These Terms & Conditions apply to all offers and agreements to which PEBex is a party and govern PEBex’s provision of services and the results of these services. After acceptance, these Terms & Conditions form a binding agreement between the Client and PEBex. These Terms & Conditions can be downloaded and printed via www.pebex.nl.
|Agreement:||the agreement as concluded between PEBex and the Client, which contains the Services to be provided by PEBex and to which the Terms & Conditions apply;|
|Client:||the party with whom PEBex has concluded the Agreement;|
|GROWTH program||the program and all other and all related Materials and documents related to the so-called “GROWTH” model, which is developed by PEBex and serves as a basis to train participants on a case study basis to improve their ability to conduct evidence based customer experience management;|
|PEBex||the limited liability company PEBex B.V., having its statutory seat in Haarlem, the Netherlands and its office at (2011NB) at Nieuwe Gracht 3, registered with the Dutch Chamber of Commerce under file number 70161585;|
|Intellectual Property Rights:||all intellectual property rights and related rights, including copyrights, trademark rights, database rights, trade name rights and neighboring rights as well as rights to know-how;|
|Materials:||all surveys, questionnaires, interviews, documents, models, know-how, information and other materials developed by or on behalf of PEBex that are in any way related to the Services provided by PEBex, including – but not limited to – the GROWTH Program;|
|Participant:||an employee of Client that participates in the GROWTH Program training course as procured by Client from PEBex as part of the Services;|
|Party/Parties:||the Client and/or PEBex;|
|Report:||an overview of the results of a Research, regardless of the way of presentation thereof and based on which PEBex can give the Client advice with respect to its customer experience management objectives;|
|Research:||the research PEBex may conduct for the Client as part of the Services, with the purpose of providing an evidence based insight in the Client’s customer experience management, as well as giving starting points for the Client to improve such management;|
|Service:||all services provided by PEBex to the Client pursuant to the Agreement, which may include conducting Research and/or providing training and other services in relation to the GROWTH Program, as well as the results of these services, such as Reports and any advice based thereon;|
|Terms & Conditions:||these terms and conditions.|
All employees that act under the authority of the Client and that have access to (parts of) the personal data, for whatever reason, will maintain strict confidentiality with respect to the personal data they obtain and/or process, unless a statutory provision requires them to release these data. The Client is fully responsible for the compliance of this obligation by its employees.
All Intellectual Property Rights that are in any way related to the Services PEBex provides, including – but not limited to – all Materials, Reports and the GROWTH program, will remain vested in PEBex or its licensors, irrespective of whether the Client makes payment for the development or purchase thereof to PEBex.
If the Client complies in full with its obligations pursuant to these Terms & Conditions, PEBex will grant the Client a perpetual, personal, revocable, non-exclusive, nonsublicensable and non-transferable right use the Materials and Reports for internal purposes only.
The Client guarantees that it will never commercially exploit or otherwise distribute the Reports and/or the GROWTH Program outside its own organization.
The Client is never allowed to modify, reproduce, decompile or apply reverse engineering to Reports, Materials or other materials protected by Intellectual Property Rights vested in PEBex, unless stated otherwise by mandatory statutory law.
The Client grants to PEBex the irrevocable, royalty free and unlimited right to use the (aggregated) data resulting from the provision of Services, in as far as the Client is the rightful claimant with respect to these data. If such use is made in connection with commercial purposes, PEBex will request the Client for prior consent. If the Client fails to reply to this request of PEBex, the Client is deemed to have agreed to this commercial use of the result of the Services provided by PEBex, for that specific occasion only. PEBex shall in all cases be entitled to use aggregated and anonymized data and insights for metastudies and/or (scientific) publications.
PEBex endeavors to maintain the highest possible quality standards when providing its Services, but does not guarantee the correctness, integrity, reliability or completeness of any result or consequence of any Service it provides, nor the fitness of the results of the Services for the goals determined by the Client. The Client indemnifies PEBex against all claims of Participants and/or any third party relating to any decision made or legal act conducted by the Client on the basis of the Services.
The Client guarantees the correctness, completeness and actuality of all information, materials, software, procedures and instructions which the Client provides to PEBex for the implementation of the Agreement, both before entering into the Agreement and during the performance thereof.
The Client guarantees that there are no rights of third parties which preclude making information, equipment, software, data or other materials available to PEBex for the purpose of use, adaptation, installation or incorporation by PEBex. The Client indemnifies PEBex against all damage and costs which PEBex may suffer or incur due to a claim by a third party based on the allegation that such making available, use, adaptation, installation or incorporation infringes any right of that third party.
The Client indemnifies PEBex against all damage and costs, including – but not limited to – damage resulting from (alleged) infringements of Intellectual Property Rights, claims by third parties (including (semi-)governmental authorities), collection costs, the statutory commercial interest, loss of profits, penalties incurred and legal fees, which PEBex incurs or which result from (i) attributable breach of the Agreement of the Terms & Conditions by the Client, (ii) any action of the Client in the performance of this Agreement or (iii) an unlawful act.
The aggregate, maximum, total liability of PEBex due to an attributable breach of its obligations and/or on account of an unlawful act will be limited to compensation for direct damage incurred by the Client, up to the amount paid oud by PEBex’s professional liability insurance or, if no amount is awarded, the total sum of all invoices actually paid by Client to PEBex under the relevant Agreement under which the liability has occurred. In no event will PEBex’s liability exceed the total amount of €10.000,=
Direct damage in the sense of the foregoing clause is understood to mean exclusively:
reasonable costs which the Client would need to incur to make the performance of PEBex correspond to the Agreement; such damage will however not be compensated if the Agreement is terminated by or at the suit of the Client;
reasonable costs incurred in assessing the cause and the extent of the damage, in so far as the assessment is related to direct damage as referred to in these Terms & Conditions;
reasonable costs incurred in preventing or limiting damage, in so far as the Client proves that such costs led to a limitation of direct damage as referred to in these Terms & Conditions.
Any liability of PEBex for damage other than direct damage (“indirect damages”), including – but not limited to – consequential damages, loss and/or damage of data, unavailability or non-performance of software, hardware and/or other ICT infrastructure, loss of profits, lost sales and reputational damages, will be excluded.
The restrictions mentioned in the preceding paragraphs of this article will lapse if and in so far as the damage is the result of intentional or wilful recklessness on the part of PEBex or its managers (“own actions”).
The liability of PEBex due to attributable breach of an Agreement will in all instances arise only if the Client gives proper written notice of default, whereby a reasonable period within which the attributable breach may be remedied is stipulated, and PEBex after this period still fails in the performance of its obligations, except in the case where the failure cannot be remedied. The notice of default must contain a description of the breach that is as complete and detailed as possible, to enable PEBex to respond adequately.
The Client’s right to claim damages pursuant to this article 10 shall automatically lapse if it fails to notify PEBex within 12 months after the damages have occurred or, if that moment is later, Client has become aware of the damages. PEBex is never liable for damages occurred from any decision made or legal act concluded by the Client on the basis of the provided Services or a Report.
If the provision of Services by PEBex depends on the cooperation of any third party or the availability of a service, PEBex is never liable for the absence of this cooperation or the non-availability of these services.
Unless stated otherwise all amounts mentioned by PEBex will be in Euro and exclusive of turnover tax (VAT) and other government levies/taxes.
Unless expressly stated otherwise cost estimates and budgets will only serve for purposes of information and no rights or expectations can be derived therefrom. PEBex will only be obliged to inform the Client when a cost estimate or budget has been exceeded if the Parties have so agreed.
PEBex will in its customary manner give the Client insight into the work carried out, hours worked and costs for the Client, in as far as these specifics are not given in the Agreement.
PEBex will be entitled to adjust the applicable prices and rates upon written notice of at least three months. PEBex will in any event have such right to adjust prices when the price increase is the result of one of the following factors: i) increase of taxes or other levies and/or government rights, ii) changing exchange rates, iii) increase of wages, transport costs and/or purchase prices.
All amounts relating to the Services will be invoiced as follows: 50% up front and 50% after provision of 50% of the Services, unless otherwise agreed between Parties. Payments must be made within 30 days of the invoice date, unless otherwise agreed in writing or otherwise stated on the invoice.
If after the expiry of this period payment (in full) has not yet been received by PEBex, the Client will immediately be in default without prior demand or notice of default being required. As from the time of default the Client will be liable for interest equal to the statutory commercial interest rate.
If the Client despite demand or notice of default still fails to pay the claim, PEBex may hand over the claim for collection. In that event all costs incurred by PEBex in connection with overdue payments, such as legal costs and extra-judicial and judicial costs, including the costs of legal assistance, bailiffs and collection agencies, will be payable by the Client.
Complaints in relation to invoices and/or the Services will not suspend the payment obligations of the Client.
PEBex will be entitled to suspend the fulfilment of its obligations until such time as the Client has fully complied with all its payment obligations.
If, at the request of or with prior consent from the Client, PEBex has performed work or rendered other performance which goes beyond the substance or scope of the agreed Services, the Client shall pay for that work or performance according to PEBex’s usual rates. PEBex shall never be obliged to satisfy such a request, and it may require that a separate written agreement be concluded.
Unless otherwise agreed, the Agreement is terminated after the provision of the agreed Services and after the Client has paid all amounts due to PEBex.
If the Parties have concluded a continuing performance contract, such as a Participant’s participation in the GROWTH Program, this Agreement is – unless agreed otherwise – concluded for the duration of one (1) year. Unless agreed otherwise, the Agreement is automatically terminated after this initial term.
Each Party will be entitled to terminate (‘ontbinden’) the Agreement in full or in part in the event of the other Party being declared bankrupt or granted a moratorium, as well as in the event of the closing down or liquidation of the business of the other Party other than for purposes of reconstruction or merger of enterprises, or if the controlling interest in th company of the other Party changes.
Termination of the Agreement on the ground of an attributable breach will only be permitted following a written notice of default that is as detailed as possible whereby a reasonable period is stipulated within which the breach may be remedied, unless otherwise stipulated in these Terms & Conditions or otherwise prescribed by law.
In the event of termination of the Agreement, there will be no reversal or cancellation of that which PEBex has already delivered and/or carried out nor the related obligation to make payment, unless the Client proves that PEBex is in material default in respect of that part of the performance. Amounts invoiced by PEBex prior to termination in respect of that which PEBex has already performed or delivered properly in accordance with the Agreement will remain payable in full subject to the provisions of the preceding sentence and will become due and payable at the time of the termination.
If the Agreement ends for any reason whatsoever, the Client will delete from its systems and return to PEBex all (copies of) Materials and/or other deliverables developed and/or provided by PEBex under the terms of the Agreement, with the exception of the Report(s) drafted for the Client.
The Client will ensure that all information received from PEBex – including, but not limited to, Materials, Reports, data, models, designs, documentation and software – which the Client knows or should reasonably know to be of a confidential nature, remains confidential. The Client will only use this information for the purpose for which it was provided and will not show it to third parties, make it public or make it otherwise available. The Client will take all necessary measures to protect the confidential character of the information in the same manner and to the same degree as the confidential information of the Client itself.
The Client is only entitled to disclose information within the meaning of the preceding provision if a statutory obligation or binding court order requires the Client to do so. After the termination of the Agreement, for whatever reason, the Client will immediately return all Materials and other confidential information to PEBex.
The Client will not be entitled, during the term of the Agreement nor for a period of one year after termination thereof, to employ an employee of PEBex who is or was involved in the implementation of the Agreement or to otherwise use such employee’s services, directly or indirectly, unless PEBex has expressly consented thereto in writing.
The Client is not entitled to transfer rights and/or obligations arising from the Agreement or these Terms & Conditions to a third party.
PEBex is entitled to transfer its claims to payment of compensation to a third party. PEBex is furthermore entitled, although only with the consent of the Client, to cause the Agreement to be carried out in full or in part by third parties or at any rate involve third parties in the implementation of the Agreement. Such consent will not be withheld on unreasonable grounds.
The Terms & Conditions, as well as any Agreement between PEBex and the Client will be subject to Dutch law.
To the extent that national or international rules of law do not prescribe mandatory conditions to the contrary, any and all disputes arising from or related to an Agreement concluded under these Terms & Conditions, or Agreements that are derived therefrom, will be brought before the competent court in the district of Amsterdam.