Article 1. Definitions

1.1 In these Terms & Conditions, capitalised terms shall be defined as follows:

Highberg Academy: a trade name of Gladwell Academy B.V.;

Agreement: the agreement between Highberg Academy and Client for the provision of Training Services, consisting of the Sales Order Confirmation and these Terms & Conditions;

Intellectual Property Rights: all intellectual property rights, including but not limited to copyright, trademark rights, database rights and know-how;

Participants: employees of Client who will participate in the Training Services provided by Highberg Academy;

Privacy statement: the Highberg Academy privacy statement;

Sales Order Confirmation: the confirmation of the purchase of the Training Services, specifying, among other things, the costs, dates, scope and nature of the Training Services;

Terms & Conditions: these terms and conditions as used by Highberg Academy;

Training Material: the material, documentation and information provided by Highberg Academy through the Training Platform or otherwise in relation to the Training Services;

Training Platform: the platform made accessible by Highberg Academy to Participants as part of the Training Services, which contains, among other things, Training Material and other relevant information;

Training Services: the training, study and related services, including but not limited to access to and use of the Training Platform and Training Material provided by Highberg Academy to Client on the basis of and in accordance with these Terms & Conditions and the Agreement;

Website: Highberg Academy’s website and all underlying webpages.

Article 2. Applicability of the Terms & Conditions

2.1 These Terms & Conditions apply to the Training Services to be performed by Highberg Academy for Client, as further described in the Sales Order Confirmation.

2.2 In the event that one or more terms of the Sales Order Confirmation conflict with these Terms & Conditions, the terms stated in these Terms & Conditions will prevail unless explicitly stated otherwise in the Sales Order Confirmation.

2.3 The relationship between the Parties is that of independent contractors. Nothing in the Agreement will be construed as constituting the Parties as partners, joint venturers or co-owners, or as empowering either Party to act for, bind or otherwise create or assume any obligation on behalf of the other. Neither Party will hold itself out as entitled to do so, unless expressly provided otherwise in the Agreement.

2.4 The applicability of any purchasing terms and conditions used by Client is expressly rejected.

Article 3. Training Services

3.1 The specifications of the Training Services purchased by Client are described in the Sales Order Confirmation.

3.2 Highberg Academy will perform the Training Services to the best of its ability. All Training Services shall be performed on the basis of an obligation to use best endeavours, unless and insofar as Highberg Academy has expressly promised a result in writing.

3.3 Client acknowledges that the content and depth of the Training Services to be provided by Highberg Academy are determined by Highberg Academy at its discretion.

3.4 Highberg Academy, at its own discretion, determines which persons/trainers will provide the Training Services.

3.5 Highberg Academy is entitled to replace persons/trainers with other persons/trainers with similar skills and knowledge.

3.6 Client is responsible for the choice and suitability of the Training Services for the Participants. A lack of prior knowledge on the part of the Participants does not affect Client’s responsibilities under the Agreement.

3.7 Client may cancel the Training without giving a reason within fourteen (14) days. This period starts on the day after the Training is purchased. If the Training is cancelled by Highberg Academy, Client shall be notified by email or telephone no later than seven (7) days before the scheduled start date of the Training.

3.8 If a Training Service is cancelled by Highberg Academy, Highberg Academy will offer Client an alternative date and/or location. If Client accepts the alternative, Highberg Academy will register the new date or dates. Client will then receive a new confirmation containing the alternative date. If Client does not accept the alternative offered, a refund must be requested within five (5) days.

3.9 Cancellation charges do not apply if a Participant is replaced by a colleague. Replacement is possible up to and including the first day of the Training Service. In all other exceptional situations not covered by the above conditions, the course of action will be determined by Highberg Academy.

3.10 Client will inform the Participants of their obligations under the Agreement and of the rules of conduct and any other rules prescribed by Highberg Academy in relation to the Training Services, and shall ensure compliance with these rules and the Agreement.

3.11 If equipment, software or materials belonging to Client are used in providing the Training Services, Client shall ensure the timely availability of properly functioning equipment and software.

Article 4. Training Platform

4.1 In relation to the provision of the Training Services and for the duration of this Agreement, Highberg Academy provides Participants with access to the Training Platform. Participants will receive a password and login details to access the Training Platform.

4.2 For the duration of the Agreement, Client is granted a limited, non-exclusive and non-transferable right to allow Participants to access and use the Training Platform for the purpose of participating in the Training Services. This right of access to and use of the Training Platform is linked to the specific Participants.

4.3 Client and/or Participants may not sell, let, dispose of or grant restricted rights to access to the Training Platform, or otherwise make the Training Platform available to third parties in any way or for any purpose.

4.4 Client is fully, independently and solely responsible for all use of the Training Platform by the Participants.

4.5 Highberg Academy does not guarantee that the Training Platform is free from errors or that all functions will operate without interruption. Highberg Academy shall make reasonable efforts to correct errors in the Training Platform.

Article 5. Payment

5.1 The prices and fees relating to the Training Services are specified in the Sales Order Confirmation. If the scope and/or nature of the Training Services changes during the Agreement, the prices and fees will be amended accordingly.

5.2 All prices are in euros and are exclusive of value added tax (VAT), fees, duties and other government levies that have been or may subsequently be imposed, unless otherwise agreed. Any taxes relating to the Training Services provided under the Agreement shall be paid by Client.

5.3 Amounts due shall be paid by Client in accordance with the payment terms agreed or stated on the invoice. Highberg Academy may invoice certain amounts in advance and other amounts in arrears. If no specific arrangements have been made, Client shall make payment within thirty (30) days of the invoice date or no later than the day on which the Training Services commence. Client shall not be entitled to suspend any payments or offset any amounts due.

5.4 If Client fails to pay the amounts due, or fails to pay them on time, statutory commercial interest shall be payable by Client on the outstanding amount without any demand or notice of default being required.

5.5 If Client still fails to pay the amount owed after receiving a demand or notice of default, Highberg Academy may refer the debt for collection. Client shall also be obliged to pay all court and out-of-court costs in addition to the total amount due, including all costs charged by external experts.

5.6 Relevant documents and information from Highberg Academy’s administration or systems shall constitute conclusive evidence of the Training Services provided and the amounts payable by Client in return for those Training Services, without prejudice to Client’s right to provide evidence to the contrary.

5.7 Notwithstanding the above, if Client fails to fulfil its payment obligations, Highberg Academy may also terminate the Agreement and/or suspend the provision of Training Services to Client.

Article 6. Term and Termination

6.1 The Agreement will enter into force on the date it is signed by both Parties and will continue for the duration of the Training Services. Aside from the situations referred to in articles 3.7 and 3.8 above, the Agreement cannot be terminated early.

6.2 Each Party shall be entitled to rescind (“ontbinden”) the Agreement if the other Party imputably fails to perform material obligations under the Agreement, in all cases after receiving proper written notice of default that is as detailed as possible and allows the defaulting Party a reasonable period in which to remedy the breach.

6.3 Either Party may partially or completely rescind (“ontbinden”) the Agreement in writing with immediate effect and without notice of default if the other Party is granted a provisional or non-provisional suspension of payments, if a petition for liquidation is filed in respect of the other Party, or if the other Party’s business is wound up or terminated for reasons other than a business reconstruction or merger. Highberg Academy shall not be obliged, as a result of such termination, to refund funds already received or pay damages.

6.4 Highberg Academy is furthermore entitled to partially or completely rescind (“ontbinden”) the Agreement in writing with immediate effect, without notice of default and without becoming liable to Client and/or End User in any way, in the event of:

i. any change of control in Client, its affiliated companies and/or shareholders;

ii. Client’s breach of articles 4, 5, 8 or 9.

6.5 If the Agreement is rescinded, there will be no reversal of anything Highberg Academy has already delivered and/or performed and for which Client has paid. Where applicable, amounts invoiced by Highberg Academy before termination in connection with work already properly performed or delivered under the Agreement shall remain due, subject to the preceding sentence, and shall become immediately due and payable in full upon termination.

6.6 If the Agreement terminates for any reason:

i. Highberg Academy reserves the right to cease all further provision of the Training Services;

ii. all rights and licences granted to Client under the Agreement will automatically terminate; and

iii. all outstanding invoices will immediately become due and payable.

In the event of termination, Client shall also be required to immediately return all Confidential Information in accordance with article 9.

6.7 Any rights or obligations that by their nature are intended to remain in force after termination of the Agreement, whether by rescission or otherwise, shall continue in full force and effect following termination.

Article 7. Privacy

7.1 In providing the Training Services, Highberg Academy will process personal data relating to Client and the Participants within the meaning of the European General Data Protection Regulation (EU) 2016/679 (“GDPR”). Highberg Academy processes these personal data in accordance with its Privacy statement, which is available on the Highberg Academy website. Client guarantees that it has provided the Privacy statement to the Participants before the start of the Training Services.

Article 8. Intellectual Property

8.1 The Training Material is and will remain the sole and exclusive property of Highberg Academy and/or its licensors. All Intellectual Property Rights in the Training Material vest in Highberg Academy and/or its licensors. Nothing in this Agreement is intended to transfer any Intellectual Property Rights to Client and/or Participants.

8.2 For the duration of the Agreement, Client is granted a limited, non-exclusive and non-transferable right to allow Participants to access and use the Training Material provided by Highberg Academy through the Training Platform or otherwise, solely for the purpose of participating in the Training Services.

8.3 After completion of the Training Services, Client and Participants may use the Training Material internally within Client’s organisation. Client and/or Participants are expressly not entitled to sell, rent, copy, publish or otherwise monetise the Training Material, including by using the Training Material to provide their own training services.

8.4 Client shall use reasonable efforts to protect Highberg Academy’s and/or its licensors’ Intellectual Property Rights in the Training Material and shall promptly report to Highberg Academy any infringement of such rights of which Client becomes aware, including any infringement by its End Users.

8.5 Client shall refrain from any act that infringes the Intellectual Property Rights of Highberg Academy or its licensors, including, but not limited to:

i. registering domain names, trademarks or Google Ads that are identical or similar to any subject matter in which Highberg Academy or its licensors hold Intellectual Property Rights; and/or

ii. removing, making illegible, concealing or modifying notices or statements of Highberg Academy or its licensors relating to Intellectual Property Rights.

8.6 Third-party licences may form an integral part of the Training Services. If third-party licences form part of the Training Services, Client must comply with the terms and conditions provided by the relevant third party. Without accepting these third-party licences, Client is not entitled to use and/or receive the relevant Training Services.

8.7 All Intellectual Property Rights belonging to Client and/or Participants, including any Intellectual Property Rights in Client Material, shall remain the property of Client and/or Participants.

Client hereby grants Highberg Academy a royalty-free, unlimited, sublicensable and non-exclusive licence to use the Client Material in relation to the Training Services. If material provided by Client and/or Participants is incorporated by Highberg Academy into the Training Material, Highberg Academy shall be entitled to use that material for future Training Services for other clients, provided that all references, trademarks and Confidential Information have been removed from the material.

Article 9. Confidential Information

9.1 All Training Material and information disclosed by one Party (the Disclosing Party) to the other Party (the Receiving Party) will be presumed to constitute Confidential Information and shall be treated as such by the Receiving Party, unless the Receiving Party can prove that the material or information is not Confidential Information because:

a. it has entered the public domain, except where such entry results from the Receiving Party’s breach of this Agreement;

b. it was already known to the Receiving Party at the time of disclosure by the Disclosing Party;

c. it is properly and lawfully received by the Receiving Party from a third party without restriction on disclosure and without knowledge or reasonable suspicion that the third party’s disclosure is in breach of any obligation owed to the Disclosing Party; or

d. it is required to be disclosed pursuant to law or regulation, and only to the extent required, provided that the Receiving Party gives the Disclosing Party reasonable notice of the required disclosure and an opportunity to obtain appropriate protection for the information, to the extent permitted by applicable law or regulation.

9.2 The Parties acknowledge that any Confidential Information disclosed by the Disclosing Party to the Receiving Party may be used solely for its intended purpose, namely the performance of this Agreement.

9.3 The Receiving Party agrees to maintain and preserve the confidentiality of all Confidential Information disclosed to it by the Disclosing Party. This includes, without limitation, taking such steps as are necessary to protect and preserve the confidentiality of the Confidential Information as it would take in relation to its own confidential information, and in any event exercising no less than a reasonable degree of care.

9.4 The Receiving Party further agrees that it will not disclose Confidential Information to any third party without the express written consent of the Disclosing Party and shall require any such third party to comply with confidentiality obligations at least as protective as those contained in this Agreement.

9.5 The Receiving Party shall promptly notify the Disclosing Party if it becomes aware of any unauthorised disclosure of Confidential Information and shall take all necessary measures to prevent any further disclosure and/or use of the unauthorisedly disclosed Confidential Information.

9.6 Upon the first request of the Disclosing Party, the Receiving Party shall immediately return all Confidential Information, including any copies and/or derivative works, to the Disclosing Party and shall immediately cease all use of the Confidential Information.

Article 10. Liability

10.1 The following provisions set out the entire financial liability of Highberg Academy, including any liability for the acts or omissions of its employees, agents, licensors and subcontractors, to Client in respect of any breach of this Agreement and any representation, misrepresentation, whether innocent or negligent, statement, tortious act or omission, including negligence, arising under or in connection with the Agreement.

10.2 The liability of Highberg Academy arising from an attributable failure (“toerekenbare tekortkoming”) to perform the Agreement, an unlawful act (“onrechtmatige daad”) or any other cause shall be limited to compensation for direct loss, up to an amount not exceeding the amount actually paid by Client to Highberg Academy under the Agreement during the preceding twenty-four (24) months. However, the aggregate liability of Highberg Academy under the Agreement for any loss, regardless of cause, shall in no event exceed the total cost of the Training Services for Client.

10.3 Highberg Academy accepts no liability for special, indirect, consequential or purely economic loss, costs, damages, charges or expenses, loss of business, loss of profit, loss of anticipated savings, loss of goodwill, loss caused by business interruption, loss of goods, loss of use, loss in connection with claims, materials, services and/or software supplied by third parties, or loss arising from the engagement of suppliers.

10.4 Highberg Academy and/or its licensors shall not be liable, regardless of cause, for any costs or damage caused by:

i. any use of the Training Services by Client and/or a Participant;

ii. any business decisions made by Client and/or Participants based on the Training Services; and/or

iii. the provision of incorrect or incomplete information by Client.

10.5 The exclusions and limitations referred to in article 10 do not apply if and to the extent that the loss is caused by intent (“opzet”) or gross recklessness (“bewuste roekeloosheid”) on the part of Highberg Academy or its management.

10.6 Any claim for compensation must be submitted to Highberg Academy and shall lapse upon expiry of a period of twelve (12) months after the claim arises. Except where performance has become permanently impossible, liability arising from an attributable failure to perform the Agreement will only arise if Highberg Academy has been placed in default in writing.

10.7 In the event of a breach of the Agreement by Client, Highberg Academy shall at all times be entitled to temporarily suspend access to the Training Services.

Article 11. Force Majeure

11.1 Highberg Academy shall not be liable for any delay or failure in performance resulting from events outside Highberg Academy’s reasonable control, including, without limitation, acts of God, terrorism, earthquakes, governmental acts, labour disputes, utility failures, illness or unavailability of trainers, shortages of supplies, riots, war, fire, epidemics or delays by common carriers.

Article 12. Applicable Law and Jurisdiction

12.1 This Agreement shall be governed by the laws of the Netherlands. The UN Convention on Contracts for the International Sale of Goods (“CISG”) shall not apply.

12.2 All controversies, disputes or claims arising out of or relating to this Agreement or any breach thereof that have not been amicably resolved by the Parties shall be exclusively and finally determined by the competent civil court in Amsterdam, the Netherlands.

12.3 If a complaint cannot be resolved by mutual agreement, Client is also entitled to submit the complaint to:

De Geschillencommissie
PO Box 90600
2509 LP The Hague
The Netherlands
+31 (0)70 310 5310
www.degeschillencommissie.nl

View our Complaints Procedure.

Article 13. Miscellaneous

13.1 Client shall not be authorised to transfer the Agreement and/or any of its rights and obligations arising out of the Agreement, including any licence granted under it, to a third party without the prior written consent of Highberg Academy.

13.2 Highberg Academy shall have the right to assign all or part of this Agreement to any party affiliated with Highberg Academy and/or its sublicensors.

13.3 If one or more provisions of this Agreement are found to be null, void or otherwise invalid, the Parties shall remain bound by the remaining provisions. Any null, void or invalid provision shall be replaced as soon as possible by one or more legally valid provisions that, having regard to the content and intention of this Agreement, correspond as closely as possible to the provision being replaced.

13.4 Additions to and/or deviations from this Agreement shall apply only if agreed in writing between the Parties.