Algemene voorwaarden

Terms & Conditions PEBex

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.

 

  1. Definitions

    1. In these Terms & Conditions, capitalized words and expressions have the meanings specified as referred to in this article
      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.

       

  2. General

    1. The applicability of purchasing or other conditions of the Client is expressly rejected.
    2. If any provision of these Terms & Conditions is void or voidable or is or becomes entirely or partly invalid for any other reason, the other provisions of these Terms & Conditions will remain in full force and effect. PEBex will replace the invalid provision with a provision that is valid and of which the legal consequences, having regard to the content and purpose of these Terms & Conditions, corresponds as far as possible with those of the invalid provision.
    3. PEBex can amend the provisions of these Terms & Conditions at all times. Any amendment of these Terms & Conditions will be announced at least one (1) month before it will take effect. If the Client does not agree to an amendment, it has the right to terminate (in Dutch: ‘opzeggen’) the Agreement as of the date the amendment would have entered into force.
  3. Offers and Agreements

    1. All offers of PEBex will remain valid for thirty (30) days, unless otherwise indicated by PEBex in writing.
    2. An Agreement will come into existence at the first of the following moments: the moment that the Client accepts the offer of PEBex or the moment when PEBex commences the performance of the Services laid down in the offer. In the latter case the offer will constitute the Agreement between the Parties.
    3. The Client warrants the accuracy and completeness of the information provided to PEBex by or on his behalf and upon which PEBex bases its offer. If these particulars prove to be inaccurate or incomplete, PEBex will have the right to amend the offer or to terminate the Agreement with immediate effect and without becoming liable towards the Client for such termination.
    4. If there are amendments or additions which result in a change to the scope of the agreed Services, for example through additional work, the extra activities arising therefrom will be paid for in accordance with the rates of PEBex that are applicable at the time of the performance of the work. In so far as a fixed price has been agreed for the Services, PEBex will on request inform the Client in writing about the financial consequences of the extra activities as referred to in this article.
  4. Services

    1. The Services provided by PEBex to the Client are set out in the Agreement and may in particular consist of i) conducting Research and/or related strategic coaching and consulting Services, and/or ii) giving presentations, training courses and/or workshops regarding the evidence based Customer Experience Management (‘CEM’) pursuant to the GROWTH program.
    2. The Services to be provided by PEBex, as well as the relevant parameters and requirements for such Services – if any – will be laid down in the Agreement or any other written document and may be amended by Parties from time to time. It is Client’s sole responsibility to ensure that such parameters and requirements are correct and up to date.
    3. PEBex will make every effort to provide the Services as laid down in the Agreement. All Services will be carried out on the basis of a best efforts obligation, unless and to the extent that PEBex has expressly warranted a result in the Agreement and the result concerned has been described in the Agreement so as to be sufficiently determinable.
    4. If the Services are rendered in phases, PEBex will be entitled to postpone the commencement of work for the purpose of any phase until the Client has approved the results of the preceding phase in writing. PEBex is subsequently allowed to send the Client invoices for the specific phase.
    5. No delivery period concluded between Parties can be considered to be final, unless specifically agreed otherwise in writing. If, therefore, PEBex does not timely provide a certain (part of the) Service, the Client shall send PEBex a notice of default, in which a reasonable period is included to properly deliver the Service.
  5. The GROWTH program

    1. As part of the Services, PEBex offers a one year training program pursuant to the GROWTH Program. The amount of Participants that can take part in the GROWTH Program is limited and PEBex has the right to exclude individuals if this limit is reached. The date and time of subscription of an individual to the GROWTH Program shall be used by PEBex to determine if this individual is enrolled to the next GROWTH Program course as a Participant. In other cases, the individual will be requested to join a later GROWTH Program course.
    2. A maximum of one Participant per Client can be enrolled in a GROWTH Program course at a time. PEBex shall be entitled to exclude an individual from a GROWTH Program course if, for such course, a Participant delegated by Client is already enrolled.
    3. Client acknowledges and accepts that the value of the GROWTH Program for a Participant is partly determined by the Participant’s efforts and input. Client shall be entitled to change the individual that is a Participant throughout a GROWTH Program course once. If Client wants to change the individual that is the Participant of the GROWTH Program course for a second time, PEBex shall be entitled to exclude such individual from participating in the course.
    4. PEBex shall announce the date of the first training day of the GROWTH Program by giving reasonable notice to the Client. PEBex is entitled to cancel or reschedule a training day by giving at least two months’ notice. Upon PEBex cancelling or rescheduling a training day, Client shall be entitled to cancel a Participant’s attendance within two week after PEBex giving notice thereof free of charge.
    5. PEBex shall be entitled to charge the following cancellation costs to Client in case Client cancels a Participant’s subscription to the GROWTH Program course:
      1. If the Client cancels at least 8 weeks before the first training day of the GROWTH Program course takes place: no cancellation costs;
      2. If the Client cancels between 8 and 4 weeks before the first training day of the GROWTH Program course takes place: 50% of the fees that are due for the Participant’s participation to the GROWTH Program course;
      3. If the Client cancels between 4 and 2 weeks before the first training day of the GROWTH Program course takes place: 75% of the fees that are due for the Participant’s participation to the GROWTH Program course;
      4. If the Client cancels within 2 weeks before the first training day of the GROWTH Program course takes place: 100% of the fees that are due for the Participant’s participation to the GROWTH Program course.
  6. Obligations of the Client

    1. In order for PEBex to correctly provide its Services, the Client shall fully, properly and promptly make available to PEBex (upon PEBex’s first request) all data, documents, equipment, materials and information concerning Participants, its organization (such as Key Performance Indicators and business results) and its goals, as well as give all cooperation deemed necessary for the execution of the Agreement, before as well as during the Agreement, such as providing PEBex access to the relevant employees within Client’s organization for the correct performance of the Services. The Client shall furthermore take all measures necessary to enable PEBex to perform the Agreement and make available the facilities necessary therefor. PEBex is entitled to suspend (further) execution of its Services until the moment all aforementioned information necessary to provide the Services have been provided by the Client.
    2. The Client acknowledges and accepts that the quality of the Services is highly dependent on the cooperation efforts rendered and information and presumptions provided by the Client. Client shall be fully responsible for timely providing the correct, complete and up to date information required and requested by PEBex to perform its Services, as well as for providing all cooperation reasonably requested by PEBex.
    3. The Client acknowledges and accepts that missing and/or tardily delivered information and/or insufficient cooperation of the Client can cause a delay in the provision of the Services by PEBex. PEBex is never liable for any damages and/or delay caused by the failure of the Client to comply with these obligations.
    4. The Client warrants that its employees, Participants and all other third parties that act under the Client’s control its comply with the terms of the Agreement and the Terms & Conditions.
    5. If, during the Agreement, use is made of IT systems and/or telecommunication facilities, including Internet, the Client will be responsible for the correct selection of the means required therefor and the timely and full availability thereof, except for facilities resorting under the direct use and control of PEBex. PEBex will never be liable for damages or costs due to transmission errors, breakdowns or non-availability of such facilities in the course of performing the Agreement.
    6. The Client shall at all times, free of charge, follow-up on PEBex’s reasonable instructions and requests for assistance in as far as necessary in relation to PEBex’s performance of the Services. The Client shall at all times comply with applicable law and regulations.
  7. Privacy

    1. In as far as PEBex processes personal data in relation the execution of the Agreement, PEBex will, at all times, do such in accordance with the provisions laid down in the General Data Protection Regulation (‘GDPR’).
    2. In as far as the Client processes personal data in relation the execution of the Agreement, PEBex will be regarded as processor in the sense of the GDPR.
    3. The Client guarantees to comply with all obligations incumbent on it pursuant to the GDPR and further guarantees that all data it provides to PEBex are collected lawfully. The Client indemnifies PEBex against all claims of any Participant and third party to this respect.
    4. If and to the extent required by the GDPR, PEBex and the Client will sign a processing agreement in the sense of article 28(3) of the GDPR.
    5. 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.

  8. Intellectual Property Rights

    1. 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.

    2. 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.

    3. The Client guarantees that it will never commercially exploit or otherwise distribute the Reports and/or the GROWTH Program outside its own organization.

    4. 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.

    5. 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.

  9. Indemnities and warranties

    1. 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.

    2. 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.

    3. 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.

    4. 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.

  10. Liability

    1. 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,=

    2. Direct damage in the sense of the foregoing clause is understood to mean exclusively:

      1. 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;

      2. 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;

      3. 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.

    3. 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.

    4. 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”).

    5. 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.

    6. 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.

    7. 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.

  11. Price and payment

    1. Unless stated otherwise all amounts mentioned by PEBex will be in Euro and exclusive of turnover tax (VAT) and other government levies/taxes.

    2. 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.

    3. 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.

    4. 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.

    5. 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.

    6. 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.

    7. 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.

    8. Complaints in relation to invoices and/or the Services will not suspend the payment obligations of the Client.

    9. 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.

    10. 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.

  12. Term and termination

    1. 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.

    2. 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.

    3. 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.

    4. 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.

    5. 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.

    6. 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.

  13. Confidentiality and acquisition of staff

    1. 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.

    2. 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.

    3. 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.

  14. Miscellaneous

    1. The Client is not entitled to transfer rights and/or obligations arising from the Agreement or these Terms & Conditions to a third party.

    2. 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.

    3. The Terms & Conditions, as well as any Agreement between PEBex and the Client will be subject to Dutch law.

    4. 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.