TERMS AND CONDITIONS FOR CUSTOMERS
GENERAL TERMS AND CONDITIONS FOR CUSTOMERS FOR THE USE OF THE INTERNET PLATFORM OF
Caterwings Netherlands BV*
Keizersgracht 391 A
Represented by its Managing Directors Martijn Suister
*Hereinafter referred to as “Caterwings”
§ 1 PREAMBLE
Caterwings operates the online platform www.caterwings.com (hereinafter referred to as “Platform”) via which customers and companies can order catering offers, i.e. food and beverages for delivery, as well as all related services (hereinafter “Catering Services” and/or “Catering Products”). At the same time, Caterwings offers Catering Services and Catering Products for business meetings (e.g. workshops, meetings and breakfast), company parties (e.g. summer BBQ, special events and happy hour), private events and more (hereinafter “Events”). In addition, Customers have the option to receive advice from the so-called catering consultants of Caterwings and have Catering Services be composed that are customised to their needs.
§ 2 SCOPE OF THE T&C
(1) These T&C apply in their respectively current version to all contracts concluded between Caterwings and the Customers with regard to the Catering Services and Catering Products offered via the Platform, regardless of whether these contracts are concluded via the Platform or another website, via an app on a mobile end device, by email, fax or post, or by telephone or in any other way.
(2) Opposing, deviating or additional T&C of the Customer shall not apply or not become effective parts of contracts concluded between Caterwings and the Customer, unless Caterwings has expressly agreed to their applicability in writing beforehand.
(3) Caterwings expressly reserves the right to change these T&C at any time without a statement of reasons. The changed conditions will be sent to the Customer by email two weeks before they take effect. If the Customer does not object to the applicability of the revised T&C within two weeks after receipt of the change notice, this shall be regarded as agreement to the changed T&C. Caterwings shall point out the meaning of the two-week period to the Customer in the email by way of which notice of the change is given.
(4) For the fulfilment of the Catering Services described under § 1 of these T&C, Caterwings has concluded contracts with third-party providers (hereinafter “Caterers”), which present and offer their Catering Services and Catering Products on the Platform operated by Caterwings. Separate T&C apply to the contracts between Caterwings and the Caterers (i.e. these T&C do not apply to the relation between Caterwings and the Caterers).
(5) Caterwings and LEMONCAT GmbH, Dircksenstr. 47, 10178 Berlin, Germany are members of a shared corporate group. As part of the performance of services pursuant to these T&C, Caterwings therefore also cooperates with the LEMONCAT GmbH. At the same time, individual services or tasks can also be performed or fulfilled directly by the LEMONCAT GmbH.
§ 3 CONCLUSION OF THE CONTRACT
(1) Customers can select directly bookable Catering Services (or “Menus”) or request a personalised offer for Catering Services via the Caterwings website.
(2) The Customer concludes a binding contract with Caterwings by activating the “Order subject to costs” button on the Platform with regard to the Catering Services selected by it previously and shown in a summary during the order process or by accepting a customised offer according to the respectively provided conditions by email or telephone.
§ 4 CONDITIONS FOR ORDERS FROM CUSTOMERS
(1) Customers using the service of Caterwings:
- must be able to accept orders at the address indicated in the order;
- must by no means sublicense, resell or transfer the Catering Services offered via the website for use or make them available to third parties without Caterwings’s written approval;
- may register only on behalf of a company they are authorised to represent for the purposes of such an order;
- must ensure the correctness of the data specified in the course of creating the profile and the order, respectively;
- must update their profile immediately in the case of changes to the stored data;
- must keep their login data secret and inform Caterwings without delay, as soon as there is a suspicion of a loss or theft of the login data.
§ 5 REGISTRATION
(1) Customers must create a customer profile to place an order. A customer profile can be created both during the order process as well as independently from this. An application for the creation of a customer profile is submitted to the website by filling out the application form completely and sending it either during the order process or on a separate occasion.
(2) The approval of the registration is at the sole discretion of Caterwings. When Caterwings approves the registration, a corresponding customer profile is created.
(3) Caterwings reserves the right to limit the Customer’s access to the customer profile on the website at its own discretion.
§ 6 RIGHTS AND OBLIGATIONS OF Caterwings/CATERERS
(1) Caterwings/Caterers perform the consulting services described in § 1 of these T&C in relation to the Customer with regard to the selection of meals and the composition of menus. The service owed by Caterwings/Caterers depends on the respective service specification on the Platform and, if applicable, any customer wishes agreed separately at least in text form. Caterwings presents the Catering Services, in particular the meals of its Partner Caterers on the website and processes the orders of the Customers as a reseller of these Partner Caterers. The meals are prepared by the Partner Caterers with whom Caterwings enters into a contract and which are delivered directly by the Partner Caterer to the Customer on behalf of Caterwings. The contract regarding these orders applies only between the Customer and Caterwings, whereas the Partner Caterer is not a party to this contract and therefore also not the Customer’s contractual partner.
(2) Caterwings/Caterers produce the Catering Products in accordance with § 6 (1) of these T&C for the Customer or they prepare them if and insofar as these are not storable, pre-packaged or filled products of third-party sellers, which do not require a separate production/preparation. The ingredients for the Catering Services owed pursuant to § 6 (1) of these T&C are procured by Caterwings/Caterers for the respective order if and insofar as they are not already in stock at Caterwings/Caterers.
(3) Unless agreed otherwise in writing, all services to be performed pursuant to this contract are so-called obligations to be fulfilled at the place of business of the debtor for which the place of performance is located at the respective place of Caterwings/Caterers’ business.
(4) Unless a different place of fulfilment has been expressly agreed at least in text from, the service/delivery shall be performed at the place indicated by the Customer in the course of the order process. A subsequent change of the place of delivery is permissible only with the explicit agreement of Caterwings/Caterers in text form.
(5) The dates assured by Caterwings/Caterers for the performance of the Catering Services – unless fixed dates have been expressly agreed in writing with the Customer – are mere guidance values for which Caterwings/Caterer do not guarantee adherence and which also do not trigger any rights of warranty or establish an impossibility of the service performance if they are exceeded.
(6) If and insofar as this has been agreed previously in writing with the respective Customer, Caterwings/Caterers shall perform additional services for the execution and implementation of the event planned by the Customer in the definition of § 1 of these T&C. Accordant services can include, for example, the provision of service staff, the provision and making available of catering systems and catering items such as tableware, utensils, trays for keeping meals warm, chafing dishes, gastronomy boxes, silverware sets, napkins, customised decorations and flower arrangements, tables, chairs, etc. (hereinafter “Equipment”).
(7) Caterwings/Caterers can engage external natural persons or legal entities for the fulfilment of its duties according to § 6 of these T&C. An obligation for the personal performance of services by Caterwings/Caterers is not established.
§ 7 RIGHTS AND OBLIGATIONS OF CUSTOMERS
(1) The Customers undertake to support Caterwings/Caterers in the fulfilment of their contractual duties and the performance of the Catering Services, respectively. To this end, the Customers, in particular, but not exclusively, shall provide access for Caterwings/Caterers during the entire performance period to the place of performance determined by the Customer for the performance of Catering Services, to help Caterwings/Caterers with setting up and removing Equipment, etc.
(2) The Customers undertake to inspect the Catering Products immediately upon the handover by Caterwings/Caterers and to report any defects discovered in the process in writing to Caterwings. Acceptance shall take place in accordance with Dutch Commercial Code.
(3) Customers must not refuse the acceptance of delivered Catering Products contrary to good faith.
(4) The Customers undertake to pay for the ordered Catering Products and Catering Services at the latest within the period specified on the invoice.
(5) The Customers undertake to obtain all potentially required approvals and licenses under private law or official regulations (e.g. from the GEMA [Society for Musical Performing and Mechanical Reproduction Rights], the customs office, etc.) for the implementation/performance of the Catering Services and Catering Products and to pay the fees incurred for this purpose.
(6) Shipping will generally be at the Customer’s cost. Shipping costs will be indicated to the Customer on the summary page before the order is placed and they need to be confirmed.
§ 8 EQUIPMENT
(1) The Equipment provided to the Customers by Caterwings/Caterers shall remain fully in the ownership of Caterwings/Caterers. The transfer of the Equipment for use shall be made by way of renting/loan.
(2) Subject to the agreement on a duty to return the Equipment by the Customer at the place of business of Caterwings/Caterers (or at another place depending on the agreement), Caterwings/Caterers shall pick up the Equipment from the Customer within an appropriate period after the end of the performance period.
(3) Customers shall always treat the Equipment with due care and the diligence of a prudent businessman, whereas they shall compensate the resulting repurchase value or, where possible, the value of the repair of the Equipment (the price that Caterwings/Caterers has to expend for a corresponding replacement purchase or repair) in cases of damages, destructions or losses.
(4) Caterwings has the right to demand an appropriate security deposit for the Equipment provided to the Customer. Up until the complete payment of the security deposit, Caterwings/Caterers shall have a right to withhold the Equipment.
§ 9 CATERWINGS MEAL PLANS
(1) Caterwings offers Customers the possibility to purchase Catering Services and Catering Products at continuously scheduled, regular intervals (so-called meal plans, hereinafter referred to as “Meal Plans”). Under Meal Plan contracts, Customers can determine the contract period and the frequency of delivery (e.g. every day or once a week/month), subject to the respectively planned minimum periods. Unless provided otherwise, the minimum period for Meal Plan contracts is 6 months. Longer minimum periods can be provided for special offers or price discounts.
(2) Meal Plan contracts are limited for fixed terms. A termination before the end of the fixed period is permissible in case the Customer moves to a region where Caterwings does not deliver or not on the same conditions.
(3) Unless stated otherwise, the Caterwings Meal Plan contracts will extend automatically on unchanged conditions for a further equally long period (hereinafter “Extension”). Customers of Caterwings can prevent the automatic Extension by termination of the contract within a period of 1 month toward the end of the current contract period. The same applies to subsequent Extensions after the first one.
(4) The price for the entire contract period shall be due on the conclusion of the contract and payable in monthly instalments, respectively in advance, throughout the entire contract period. If the Customer is in arrears with an instalment, Caterwings shall have a right of extraordinary termination of the contract without notice. The entire price owed under the contract shall then be payable immediately, without Caterwings being obligated to perform the contractual services. Further claims of damages remain unaffected thereof.
(5) The Customer undertakes to accept Meal Plan services performed by Caterwings in accordance with the contract at the agreed place and time. If it fails to do so, it will enter default of acceptance. Sec. 373 seqq. HGB applies in this respect.
§ 10 LIABILITY
(1) Caterwings has the right to personally replace the Caterer booked by Customers in certain cases, should the Caterer be unable to perform the service to the full extent for reason of special circumstances. The delivery shall then be executed in the same quality and value by an alternative Caterer.The Customer has the possibility at all times to obtain all information relating to the relevant Caterer including the details regarding contacts, authorised representatives and options for contacting, both through Caterwings as well as personally on the handover or delivery of the service.
(2) Caterwings takes on the organisation and processing of the orders for this purpose, but it is not involved in the preparation and performance of the actual Catering Service. The Customer shall assert all claims relating to the Catering Services and Products to be provided by the Caterer or the labelling obligations applicable to it exclusively against the respective Caterer. Caterwings shall support the Customer in the process to the best of its ability.
(3) Caterwings shall be liable to the Customer for damage compensation, regardless of the legal reason, only in case of intent and gross negligence by Caterwings. The Customer shall have to prove intent or gross negligence by Caterwings.
(4) If a lesser degree of fault than gross negligence is given, Caterwings shall be liable to the Customer respectively only for damages due to an injury to life, body and health and for damages based on a breach of essential contractual duties (these are such duties the fulfilment of which enable the correct performance of the contract in the first place and on the fulfilment of which the Customer regularly relies and may rely [so-called “cardinal duties]). In these cases, liability of Caterwings shall be limited to the compensation of the predictable, typically occurring damage.
(5) If Caterwings’s liability is excluded or limited, this shall apply equally to vicarious agents and assistants, executive bodies, employees and representatives of Caterwings. The liability of Caterwings for intentional actions by its vicarious agents shall be excluded in all cases in accordance with Sec. 278 BGB.
(6) The regulations of the Product Liability Act shall remain unaffected thereof.
(7) The Customer undertakes to indemnify Caterwings from all claims brought against it by third parties – including Caterers – for reasons caused by the Customer in connection with this contract and to compensate Caterwings for all costs and damages incurred for the defence against such claims (e.g. lawyer fees).
§ 11 PRICES AND SERVICE FEE
(1) Prices for the services that can be booked via Caterwings consist of a basic price and a service fee in the amount of 0-20% of the order sum. Unless stated otherwise, all prices and price indications, respectively, are understood plus the respectively applicable value added tax and any incurred public charges.
A service fee will not apply if so agreed, for example, for public tender invitations.
(2) The exact prices of the individual Catering Services and Catering Products and the amount of the concretely incurred service fee can be found in the online offer at www.caterwings.com or they result – especially for specifically composed/agreed Catering Services and Catering Products – from the respective contract between Caterwings and the Customer (or its annex).
(3) The prices apply to the scope of service and delivery as described in the respective order confirmation.
(4) Any special or extra services beyond this shall be remunerated separately by the Customer. This applies, in particular – but not exclusively – if the Customer requests additional Catering Services and Catering Products after completion of the order process or if circumstances none at the fault of either of the parties (e.g. force majeure) and circumstances stemming from the Customer’s area of responsibility entail additional expenses by Caterwings/Caterers (e.g. a delay of the beginning/end of the Catering Services due to a circumstance at the Customer’s fault, incorrect information provided in the course of the order process, etc.) Special or extra services shall be agreed by means of the “Reorder” form, which is provided for this purpose. However, the Customer does not have a right to special or extra services.
(5) If, after the conclusion of the contract, Caterwings should learn of circumstances, which are suitable to significantly reduce the Customer’s credit rating, Caterwings shall have a right to perform/implement the contractually owed Catering Services/deliveries only against prepayment or security deposit. The amount of the prepayment/security deposit depends, among other, on the product, order volume (or lot size), etc.
§ 12 CHANGES, CANCELLATIONS AND TERMINATIONS
(1) After the order is placed, change requests by the Customer will be possible only after prior consultation with Caterwings/Caterers.
(2) The Customer shall inform Caterwings/Caterers of minor change requests at least 48 hours before the performance of the contractually owed service by Caterwings. Deemed minor changes compared to the originally ordered Catering Services and Catering Products are deviations from the indicated number of people, the scope of meals/beverages, etc. of +/- 5% of the originally contracted volume. However, the Customer is not entitled to the implementation of minor change requests.
(3) After the order is completed, cancellations of the order by the Customer are possible free of charge only within the following periods before the respective event date that are staggered by the amount of the order value (excluding the service fee):
up to €1,000 incl. VAT – up to 48 hours before the event;
up to €2,000 incl. VAT – up to 5 days before the event;
up to €10,000 incl. VAT – up to 3 weeks before the event;
beyond €10,000 incl. VAT – up to 8 weeks before the event or on individual agreement.
If several sequential and related orders are placed for the same occasion, the order value relevant for cancellations results from the total sum of all orders.
(4) The service fee will not be refunded in any event. In case of a cancellation of orders for more than EUR 3,000, an amount of up to 30% of the order value will not be paid out, but be offset against the next order that is placed within the following 12 months.
(5) After expiration of said periods, changes and cancellations are possible – if at all – only in accordance with a separate agreement with the Customer.
(6) The foregoing cancellation conditions do not apply to Meal Plan services pursuant to § 9 above.
§ 13 TERMS OF PAYMENT
(1) The agreed total price shall become due at the time of the conclusion of the contract. If the scope of the order changes (for example, because of more people to be catered to, or a consumption-dependent agreement or similar), this can entail that the invoice total will be adjusted by Caterwings. Caterwings will send a notification. Unless it is objected thereto, the new price shall apply as accepted. If payment against invoice is agreed as the payment method, the payment target applies as stated on invoice meanwhile the invoicing shall be issued only after the event.
(2) Caterwings can demand payment of an advance, which is dependent on the order volume/total price, on the conclusion of the contract already. The amount of the advance payment depends, among other, on the order volume (or lot size), etc. For orders in excess of EUR 3,000, Caterwings will demand an advance payment in the amount of 100%. For Catering Services that can be booked bindingly directly via the website, the price must always be paid in advance.
(3) Customers have the payment options that are stated on the Platform available within the scope of the order process, whereas Caterwings expressly reserves the right to reject the payment method chosen by the Customer in the individual case. Credit card payments are processed by our partner Stripe Payment Europe Ltd, The One Building, 1 Grand Canal Street Lower, Dublin, Ireland. For prevention and discovery of cases of fraud, we transfer your IP address to our partner Stripe Payment Europe Ltd, The One Building, 1 Grand Canal Street Lower, Dublin, Ireland. In the process, your IP address will be stored by Stripe Payment Europe Ltd. All data will be transmitted in encrypted form. You can revoke your consent at any time with effect for the future via the contact details given in the legal notice. In the case of cash payment made to the Partner Caterer on delivery, if this is offered by Caterwings as payment method for the respective order, the Partner Caterer shall be authorised by Caterwings to accept the payment on behalf of Caterwings.
(4) If the Customer is in default on payment pursuant to the aforementioned provisions, Caterwings can withdraw from the contract for Catering Services after setting an appropriate payment period, usually fourteen (14) days.
(5) During the default on payment, Caterwings shall be entitled to demand default interest pursuant to the legal regulations. Caterwings reserves the right to prove a higher damage.
(6) The Customer shall have a right of offsetting only against claims uncontested by Caterwings or claims found valid by final and absolute judgement. The Customer shall be entitled to exercise the right of withholding only to the extent that its counterclaim is based on the same contractual relationship.
§ 14 MEALS
(1) Meals can be selected from the offer on the website. All pictures of the website are examples and serve as illustration only.
(2) Meals can contain allergens or additives. These can be stated on the website. For exact information on allergens, additives or further information on food, however, please contact the respective partner Caterer of your order directly. In case of questions, the Caterwings Customer Service will make the direct contact details of the Partner Caterer available to you on request. In case of legal uncertainties, we recommend refraining from an order for the meantime.
§ 15 MISCELLANEOUS/FINAL PROVISIONS
(1) If individual provisions of these T&C and individual provisions of the contracts concluded on the basis of these T&C should be or become fully or partly invalid or impracticable, the validity of the remaining provisions shall not be affected thereby. Instead of the invalid provision, such valid provision shall be deemed agreed that comes closest to the economic meaning and purpose of the invalid provision.
(2) Additions and changes to these T&C and the contracts concluded on the basis the presented these T&C require the written form for validity. This applies equally to any change and cancellation of the priority in the on the requirement of the written form.
(3) These T&C and the contracts concluded on the basis of these T&C are governed by the law of the Netherlands to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
(4) The place of jurisdiction for all disputes arising from these T&C and the contracts concluded on the basis of these T&C is Amsterdam.
§ 16 DATA PRIVACY
(1) Caterwings gathers and stores the data of the Customer that are required for the processing of the business transaction. We observe the legal regulations in the processing of personal data. More details are provided in the Data Privacy Statement that can be accessed on the website.
(2) The Customer will receive information at any time about his personal data stored by Caterwings.