In these General Terms and Conditions, Seller shall mean: Nomadic IBP, a Dutch company, incorporated under the laws of the Netherlands.
Buyer shall mean: the person or legal entity with whom Seller enters into an Agreement.
1. OFFER, CONFIRMATION OR AGREEMENT
These terms and conditions (the “Terms and Conditions”) apply to and form an integral part of:
- all quotations and offers (hereinafter both referred to as “Offer”) from Seller to Buyer,
- all acceptances, acknowledgements or confirmations by Seller (hereinafter all referred to as “Confirmation”) of any order of Buyer, including without limitation orders of Buyer resulting from any pricing- or other framework agreement between any Buyer and Seller, unless explicitly agreed otherwise in writing between Seller and Buyer,
- any agreement resulting from such Offer or Confirmation and
- any agreement incorporating these Terms and Condition by reference (both types of agreements referred to under (c) and (d) shall hereinafter be referred to as an “Agreement”)
- regarding the sale by Seller and purchase by Buyer of services and/or goods (“Products”), unless Seller explicitly agrees in writing to the exclusion hereof.
These Terms and Conditions shall constitute all of the terms and conditions of any Offer, Confirmation and Agreement between Seller and Buyer relating to the sale by Seller and purchase by Buyer of Products. Any terms and conditions set forth on any document or documents issued by Buyer either before or after issuance of any document by Seller setting forth or referring to these Terms and Conditions are hereby explicitly rejected and disregarded by Seller, and any such document shall be wholly inapplicable to any sale made by Seller and shall not be binding in any way on Seller. No Offer, Confirmation or Agreement constitutes an acceptance by Seller of any other terms and conditions and Seller does not intend to enter into an Agreement other than under these Terms and Conditions.
Any Offer is expressly made conditional on Buyer’s assent to all of the terms contained in the Offer without deviation. Acceptance by Buyer of an Offer may be evidenced by (i) Buyer’s written or verbal assent or the written or verbal assent of any representative of Buyer, (ii) Buyer’s acceptance of delivery of the Products or payment of purchase price for the first installment of the Products (if applicable), or any such acceptance by any representative of Buyer, or (iii) other conduct by Buyer or any representative of Buyer consistent with acceptance of the Offer.
Seller’s Offers are open for acceptance within the period stated by Seller in the Offer or, when no period is stated, within sixty (60) days from the date of the Offer, but any Offer may be withdrawn or revoked by Seller at any time prior to the receipt by Seller of Buyer’s acceptance related thereto.
If Seller receives an order from Buyer for the sale by Seller and purchase by Buyer of Products and such order is not a response to an Offer by Seller, or if Seller receives an order or acceptance by Buyer which deviates from Seller’s Offer, such order or acceptance, respectively, shall be deemed to be a request for an Offer only.
An acceptance by Buyer of any Offer made by an order gatherer, liaison officer, agent or sales representative for Seller shall first constitute an Agreement between Seller and Buyer upon explicit Confirmation by Seller itself.
2. PRODUCTS, QUANTITIES AND PRICING
Prices in any Offer, Confirmation or Agreement are in Euros, unless agreed otherwise in writing between Buyer and Seller. Such deliveries do not include any taxes, duties or similar levies, now or hereafter enacted, applicable to the Products. Seller will add taxes, duties and similar levies to the sales price where Seller is required by law to pay or collect them and will be paid by Buyer together with the price. This will be mentioned on the Confirmation or invoice.
3. RIGHTS IN SOFTWARE, DOCUMENTATION AND INTELLECTUAL PROPERTY
Subject to the provisions set forth herein, the sale by Seller of a Product implies the non-exclusive and non-transferable license to Buyer under any of Seller’s and/or its Affiliates’ intellectual property rights (“Seller’s IPR”) to use Products as sold by Seller to Buyer. To the extent that software and/or documentation is embedded in a Product, the sale of such Product shall not constitute the transfer of ownership rights or title in such software and/or documentation to Buyer, but, subject to the provisions set forth herein, shall only imply a non-exclusive and non-transferable license to Buyer under Seller IPR (1) to use such software and/or documentation in conjunction with and as embedded in the Products as supplied by Seller (the “Seller Product”), and (2) to use such Seller Product in or in conjunction with such Products, as required to enable Buyer to make the normal and intended use of Buyer’s Products; and
- to make and distribute copies of the software and/or documentation, either in electronic or hardcopy format, only as shall be reasonably necessary to enable Buyer to make the normal and intended use of Buyer’s Products.
- Any and all references to “sale” or “sold” of any software or documentation shall be deemed to mean a license regarding such software or documentation, and no ownership or assignment of any intellectual property rights is intended nor shall be implied thereby.
- The term “Affiliate” of Buyer or Seller shall mean any entity or person which: (i) is Controlled by Buyer or Seller; or (ii) Controls Buyer or Seller; or (iii) is under common Control Buyer or Seller.
Buyer shall not:
- modify, adapt, alter, translate, or create derivative works from, any documentation residing in or provided by Seller in conjunction with any Products;
- assign, sublicense, lease, rent, loan, transfer, disclose, or otherwise make available such software and/or documentation;
- merge or incorporate such documentation with or into any other software
- without written authorization from Seller. Buyer shall reproduce, without any amendments or changes thereto, any proprietary rights legends of Seller and/or its Affiliates or its third party suppliers in any software or documentation provided by Seller.
- Buyer shall indemnify Seller and its Affiliates against and hold Seller and its Affiliates harmless from any damage or costs arising from or in connection with any violation or breach of the provisions of this Section 3 and Buyer shall reimburse all costs and expenses incurred by Seller and/or its Affiliates in defending any claim, demand, suit or proceeding arising from or in connection with such violation or breach.
Unless agreed otherwise between Seller and Buyer in writing, Seller may invoice Buyer for the price of the Services delivered upon signing the offer or agreement. Net payment is due within thirty (30) days of date of invoice unless agreed otherwise between Seller and Buyer in writing. All payments shall be made to the designated Seller’s address. If deliveries are made in installments, each installment may be separately invoiced and shall be paid for when due. No discount is allowed for early payment unless agreed to in writing by Seller. Interest will accrue on all late payments, at the rate of 15% per annum from the due date until payment in full.
All deliveries and performance of work agreed to by Seller shall at all times be subject to credit approval of Seller. If, in Seller’s judgment, Buyer’s financial condition at any time does not justify performance of work or delivery on the above payment terms, Seller may require full or partial payment in advance or other payment terms as condition for delivery, and Seller may suspend, delay or cancel any credit, delivery or any other performance by Seller.
If Seller incurs exchange rate losses due to Buyer’s failure to pay when payments are due, Seller shall be entitled to equivalent compensation from Buyer for such losses.
In the event of any default by Buyer in the payment of any fees or charges due, or any other default by Buyer, Seller shall have the right to refuse performance of any work and delivery of any Products until payments are brought current and Seller may suspend, delay or cancel any credit, delivery or any other performance by Seller. Such right shall be in addition to, and not in lieu of, any other rights and remedies available under the Agreement or at law or in equity.
5. RESCHEDULING AND CANCELLATION
The Buyer agrees to pay the following charges to Seller in the event that for whatever reason a Delegate fails to attend, withdraws from or cancels a group event (i.e. training session or a team facilitation session). The Seller will charge the Buyer a percentage of the total fee, depending on when the postponement or cancellation is requested:
- within one month before the start date (25%)
- within three weeks before the start date (50%)
- within two weeks before the start date (75%)
- within one week before the start date (100%)
If a one on one coaching session or client meeting is cancelled or postponed within 48 hours before the set time, the Seller will charge 100% of the fee.
6. FORCE MAJEURE
Seller shall not be liable for any failure or delay in performance if:
- such failure or delay does not result from its fault; or
- such failure or delay is caused by Force Majeure as defined below or by law.
In case of such a non-attributable failure, the performance of the relevant part(s) of the Agreement will be suspended for the period such non-attributable failure continues, without Seller being responsible or liable to Buyer for any damage resulting there from.
The expression “Force Majeure” shall mean and include any circumstances or occurrences beyond Seller’s reasonable control – whether or not foreseeable at the time of the Offer, Confirmation or Agreement – as a result of which Seller cannot reasonably be required to execute its obligations.
Buyer acknowledges that all technical, commercial and financial data disclosed to Buyer by Seller and/or its Affiliates is the confidential information of Seller and/or its Affiliates. Buyer shall not disclose any such confidential information to any third party and shall not use any such confidential information for any purpose other than as agreed by the parties and in conformance with the purchase transaction contemplated herein.
8. COMPLIANCE WITH LAWS
Each party hereto represents that it its duly authorized to enter into the Agreement and represents that with respect to its performance hereunder.
9. GOVERNING LAW AND FORUM
All Offers, Confirmations and Agreements are governed by and construed in accordance with the laws of the Netherlands. All disputes arising out of or in connection with any Offer, Confirmation or Agreement shall first be attempted by Buyer and Seller to be settled through consultation and negotiation in good faith and a spirit of mutual cooperation. All disputes that are not so settled within a period of thirty (30) days from the date the relevant dispute first arose may be submitted to the courts of the United States, provided that Seller shall always be permitted to bring any action or proceedings against Buyer in any other court of competent jurisdiction.
10. BREACH AND TERMINATION
Without prejudice to any rights or remedies Seller may have under the Terms and Conditions and/or the Agreement or at law, Seller may, by written notice to Buyer, terminate with immediate effect the Agreement, or any part thereof, without any liability whatsoever, if: (i) Buyer fails to make payment for any Products to Seller when due; (ii) any proceedings in insolvency, bankruptcy (including reorganization) liquidation or winding up are instituted against Buyer, whether filed or instituted by Buyer, voluntary or involuntary, a trustee or receiver is appointed over Buyer, or any assignment is made for the benefit of creditors of Buyer; or (iii) Buyer violates or breaches any of the provisions of these Terms and Conditions and/or the Agreement. Upon occurrence of any of the events referred to under (i) through (iii) above, all payments to be made by Buyer under the Agreement shall become immediately due and payable.
11. PRODUCT AND PRODUCTION CHANGES
Seller reserves the right to make at any time Product changes. In such event Seller represents that said changes shall not negatively affect form, fit or function of the Products and their performance characteristics.
In the event that any provision(s) of the Agreement or these Terms and Conditions shall be held invalid or unenforceable by a court of competent jurisdiction or by any future legislative or administrative action, such holding or action shall not negate the validity or enforceability of any other provisions thereof.
13. ATTORNEYS’ FEES
Should a dispute arise from the subject matter of any Offer, Confirmation or Agreement, the prevailing party in any resulting litigation shall be reimbursed by the other party for any and all reasonable attorneys’ fees and expenses incurred.
14. RELATIONSHIP OF PARTIES
The parties hereto intend to establish a relationship of buyer and seller and as such are independent contractors with neither party having authority as an agent or legal representative of the other to create any obligation, express or implied, on behalf of the other.
15. MODIFICATIONS AND CHANGES
Seller reserves the right to make any amendments or changes to these Terms and Conditions at any time. Such amendments, modifications and changes shall have effect (1) to all Offers, Confirmations and Agreements referring to such amended or modified Terms and Conditions as from the date of such Offer, Confirmation or Agreement, and (2) to any existing Agreement thirty (30) days from notification of such amendments or modifications by Seller to Buyer, unless Buyer has notified Seller within such 30 days period that it objects thereto.