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General delivery & service conditions
All offers, assignments, negotiations and agreements under which The ETRAINING COMPANY BV supplies software and/or services shall be subject to these General Terms of Delivery and Service.
Definitions
a) Connection:
The Service, whereby a link between a sub-domain (unique URL) of The ETRAINING COMPANY BV and a (sub-) domain (unique URL) of the Other Party is established enabling the use of the software and the network of The ETRAINING COMPANY BV by the Other Party.
(b) Designation:
The unique name, the so-called unique 'subdomain' that the Other Party is allocated by THE ETRAINING COMPANY for the connection.
c) Services:
The services provided by THE ETRAINING COMPANY pursuant to the Contract. This may concern a connection, the supply of training software and the possibility of placing training modules of and for the Other Party on connected networks of THE ETRAINING COMPANY.
d) Quotation:
Any offer of THE ETRAINING COMPANY for the supply of software and/or Services to which the General Terms and Conditions including the Additional Delivery and Service Terms and Conditions of THE ETRAINING apply at all times.
e) Agreement:
An Agreement and/or supplements to an Agreement will come into force upon the signing of a quotation and/or other document such as a contract agreement from The ETRAINING COMPANY, which always forms part of the General Terms of Delivery as filed with the Chamber of Commerce at that time.
f) Access code / Password:
The (read) characters (which include webmaster code(s)/mentor code(s) group manager code(s)) that the Other Party obtains in addition to the designation of THE ETRAINING COMPANY in order to gain access to the network and/or subdomain connected to it.
(g) Other Party:
The company that purchases software and/or services from THE ETRAINING COMPANY under the Agreement.
h) Software:
The software which THE ETRAINING COMPANY supplies under the Agreement and which enables online elearning of training modules after connection.
i) THE ETRAINING COMPANY :
THE ETRAINING COMPANY B.V. established and located in Zoetermeer.
Article 1 - General
1.1 These General Terms and Conditions of Supply apply to all negotiations, offers, assignments and agreements, including annexes, in which THE ETRAINING COMPANY supplies software and/or services to the other party (parties), even if this software and/or these services are not explicitly described in these terms and conditions. Any purchase conditions or other conditions of the other party shall not apply unless these have been expressly accepted by THE ETRAINING COMPANY at least in writing. In the event of any conflict between agreements, documents or annexes, the order of precedence shall be as indicated in Article 12.3 of these terms and conditions. The ETRAINING COMPANY is entitled to refuse orders without giving any reason;
1.2 Amendments and supplements to the General Terms and Conditions of The ETRAINING COMPANY shall become valid as soon as they are available on ETC's website and have been presented and filed with the Chamber of Commerce. The ETRAINING COMPANY shall at least ensure that any amended terms and conditions are accessible and retrievable by the Contracting Party on its website for a period of two months after they have been deposited. If a Contract was concluded before the amended date, The ETRAINING COMPANY shall ensure that the Contracting Party can take knowledge of the current General Terms and Conditions via its website and all subsequent e-mail correspondence for a period of two months (by indicating the amendment in the signature of The ETRAINING COMPANY's employees). If the Other Party does not wish to accept changes to the General Terms and Conditions, it will have the right to terminate the Contract immediately up to two months after the date of the change, unless other provisions are agreed in writing between THE ETRAINING COMPANY and the Other Party. Oral communications, undertakings or agreements have no legal force unless confirmed in writing by THE ETRAINING COMPANY. Amounts invoiced by THE ETRAINING COMPANY before the termination in connection with what it has already performed or supplied in accordance with its obligations before the termination will remain due undiminished and will become immediately payable at the time of termination, unless otherwise agreed in writing;
1.3 Cancellation by the Other Party of an order it has placed within the scope of the Contract may only take place with the written consent of The ETRAINING COMPANY. If The ETRAINING COMPANY agrees to the cancellation, the Other Party will owe The ETRAINING COMPANY any amounts that The ETRAINING COMPANY has already invoiced or will have to invoice prior to the cancellation in connection with what it has already performed or supplied in accordance with its obligations prior to the cancellation. These amounts will become immediately due and payable at the time of cancellation, unless otherwise agreed in writing;
1.4 In the event of tacit renewal of an Agreement, the General Terms of Delivery as filed with the Chamber of Commerce on the effective date of the renewal shall apply; they shall be applicable for the new contract period.
1.5 If any provision of these General Terms and Conditions is invalid, the remaining provisions shall remain in force. In that case, the parties shall consult on the content of a new provision that approximates the content of the original provision as closely as possible.
Article 2 - Price and payment
2.1 All prices and rates are exclusive of VAT and any other levies imposed by the government;
2.2 The prices to be charged pursuant to the contract are the prices in force at the time of the Other Party's written acceptance of the Offer and/or other written document; The ETRAINING COMPANY reserves the right to introduce annual price changes, which may be related to the market and/or inflation, provided that these are made known to the Other Party before the end of the notice period;
2.3 All invoices shall be paid by the Other Party in accordance with the payment conditions stated on the invoice. Payment must be made within 14 days of the invoice date. Payment shall be made without any deduction or set-off on any grounds whatsoever, except when it has been established by arbitral or judicial decision that the other party has a deductible counterclaim or a ground for deduction. The ETRAINING COMPANY reserves the right to demand advance payment;
2.4 If a fixed price has been agreed for the provision of services, The ETRAINING COMPANY shall inform the other party in advance if an extension requested by the other party or an increase in the price of the software and/or services provided is applicable; The ETRAINING COMPANY reserves the right to charge additional fees for additions and/or extensions to the software and/or services. The other party reserves the right to waive supplements and/or additions to the software and/or services if the other party does not wish to pay for them;
2.5 If the creditworthiness of the Other Party gives cause to do so, THE ETRAINING COMPANY reserves the right to amend the payment conditions;
2.6 If, when making a payment, the Other Party does not expressly indicate to which debt it is owed, THE ETRAINING COMPANY will be irrevocably entitled to set off these payments against any outstanding invoice of THE ETRAINING COMPANY to the Other Party;
2.7 If the Other Party does not pay the amounts due within the agreed payment period, it will be in default. From that date onwards, without further notice of default being required, the Other Party shall owe an immediately payable default interest of 2.5% per month over the total amount then due, whereby a part of the month shall count as a whole month. If the other party fails to pay the claim, the claim will be passed on to a third party, in which case the other party, in addition to the total amount owed at that time, will also be obliged to fully reimburse judicial and extra-judicial costs, including THE ETRAINING COMPANY's legal assistance, the amount of which is set at a minimum of 15% of the principal amount of the claim with a minimum of EUR 250 (two hundred and fifty euro);
2.8 If the other party fails to pay the amounts due within the agreed term of payment, it shall be in default. The ETRAINING COMPANY reserves the right to temporarily suspend the software and/or services made available until payment has been received on The ETRAINING COMPANY's account, immediately after the payment deadline has expired and the obligation to pay has not been met;
Article 3 - Deliveries and delivery times
3.1 The delivery of software and/or services will take place at a time to be agreed, as stated in the Contract of THE ETRAINING COMPANY confirmed in writing by the Other Party, unless expressly agreed otherwise in writing;
3.2 All software and/or services to be supplied by THE ETRAINING COMPANY will be delivered with due care and skill during working days and within normal working hours (from 09.00 - 18.00 hours). THE ETRAINING COMPANY is allowed to have third parties carry out work under its responsibility as part of the performance of its obligations under this contract; If students/users or the other party's webmaster encounter a problem or have a question, the problem may be reported to THE ETRAINING COMPANY, after which THE ETRAINING COMPANY will provide a response by return, but within two working days at the latest.
3.3 All (delivery) periods mentioned by THE ETRAINING COMPANY have been established to the best of its knowledge based on the information known to it when it entered into the agreement and will be observed as closely as possible. THE ETRAINING COMPANY will in any case not be bound by (delivery) dates that can no longer be met due to unforeseen circumstances or because the other party fails to fulfil its obligations. If any term threatens to be exceeded, THE ETRAINING COMPANY and the other party will enter into consultation as soon as possible. Exceeding of any delivery period can never lead to an entitlement to any compensation for the other party. THE ETRAINING COMPANY is at all times entitled to deliver in parts;
3.4 If the Other Party has not accepted parts of the software and/or services of THE ETRAINING COMPANY, THE ETRAINING COMPANY will be entitled to postpone the performance of any subsequent work or a new phase until such time as the software and/or services or phase has been accepted and, if invoiced separately, paid for;
3.5 If at the request of the Other Party the software and/or services to be delivered are modified, the agreed time of delivery may be postponed. Parties will then agree a new date.
Article 4 - Secrecy / Confidential information / Consent to disclosure
4.1 Each party confirms to keep confidential all information of the other party. Each party shall take reasonable precautions to comply with this obligation to the best of its ability;
4.2 THE ETRAINING COMPANY will make every effort to take such measures as will ensure confidentiality with regard to other party's information, of which it is clear that the other party wishes to keep this information confidential;
4.3 The Other Party is aware and accepts that the Software, other materials and agreements that are made available contain confidential information and trade secrets of THE ETRAINING COMPANY or its licensors. The Other Party undertakes to keep this Software and these materials secret, not to disclose them to third parties or to allow them to be used and to only use them for the purpose for which they have been made available;
4.4 The content, layout, and learning method within the Connection and all Software and executed Services may not be duplicated and/or made public in any media form whatsoever without the written permission of THE ETRAINING COMPANY and/or the Other Party. Improper use is not permitted. THE ETRAINING COMPANY reserves the right to change content, user data, method of working and technical settings. It will inform the Other Party in time if applicable. The Other Party will never make any adjustments to the software, database structure or technology;
4.5 THE ETRAINING COMPANY guarantees the integrity and ownership of the data placed on its server by course participants if the Other Party proceeds to purchase a connection. Data will never be used in any way other than for management purposes;
4.5 If the Other Party proceeds to purchase a service in the form of placing a learning module on a (sub-) domain of THE ETRAINING COMPANY, the ownership of data placed on THE ETRAINING COMPANY's server by users/students will lie with THE ETRAINING COMPANY. THE ETRAINING COMPANY will make an agreement with the Other Party as to whether and on what conditions this data will be made available for inspection. The Other Party may never use these data in any way other than for management purposes;
4.6 Parties shall not disclose to third parties any confidential information relating to the business activities of the other party obtained within the framework of the Agreement and of which the confidential nature has been reasonably established. Information that is covered by legal obligations is excluded from this, on the understanding that the party on which that obligation has been imposed by law informs the other party in good time of the impending obligation to provide information, clearly describing the subject matter, so that the party whose information is to be provided has enough time to submit a request through the courts to counteract this;
Article 5 - Retention of title
5.1 All Software supplied to the other party will at all times remain the property of THE ETRAINING COMPANY. Rights of use are granted to the other party under the suspensive condition that the other party pays the license fees agreed upon in this respect in full, including any claims for failure to perform by the other party pursuant to the agreement concerned;
5.2 If the software and/or service provided by THE ETRAINING COMPANY under an agreement with the other party is seized, the other party will be required to inform THE ETRAINING COMPANY of this immediately. In the event of any attachment, suspension of payments granted in respect of the other party or bankruptcy pronounced in respect of the other party, the other party will be obliged to inform the bailiff levying the attachment, the administrator or the curator immediately of THE ETRAINING COMPANY's right of ownership.
Article 6 - Intellectual property rights
6.1 THE ETRAINING COMPANY is the owner with regard to the copyright and the intellectual and industrial property rights, entitled to the software and/or services (including standard adaptations and new versions) and the accompanying documentation and materials, databases, as well as with regard to reports, offers, etc. issued by it, whether or not at the request of the other party. To this end, the other party will ensure, among other things, that the name indications, copyright marks, symbols, trademarks, copies, etc. applied to the software and the source code, which indicate these rights, remain stated on it;
6.2 All intellectual property rights on the Software and (sub) Domains including materials such as analyses, designs, documentation, reports, offers as well as preparatory materials thereof, are the exclusive property of THE ETRAINING COMPANY, unless expressly agreed otherwise in writing.
6.3 The Other Party is not permitted to make copies of the Software or learning modules. The Other Party undertakes to keep the software and materials secret and not to make them known or give them in use to any third party. The Other Party will impose the aforementioned obligations on its staff members and third parties hired by it;
6.4 THE ETRAINING COMPANY is permitted to take and maintain technical measures to protect the software and/or services (including standard adaptations and new versions);
6.5 THE ETRAINING COMPANY will indemnify the other party against any action based on the allegation that the software and/or services supplied by THE ETRAINING COMPANY infringe a copyright valid in the Netherlands. THE ETRAINING COMPANY will pay the costs and damages irrevocably established by final judgement, provided the other party informs THE ETRAINING COMPANY immediately in writing and leaves the handling of the case exclusively to THE ETRAINING COMPANY and provides all cooperation. If an action has been brought or if the possibility of it exists, THE ETRAINING COMPANY may replace the software or modify it in such a way as THE ETRAINING COMPANY deems appropriate;
6.6 The Other Party is not permitted to change, remove or make unrecognizable any indication of copyright, intellectual or industrial property rights of THE ETRAINING COMPANY.
Article 7 - Cooperation by the Other Party
7.1 Given that THE ETRAINING COMPANY needs to keep abreast of the Other Party's relevant organization with regard to the execution of the agreement, and because of the need for the Other Party to cooperate in the (timely) execution of an agreement, the Other Party will always provide THE ETRAINING COMPANY with all useful and necessary data or information on time upon first request. The Contracting Party will guarantee the correctness and completeness of this data or information and will be responsible for it;
7.2 The Other Party is responsible for good internal management and good quality of its own employees, insofar as necessary for a successful installation and implementation of the software and/or services and the maintenance thereof by THE ETRAINING COMPANY;
7.3 Other party will be responsible for the use and proper application (also in connection with each other) in its organization of the software and of the services to be provided by THE ETRAINING COMPANY, for the introduction in its organization of the procedures necessary for this purpose;
7.4 If it is agreed that the Other Party will make materials or data available on information carriers, these will meet the specifications necessary for the performance of the work;
7.5 If the information required by the Other Party for the performance of the contract is not made available to THE ETRAINING COMPANY, or is not made available on time or in accordance with the arrangements, or the Other Party does not meet its obligations towards THE ETRAINING COMPANY in any other way, this may lead to a suspension of THE ETRAINING COMPANY's performance of its obligations and additional costs may be charged to the Other Party;
Article 8 - Liability
8.1 Except for damage caused by THE ETRAINING COMPANY's own intent or gross negligence, THE ETRAINING COMPANY only accepts legal obligations to pay compensation insofar as this is apparent from this Article; a condition for any right to compensation is always that the other party reports the damage in writing to THE ETRAINING COMPANY as soon as reasonably possible after it has arisen.
8.2 Any liability of THE ETRAINING COMPANY for any other form of damage is excluded, including additional compensation in any form whatsoever, compensation for indirect damage or consequential damage or damage due to loss of profit. Furthermore, THE ETRAINING COMPANY will in no event be liable for loss due to delay, loss due to loss of data, loss due to exceeding delivery deadlines as a result of changed circumstances, loss due to providing inadequate cooperation, loss due to contractual obligations that the Other Party has entered into with third parties through which the Other Party has supplied THE ETRAINING COMPANY with software and/or services (see also Article 8.6), damage resulting from the use of information or materials of THE ETRAINING COMPANY used by Other Party and damage resulting from information or advice given by THE ETRAINING COMPANY, the content of which does not explicitly form part of a written agreement;
8.3 THE ETRAINING COMPANY is not liable for financial loss of any kind. The compensation to be paid by THE ETRAINING COMPANY for breach of contract will in no case exceed a maximum of the amounts invoiced by THE ETRAINING COMPANY to the other party under the contract (excluding turnover tax) in the year in which the damage arose; but never more than €25,000 in total (twenty-five thousand euros). No compensation for damages shall apply to previously invoiced amounts prior to the year in which the damage arose and/or to amounts yet to be invoiced (excl. turnover tax) for future services. If the contract is a continuing performance contract, compensation for attributable failure will in no case amount to more than the price (excluding turnover tax) stipulated in the contract in question for THE ETRAINING COMPANY's performance during the three-month period preceding THE ETRAINING COMPANY's default. No compensation shall apply to amounts not yet invoiced (excluding turnover tax). The amounts and prices referred to in this Article will be reduced by credits stipulated by the other party and granted by THE ETRAINING COMPANY;
8.4 Liability of THE ETRAINING COMPANY for damage on account of wrongful acts on the part of THE ETRAINING COMPANY or its employees or subordinates is excluded. If, in so far as this cannot be invoked but there is a case of intent or gross negligence, compensation per incident - whereby a series of connected incidents counts as one incident - shall be limited to a maximum per incident of the user fees received by THE ETRAINING COMPANY in the previous year, possibly increased by the price (excluding the price of the products), if applicable turnover tax) of Services provided by THE ETRAINING COMPANY, stipulated in the agreement between the parties in the context of which the event occurred or, failing that, the agreement in force between the parties at the time the damage arose, but never more than €. 25,000 in total (twenty-five thousand euros);
8.5 The Other Party indemnifies THE ETRAINING COMPANY against any loss that the Other Party may suffer as a result of third-party claims in connection with the goods or services supplied by THE ETRAINING COMPANY to the Other Party; this includes - claims by third parties, including employees of the Other Party, who suffer damage which is the result of unlawful acts by THE ETRAINING COMPANY, - claims by third parties who suffer damage which is the result of the termination of the Contract between the Other Party and THE ETRAINING COMPANY, or which is the result of a defect in the software and/or services supplied by THE ETRAINING COMPANY which are used, altered or supplied by the Other Party with the addition of or in connection with the Other Party's own products, software or services;
8.6 Any right to compensation will in any case lapse insofar as the Other Party has not taken measures immediately after the damage arose to limit the damage or to prevent more or other damage, or has not informed THE ETRAINING COMPANY of all relevant information as soon as reasonably possible.
8.7 THE ETRAINING COMPANY will in any case never be liable for any breakdown in, or unavailability of, the Services as a result of circumstances that it could not reasonably have foreseen. These include, but are not limited to, government measures, strikes, defaults by suppliers to THE ETRAINING COMPANY, disruptions in the connections of KPN or any other telecommunications company, disappearance of computer files, disruptions with other connected networks, electricity failures and other failures beyond THE ETRAINING COMPANY's control;
8.8 THE ETRAINING COMPANY is in any case never obliged to pay compensation for loss of profits, damage as a result of failure and/or unavailability of the Internet as a result of the maintenance of Software by or on behalf of THE ETRAINING COMPANY, damage arising from the leaking of confidential data or damage arising from third-party claims against the Other Party;
8.9 THE ETRAINING COMPANY will make every effort to secure the Connection or access to the data it stores. THE ETRAINING COMPANY excludes any liability for damage that may occur in spite of the precautions it has taken with regard to the security of the Connection. Liability of Processor for indirect damage is excluded. Indirect damage includes consequential damage, loss of profit, missed savings, reduced goodwill, damage due to business interruption and damage due to claims from third parties.
Articles 9 - 16 en Annexes 1 and 2 at page 2 (click here)