General Terms and Conditions of IN2MOTIVATION BEHEER B.V., with registered office in Amsterdam, the Netherlands
Article 1. Applicability and definitions
- Unless agreed otherwise in writing, these general terms and conditions apply to all offers of and every agreement entered into with IN2MOTIVATION BEHEER B.V., referred to below as IN2M, and the trade names that IN2M uses (IN2MOTIVATION) for its services.
- Client: Any natural person or legal entity that has a contractual relationship with IN2M under an agreement that has been entered into with IN2M. The term ‘client’ also means those under whose instructions and at whose expense goods are supplied.
- Proposal/offer: Non-binding offer from IN2M to a client.
- Order confirmation: Written acceptance of an order by IN2M.
- An exception to the provisions of these general terms and conditions can be made only and exclusively if and insofar as this has been expressly agreed in writing.
- If the client also refers to their general terms and conditions, those terms and conditions are not applicable. In2Motivation does not accept any general terms and conditions of a client and expressly rejects the applicability of clients’ terms and conditions. This is not affected by any contrary provision in the terms and conditions of a client.
- Any reference in these general terms and conditions to the ‘supply (of goods)’ also means the supply and rendering of services and work of any nature.
Article 2. Proposals
- All proposals and other offers of IN2M are regarded as a non-binding offer by IN2M to a client. A proposal or other offer therefore does not bind IN2M in any way, not even after a client has accepted IN2M’s proposal and/or offer.
- The agreement with IN2M is concluded only after IN2M’s written confirmation and acceptance (the order confirmation). This order confirmation serves as acceptance by IN2M. An agreement is concluded when IN2M sends the order confirmation.
- All designs, drawings, models, samples, descriptions, images made and supplied by IN2M, as well as all appendices and documents that are attached to IN2M’s proposals and offers, will remain IN2M’s property. Tools made by IN2M will also remain its property. All items and goods referred to in this paragraph must be returned to IN2M immediately on request and may not be copied and/or given to third parties without IN2M’s express written request. IN2M also reserves any existing rights from intellectual and industrial property.
- All agreements between IN2M and a client qualify, in relation to IN2M’s obligations, as a best-efforts obligation and expressly not as an obligation to obtain a specific result. IN2M therefore does not warrant that specific results of any nature will be achieved.
- Any additional arrangements and/or undertakings made by staff members and/or employees of IN2M and/or other people that act as a representative of IN2M, will be binding for IN2M only if these arrangements and/or undertakings are confirmed in writing by IN2M’s director(s) who have representative authority under the articles of association.
Article 3. Prices
- IN2M’s prices exclude turnover tax and, unless expressly agreed otherwise in writing, also exclude transport and any other costs.
- The prices specified in proposals, contracts and order confirmations are based on the cost factors that applied when the agreement was concluded, including exchange rates, wage costs, insurance premiums, taxes and other government levies.
- If one or more of the cost factors increase after the date on which the agreement is concluded but before the delivery date, IN2M reserves the right to pass on these increases to the client. In such cases, IN2M is also entitled to terminate the agreement without the need for judicial intervention and without it being held accountable and liable to pay compensation to a client as a result.
Article 4. Payment
- Payment must be made within the period specified on the invoice and, failing that, within 30 days of the invoice date.
- IN2M is entitled at all times to require advance payment or another form of security from the client. The client is obliged to comply with such a request.
- Payment must be made in cash without any deduction, discount or setoff into IN2M’s designated bank or giro account. Setoff by the client is not permitted.
- Payments made by the client are first allocated to settle all payable interest and costs, followed by the longest outstanding invoices, even if the client states that the payment relates to a later invoice.
- If payment is not made by the due date, the client will be in default by operation of law as from the following day and liable, inter alia, to pay statutory interest on the full invoice amount.
- If IN2M must take action to collect outstanding invoices, the client is moreover liable to pay the extrajudicial costs equal to fifteen per cent of the outstanding receivable(s), subject to a minimum of €250.00, plus all other third-party costs for the purpose of the collection.
- The previous paragraph does not apply to agreements between IN2M and natural persons who are not acting in the course of a profession or a business. If IN2M’s client is a natural person who is not acting in the course of a profession or a business and this client has unpaid invoices, he/she will be liable to pay collection costs in accordance with the applicable statutory arrangement.
Article 5. Hiring third parties
- IN2M is entitled at any time, and without the client’s consent, to hire third parties for the performance of the agreement entered into with the client.
Article 6. Recipients’ liability
- The client warrants that it will comply with the obligation to deduct and pay over national insurance contributions and payroll tax in respect of the employees that it makes available to IN2M. The client further warrants that it will also make freelancers available to IN2M, if necessary, who have signed the independent contractor’s statement to be issued to IN2M on request. As proof of this, the client will send a copy of these statements to IN2M within a reasonable time.
- If IN2M is held liable for the payment of payroll tax or national insurance contributions by or on behalf of the Dutch Tax and Customs Administration and/or Lisv, where IN2M would have a withholding obligation under social insurance laws in respect of freelancers, the client will assume full responsibility for these costs and immediately compensate IN2M for any loss that it suffers as a result.
- The costs referred to in paragraph 2 of this article mean the deductions due under the Wages and Salaries Tax Act (Wet op de Loonbelasting) including increases and/or penalties, the national insurance contributions levied, an ex officio increase under Article 12 of the Social Security (Coordination) Act ( Coördinatiewet Sociale Verzekeringen – CSV), as well as the costs of any proceedings and consultancy in this regard
- The client must refrain, at all times and in any form, from holding IN2M liable, both judicially and extrajudicially, for the deductions under the Wages and Salaries Tax Act, as well as for the payment of national insurance contributions for the employees and/or freelancers hired by the client.
- The client is obliged on IN2M’s request to provide proof immediately that the quarterly payment of national insurance contributions has been made to the relevant administration agency for the hired employees.
- Any reference in this article to IN2M must also be understood to include the client as the buyer of IN2M’s services/products.
- The above paragraphs of this article apply to the client as the buyer of IN2M’s services/products, in addition to what is otherwise stipulated in these general terms and conditions, in particular but not limited to the provisions of Article 14: ‘Liability/indemnity’.
Article 7. Delivery period
- All delivery periods and dates stated by IN2M are determined to the best of its knowledge and based on the information that was known to it when the agreement was concluded. However, these periods are indicative only and not binding on IN2M.
- Although IN2M will observe its stated delivery periods and dates as far as possible, exceeding these periods and dates will not cause IN2M to be in default and also not make IN2M liable to pay any compensation to a client. If there is a risk that a delivery period will be exceeded, IN2M and the client will discuss the situation and search for an appropriate solution.
Article 8. Retention of title
- Notwithstanding the provisions of Article 10 of these delivery conditions, ownership of the goods that IN2M produces and supplies under instructions will only pass on to the client on the day that the price, interest, costs and any compensation due in respect of the supplied goods, including for prior deliveries, have been paid in full.
- The client undertakes to insure and to keep the goods that have been supplied subject to retention of title insured against fire, explosions, water damage and theft. If the insurance pays out, IN2M is entitled to this payment. Insofar as necessary, the client undertakes towards IN2M to cooperate in anything that may be necessary or advisable in that regard.
- If IN2M wishes to exercise the rights to ownership referred to in this article, the client hereby gives unconditional and irrevocable consent in advance for IN2M, and third parties designated by IN2M, to enter all the places where IN2M’s property is kept and to repossess those goods.
Article 9. Retention
- If IN2M has assets of the client in its possession, it will be entitled to retain those goods until payment is made of all costs that it has incurred to fulfil the orders of the same client, regardless of whether these orders relate to the aforementioned or other assets of the client, unless the client has provided adequate security for those costs.
Article 10. Intellectual or industrial property rights
- All intellectual property rights, including copyright, to all materials developed or provided under the agreement, including proposals, courses, training, development paths, measurement systems, training materials, designs, illustrations, software, etc., vest exclusively in IN2M or its licensors.
- In relation to the materials referred to in paragraph 1 of this article, the client receives the right to use these materials only in support of the objectives of the agreement between the parties.
- Any other use of the materials as referred to in paragraph 1 is prohibited. In particular, the client is not permitted to distribute, publish, transfer, sell, rent out, encumber, amend or replicate the materials, or the content of the materials, as referred to in paragraph 1 of this article, in any way.
Article 11. Force majeure
- IN2M is not obliged to comply with any obligation towards the client if it is prevented from doing so because of force majeure. This means a circumstance that cannot be attributed to IN2M and for which IN2M is not accountable by law, a legal act or generally accepted standards.
- For the purpose of these general terms and conditions, force majeure, in addition to its definition in legislation and case law, also means all external causes, foreseen or unforeseen, over which IN2M cannot exercise any control (including any failure by IN2M’s suppliers and/or the third parties that it hires to carry out an order to comply with their obligations), but which prevent IN2M from complying with its obligations. This includes strikes in IN2M’s business or in the business of third parties that IN2M has hired to carry out an order. IN2M is also entitled to rely on force majeure if the circumstance that prevents the further performance of the agreement commences after IN2M should have complied with its obligation.
- If IN2M is unable to comply with its obligation to deliver, or to do so properly or on time, because of force majeure, it will be entitled to terminate the agreement, or the part that has not yet been performed, or to suspend the agreement for a fixed period or indefinitely, all at its own discretion.
- In case of force majeure, IN2M is not liable towards a client and a client cannot hold IN2M accountable to pay damages (including but not limited to any travel, accommodation and cancellation costs that are incurred) or to otherwise compensate loss.
Article 12. End of agreement
- Unless the parties agree otherwise in writing, IN2M may give notice of termination of the agreements it has concluded orally, in writing or by e-mail, with due observance of a 30-calendar day notice period. The first day of this notice period is the day following that on which IN2M gives notice. After such notice and the expiry of this notice period, IN2M and the client will be released from their delivery obligation and purchase obligation respectively. This does not affect the client’s payment obligation for goods or services that have already been delivered.
- IN2M may terminate the agreement concluded with the client, with immediate effect and without any notice period, if:
- a. The client is declared bankrupt/put into liquidation, placed under guardianship, or granted a moratorium on the payment of debts;
- b. The client is a legal entity and that legal entity is dissolved;
- c. IN2M learns of any facts or circumstances after entering into the agreement that give it reason to fear that the client will not comply with their obligations under the agreement.
- d. The client runs their business contrary to statutory or other regulations or government rules.
- e. The client refuses to provide the security required by IN2M;
- f. The client fails to comply with its obligations under the agreement concluded with IN2M, even after having been given a notice of default to comply.
- If one of the circumstances listed in paragraph 2 of this article arises and IN2M uses its right to terminate under paragraph 2, IN2M will immediately be released from its obligations to deliver to the client without the client being released from their payment obligations under the agreement concluded with IN2M. In this case, all claims that IN2M has against the client will also be immediately due and payable without any further notice of default.
- The client may not terminate the agreement by notice or for cause, or annul the agreement.
- IN2M is not liable for damage as a result of termination under this article.
Article 13. Liability/indemnity
- In case of an attributable breach or delict, IN2M is liable for direct damage or loss only (notwithstanding the provisions of this article). IN2M will never be liable to compensate indirect damage or loss, including but not limited to consequential damage, lost profits, lost savings and/or opportunities and business interruption.
- In the unlikely case that an event occurs and leads to liability while an order is being carried out, IN2M’s liability will then be limited to the amount or amounts paid out under its liability insurance. An event as referred to in this paragraph also includes an omission. If an event is not covered by IN2M’s liability insurance, IN2M’s liability will be limited in all cases to an amount of €5,000.00.
- IN2M is likewise not liable for damage or loss that arises because the equipment, software, data carriers, registers or other resources that it uses to carry out the order are defective, or for damage or loss that arises if a third party intercepts audio and/or data of telephone, fax or e-mail transmissions, including their possible falsification.
- The advice that IN2M provides is without obligation and not binding on the client. It is up to a client to to decide whether or not to follow IN2M’s advice. IN2M is not liable for damage or loss that may occur because its advice is followed.
- If IN2M’s work, including any advice that it provides, does not lead to the client’s intended result, this is at the client’s risk and IN2M will not be liable in this regard.
- The client indemnifies IN2M, judicially and extrajudicially, against all third-party claims that arise in connection with the work that IN2M performs in relation to the performance of the agreement.
- In case of orders to edit or modify existing material received from the client, it is the client who is always liable towards the copyright owners of that material and the client indemnifies IN2M against any claims from copyright owners relating to that material.
Article 14. Complaints by the client
- The client warrants the completeness and accuracy of the information provided and is responsible for the data supplied to IN2M.
- Complaints and claims must be submitted within eight days. If this period is exceeded, any claim of the client against IN2M lapses. Complaints and claims must be submitted in writing, clearly stating the precise nature of the complaint.
- Submitting a complaint or claim will never release the client from its payment obligations towards IN2M. The suspension of payment obligations is not permitted.
Article 15. Training
- Various training courses that IN2M provides have one or more social programmes for the purpose of relaxation.
- Participation in the social programme of a training course is at the participants’ own risk. The client must inform the participants of this before they participate. IN2M excludes any liability in case of injury to participants during a training course or social programme. Alternatively, Article 13 applies in such cases.
Article 16. Number of participants per training course
- IN2M applies a maximum group size to its different training courses. The client will be informed of this maximum when the agreement is concluded.
- The client must confirm the number of participants one month before the start of a training course.
- Participants are registered in the order in which their registrations are received.
- If a participant is unable to attend, the client must still pay the full price.
- The client is entitled to send a replacement participant. IN2M reserves the right to refuse this replacement participant if his/her level of knowledge and/or experience is inadequate for the training course and/or group. The client must notify IN2M of any replacement participant no later than 24 hours before the start of the training course.
Article 17. Training dates/number of training days
- The training dates and number of training days will be established in agreement with the client.
- IN2M is entitled to change the dates and times of training courses up to three weeks before the original start date.
- Training dates and times that have been established cannot be changed by the client, unless IN2M agrees to the change.
- If an agreed training course is not taken up by the client, the client is not entitled to move the training course to a different date. The client is nevertheless obliged to pay for the training course that was not taken up, in accordance with the order confirmation, unless said training course was cancelled in time by the client. For the cancellation terms, please refer to Article 20 of these terms and conditions
Article 18. Training materials/training location
- On request, the training materials can be delivered in keeping with the client’s corporate identity. The costs incurred for this purpose are payable by the client.
- Unless agreed otherwise in writing, the client is responsible for providing a suitable location for the training. Location expenses, travel expenses and overnight accommodation for the participant(s) and IN2M’s trainer(s) are payable by the client.
- Cancellation costs for flight tickets, accommodation and related items are always payable by the client.
Article 19. Audio and image recordings
- IN2M reserves the right, and the client and participant(s) hereby grant consent in advance, to make audio and image recordings of the participants during training courses and meetings.
- The client and the participant(s) also consent to IN2M using the aforementioned audio and video images for future training purposes, commercial and other promotional activities, or for sharing otherwise in the public domain.
Article 20. Cancellation of training
- IN2M is entitled a cancel an open-registration training course no later than two weeks before it starts if the minimum number of registrations needed to give proper training, as determined at its own discretion, is not achieved. Such a cancellation will not lead to any liability for compensation by IN2M.
- If the client cancels a training course, the following cancellation costs will be payable:
- 8 weeks before the first training date: 30%
- 6 weeks before the first training date: 70%
- 4 weeks before the first training date: 100%
- In case of cancellation, IN2M is released from its delivery obligations towards the client.
- Any cancellation of a training course by the client must be in writing.
- The costs that IN2M has incurred for flight tickets, accommodation and related costs are always payable by the client in case of cancellation. This also applies to cancellation costs for flight tickets, accommodation and related items.
Article 21 Applicable law
- IN2M’s proposals and all agreements that it enters into are governed solely by Dutch law.
Article 22 Dispute resolution
- Any disputes that arise between IN2M and a client will be settled exclusively by the Amsterdam District Court, insofar as no mandatory rules of jurisdiction preclude this choice of forum.