General Terms and Conditions Kimness
These are the general terms and conditions of (Flower of Love) Kimness, registered with the Chamber of Commerce of the Netherlands under number 77999363.
Article 1 – Definitions
1. In these general terms and conditions, the following terms are used with the following meaning, unless explicitly stated otherwise.
2. Offer: any offer or quotation to the Participant for the provision of Services or the sale of Products by Kimness.
3. Company: The natural or legal person acting in the exercise of a profession or business.
4. Participant or Customer: the natural person who actually uses the products and services of Kimness. When talking about agreements between Kimness and the Client, this also includes agreements made with the parents or legal representatives of the Client insofar as the Client has not yet reached the age of 16 years.
5. Kimness: The service provider who offers Services and / or the supplier of Products to the Participant.
6. Consumer: The natural person who is not acting in the exercise of a profession or business.
7. Services: The Services that Kimness offers are online / offline (group) coaching, meditation and activation and related activities such as “life coach” and services related to “mindset” change.
8. Agreement: every Agreement and other obligations between the Participant and Kimness, as well as proposals by Kimness for Services provided by Kimness to the Participant and which are accepted by the Participant and have been accepted and performed by Kimness, with which these general terms and conditions form an inseparable whole. As a starting point, the Participant and Kimness will intend to exclude the applicability of an employment contract within the meaning of Article 7: 610 et seq. Of the Dutch Civil Code with regard to the Agreement. Participant and Kimness prefer to contract on the basis of a contract for services within the meaning of Article 7: 400 et seq. Of the Dutch Civil Code, unless the (mandatory) laws and / or regulations provide otherwise. The parties intend, where appropriate, to refuse the fictitious employment relationship of homeworkers or persons treated as such as referred to in Articles 2b and 2c Wage Tax Implementation Decree 1965 and Articles 1 and 5 of the Decree designating cases in which employment is regarded as employment (Decree of 24 December 1986, Stb 1986, 655).
9. Products: The Products that Kimness offers, depending on the program, are online or digital sessions and (group) coaching, (work) books, course materials, online downloads and / or other documents.
Article 2 – Applicability
1. These general terms and conditions apply to every Offer by Kimness, every Agreement between Kimness and the Participant and to every Service and / or Product offered by Kimness.
2. Before an Agreement is concluded, the Participant will have access to these general terms and conditions. If this is not reasonably possible, Kimness will indicate to the Participant how the Participant can view the general terms and conditions.
3. Deviation from these general terms and conditions is not possible. In exceptional situations, the general terms and conditions can be deviated from insofar as this has been explicitly agreed in writing with Kimness.
4. These general terms and conditions also apply to additional, amended and follow-up assignments from the Participant.
5. The general terms and conditions of the Participant are excluded.
6. If one or more provisions of these general terms and conditions are partially or completely null and void or are nullified, the other provisions of these general terms and conditions will remain in force, and the void / nullified provision (s) will be replaced by a provision with the same purport as the original provision.
7. Uncertainties about the content, explanation or situations that are not regulated in these general terms and conditions should be assessed and explained in the spirit of these general terms and conditions.
8. The applicability of Articles 7: 404 BW and 7: 407 paragraph 2 BW of the is explicitly excluded.
9. If reference is made to him / her in these general terms and conditions, this should also be understood as a reference to he / him / his, if and insofar as applicable.
10. In the event that Kimness has not always demanded compliance with these general terms and conditions, it will retain its right to claim full or partial compliance with these general terms and conditions.
Article 3 – The Offer
1. All offers made by Kimness are without obligation, unless explicitly stated otherwise in writing. If the Offer is limited or valid under specific conditions, this will be explicitly stated in the Offer.
2. Kimness is only bound by an Offer if it is confirmed in writing by the Participant within 30 days, or if the Participant has already paid the amount due. Nevertheless, Kimness has the right to refuse an Agreement with a (potential) Participant for good reason for Kimness.
3. The offer contains a description of the Services and / or Products offered with associated prices. The description is sufficiently specified so that the Participant is able to make a proper assessment of the offer. Any information in the offer is only an indication and cannot be a ground for any compensation or the dissolution of the Agreement.
4. Offers or quotations do not automatically apply to follow-up orders.
5. Delivery times in Kimness’s offer are in principle indicative and do not entitle the Participant to dissolution or compensation if they are exceeded, unless explicitly agreed otherwise.
Article 4 – Establishment of the Agreement
1. The Agreement is concluded when the Participant has accepted an Offer or Agreement from Kimness by signing the Agreement and / or by paying for the Product / Service concerned.
2. Kimness is not bound by an Offer if the Participant could reasonably have expected or should have understood that the Offer contains an obvious mistake or clerical error. The Participant cannot derive any rights from this mistake or error.
3. An Offer can be made by Kimness via the Website or email.
4. If the Participant cancels an already confirmed assignment, the costs already actually incurred (including the time spent) will be charged to the Participant and administration costs.
5. Any Agreement entered into with Kimness or a project awarded to Kimness by Participant rests with the company and not with an individual person associated with Kimness.
6. The right of withdrawal of the Participant being a Company is excluded, unless otherwise agreed. Participant being a Consumer has the right to withdrawal during the legal period of 14 days, unless Kimness has already started the Services with the consent of the Participant. Participant waives his right of withdrawal by means of this permission.
7. Participant has no right of withdrawal in the event of the purchase of digital Products. Immediately after payment, the customer receives the digital products via the e-mail address provided by it.
8. If the Agreement is entered into by several Participants, each Participant is individually jointly and severally liable for the fulfillment of all obligations arising from the Agreement.
Article 5 – Duration of the Agreement
1. The Agreement is entered into for a definite period of time. The duration of the assignment also depends on external factors including, but not limited to the quality and timely delivery of the information that Kimness obtains from the Participant.
2. Depending on the Product and / or Service that is purchased by the Participant, the term of the Agreement is determined as follows:
- The Agreement regarding a Single Service ends after this session. A single session can be moved once free of charge up to 24 hours before the start. If the Participant does not move the session within the set period, the right to this will lapse and the Participant must purchase and schedule a new session. If the Participant fails to attend a scheduled 1-on-1 session, the Participant will be fully charged for the session and no refund will be issued.
- Online Products: these Products are available for a maximum of 1 year / are online for a maximum of 1 year.
- Course / program / group coaching: reference is made to the applicable specific delivery conditions / order confirmation with regard to, among other things duration and / or cancellation.
- By purchasing a 1-on-1 single session/mentorship, you are required to schedule and utilize it within a period of two months from the date of purchase. Similarly, if you purchase a 1-on-1 session/mentorship 1-month package, it must be scheduled and completed within a period of three months. It is important to note that once these expiration periods pass, any sessions that remain unused will be considered forfeited, and no refunds or credits will be provided. Please be aware that any extensions to the exploration date, beyond the specified expiration periods, must be agreed upon in writing with Kimness. Kindly ensure that you communicate and obtain written consent from Kimness regarding any requests for such extensions.
- The subscription for the Service is entered into for a period of 6 or 12 months. The subscription will be tacitly renewed each time after the expiry of the subscription period by the original term, unless the Participant has terminated the Agreement at least 1 month before the expiry of the relevant period without refund of money already paid. The subscription cannot be canceled prematurely in the first subscription period. After the expiry of the first subscription period, the subscription can be terminated monthly in writing with due observance of a notice period of one month.
- Unique Payment Plans and Access Denial: In the unique event that Kimness has offered you a payment plan, which deviates from our typical arrangement where the program investment is fully paid before its commencement, it is imperative to strictly adhere to the agreed-upon payment schedule. As a special gesture, in highly unique instances, a personalized payment plan may be extended to select clients. If you find yourself in this situation, alongside the confirmation email that grants you access to the program content, you would have also received a comprehensive payment schedule detailing specific dates and corresponding payment links. Failing to comply with this payment plan and neglecting timely payments could result in the (temporary) denial of access to the program for which you have enrolled. Additional Administration Costs for Late Payments: Should you falter in making payments within the specified timeframe, even subsequent to receiving a reminder email, you will incur additional administration costs. These costs will progressively accumulate alongside each successive email reminder until your complete payment obligation is met. It is of utmost importance to uphold your financial commitment, thereby avoiding the accrual of these escalating administration costs. We emphasize the importance of transparent communication regarding any potential challenges you may face in meeting your payment obligations.
3. Both the Participant and Kimness can dissolve the Agreement on the basis of an attributable shortcoming in the performance of the Agreement if the other party has been given written notice of default and has been given a reasonable period to fulfill its obligations and it still fails to fulfill its obligations in that case. correctly. This also includes the Participant’s payment and cooperation obligations.
4. The dissolution of the Agreement does not affect the Participant’s payment obligations insofar as Kimness has already performed work or has delivered performances at the time of the dissolution. Participant must pay the agreed fee.
5. If an appointment already planned is canceled by the Participant from 24 hours until the commencement date, Kimness is entitled to charge the time reserved for this on the basis of the established (hourly) rate, as well as costs already incurred for the implementation of the Agreement. to be charged to the Participant.
6. In the event of premature termination of the Agreement (with regard to a 1-on-1 session), the Participant owes Kimness the actual costs incurred up to that time at the agreed (hourly) rate. The hour registration of Kimness is leading in this. Kimness is also entitled to charge administration costs.
7. Participant being a Company can cancel an already planned 1-on-1 appointment free of charge up to one week in advance. For Participant being a Consumer, he can cancel an appointment that has already been planned free of charge up to 48 hours in advance. If an appointment that has already been scheduled is canceled by the Participant within the set terms, Kimness is entitled to charge the reserved time on the basis of the established (hourly) rate. Kimness is entitled to charge any administration costs.
8. Both the Participant and Kimness can terminate the Agreement in whole or in part in writing with immediate effect, without further notice of default, in the event that one of the parties is in suspension of payments, bankruptcy has been filed or the company concerned ends by liquidation. If a situation as mentioned above occurs, Kimness is never obliged to refund money already received and / or compensation.
Article 6 – Implementation of the Agreement
1. Kimness will make every effort to perform the agreed service with the greatest possible care, as may be expected from a good service provider. Kimness guarantees a professional and independent service. All Services are performed on the basis of a best efforts obligation.
2. The Agreement on the basis of which Kimness performs the Services is leading for the scope and scope of the services. The Agreement will only be performed for the benefit of the Participant. Third parties cannot derive any rights from the content of the Services performed in connection with the Agreement.
3. The information and data provided by the Participant are the basis on which the Services and prices offered by Kimness are based. Kimness has the right to adjust its services and its prices if the information provided turns out to be incorrect and / or incomplete.
4. In the performance of the Services, Kimness is not obliged or obliged to follow the instructions of the Participant if this changes the content or scope of the agreed Services. If the instructions result in further work for Kimness, the Participant is obliged to reimburse the additional costs accordingly on the basis of a new quotation.
5. Kimness is entitled to engage third parties for the performance of the Services at its own discretion.
6. If the nature and duration of the assignment so require, Kimness will keep the Participant informed of the progress in the meantime via the agreed manner.
7. The performance of the Services is based on the information provided by the Participant. If the information needs to be changed, this may have consequences for any established schedule. Kimness is never liable for adjusting the planning. If the start, progress or delivery of the Services is delayed because, for example, the Participant has not provided all the requested information or has not provided all requested information on time, or does not provide sufficient cooperation in the desired format, a possible advance payment has not been received by Kimness on time or due to other circumstances , which are at the expense and risk of the Participant, if there is a delay, Kimness is entitled to a reasonable extension of the delivery / completion period. All damage and additional costs as a result of delay due to a cause as mentioned above are at the expense and risk of the Participant.
Article 7 – Participant’s obligations
1. The Participant is obliged to provide all information requested by Kimness as well as relevant appendices and related information and data in a timely manner and / or before the start of the activities and in the desired form for a correct and efficient performance of the Agreement. Failing this, it may occur that Kimness is unable to realize a full implementation and / or delivery of the relevant documents. The consequences of such a situation are at all times at the expense and risk of the Participant.
2. Kimness is not obliged to check the accuracy and / or completeness of the information provided to it or to update Participant with regard to the information if it has changed over time, nor is Kimness responsible for the correctness and completeness of the information that has been compiled by Kimness for third parties and / or is provided to third parties in the context of the Agreement.
3. Kimness may request additional information if this is necessary for the performance of the Agreement. Failing this, Kimness is entitled to suspend its activities until the information has been received, without being obliged to pay any compensation for whatever reason towards the Participant. In the event of changed circumstances, the Participant must notify Kimness of this immediately or no later than 3 working days after the change has become known.
4. The Participant is obliged to inform Kimness of the presence of any medical / physical complaints or conditions before the start of the Service. If the Participant does not report medical complaints or other physical conditions to Kimness in time, there is a chance that the existing complaints will worsen. Failure to report such complaints and / or disorders is at the expense and risk of the Participant.
5. If any physical complaints arise or worsen at the Participant after using the Service of Kimness, the Recipient must always consult a doctor or medical specialist.
6. The Participant is prohibited from recording the online sessions via Zoom. Kimness is entitled to make sound and image recordings in order to guarantee the quality.
7. Participant acknowledges that they take full responsibility for themselves and for all choices, actions and results made before, during and after the program. Participant knowingly assumes all risks associated with the Program associated with the use, misuse, or non-use of the Program content or materials. Participant agrees to take his / her own well-being into account throughout the course of this program, and understands and agrees to be independently responsible for his / her results.
8. The programs and program materials are provided as self-help resources for your own use and for informational and educational purposes only. There are many factors that influence the results, so no guarantees can be made about the results.
Article 8 – Advice
1. If instructed to do so, Kimness can draw up an advice, action plan, design, report, planning and / or reporting for the benefit of the service. The content thereof is not binding and only advisory in nature, but Kimness will observe its duties of care. The participant decides itself and is on its own responsibility whether to follow the advice.
2. The advice provided by Kimness, in whatever form, can never be regarded as medical and binding advice.
3. At Kimness’s first request, the participant is obliged to assess the proposals it has provided. If Kimness is delayed in its activities, because the Participant does not or not timely assess a proposal made by Kimness, the Participant is at all times responsible for the resulting consequences, such as delay.
4. The nature of the service means that the result at all times depends on external factors that can influence the reports and advice of Kimness, such as the quality, correctness and timely delivery of the required information and data of the Participant and his employees. The participant guarantees the quality and the timely and correct delivery of the required data and information.
5. The Participant will report to Kimness orally prior to the commencement of the activities all circumstances that are or may be important, including any points and priorities for which the Participant wishes attention.
6. While every effort has been made to present the most accurate studies and information in a program to date, Participant understands and agrees that the information in a program is for informational and educational purposes only. Because research and information changes regularly, Participant agrees that Kimness is not liable for the accuracy, errors or omissions of statements in the Program. Participant agrees that the information is not a substitute for personal healthcare, medical, mental health, financial, legal, or religious advice of any kind. Recognizing that the information that Participant requests or receives through a program, including program materials, products and any other information that Participant has received from or through a program, is purely informational and educational. Participant agrees that Participant is completely free from damages and injury and Participant indemnifies Kimness against all liability, damages, causes of action, allegations, lawsuits, sums of money, claims and demands of any kind, in law or in equity, which Participant has ever had, now has, or could claim to be against Kimness in the future arising from participation in a Program to the extent permitted by applicable law. Participant agrees to hold Kimness free from all liability and responsibility for actions or results with actual or alleged adverse effects that Participant claims were created as a direct or indirect result of specific information or recommendations that Participant received through a program.
Article 9 – (online) program
1. If instructed to do so, Kimness can provide a (coaching) program for Participant and other participants. If the coaching program is referred to below, this also includes a meditation block, course, training and / or group programme / session.
2. For children under the age of 16, both authoritative parents / guardians must agree to the coaching. The instructing and authoritative parent and / or caregiver ensures that any other authoritative parent is informed about the coaching and gives his / her permission for this. He / she agrees that if the other parent objects to coaching in any way, he / she will assume the consequences. The parent / guardian who is substantively involved in the coaching of Kimness is also responsible for transferring the information. Kimness cannot be held responsible in any way for any lack thereof.
3. The online programs take place mostly via Zoom.
4. The programs can also take place at the location of the Participant or at a location of Kimness to be determined.
5. Participants are advised to attend all meetings.
6. The content of the (online) programs offered by Kimness and the advice provided during the program are not binding and only advisory and educational in nature, but Kimness will observe its duties of care. As far as possible, the program is tailored to the wishes of the Participant as well as the needs of the relevant participant (s).
7. Participant will report to Kimness verbally prior to the start of an (online) program all circumstances that are or may be important, including any points and priorities for which the Participant wishes attention.
8. Kimness is entitled to cancel the (online) programs or to move them to another date if there are not enough registrations. It is solely at the discretion of Kimness to move the (online) programs. If the Participant is not available on the new set date, the Participant can participate at a different time or follow it via the replay.
9. Timely cancellation or change is possible via email@example.com.
10. In the case of online services / online (ready-to-use) programs, Participants receive direct access. Such Agreements cannot be cancelled and charges paid are non-refundable.
11. Articles 10 and 11 apply to a Program and / or coaching for which the Parties have agreed on a specific period.
Article 10 – Fee and payment Program
1. The delivery conditions / order confirmation are binding for the duration of the (online) program. After registration Kimness is entitled to charge the total amount.
2. Refund of any payments is not possible.
3. In the absence of timely payment, Kimness has the right to claim the full outstanding amount without notice and / or notice of default. The statutory interest is reimbursed from 30 days after the amount is due and payable. All (extra) judicial collection costs, with a minimum of € 100, = and interest will be charged to the negligent party.
4. In addition, Kimness has the right to refuse participation in the program, without prejudice to the Participant’s obligation to pay the amount owed to Kimness.
Article 11 – Cancellation (online) program
1. In case of cancellation up to four weeks before the start of a program, the participant owes 10% of the program amount.
2. In case of cancellation between four and two weeks before the start of the program, the participant owes 50% of the program.
3. In case of cancellation within two weeks before the start of the program, the entire amount is due.
4. If a participant terminates the program prematurely, no partial refund will be made. Payment in instalments for the relevant program must be paid in full.
5. In case of cancellation of the program by Kimness, a refund will be made for the part of the program in which you did not receive the service.
6. Unless otherwise provided by law, Affiliate acknowledges that, in principle, Kimness is not required to provide a refund for any portion or future payments for Programs, Products and Services, and that no refund will be issued to you at any time.
7. Participant has the right to cancel Participation (without claiming any form of refund) at any time by giving written notice to Kimness. Full responsibility for all current and future costs remains intact unless otherwise agreed.
Article 12 – Additional activities and changes
1. If during the execution of the Agreement it appears that the Agreement needs to be adjusted, or if further work is required at the request of the Participant to achieve the desired result of the Participant, the Participant is obliged to pay for this additional work according to the agreed rate. Kimness is not obliged to comply with this request and may require the Participant to conclude a separate Agreement for this and / or refer to an authorized third party.
2. If the additional activities are the result of Kimness’s negligence, Kimness has made an incorrect estimate or could reasonably have foreseen the relevant activities, these costs will not be passed on to the Participant.
Article 13 – Delivery of Products
1. If the start, progress or delivery of the Agreement is delayed because, for example, the Participant has not provided all requested information or has not provided sufficient cooperation, the (down) payment has not been received by Kimness on time or due to other circumstances If any delay occurs beyond the control of Kimness, Kimness is entitled to a reasonable extension of the delivery / completion period. All agreed delivery terms are never strict deadlines. The participant must give Kimness written notice of default and allow it a reasonable term to still be able to deliver. The participant is not entitled to any compensation due to the delay.
2. After payment for the Products, the Participant must create an account or will receive an e-mail with a link to the relevant Products with which he will gain access to the Products that have been purchased. The Participant can access the Products by logging into the account.
3. The digital Products can be downloaded via a link in the account or the e-mailed link and stored on a permanent data carrier of the Participant. When opening this link you will be asked for a password. Kimness will keep the Products or materials accessible for the Participant / Participant for a maximum of one year. if Kimness removes the Products or the materials and / or moves them to a different URL, Kimness will inform the Participant or Participant about this by e-mail 2 weeks in advance. After this notification, the Participant is responsible for downloading / storing the Products and / or materials.
4. Updates and new versions of the Products are not covered by the Agreement and must be purchased separately.
5. If Kimness requires information from the Participant in the context of the performance of the Agreement, the delivery time will only commence after the Participant has made all the information necessary for the performance available to Kimness.
6. If Kimness has stated a term for delivery, this is indicative.
7. Deliveries will only be made if all invoices have been paid unless expressly agreed otherwise. Kimness reserves the right to refuse delivery if there are well-founded fears of non-payment.
8. The Participant is not allowed to resell or forward the delivered digital Products, this is seen as a violation of the intellectual property rights of Kimness and penalized in accordance with the provisions of Article 19.
Article 14- Prices and payment
1. All prices are in principle inclusive of turnover tax (VAT), unless otherwise agreed. For companies, the prices are stated exclusive of VAT.
2. Kimness performs its services in accordance with the agreed (hourly) rate.
3. If applicable, travel time for the benefit of the Participant and travel-related costs will be charged to the Participant unless otherwise agreed.
4. The Participant is obliged to fully reimburse the costs of third parties that are deployed by Kimness after approval of the Participant, unless expressly agreed otherwise.
5. The costs of a subscription are collected monthly on the basis of direct debit.
6. Payment must be made in advance, unless otherwise agreed.
7. The parties can agree that the Participant must pay an advance. If an advance has been agreed, the Participant must pay the advance before a start is made with the performance of the services.
8. Participant cannot derive any rights or expectations from a previously issued budget, unless the parties have explicitly agreed otherwise.
9. Kimness is entitled to increase the applicable prices and rates. Other price changes during the Agreement are only possible if and insofar as they have been expressly laid down in the Agreement. The price of a program must be paid in advance before the start; thereafter there will be no price changes for this specific agreement. With regard to everything else, Kimness is entitled to implement price changes at its own discretion.
10. Participant must pay these costs all at once, without settlement or suspension, within the specified payment term of no more than 14 days as stated on the invoice, to the account number and details of Kimness made known to it.
11. In the event of liquidation, insolvency, bankruptcy, involuntary winding-up or request for payment towards the Participant, the payment and all other obligations of the Participant under the Agreement become immediately due and payable.
12. Offers, prices or quotations do not automatically apply to future programs or quotations.
13. “Tickets” that are bought for an (online) event cannot be cancelled.
Article 15 – Collection policy
1. If the Participant does not fulfil its payment obligation, and has not fulfilled its obligation within the stipulated payment term of 14 (calendar) days, the Participant being a Company is in default by operation of law. Participant being a Consumer will first receive a written reminder with a term of 14 days after the date of the reminder to still comply with the payment obligation, including a statement of the extrajudicial costs if the Consumer does not comply with its obligations within that period, before is in default.
2. From the date that the Participant is in default, Kimness will be entitled, without further notice of default, to the statutory commercial interest from the first day of default until full payment, and compensation of the extrajudicial costs in accordance with Article 6:96 of the Dutch Civil Code, to be calculated according to the graduated scale from the decision. compensation for extrajudicial collection costs of [date].
3. If Kimness has incurred more or higher costs which are reasonably necessary, these costs are eligible for reimbursement. The integral judicial and execution costs incurred are also at the expense of the Participant.
Article 16 – Privacy, data processing and security
1. Kimness handles the (personal) data of the Participant with care and will only use them in accordance with the applicable standards. If requested, Kimness will inform the person concerned about this.
2. Participant is responsible for the processing of data that are processed using a Kimness service. The participant also guarantees that the content of the data is not unlawful and does not infringe any rights of third parties. In this context, the Participant indemnifies Kimness against any (legal) claim related to this information or the performance of the Agreement.
3. If Kimness is required to provide security for information on the basis of the Agreement, this security will meet the agreed specifications and a security level that, in view of the state of the art, the sensitivity of the data and the associated costs, is not unreasonable.
Article 17 – Suspension and dissolution
1. Kimness has the right to retain the data, data files and more it has received or realized if the Participant has not yet (fully) fulfilled its payment obligations. This right remains in full force if a valid reason for Kimness arises, which justifies suspension in that case.
2. Kimness is entitled to suspend the fulfilment of its obligations as soon as the Participant is in default with the fulfilment of any obligation arising from the Agreement, including late payment of its invoices. The suspension will be immediately confirmed in writing to the Participant.
3. In that case Kimness is not liable for damage, for whatever reason, as a result of the suspension of its activities.
4. The suspension (and / or dissolution) does not affect the Participant’s payment obligations for work already performed. In addition, Participant is obliged to compensate Kimness for any financial loss Kimness suffers as a result of Participant’s default.
Article 18 – Force majeure
1. Kimness is not liable if it cannot fulfil its obligations under the Agreement as a result of a force majeure situation.
2. Force majeure on the part of Kimness is in any case understood to mean, but is not limited to: (i) force majeure on the part of suppliers of Kimness, (ii) the failure to properly fulfil obligations of suppliers that the Participant or its third parties pay to Kimness are prescribed or recommended, (iii) deficiency of software or any third parties involved in the performance of the service, (iv) government measures, (v) failure of electricity, internet, data network and / or telecommunication facilities, (vi) illness of employees of Kimness or advisers engaged by it and (vii) other situations that, in Kimness’s opinion, fall outside its sphere of influence that temporarily or permanently prevent the fulfilment of its obligations (viii) consequences of pandemics and epidemics.
3. In case of force majeure, both Parties have the right to dissolve the Agreement in whole or in part. All costs incurred before the dissolution of the Agreement will in that case be paid by the Participant. Kimness is under no obligation to compensate Participant for any losses caused by any such withdrawal.
Article 19 – Limitation of Liability
1. Kimness makes no promises about a result to be achieved. Kimness only provides advice / education. There are many factors that influence the results, so no guarantees can be made as to the results one will experience.
2. If there is an attributable shortcoming on the part of Kimness, Kimness is only obliged to pay any compensation if the Participant has given Kimness notice of default within 14 days after discovery of the shortcoming and Kimness has not subsequently rectified this shortcoming within a reasonable period. The notice of default must be submitted in writing and contain such an accurate description / substantiation of the shortcoming, so that Kimness is able to respond adequately.
3. If the provision of Services by Kimness leads to liability on the part of Kimness, that liability is limited to the total amount that is invoiced in the context of the Agreement, but only with regard to the direct damage, indirect damage or injury resulting from the Participant. from or in connection with the Services offered by Kimness, unless the damage is the result of intent or recklessness bordering on intent on the part of Kimness. Direct damage is understood to mean: reasonable costs incurred to limit or prevent direct damage, determine the cause of damage, direct damage, liability and the manner of recovery.
4. Kimness explicitly excludes all liability for consequential damage. Kimness is not liable for indirect damage, loss of profits, loss of profit and / or loss, missed savings, damage due to business interruption, capital losses, loss due to delay, interest damage and immaterial damage.
5. Participant freely uses the Services of Kimness. All Services are at the risk of the Participant. Kimness is not liable for damage and / or physical injury occurring before, during and after a Service. If the Participant fails to disclose any relevant information regarding medical conditions or physical complaints and the Participant incurs physical injury or otherwise damage as a result, this will never constitute grounds for Kimness’s liability.
6. The Participant indemnifies Kimness against all claims from third parties as a result of a defect as a result of a service provided by the Participant to a third party and which also consisted of Services provided by Kimness, unless the Participant can demonstrate that the damage was exclusively caused by the service from Kimness.
7. Any advice and education provided by Kimness on the basis of incomplete and / or incorrect information provided by the Participant is never grounds for Kimness’s liability.
8. The content of the advice provided by Kimness is not binding and only advisory and educational in nature. The participant decides itself and on its own responsibility whether to follow the proposals and advice of Kimness mentioned therein. All consequences arising from the follow-up of the advice are at the expense and risk of the Participant. Participant is at all times free to make its own choices that deviate from the advice provided by Kimness. Kimness is not bound by any form of refund if this is the case.
9. If a third party is engaged by or on behalf of the Participant, Kimness is never liable for the actions and advice of the third party engaged by the Participant as well as the processing of results (of advice drawn up) of the third party engaged by the Participant in Kimness’s own advice.
10. Kimness does not guarantee a correct and complete transfer of the content of and e-mail sent by / on behalf of Kimness, nor the timely receipt thereof.
11. Kimness is not liable if the Buyer does not achieve any result and the damage resulting from this after using the Products / Services of Kimness. Kimness is never liable for any (printing) errors in the Products delivered.
12. All claims of the Participant due to shortcomings on the part of Kimness lapse if they are not reported in writing and with reasons to Kimness within one month after the Participant was known or could reasonably have been aware of the facts on which it bases its claims. One year after the termination of the Agreement between the parties, Kimness’s liability will lapse.
13. All consequential damage is expressly excluded from Kimness’s liability.
14. Successful completion of the coaching / training by Participant is not guaranteed. The participant is always responsible for the successful completion of the coaching / training. Kimness has a best efforts obligation to guide the Participant to the best of its ability within the framework of the agreement. Any liability for damage as a result of not successfully completing the coaching / training is excluded, explicitly including consequential damage.
Article 20 – Confidentiality
1. Kimness and Participant undertake to maintain the confidentiality of all confidential information obtained in the context of an assignment. Confidentiality arises from the assignment and must also be assumed if it can reasonably be expected that it concerns confidential information. The confidentiality does not apply if the information concerned is already public / generally known, the information is not confidential and / or the information has not been disclosed to Kimness during the Agreement and / or has been obtained by Kimness in another way.
2. If Kimness is obliged on the basis of a duty of care, legal provision or a court decision to (also) provide the confidential information to a third party designated by law or authorized judge or designated third party and Kimness cannot invoke a right of non-disclosure and / or professional secrecy Kimness is not obliged to pay any compensation and does not give the Participant any ground for dissolution of the Agreement.
3. The confidentiality obligation also imposes on Kimness and the Participant the third parties to be engaged by them.
4. In Group Sessions, a Participant must also treat the information shared by another Participant with the utmost care and confidentiality.
Article 21 – Intellectual Property Rights
1. All Intellectual Property rights and copyrights of Kimness, including in any case, but not limited to all programs, digital Products, reports, educational documents and advice, rest exclusively with Kimness and are not transferred to the Participant unless explicitly agreed otherwise.
2. If it has been agreed that one or more of the aforementioned goods or works of Kimness will be transferred to the Participant, Kimness is entitled to conclude a separate Agreement for this and to demand an appropriate monetary compensation from the Participant. Such a fee must be paid by the Participant before it obtains the relevant goods or works with the IP rights attached to them.
3. The Participant is prohibited from disclosing and / or multiplying, changing or making available to third parties (including use for commercial purposes) all documents and software on which the IP rights and copyrights of Kimness rest without express prior written permission. from Kimness. If the Participant wishes to make changes to goods delivered by Kimness, Kimness must explicitly agree to the intended changes.
4. The Participant is prohibited from using the goods and documents on which Kimness’s intellectual property rights rest other than as agreed in the Agreement.
5. The parties will inform each other and take joint measures if an infringement of intellectual property rights occurs.
6. The Participant is prohibited from making sound and video recordings of the coaching / training. Kimness is the only one entitled to make sound and / or video recordings during the experiences to guarantee the quality.
7. Kimness is authorized to record or otherwise record your likeness, voice, images and statements made in connection with your participation in the program (except for private 1: 1 sessions) for Kimness’s own use. Participant hereby assigns all rights, titles and interests to Kimness to have and use royalty-free, any likeness or portion of participating in the documentary and training program, or any other lawful purpose.
Article 22 – Indemnity and accuracy of information
1. Participant is responsible for the correctness, reliability and completeness of all data, information, documents and / or records, in whatever form that it provides to Kimness in the context of an Agreement, as well as for the data it receives from third parties. has been obtained and which have been provided to Kimness for the performance of the Service.
2. Participant indemnifies Kimness against any liability resulting from non-compliance or late fulfilment of the obligations with regard to the timely provision of all correct, reliable and complete data, information, documents and / or records.
3. The Participant indemnifies Kimness against all claims of the Participant and third parties engaged by him or working for him, as well as customers of the Participant, based on the failure to obtain any subsidies and / or permissions required in the context of the implementation of the Agreement.
4. The Participant indemnifies Kimness against all claims from third parties arising from the work performed on behalf of the Participant, including but not limited to intellectual property rights on the data and information provided by the Participant that can be used in the performance of the Agreement and / or the actions or omissions of the Participant towards third parties.
5. If the Participant provides Kimness with electronic files, software or information carriers, the Participant guarantees that these are free from viruses and defects.
Article 23 – Complaints
1. If the Participant is not satisfied with Kimness’s service or otherwise has complaints about the execution of his assignment, the Participant is obliged to report these complaints as soon as possible, but no later than 8 calendar days after the relevant cause that led to the complaint. Complaints can be reported verbally or in writing via firstname.lastname@example.org with the subject “Complaint”.
2. The complaint must be sufficiently substantiated and / or explained by the Participant if Kimness is to be able to handle the complaint.
3. Kimness will respond substantively to the complaint as soon as possible after receipt of the complaint.
4. The parties will try to find a solution together.
Article 24 – Applicable law
1. The legal relationship between Kimness and the Participant is governed by Dutch law.
2. Kimness has the right to change these general terms and conditions and will inform the Participant of this. The changes take effect on the announced time.
3. All disputes arising from or as a result of the Agreement between Kimness and the Participant will be settled by the competent court of Zeeland-West-Brabant, location Breda, the Netherlands, unless mandatory provisions of law designate another competent court.
Breda the Netherlands, January 25, 2021.