Article 1: Applicability
1.1 These general terms and conditions shall apply to all offers from and each agreement concluded with Performance Solutions BV, hereinafter to be referred to as PS, and the brands of PS (Hospitality Academy, Hospitality Marketing Partners and HSMAI University) in the context of its business operations, unless otherwise agreed in writing.
1.2 All articles shall apply to all agreements concluded by PS.
1.3 Any provision departing from these general terms and conditions shall be agreed upon in writing.
1.4 If one or more provisions of these general terms and conditions or any agreement concluded with the client prove to be null and void or voidable, the remaining provisions from these general terms and conditions or such agreement between the parties shall not be prejudiced.
1.5 In these general terms and conditions, a client shall be taken to mean any party with whom PS enters into an agreement, or who contacts PS to that effect, therefore also PS if it is the buyer of the product or the service.
Article 2: Offers and Quotations
2.1 Any quotation submitted by PS and any offer made by PS shall be without obligation, unless it contains a deadline for acceptance. Agreements shall bind PS only when confirmed in writing by PS. If PS fails to do so and commences performance of the agreement, PS shall be deemed to have confirmed the agreement.
2.2 PS reserves the right to charge the client for any costs incurred in submitting the quotation.
2.3 The client must provide PS in due time with any information it needs for making this quotation.
2.4 The client must observe strict confidentiality in respect of the details included in the quotations submitted by PS.
Article 3: Agreement
3.1 If the agreement is concluded in writing, it shall become effective on the date the agreement is executed by PS, or on the date PS sends the written order confirmation.
3.2 Verbal commitments by and agreements with PS employees shall not bind PS, unless confirmed in writing by authorised PS officials.
3.3 Amendments to the original agreement shall only bind PS if and after they have been laid down in writing.
3.4 PS shall be entitled to make – at its discretion – minor changes to the services to be carried out, if it deems necessary, without providing the client with any basis for claims.
Article 4: Price
4.1 All prices stated by PS shall be exclusive of turnover tax and any other charges imposed by the government.
4.2 If one or more cost factors is increased after the date of the execution of the agreement, PS shall be entitled to increase the agreed price accordingly, on the understanding that the changed price does not become effective within three montPS of the conclusion of the agreement.
Article 5: Payment
5.1 Payments shall be made within the deadline stated in the invoice or otherwise within 14 days of the date of the invoice.
5.2 PS shall at all times be entitled to require an advance payment or other form of security from the client.
5.3 Payments shall be made in cash and without discount or setoff into a bank or giro account to be designated by PS.
5.4 Any payment made by the client shall first be used to settle any interest payments and costs due and subsequently the invoice outstanding longest, even if the client has stated that the relevant payment relates to an invoice of a later date.
5.5 If a payment is not made in time, the client shall owe the statutory interest plus two per cent on the outstanding amount, whereby part of a month shall count as a full month.
5.6 If a payment is not made in time, the client shall owe PS any debt collection cost reasonably incurred by PS, to be calculated in accordance with the debt collection rate used by the Dutch Bar Association (Nederlandse Orde van Advocaten).
Article 6: Engaging third parties
6.1 PS shall at all times be entitled to engage third parties for the performance of the agreement concluded with the client, without requiring the client’s approval.
Article 7: Liability for temporary staff
7.1 The client shall guarantee that it will meet its obligation to withhold and pay social security contributions and taxes for any of its employees made available to PS. Furthermore, the client shall guarantee that it will only make available freelance workers to PS who have signed an independence certificate, to be issued to PS at its request. As proof, the client shall forward copies of the relevant certificates to PS within a reasonable period of time.
7.2 Should PS be asked by or on behalf of the Dutch Tax Authorities and/or the Lisv for payment of wage tax or social security contributions, considering that the client is obliged to withhold such amounts in respect of the freelance workers under the social security legislation, the client shall bear all costs thereof and shall compensate PS immediately for any damage sustained by PS as a result.
7.3 The costs as referred to in paragraph 2 of this article shall be taken to mean (inter alia): the withholdings payable under the Dutch Wages and Salaries Tax Act (Wet op de Loonbelasting) including increases and/or penalties, the social security contributions levied, an ex officio increase pursuant to section 12 of the Social Security (Co-ordination) Act (Coördinatiewet Sociale Verzekeringen (CSV)), as well as the relevant procedural and consultancy costs.
7.4 The client shall refrain from relying on PS, in any form and at any time whatsoever, both in court and otherwise, in respect of the withholdings under the Dutch Wages and Salaries Act, as well as in respect of the levy of social securities contributions for any employees and/or freelance workers hired by the client.
7.5 The client shall be obliged to submit evidence, at the first request of PS, showing that the quarterly payments of social security contributions have been made to the relevant body in respect of the employees hired.
7.6 Whenever this article refers to PS, it shall also mean the client in the sense of the buyer of the PS services/products.
7.7 The above paragrapPS of this article shall apply vis-à-vis the client in the sense of the buyer of PS services/products, in addition to the other provisions of these general terms and conditions, in particular, without being limited to it, the provisions of article 14.
Article 8: Delivery time
8.1 All (delivery) times stated by PS have been established to the best of its knowledge on the basis of information known to PS at the time the agreement was concluded.
8.2 The delivery times stated shall be observed as much as possible, but any delay in the delivery time shall not result in PS being in default. If a delivery time is about to be delayed, the parties shall consult one another on the situation arisen.
Article 9: Retention of title
9.1 The title of any product made by PS under any order shall, without prejudice to the provisions of article 11 of these terms and conditions, be transferred to the client on the day on which the price, interest, costs and damages in respect of the goods delivered including any previous deliveries have been paid in full.
Article 10: Retention
10.1 If PS retains goods of the client in its possession, it shall be entitled to retain those goods until all costs incurred by PS for the performance of any orders by the same client have been paid, regardless of whether these orders relate to the above or other goods of the client, unless the client has provided adequate security for those costs.
Article 11: Intellectual and Industrial Property Rights
11.1 The ownership of all intellectual property rights and copyrights in respect of all quotations, courses, training courses, course material, designs, illustrations, software etc. developed or made available under the agreement rests with PS or its licensors.
11.2 The client shall only be granted a user right in respect of the items referred to under 1 of this article, unless otherwise agreed in writing between the parties.
11.3 The client shall not be permitted to change or multiply the (contents of the) items referred to in paragraph 1 of this article in any way whatsoever.
Article 12: Force majeure
12.1 Neither party shall be obliged to meet any obligation if it is prevented from doing so due to a situation of force majeure. Force majeure shall be taken to include any non-attributable shortcoming on the part of an PS supplier.
12.2 When the situation of force majeure has lasted for more than 90 days, the parties shall have the right to terminate the agreement by dissolving it in writing. In that case, anything performed under the agreement concluded between the parties shall be settled on a pro rata basis, without the parties otherwise owing each other anything.
Article 13: End of Agreement
13.1 PS may, unless the parties agree otherwise in writing, terminate the agreements concluded by it by sending a registered letter with due observance of a notice period of one month.
13.2 The agreement concluded with the client can be terminated by PS with immediate effect if:
- the court has ordered the involuntary liquidation/bankruptcy of the client, the client is placed under guardianship or has been granted a moratorium on payments;
- the client is a legal entity and said legal entity is dissolved;
- PS has become aware of facts and/or circumstances, once the agreement is concluded, forming serious reasons to believe that the client will not meet its obligations under the agreement;
- the client runs its business contrary to (statutory) rules or government regulations;
- the client refuses to furnish the security required by PS;
- the client does not meet its obligations under the agreement concluded with PS, even after having been given a notice of default in that respect.
13.3 If any of the situations referred to in paragraph 2 of this article occurs, any amounts owed by the client to PS shall become immediately due and payable.
Article 14: Liability / indemnification
14.1 PS shall not be liable for any damage or loss sustained by the client, unless this damage or loss is the consequence of intent or gross negligence on the part of PS or any individual hired by it for which it is liable.
14.2 The liability of PS shall in any case be limited to the amount to be paid in the relevant case by its insurer.
14.3 Any advice given by PS shall be without obligation.
14.4 Any work carried out by PS, including the advice given, not leading to the result envisaged by the client shall be for the risk of the client and PS shall not be liable.
14.5 The client shall indemnify PS in court and otherwise against any third-party claim that have any bearing on the work carried out by PS in respect of the instruction given.
14.6 In respect of any instruction to adapt an existing product, the client shall be liable vis-à-vis any copyright holder.
Article 15: Complaints
15.1 Complaints must be made within eight days, after which term any claim upon PS shall lapse. Complaints must be made in writing, clearly stating the reason of the complaint.
15.2 Filing a complaint shall not release the client from its payment obligation vis-à-vis PS.
Article 16: Social events
16.1 Several training courses arranged by PS have one or more social and relaxing events.
16.2 Participants shall take part in the social event of a training course at their own risk. The client shall inform the participants thereof in advance. PS can never be held liable for any injury sustained by a participant during a training course or a social event.
Article 17: Evaluation
17.1 At the end of each training course, PS shall provide the participants with an evaluation form.
17.2 After each training course, the client shall receive a summary of the evaluations handed in by the participants.
Article 18: Number of participants per training
18.1 PS shall set a maximum number of participants per group for the training courses to be arranged by it. The client shall be informed of this maximum when concluding the agreement.
18.2 At the latest one month before the start of any training course, the client shall inform PS of the number of participants in writing.
18.3 Entries of participants shall be registered in the order they are received.
18.4 If a participant is unable to attend, the client shall owe the full price.
18.5 If a participant is unable to attend, the client shall be entitled to send a replacement. PS reserves the right to refuse such replacement, if the level of know-how and/or experience does not correspond with the training course and/or group. The client must inform PS about any replacement at the latest