General conditions
These are the Terms and Conditions of Paradise Shaper International B.V. (hereinafter referred to as "Paradise Shaper"), a company with address Achtseweg Zuid 159R, 5651 GW Eindhoven. Paradise Shaper is registered with the Chamber of Commerce under number 74827723.
Definitions
In these Terms and Conditions, the following terms shall have the following meanings unless expressly stated otherwise:
General Terms and Conditions: these general terms and conditions as stated below.
Company: The other party acting in the course of a business or profession.
BW: the Civil Code.
Consumer: the other party not acting in the course of a business or profession.
Assignment: All work, in any form, performed by Paradise Shaper for or on behalf of the Other Party.
Service: All work, in any form, performed by Paradise Shaper for or on behalf of the Other Party.
Agreement: Any agreement entered into between Paradise Shaper and the Other Party.
Counterparty: the party who has accepted these General Terms and Conditions and has commissioned an Order. The Other Party may be either a Company or a Consumer.
Unless the General Terms expressly provide otherwise, in interpreting the General Terms, the singular shall be deemed to include the plural and vice versa and a reference to a masculine form shall be deemed to include a reference to a feminine form and vice versa.
Applicability
- These Terms and Conditions apply to every offer made by Paradise Shaper.
- These General Conditions also apply to any Agreement concluded between Paradise Shaper and the Other Party, in which the validity of these General Conditions is explicitly stated.
- The applicability of general terms and conditions of the Other Party is expressly rejected.
- Deviations from the Agreement, and these General Terms and Conditions are valid only if expressly agreed in writing between the parties.
Quotes
- All offers not expressly stated to the contrary shall be deemed to be without obligation and may be revoked at any time, even if they contain a deadline for acceptance. Quotations can also be revoked by Paradise Shaper in writing within seven days of receipt of acceptance, in which case no agreement is formed between the parties.
- All Paradise Shaper quotes are valid for 7 days unless otherwise stated.
- Paradise Shaper cannot be held to its offers if the Other Party should have understood, based on reasonableness and fairness and generally accepted views, that the offer or any part thereof contains an obvious mistake or clerical error.
- If the acceptance, whether or not on minor points, differs from the offer included in the quotation, Paradise Shaper shall not be bound by it. The agreement will then not be established in accordance with this deviating acceptance, unless Paradise Shaper indicates otherwise.
Formation of agreement
- The Agreement is established by acceptance by the Other Party of Paradise Shaper's quotation.
- Offers can only be accepted in writing (including by electronic means). Paradise Shaper is nevertheless entitled to accept a verbal acceptance as if it had been made in writing.
- At the moment an order confirmation is signed by both the Other Party and Paradise Shaper, an Agreement between the parties is established, or at the moment Paradise Shaper actually begins performance.
- The Agreement replaces, and supersedes, all previous proposals, correspondence, agreements or other communications, whether written or oral.
Execution of agreement
- The Agreement shall be performed by Paradise Shaper to the best of its knowledge and ability, in accordance with the requirements of good workmanship. In respect of the intended work, there is an obligation of effort on the part of Paradise Shaper. The application of sections 7:404, 7:407(2) and 7:409 of the Civil Code is expressly excluded.
- Paradise Shaper determines the manner in which and by which person(s) the Assignment will be carried out. Paradise Shaper is entitled to have certain work performed by third parties.
- Paradise Shaper shall be entitled to perform the Agreement in stages. If the Agreement is executed in phases, Paradise Shaper shall be entitled to invoice each executed part separately. If and as long as this invoice is not paid by the Other Party, Paradise Shaper shall not be obliged to execute the next phase and shall be entitled to suspend the Agreement.
- Paradise Shaper is entitled to the days off already announced in advance, this notwithstanding any minimum number of hours included in the Agreement.
Changes and additional work
- If during the execution of the Agreement it appears that for proper execution it is necessary to amend or supplement the Agreement, Paradise Shaper shall inform the Other Party as soon as possible. The parties shall then proceed to amend the Agreement in good time and by mutual agreement.
- If the parties agree that the Agreement will be amended/added to, the time of completion of performance may be affected as a result. Paradise Shaper will inform the Other Party of this as soon as possible.
- If the change or addition to the Agreement will have financial, quantitative and/or qualitative consequences, Paradise Shaper will inform the Other Party in advance.
- If a fixed rate or fixed price has been agreed upon, Paradise Shaper will indicate in the agreement to what extent the change/addition to the Agreement will affect the rate/price. In doing so, Paradise Shaper will attempt to provide - as far as possible - a quotation in advance.
- Paradise Shaper will not be able to charge additional costs if the change/addition is due to circumstances attributable to Paradise Shaper.
- Amendments to the Agreement originally concluded between the parties shall only be valid from the moment these amendments have been accepted by both parties through an additional or amended Agreement.
Obligations Counterparty
- The Other Party shall ensure that all data, equipment or premises which Paradise Shaper indicates are necessary or which the Other Party should reasonably understand are necessary for the execution of the Agreement are available in good time. The Other Party shall also grant Paradise Shaper all powers and authorizations necessary for the proper execution of the Order.
- Paradise Shaper is not liable for damages of any kind, because Paradise Shaper is based on incorrect and / or incomplete information provided by the other party, unless such inaccuracy or incompleteness should have been known to Paradise Shaper.
- The Counterparty shall ensure that the employees of the Counterparty's organization involved in the work are available in a timely manner.
- The Other Party shall refrain from conduct that makes it impossible for Paradise Shaper to properly execute the Assignment.
- If work is carried out by Paradise Shaper or third parties engaged by Paradise Shaper in the context of the Assignment at the Other Party's location or a location designated by the Other Party, the Other Party shall provide, free of charge, the facilities reasonably required.
- If the Other Party has not fulfilled his obligations as set out in this article, Paradise Shaper shall have the right to suspend the execution of the Agreement and/or charge the Other Party for the extra costs arising from the delay according to the usual price or rates.
Cancellation
- Paradise Shaper shall be entitled at any time to change the training, coaching, consultancy or workshop date or cancel the Assignment. Paradise Shaper shall notify the Other Party of this at the earliest possible time. Paradise Shaper shall, to the extent possible, offer a new training, coaching or consultancy session or workshop. If this is not possible, the amounts already paid by the Other Party to Paradise Shaper, shall be returned.
- Cancellation of the Order by the Other Party is only possible subject to the provisions below:
- Cancellation must always be in writing;
- For cancellation less than 5 days prior to the start of the training, coaching or consulting session or workshop, 50% of the price is due; and
- In case of cancellation less than 36 hours before the start of the training, coaching or consulting session or workshop, the Other Party shall owe the full price.
- The costs charged to Paradise Shaper by the training, coaching, consulting or workshop location in the event of cancellation or postponement will be charged to the Other Party if the Other Party cancels or postpones the performance of a workshop, coaching or consulting session or training.
- In case of cancellation, the Other Party is entitled to have someone else participate in the training, coaching or consulting session or workshop in its place.
- Any amounts already paid less the amount due in connection with cancellation, will be deducted by Paradise Shaper to the extent possible from a new training, coaching session or workshop. If this is not possible, this amount will be returned to the Other Party by Paradise Shaper.
- In the event of misconduct by a person or if a person is in violation of applicable order and safety measures, Paradise Shaper is entitled to deny that person access to the training, coaching or consulting session or workshop without refund of the cost of the training or workshop.
Prices
- Unless expressly agreed otherwise in writing, Paradise Shaper's stated prices and rates are always exclusive of VAT.
- Prices and rates include shipping, travel, lodging and other expenses unless otherwise agreed upon.
- If a price or rate is not expressly agreed upon, the price or rate will be determined based on actual hours spent and Paradise Shaper's usual rates.
- Of all additional costs Paradise Shaper will inform the Other Party or provide data in good time before the conclusion of the Agreement on the basis of which these costs can be passed on to the Other Party.
- If Paradise Shaper agrees on a fixed price or fixed rate when concluding the Agreement, Paradise Shaper shall be entitled to increase it, even if the price or rate was not originally given under reserve.
- In the event that Paradise Shaper intends to change the price or rate, it shall notify the Other Party as soon as possible.
- If the increase in the price or rate occurs within three months of the conclusion of the Agreement, the Other Party may dissolve the Agreement by a written statement, unless:
- the increase results from a power or an obligation imposed on Paradise Shaper under the law;
- the increase is caused by an increase in the price of raw materials, taxes, production costs, currency exchange rates, wages et cetera or on other grounds that were not reasonably foreseeable at the time the Agreement was entered into;
- Paradise Shaper is still willing to perform the Agreement on the basis originally agreed upon; or
- stipulated that performance will be carried out more than three months after the conclusion of the Agreement.
Payment
- Payment shall be made by transfer to a bank account designated by Paradise Shaper, unless otherwise agreed.
- Paradise Shaper will send an invoice for the amounts owed by the Other Party. The payment period for each invoice is 14 days from the date of the relevant invoice, unless otherwise indicated on the invoice or agreed otherwise.
- Invoicing will take place monthly, unless otherwise agreed upon.
- Objections to the amount of the invoice do not suspend the Other Party's payment obligation.
- The Other Party is not authorized to deduct from the amount due any amount on account of a counterclaim asserted by it.
- In the event of non-payment or late payment, the Other Party shall be in default by operation of law without notice of default. The Other Party shall then owe the statutory (commercial) interest from the date on which the payment became due until the day of payment in full, whereby interest on part of the month shall be calculated over an entire month.
- A payment made by the Other Party shall first be applied to reduce all interest and costs due and finally to pay due invoices that have been outstanding the longest, even if the Other Party states that the payment relates to later invoices.
- If the Other Party defaults or is in default in the (timely) fulfillment of its obligations, all reasonable costs to obtain satisfaction out of court shall be borne by the Other Party.
- With regard to extrajudicial (collection) costs, Paradise Shaper, insofar as the Other Party is acting in the capacity as a Business, shall be entitled to compensation of 15% of the total outstanding principal sum with a minimum of €100 for each invoice that is not paid in whole or in part.
- Regarding the extrajudicial (collection) costs, Paradise Shaper, insofar as the Other Party acts in the capacity of Consumer, is entitled to the maximum compensation allowed by law, as stipulated in the Decree on compensation for extrajudicial (collection) costs.
- Insofar as the Other Party is acting in the capacity of a Consumer, Paradise Shaper shall only be entitled to compensation for extrajudicial (collection) costs after Paradise Shaper has sent the Other Party a demand for payment of the outstanding invoice or invoices within 14 days after the default has occurred.
- In case of bankruptcy, suspension of payments, liquidation, general attachment of assets, death or receivership, Paradise Shaper's claims and the Other Party's obligations to Paradise Shaper shall be immediately due and payable.
- Any reasonable court costs and execution costs incurred shall also be borne by the Other Party.
Complaints
- The Other Party must examine the Assignment at the time of execution, but in any case within 7 days of execution, whether the executed Assignment complies with the Agreement.
- Complaints should be reported in writing to Paradise Shaper within 7 days of the execution of the Assignment.
- The right to (partial) restitution of the price, replacement or compensation shall lapse if the complaint is not reported within the stipulated period, unless a longer period results from the nature of the Order or from circumstances of the case.
- The payment obligation will not be suspended if the Other Party notifies Paradise Shaper of the complaint within the specified period.
Force majeure and unforeseen circumstances
- A shortcoming cannot be attributed to Paradise Shaper or the Other Party, as the shortcoming is not due to his fault, nor by virtue of law, legal act or generally accepted practice. In this case, the parties are also not obliged to fulfill the obligations arising from the Agreement.
- In these General Terms and Conditions, force majeure means, in addition to what is understood in this area in the law and jurisprudence, all external causes, foreseen or unforeseen, which Paradise Shaper can not influence and which prevents Paradise Shaper from fulfilling its obligations.
- Force majeure on the part of Paradise Shaper means, in any case:
- strikes;
- traffic disruptions;
- governmental measures that prevent Paradise Shaper from fulfilling its obligations in a timely or proper manner;
- riots, uproar, war;
- traffic barriers;
- labor shortage;
- extreme weather conditions;
- fire;
- Import, export and/or transit bans; and/or
- any circumstance which impedes the normal course of business as a result of which the fulfillment of the Agreement by Paradise Shaper cannot reasonably be required by the Other Party.
Termination of agreement
- The parties may terminate the Agreement at any time by mutual consent.
- The parties may terminate the Agreement in writing in the interim with a notice period of 1 month.
- The parties may terminate the Agreement in writing with immediate effect, in the event of:
- application by or grant of suspension of payment to the other party;
- application for bankruptcy by or declaration of bankruptcy of the other party;
- liquidation of the other party or not temporary cessation of the other party's business; or
- administration, receivership or debt restructuring within the meaning of the Natural Persons Debt Restructuring Act of the other party.
- If the Agreement is dissolved, Paradise Shaper's claims against the Other Party shall be immediately due and payable. If Paradise Shaper suspends performance of its obligations, it shall retain its claims under the law and Agreement. Paradise Shaper always retains the right to claim damages.
Liability
- Paradise Shaper shall only be liable for direct damages caused by Paradise Shaper's gross negligence or willful misconduct, and not for more than the amount paid to Paradise Shaper by the insurer or up to the amount of the invoice amount or an amount of €10,000, if the invoice amount exceeds €10,000.
- Direct damages shall mean only:
- reasonable costs to determine the cause and extent of the damage, insofar as the determination relates to damage within the meaning of these General Terms and Conditions;
- reasonable costs incurred to make Paradise Shaper's defective performance conform to the Agreement, insofar as they are attributable to Paradise Shaper; or
- reasonable costs incurred to prevent or limit damage, to the extent that the Other Party demonstrates that these costs have resulted in limiting direct damage as referred to in these General Terms and Conditions.
- Paradise Shaper shall never be liable for indirect damages, including consequential damages, lost profits, lost savings, damages due to business interruption, damages as a result of the provision of inadequate cooperation and/or information by the Other Party, damages due to information or advice given by Paradise Shaper without obligation, the content of which does not expressly form part of the Agreement, and all damages not falling under direct damages in the sense of these General Terms and Conditions.
- Paradise Shaper shall never be liable for errors in the material provided by the Other Party or for misunderstandings or errors regarding the performance of the Agreement if they have their origin or cause in actions of the Other Party, such as failure to provide complete, sound and clear data/materials on time or at all.
- Paradise Shaper shall never be liable for errors if the other party has given approval at an earlier time, or has been given the opportunity to carry out an inspection and has indicated that he does not need such an inspection.
- The limitations of liability set forth in this article are stipulated in part on behalf of the third parties engaged by Paradise Shaper for the performance of the Agreement, and Paradise Shaper shall never be liable for damages caused by failures of these engaged third parties.
- Paradise Shaper shall not be liable for damage or destruction of records in transit or during shipment by mail, whether the transportation or shipment is made by or on behalf of Paradise Shaper, the Other Party or third parties.
Secrecy
- Both parties are obliged to keep confidential all confidential information obtained from each other or from other sources in the context of the Agreement. Information is considered confidential if it has been communicated by the other party or if it arises from the nature of the information. The party receiving confidential information shall use it only for the purpose for which it was provided.
- If, by virtue of a statutory provision or a judicial decision, Paradise Shaper is obliged to disclose confidential information to third parties designated by law or by the court with competent jurisdiction, and Paradise Shaper cannot invoke a legal right to refuse to give evidence or such a right acknowledged or permitted by the court with competent jurisdiction, then Paradise Shaper shall not be liable for damages or compensation and the other party shall not be entitled to dissolve the agreement on the grounds of any damage caused by this.
- Without prejudice to the foregoing, Paradise Shaper is authorized to include the name of the Other Party on a list of relations, which will be published on the website or through other communications to third parties, unless otherwise agreed.
Indemnification
- The Other Party shall indemnify Paradise Shaper, to the extent permitted by law, in respect of liability to one or more third parties arising out of and/or in connection with the performance of the Agreement, regardless of whether the damage was caused or inflicted by Paradise Shaper or by its helper(s), auxiliary business or executed Order.
- In addition, the Other Party indemnifies Paradise Shaper, to the extent permitted by law, against all third party claims in connection with any infringement of intellectual property rights of these third parties.
- The Other Party is always obliged to make every effort to limit the damage.
Intellectual property
- All intellectual property rights to all products, materials, analyses, designs, software, documentation, advice, reports, offers, (electronic) information as well as preparatory material thereof (collectively the "IP Material"), belong exclusively to Paradise Shaper or its licensors.
- The Other Party only acquires any rights and powers with respect to the IP Material that arise from the Agreement and/or are expressly granted in writing.
- The Other Party is not permitted to transfer any acquired right or authority in respect of the IP Material to third parties except with Paradise Shaper's prior written consent.
- The Other Party is not permitted to remove or change any indication of intellectual property rights such as copyrights, trademark rights or trade names from the IP Material.
- Any exploitation, reproduction, use or disclosure by the Counterparty of the IP Material beyond the scope of the Agreement or rights and powers granted will be considered a violation of Paradise Shaper's intellectual property rights.
- For any such infringement, the Other Party shall pay to Paradise Shaper an immediately due and payable penalty, not subject to judicial mitigation, of €2,000 per infringing act, without prejudice to Paradise Shaper's right to be compensated for its damages caused by the infringement or to be allowed to take other legal action to have the infringement terminated.
- There will be no infringement of intellectual property rights if the Other Party has received express written permission from Paradise Shaper to exploit, reproduce, use or disclose the IP Material beyond the scope of the Agreement or rights and powers granted.
- All IP Material developed by Paradise Shaper for the performance of the Agreement may be used by Paradise Shaper for its own promotional purposes, unless otherwise agreed with the Other Party.
Privacy
- Paradise Shaper respects the privacy of the Other Party. Paradise Shaper handles and processes all personal data provided to it in accordance with applicable legislation, in particular the Personal Data Protection Act. The Other Party consents to this processing. To protect the personal data of the Other Party, Paradise Shaper uses appropriate security measures.
- Paradise Shaper uses the Other Party's personal data solely for the purpose of executing the Agreement or handling a complaint.
Due date
For all claims and/or powers that the Other Party may have against Paradise Shaper and/or against any third parties engaged by Paradise Shaper, a limitation period of one year shall apply, notwithstanding the statutory limitation periods, from the time of the occurrence of an event that enables the Other Party to exercise these rights and/or powers against Paradise Shaper and/or any third parties engaged by Paradise Shaper.
Transfer
- The other party is not allowed to transfer rights and obligations arising from the Agreement to third parties without obtaining written permission from Paradise Shaper.
- Paradise Shaper is entitled to attach conditions to this permission.
After-effects
The provisions of the General Conditions and the Agreement, which it is expressly or by their nature intended to remain in force even after termination of this Agreement, shall thereafter remain in force and continue to bind both parties.
Other
- Any deviations from these General Terms and Conditions can only be agreed upon in writing. No rights may be derived from such deviations with respect to legal relationships entered into at a later date.
- Paradise Shaper's records shall, subject to proof to the contrary, serve as evidence of the applications made by the Other Party. The Other Party acknowledges that electronic communications may serve as evidence.
- If and insofar as any provision of the General Conditions and the Agreement is declared void or is nullified, the other provisions of these General Conditions and the Agreement shall remain in full force and effect. Paradise Shaper shall then adopt a new provision to replace the void/annulled provision, taking into account as much as possible the scope of the void/annulled provision.
- The place of performance of the Agreement shall be deemed to be the place where Paradise Shaper is located.
Applicable law and choice of forum
- All Agreements, these General Conditions, and all non-contractual rights and obligations arising therefrom, shall in all respects be governed by the laws of the Netherlands.
- All disputes between Paradise Shaper and the Other Party, which may arise as a result of an Agreement and/or these General Terms and Conditions, or of agreements resulting therefrom, shall in the first instance be settled by the competent court of the District Court of East Brabant.