General Terms and Conditions

1. Definitions

General Terms and Conditions: these general terms and conditions of Wizzflix

Company: the (legal) person who has instructed Wizzflix to deliver goods and/or services.

Quotation: an offer with the terms applicable, pricing and the implementation plan of goods and/or services from Wizzflix to the Company.

Agreement: the Quote signed by the Company, order confirmation or the written agreement signed by both parties along with the relevant terms and additional agreements.

Wizzflix: Wizzflix B.V. located at Rondweg 69 in Uden (5406 NK) and registered with the Chamber of Commerce under number 78692105.

Client Content: courses and other content placed on the Platform by the Company or its users.

Custom Content: courses and other content developed specifically by Wizzflix for the Company and placed on the Platform.

Wizzflix Content: all content that is not Client Content or Custom content.

Platform: the ‘Employee Experience Platform’ application of Wizzflix.

2. Applicability of general terms and conditions

These General Terms and Conditions apply to all offers, Quotations, Agreements and Orders closed between Wizzflix and the Company, and the resulting Agreements or legal actions – unless otherwise agreed in writing.
The applicability of any purchasing or other conditions of the Company is expressly rejected, unless Wizzflix explicitly accepts these and confirms them in writing.
If this Agreement or other communication with the Company refers to written agreements, it means agreements that have been established in writing, fax or electronic messaging, such as email.
Wizzflix only accepts Agreements as an organization, even if it is the explicit or implied intention that an Agreement is executed by a specific person. Contrary to articles 7:404 BW, 7:407 paragraph 2 BW and 7:409 BW, the persons working for or on behalf of Wizzflix, whether or not in employment, are not personally bound or liable.
Without prejudice to the provisions of paragraph 4 of this article, these General Terms and Conditions are also agreed upon for any third party that, whether or not in employment, is involved in the execution of an Agreement or is liable or may be in connection therewith.

3. Quotation and conclusion of Agreement

All Quotations are non-binding unless explicitly stated otherwise in the Quotation. The Company is responsible for the accuracy and completeness of the requirements, specifications of the performance and other information provided to Wizzflix on its behalf.
A Quotation is valid for 30 days unless stated otherwise in the Quotation.
The Agreement consists solely of the work described in the Quotation and/or Agreement, including all changes that have been agreed upon in writing later.
Wizzflix cannot reasonably be held to obvious mistakes and/or typographical errors in the Quotation, offer, Agreement and/or any other communication.

4. Changes to the General Terms and Conditions

The most recent version of these General Terms and Conditions always applies to all Agreements. Wizzflix has the right to change these General Terms and Conditions at any time. Wizzflix will inform the Company in good time about changes in the General Terms and Conditions. If the software and services continue to be used, the most recent version of the General Terms and Conditions applies.
If the Company disagrees with a change as described in paragraph 1 of this article, it can lodge an objection within 30 days of communicating the change. Wizzflix will assess whether the change can lead to any adjustment. In the extreme case, there is the possibility to terminate the Agreement after the change, with the old General Terms and Conditions remaining valid for another 2 months.

5. Modification of the Agreement and additional work

If during the execution of an Agreement it becomes necessary to modify and/or supplement it, the parties will timely and in mutual consultation adjust the Agreement. Wizzflix is not obliged to adjust the Agreement and may require that a separate written agreement be concluded.
Changes, additions and/or extensions of the Agreement are only binding if these have been agreed upon in writing by the parties. Costs as a result thereof are borne by the Company.
Additional work will be compensated according to the agreed rates – and in the absence thereof according to the usual rates of Wizzflix – and will only be invoiced after written commissioning by the Company or written confirmation by Wizzflix in the next invoice or after the completion of the additional work. Additional work includes the tasks that fall outside the content or scope of the written agreed-upon work.

6. Duration of the agreement

The Agreement is entered into for a period of at least one year (Initial period). The Agreement will be tacitly extended after the Initial period for a period equal to the Initial period, unless one party has terminated the Agreement in writing with a notice period of two (2) months.

7. Obligations of the company

Each Quotation and/or offer from Wizzflix is based on the information provided by the Company. The same applies to the execution of the work by Wizzflix. The Company is responsible for the accuracy and completeness of the data and shall always provide Wizzflix in good time with all useful and necessary information and cooperate fully for proper execution of the Agreement.
The Company is responsible for: the correct use and application of Wizzflix's products and services as described in the delivered manuals; the implementation in the organization and the necessary control tasks, tests and other procedures; as well as for securing the data, such as regularly making backup copies of data files.

8. Obligations of Wizzflix

Wizzflix carries out the work to the best of its abilities with care, according to any agreements and procedures that have been established in writing with the Company. All work of Wizzflix is performed based on a best efforts obligation, unless Wizzflix expressly promises a result in the written Agreement and this result is described with sufficient certainty.

9. Prices and licenses/quantities

All prices are exclusive of VAT and any other charges imposed by the government, unless Wizzflix indicates otherwise. Unless expressly stated otherwise in the Quotation and/or Offer, travel hours, travel and accommodation costs, extra hours and other special costs related to the work are not included in the prices and rates. If these costs are not included, Wizzflix may charge them separately.
Wizzflix has the right to adjust its rates at any time in response to price developments in the market, including increased costs from one of its suppliers. The starting point in this regard is the Services Price Index (DPI) of the CBS. If cost-increasing taxes, fees or import duties are introduced or changed due to government regulations, or if after signing the Agreement government measures occur which increase the cost price of the services provided by Wizzflix, then Wizzflix is entitled to pass these costs on to the Company – even if a fixed price has been agreed. Wizzflix will inform the Company of this as soon as possible.
A rise in the quantities on which the price in the Agreement is based can be implemented directly. A decrease in these quantities can only occur after the term of the Initial period. A decrease in the quantities may affect the agreed price.
If the Platform is not implemented or commissioned within the agreed period through no fault of Wizzflix, the Company is liable to Wizzflix for the monthly (license and/or user) fees from the agreed implementation date onwards.

10. Invoicing and payment

Wizzflix bills the amounts due from the Company monthly in advance. Wizzflix reserves the right to invoice on an interim basis at any time.
In deviation from paragraph 1 of this article, for one-off costs, such as – but not limited to – implementation costs, costs for custom work or other similar one-off costs, these must be paid prior to the work being carried out, unless otherwise agreed in writing.
If Wizzflix cannot (temporarily) fulfill its obligations under this Agreement due to circumstances for which the Company is responsible, the Company remains liable for payments to Wizzflix.
Payment by the Company to Wizzflix takes place:
By means of a direct debit with a collection period of 14 days from the invoice date. Wizzflix is entitled to collect the due amount from the moment the invoice is sent.
or by transferring the due amount within thirty (30) days from the invoice date.
If the Company fails to meet its payment obligations, the Company is in default and owes statutory interest on the outstanding amount. No notice of default or reminder is required for this. If the Company is a legal entity or a natural person acting in the course of a profession or business, collection costs will be charged: 15% of the due principal amount (excluding VAT), with a minimum of €75.00.
With the payments, the Company first satisfies the due interest and costs. These will always be deducted from the oldest outstanding claim, even if the Company indicates that the payment relates to a later claim.
Wizzflix may suspend its services, including the Company's account (and the accounts of any of its authorized users) if the Company defaults on its payment obligations.

11. Deadlines

All (delivery) deadlines stated by Wizzflix are determined to the best of their knowledge based on the information available to Wizzflix at the time of entering into the Agreement. The (delivery) deadlines set by Wizzflix are always indicative and are not fatal (delivery) deadlines unless otherwise expressly agreed.
If Wizzflix does not meet a (delivery) deadline, the Company must first formally notify Wizzflix and give Wizzflix a reasonable period of time to fulfill its obligations. Only when Wizzflix has failed to meet its obligations after this reasonable period, is it deemed to be in default.
Wizzflix is not bound by (delivery) deadlines that cannot be met due to circumstances beyond its control that arose after entering into the Agreement. If an extension of any deadline is imminent, the parties will consult as soon as possible.

12. Confidentiality and acquisition of personnel

Wizzflix and the Company ensure that all data received from the other party of which one knows or reasonably should know to be of a confidential nature remains confidential. This prohibition does not apply to Wizzflix if and to the extent that providing the data in question to a third party is necessary by virtue of a court order, a statutory provision or for the proper execution of the Agreement by Wizzflix. The party receiving confidential data uses it solely for the purpose for which it was provided. Data will be considered confidential if they have been designated as such by either party.
The Company acknowledges that the Platform originating from Wizzflix is always of a confidential nature and contains trade secrets of Wizzflix.
The Company shall not hire or otherwise, directly or indirectly, have work performed by employees or freelancers of Wizzflix who have been involved in the execution of the Agreement during the term of the Agreement and up to 12 (twelve) months after the termination of the Agreement without the prior express written consent of Wizzflix. Conditions may be attached to this consent, including the condition that the Company pays a reasonable fee to Wizzflix.

13. Privacy and data processing

If necessary for the execution of the Agreement, the parties will conclude a processing agreement. If desired, Wizzflix will inform the Company about how Wizzflix fulfills its obligations under the legislation regarding the protection of personal data.
The responsibility for the data processed by the Company using a service from Wizzflix lies entirely with the Company. The Company assures Wizzflix that the content, use and/or processing of the data is not unlawful and does not infringe any third party rights.

14. Liability

The liability of Wizzflix in the event of attributable shortcomings in the fulfillment of the Agreement or on any legal basis is limited to compensation for direct damage up to a maximum of the amount of the paid price (excluding VAT), determined on the basis of the Agreement. If the Agreement is mainly a duration contract with a term of one year or longer, the price to be agreed is the total of the fees (excluding VAT) that the Company has paid to Wizzflix over the twelve months prior to the occurrence of the damage. In no case shall the total compensation for direct damage exceed €200,000.00. Direct damage is understood to mean
the value of licenses that are not or not fully usable due to the shortcoming;
reasonable costs for establishing the cause and extent of the damage;
reasonable costs for preventing or limiting further damage.
The total liability of Wizzflix for damage caused by death, bodily injury or material damage to property shall never exceed €1,250,000 (say: one million two hundred fifty thousand Euro).
Liability of Wizzflix for indirect damage, including but not limited to consequential damage, loss of profits, missed savings, reduced goodwill, damage due to business stagnation, damage as a result of claims from customers of the client, damage related to the use of items, materials or software prescribed by the Company to Wizzflix, and damage related to the engagement of suppliers prescribed by the Company to Wizzflix, is excluded. Also excluded is the liability of Wizzflix related to mutilation, destruction or loss of data or documents.
Wizzflix is never liable for any loss or damage to the Company in connection with unavailability, poor response time of the Platform.
The exclusions and limitations of liability of Wizzflix described in paragraphs 1 to 4 of this article do not affect the other exclusions and limitations of liability of Wizzflix set forth in these General Terms and Conditions.
The exclusions and limitations referred to in paragraphs 1 to 5 and 11 cease to apply if and to the extent that the damage is caused by intent or gross negligence of the management of Wizzflix.
Unless fulfillment by Wizzflix is permanently impossible, the liability of Wizzflix for attributable shortcomings in the fulfillment of an Agreement only arises if the Company immediately notifies Wizzflix in writing of any default. It is required that there is a reasonable period to resolve the shortcoming, and Wizzflix continues to fail to fulfill its obligations after that period. The notice of default must contain as detailed a description of the shortcoming as possible, so that Wizzflix can adequately respond.
Condition for the right to compensation is always that the Company reports the damage as soon as possible, but no later than within 3 (three) months after it occurs, in writing to Wizzflix and in any case after the expiry of (24) twenty-four months after the work has been carried out by Wizzflix.
The Company indemnifies Wizzflix and its employees from all claims by third parties and holds them harmless for this.
This applies in particular to claims from third parties as a result of a defect in a product or system supplied by the Company to a third party and that partly consisted of equipment, software, data files or other materials supplied by Wizzflix, unless the Company demonstrates that the damage was caused by equipment, data files or other materials from Wizzflix.
The Company bears the risk for damage caused by defects or unsuitability of goods that are from it, prescribed by it or must be provided by a supplier prescribed by it.
The same applies to the failure to deliver these goods, either in time or correctly. The Company is liable for damage caused by unlawful acts of subcontractors and their assistants that the Company has engaged.
For the performance of its work, Wizzflix may use email. The risk associated with this, in any way, lies with the Company and never leads to liability on the part of Wizzflix.
The provisions of this article as well as all other limitations and exclusions of liability mentioned in these General Terms and Conditions also apply to all (legal) persons that Wizzflix engages for the execution of the Agreement.

15. Intellectual property

Except for Client Content, the rights to the Platform and all Wizzflix Content and Custom Content made available through the Platform reside with Wizzflix and its suppliers. Wizzflix grants the Company a limited license to use the Wizzflix Content and Custom Content for the purpose of using and managing the Platform.
All rights to Client Content reside with the Company or its suppliers/licensors. The Company grants Wizzflix a limited license on the Client Content to use it as needed for the service provided to the Company and to the Users. Wizzflix is not entitled to use Client Content for any other purpose or for any other party.
Wizzflix guarantees that the Platform and the Wizzflix Content and Custom Content do not infringe upon third-party rights. Wizzflix indemnifies the Company from all claims that third parties may make in this regard, unless the infringement is a result of documents, images or other works provided by the Company.
The Company guarantees that the Client Content does not infringe any third party rights. This also includes the use of URLs with brand names that are not owned by the Company. The Company indemnifies Wizzflix from all claims that third parties may make in this regard.
The Company agrees that its name and logo may be used for marketing purposes by Wizzflix.
The Company shall not use the knowledge obtained about the operation of the Platform to create, set up or offer a similar (learning) platform.

16. Force majeure

If a party is wholly or partially prevented from fulfilling its obligations under this Agreement due to force majeure, it shall immediately notify the other party of this. The notification must:

Specify the obligations and the extent to which it cannot fulfill these obligations;
Fully describe the force majeure event;
Estimate the time during which the force majeure will last; and
Specify the proposed measures to be taken to remediate or reduce the force majeure.

Force majeure is understood in any case – but not limited to – to mean a malfunction, war, war danger, natural disasters, strikes, fire, government measures or other obstructive circumstances that are not solely dependent on the party invoking force majeure.

After a notification of force majeure in accordance with paragraph 1 of this article and while the force majeure persists, obligations that cannot be fulfilled due to the force majeure will be suspended, except for obligations to pay due and payable amounts.

The party that is prevented from fulfilling its obligations under this Agreement due to force majeure must remedy the force majeure as much as reasonably possible and resume fulfillment of its obligations as soon as reasonably possible.

The party prevented from fulfilling its obligations under this Agreement due to force majeure must take all reasonable measures to limit the damage suffered by the other party as a result of the party's non-fulfillment of its obligations under this Agreement.

The duration of this Agreement will not be extended by the period of force majeure.

17. Dissolution and termination

If Wizzflix does not, does not timely and/or does not provide the necessary data, information, wishes and/or requirements in accordance with the Agreement, or if the Company otherwise fails to fulfill its obligations, Wizzflix is entitled to terminate, dissolve the Agreement or suspend the execution of the work. The costs resulting from this according to Wizzflix's usual rates are borne by the Company. The same applies to any other rights that Wizzflix is entitled to under the law. Wizzflix accepts no liability in these cases.
Wizzflix is free to terminate the Agreement immediately and without notice or to cancel the Quotation or Agreement without any obligation for compensation or indemnification, in the case of liquidation, (application for) suspension of payments or bankruptcy, attachment against the Company (if the attachment has not been lifted within three months), debt restructuring or other circumstance preventing the Company from freely disposing of its assets. All claims of Wizzflix against the Company are then immediately due.
If Wizzflix has already performed services for the execution of the Agreement at the time of termination of the Agreement, these services and the related payment obligation are not subject to reversal – unless Wizzflix is in default regarding these services. Both amounts that Wizzflix invoiced before termination and amounts that have not yet been invoiced for already performed services remain due and payable immediately upon termination.
Rights and obligations arising from the Agreement that are by their nature and content intended to last shall remain in full force and effect after termination or dissolution of the Agreement.

18. Other provisions

In the event of a conflict between a provision of an explicit written Agreement between the parties and these General Terms and Conditions, the provision in the Agreement prevails. In the event of a conflict between the General Terms and Conditions and the User Terms, the User Terms prevail.
If one or more provisions in these General Terms and Conditions are found to be void or declared invalid, the remaining provisions of these General Terms and Conditions shall remain fully in effect. Wizzflix will then provide a new provision to replace the void provision, taking into account the goal and purpose of the original provision as much as possible.

19. Applicable law and disputes

This Agreement is exclusively governed by Dutch law. Unless otherwise required by national laws, the court in ‘s-Hertogenbosch has exclusive jurisdiction to hear disputes arising from or related to the Agreement between the parties.