GENERAL TERMS AND CONDITIONS OF SERVICES AND PRODUCTS

Most recent version October 2023

1.1. Contractor. INSTRKTIV B.V. trading under INSTRKTIV (https://www.instrktiv.com) (“Contractor”, “we”, “us” and “our(s)”) with its registered address: Kraanspoor 7H2, Amsterdam. Registered with the Chamber of Commerce in the Netherlands under number: 83863559 and tax ID: NL863013922B01.

 1.2. Application. These General Terms and Conditions (“Terms”) shall apply to all our offers, agreements, quotations, appendices, Service Level Agreements, and any other transaction, whether entered into electronically, in writing or orally. These Terms and Conditions apply to all agreement(s) entered into with respect to the delivery of products and/or performance of services by Contractor to the other party (“Client”). Contractor and Client are individually referred to as “Party” and jointly “Parties.” 

1.3.  Client. Where these Terms and Conditions refer to Client this means any natural or legal person who has entered into one or more obligations with us, pursuant to an agreement for the delivery of certain digital products, written content, video courses, or services.

1.4.Modification(s). The terms and conditions set forth in these Terms shall govern all transactions under the agreement by and between Parties. It may only be modified or amended upon mutual written agreement of Contractor and Client. 

1.5. General Terms and Conditions Other Party. In case Client refers to its general (purchase) terms and conditions, they are hereby expressly rejected by Contractor and shall have no force or effect between Parties.

1.6. Amendments and Severance. Written amendments of the agreement shall come into effect after they have been expressly accepted by both Parties. If any provision of these Terms is found to be invalid, void, or unenforceable, that provision shall be deemed not to form part of the Terms. In addition, the validity and enforceability of the other provisions shall not be affected. Parties shall negotiate in good faith to replace such invalid or unenforceable provision with a valid and enforceable provision that reflects the original purpose and intent of the Parties.

1.7. Unilateral Modifications.  Contractor may change these Terms and Conditions unilaterally, and such modification shall apply to all agreements between Parties. Client acknowledges and agrees that it is always aware of the most recent version of these General Terms and Conditions.

Article 2. Offers, quotations and confidentiality

2.1. Invitation to Treat. Client understands that all our offers and quotations are only an invitation to accept them. Unless expressly stated otherwise and resulting from the nature of the offer, it shall be made without obligation and is revocable. Contractor’s order confirmation addressed to Client constitutes acceptance of the offer and is conditional upon the conclusion of a legally binding agreement.

2.2. Confidentiality. Client acknowledges Contractor’s ownership and rights in the sample manuals, designs, drawings, and descriptions, as well as any appendices and documents that are part of our offers and quotations. Client shall maintain the confidentiality of such information, and must not disclose it to any third party.

2.3. Confidentiality Ownership of Contractor. Contractor acknowledges Client’s ownership and rights in all information, designs, drawings, models, descriptions, images, and the like provided by Client. Contractor shall maintain the confidentiality of such information, and must not disclose it to any third party.

2.4. Risk Assessment and Liability. Before Parties enter into an agreement, Client must share a full Risk Assessment regarding the product. This Risk Assessment shall at least state the types of risks associated with the product and their nature, including but not limited to safety levels and measures users must take to exclude and reduce such risks. Client acknowledges and agrees that the Risk Assessment shall be conclusive as to which risks are associated with the use of the product. Contractor waives any and all liabilities concerning the Risk Assessment and the information or absence of information therein. Client indemnifies and holds Contractor harmless against any third party claim as a result of the Risk Assessment and the information or absence of information therein.

Article 3. Prices and Additional Work

3.1. Prices. Our prices are always in Euro (€) currency unless expressly agreed otherwise in writing. In addition, our prices are excluding sales tax and other applicable taxes and/or levies.

3.2. Pre-calculation. Quotations made by Contractor and received by Client are always made on the basis of a preliminary calculation. Client understands that such a quotation shall only be indicative and does not mean the transfer of any rights. We shall always inform Client when the most recent cost estimate exceeds the pre-calculations.

3.3. Adjustment Prices. Contractor may adjust the prices and those price changes will apply after one month. If the price increase is customary in the industry and based on inflation or another common index, Client is not allowed to terminate the agreement. In the event of other price increases, Client may dissolve the agreement in whole or in part within three months after its conclusion.

3.4. Writing Errors. Client understands that all prices mentioned in our quotations, on the website, in e-mails, and in other documentation may always contain typing-, and grammatical and errors for which we do not accept liability.

3.5. Extra Costs. All prices mentioned in our quotations are excluding travel costs, transport costs, purchasing of standards, translation costs, and proofreading costs.

3.6. Corrections. Unless stipulated otherwise, and in the case of written products, Contractor is only obliged to make a single correction round. Contractor may charge an extra correction round in case Client has approved this. 

3.7. Costs. The proposed prices always exclude costs for proofreading, translations, and any associated costs for DTP (Desktop Publishing). Before Contractor starts performing such work in a new phase, the content must always be proofread by Client. Section 4.4. applies accordingly.

3.8. Costs Additional Work. In the event of additional work, Client owes the costs on the basis of subsequent calculations. If Contractor needs to perform more hours as additional work, they will be charged according to the hourly rate stated in the quotation.

3.9. Additional work. The following situation is considered additional work, namely when Client sends new information or submits any product or content changes that were unknown at the time of the conclusion of the agreement, and Contractor needs to perform extra work as a result. 

3.10. Separate Agreements. Contractor is never obliged to perform additional work and may offer the conclusion of a separate agreement. Unless it appears otherwise, Contractor shall start with additional work when Client has given its explicit consent.

3.11. Amendment Agreement. In case changing the agreement is necessary to ensure that the obligations between the Parties are properly performed, the Parties will first enter into discussions. In the event of a substantial change to the original agreement, Contractor shall provide a quotation thereof in advance.

Article 4. Delivery and Terms

4.1. Delivery times. The delivery times specified by us are never strict deadlines unless expressly agreed otherwise. In the event of late delivery, Client must provide us with written notice of default before there is any question of default.

4.2. Information and Feedback. Client understands that delivery times are calculated at the time the agreement is concluded. Delivery times can be extended:

a. If all data necessary for the execution of the assignment has not yet been supplied by Client to Contractor;

b. If we have not received feedback from Contractor on time. Parties understand and agree that five (5) working days is the usual term for receiving feedback;

c. If (part of) the invoice amount remains unpaid by Client after it has become due and payable;

d. If Client sends new information, or any other product or content change that was unknown at the time of the conclusion of the agreement.

4.3. Phased Delivery. The agreed work may be carried out by Contractor in phases. Contractor may postpone the delivery of products and services in a subsequent phase until the results of earlier work have been approved. The provisions in Article 3 on additional work shall apply accordingly.

4.4. Late Feedback. Contractor is entitled to charge the hours it has already worked if no feedback has been received from Client within seven (7) working days.

4.5. Information. Contractor shall use its best efforts to deliver the agreed products and services referred to in this Section based on all instructions and information received from Client. Client represents and warrants that such instructions and information are always correct and complete.

4.6. Partial Performance. We have the right to carry out an assignment partially, meaning that we may deliver products and services to Client if they already have been completed. We may invoice Client for products and services that already have been delivered.

4.7. Force Majeure. Contractor is never responsible or liable for a delay in the agreed delivery times that is caused by a circumstance that is beyond Contractor's control, or when Client has provided Contractor with incorrect information or instructions. Section 7.7. about force majeure applies accordingly.

Article 5. Complaints Handling

5.1. Complaints. Complaints from Client related to an erroneous delivery or any visible defect in the products or services must be reported to us within seven (7) days after the date of delivery. This must be done by a registered letter, containing a clear and accurate description of the complaint including the invoice number related to the products and services.

5.2. Defects. Defects that were not visible at the time of delivery must be reported to us by Client within seven (7) days after you have discovered them and in accordance with the complaints procedure in Section 5.1.

5.3. Right of action. Any liability or claim that Client may have against us, relating to a defective product or incomplete service, lapses if:

a. The defects have not been brought to our attention within seven (7) days after delivery and in the manner prescribed in Paragraphs 2 and 3 in this Section;

b. Client has not cooperated with us in examining the validity and merits of the complaint;

c. Client has used or maintained the products against regulations or contrary to normal use;

d. The warranty period referred to in the agreement between Parties has expired or, in the absence of such a period, Client has filed the complaints twelve (12) months after the delivery of the products and/or services.

Article. 6. Services and Warranties

6.1. Performance. With respect to the agreement between Parties, we shall use our best efforts and perform the obligations with great care and to the best of our abilities.

6.2. Consultancy Services. With regard to our consultancy services, we shall perform our duties to the best of our ability and knowledge. However, Client understands and agrees that we do not have an obligation of result. We may determine the manner in which the agreed work will be performed, and the third parties we engage.

6.3. Content and Video. As part of the services, Contractor may offer content such as video material for a one-off fee. Client understands that all intellectual property rights in and to the video material remain with Contractor. Client shall only acquire an exclusive right to access such video material. Client understands that copying or sharing content and video material with third parties without permission is strictly prohibited.

6.4. Disclaimer. Contractor expressly disclaims liability for the way in which end users apply and use the written materials. We do not accept any liability for translation or writing errors after Client has inspected the materials. Client acknowledges and agrees it shall examine and review the content for correctness.

6.5. Liability. In case we are liable as referred to in Paragraph 1 in this Section, we may in our sole discretion elect to:

a. Repair of the defect(s) without charging extra costs;

b. Replace the products or parts, after receipt of the defective products or parts, or delivery of replacement services;

c. Partial refund of the paid invoice amount or the outstanding invoice shall be partially credited;

d. Termination of the agreement between Parties without judicial intervention.

6.6. Client Changes. Contractor disclaims any representation or warranty after Client has made changes to the (written) products without our prior permission.

Article 7. Liability and Indemnification

7.1. Limitation of Liability. Contractor is never liable for any damage arising from the agreement between Client and Contractor. Contractor never accepts liability for the services rendered, the delivery of products, or information from third parties. Contractor is never liable for products or services on the basis of incorrect or incomplete information.

7.2. Direct Damage. Contractor is only liable for direct damage, namely:

a. Costs to determine the cause and amount of the damage, provided these costs are reasonable;

b. Reasonable costs to continue to execute the agreement;

c. Reasonable costs to limit losses.  

7.3. Exclusion. Except for direct damages, Contractor will not be liable for additional compensation, consequential and risk injury, data loss, lost profit and/or turnover, and any other damage.

7.4. Claim Amount. In the event Contractor has an obligation to pay compensation to Client as a result of its attributable breach, Contractor shall only pay direct damages. Contractor's obligation to pay compensation is always limited to the maximum amount of the most recent invoice paid by Client.

7.5. Insurance. Before recovering any losses from Contractor, Client commits to taking out insurance that will reimburse the damage. Contractor's liability is always limited to the amount reimbursed by its own insurance.

7.6. Third Parties. Contractor is never liable for damage caused by third parties, whether intentional or not.

7.7. Force Majeure. Contractor is never liable for losses as a result of a circumstance beyond its control, including but not limited to failures in the internet or power supply, strikes, illness, power failure, natural disasters, nuclear disasters and attacks, hardware failure, pandemics, hacking and similar technologies.

7.8. Termination by Force Majeure. In the event Contractor is unable to (partially) perform the agreed assignment due to a circumstance beyond its control, Contractor may immediately suspend the performance of the agreement or terminate it in whole or in part. In that case, Contractor is never required to pay any compensation to Client.

7.9. Indemnification. Client indemnifies and hold Contractor harmless against any claim or obligation to pay compensation from a third party, that is directly or indirectly related to the agreement between the Parties, or a result of these Terms.

7.10. Errors. We are never liable for defects in our written content that are the result of errors made by third parties, manufacturing errors, or faulty materials. We are never liable if Client has independently made changes to the written products without our express permission.

7.11. Defective Product. With respect to products we deliver content for, we expressly disclaim our liability if they do not provide the safety that may be expected from those products. Client acknowledges and agrees that our written content can never compensate or undo defects in such products.

7.12. Data Protection Risk. Contractor is never responsible or liable when Client shares personal information under this agreement. In accordance with all applicable data protection laws, Client shall be the Data Controller and Contractor shall be the Data Processor. 

Article 8. Payment

8.1. Payment conditions. Unless agreed otherwise in writing, payments must be made in euro (€) currency, without deduction of any costs or discount, by transferring it to an IBAN bank account number and date specified by us on the invoice or quotation. Work is billed at the end of each month and based on actual hours worked.

8.2. Deposit. Unless otherwise specified, the advance to be paid shall always be 1000 (thousand) Euro of the amount quoted. The service will not start until we have received the agreed amount. Client understands that late payments will result in longer delivery times.

8.3. Non-Payment. If Client does not pay the invoice amount in time, it will be in default without the requirement of a notice of default. In that case, we may suspend the fulfillment of all our obligations and have the right to exercise all our other legal rights.

8.4. Interest and Debt Collection. If Client fails to pay on time, he will automatically forfeit interest to us until the day of full payment. The interest shall be equal to the applicable statutory interest. This interest is immediately due and payable without notice of default. Furthermore, Client is obliged to pay us the extrajudicial costs related to collecting our claims. These costs are determined at fifteen percent (15%) of the principal, without prejudice to our right to charge reasonable costs.

8.5. Payments. If Client makes a payment, that amount will first be deducted from the costs referred to in Paragraph 4 in this Section, then they will be deducted from the interest owed and finally from the principal sum, i.e. the longest outstanding invoice.

8.6. Delivery and Payment. Before delivering the agreed products, Contractor will send an invoice to Client for the outstanding invoice amount of 50% (fifty percent). Contractor may always request earlier payment from Client, for example when the amount of work requires such earlier payment. Client shall pay (part of) the outstanding invoice if either necessary information has not been provided yet or instructions, feedback and comments on written works have not been provided within an agreed or reasonable period of time. 

Article 9. Retention of title

9.1. Products. The products supplied by us, including digital products, shall always remain our property, including the copyrights thereto, until full payment of all outstanding invoices as described in the previous Section.

9.2. Conditions Transfer. The goods delivered by us to Client are delivered under the suspensive condition of full payment of all outstanding invoices. Upon full payment of the full invoice amount, the ownership and all rights in and to the products shall transfer to Client by operation of law.

Article 10. End of Agreement

10.1. Termination. Client may only terminate the agreement when it provides a notice stating the grounds of termination. Contractor may terminate the agreement in writing without providing the grounds for termination, with due observance of a notice period of four (4) weeks.

10.2. Default. The Parties may terminate the agreement independently if the other party imputably fails to fulfill its obligations and this failure is not remedied within a reasonable period of time after written notice of default has been served by the other party.

10.3. Suspension Situation. Contractor is entitled to suspend or terminate the agreement in the following situations, without notice of default or a court decision. And as a result of such termination Contractor shall never be liable:

a. Client is declared bankrupt, a bankruptcy petition has been filed or provisional or definitive suspension of payments has been granted;

b. Client has lost control of his assets (or part thereof);

c. Contractor has valid reasons to doubt Client's creditworthiness and meeting its financial obligations towards Contractor on time.

10.4. Assignment. Contractor is entitled to transfer all rights and obligations arising from the agreement to a third party, such as a legal successor. To this end, only a written notification must be sent to Client. Client may only transfer its rights and obligations under the agreement to a third party if Contractor is informed and written permission has been received, under the conditions set by Contractor.

Article 11. Applicable law

11.1. Applicable law. The offers made by us and all agreements entered into by us are exclusively governed by Dutch law.

11.2. Dispute settlement. All disputes, of whatever nature, related to or arising from agreements entered into by us and our deliveries are settled by the competent court in Amsterdam, the Netherlands.