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General Terms and Conditions - Business

Definitions
In these General Terms and Conditions, the following terms have the following meaning in plural or singular form:

Client : Each party entering into an Agreement with, or requesting an offer from New Heroes.
New Heroes: The private limited liability company New Heroes B.V.
Parties: New Heroes and the Client/User;
Content : The Content made available to the Client/User.
IP rights: All intellectual property rights and related rights, such as copyrights, trade name rights and database rights.
User: A natural person who is employed in the organization of the Client or who is a Client who may, under the Agreement, have access to and to use the Content made available by New Heroes.
Services: All services offered by New Heroes, in the broadest sense of the word.
Products: All products offered by New Heroes, in the broadest sense of the word.
Shop: The website of New Heroes as well as a registration form thereon or any registration form or other means of registration for a Service or Product of New Heroes. 

Applicability
The following Terms and Conditions are applicable to, and form an inextricable part of, all our offers, orders, agreements and the execution of such. Please read the General Terms and Conditions carefully.

These General Terms and Conditions will, at all times, take precedence over the General Terms and Conditions of the User/Client. 

If these General Terms and Conditions applied previously to a legal relationship between New Heroes and the Client, the Client is deemed in advance to have agreed to the applicability of these General Terms and Conditions in respect of any following agreements to be entered into.

We will only provide (use of) our services in accordance with these General Terms and Conditions. If you do not agree to these General Terms and Conditions, you will not be able to use our services.

We devote a great deal of attention to the quality of our services, but if you are not completely satisfied, please contact us within six months. You can inform us via email, by clicking info@newheroes.com. If you want to contact us by telephone, please call our customer service department at +31 73 84 49 910.

Agreement
An Agreement is only entered into (i) when New Heroes accepts, in writing, the order, registration or assignment from the Client, (ii) by both Parties signing an Agreement, or, if the Client uses a Shop, (iii) by an order received from the Client via the Shop, and email order confirmation from New Heroes to Client.

Offers and quotations from New Heroes are revocable, obligation-free and valid for the indicated period. If no period has been indicated, the offer or quotation is valid until thirty (30) days after the date on which the offer or quotation was made. If the Client accepts an offer or quotation from New Heroes, New Heroes may revoke the relevant offer or quotation within two (2) business days after issuing such notification.

Without prejudice to the aforementioned, supplements and amendments to the Agreement can only be agreed upon in writing between New Heroes and the Client. New Heroes may at all times – where applicable – implement amendments, reduce and/or remove the scope, content and/or functionalities of the Content, Services and/or Products. If the change is major, in New Heroes’ opinion, it will inform the Client in advance. If warranted by the change, in New Heroes’ opinion, New Heroes will enter into consultation with the Client to discuss a possible reduction to the agreed fee for the Content, Services and/or Products.

Prices and payment conditions
The prices charged by New Heroes are exclusive of sales tax and other government-imposed fees and exclusive of administration, installation and delivery charges, unless agreed otherwise.

Payment must be made immediately, in the manner indicated via the Shop, if the Client purchases a Product or Service via a Shop. Other orders will be paid based on an invoice issued by New Heroes.

For vouchers, the voucher number is determinant. A voucher must be activated before the end date indicated on the voucher.

Unless agreed otherwise in writing, invoices must be paid within fourteen (14) days of invoicing. New Heroes may demand prepayment, cash payment or security for payment from the Client.

Any payments to be made by the Client to New Heroes will be deducted from Client’s oldest outstanding invoices.

The payment periods are strict deadlines. If the Client fails to pay within the specified time, the Client is automatically in default, without any notice of default being required, and must pay interest amounting to 1% a month or part thereof in respect of the outstanding amount, expressly in addition to any extrajudicial collection fees, being 15% of the invoice amount, with a minimum amount of EUR 150, exclusive of VAT, to be calculated on the principal amount plus interest on that principal. If the Client is not acting in the course of any profession or business, the Client must, in addition to the interest, pay compensation equal to the statutory maximum compensation that is allowed for extrajudicial collection fees.

The Client may not suspend payment or offset payments due to (alleged) shortcomings on New Heroes’ part.

Cancellation conditions
Following conclusion of agreement between Parties the following terms and conditions will apply to Client:

  • Cancellation more than one month before delivery date will not result in any charges by New Heroes;
  • Cancellation between one month and 14 days before delivery date entitles New Heroes to charge 50% of the amount of the assignment;
  • Cancellation within two weeks before delivery date entitles New Heroes to charge 100% of the amount of the assignment;

Subscriptions
The commencement date is the date the subscription period starts as mentioned in the invoice. In so far as the Client does not act in the course of any profession or business, the Client may cancel the subscription by logging into the New Heroes website, and cancelling the subscription in accordance with the step-by-step instructions on the website under 'FAQs' .

After termination the subscription continues in amended form. A Client who wishes to do so and has made this known/ticked the appropriate box will still be able to access the tasks that were carried out during the subscription period, but will no longer have access to other content offered by New Heroes.

Retention of title and risk
All of the Products delivered to Client remain the property of New Heroes until the Client has paid all the amounts owed to New Heroes in full. On first request by New Heroes, the Client must establish a non-possessory pledge on all the items referred to above, or provide security in some other way.

The risk of loss of, or damage to, Products will pass to the Client when the Client acquires the actual power of disposition.

Delivery periods
No delivery time mentioned or agreed by New Heroes is a strict deadline.

New Heroes will do its best to adhere to (delivery) times.

New Heroes may suspend performance of its obligations under an Agreement if the Client has failed to comply with its payment obligations or has failed to do so within the specified time. Any adverse effects as a result of suspension are for the account of Client.

Complaints and returns
Comments or complaints regarding services and/or Products must be made known to New Heroes within fourteen (14) days after receipt of the relevant Services/Products. In the absence of such notification all claims against New Heroes with regard to such defective Services and/or Products will fall away.

Service provision
New Heroes provides all Services on the basis of a reasonable efforts commitment.

If there are changes or additions resulting in a change of scope of the agreed Services, for instance due to additional work, any extra work arising from this will be compensated in accordance with the rates used by New Heroes that apply at the time the additional work is carried out.

If it has been agreed that a specific person will provide the Services, New Heroes may always replace this person by one or more equally qualified persons.

If New Heroes provides the Services in phases, New Heroes may delay the start of the work for a certain phase until the Client has approved the results of the previous phase in writing.

Training
Without New Heroes’ permission, the Client will not be allowed to develop and/or offer similar training, based on the Training and/or learning materials provided.

Personal data
When processing personal data, New Heroes will comply with the statutory rules of the Dutch Personal Data Protection Act (hereinafter 'Wbp') and, from 25 May 2018, the General Data Protection Regulation (hereinafter 'GDPR') and will at all times process personal data in accordance with New Heroes’ current Privacy Statement and cookie policy in a thorough, careful and secure manner.

New Heroes will not provide any personal data of the User(s) to third parties, unless this is necessary for provision of the Services. If and insofar as New Heroes enlists the services of third parties for execution of the Agreement, such third parties will be bound by obligations identical to those applying to New Heroes.

Under the Wpb and, from 25 May 2018, under the GDPR the Client has obligations towards the Users, such as the responsibility to supply data and to make changes to the system of New Heroes. The Client is responsible for the performance of these obligations and the Client guarantees that it will at all times abide by the Wpb and/or GDPR.

Intellectual Property Rights
All IP rights to the Service and/or Products and Content provided under the Agreement, are exclusively those of New Heroes and/or its licensors unless explicitly otherwise agreed in writing. The provisions of this article form a proviso as provided in article 15 paragraph 1 of the Dutch Copyright Act.

None of the provisions of these General Terms and Conditions imply a transfer of IP rights.

The Client is not allowed to remove or alter any indication of IP rights in/on the Products and/or the (results of the) Services.

New Heroes expressly refrains from waiving any personality rights as referred to in Article 25 of the Dutch Copyright Act.

If the IP rights for all or part of the Services, Products and/or Content belong to New Heroes’ licensors, the Client may have to accept such third parties' licensing provisions and licensing terms and conditions in order to be able to use (all of the functions of) the Services and/or Products. The Client will not have a valid claim against New Heroes, in this regard, if the Client does not wish to accept the third party’s licensing provisions and licensing terms and conditions.

If it has been irrevocably established by law that the Services, Products and/or Content supplied by New Heroes constitute(s) an infringement of any IP rights belonging to a third party, or if, in New Heroes’ opinion, there is a good chance that such infringement will occur, New Heroes will, if possible, ensure that the Client can continue to use the Service and/or Product – or can at least use a functionally equivalent product or service – in an uninterrupted manner. Any other or further liability or indemnification obligation on New Heroes’ part, on account of infringement of third-party IP rights, is completely excluded.

Guarantees and indemnification
The Client will use the Services and/or Products at its own risk and under its own responsibility. Client guarantees that it will not use the Services and/or Products:

  • in such a way that use will infringe upon New Heroes’ rights or third-party rights and/or constitute any other infringement or violation, including an infringement on IP rights and rights to privacy;
  • in a way that constitutes a breach of applicable laws and regulations; and/or
  • in a way that constitutes a breach of any provision of this Agreement.

The Client indemnifies New Heroes against all claims from third parties, loss or damage and costs resulting from and/or related to and/or the result of a violation of the above-mentioned guarantee from the Client.

Liability
New Heroes is not liable for any loss or damage resulting from (imputable) non-performance of the Agreement, unlawful act or any other ground, except insofar as provided in the following paragraphs of this article.

New Heroes’ total liability for imputable non-performance of the Agreement, unlawful act or otherwise, expressly including any non-performance of a guarantee obligation agreed with the Client, is limited to compensation of the direct loss or damage up to the maximum amount paid or which should have been paid to New Heroes for the relevant Product or Service. In case of continuing performance contracts, one year is taken as a basis for the relevant Service. Under no circumstances will the total liability of New Heroes under the Agreement for whatever reason be more than one thousand euros (€ 1,000). Prior exclusions and limitations of liability for New Heroes also apply in respect of any guarantees and obligations to indemnify on the part of New Heroes.

Direct loss or damage exclusively means:

  • reasonable costs incurred by the Client to extract performance by New Heroes under the Agreement
  • reasonable costs incurred to prevent or limit direct damage which may be expected as result of the event to which the liability relates; and
  • reasonable costs incurred to establish the cause of damage, the liability therefore, the direct damage and the manner of recovery.

New Heroes excludes any liability for other direct or indirect loss or damage including consequential loss or damage, derivative loss or damage, as well as non-material loss or damage. Consequential loss or damage includes in this regard: loss of profits, missed savings, reduced goodwill, loss due to business interruption, losses, costs incurred to prevent or assess any consequential loss or damage, deprivation, changes to or damage to electronic data and/or loss or damage resulting from delays in the transport of the data traffic and all other loss or damage other than that mentioned in this article.

This article does not in any way limit New Heroes’ liability in respect of loss or damage resulting from intention or willful recklessness on the part of New Heroes itself.

A prerequisite for any right to compensation is always that the Client reports the loss or damage in writing as soon as possible after it has arisen and that New Heroes is offered a reasonable period to remedy and that New Heroes is given notice of default. Any right to compensation under this article will lapse if the Client has not made an unambiguous and written claim for compensation within three (3) months from the time that the loss or damage first became apparent.

Termination
The Client may only cancel or terminate the Agreement on the grounds of the following paragraphs.

Both Parties may dissolve the Agreement in full or in part with immediate effect, in writing, without the need for a written notice of default or intervention of the court and without being obliged to pay any compensation or damages, in the event that the other Party applies for a suspension of payments, applies for its own bankruptcy or if an application is filed for its bankruptcy or if it

is declared bankrupt, the business of the other Party is or is being liquidated or wound up otherwise than for the purpose of merger of businesses, a substantial part of the assets of the other Party is or has been attached, or in the event that the other Party is no longer deemed to be able to meet its obligations.

New Heroes and the Client may both terminate the Agreement, in full or in part, if the other Party imputably fails to fulfil its obligations under the Agreement and – after having received a proper and detailed written notice of default by registered post in which a reasonable period of at least thirty (30) days is given to fulfil its obligations – still imputably fails to meet its obligations under the Agreement.

New Heroes may terminate the Agreement, in full or in part, if and from the moment that the Product or Service – which is the subject of the Agreement – can no longer be supplied, is withdrawn from the market, or will otherwise become temporarily or permanently unavailable.

If, at the time of dissolution as intended in this article, the Client has already received services as part of execution of the Agreement, the relevant services and the associated obligation to pay for them will not constitute any right to cancellation, unless New Heroes is in default with respect to such services. Any amounts for which New Heroes has already issued an invoice, in connection with what it has already performed or supplied as part of execution of the Agreement, prior to dissolution, will still be owed and will become immediately claimable upon dissolution.

Articles which, by their nature, are destined to remain applicable after termination of the Agreement, will remain in full force upon termination of the Agreement.

Nullity / nullification of provisions
If any of the provisions of these General Terms and Conditions of Use are void entirely or in part, are nullified or are otherwise found to be invalid, the remaining provisions will remain in full force. The provisions that are not legally valid or cannot be legally implemented will be replaced by provisions that approximate to the greatest extent possible the intent of the provisions to be replaced.

Miscellaneous
The Client cannot transfer, license or sublicense the rights and obligations stemming from the Agreement, to a third party, unless New Heroes has provided its express written permission. New Heroes will not withhold such permission without reasonable grounds.

New Heroes may transfer, license or sublicense the rights and obligations stemming from the Agreement, to a third party, without the Client’s permission.

Failure on New Heroes’ part, at any given time, to invoke the legal right(s) or authority assigned to it under the Agreement, will not constitute a waiver of such right(s) or authority.

Applicable Law and Competent Court
These Terms of Use are governed solely by Dutch law). The applicability of the Vienna Sales Convention (CISG) is expressly excluded. The competent court in the district of Oost-Brabant has exclusive jurisdiction to take cognizance of any disputes that may arise in connection with these terms of use. 

Amendments to the General Terms and Conditions
New Heroes reserves the right to amend the General Terms and Conditions. The amendments will take effect as soon as the new General Terms and Conditions have been posted on this website. These General Terms and Conditions were last amended on 1 May 2018.

General Terms and Conditions

ONLINE PRODUCTS

The provisions listed in this section (Online Products), will apply in addition to the above-mentioned General Provisions, if New Heroes supplies Online Products to the Client. The provisions for ‘Online Products’ will take precedence in the event of a discrepancy between the provisions listed in both sections.

Right of use
New Heroes will grant the Client the non-exclusive, non-transferable and non-sublicensable right to use the Online Products and the Content included therein, for a limited period of time, in accordance with the provisions of the Agreement, on condition that the Client makes full and timely payment of the applicable fee for the Online Product. Without prejudice to the other provisions of the Agreement, the Client’s right of use exclusively entails the right, in accordance with New Heroes’ instructions and specifications:

  • to gain remote access to the Online Products and the Content included therein;
  • to visually depict, consult or allow Content of the Product to function Online;
  • to save or print insubstantial parts of the Content;
  • by way of quotation (with due regard for Article 15a of the Copyright Act) copy Content from the Online Product into documents that are created, used or issued during the course of the Client's normal business operations.

The Client may only use the Online Products for its own business operations and the Online Products may only be used by the agreed number of Users. The Client will not make the Online Products available to third parties.

Except to the extent permitted on the grounds of mandatory legal provisions, the Client shall not be allowed to alter, translate, reproduce, decompile, or reverse engineer the Online Products, or combine the Online Products with other works or create derivative works from the Online Products.

The Client will grant New Heroes and third parties appointed by New Heroes access to the area where the Online Product is stored and/or used, to check whether the Online Product is used in accordance with the allowed rights of use.

Implementation, new versions and maintenance
The Client agrees to grant and supply to New Heroes the access, assistance, data and materials required, to ensure that New Heroes can provide proper access to the Online Products.

Unless agreed otherwise, New Heroes may, if deemed necessary in New Heroes’ opinion, take Online Products and one or more components thereof offline, temporarily, and/or restrict the use thereof for the purpose of preventative maintenance or to implement corrections or changes, among other things. New Heroes will inform the Client as soon as possible if the Online Products will be temporarily unavailable or if use thereof will be restricted. New Heroes will inform the Client, as soon as reasonably possible, in the event of emergencies resulting in Online Products having to be taken offline immediately or resulting in use thereof having to be restricted immediately.

Guarantees
New Heroes does not guarantee that the Online Products are free of defects and will run without interruptions. New Heroes does not provide any guarantees in connection with suitability for a specific purpose or specific use.

New Heroes is not responsible for the acquirement and / or proper functioning of the Client’s infrastructure or that of third parties. New Heroes is not liable for loss, damage or costs resulting from transmission errors, failure to function or improper functioning of computer-, data- or telecommunication facilities, including the Internet.

The Client is responsible for meeting all possible technical and functional requirements imposed by New Heroes, in order for the Online Products to be used.

Login credentials and User
The Client needs login credentials in order to be able to use Online Products.

It is the Client’s responsibility to keep the login credentials secret. The Client must inform New Heroes immediately when it becomes aware of or suspects that unauthorized individuals have gained access to its login credentials, without prejudice to the Client’s own responsibility to take immediate and appropriate action, such as to change its login credentials, among other things. The Client will, at all times, be responsible and liable for use of the Content and Online Products by third parties using the Client’s login credentials. The Client will indemnify New Heroes against all loss, damage and costs resulting from and/or related to use of the Content and/or Online Products by third parties using the Client’s login credentials.

Client/User is responsible and liable for all use and storage of content of Online Products and warrants that the provisions of the Agreement will be complied with. If the Client/User invites one or more supporters (hereinafter: the Supporter) to participate in the learning journey, the Client/User warrants and is responsible and liable for the storage of the content of the Supporter and the use made by the Supporter of the New Heroes platform and Products, as well as for any violation by the Supporter of New Heroes' general and user terms and conditions and of the applicable privacy laws.

The Client is responsible for indicating to New Heroes which users may have access to the New Heroes platform. New Heroes may block access to users.

Terms and Conditions of Use
The following terms of use apply to visits to and use of this New Heroes B.V. ("New Heroes") website, as well as to the information and materials made available to you on or via this website (the "Information").

You are 18 or older or have permission from your parent or guardian to visit this website. If you do not agree to these General Terms and Conditions of Use, please leave the website immediately.

Information
This New Heroes website is maintained with the utmost care. Nevertheless, New Heroes cannot guarantee that this website and the Information published on it will always be complete, correct or up to date. The Information is intended solely as a source of information and not as advice. New Heroes cannot guarantee that the Information does not infringe the intellectual property rights of third parties or is otherwise unlawful towards third parties.

Third-party Information
The Information on this website, originating from third parties, only conveys the relevant third party’s personal opinion. New Heroes is not responsible for the content of this Information and accepts no liability for it.

Property rights
The website, design, text, ‘content’, logos, images and the manner of compilation are protected by the copyrights and/or intellectual property rights of New Heroes or its licensors.

You may consult this website and the Information and may make copies thereof for your own use, by printing or saving, for instance, except when indicated otherwise on the website or in the Information. Every other form of use of the website or the Information will be subject to New Heroes’ prior written permission.

User content
When you use the publication options or interactive services on the website (as a User), you agree to the following General Terms and Conditions of Publication and to the forms of interaction:

  • Your reactions, text and publications – including photos/videos – will not be discriminating, sexually-oriented, hate speech or offensive to other Users (with respect to language, visuals and tone);
  • You will not post any contributions of a commercial nature and will not send out any solicited or unsolicited advertisements;
  • You are the proprietor of the photos, videos and/or text that you post on the website, and you indemnify New Heroes if it were to be held liable by third parties;
  • You will not post or send out any data or material distributing viruses or other (malicious) programs or computer software, to cause an (adverse) effect on the way in which the computer software runs. The same applies with respect to uploading and also for hardware.

New Heroes will determine whether or not the forms of interaction have been violated. New Heroes does not have to justify its decisions in this respect, whatsoever, to the User(s) or to third parties. New Heroes is not responsible for the content of contributions posted by Users of the website. New Heroes reserves the right to remove contributions at any given time, without having to justify its actions.

Suspension and termination
New Heroes may freely determine, at its discretion, whether any of the General Terms and Conditions of Use have been violated. New Heroes does not have to justify its decisions in this respect, to the User(s) or to third parties. If New Heroes is of the opinion that these General Terms and Conditions of Use have been violated, it may proceed to remove the relevant User’s access rights for the website or use of the website. The aforementioned does not affect New Heroes’ ability to recover the loss or damage suffered by it, and by third parties, from the relevant User(s).

Exclusion and limitation of liability
This website and its contents are provided without warranty of any kind, either express or implied. New Heroes and its affiliates (including but not limited to its employees, directors, affiliates or other representatives) shall not be liable for any damages arising out of the use of (or inability to use) this website or the Information, unless the damages are the result of willful intent or willful recklessness on the part of the New Heroes.

New Heroes is not responsible for the content or performance of external websites referred to via this website, nor is it responsible for the quality of any products or services offered on such websites, and consequently accepts no liability in that respect.

New Heroes is also not responsible for the content posted on this website by third parties, including Users.

Any loss, damage and/or costs incurred by you, in connection with use of the website, will be for your own account. New Heroes and its affiliates – including but not limited to its employees, managers, affiliate organizations or other representatives – cannot be held liable for loss or damage resulting directly or indirectly from the use of the material or inability to use the material, including the facilities or services offered through this website. Liability for direct or indirect loss or damage, including but not limited to lost profit or income, lost data and/or loss or damage due to third-party claims, will not be accepted. If the aforementioned exclusion of liability should fail to be proven valid in court, whether entirely or in part, liability on the part of New Heroes and its affiliates –including but not limited to its employees, managers, affiliate organisations or other representatives – will, in all cases, be limited to the amount paid by you, the User, to use the website, up to a maximum amount of € 1,000.

Nullity / nullification of provisions
If any of the provisions of these General Terms and Conditions of Use are declared void or voidable, entirely or in part, or are otherwise found to be invalid, the remaining provisions will remain in full force. The provisions that are not legally valid or cannot be legally enforced will be replaced by provisions that approximate the intent of the provisions to be replaced, to the greatest extent possible.

Applicable law and competent court
These Terms of Use are governed solely by the laws of the Netherlands. The competent court in the district of Oost-Brabant has exclusive jurisdiction to take cognizance of any disputes that may arise in connection with these terms of use. 

Amendments to the General Terms and Conditions of Use
New Heroes reserves the right to amend the General Terms and Conditions of Use. The amendments will take effect as soon as the updated General Terms and Conditions have been posted on the website. These General Terms and Conditions were last amended on May 24th, 2018.

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