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General terms and conditions of ClubJoy (version 2018/1)

1. Identity of the entrepreneur ClubJoy B.V., established at 3721 TJ Bilthoven at the P.C. Staalweg 60, also with offices at the Linker Rottekade 320, 3031 WB Rotterdam, hereinafter referred to as: ClubJoy. 2. Applicability a) These general terms and conditions apply to all offers made by ClubJoy, as well as all oral and written agreements (including licences), stipulated between ClubJoy and its contracting party (hereinafter referred to as the licensee). b) Any legal relationship with ClubJoy is governed by these general terms and conditions. Provisions of these General terms and conditions may only been redeemed inapplicable if expressly agreed in writing by ClubJoy. c) These General Terms and Conditions have been filed with the Chamber of Commerce under registration number 32095 644. d) If any provision of these general terms and conditions is invalid or annulled, the validity of the remaining provisions and applicability of the other provisions of these general terms and conditions will be affected. In this case the parties shall consult each other in order to replace the void or voided provision with a new one. This provision will match the void or voided provision in terms of nature and scope as much as possible. e) ClubJoy has the right to amend or supplement these general terms and conditions. Changes of minor importance can be implemented at any time without prior notification. Bigger changes in content will be discussed with the licensees in advance. 3. The offer a) If an offer has a limited period of validity, or is made subject to conditions, it shall be expressly stated in the offer. b) All offers (including quotes) by ClubJoy are without obligation. ClubJoy is entitled to change, amend or adapt the offer. c) Obvious mistakes and obvious printing or writing errors in the offer will not be binding for ClubJoy. 4. Products and services a) ClubJoy produces various fitness-related programmes for which licences can be obtained for use in sports and fitness centres. The programmes include standardised workouts for fitness centres. In addition to various work-outs, ClubJoy also offers management support services in the form of individual modules. These modules can also be licensed. b) Every quarter, ClubJoy produces a complete work-out for each programme, which is then used by qualified instructors in sports and fitness centres. c) A qualified instructor, is defined by ClubJoy as: an instructor who is qualified to teach and has successfully completed the relevant training course at ClubJoy, or has completed, or demonstrably received - and obtained a positive result - an education that is of a high level of significance and is consistent with the relevant ClubJoy training. d) ClubJoy employs training professionals and works with professional freelance trainers, who provide the compiled work-outs according to proven scientific insights into training techniques, training structure and coaching skills. New training variations are incorporated into the workouts wherever possible. e) In addition to the work-outs, ClubJoy provides a quarterly audio CD, which serves as a suggestion for the implementation of the work-outs at fitness centres. ClubJoy does not own the music rights (including copyrights and neighbouring rights) of the selected audio tracks. By delivery of the audio CD, these Music rights are therefore not transferred to the licensee. For the legitimate use of the selected audio tracks, ClubJoy makes payments to various music organisations (such as record labels, Stemra and Sena). This however, does not relieve the licensee of the obligation to make his own payments to music organisations (such as Buma/Stemra, Sena and other (international) sister organisations) for the use of music at their own (sports) premises. The aforementioned music organisations charge sports and fitness centres separately for the use of music in sports areas. The rates and rules for group training areas differ from the rates and rules applied to hospitality and gym areas. f) Licensees will be granted access to the Member area of ClubJoy. In this Member area, ClubJoy will make quarterly downloads available in which the workout is fully demonstrated, at no additional costs. This download is solely intended for study purposes by the ClubJoy instructor. New workouts are also made available in outlines. These outlines are also available for download in the Member area of ClubJoy. g) To promote the various ClubJoy programmes, ClubJoy will provide various online and offline promotional materials available. The offline promotion package consists of one programme banner, 100 triptych leaflets and 100 free cards. For each license purchased, ClubJoy will supply licensees with one offline promotional package. Follow-up orders can be placed against payment. Online promotional materials are available to download from the Member area of ClubJoy, for the duration of the licence. h) ClubJoy offers fee-based training for instructors who offer one or more programmes in ClubJoy affiliated sports and fitness centres. ClubJoy workouts shall only be provided by qualified instructors, as referred to in part c of this article. i) In addition to regular training, ClubJoy organises four refresher days for ClubJoy instructors on an annual basis. These Training days consist of three quarterly days (ClubJoy Conventions) which can be attended by ClubJoy instructors, free of charge. In addition, ClubJoy organises one ClubJoy Mega Quarterly Day every year, which can attended for a fee. ClubJoy strongly recommends that licensees who provide ClubJoy work-outs within the licensee's company, participate in a quarterly day, at least twice per year. It is recommended to include this as part of the agreement in the employee’s contract for ClubJoy instructors. 5. The Agreement a) ClubJoy will only be bound by a contract after this contract has been signed for approval by ClubJoy. ClubJoy is not bound by agreements made with persons not authorised to represent ClubJoy. b) The Licence Agreement will be finalised by signing and submitting the Licence Agreement provided by ClubJoy, where the licensee indicates which licences (programmes or modules) he wishes to purchaseand aquire. c) The licensee shall be entitled to terminate the agreement within eight days , unless ClubJoy has already supplied materials to the customer at the time of cancellation, in which case cancellation is no longer possible. d) Licences are provided for a minimum period of one year, starting from the date of signing the application form provided by ClubJoy. The licence agreement can be terminated by the end of the term (four quarters). If ClubJoy is not notified of your wishes to terminate your contract, the licence agreement will be automatically renewed for a period of three months. Termination takes place by means of written communication to ClubJoy (including an e-mail) at least one full calendar month before the end of the agreed period. e) In addition to the monthly fee for obtaining the desired licence, the Licensee shall be obliged to purchase at least one quarterly package worth € 39 per programme, every quarter. This quarterly package consists of one audio CD and two launch posters per programme. f) The material made available to the licensee by ClubJoy is solely for the purpose of Licensee. ClubJoy grants to the Licensee a non-exclusive and non-transferable right to use the materials made available. The licensee is only permitted to use the materials within his own company and for his own business activities. The licensee is expressly not permitted to disclose, reproduce or cause the disclosure of the materials in any other way, including any form of alienation, encumbrance, commercial exploitation and the granting of licences to third parties. In the event of a proven breach and/or If the Licensee fails to comply with any of the provisions of this clause, the Licensee shall incur an immediately payable penalty, without further notice of default being required of € 2,500 per established violation, to be increased by € 250 per day that this violation takes place, without prejudice to ClubJoy's right to claim compensation in addition, to the fine. 6. Prices and payment a) By signing and submitting the registration form to ClubJoy, the Licensee declares to purchase the ticked licence(s) for the minimum period of one year, at the price per month and per fitness company, as derived from the ClubJoy system. The prices stated are monthly and per fitness company. By signing the registration form, the licensee declares that he is aware of this being taken from the ClubJoyStaff system. b) The amounts charged by ClubJoy for costs and services are subject to VAT. The amounts specified in the the agreement are exclusive of VAT, unless explicitly stated otherwise. c) All prices are subject to printing and typographical errors. ClubJoy accepts no liability for the consequences for these errors. In case of misprints, ClubJoy is not obligated to change the product according to the manufacturer's specifications or delivery at the wrong price. d) ClubJoy reserves the right to make an annual price change on all productsand services provided by ClubJoy. e) The amount invoiced by ClubJoy to the Licensee must be paid within fourteen days of the invoice date. The invoice amount must have been paid into the bank account number stated on the invoice, or by direct debit. If payment is made in any other way, such payment shall not release the Licensee from its payment obligations to ClubJoy, unless explicitly agreed otherwise in writing. f) If the Licensee is in default with regard to the (timely) fulfilment of the payment obligation, all reasonable costs to obtain extrajudicial settlement will be at the expense of the licensee. These costs include the collection costs, possibly increased by VAT and the statutory interest, to be calculated from the date on which the default occurred. g) ClubJoy reserves the right to suspend its delivery obligation if and as long as the Licensee has been in default of payment of the monthly invoice for at least one month, or is in default of the payment of invoices relating to training, promotional materials or other orders. If ClubJoy makes use of its right to suspend the contract, it will notify the Licensee. ClubJoy uses its right of suspension as long as the non-compliance of the Licensee continues. ClubJoy shall promptly deliver the materials purchased by the Licensee as soon as Licensee has cleared the arrears. 7. Delivery a) ClubJoy will aim to provide the products and materials purchased by the Licensee in the second month of the current quarter. However, no rights may be derived from said delivery period. The licensee may not derive any benefit from exceeding the delivery period. Therefore, the licensee shall not derive any benefit or right to compensation from exceeded delivery periods. b) ClubJoy will deliver the materials purchased by the Licensee to the location and address specified by the Licensee. c) Up to the moment of delivery to the address indicated by the Licensee, the risk of damage or loss of materials is to be carried by ClubJoy. In case of damage or loss, the purchased materials will be resent to the licensee free of charge, unless it can be proven that the licensee has received the materials initially sent to him (undamaged), in which case the licensee will not be able to return them. In such situations, ClubJoy will always contact the licensee. We shall be entitled to charge the value of the materials sent back to the licensee. 8. Force majeure a) If there is a non-attributable failure of one of the parties in the contract to fulfil the obligations of the contract, the contracting party shall be liable for the costs incurred. As according to the agreement, that party shall be entitled to suspend its obligations temporarily. Force majeure describes a situation in which the agreement can no longer be concluded within a reasonable period of time. If the agreement is not complied with, the other party may terminate and dissolve the agreement by recorded mail. b) Extraordinary circumstances always constitute force majeure for ClubJoy. In the event of force majeure, ClubJoy is entitled to cancel or suspend the agreement until the exceptional circumstances have ceased to exist. Circumstances under which ClubJoy is temporarily unable to fulfill it’s obligations due to force majeure, and therefore cannot comply with the agreement, the licensee shall not be entitled to compensation. In cases of persistent force majeure, ClubJoy will be discharged from its obligation to fulfil the contract, without this leading to any liability for compensation on the part of ClubJoy. c) An extraordinary circumstance is in any case is understood to be: any situation in which ClubJoy is hindered in the fulfilment of its contractual obligations as a result of a (work) strike by ClubJoy employees or third parties (both organised and unorganised), fire, natural disasters, flooding and force majeure on the part of suppliers (or in any part of the corresponding supply chain) of ClubJoy. d) In the unlikely event that ClubJoy is summoned by rights holders to remove music from its programme, ClubJoy has the right to replace the relevant music programme. The replacement programme will resemble the original programme as closely as possible. 9. Liability (a) It is a matter of general knowledge that participation in sports and training activities entails an increased risk of physical injury. Full liability information and training is available from ClubJoy. All programmes are undertaken entirely at the risk of the Licensee. Licensee indemnifies ClubJoy from any form of liability claims from third parties, or for any damages suffered as a result of participating in a ClubJoy work-out. ClubJoy is not liable for injuries or damages suffered as a result of participating in a ClubJoy work-out. b) ClubJoy shall only be liable to the Licensee for shortcomings in the execution of the contractual agreement, insofar as that shortcoming is the result of a gross negligence in required due care and competence standards, that may be relied upon when issuing the licence(s). c) For damages resulting from other ClubJoy services or advice, or for direct or indirect damages caused by persons or institutions engaged on behalf of ClubJoy - ClubJoy may not be held liable. d) ClubJoy will also not be liable for any damages suffered because certain services were not provided on the agreed date. e) If ClubJoy is liable, then this liability is limited to a maximum of the amount of it’s equivalent pays out in the case in question. If, for any reason, the insurer If the licence holder does not pay out, the liability shall be limited to an amount equivalent to that which the licence holder’s insurers have paid out in the past, for the licence(s) issued, and/or work done in connection with the damage. f) It is the responsibility of the licensee to ensure that any participant in a ClubJoy work-out is safe, by following the examples of how this should be correctly done. g) The licensee must also take adequate measures to ensure the legality of playing (any kind of) music during the training sessions produced by ClubJoy in its own sports facilities (as referred to in article 4 under e). ClubJoy is not liable for this. If ClubJoy is still held liable by third parties, the Licensee will indemnify ClubJoy against all claims by third parties. 10. Intellectual property a) On material provided by ClubJoy to the licensee, ClubJoy reserves all rights to all material provided by ClubJoy - intellectual property rights and other rights. The contents thereof - insofar as the rights of third parties do not apply - remain the inalienable property of ClubJoy. Under rights of third parties, should in any case be understood to mean music rights (copyrights and neighbouring rights) that are on the audio CD provided by ClubJoy. These inalienable music rights belong to third parties. ClubJoy does not own these music rights and licences their use legally. b) The intellectual property rights to the trade name of ClubJoy, as well as the intellectual property rights on all brand names of ClubJoy programmes and modules, shall at all times and expressly remain the property of ClubJoy. By purchasing a licence, the licensee only receives permission to use the relevant brand name on behalf of ClubJoy for the duration of their licence. Licensees will endeavour to ensure that the aforementioned use does not in any way disadvantage ClubJoy. c) When the Licensee cancels the Licence Agreement, all ClubJoy Programme communications or modules, in and around the licensee's business, i.e. both online and offline expressions, must be removed. d) The work-outs designed by ClubJoy cannot be offered in sports or fitness centres, including use of the brand name, unless licence fees are charged and paid to ClubJoy for the utilisation of those work-outs and the use of the brand name. e) In the event of a proven breach of the preceding provision or in the event of any other form of unjustified infringement of ClubJoy's intellectual property rights by the licensee, the licensee will forfeit - without further notice of default being required - an immediately payable penalty of € 2,500 per infringement, to be increased by a charge of € 250 per every day on which the infringement continues, without prejudice to ClubJoy's right to claim full compensation in addition to the penalty. 11. Complaints and disputes a) ClubJoy will endeavour to resolve any complaints received within fourteen days of receipt of the complaint. If a complaint requires more time to be processed, ClubJoy will take this into consideration. In any case within fourteen days after receipt of the complaint, ClubJoy will contact the licensee. b) A complaint shall not suspend the parties' obligations under the agreement. c) ClubJoy will treat any complaints received with the utmost care and will, at all times, consult with the licensee in order to try to reach a suitable solution. d) If a complaint should nevertheless result in a dispute, then ClubJoy will endevour to resolve this dispute initially out of court. e) If the extrajudicial settlement of disputes is unsuccessful, the Rotterdam District Court is competent to take cognisance of this dispute. f) These General Terms and Conditions and any other legal relationship to which ClubJoy is a party shall be exclusively governed by the laws of the Netherlands. g) All complaints and claims of the Licensee shall lapse 12 months after the date upon which the original complaint or claim has occurred (or has been retracted the licensee).