The Recharge Company - General Terms and Conditions 2021
Last updated: 11 November 2021
These are the terms and conditions (the "Terms and Conditions") of The Recharge Company B.V., with its registered office in Amsterdam and registered with the Chamber of Commerce under number 27319781 ("TRC"). TRC is an online and offline training agency that offers programmes focused on vitality and personal development (the "Services"). For more information, see our website: www.recharge360.com (the "Website").Article 1 Definitions
App: the mobile application named Recharge360 that TRC makes available to Participants and/or Client for use on mobile devices;
Participant: the natural person who uses the App and other Services of TRC via an Agreement concluded by a Client for the benefit of its employees/workers;
Client: the legal person that concludes an Agreement with TRC regarding the purchase of Services for its employees/workers;
Membership: some Services are subject to a membership, in which case Client has access to the Services for a predetermined period;
Instruction: any instruction given by Client to TRC for the provision of Services, in whatever form.
Agreement: the agreement that is concluded between TRC and Client the moment TRC accepts the Instruction, including any change or addition to it;
Services: all products and services supplied by TRC in connection with the Agreement (such as the App, workshops, coaching, books, material, etc.) in which Client and Participants are provided with advice, individually or in teams, via presentations, literature, videos and sound recordings, as well as the supply of related products and/or services. This also includes the #Recharge programme, TRC's specific vitality programme with a specific duration, which is used by Participants to work on their physical and mental health individually or in a team.
Clause 2 Applicability Terms and Conditions
2.1 These Terms and Conditions
2.2 Any (general) terms and conditions of Client do not apply.
2.3 These Terms and Conditions will be sent free of charge on request. The request can be sent to firstname.lastname@example.org or requested by telephone on 085-4012444. The Terms and Conditions have also been published on the Website.
2.4 Arrangements that deviate from the Terms and Conditions only apply if expressly agreed upon in writing. If a deviation has been agreed upon, this deviation will only apply to the Agreement, Instruction and/or order concerned.
2.5 TRC has at all times the right to amend these Terms and Conditions in the interim. The amended Terms and Conditions will be published on the Website and apply 30 days from publication to all new agreements to be concluded between the parties as well as to all current Agreements, insofar as they are performed after the date of publication.Clause 3 Offers and quotations
All offers and quotations of TRC are free of obligation, unless otherwise indicated in writing. No rights may be derived from an offer or quotation for a future Instruction or Agreement.Clause 4 Formation and Performance of Agreement
4.1 The Agreement is concluded the moment TRC accepts an Instruction from Client in writing (which also includes by email).
4.2 TRC has the right to refuse Instructions without giving reasons. Also after acceptance of an Instruction as referred to in Clause 4.1, TRC is entitled to cancel it without stating reasons, in which case TRC is not obliged to anything more than refund an advance payment, if any was made by Client.
4.3 Changes to an order must be notified to TRC by Client timely and in writing, and is only effective if accepted by TRC.
4.4 In the performance of the Agreement, TRC is authorised to make use of the mediation or services of third parties it has engaged.
4.5 Client will provide TRC with all information necessary for the performance of the Agreement.
4.6 Delivery times stated by TRC are indicative and not strict deadlines.
4.7 TRC may - within the legal frameworks - inform itself whether Client can fulfil its payment obligations, as well as of all those facts and factors that are relevant for a responsible conclusion of the Agreement.
4.8 Client guarantees the correctness, completeness and reliability of the data and information it provides to TRC, upon request or otherwise.Clause 5 Membership
5.1 The Client with whom an Agreement has been concluded that is subject to Membership will for a defined period have access to TCR Services that have been agreed in advance.
5.2 TRC has at all times the right to deny Client and/or Participants access to the Services, including the App, by blocking the account, or to permanently exclude Client and/or Participant from further use of the Services (including the App), without giving reasons.
5.3 When a Participant makes use of the Membership purchased by Client, TRC will create an account for the Participant concerned. For optimal use of the Services, this account is automatically set to 'public'. Participants can set their account to 'anonymous' at any time.Clause 6 Obligation Client/Participant - Disclaimer
6.1 Participation in and/or use of the Services (including participation in the #Recharge programme and downloading the App) is at the sole risk of Client and the individual Participants. Client and/or Participant is responsible and vouches for a physical and mental health of Participant such that Participant can participate in the Services offered by TRC.
6.2 Client guarantees TRC that it will point out to Participants (in advance) that they should seek medical advice on the purchase of Services.
6.3 The information in the App and the Services cannot be used as a substitute for medical or other professional care or information and is not intended as an aid to (self) diagnosis. In the event of (current) medical questions, pregnancy, complaints or symptoms, Client and/or Participant should contact a (general) medical practitioner or other healthcare professional.Clause 7 Rates
7.1 Instructions are carried out at the rates laid down in the Agreement.
7.2 TRC may pass on to Client any changes in factors that affect the rates of TRC.
7.3 The rates and any cost estimates are always quoted in euro and exclusive of VAT. All levies and taxes imposed or levied in respect of the Services provided by TRC will be borne by Client.
7.4 Additional costs, such as travel expenses, travel time and costs of accommodation will be stated separately.Clause 8 Payment
8.1 Services are invoiced immediately upon delivery. If several Services are provided, then - unless otherwise agreed - the first delivery of these separate Services will be invoiced immediately.
8.2 Client must pay the invoices within thirty (30) days after the invoice date into an account designated by TRC, and do so without any discount, deduction, suspension or set-off.
8.3 Client must notify TRC immediately of any inaccuracies in provided or stated payment details.
8.4 Client will be in default by the mere expiry of a payment term. In that case, all claims of TRC against Client, on whatever grounds, are immediately due and payable.
8.5 If Client exceeds any payment term, TRC is entitled, without prejudice to its other rights, to charge Client default interest equal to the statutory commercial interest plus 2%. In addition, if Client does not pay after being demanded to do so, TRC is entitled to charge all (actual) collection costs incurred by it. These collection costs are fixed at 15 % of the amount due with a minimum of 250 euro, with the proviso that TRC is free to claim the costs actually incurred. Reminders or overviews of outstanding invoices expressed in principal amounts that have been sent to Client in the interim never constitute a forfeiture of rights in respect of default interest or costs, also not if the principal sum of an invoice has been paid and this sum no longer appears as such in reminders or overviews.
8.6 TRC always has the right, before (further) performance, to demand an advance payment or security from Client.
8.7 TRC reserves the right to change prices and rates. Changed prices and rates apply from the moment they are introduced.Clause 9 Obligation and Right to Investigation and Complaints
9.1 Any complaints about the Services must be reported in writing by Client to TRC within eight (8) days after Client has discovered or reasonably should have discovered them. The report must contain as detailed as possible a description of the complaint, so as to enable TRC to respond adequately. After expiry of the above-mentioned term, complaints will no longer be taken into consideration and Client will have forfeited its rights in this respect. The term referred to in section 7:23(2) of the Dutch Civil Code is, in deviation from said section, two (2) months.
9.2 Client must give TRC the opportunity to investigate a complaint and to remedy it where necessary.Clause 10 Cancellation and Amendment
10.1 Client is entitled to cancel the Agreement up to seven (7) working days before the performance of the Agreement starts, so up to seven (7) working days before the intake with Client has taken place. In this case, Client only owes the costs reasonably incurred by TRC up to that moment. If it cancels within seven (7) days before commencement of the performance of the Agreement, it owes 100% of the fee agreed in the Agreement.
10.2 If Client, after mutually agreeing to the Agreement of a personalised product/service, validly cancels the Agreement, Client owes the costs incurred by TRC up to the time of cancellation and the loss suffered by TRC as a result of the cancellation, but in any case: a) 25% of the budget if the cancellation takes place between four and six weeks before the first day of the project or process; b) 50% of the budget if the cancellation takes place between two and four weeks before the first day of the project and/or process; c) 75% of the budget if the cancellation takes place between seven days and two weeks before the first day of the project and/or process; d) 100% of the budget if the cancellation takes place within seven days before the first day of the project and/or process. These costs expressly include compensation for the hours that (employees of) TRC have worked on the project. The cancellation provision in this Clause does not affect TRC's right to full damages, including damage resulting from claims by third parties involved in the performance of the Instruction.
10.3 TRC is at all times entitled to cancel an Agreement/Instruction for whatever reason. In that case, Client is entitled to a refund of the amount paid by it to TRC.Clause 11. Suspension and dissolution
11.1 TRC is authorised to suspend the fulfilment of the obligations or to dissolve the Agreement, if:Client does not or does not fully meet the obligations under the Agreement;after the Agreement has been concluded, circumstances that become known to TRC give TRC good reason to fear that Client will not fulfil its obligations. If there is good reason to fear that Client will only partially or not properly meet its obligations, suspension is only allowed insofar as the failure justifies such action;Client applies for a (temporary) suspension of payments and/or is granted a suspension of payments, applies for bankruptcy or is declared bankrupt, goes into liquidation, discontinues its business or if a post-judgment attachment is levied on a considerable part of the assets of Client.
11.2 TRC is also authorised to dissolve the Agreement or have it dissolved if circumstances arise that are such that performance of the Agreement is impossible or can no longer reasonably be demanded, or if other circumstances arise that are such that an unaltered continuation of the Agreement cannot reasonably be expected.
11.3 If the Agreement is dissolved, TRC's claims against Client become immediately due and payable. If TRC suspends the fulfilment of obligations, it will retain its claims under the law and agreement.
11.4 TRC always reserves the right to claim damages.Clause 12 Liability
12.1 The use of the Services offered by TRC, including the use of equipment and the following of programmes/courses by Client/Participant, is entirely at the risk of Client/Participant.
12.2 TRC can in no way be held liable by Client for damage of whatever nature suffered by anyone as a result of or in connection with the Services provided by TRC, except in the event of intent or gross negligence.
12.3 TRC's liability for indirect damage, including (but not limited to) consequential damage, loss of profit, missed savings, reduced goodwill, damage due to business interruption and reputational damage, is excluded.
12.4 TRC is not liable for any damage that is caused by the fact that TRC, when performing the Agreement, worked on the basis of incorrect and/or incomplete information provided by or on behalf of Client/Participant.
12.5 Should TRC, without prejudice to the provisions in this Clause 12, for any reason whatsoever still be liable, then TRC's liability will be limited to direct damage up to the amount paid out in the specific case by the insurer or TRC. If, for whatever reason, the insurer does not pay out, any liability of TRC is limited to the amount TRC received for the work in connection with which the damage arose, up to a maximum of EUR 5,000 (five thousand euro).
12.6 Direct damage only includes:the reasonable costs incurred to determine the cause and extent of the damage, insofar as this determination relates to damage within the meaning of these Terms and Conditions;any reasonable costs incurred to have the flawed performance of TRC comply with the Agreement/Instruction, unless these cannot be attributed to TRC;reasonable costs incurred to prevent or limit damage, insofar as Client demonstrates that these costs have resulted in limiting direct damage as referred to in these Terms and Conditions.
12.7 All claims of Client expire 12 months after the Services for the Agreement/Instruction have been performed to which these claims relate.Clause 13 (Intellectual) Property Rights
13.1 All (intellectual) property rights relating to the Services are vested exclusively in TRC.
13.2 Without the express prior written permission of TRC, Client may not publish or in any other way reproduce, disclose and/or commercially exploit material, or parts thereof, that has been made available by TRC.
13.3 If Client acts contrary to the prohibition laid down in subclause 13.2, or otherwise infringes TRC's (intellectual) property rights in any way, Client owes TRC an immediately payable penalty, which is not subject to set-off, of EUR 1,000 (one thousand euro) for each infringement, as well as EUR 250 (two hundred and fifty euro) for each day or part thereof that the infringement continues, without prejudice to TRC's other claims, including the right to full compensation.
13.4 TRC guarantees that the Services do not infringe any third-party rights and indemnifies Client in this respect.Clause 14 Privacy/Personal Data
14.1 TRC processes personal data of Client as part of its services. TRC's privacy statement
applies to the collection and processing of personal data of Clients.
14.2 In addition, TRC processes personal data of Participants. These personal data will not be provided to Client. TRC's privacy statement also applies to this processing.Clause 15 Indemnity
15.1 To the extent permitted by law, Client will indemnify and hold TRC harmless from and against all liabilities, damage, losses and costs (including costs of settlement and reasonable attorneys' fees of TRC) of third parties (including Participants) arising out of or in connection with the Agreement, unless the cause of the damage can be attributed to TRC.
15.2 In the event that third parties (including Participants) call TRC to account in situations as described in subclause 15.1, Client will assist TRC both in and out of court and do everything that it may reasonably be expected to do.
Clause 16 Force majeure
16.1 In addition to the provisions of section 6:75 of the Dutch Civil Code, a failure by TRC to fulfil any obligation towards Client cannot be attributed to TRC in the event of a circumstance that is beyond the control of TRC, as a result of which the fulfilment of its obligations towards Client is fully or partially impeded or as a result of which the fulfilment of its obligations cannot reasonably be demanded from TRC. Such circumstances also include a breach of contract by suppliers or other third parties, power failures, computer viruses, pandemics, strikes and work interruptions.
16.2 If a situation as referred to in subclause 16.1 arises as a result of which TRC is unable to fulfil its obligations towards Client, these obligations will be suspended for as long as TRC is unable to fulfil them. If the situation referred to in the previous sentence has lasted thirty (30) calendar days, both parties have the right to dissolve the Agreement in writing in whole or in part. TRC will in that case not be obliged to pay any damage, also not if TRC gains any advantage as a result of the force majeure situation.Clause 17 Non-solicitation
17.1 Client is, without the prior written consent of TCR, not permitted to enter into any agreements or perform any instructions, paid or unpaid, with TRC's partners, either directly or indirectly, without TRC's intervention, during the term of the Agreement/Instruction or within a period of 12 months after its expiry. In this Clause, the term 'partners' means all natural persons and legal entities (such as trainers and coaches) with whom Client has come into contact through mediation or deployment by TRC during the term of the Agreement, this all in the broadest sense of the word.
17.2 In the event of a breach of the non-solicitation provision mentioned in subclause 17.1, Client owes TRC a penalty of EUR 5,000 (five thousand euro) for each breach, which is immediately due and payable and not subject to set-off, as well as EUR 1,000 (one thousand euro) for each day the breach continues, this without prejudice to TRC's other claims, including the right to full compensation.Clause 18 Confidentiality
18.1 Strict confidentiality will apply reciprocally, both during and after the termination of the Agreement, in respect of all data, information and/or particulars that: (a) are or have been exchanged between them; and/or (b) relate to the business of Client or TRC; and/or (c) relate to the Agreement/Instruction itself.
18.2 The obligation of confidentiality mentioned in subclause 18.1 does not apply to information: (a) which was already in the public domain at the time of receipt by the recipient or subsequently became public without any breach by the recipient of an obligation of confidentiality; (b) which the recipient can prove was already in its possession at the time of delivery by the other party; (c) received by the recipient from a third party, where that third party was entitled to provide that information to the recipient; d) which is disclosed by the recipient pursuant to a legal obligation.Clause 19 Partial ineffectiveness
If any provision of these Terms and Conditions is or becomes non-binding, the other provisions will remain in full force. Parties undertake to replace the non-binding provision with a provision which is binding and which deviates as little as possible from the non-binding provision in terms of content and purport. The other provisions of these Terms and Conditions continue to apply in full in such situation.Clause 20 Transfer of Rights and Obligations
20.1 TRC is permitted to transfer the rights and obligations described in the Agreement to third parties without the prior consent of Client.
20.2 Client may not transfer the rights and obligations described in the Agreement to third parties, save with the prior written permission of TRC. This provision is considered to be a clause that has effect under property law within the meaning of section 3:83(2) of the Dutch Civil Code.Clause 21 Applicable law and jurisdiction
21.1 These Terms and Conditions, the Instruction, the Agreement and all other legal relationships between Client and TRC are governed exclusively by Dutch law.
21.2 If parties fail to reach agreement themselves, they have the option of submitting the dispute to an independent mediator. Parties cannot be obliged to do so.
21.3 All disputes arising from or in connection with the these Terms and Conditions and the Agreement will be submitted exclusively to the Courts of Amsterdam.