General terms and conditions

Kenneth Smit's 2019 terms and conditions filed by Rotate B.V. based in Eindhoven. Filed with the Eindhoven Chamber of Commerce under number 17071065.

1. Definitions

Rotate B.V. operates a professional organization of cooperating independent trainers, each of whom, in his own right, also uses the trade name Kenneth Smit (hereinafter referred to as KS). Furthermore, KS (subscriptions to) offers services through an online environment (whether or not in combination with training) (hereinafter referred to as online service) and the possibility for business customers to book open training online. Under these terms and conditions, KS means the contractor, being the (legal) person who has committed himself to providing training (including: courses and coaching) and/or granting access to the Online Service.

The client is everyone who enters into an agreement with KS to provide training, to provide other services or to purchase (a subscription to) the Online Service(s).

The participant is anyone who, on the basis of an agreement between the client and KS, follows any training of KS or uses the Online Service.

A company training is a training that is booked for employees of only one client.

An open training is a training for which everyone can register, of course until the number of available places available by KS is filled.

The Online Service is the digital environment in which, among other things, measurements of performance can be made, push messages can be sent to improve that performance, advice is provided on certain topics, and/or other services offered through the online environment, whether or not combined with physical training on various topics, which the client (in the case of a subscription) can access.

The Online Booking System is a system on the KS website that makes it possible to book online open training courses for business customers

2. Applicability

A tender issued by KS expires after 14 days and is revocable. KS is only subject to any obligation to the extent that it is demonstrated by a written agreement.

The persons who make the tender do so on behalf of the (legal) person mentioned in the tender and are not themselves attached to it in person. The client agrees that KS has the contract executed under its responsibility by persons connected to it or, if necessary, third parties. The applicability of Art. 7:404 and 7:407 paragraph 2 BW is expressly excluded.

3. Rules of conduct training

  1. The participants are expected to be self-employed and optimal input.
  2. A proactive attitude is expected to be a proactive attitude both during and after the training on behalf of the client in supporting the participants.
  3. During the working periods, participants are not disturbed by incoming or outgoing messages, unless there are urgent circumstances.
  4. The participants should actively follow the training; if a participant exhibits such disruptive behaviour that such conduct adversely affects the results of the other participants, he may be denied the right to further participation, without prejudice to the principal's obligation to pay the participant's participation in the training in question.
  5. KS cannot in any way be held liable for the behaviour of the participants and its consequences.

4. Choice of training location

  1. In order to achieve good results, the training site must meet ks requirements.
  2. A suitable training location is reserved for industry and company training.
  3. Changing the training location cannot be a reason for the client to cancel the assignment.

5. Online service

  1. In case the client (a subscription to) the Online Service purchases, KS will provide the client with the codes and instructions to log in to this Online Service after receiving the agreed (monthly subscription) fee. The client will carefully store these codes and instructions and in no way provide them to third parties.
  2. Only employees of the client or the client themselves are entitled to log in to the Online Service. Login codes are personal and non-interchangeable. The client and/or employee will in no case grant third parties who do not belong to the organization of the client access to the Online Service or the content and messaging contained therein.
  3. It may be decided at any time to remove, modify or convert content and messaging from the Online Service to another format. In that case, KS is not required to reimburse any costs or damages.
  4. It is possible that the Online Service is not accessible, for example due to maintenance or malfunctions. In that case, KS is not required to reimburse any costs or damages, unless there is intent or deliberate recklessness. Only if the Online Service is not available in a month longer than three days, KS may decide (but is under no obligation to do so) to refund all or part of the subscription fee for the period in question.
  5. KS is at all times entitled to immediately deny the client access to this digital Online Service in the event that the client violates what is stipulated in these terms and conditions or any further agreement between the parties. In that case, KS is not required to pay any costs or damages.
  6. To the extent that training is also provided within the framework of the Online Service, Articles 3, 4, 8, 9, 11, 12, 13, 14, 15 of these terms and conditions apply in full to the training section of the Online Service.

6. Duration and termination subscription Online Service

  1. Unless other agreements are made with the client, agreements (subscriptions) with respect to the Online Service are entered into for one year. After the end of the term, the agreement will be automatically renewed for the same period, unless one of the two parties denounces the agreement in writing no later than three months before the end of that period.
  2. Furthermore, KS is entitled to terminate the contract with immediate effect and to deny the client access to the Online Service as soon as the client applies for suspension of payment or bankruptcy, as soon as the client is declared bankrupt or once the liquidation of the client is initiated or a dissolution decision has been taken with regard to the client.
  3. In the event that KS decides to stop offering the Online Service at any time, for example because it is no longer profitable or requires too much time, it is entitled to terminate the agreement with (the subscription of) the client with a notice period of three months. In this case, the client will receive the subscription fee of the remaining months return in proportion to the amount of money.
  4. In the event that KS or the client terminates the contract under (a), (b) or (c), they shall not be required to reimburse any costs or damages to the other party.

7. Prices

For all training and other activities of KS and for (the subscription to) the Online Service, the prices are charged in accordance with the agreement. All prices listed do not include VAT, unless otherwise stated.
KS does its utmost to show the right prices. However, prices may appear incorrectly. All prices listed in the quotation and in the online booking system are subject to pre-programming, typos, and other inaccuracies.

8. Accommodation and subsistence expenses

The costs of the accommodation where KS training courses take place, as well as travel and accommodation expenses of the participants and the trainer of KS, are always at the expense of the client, except if otherwise stated in the agreement.

9. Payment conditions training

  1. KS will always be able to demand payment of the costs of the training and/or other services prior to the provision of the training, and prior to the provision of other services, including the accommodation costs of the participants and the rental of the accommodation.
  2. All KS invoices will have to be paid by the client no later than 14 days after the invoice date, but, if this is a shorter period, not later than 14 days before the start of the training in question, or, where applicable, no later than 14 days prior to the provision of other KS service to which the invoice relates to the client. If the execution of the contract must take place within 14 days of its award, the invoiced amount must be paid immediately after billing.

10. Payment Terms Online Service

  1. With regard to the Online Service, the client pays monthly upfront the fee for access to the Online Service for the agreed subscription period, unless other agreements are made about it.
  2. All invoices from KS for the Online Service will have to be paid by the client no later than 14 days after the invoice date, without compensation or other deductions.
  3. The customer must pay KS the amounts due as a result of an online booking in the payment method, as stated on the Online Booking System on the website.

11. Payment conditions generally

  1. As a day of payment, the currency date of attribution will always apply to the relevant statement of ks bank or giro account. Under no circumstances will the client be able to make any use of the debt comparison without the express and written consent of KS in respect of the payment referred to here.
  2. If and as soon as the client exceeds the payment periods referred to in sub-9s and 10b, he is in default without any further notice and/or summation by KS.
  3. If and as soon as the client as referred to above under (b) is in default, KS has the right to hand over the invoice amounts thus arrears to third parties without further notice. The costs of recovery, in and/or outside of court by KS, are always at the expense of the client. Out-of-court collection costs will be due by the client as soon as KS hands over the recovery of any amount to third parties as a notice; these out-of-court collection costs will always be at least 15% of the amount to be claimed with a minimum of Euro 160.00, without prejudice to KS's right to charge a higher amount in out-of-court collection costs if the actual out-of-court collection costs are found to be higher.
  4. If and as soon as the client defaults as referred to in (c) above, he shall be liable, without any further summation and/or default, an interest payment of one twelfth part of the statutory interest referred to in Article 12 of the statutory interest referred to in Article 10 of the outstanding of all outstanding invoices of KS per month. 6:119a BW plus 1%, (statutory interest + 1%)/12, with part of a month being considered as a whole month, without prejudice to KS's right to full compensation for all damages caused by the default by the client, and without prejudice to the legal and extrajudicial collection costs referred to in c above.
  5. If and as soon as the client as referred to above in (b) is in default, all claims made by KS on the client, for whatever reason, may result, are suddenly due and the client is deemed to be in default in respect of the claims referred to here and will be liable for the claim referred to here in 8(a) and (b) , 9 (a) and (b) and 10(a) to (d) shall apply in accordance with the application.

12. Cancellation of training

If the client cancels the training or does not appear, he is nevertheless required to pay KS all agreed fees.

13. Cancellation of training in case of force majeure

The provisions of Article 12 shall also apply in the event of cancellation due to force majeure on the part of the client. In this case, however, KS allows the client to participate in the same training within three months of the scheduled training, provided that it is scheduled and not fully booked, or in consultation with KS, to agree a new date for a company training within that period, provided that KS has such a date available.

14. Cancellation of training sessions to be completed

If the client agrees with KS to take a certain number of training courses to be completed and/or other activities in a given period and fails to take it in the agreed period, or terminates the agreement prematurely, nevertheless the agreed remuneration and costs will remain fully due as if all agreed training and/or other work is reduced.

15. Partial participation training

  1. Participants who are not permanently present during a training session will continue to pay the total training and subsistence costs.
  2. If a participant participates in an open training session, but during this meeting is forced to interrupt the training prematurely due to force majeure or illness, the client will continue to owe the full training amount. In consultation with KS and only at a fee to be specifyed by KS, the participant may participate in a replacement training, if available, or, if applicable, part of it. The fee for the latter is charged to the client.

16. Liability

  1. KS will endeavour to carry out the agreed work in accordance with the requirements of good work, in accordance with what can be expected in the context of the task assigned to KS. This obligation has the character of an effort obligation, as no guarantee is given as to the outcome of the service provided by KS.
  2. The client is responsible for the soundness and completeness of the data made available to KS. KS is not liable for damage caused by incompleteness or inadequacy in the information provided by or on behalf of the client.
  3. KS is liable to the client only for direct damages which are the direct result of a failure attributable to KS in the fulfilment of the contract.
  4. The maximum liability of KS for training or other activities is limited to the amount of the fee (excluding sales tax) of the contract in question. If and to the extent that the agreement is an expensive agreement, the damage due to due to due to due to imperricity will in no case exceed the price negotiated in the applicable agreement (excluding sales tax) for KS's performance in the 1-month period preceding KS's failure.
  5. The maximum liability of KS in respect of (a subscription to) the Online Service is limited to the amount of the subscription fee (excluding sales tax) pro rata negotiated for the period of 1 month prior to KS's shortcoming.
  6. However, for the amounts referred to in this Article, the total compensation will never exceed EUR 25,000,00 and shall be reduced by the credit negotiated by the client and granted by KS.
  7. It is always conditional on the creation of any right to compensation that the client has reported the damage in writing to KS as soon as reasonably possible after its occurrence, but in any case within 8 days of discovery.
  8. KS is not liable for the damage that in any way results from or relates to unauthorized use of the (Online) services.
  9. The exclusions and restrictions referred to in Articles 16 d to 16.f shall be waived if and to the extent that the damage is the result of intent or deliberate recklessness of KS.

17. Statute of expression

Each claim against KS shall be barred after the expiry of 1 year after its creation.

18. Work material

The costs of all the work materials are included in the cost of the training that the client purchases.

19. Intellectual Property rights

  1. The client acknowledges that all intellectual property rights (including copyrights and know-how) on the training courses offered by KS, the other work carried out by KS, the (content of the) Online Service and the work material are exclusively available to Rotate B.V. or its partners.
  2. KS only grants a right of use for the use of the work material in the context of the training in respect of the training courses, but it is expressly not permitted to disclose and/or repro substimate the work material in any way without the prior written consent of KS. The (digital or paper form) reproduction of the work material within the organization of the client and/or the participant is also not allowed. This agreement means all matters made available to the contractor and/or the participant (digital and/or in paper form) in the context of the training, such as presentations, handouts, workbooks, articles, summaries, leaflets and brochures, including all texts and images contained herein.
  3. KS only grants a right of use with regard to the Online Service to access the content via the online environment and to display it on a digital device (such as a computer, smartphone or tablet). Storing, printing or otherwise making it public and/or (digitally or in paper form) multiplying the content, whether or not within the organization of the client, is not permitted.
  4. If the client and/or participant is in breach of this article, he or they are jointly and severally liable to KS a direct fine of EUR 10,000.00 per event in which KS reserves the right to claim compensation for the damage actually suffered by this action.

20. Secrecy

All information that the parties receive in the context of the cooperation between KS and the client is considered strictly confidential and treated as such. All trainers associated with KS have committed themselves to confidentiality.

21. Disputes

  1. All disputes between KS and the client concerning any agreement to which these conditions apply, including those considered by only one of the parties as such, will be tried, including in summary proceedings, by the court at 's-Hertogenbosch. All agreements with KS will always be covered by Dutch law.
  2. If the client applies general terms and conditions that may apply to any KS agreement, the terms and conditions of KS will always prevail over the conditions applied by the client.

22. Conversion

If any clause of these terms and conditions is found to be inseperated or annulled in law, this shall not prejudice the operation of the other terms. In that case, KS is entitled to replace the clause in question with a clause which approaches its scope as much as possible without being inseal or destroyed.

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