General terms and conditions

GENERAL

These are the general These are the general terms and conditions of Mind Work Productions B.V. and Mind Work Institute B.V. (hereinafter "MW" or "we"). In these general terms and conditions, the following underlined definitions in both singular and plural have the meanings placed after them:

Terms and conditions: these general terms and conditions.

Services: The work performed by MW consisting, inter alia, of offering one-day/multi-day interventions, training sessions and/or workshops, offering coaching and/or a coaching programme. This work is carried out by project managers, change agent(s), trainer(s) and/or coach(es).

Location: the location specified in the Agreement where the relevant Service has been or will be performed by MW.

Additional work: the work performed by MW on behalf of the Client which falls outside the content and/or scope of the work and/or performance initially agreed in the Agreement and/or involve changes to it.

Mind Work Productions B.V.: one or more of the following private limited companies as further defined in the Proposal: Mind Work Productions B.V. registered in the trade register of the Chamber of Commerce under number 63701561.

Mind Work Institute B.V.: one or more of the following private limited companies as further defined in the Proposal: Mind Work Institute B.V. registered in the trade register of the Chamber of Commerce under number 750371571.

Parties: MW and the Client.

Client: the natural or legal person who gives MW an order to perform Services.

Agreement: The agreement between MW and the Client for the provision of one or more Services.

Timing: the date and/or time specified in the Agreement when the relevant Service has been or will be performed by MW.

Proposal: MW's written proposal to the Client to provide Services.

1. APPLICABILITY
  1. These Terms and Conditions shall apply to all legal relationships between MW and the Client, including the Proposal and the Agreement and all offers, quotations, assignments, legal relationships and other agreements, where MW offers or undertakes/will undertake to perform Services for the Client
  2. Deviations and additions to the General Terms and Conditions and/or the Agreement shall only be valid if explicitly confirmed in writing by MW. 
  3. If any provision of the General Terms and Conditions is void or is annulled, this will not affect the applicability of the other provisions of the General Terms and Conditions. MW will adopt new provisions in these circumstances, adhering as far as possible to the purpose and/or scope of the void/annulled provision.
  4. MW hereby expressly excludes the applicability of any general (purchase) conditions of the Client.
  5. The General Terms and Conditions may be unilaterally amended and/or modified by MW at any time. The amended and/or modified General Terms and Conditions shall apply to all Services to be provided by MW which are performed after the Client has been given a period of at least 7 days to familiarise itself with the amended and/or modified General Terms and Conditions.v
  6. The Terms and Conditions will be sent to the applicant thereof upon request and can also be downloaded on the website of Mind Work Productions B.V. and Mind Work Institute B.V (www.mindworkproductions.com and www.mindworkinstitute.com) 
  7. The records kept by MW (including e-mails and digital scans of, for example, Agreements or invoices) shall serve as full evidence against Client. This is an evidentiary agreement.
2. FORMATION OF THE AGREEMENT
  1. The Agreement is concluded when a Proposal is explicitly (including an (online) acceptance via Perfect View and/or by e-mail and/or by letter and/or orally) or implicitly accepted by the Client. The Proposal is also accepted by the Client by receiving or taking delivery of all or part of the Service(s) or by MW having commenced performance of the Services.
  2. A copy of the Agreement may be requested by Client from MW.
  3. Obvious mistakes or obvious errors in the Proposal or the Agreement shall not bind MW. 
  4. All Agreement(s) entered into by Client are binding and cannot be revoked by Client.
  5. All offers, quotations and Proposals of MW, whether made on its website, by special offer, in price lists, trade journals, staff notices or otherwise, are without obligation and may be withdrawn by MW at any time.
3. PERFORMANCE OF THE AGREEMENT
  1. MW shall determine the manner in which, and the person(s) by whom, the Services are to be performed. MW shall at all times be entitled to replace the person(s) with person(s) of equal or comparable expertise. All assignments to MW shall be accepted and performed exclusively by MW. Sections 7:404 BW, 7:407 paragraph 2 BW and 7:409 BW shall not apply.
  2. The Client undertakes to provide MW and its staff with all information and all resources in a timely manner, which are necessary or reasonably desirable for the proper performance of the agreed Services.
  3. Client is not authorised to adjust and/or move the Location and/or Time of the Services except with MW's prior written approval. MW may attach additional conditions to this prior written approval including adjusting the fee(s) and/or charges payable by the Client.
  4. Client is responsible for the timely presence of Client (and/or its participants) at the Venue and Time. If MW cannot, or cannot fully, perform the Services due to the absence of the Client (and/or its participants) as stipulated above, MW shall be entitled to charge the Services directly and in full to the Client. 
  5. MW shall have exclusive authority to determine whether Additional Work exists and/or the services and/or performances requested are within the Agreement. If MW performs Additional Work at Client's request or with Client's prior consent, MW shall be entitled to charge for the Additional Work on the basis of the rates and amounts applied by MW at the time the Additional Work is performed.
4. PRICE AND PAYMENT
  1. Client shall owe MW the fees and charges per Service agreed in the Agreement. The fees and costs are charged per the period specified in the Agreement. This is done via an invoice. 
  2. All fees and charges payable to MW are, unless expressly stated otherwise, stated in euros, excluding VAT and other levies. 
  3. In the case of fees payable periodically, MW is authorised to adjust such fees from time to time. 
  4. Payment by Client of the fees and expenses due to MW shall be made, without Client being entitled to any deduction, discount or set-off, within 30 days of the invoice date, unless otherwise stated in the Agreement.
  5. If the Client has not paid within the period mentioned under Article 4.4, MW shall be entitled, without further notice of default and without prejudice to MW's other rights, to charge the Client statutory interest from the due date until the day of full payment to MW. In the case of a commercial agreement pursuant to Article 6:119a of the Dutch Civil Code, a contractual interest rate of 2% per month or pro rata part of a month shall apply -instead of the statutory interest rate. 
  6. All judicial and extrajudicial (collection) costs reasonably incurred by MW as a result of Client's failure to fulfil its payment obligations shall be borne by Client. In the case of a commercial agreement pursuant to Article 6:119a of the Dutch Civil Code, the aforementioned costs shall amount to at least 15% of the invoice amount (with a minimum of EUR 250) and EUR 30 for administration costs.
5. LIABILITY
  1. If it is established at law or otherwise that MW can be held liable towards the Client to pay a sum of money in connection with a default in the (performance of) the Agreement, or on the basis of an unlawful act, or for any other reason - including a possible payment obligation on the basis of an obligation to undo, or a payment obligation pursuant to Section 6:230 and/or Section 6:271 of the Dutch Civil Code - the following shall apply:

    (a) All legal relationships between Client and MW shall be governed by Dutch law.
    b) in the event that there is no (cover for the) liability insurance or MW's liability insurance - for whatever reason - does not pay out, MW's liability, including any payment obligation under section 6:230 of the Civil Code and/or section 6:271 of the Civil Code:

    - under a specific Agreement shall be limited to the amount of up to a maximum of the three most recent invoices paid by Customer under such secondment together;
    - on other grounds shall be limited to an amount of €5,000 per claim; whereby MW's total liability shall at all times be limited to an amount of €1,250,000.
  2. All subordinates of MW may invoke the above provision against the Client and, if necessary, third parties on an equal footing with MW.
  3. The aforementioned limitation does not apply in case of intentional or deliberate recklessness of MW or MW's management.
  4. Damage for which MW may be held liable must be reported to MW in writing as soon as possible but no later than 30 days after its occurrence, on pain of forfeiture of the right to compensation for such damage. This period shall not apply if the Client can make a plausible case that the damage could not be reported earlier for good reason.
  5. MW shall not be liable for damages in the event of force majeure. Force majeure means in any case, but is not limited to, illness and/or involuntary absence of employees or persons engaged by MW, shortcomings of third parties engaged by MW, strikes, government measures, (temporary) inaccessibility and/or inaccessibility of the Location, network attacks including DOS or DDos attacks, facilities not present and/or functioning at the Location, interruptions or failures in the power, internet and/or telecommunications facilities and fire and other calamities.
  6. To the extent not otherwise provided for in the Agreement or the General Terms and Conditions, rights of action and other powers of the Client vis-à-vis MW, on any basis whatsoever, shall in any event expire one (1) year after the moment the Client became aware or could reasonably have become aware of the existence of these rights and powers.
  7. If Client imputably fails to perform the agreements that follow from this Agreement and/or acts unlawfully towards MW, Client shall be obliged to compensate MW for the damage suffered and to be suffered by MW, including the actual costs of legal assistance and costs incurred for engaging third parties.
6. (INTERIM) TERMINATION OF THE AGREEMENT 
  1. MW may terminate (cancel) the Agreement in full (all Services) or in part (one or more Services) by means of a written statement and/or (telephone) communication to the Client at the latest one week before the Time of the relevant Service(s), unless the Client and MW have agreed otherwise in the Agreement.
  2. Client may only cancel (cancel) the Agreement in its entirety (all Services) or in part (one or more Services) under the obligation of Client to at least satisfy MW:
    2.1. if the Agreement is terminated between 0 and 10 working days prior to the Time of Service(s): 100% of the invoice amount for the relevant terminated Service(s); and/or
    2.2. if the Agreement is cancelled between the conclusion of the Agreement and 10 working days prior to the Time of Service(s): 50% of the invoice amount for the relevant cancelled Service(s).
  3. A notice of termination by the Client as referred to in this Article shall have effect vis-à-vis MW only to the extent that the notice of termination is given by means of a written statement to MW and with reference to the relevant power of termination. Section 7:408(1) of the Civil Code shall not apply.
  4. If the Client partially terminates the Agreement, MW is authorised to qualify such termination as a termination of all Services under the Agreement, if reasonable continuation of the non-cancelled Services cannot be required of MW.
  5. In the event of a force majeure as referred to in Article 5.3, MW may, of its own accord or at the Client's request, terminate the Agreement in respect of the part not yet performed by means of a written declaration and refund to the Client of the amounts already paid on behalf of the part of the Agreement not yet performed.
  6. To the extent not otherwise provided in these General Terms and Conditions or the Agreement, a Party shall only be entitled to dissolve the Agreement (i) if the other Party imputably fails to comply with a material obligation under the Agreement and the other Party is in default in that respect (as referred to in section 6:81 DCC), (ii) if the other Party is unable to pay its debts and/or is in the state of having ceased to pay, (iii) if a receiver, administrator or liquidator is appointed, (iv) if the other Party enters into debt restructuring. A dissolution of the Agreement shall be effected by means of a written declaration of dissolution to the other Party.
  7. MW retains a right to payment of invoices for Services already rendered and any Services still to be rendered by agreement upon termination of the Agreement under clauses 6.1 to 6.6.
  8. Without prejudice to MW's right to claim payment of invoices, the Client shall be obliged to compensate all damages and costs incurred by MW as a result of a termination of the Agreement by the Client. Such damages and costs shall include in any case, but not exclusively, all costs incurred by MW in connection with the Services, investments made, obligations already entered into and loss of capacity utilisation.
  9. All rights and obligations arising under the Agreement which by their purport are intended to survive termination of the Agreement shall continue in full force between MW and the Client after termination.
7. NON-SOLICITATION
  1. The Client shall during the term of the Agreement and for a period of twelve (12) months thereafter, not hire or approach any persons employed by/for or connected to MW to enter into the Client's service, directly or indirectly, temporarily or otherwise, or to perform work directly or indirectly on the Client's behalf, whether or not as an employee. If this provision is violated, Client shall be liable to pay an immediately due and payable penalty in the amount of EUR 50,000 for each violation, without prejudice to MW's right to claim its actual damages, whether or not in addition.
8. INTELLECTUAL PROPERTY
  1. Unless expressly agreed otherwise in writing between the Parties, all intellectual property rights, including but not limited to, copyrights, trademark rights, trade name rights and rights to (technical) know-how in respect of the Services and/or data files, (visual) materials, analyses, reports, quotations, designs, sketches, models, and the like (collectively referred to as "Materials") developed or made available to the Client pursuant to this Agreement shall be vested exclusively in MWP or its licensors.
  2. If the Parties have agreed in writing that a right of intellectual property in respect of a Service developed specifically for Client or Materials developed specifically for Client will be transferred to Client, this shall not affect MWP's right to use the components, general principles, ideas, designs, documentation, works, protocols, standards and the like underlying such development for other purposes, either for itself or for third parties, without any restriction. 
9. CONFIDENTIALITY AND PROCESSING OF PERSONAL DATA
  1. The Parties shall keep confidential and not disclose information relating to the Agreement or related matters and the negotiations prior to the Agreement. The Parties furthermore undertake vis-à-vis each other to maintain confidentiality regarding non-publicly known information regarding the financial, commercial or business (technical) state of the other Parties, which includes business secrets of another Party that come to their knowledge during the term of the Agreement.
  2. The confidentiality obligation of this article does not apply if and to the extent that:
    2.1 disclosure is required by law, any regulation of a government-recognised stock exchange or a binding decision of a court or other public authority;
    2.2 disclosure is necessary to assert rights under this Agreement in legal proceedings;
    2.3 the information has come into the public domain without any fault of the Party concerned or person associated with it.
  3. In the context of performance of the Services, MWP may process personal data of contacts and participants from the Client. To this end, please refer to the privacy statement on the website at www.mindworkproductions.com / www.mindworkinstitute.com
10. OTHER PROVISIONS
  1. MW is authorised at all times to suspend the performance of all its obligations until all claims against the Client have been paid in full and/or until the force majeure referred to in Article 5.3 has ended.
  2. Parties shall reciprocally refrain from (making and/or allowing) negative statements on (social) media (platforms), including but not limited to Facebook, Linkedin, Twitter, Youtube, Instagram, weblogs, (internet) forums, magazines, newspapers, television, radio and related services and/or products, which are (or may be) harmful in any way to (the good name of) Parties or any of them.
11. APPLICABLE LAW AND CHOICE OF FORUM
  1. All legal relationships between Client and MW shall be governed by Dutch law.
  2. All disputes relating to legal relations between Client and MW shall fall within the exclusive jurisdiction of the competent court in Amsterdam.