SECTION A

GENERAL PROVISIONS

1 Terms and conditions

1.1 These conditions apply to all proposals and/or deliveries of goods and/or services of any kind, delivered by Splintt to the Customer.

1.2 Splintt is member of NRTO, the association of private educational institutions in The Netherlands. Splintt acts in accordance with the NRTO-code of conduct. This code of conduct is published on the website of Splintt. At the request of Customer the code of conduct will be sent. The code can also be obtained from the bureau of the NRTO.

1.3 Splintt also acts in accordance with the terms and conditions NRTO edition November 3, 2011. Aforementioned terms and conditions are incorporated into these terms and conditions. The full text of the terms and conditions NRTO, are published on the website of Splintt. At the request of Customer the terms and conditions NRTO will be sent. In case of conflict between these terms and conditions of Splintt and the terms and conditions NRTO, the terms and conditions of Splintt shall prevail.

1.4 The applicability of purchase conditions or other terms and conditions of the Customer is expressly rejected.

1.5 If it appears that any provision of these terms and conditions is invalid or unenforceable, the remaining provisions of these terms and conditions shall remain in full force.

1.6. In case of a disagreement about the meaning of certain articles in these terms and conditions of Splintt, the Dutch version of the terms and conditions of Splintt is leading.

2 Definitions

2.1 Content:
Any form of audio, video, graphics, text or other observable form of information, which uses Splintt in its Products.
2.2 Credits:1.1 Units that can be purchased against payment by the Customer and which can be used to acquire access to certain products and services of Splintt, such as the Web Service and/or Content.
2.3 Identification data:
Log-in name, passwords, address information and other codes.
2.4 Platform:
The online training platform developed by Splintt that consists of a training environment, learning management system and a training builder.
2.5 Products:
All products and services supplied by Splintt, including but not limited to Content, Training and the Web Service.
2.6 Splintt:
1.1 Yowsim! competence simulator B.V., Yowsa competence development BV, its successors or any associated company or partner which has a legal relationship with the Customer and has declared that these general terms and conditions of Splintt apply.
2.7 Webservice:
The Web Service constitutes the direct and/or indirect (through a third party) provision of access to the Platform.
2.8 Working Days:
Dutch normal working hours (8:30 – 17:30 CET) and days (Monday – Friday) excluding national holidays.

3 Services

3.1 Splintt conducts all of its services on best effort basis, unless the parties have expressly agreed to a specific result and the result is sufficiently described in writing.

3.2 Unless otherwise agreed in the contract, conducting an examination, test or assessment is not part of the agreement. A separate fee is due if Splintt provides for documentation or training materials, unless the parties agree otherwise in writing. The above also applies to any training certificates or duplicates thereof.

4 Performance of the work

4.1 All work and services will be provided without interruption on Working Days and under normal working conditions.
4.2 After prior approval by Customer, work may be carried out on non-Working Days. This will be considered as overtime to which a surcharge of 50% on top of the applicable rate applies. To overtime in weekend and public holidays, a surcharge of 100% applies on top of the applicable rate, unless agreed otherwise in writing.
4.3 If it is agreed that work will take place in phases, Splintt is entitled to postpone its work until the Customer has accepted in writing the results of the work delivered in the preceding phase.
4.4 Only if this is agreed in writing, Splintt will follow timely and reasonable instructions of Customer. Splintt is not obliged to follow instructions that change the content or scope of the agreed upon activities; If such instructions are followed, the work will be reimbursed on the basis of the applicable hourly rate.
4.5 Splintt is entitled, without the express consent of the Customer, to engage third parties in the providing of services.

5 Replacement performance

5.1 If the agreement is concluded with the objective of having activities carried out by a particular person, Splintt will be entitled to replace this person with another person with the same qualifications.

6 (Delivery) Dates

6.1 All (delivery) dates agreed to or specified by Splintt shall be established to the best of Splintt’s knowledge on the basis of the information made available by Customer and shall be observed by Splintt as much as possible.
6.2 (Delivery) periods are not considered to be fatal delivery dates within which must be delivered, but a time period within which Splintt shall strive with best efforts to deliver the agreed upon items. If it is not possible to keep to the (delivery) date, then Splintt and Customer will consult with each other to agree on a substitute (delivery) date.

7 Duration and termination

7.1 The duration of the agreement will be agreed upon between parties.
7.2 Splintt is entitled, with immediate effect and without judicial intervention, by means of an extrajudicial statement to terminate or cancel the agreement or offers, if Customer submits a request for legal debt restructuring, if bankruptcy or suspension of payment has been filed for Customer, if Customer is in a state of bankruptcy or suspension of payment has been granted or if Customer’s company is liquidated or ended for any reason other than reconstruction or company merger.

8 Price and payment

8.1 All prices are excluding sales taxes and other taxes which are imposed by the government. Unless otherwise agreed to, all amounts are in euros and must be paid in euro.
8.2 When the parties agree to a periodic payment, Splintt is allowed to change the prices with a notice period of two months in advance in writing. Notwithstanding the foregoing Splintt is entitled to adjust the prices according to the CBS Consumer Price Index per January 1st of each year. Indexation will be based on the mentioned price indices for October.
Unless Splintt and Customer expressly agree differently in writing, the payment term is 14 days after the invoice date.

9 Aansprakelijkheid

9.1 De totale aansprakelijkheid van Splintt wegens een toerekenbare tekortkoming in de nakoming van de overeenkomst of uit enige hoofde, daaronder uitdrukkelijk ook begrepen een met Klant overeengekomen garantieverplichting, is beperkt tot maximaal het bedrag van de voor die overeenkomst bedongen prijs (excl. BTW). De beperking van de aansprakelijkheid is van overeenkomstige toepassing op door Splintt afgegeven vrijwaringen.
9.2 Wanneer de overeenkomst uit een duurovereenkomst bestaat, wordt het bedrag van de overeenkomst gesteld op het totaal van de ontvangen vergoedingen in één jaar (excl. BTW), zijnde het jaar waarin de schade is ontstaan. In geen geval zal de totale aansprakelijkheid van Splintt voor directe schade, uit welke hoofde dan ook, meer bedragen dan € 25.000,-.
9.3 De aansprakelijkheid van Splintt voor schade door dood, lichamelijk letsel of wegens materiële beschadiging van zaken bedraagt totaal nimmer meer dan € 1.000.000, – (één miljoen euro). Onder directe schade wordt uitsluitend verstaan:
a) De redelijke kosten, gemaakt ter vaststelling van de oorzaak en de omvang van de schade.
b) De redelijke kosten, gemaakt ter voorkoming of beperking van schade, voor zover Klant aantoont dat deze kosten hebben geleid tot beperking van schade.
9.4 De aansprakelijkheid van Splintt voor indirecte schade, gevolgschade, gederfde winst, gemiste besparingen, verminderde goodwill, schade door bedrijfsstagnatie, schade als gevolg van aanspraken van afnemers van Klant, schade verband houdende met het gebruik van door Klant aan Splintt voorgeschreven zaken, materialen of programmatuur van derden en schade verband houdende met de inschakeling van door Klant aan Splintt voorgeschreven toeleveranciers is uitgesloten. Eveneens is uitgesloten de aansprakelijkheid van Splintt wegens verminking, vernietiging of verlies van gegevens of documenten.
9.5 De in dit artikel 10 bedoelde beperkingen van de aansprakelijkheid van Splintt komen te vervallen indien er sprake is van opzet of bewuste roekeloosheid.
9.6 Voorwaarde voor het ontstaan van enig recht op schadevergoeding is steeds dat Klant de schade zo spoedig mogelijk na het ontstaan daarvan schriftelijk bij Splintt meldt. Iedere vordering tot schadevergoeding tegen Splintt vervalt door het enkele verloop van vierentwintig maanden na het ontstaan van de vordering.

10 Force majeure

1.1 Neither party is obligated to fulfil any obligation if prevented from doing so as a result of circumstances, which can be considered beyond their fault, and for which a party cannot be held accountable for by law, legal act, or generally accepted practices. The aforementioned circumstances include circumstances beyond the control of Splintt as well as business risks of Splintt, these include but are not limited to i) failures of suppliers of Splintt, ii) defective goods, hardware, software or materials from third parties which are prescribed by Customer, iii) government measures, iv) power failure, failure of the Internet, computer network or telecommunications facilities, v) strike, vi) general transport problems and vii) the unavailability of one or more members of staff.
1.2 In case of force majeure on the part of Splintt, Splintt is entitled to cancel the work that still has to be done or change it. Splintt is entitled to charge Customer for incurred external costs (including, but not limited to rental location, actor, and resources) before the force majeure was known. If Splintt delivered a Web Service as provided in article 19 of these terms and conditions, the Customer will be charged if it appears that the Customer and/or one or more participants has accessed the Web Service. The administration of Splintt is leading in this respect.
1.3 When force majeure is of a temporary nature, Splintt has the right to suspend its commitments until the force majeure has ceased to exist without being obliged to any form of damage compensation.
1.4 Splintt reserves the right, if there is a non-attributable shortcoming, to ask payment for work already performed before the non-attributable shortcoming was known.
1.5 If the non-attributable failure of either party continues for more than three months, both parties have the right to terminate the agreement, without being liable for any damages concerning the termination of the agreement.

11 Intellectual property

11.1 Splintt has the exclusive right to develop the Splintt products further and to make them available by means of licenses to third parties.
11.2 Provided in the case of third-party products, all intellectual property of its products or services remain with Splintt.
11.3 The Customer is not permitted to remove or modify any notice regarding intellectual property and other rights, trade marks and trade names of the products and services.
11.4 If Splintt, Customer or a third party make functional improvements or other changes in the products or services, the intellectual property of the improved or modified products or services, shall remain with Splintt or the relevant third party. If these rights are by law attributed to Customer, Customer will at the request of Splintt transfer free of charge the intellectual property rights to Splintt or the relevant third party.
11.5 Splintt reserves all intellectual property rights and other rights with respect to training materials and/or documentation provided. The Customer is expressly prohibited to reproduce or make available this material to third parties. Customer must ensure that its employees and/or third parties comply with the above obligations.

12 Privacy

12.1 Customer is ‘controller’ for the purposes of the Dutch Data Protection Act and therefore responsible for the protection of (personal) data transmitted or processed and/or processed by the equipment and/or software of Splintt on behalf of Customer.
12.2 To the extent that Customer is entitled, Customer expressly agrees with the inclusion of (personal) data of users in the administration of Splintt for purposes of administration and management. This administration contains amongst others, identification and process data and is only accessible to Splintt. This information will not be provided to third parties, except in the cases when Splintt is obliged by law or court order.
12.3 Except as provided in this article, Splintt is as ‘processor’ within the meaning of the Dutch Data Protection Act responsible for the protection of personal data which use by Splintt is necessary for the proper execution of the agreement. Splintt will indemnify Customer if Customer is held liable in case of a breach of privacy as a result of an act or omission of Splintt. Splintt will comply with all relevant requirements of the Dutch Data Protection Act.

13 Confidentiality

13.1 Splintt and Customer shall ensure that all of the information that is received from the other party and which is confidential in nature, shall remain secret. The receiving party shall use the data only for the purpose for which it is provided.
13.2 Without the prior written consent of Splintt, Customer is not entitled to inform third parties about the working methods and techniques of Splintt and/or the content and/or advice or reports of Splintt. Customer will not provide advice or reports to a third party, or otherwise make publicly available. The Customer is not authorized to make public or exploit any documentation or parts thereof regarding training-, test- or examination materials, except for use within the organization and falling within the scope of the agreement, unless parties agreed otherwise in writing.

14 Applicable law and disputes

14.1 The agreement(s) made between Splintt and Customer shall be governed by Dutch law. The applicability of the Vienna Sales Convention 1980 is excluded.
14.2 If Customer holds the opinion that Splintt does not comply with the rules which are included in the NRTO code of conduct and general conditions NRTO, as defined in article 1.3 and 1.4, Customer may submit a complaint to the NRTO Appeals Committee (NRTO Commissie van Beroep) according to the procedural rules of the NRTO. The Customer may file a complaint in writing to the above mentioned NRTO Appeals Committee for the attention of the secretariat of the NRTO.
14.3 Regardless of the provisions of article 15.2, any dispute between parties arising under any agreement, which cannot be resolved amicably, will be solved through arbitration of the Stichting Geschillenoplossing Automatisering (SGOA) (see: www.sgoa.org), in accordance with the SGOA’s regulations for arbitration. With the mutual agreement of both parties, parties may try to solve their disagreement through other provisions offered by the SGOA for the settlement of disputes prior to arbitration.
14.4 If the SGOA declares itself unauthorized or if parties mutually agree to such, disputes will be placed before a qualified court in Amsterdam, The Netherlands.

SECTION B
CONTENT

15Terms of use

15.1 Splintt may provide access to Training and the associated Content.
15.2 Content can be made available through the Platform, the platform of the Customer or a third-party platform.
15.3 The right granted is non-exclusive and includes the use of Training and/or Content and – if available – the accompanying documentation.
15.4 The Customer is prohibited to copy any material relating to Training and/or Content, without permission of Splintt.
15.5 Customer is not authorized to make Products available to third parties (third parties also include holding, affiliated and/or subsidiary companies of Customer).
15.6 Splintt has the right to revoke the rights of use in case of any delay in the payment of invoices or if Customer is in breach of any provision of the agreement or these terms and conditions.

16 Controles

16.1 Splintt is entitled to incorporate technical measures in its Products in order to verify that the actual number of users of the Content and/or Training does not exceed the agreed upon number of users of the Content and/or Training.
16.2 Splintt has the right, as long as the Customer uses the Product, to carry out audits on the locations of the Customer where the Products are used. Customer will provide all necessary cooperation and access to Splintt or the auditor. If Customer refuses to cooperate or to allow access, Splintt is entitled to terminate the agreement with immediate effect. In this case Customer is no longer entitled to use the Products and shall be obliged to return all Products and destroy any copies made within 30 (thirty) days of the initial request of Splintt.
16.3 Where the above mentioned measures or audits indicate that the actual number of users and/or Training are beyond the agreed number of users and/or Training, Customer must immediately pay a fee for the number of missing users, and/or Training. The usual price per user or Training will in this case be increased by a percentage of 25%.

17 Customization

17.1 Parties shall specify in writing the Products that will be developed and how this will be done. Splintt shall develop with care based on the information provided by Customer. Customer is responsible for the correctness, completeness and consistency of the provided information.
17.2 The development of customization can be done in specific phases, determined by Splintt. If Customer does not wish to follow these phases, this is entirely for the account (and expense) of Customer.
17.3 Intellectual property rights or other rights related to customization remain at all times vested in Splintt, unless expressly agreed otherwise in writing.
If Splintt transfers an intellectual property right regarding customization or any other works of intellectual property to Customer, Splintt will remain entitled to use and further develop these works and the underlying ideas, designs, components, algorithms, source code etc., with no restrictions at all. Splintt is also entitled to develop derived products or similar products for third parties.

SECTION C
WEBSERVICE

18 Web Service – general

18.1 Splintt may grant Customer a non-exclusive right to use the Web Service.
18.2 Customer will receive access to the Web Service via its browser in order to access the custom made software of Splintt (software-as-a-service).
18.3 Splintt is never required to make available to Customer the source code of the software, developed documentation and/or any other software. Splintt is never required to provide a physical medium (dvd etc.) of the software of the Web Service.
18.4 The right to use the Web Service is not transferable to any third party (third parties also include holding, affiliated and / or subsidiary companies of Customer).
18.5 Splintt has the right to revoke the right of use in case there is a delay in the payment of invoices by Customer or in case Customer is in breach of any provision of the agreement or these terms and conditions.
18.6 Splintt is entitled to access log files for the purpose of analysing the use of the Web Service. The results of such an analysis will not be shared with any third party (third parties are not related to Splintt, to parent and/or subsidiary companies). This does not apply to figures and data concerning the use of the Web Service that is not directly traceable to Customer’s use.

19 Checks

19.1 Splintt is entitled to incorporate technical measures in the Web Service in order to verify that the actual number of users of the Content and/or Training does not exceed the agreed upon number of users of the Content and/or Training.

20 Customer obligations

20.1 Customer is obliged to follow the instructions of Splintt regarding the Web Service.
20.2 The Customer is responsible for the purchase and proper functioning of the software and infrastructure which is needed to make use of the Web Service, the settings of the Web Service and the use of the Web Service. Splintt is not required to perform a data conversion.
20.3 The Customer is only allowed to give access to the Web Service to persons who are not employees of Customer, where agreed with Splintt explicitly in writing. If Customer and Splintt agreed that Customer may grant access to the Web Service to third parties, Customer will still have to comply with these terms and conditions.
20.4 If Customer itself is able to create, modify, or add users which then can access the Web Service, Splintt will be entitled to charge Customer for these users according to the then applicable rates.
20.5 In the event Customer signals a malfunction, Customer must immediately report such to Splintt. After Customer has notified Splintt of the malfunction, Splintt will take the necessary steps, which will or could lead to a solution.
20.6 The costs for resolving the malfunction are for the account of Customer if it appears that the malfunction is the result of Customer’s act or failure to act in accordance with the agreement.

21 Maintenance and support

21.1 The Web Service does not include the provision of support (to end users) and/or maintenance of software, or making backups of data from the Customer or the provision of any fall-back facility unless the parties have agreed on this together.
21.2 Splintt may continue to provide the Web Service using a new version of the software. Splintt is not obliged to keep, or add, certain features or functionalities to the Web Service or software unless the parties have agreed otherwise in writing.
21.3 Splintt is allowed to temporarily shutdown the Web Service in order to perform preventive, corrective or adaptive maintenance. Splintt will not prolong any longer than necessary the decommissioning of the Web Service and will, if possible, ensure that the relevant maintenance takes place outside office hours and notify Customer in advance.

22 Identification data

22.1 The password and/or user (s) name (s) and any other information of the user provided by Splintt is strictly personal. The above information is provided for the benefit of a specific person within the organization of the Customer, or if agreed, to a third party. It is not authorized to share or use the above information within the organization of the Customer or with a third party, unless explicitly agreed otherwise.
22.2 Identification data will be provided by Splintt to Customer for the use of the Web Service. Customer shall handle the identification data with care. Customer will notify Splintt in the case of loss, theft and/or other forms of unauthorized use of the identification data so that Splintt can take appropriate action.
22.3 In no event shall Splintt be responsible for the abuse and/or misuse of identification data.
22.4 If there is a reasonable suspicion of misuse or unauthorized use of identification data, Splintt can provide Customer with instructions, which must be carried out.
22.5 If it is determined that misuse has been made of identification data or if Customer ignores instructions given as set out in clause 23.4, Customer will be in default immediately.

23 Warranty

23.1 Splintt does not guarantee that the software that Customer uses via the Web Service and the Web Service itself is error-free and operates without interruptions.
23.2 Customer will identify and take the necessary measures to prevent and limit the consequences of failures, deficiencies in services, corruption or loss of data or other incidents and the risks to its organization on the basis of the information provided by Splintt. Splintt is never responsible for the recovery of corrupted or lost data.
23.3 Splintt does not guarantee that the software that Customer uses via the Web Service is adapted to changes in relevant laws and regulations.

24 Third party access

24.1 Splintt can, under certain conditions specified in the agreement, give Customer the right to grant independent access to the Web Service by third parties.
24.2 Customer acknowledges that there is no contractual relationship between the third party and Splintt and that Customer is the contractual partner of the third party. Customer also acknowledges that Splintt can never be held liable by the relevant third party for any culpable failure or wrongful acts arising from the use of the Web Service. Customer indemnifies Splintt for any amount that Splintt has to pay to a third party as a result of a court judgment regarding the use of the Web Service.

SECTION D
TRAINING

25 Training

25.1 Splintt can provide to Customer training, workshops, assessments, coaching/counselling sessions and other types of training and courses (“Training”).

26 Registration and cancellation

26.1 An application for Training is binding from the moment the agreement is signed by Customer.
26.2 Customer is responsible for the choice and suitability of the Training to the participants. This applies equally if Splintt admits a participant to a Training which is subject to admission standards. Under participants will be understood: the persons who have been signed up for a Training.

27 Replacement participant

27.1 The Customer is allowed to substitute a participant with another participant after prior written consent of Splintt.

28 Cancellation and/or modification

28.1 If the number of registrations justifies doing so in the opinion of Splintt, Splintt is entitled at its discretion to cancel or combine the Training with another Training or to reschedule the Training to another date or place. Splintt is entitled to make organizational and substantive changes to the Training. In case of force majeure on the part of Splintt, as referred to in article 11 of these terms and conditions, Splintt is also entitled to cancel the Training.
28.2 If an agreed Training is divided into phases and a discount is given on the entire Training, or part thereof, and one or more phases of the agreed Training is cancelled or changed (i.e. reduced), then Splintt is entitled to charge the amount of the discount to Customer.
28.3 If Training is cancelled by the Customer, Splintt will be entitled to charge Customer the actual costs incurred (including, but not limited to the rent paid by Splintt to the location where the Training would be given and travel expenses of the trainer or actor). This also applies if there is a situation of force majeure on the side of the Splintt referred to in article 11.
28.4 In addition to the provisions of article 29.3 Splintt is entitled to charge Customer the following percentages of the price stipulated for the (partially) cancelled / modified Training:
a. In-company Training and customized programs and activities not specified under b and c below:
more than 30 Working Days: 0%
between 30 and 21 Working Days: 50%
between 20 and 0 Working Days, or during the Training: 100%;
b. Coaching:
more than 5 Working Days: 0%
between 5 and 3 Working Days: 50%
between 2 and 0 Working Days, or during the Training: 100%;
c. Assessments:
More than 10 Working Days: 0%
between 10 and 6 Working Days: 50%
between 5 and 0 Working Days, or during the Training: 100%.
28.5 The aforementioned periods are Working Days from the receipt of the cancellation / amendment by Splintt until the day of commencement of the relevant Training. The amount included in the contract for the Training shall also include the costs that are associated with the Training such as, but not limited to, costs for project management and costs relating to the preparation of the Training.
28.6 If the contract includes only an estimate of the costs of the Training, this estimate will be used for the purpose of article 29.2 and 29.3.
28.7 If a participant or Customer has already used (Training) materials, the costs regarding the materials will be charged to Customer.

29.5 Bovengenoemde termijnen zijn Werkdagen vanaf het moment van ontvangst van de annulering/wijziging door Splintt tot aanvang van de dag van aanvang van de betreffende Training. Onder het in de overeenkomst voor de Training opgenomen bedrag wordt mede verstaan, de kosten welke aan de Training verbonden zijn zoals, doch niet uitsluitend, kosten voor projectmanagement werkzaamheden en voorbereidingswerkzaamheden.

29 Refusal participant

29.1 Splintt reserves the right to refuse participants access to the Training
a) If there is a delay in the payment of invoices before commencement of the Training;
b) For competitive reasons or other reasonable grounds.

30 Web service

30.1 If Splintt also provides the Web Service, as mentioned in article 19, and Training is cancelled or modified, Customer will be charged for the Web Service if the Web Service is accessed by Customer or participants before the start of the Training. In this case the articles 29.2 and 29.3 also apply to the Web Service. The administration of Splintt is leading in this respect.