and/or a third party engaged by APS, or are available for collection by the Purchaser.

3. Shipment and/or transport of the ordered Products will take place in a manner determined by APS, unless otherwise agreed in writing. Shipment and/or transport will be at the expense and risk of the Purchaser. The Purchaser is obligated to accept the Products immediately upon arrival at the destination. APS is not liable for any damage of any nature related to the shipment and/or transport, whether or not suffered by the Products.

4. By way of exception to this article, for Consumers, delivery under these Terms and Conditions means the moment at which the Products are actually made available to the Consumer. Shipping and/or transport of the ordered Products is at APS's risk, but the Consumer's expense.

7. DELIVERY TIMES

1. Specified delivery dates for Products can never be considered strict deadlines within the meaning of Article 6:83 of the Dutch Civil Code. If APS fails to fulfil its obligations under the Agreement or fails to do so in a timely manner, default will only occur after written notice of default has been issued, setting a further reasonable delivery term of at least 30 days, while the Purchaser remains obligated to accept the goods.

2. If it proves impossible to deliver the Perishable Products to the Purchaser or if the Perishable Products are not collected, attributable to the Purchaser, APS reserves the right to store them at the Purchaser's expense and risk. After storage, a period of 1 month applies within which the Purchaser must enable APS to deliver the Perishable Products or within which he must collect the Perishable Products. All this, unless APS has expressly set a different period in writing.

3. If delivery of the Durable Items is still not possible after the term stated in Article 7.2, the Purchaser will be in default and APS will have the right to terminate the Agreement in writing and with immediate effect, without prior or further notice of default, without judicial intervention and without being liable for compensation for damages, costs and interest, in whole or in part. APS will then be entitled to sell the Durable Products to third parties. Any damage resulting from measures taken by the user will be borne by the Purchaser and not by APS within the meaning of Article 6:101 of the Dutch Civil Code.

4. If it proves impossible to deliver the Perishable Products to the Purchaser or if the Perishable Products are not collected for reasons attributable to the Purchaser, APS will endeavor to sell them. If APS fails to sell the Perishable Products, it reserves the right to destroy these Products. Upon sale or destruction of the Perishable Products as described above, the relevant Agreement will be deemed terminated, without prejudice to APS's right to claim compensation for damages and/or lost profits.

5. The foregoing does not affect the Purchaser's obligation to pay the agreed or stipulated or due price, as well as any storage and/or other costs.

6. APS is entitled to request advance payment or security from the Purchaser before proceeding with delivery in order to ensure compliance with the Purchaser's financial obligations.

7. APS cannot be obligated to begin delivering the Products until all necessary information is in its possession and any agreed (advance) payment has been received. If this results in delays, the stated delivery times will be adjusted accordingly.

8. If deliveries cannot be made normally or without interruption due to causes beyond APS's control, APS is entitled to charge the Purchaser for the resulting costs.

8. PACKAGING

1. The non-disposable packaging in which the Products are delivered remains the property of APS and may not be used by the Purchaser for purposes other than those for which it is intended.

2. APS is entitled to charge the Purchaser a deposit for this packaging. APS is obligated to take back this packaging at the price charged to the Purchaser. This is subject to the condition that the packaging is returned prepaid within a period determined by APS after the delivery date or at a time agreed upon by the parties.

3. If packaging is damaged, incomplete or lost, the Purchaser is liable for this damage and his right to a refund of the deposit lapses.

4. If the damage referred to in Article 8.3 exceeds the deposit charged, APS is entitled to refuse to take back the packaging. APS may then invoice the Purchaser for the packaging at cost price, less the deposit already paid.

9. COMPLAINTS

1. The Purchaser is obligated to inspect the Durable Products immediately upon receipt. Any defects that may be detected upon delivery (including shortages and/or visible damage) must be noted on the consignment note or delivery document and reported to APS immediately, but no later than 48 hours after receipt of the Durable Products.

2. If, upon receipt of the Products, no comment is made on the consignment note or delivery document regarding defects, shortages or damaged packaging and/or wrapping, this shall be deemed full proof that the Purchaser has received the Products at least in a proper and undamaged condition upon delivery.

3. Defects that are not immediately detectable must be reported to APS by registered letter immediately upon discovery or immediately after discovery should reasonably have occurred, and in any case within one year of delivery to APS. Any consequences of not reporting immediately are at the Purchaser's risk.

4. The Purchaser is obligated to inspect the Perishable Products immediately upon receipt. Any defects of any nature or form regarding these Perishable Products must be reported to APS in writing by the Purchaser within 24 hours of delivery.

5. The period for filing a complaint on an invoice sent by APS is 8 days. If no complaint is made within that period, the invoice is deemed to correctly reflect the relevant transaction with APS.

6. After the periods specified in this article have expired, the Purchaser is deemed to have approved the delivered goods or the invoice. We will then no longer process complaints.

7. For Consumers, the provisions of Article 7:23 of the Dutch Civil Code apply instead of the terms mentioned in this article.

8. The ordered Products will be delivered in the packaging APS has in stock. Deviations that are generally accepted in the industry, or minor technical or unavoidable deviations regarding quality, color, dimensions, volume, thickness, weight, etc., will not be considered a defect on the part of APS.

9. Imperfections in natural products shall not be considered defects if these imperfections are related to the nature and properties of the raw material(s) from which the Products are manufactured.

10. Complaints do not suspend the Purchaser's payment obligation.

11. APS must be given the opportunity to investigate the complaint. If a return shipment is necessary for the investigation of the complaint, this will only be at the expense and risk of APS if the latter has given its express written consent in advance.

12. In all cases, returns must be made in a manner determined by APS and in the original packaging.

13. The items to which the complaints relate must remain available for inspection by APS in the condition they were in at the time the defects were discovered. The right to complain lapses after the Purchaser has put the purchased item into use, processed or treated it, or has had it put into use, processed or treated, or has delivered it to third parties, unless APS has given express permission to do so or the items are durable consumables to which a manufacturer's warranty applies. If the complaints concern part of the delivered Products, this cannot give grounds for rejection of the entire batch, unless the delivered batch cannot reasonably be considered usable in such a case.

14. In the event of a justified complaint, the damage will be settled in accordance with the provisions of Article 10.

10. LIABILITY AND WARRANTY

1. APS cannot in any way be held liable by the Purchaser for any damage of any nature whatsoever, suffered by anyone whatsoever, including death and personal injury, consequential damage, business damage, loss of profits and/or stagnation damage, which is the result of or related to the Products supplied by APS and/or other acts or omissions of APS, its personnel or third parties engaged by it.

2. The limitations of liability contained in this article do not apply if (i) the damage is due to intent and/or deliberate recklessness on the part of APS or (ii) mandatory legal provisions oppose this.

3. Without prejudice to the provisions of the other clauses of this article, the liability of APS, on whatever grounds, is limited to the invoice amount of the Products delivered.

4. Without prejudice to the provisions of the other paragraphs of this article, liability is at all times limited to a maximum of the amount paid by APS's insurer in the event in question, insofar as APS is insured for this.

5. APS guarantees the usual normal quality and soundness of the delivered goods; however, the actual lifespan thereof can never be guaranteed.

6. If the delivered Products contain visible errors, imperfections and/or defects which must have already been present at the time of delivery, APS undertakes to repair or replace the Products, at its discretion, free of charge, or to credit the Purchaser for an amount equal to the price owed by the Purchaser for the rejected Product.

7. APS does not guarantee and shall never be deemed to have guaranteed that the delivered Products are suitable for the purpose for which the Purchaser wishes to process, handle, have used or use them.

8. If Products supplied by APS are covered by a manufacturer's warranty, that warranty will apply equally between the Parties. APS will inform the Purchaser of this.

9. The Purchaser loses its rights against APS, is liable for all damages and indemnifies APS against any claim by third parties for compensation if and to the extent that:

1. the aforementioned damage has been caused by unskilled use and/or use that is contrary to instructions, advice, user manuals or leaflets from APS and/or unskilled storage of the delivered Products by the Purchaser; or

2. The aforementioned damage is caused by errors, incompleteness or inaccuracies in data, materials, information carriers, etc. that were provided and/or prescribed to APS by or on behalf of the Purchaser.

11. PRODUCT RECALL COOPERATION

1. A “ Product Recall ” means the recall of unsafe or defective Products from commercial circulation.

2. In the event of a Product Recall, the Buyer will cooperate with APS, including by implementing corrective measures, to limit the damage resulting from the Product Recall. To the extent possible, the Buyer will immediately take steps to remove the recalled Products from the market.

3. Purchaser shall notify APS of any defective and/or unsafe Product that may be eligible for a Product Recall as soon as such Product is discovered or as soon as Purchaser becomes aware of it.

4. The Purchaser shall ensure that the Products are only further marketed in such a way that the Products are and remain traceable for the purpose of, for example, a Product Recall.

5. The provisions in these Terms regarding liability shall apply proportionately in the event of a Product Recall.

12. PAYMENT

1. Payment must be made in the currency in which APS invoiced and within 14 days of the invoice date, unless expressly agreed otherwise in writing.

2. If the Purchaser does not pay the invoice within the stated term, they will immediately be in default, without any notice of default being required. The Purchaser will then owe default interest equal to the excess of (i) the applicable statutory (commercial) interest rate or (ii) 2% per month, to be calculated cumulatively on the principal amount. The interest will be calculated from the moment the Purchaser is in default until the moment the Purchaser has paid the full amount. Parts of a month will be counted as full months for this purpose. In that case, the extrajudicial costs will also be due, amounting to at least 15% of the principal amount and the default interest, with an absolute minimum of €150.00. Furthermore, APS has the right to charge the Purchaser an amount of at least €20.00 for administration costs for each payment reminder, notice, etc. sent to the Purchaser. APS will state this in the Agreement and/or on the invoice.

3. If the Purchaser fails to meet its payment obligations in a timely manner, APS is authorized to suspend all delivery obligations entered into with the Purchaser until payment has been made or adequate security has been provided. The same applies even before the Purchaser is in default if APS reasonably suspects that there are reasons to doubt the Purchaser's creditworthiness.

4. Payments made by the Purchaser will first be used to settle all interest and costs due and subsequently to settle the oldest outstanding invoices, even if the Purchaser states that the payment relates to a later invoice.

5. The Purchaser waives its right to invoke suspension or offset against APS. This waiver of the right to offset also applies if the Purchaser requests a (provisional) suspension of payments or is declared bankrupt.

6. This article does not apply to Agreements with the Consumer.

13. RESERVATION OF OWNERSHIP

1. Items delivered by APS to the Purchaser remain the property of APS until they have been paid in full to APS, including interest and costs, with payments always being deemed to relate to the oldest invoice.

2. Until the Products have been paid for, the Purchaser shall hold the Products for APS at its own expense and risk, with all due care. As long as the Purchaser has not become the owner of the Products delivered by APS pursuant to the provisions of paragraph 1, the Purchaser is not authorized to alienate or encumber the Products in any form whatsoever, or otherwise transfer them to third parties, except in the context of the Purchaser's normal business operations. The Purchaser may only use or consume the Products to the extent necessary for its normal business operations. Pledging the Products does not fall under normal business operations. If the Purchaser acts in violation of the preceding article, this will be considered an attributable breach on its part. APS may then, without being obliged to provide any notice of default, suspend its obligations under the agreement or terminate the agreement, without prejudice to APS's right to compensation for damages, lost profits, and interest.

3. If APS invokes the retention of title, the Agreement concluded in this regard shall be deemed to have been terminated, without prejudice to the right of APS to claim compensation for damages, lost profits and interest.

4. The Purchaser is obliged to immediately inform APS in writing of the fact that third parties assert rights to Products to which a retention of title applies under this article.

5. Until such time as the Purchaser has fulfilled all its payment obligations to APS, the Purchaser is obliged to carefully store the Products subject to retention of title as identifiable property of APS.

6. The Purchaser must insure and keep insured the Products delivered under retention of title for the duration of the retention of title. The Purchaser must make the insurance policy available for inspection by APS upon first request.

7. If APS wishes to exercise its ownership rights, Purchaser shall grant unconditional and irrevocable permission to APS to enter all places where the properties are located, so that APS can repossess the properties.

14. INTELLECTUAL PROPERTY RIGHTS

1. All intellectual property rights (including, but not limited to: copyrights, word marks, logos, trade names, patents, and know-how) pertaining to our Products, packaging, Website, webshop, our texts, photographs, images, and other (promotional) materials are the exclusive property of APS (or are managed by us with the permission of the rights holder) and remain with APS indefinitely. The Purchaser is prohibited from violating these intellectual property rights in any way or form.

15. CONFIDENTIALITY

1. APS and the Purchaser will keep confidential all confidential information they exchange in connection with the Agreement and any negotiations with third parties. Information is considered confidential if this follows from its nature or if the information is explicitly designated as confidential by APS and/or the Purchaser.

2. APS and Purchaser shall not use or disclose the confidential information for any purpose other than that necessary in connection with the performance of the Agreement.

3. APS and the Purchaser shall not be liable for any damages or compensation if they are legally obliged to disclose the confidential information and comply with this legal obligation.

16. DURATION AND TERMINATION OF AGREEMENT

1. APS and Purchaser enter into the Agreement for an indefinite period, unless otherwise agreed in writing.

2. If the Agreement is expressly limited in content or time, the Agreement will automatically terminate upon completion of such content or time.

3. APS may terminate the Agreement immediately, without being obliged to pay damages or compensation, in the following cases:

1. Buyer is bankrupt or in suspension of payments;

2. Purchaser is dissolved or liquidated;

3. Purchaser is placed under guardianship or dies;

4. Due to other circumstances, the purchaser can no longer freely dispose of his assets.

4. APS may immediately terminate or dissolve the Agreement, without any notice of default being required, if the Purchaser fails to fulfill its obligations under the Agreement, fails to fulfill them in full, or fails to fulfill them on time. This specifically includes the Purchaser's inability to reimburse APS for any pre-financing payments APS has made on its behalf within 14 days. The Purchaser must pay APS damages or indemnify APS for failure to fulfill its obligations.

5. In the event of termination of the Agreement pursuant to paragraph 3 or 4 of this article, the full purchase price for Products already delivered shall be immediately due and payable.

6. Any costs incurred by APS in connection with complaints about Products seized by third parties will be reimbursed by the Purchaser.

17. FORCE MAJEUR

1. In the event of force majeure on the part of APS or the Purchaser, they shall be (temporarily) released from their obligations under the Agreement. If the force majeure has not ceased to exist within one (1) month, APS shall have the right to terminate the Agreement with immediate effect and without judicial intervention, without any right to compensation arising on the part of the Purchaser. Force majeure, within the context of these Terms and Conditions, shall be understood to mean: a non-attributable shortcoming on the part of APS, third parties or suppliers engaged by it, or any other important reason on the part of APS.

2. In the event of force majeure when the Agreement has been partially performed, the Purchaser is obliged to fulfil its obligations towards APS up to that point.

3. Circumstances in which force majeure shall exist shall include, but not be limited to, all situations that fall under the concept of force majeure within the meaning of Article 6:75 of the Dutch Civil Code, including (but not limited to): mobilisation, war and threat of war, acts of terrorism, demonstrations, staff shortages, strikes, default by third parties engaged by APS, business disruptions and transport hindrances of any nature, epidemics, hindrances caused by measures, laws or decisions of international, national or regional (governmental) authorities, fire, explosion, frost, snow, flooding, storm damage and other natural disasters.

18. TERMINATION, CANCELLATION, TERMINATION

1. All purchases are final. This means that the Purchaser has no right to terminate, cancel, or terminate the Agreement. Therefore, the Purchaser is not entitled to refuse delivery of the Products sold or to return them unless APS agrees to this in writing. The Purchaser hereby waives all rights to (partial) termination or cancellation of the Agreement under Article 6:265 et seq. of the Dutch Civil Code or any other legal provisions granting the Purchaser a similar right to terminate, cancel, or terminate the Agreement, unless mandatory legal provisions oppose this.

2. Article 18 does not apply to Agreements with Consumers if the Consumer, in accordance with statutory provisions, terminates the Agreement without giving reasons within 14 days of receiving the Products. The Consumer can do this, among other things, using the return form found on the Website. The costs of returning the Products are borne by the Consumer. The right of return as described in this clause does not apply to Products that are custom-made, to Products that spoil quickly or have a limited shelf life, to sealed Products that are not suitable for return for reasons of health protection or hygiene and/or whose seal has been broken after delivery, or to Products that cannot be returned due to their nature.

19. PRIVACY

1. APS complies with the General Data Protection Regulation and other relevant laws and regulations regarding the protection of personal data. The APS Privacy Statement describes which personal data APS processes.

20. APPLICABLE LAW/COMPETENT COURT

1. The Agreement concluded between APS and the Purchaser is governed exclusively by Dutch law. Disputes arising from this Agreement will also be settled under Dutch law. The provisions of the Vienna Sales Convention are excluded.

2. By way of exception to Article 20.1, the property law consequences of a retention of title in respect of Products intended for export shall, if the legal system of the country or state of destination of the Products is more favourable to the user, be governed by that law.

3. All disputes relating to or arising from the Agreement concluded between APS and the Purchaser and/or these Terms and Conditions will be submitted to the competent court in the district where APS has its registered office. If the Purchaser qualifies as a Consumer, they have the right, within one month of APS invoking this provision, to choose to have the dispute settled by the legally competent court.

 

Date: June 20, 2024