GENERAL TERMS AND CONDITIONS OF USE AND OF SALE

GENERAL TERMS AND CONDITIONS OF USE AND OF SALE

EXKi Fridge – vs 1/7/2021

PREAMBLE

1. Higo is a company that offers Users of its Application a Smart Fridge service enabling them to purchase products from the EXKi range (which may or may not bear the ‘EXKi’ brand), in particular at their workplace.

2. The Application is an IT platform that can be used to make these purchases using a Means of Payment indicated by the User. The Application managed and edited by Higo.

3. These General Terms and Conditions govern the relationship between Higo and the User, including subscription, use and the purchases made via the Application.

1. Definitions and interpretation

1. 1. In these General Terms and Conditions, the following capitalised terms should be understood as indicated in this Article 1.1.:

Application	:	The web application (including its mobile version) managed/edited by Higo and operated under the trade name “EXKi Fridge”, accessible on www. fridge.exki.com or via the mobile application of the same name available on App Store, Google Apps.
Article	:	A provision in these General Terms and Conditions.
Fridge(s)	:	The smart fridge(s) through which Higo offers the Products for sale to the User.
User account	:	The account of the User granting access to the User Space by means of the Identifier and the Password.
General terms and conditions	:	These general terms and conditions of use and sale.
User space	:	The sub-environment of the Application accessible solely to the User via his User Account.
Higo	:	Higo SA, registered with the CBE under number 0764.479.170, RPM (register of legal entities) Brussels, with its registered office at Place du Champ de Mars 2, 1050 Brussels.
Identifier	:	The private or professional electronic address specific to the User, indicated when the User Account is created.
Means of Identification	:	The means of identification indicated by the User, enabling the use of the Fridges and the purchase of a Product or Products. The default Means of Identification is a QR code generated in the User Space. The User can, however, choose as Means of Identification the Means of Payment indicated in his User Account or (if technically feasible and subject to the consent of the issuer concerned), an access card to the premises housing one or more Fridges.
Password	:	The password associated with the Identifier required to gain access to the User Space.
Means of Payment	:	The means of payment accepted by Higo and indicated by the User in the Application. The accepted Means of Payment include the debit and credit cards commonly found on the market (Bancontact, Maestro, Mastercard, Visa) and electronic meal vouchers, provided that their issuer has concluded an ad hoc agreement with Higo.]
Failure	:	Any form of disruption or deactivation of a Fridge.
Party(ies)	:	Individually or collectively, the User and/or Higo.
Product(s)	:	Any product offered for sale in a Fridge to which the User has access.
User	:	Any person having created a User Account in the Application.

1. 2. The following shall apply in these General Terms and Conditions:

1. 1. 1. Any use of the plural includes the singular and vice versa.

1. 1. 2. Any use of the masculine includes the feminine and vice versa.

1. 1. 3. The Article headings are intended to facilitate reading and do not affect the interpretation of the provisions of the article in question.

1. 1. 4. Any obligation expressed as a prohibition or an obligation not to do something includes the obligation not to have the prohibited acts undertaken by a third party.

1. 1. 5. The use of the terms ‘such as’, ‘in particular’ or other similar expressions indicates an intention to provide non-exhaustive illustrations.

2. Scope of application

1. 1. These General Terms and Conditions apply to access and subscription to and all forms of use of the Application by the User. The General Terms and Conditions also apply to all sales of Products between the Parties.

1. 2. The General Terms and Conditions determine the contractual relationship between the User and Higo. Acceptance without reserves of the General Terms and Conditions is required to create a User Account and implied when such User Account is created. The User must accept the General Terms and Conditions in full.

3. Duration – Termination - Suspension

1. 1. The General Terms and Conditions shall apply as long as the User makes use of the Application, i.e. as long as he has a User Account.

1. 2. The User is under no obligation to use the Application or to purchase Products. He may terminate his User Account at any time.

1. 3. Higo may terminate or suspend the User Account at any time, in part or in full, for a period of time which it shall determine, without prior formal notice of default, without notification in advance and without compensation, should it suspect or observe infringements of these General Terms and Conditions or fraudulous use of the User Account or Application.

1. 4. Higo shall have the right to discontinue operation of the Application at any time and, consequently, to terminate all User Accounts.

1. 5. In the cases of termination referred to in Articles 3.2., 3.3. or 3.4. above, the relationship between Higo and the User shall end, without prejudice to the clauses in the General Terms and Conditions which, by their very nature, shall have a post-contractual effect (such as, in particular, Articles 9., 10., 12. and 16.).

1. 6. In the event of the suspension of the User Account referred to in Article 3.3. above, the relationship shall not end but all the obligations of Higo pursuant to these General Terms and Conditions shall be suspended to the extent and for the period of time determined by Higo.

4. Application

1. 1. The Application is accessible and/or, as regards the mobile version, made available for downloading on most modern computers and/or mobile devices with internet access and a widely used operating system, such as Windows, MacOS, iOS or Android. Higo does not, however, offer any guarantee of compatibility between the Application and any particular operating systems and/or device whatsoever. The User alone shall be responsible for ensuring this compatibility and Higo does not accept any liability for any incompatibility.

1. 2. Save for the purchase of Products, access to and use of the Application are free of charge. The User shall, however, bear the costs linked to the internet access required to be able to use the Application. Hence, in particular, the User shall bear sole responsibility for taking out the (mobile) internet subscriptions necessary to use the Application.

1. 3. Higo is the sole owner of the Application and has the right to make any modifications or carry out any updates which it may deem desirable or necessary. Higo reserves the right to cease providing support or access to obsolete versions of the Application. The application of this Article 4.3. may not give rise to any complaint from the User or any liability on the part of Higo in respect of any party whomsoever.

1. 4. Subject to the provisions of this Article 4. and barring periodic maintenance, Higo shall endeavour to ensure that the Application remains operational and accessible. Higo may not, however, under any circumstances, be held liable for any interruptions in continuous access to the Application when such interruption is due to an action or omission by a third party (including in particular internet access providers, payment service providers, etc.) and/or the User.

1. 5. The User may only make use of the Application for personal purposes. It is prohibited to make use of the Application for commercial purposes, and in particular to resell Products purchased via the Application.

5. User account – Password – Identifier

1. 1. In order to have access to the functionalities of the Application, the User must create a User Account. To this end, he must provide the following information:

1. 1. 1. His name, first name and, as the case may be, title;

1. 1. 2. his date of birth (only those aged over 18 are permitted to create a User Account);

1. 1. 3. an Identifier, i.e. an electronic mail address (personal or professional), the use of which is reserved for the User. This e-mail address will be used to validate the creation of the User Account;

1. 1. 4. a Password;

1. 1. 5. a Means of Payment accepted by the Application;

1. 1. 6. a Means of Identification accepted by the Application;

1. 1. 7. his acceptance of the General Terms and Conditions.

1. 2. The User shall be responsible for and guarantee the accuracy of the information that he provides to Higo in application of Articles 5.1.1. to 5.1.7 above. The User may modify his Password, his Means of Payment and/or his Means of Identification via the options menu available in the User Space.

1. 3. Once the User Account has been created and, if appropriate, validated, the User shall refrain from activating accounts on behalf of third parties without Higo’s approval.

1. 4. The User shall bear sole responsibility for securing his User Account, his Identifier, his Password and the IT resources (both software and hardware, including securing his internet connection) that he uses to access this account. The User Account is strictly personal and may only be used by the User. In any case, the User shall bear sole responsibility for the activity that takes place from his User Account. Any hacking or alleged unauthorised use may only be invoked against Higo once it has been reported by the User.

6. User space

1. 1. Via the User Account, the User has access to his User Space, where he can consult past purchases and the receipts issued by Higo to his attention, or modify his Password, his Means of Payment or his Means of Identification.

1. 2. The User Space also contains the prices, details, ingredients and (non-contractual) photographs of the Products. The User is obliged to check before purchase the ingredients that make up each Product that he wishes to purchase, in particular as regards the presence of allergens or foods that are incompatible with any diet followed by the User. Higo will not accept any complaints in this respect.

7. Purchasing products

1. 1. Using his Means of Identification, the User can make purchases in the Fridge(s) available to him. The User must use the Fridges with all reasonable care and in accordance with the instructions for use displayed thereon. The User shall be liable for any damage caused to the Fridges by use that deviates from these instructions.

   2. Please note that your credit card will directly be charged at the moment of transaction.

1. 2. The Product price is that displayed in the User Space at the time of purchase. The prices displayed in the Application are the full price of the Products, including all taxes and costs.

1. 3. The product price is payable immediately before delivery. The Means of Payment shall be debited before the Fridge is opened. The User agrees that third-party electronic payment service providers may be called upon for this purpose. In the event of an insufficient balance or another cause of non-payment, the User will not be able to collect the Product he wishes to purchase.

1. 4. For all purchases made by the User, Higo shall issue an electronic receipt by e-mail, that may also be consulted and downloaded in the User Space.

1. 5. The User acknowledges that in the context of his purchases of Products, he may not assert any right of withdrawal within the meaning of Article VI.47 of the Code of Economic Law, since the purchase of Products consists of the provision of goods likely to deteriorate or pass their sell-by date quickly, within the meaning of Article VI.53, 4° of the Code of Economic Law.

1. 6. Higo shall endeavour to maintain a permanent range of the complete assortment of Products, assortment that may evolve. However, should one or more Products be out of stock or unavailable, or in the event of Failure affecting one or more Fridges, Higo may not under any circumstances be held liable.

1. 7. Any complaints concerning the quality of the Products must be sent to Higo in accordance with the provisions of Article 9. within 48 hours of the purchase of the Product in question, and the following details must be provided:

1. 1. 1. the Identifier of the User;

1. 1. 2. the place and approximate time of the Purchase of the Product;

1. 1. 3. a picture of the Product label.

1. 1. 4. a precise description of the grounds for complaint of the User.

8. Food safety

1. 1. Higo does its utmost to ensure that the Products are stored, transported and offered for sale in accordance with all the applicable food safety standards.

1. 2. In principle, Higo shall ensure that the Fridges only contain products the ultimate consumption date of which has not been exceeded. Should the ultimate consumption date of a Product be exceeded and the User purchase this Product:

1. 1. 1. the Fridge will emit a sound warning to inform the User thereof;

1. 1. 2. the User will be informed by the Application and by e-mail that he has purchased a Product the ultimate consumption date of which has been exceeded, asking him not to eat/drink the Product in question;

1. 1. 3. the User will be reimbursed for this purchase;

1. 1. 4. the User will refrain from eating/drinking the Product in question.

1. 3. In the event of a Failure affecting a Fridge which entails a food safety risk, Higo reserves the right to deactivate the Fridge concerned until all affected Products that it contains have been replaced.

9. Contact

1. 1. All notifications required pursuant to these General Terms and Conditions or complaints must be addressed in writing to:

1. 1. 1. Higo by post at the address give in Article 1.1. or to the electronic address fridge@exki.com.

1. 1. 2. The User, to the electronic mail address forming the Identifier.

1. 2. Higo shall do its utmost to process complaints from the User within 48 hours of their receipt.

1. 3. A telephone line dedicated to technical support is available from Monday to Friday from 9.00 am to 6.00 pm, on +33 427502590. No additional charge shall be made for calls with the technical support service.

10. Liability

1. 1. All the obligations of Higo are obligations of means.

1. 2. Barring deceit, intentional error, mandatory legislation or law and public order, the liability of Higo in respect of the User shall be limited:

1. 1. 1. as regards any interruption of access to the Application attributable solely to Higo, to making commercially reasonable efforts to re-establish this access. Any other form of compensation in kind or by equivalent is expressly excluded;

1. 1. 2. as regards the sale of Products, to the legal guarantee of conformity as laid down in Articles 1649bis & foll. of the Civil Code, i.e. the replacement or reimbursement of the Product concerned.

11. Force majeure

Neither of the Parties shall be liable for the consequences of an infringement of the General Terms and Conditions (other than an obligation to make a payment) if this infringement is the result of a case of force majeure. The following in particular shall be considered cases of force majeure: natural disasters, war, revolution, act of governement, epidemics or pandemics, temporary or permanent restrictions on access to certain premises, power or internet network outages and in general, all events that are reasonably unforeseeable and beyond the control of the affected Party.

12. Personal data

1. 1. The User expressly accepts that Higo collects and processes his personal data to the extent required for the fulfilment of the General Terms and Conditions and to improve the Application and the services and goods provided, as well as in compliance with the Higo privacy policy, available on www.fridge.exki.com/en/privacy-policy or directly on the Application.

1. 2. The personal data of the User shall be collected and processed in accordance with the legislation in force (including in particular the GDPR). The User may exercise all the rights granted to him by this legislation by means of a simple notification to Higo.

13. Intellectual rights

1. 1. During the period of activity of his User Account, the User shall acquire a free licence to use the Application, within the limits and for the purposes laid down in the General Terms and Conditions.

1. 2. Higo shall remain the sole holder and shall not grant any intellectual property right whatsoever concerning the Application, the EXKi brand/trademark and the distinctive signs associated with this. The User shall refrain from any appropriation, modification or alteration of these elements.

14. Consumer protection

As the Application is made available to the User free of charge and the User Account may be terminated at any time, the User acknowledges that he thus has a permanent right of withdrawal, free of charge, as regards the use of the Application within the meaning of Article VI.47 of the Code of Economic Law.

15. VARIOUS

1. 1. The General Terms and Conditions may be modified from time to time by Higo. In this case, the User shall be informed of these modifications. Higo reserves the right to make the continued use of the Application by the User subject to express acceptance of such modifications to the General Terms and Conditions.

1. 2. The General Terms and Conditions are divisible. Any invalidity or any other obstacle to the application of a clause (or part of a clause) in the General Terms and Conditions shall not entail the invalidity of the General Terms and Conditions as a whole.

1. 3. The User Account is personal and non-transferable. Higo shall have the right to transfer its contractual position to any other company of the EXKi group, by means of simple notification to the User.

1. 4. The General Terms and Conditions comprise the full agreement between the Parties, to the exclusion of any other commitment, declaration, etc.

1. 5. The Parties agree that acceptance of the General Terms and Conditions by the User by means of his Identifier and his Password constitute a sufficient and authentic means of identifying the User. Acceptance by electronic means of the General Terms and Conditions in the User Space shall therefore equate to an electronic signature within the meaning of Article 8.1.3 of the new Civil Code.

16. Applicable law – Competent courts

1. 1. All aspects of the relationship between the Parties and the General Terms and Conditions shall be governed exclusively by Belgian law.

1. 2. Any dispute relating to the Contract (including any dispute concerning the pre-contractual phase or any other non-contractual obligation relating to the Contract) shall be brought exclusively before the courts of the legal district of Brussels. The User expressly agrees that Higo may only be brought before the French-language courts of the legal district of Brussels, without prejudice however to legal provisions applicable when the User is a consumer.