DEFINITIONS

• General Terms and Conditions: the General Terms and Conditions of the Contractor.
• Course Portal: Software for searching and booking Learning Activities, for procurement and administrative processing.
• External Supplier: A third-party provider of Learning Activities.
• Services: including but not limited to, Learning Activities and other related services including but not limited to, set-up, licensing and handling fees;
• Indirect damage: consequential damages, lost profits, lost savings, damage due to business interruption.
• Learning Activity: Training, courses, tests, coaching, e-modules or assessments, etc.
• Quotation: A non-binding offer (unless the Quotation shows otherwise) by the Contractor for the provision of Services to the Client.
• Client: the natural person or legal entity that purchases Services from the Contractor.
• Contractor: the private limited company Archipel Academy B.V. that provides Services to the Client (as an intermediary).
• Agreement: A Written Agreement for the provision of Services including its attachments/addenda.
• Force Majeure: A failure on the part of the Contractor for which it cannot be blamed and for which it is not responsible by virtue of the law, a juridical act or generally accepted practice, including but not limited to an illness, epidemic and/or pandemic (including but not limited to Covid-19), third parties that refuse to cooperate, accident, strike, lock-out, fire, (armed) robbery, blockade, war, riots, occupation, government interference and/or intervention, (large-scale) natural or other disasters, nuclear reactions, shutdown of means of communication (telephone, internet, email, fax, etc.), shutdown (temporary or for whatever reason) of electrical and/or electronic infrastructure (computers, servers, etc.), destruction and/or disappearance of electronic data and/or fraudulent use thereof by third parties, other business disruptions and other causes beyond the Contractor’s control.
• Parties: Client and Contractor jointly; each of them is individually also referred to as Party.
• In Writing/Written: written and by email.
• Standard Catalogue: External suppliers selected by the Client who offer Learning Activities through the Course Portal.
• Non-standard Catalogue: External suppliers not selected by the Contractor that are added to the Course Portal by the Contractor at the Client’s request.

GENERAL TERMS AND CONDITIONS

1. 1. Unless the Parties agree otherwise, these General Terms and Conditions apply to all agreements to be concluded between the Parties and/or the provision of Services by the Contractor to the Client. Any provisions deviating from these General Terms and Conditions will only apply if the Parties have agreed to this In Writing. The applicability of the Client’s general terms and conditions is expressly excluded.
   2. In the event that any provision of these General Terms and Conditions should be invalid, the other provisions of these General Terms and Conditions will remain in full force and effect and the provision in question will be replaced by a provision that approaches the original intention of the provision as closely as possible.

QUOTATIONS

1. 1. Quotations from the Contractor in any form are subject to contract unless they contain an acceptance period and are based on provision of Services under normal circumstances and during normal working hours.
   2. A non-binding Quotation is a guide price only and no rights can be derived from it. The Contractor, after issuing a non-binding Quotation, may, at the request of the Client, issue a final Quotation that includes a deadline for acceptance. After expiry of the period indicated in the Quotation (period of validity), no rights can be derived from the offer made in the Quotation.
   3. The Contractor is entitled to lay down that which was included in the Quotation (in more detail) In Writing in an Agreement. If the Contractor has provided Services without the Parties having laid this down In Writing (in more detail), the content of the Quotation together with the content of these General Terms and Conditions will determine the content of the Services to be provided.
   4. If the Client’s acceptance deviates from what is included in the Quotation, this will be deemed to be a rejection of the Contractor’s offer and no Agreement will have been established between the Parties.

PRICES AND PAYMENTS

1. 1. Unless the Parties have agreed otherwise In Writing, the prices of the Contractor are indicated in EURO. Any exchange rate risks will be borne by the Client.
   2. The prices charged by the Contractor are exclusive of VAT and/or other taxes, levies or obligations, all in the broadest sense of the word.
   3. The Contractor will not acknowledge an exemption from any tax and/or levy, in any form whatsoever, unless the Client provides the Contractor with a proper certificate of exemption from the relevant tax and/or levy.
   4. If, after the (final) Quotation has been issued by the Contractor, price changes occur on the part of the government or as a result of changed sales conditions of third parties, the Contractor is entitled to pass these price changes on to the Client.
   5. The Contractor is entitled to index its rates annually during the term of the Agreement in accordance with Statistics Netherlands index Business Services. The Contractor will inform the Client of this In Writing.
   6. The Contractor will invoice the Client for the Services provided. The Contractor is entitled to send partial invoices. All payments to the Contractor will be made to the account number designated by the Contractor.
   7. Unless the Parties have agreed otherwise In Writing, payment of the Contractor’s invoices will be made within 14 days of the invoice date. If the Client does not meet its payment obligation within the term of payment, the Client will be immediately in default, without prior demand and notice of default being required. From the moment that the Client is in default, the Client will owe the statutory (commercial) interest on the principal amount. All costs, including but not limited to legal fees and judicial and extrajudicial (collection) costs incurred by the Contractor in collecting the amounts due may be recovered from the Client. The extrajudicial costs are calculated in accordance with the statutory graduated scale for extrajudicial collection costs from the Extrajudicial Collection Costs (Standards) Act (Wet Normering buitengerechtelijke incassokosten, WIK).
   8. If the Client is in default pursuant to the provisions of Article 4.7, all outstanding claims of the Contractor against the Client will be immediately due and payable from that moment on.
   9. Payments to the Contractor will be made without any discount and/or deduction.
   10. If, with respect to the provision of Services, the Contractor permits payment of the principal amount or any portion thereof to be made in instalments, the turnover tax on the total amount will be due and payable concurrently with the first instalment.
   11. The Contractor will at all times be entitled to require an advance payment from the Client and/or to demand security for the payment of its invoices.
   12. Objections concerning the invoices of the Contractor must be made by the Client In Writing, stating the reasons, within 14 days of invoicing. The Client’s objection to an invoice from the Contractor will not affect the Client’s obligation to ensure timely payment in full of the Contractor’s invoice. The Client’s rights to object to an invoice lapse after the expiry of the 14-day period. Unless the Client provides evidence to the contrary, the data from the Contractor’s records are decisive.

TERMS

1. 1. Unless the Parties have agreed otherwise In Writing, the terms specified by the Contractor in the Quotation and/or Agreement are indicative only and will not be deemed to be strict deadlines. The Client cannot derive any rights from the terms specified by Contractor. Exceeding any term by the Contractor will in no way release the Client from its payment and other obligations towards the Contractor.
   2. In the event of late delivery by the Contractor, the Client will give the Contractor written notice of default and grant the Contractor a reasonable period to remedy this and deliver.
   3. In the case referred to in Article 5.2, the Client is only entitled to dissolve the Agreement to the extent that it has not yet been fulfilled and maintenance of the part of the Agreement not yet fulfilled cannot reasonably be required of the Client.
   4. The Contractor is entitled, if it is prevented by Force Majeure from providing the Services in full and/or in time, to suspend the performance of the Agreement and/or to dissolve the Agreement in full or in part In Writing and to claim payment in respect of the Services that have been provided, without the Contractor being liable for any compensation and/or guarantee.
   5. If provision of Services is delayed due to circumstances not attributable to the Contractor, other than Force Majeure, the agreed price will be invoiced by the Contractor and must be paid by the Client as if delivery had been made on time.

DELIVERY AND ACCEPTANCE

1. 1. Unless the Parties agree otherwise In Writing, the Services will be delivered in accordance with the provisions of the Quotation and/or the Agreement.
   2. The Contractor will be entitled to make partial deliveries.
   3. Services are deemed to be delivered and accepted by the Client as soon as the work is completed.

QUALITY

1. 1. The Services provided by the Contractor will be considered sound if they meet the specifications agreed upon In Writing between the Parties.

DUTY TO COMPLAIN AND LIABILITY

1. 1. The Client is obliged to check the Services provided by the Contractor for completeness and soundness.
   2. The Client can no longer invoke the fact that the Services delivered by the Contractor do not meet the Agreement and/or the usage and quality requirements that can reasonably be set for them if the Client does not notify the Contractor of this In Writing within a reasonable period of time, but at the latest within 14 days after the Client became aware that the Services delivered do not meet the Agreement, or at least should reasonably have been aware of this. If the Client notifies the Contractor in writing within the above-mentioned term that what has been delivered is not in accordance with the Agreement, the Contractor will arrange for repair or completion of the Services free of charge, or will arrange for crediting of the part to which the shortcoming relates, provided that, with due observance of the provisions of Article 8.3, the Client’s complaint is justified and the alleged defects or shortcomings are the result of circumstances attributable to the Contractor. The Client is obliged to give the Contractor the opportunity to do so.
   3. The Contractor will be entitled to conduct its own investigation into the nature, scope and cause of the alleged shortcomings, in which case the Client will be obliged to provide all assistance desired by the Contractor, failing which the Client will not be able to make any claims against the Contractor with regard to the alleged shortcomings.
   4. The Contractor will never be liable for loss of profits and/or other Indirect damage in the broadest sense of the word, unless there is intent and/or gross negligence on the part of its management and/or managerial subordinates, except if and in so far as this is contrary to provisions of mandatory law.
   5. The Contractor’s liability will never exceed the amount invoiced by the Contractor to the Client, excluding VAT, less any amounts already invoiced and still to be invoiced, whether or not in settlement of third parties engaged, or at least if the Contractor has taken out liability or other insurance in this regard, up to the maximum amount paid out by the insurer. In the event of partial deliveries, the obligation of the Contractor is furthermore limited to the price relating to that part of the Agreement with which the claim is most closely related.
   6. In the event of damage other than that referred to in Article 8.2, the Client must notify the Contractor In Writing without delay, but within 14 days of discovering the damage, failing which the Client will no longer be able to assert any claims against the Contractor in respect of that damage. Furthermore, in the aforementioned case, the Client will provide all cooperation to Contractor in any investigation into the nature, extent and cause of the alleged damage, at the risk of forfeiting any claims the Client may have against the Contractor in respect of such damage.
   7. If two or more Clients have jointly entered into an Agreement with the Contractor, they will be jointly and severally liable to the Contractor.
   8. The Contractor is never liable for errors and/or shortcomings in respect of the Services delivered if these shortcomings result from conduct and/or actions of External Suppliers and/or the Client and/or third parties engaged by them or on their behalf and/or (digital) items made available by External Suppliers and/or the Client and/or third parties engaged by them or on their behalf.
   9. Except in the case of intent and/or gross negligence as referred to in these General Terms and Conditions, and except in so far as this is contrary to provisions of mandatory law, the Client is obliged to indemnify the Contractor against all damage, in the broadest sense of the word, that may arise for the Contractor as a direct or indirect result of legal actions instituted by third parties in respect of or as a result of the performance of the Agreement between the Client and the Contractor. The Client indemnifies the Contractor against all claims as referred to above.

ENGAGEMENT OF THIRD PARTIES

1. 1. Unless the Parties have agreed otherwise In Writing, the Contractor will be entitled to subcontract work to third parties.
   2. If and in so far as a third party uses general terms and conditions and/or the third party is bound by general terms and conditions or regulations that apply to the mutual legal relationship between this third party and the Contractor, the general terms and conditions and/or regulations concerned also apply in the legal relationship between the Contractor and the Client. In such case, the other provisions of the Contractor’s General Terms and Conditions will remain in full force and effect.

SUSPENSION AND DISSOLUTION

1. 1. The Contractor is entitled to suspend or discontinue the provision of Services if the Client fails to fulfil any payment or other obligation arising from any Agreement between the Parties.
   2. If the Client, after having been given notice of default, fails to comply with what the Parties have agreed upon, or fails to do so in time and/or properly, the Contractor will be entitled to dissolve the Agreement In Writing, without delay and without the necessity of court proceedings. In that case, the Client will be obliged, with due observance of the provisions of these General Terms and Conditions, to compensate the Contractor for the costs incurred and amounts paid in advance by the latter, which will be immediately due and payable in that case and cannot be used to set off any claim which the Client may have against the Contractor. The foregoing will not affect the Contractor’s right to claim damages, including but not limited to the lost revenue.
   3. The Parties will be entitled to dissolve the Agreement In Writing with immediate effect and without further notice of default, if:
   4. the other Party applies for a suspension of payments;
   5. the other Party files for bankruptcy or is declared bankrupt;
   6. the other Party, being a private individual, is allowed to participate in a debt restructuring scheme under the Debt Restructuring (Natural Persons) Act (Wet schuldsanering natuurlijke personen, WSNP);
   7. the other Party offers a composition or judicial composition (under the Court Approval of a Private Composition (Prevention of Insolvency) Act (Wet Homologatie Onderhands Akkoord, WHOA), among other acts);
   8. the other Party ceases/suspends its business operations;
   9. the other Party liquidates its business;
   10. the other Party, being a private individual, dies or is placed under guardianship;
   11. the other Party changes its legal personality;
   12. post-judgment attachment is levied on the other Party’s assets or part thereof and this attachment is not lifted within 30 days.
   13. In the event of judicial or extrajudicial dissolution of the Agreement due to an attributable failure on the part of the Contractor, the Services already provided by the Contractor will not be undone. In the aforementioned case, the amounts owed by the Client at the time of dissolution will be immediately due and payable and may not be used to set off any claim that the Client has against the Contractor.
   14. If the Agreement is dissolved, the obligations already entered into by the Parties during the term of the Agreement will continue to apply in so far as they are applicable to the period until dissolution.

CANCELLATION

1. 1. The cancellation conditions for External Suppliers from the Standard Catalogue are as follows:
      • The Client has the right to cancel the provision of the Learning Activity free of charge up to 30 calendar days before commencement;
      • In the event of cancellation by the Client up to 14 calendar days before commencement, the Client will owe 50% of the costs of the Learning Activity;
      • In the event of cancellation by the Client within 14 calendar days before commencement, the Client will owe 100% of the costs of the Learning Activity;
      • Individual tests, scans and e-modules that have already been put to use cannot be cancelled;
   2. Premature termination of a Learning Activity is possible, but does not grant entitlement to a refund, in the broadest sense of the word. If, in the event of early termination, the Client has not yet paid all or part of the costs of a Learning Activity, the Client will be obliged to pay these costs to the Contractor in full.
   3. Postponing/rescheduling a Learning Activity at the Client’s request will be equivalent to cancellation and will be regarded/treated as a cancellation and subsequent new booking of a Learning Activity.
   4. A Learning Activity will be cancelled by the Client in accordance with the cancellation conditions of the External Supplier if it concerns an External Supplier from the Non-standard Catalogue. If this External Supplier applies less favourable cancellation conditions than those stated in Article 11.1, the Contractor will discuss this with the Client in advance.
   5. The Client will at all times be entitled to exclude External Suppliers from the Standard Catalogue.
   6. Cancellation must be made in the Course Portal. The cancellation date will be the date of notification of cancellation in the Course Portal.
   7. The Contractor is entitled to cancel a Learning Activity (whether or not from an External Supplier) prior to commencement if, for any reason,
      • it is not (or no longer) possible to offer the relevant Learning Activity;
      • it is not (or no longer) possible to purchase the licences and/or other items required for the relevant Learning Activity
      • licences for the relevant Learning Activity are revoked/terminated and/or
        items required for the relevant Learning Activity have not been/will not be delivered;
      • the Contractor’s purchase prices relating to the Learning Activity change (increase) and these price changes cannot be passed on to Client or the Client does not wish to pay them;
      • changes are made to the content of a Learning Activity and the Client does not agree;
   8. If a Learning Activity is cancelled by the Contractor in accordance with the provisions of Article 11.7, the Contractor will in no way be liable to pay any form of compensation to the Client, in the broadest sense of the word. In the event of cancellation in accordance with the provisions of Article 11.7, the Client is only entitled to a refund of any costs already paid by the Client in respect of the relevant cancelled Learning Activity.

INTELLECTUAL PROPERTY

1. 1. Unless explicitly agreed otherwise In Writing, the intellectual property rights to the materials used by the Contractor during the execution of the Agreement, including teaching materials, are vested exclusively in the Contractor, unless these property rights belong to another party that has allowed the Contractor to exercise these rights. The Contractor hereby declares and warrants to the Client that, with due observance of the foregoing, it is fully entitled and authorised in respect of the intellectual property rights referred to in this Agreement, that it has not granted any exclusive licence or other copyright powers to third parties or waived any copyrights in this regard, and that third parties cannot assert any rights in respect of the intellectual property rights.
   2. The Client only acquires a right to use the intellectual property rights in accordance with the Agreement concluded between the Parties. The Client’s right of use is non-exclusive, non-transferable, non-(sub)licensable and cannot be encumbered with any security right. The Client will not remove or alter (or allow a third party to remove or alter) any designation(s) regarding the confidential nature or intellectual property rights, such in the broadest sense of the word.
   3. The Contractor will indemnify the Client against any third-party action based on the allegation that the Contractor is infringing an applicable copyright or any other intellectual property right as referred to in this Framework Agreement, provided that the Client notifies the Contractor of this In Writing within 15 days after it has been called to account by a third party regarding any infringement of an applicable copyright or any other intellectual property right as referred to in this Agreement, sending copies of the documents.
   4. The indemnification referred to in Article 12.3 will not apply in the event that the Client has exercised the intellectual property rights in deviation from the Agreement and without the Written permission of the Contractor and/or has made any changes to them, or has had changes made to them by a party other than the Contractor.
   5. The Parties will be jointly responsible for any third-party claim against the Contractor and/or the Client regarding the content of intellectual property rights and if such claim concerns an infringement of the intellectual property rights with regard to any works created/developed in the context of this Agreement. If third parties announce or bring any claim against either Party in this regard, the Parties will determine in joint consultation whether and, if so, how to put up a defence against this, with the Contractor having a decisive vote. The costs arising from such claims, including the costs of defence and compensation to be paid to third parties, will be borne by the Contractor. However, if it is established in court that there is wilful misconduct or gross negligence on the part of the Client, all costs and loss shall be borne by the Client.
   6. The copyright to reports, proposals and other Written documents produced by the Contractor for the execution of the Agreement will be vested exclusively in the Contractor, unless explicitly agreed otherwise In Writing.
   7. The intellectual property rights of training resources and materials specifically produced by the Contractor for the benefit of the Client and/or compiled for the execution of the Agreement are vested exclusively in the Contractor, but the Client has the right to distribute these training resources and materials within its own organisation and to reproduce them for that purpose, provided that this is not done with the intention or effect of competing with the Contractor in any way. The Client is not entitled to use these training resources and materials to provide lessons themselves or to have them provided by third parties, either internally or externally and/or online.
   8. If the Client instructs the Contractor to develop materials specifically for the Client, the Contractor may, in consultation with the Client, transfer the intellectual property rights to such specifically developed materials to the Client. However, the Contractor will never be obliged to do so and cannot be obligated to cooperate in such transfer.
   9. In so far as the Client provides any data and/or information to the Contractor, the Client guarantees the correctness and completeness of the information and data provided by the Client to the Contractor and indemnifies the Contractor against any claims from third parties in respect of infringement of intellectual property rights or other rights of these third parties regarding the result (or use of the result) of what the Contractor has created in the context of the execution of this Framework Agreement. The Client also guarantees that the use of such data and/or information does not violate any statutory or other rules, regulations and/or guidelines.
   10. In so far as the Client itself places any teaching materials and/or content (texts, images/photos, videos, documents, etc.) on the Course Portal and/or shares them (within its own organisation), the Client hereby declares and warrants to the Contractor that it is fully entitled and authorised in respect of the associated intellectual property rights, that it has not granted any exclusive licence or other copyright powers to third parties or waived any copyrights in this regard and that third parties cannot assert any rights to the intellectual property rights, and the Client will indemnify the Contractor against any third-party action based on the allegation that any applicable copyright or other intellectual property right is infringed in relation to the teaching materials and/or content placed and/or shared by the Client itself on the Course Portal.

PROCESSING OF PERSONAL DATA

1. 1. The Client warrants to the Contractor that processing of personal data, including transfer to Contractor, meets the requirements of the General Data Protection Regulation (« GDPR ») and related laws and regulations. The Client indemnifies the Contractor against all claims, damages, costs and fines from authorities as a result of processing personal data in violation of the GDPR and related laws and regulations.
   2. The privacy statement of the Contractor can be accessed at www.archipel.academy under Contract – Privacy and Cookies (https://archipel.academy/nl/privacy).

ANTI-SOLICITATION CLAUSE

1. 1. Unless the Parties agree otherwise In Writing, the Parties will refrain, both during the term of the Agreement and for a period of one (1) year after its termination, from directly or indirectly approaching or hiring each other’s employees or employing them in any other way.  In the event of a breach of the provisions of this Article 14 by either Party and/or any legal successors, that Party will owe the other Party an immediately due and payable penalty, which will not be subject to mitigation, of €25,000, plus €500 for each day that the breach continues, without prejudice to the right to claim full compensation.

OTHER PROVISIONS:

1. 1. Any claims of the Client against the Contractor are not transferable and/or encumberable in any way. This Agreement has effect under property law pursuant to Section 83(2) of Book 3 of the Dutch Civil Code.
   2. In the event that these General Terms and Conditions are or will be drawn up in another language and a dispute arises about the content and/or meaning and or interpretation of any provision, the Dutch content and/or meaning and/or interpretation will always be decisive.
   3. The Client is obliged to notify the Contractor as soon as possible of facts and circumstances that may have a material negative impact (in a financial sense) on the Services to be provided by the Contractor to the Client, in order to give the Contractor the opportunity to offset any resulting damage. This leaves intact the Contractor’s right to claim damages, including but not limited to lost revenue.

APPLICABLE LAW AND DISPUTES

1. 1.    The legal relationship between the Parties is governed exclusively by Dutch law. The United Nations Convention on Contracts for the International Sale of Goods explicitly does not apply. All disputes arising out of or related to this Agreement, or
   2.  any Agreements arising from this Agreement, must be submitted to the competent court in the district in which the Contractor has its registered office.