This document sets out the arrangements applicable to the agreement that you, the Customer, will enter into with Trainin BV in respect of your use of the services of Trainin BV. This document contains:
the general terms and conditions of Trainin BV (hereinafter: the “Terms and Conditions”).
the data processing agreement (hereinafter: the “Data Processing Agreement”) applicable when Trainin BV processes personal data on the instructions of the Customer.
Part 1: General Terms and Conditions
1. Definitions
In these Terms and Conditions, the following terms have the following meaning:
a) Trainin BV: a company with its registered office at Recht Boomssloot 7-3, 1011 CR Amsterdam, under CoC number: 64113442. Trainin BV offers a web-based platform (SaaS) to companies, wishing to control their business online in a simple, effective and affordable manner.
b) Customer: the (legal) person acting in the exercise of their profession or business who enters into an agreement with Trainin BV, or purchases services from Trainin BV.
2. Applicability
By creating a (Trial) Account on any of Trainin BV's websites, you agree to these Terms and Conditions.
These Terms and Conditions apply to all services provided by Trainin BV, also during the Trial Period as set out in Article 3, including: Member administration, management of bookings and appointments, sales of products and credits, invoicing and payments and all other advice in the broadest sense of the word, giving instructions and to all Trainin BV orders, offers, quotations, agreements, correspondence and the like. These Terms and Conditions also apply to new services or new components of Trainin BV which were not yet known at the time of entering into the Trial Period or agreement with Customer.
The Terms and Conditions shall also apply if the performance of the services requires the involvement of third parties, whether or not they are employees.
Deviations from these Terms and Conditions are only valid in the event that they have been expressly agreed in writing (including by e-mail). The applicability of any purchasing or other terms and conditions used by Customer is not accepted by Trainin BV.
In the event that Trainin BV tacitly allows any deviation from these Terms and Conditions, this shall never affect its right to demand immediate and correct observance of the Terms and Conditions. Customer can never assert any right (or have it asserted) on the grounds that Trainin BV has not always demanded strict compliance with these Terms and Conditions from Customer.
All offers made by Trainin BV are without obligation. Trainin BV cannot be held to its quotations or offers if Customer reasonably understands or should understand that the quotations or offers, or any part thereof, contain an apparent mistake or error in writing. The offer is based solely on the information provided by Customer for this purpose, whereby Trainin BV may rely on its accuracy and completeness.
Trainin BV reserves the right to amend or supplement these Terms and Conditions. Trainin BV will inform Customer of the amendments.
3. Trial Account
Trainin BV's services to Customer begin by offering Customer a one-off Trial Period for one of the Plans for the duration valid at the time, during which Customer can use Trainin BV's services free of charge.
To take advantage of the free Trial Period, Customer needs to create an Account, being a Trial Account. The data requested to create an Account needs to be completed fully and truthfully. Fake Accounts shall be deleted by Trainin BV immediately without notice. If a Fake Account is suspected, Trainin BV may request further details from Customer, following which Trainin BV may or may not proceed to maintain or delete the Account.
Customer may also create a (company) name for a sub-domain. Should the name (in the opinion of Trainin BV) be an undesirable expression or a (suspected) trademark infringement, Trainin BV shall delete this sub-domain.
If Customer wishes to create invoices and receive payments from its users - during the Trial Period or otherwise - Customer needs to complete the (company) information requested by Trainin BV. Customer also has the option to link or create one of the specified Payment providers to the Trial Account. This enables Customer to process payments directly online and make full use of Trainin BV's services. If Customer does not create the requested (company) information and link to the Payment provider, then the full functionalities of those services cannot be used.
During the Trial Period, Customer can convert the Trial Account into a Paid Account (non-exclusive licence) as per Article 4 in order to continue using the Account after the Trial Period. Conversions can be made in the Trial Account. E-mail(s) will also be sent to Customer and, if appropriate, Customer will be called about the possibility of converting the Trial Account into a Paid Account.
Trainin BV reserves the right to terminate the Trial Account at any time during the Trial Period and thereby delete the Trial Account's (Personal) Data. If possible, Trainin BV will notify Customer in advance.
If the Trial Account is not converted into a Paid Account before the end date of the Trial Period, Customer will no longer be able to use or log into the Trial Account after the Trial Period. Trainin BV will then also delete all (Personal) Data from the Trial Account.
4. Conversion to Paid Account (Plan)
Trainin BV offers different types of Plans with different rate structures.
The standard costs paid by Customer are: a Service Fee for the use of the Account.
The possible fees paid by Customer are: a Transaction Fee per payment.
Monthly invoices for the Service Fee and the Transaction Fee are sent to Customer.
The Service Fee is charged monthly.
The Transaction Fee is automatically deducted from each transaction by the Payment provider linked to the Account.
For conversion of a Trial Account to a Paid Account, Customer needs to digitally sign the 'Trainin Service Fee' Agreement via the indicated signing tool. Customer needs to also make an initial payment, the pro rata Service Fee, via the enclosed link through the specified Payment provider. By making the first payment, the Customer's bank account is verified and Customer gives permission for the collection of subsequent payments, as per Article 4.4.
5. Provision of services in general
The provision of Trainin BV's services is carried out to the best of its ability, understanding and capacity. Performance of the services is to be defined as a best-efforts obligation and can never include an obligation to achieve a result.
In performing the services, Trainin BV relies in part on the information and data provided by Customer. Customer provides Trainin BV in time and in the manner and form as required by Trainin BV with the correct information and data which Trainin BV believes is required to correctly carry out the assignment given. Customer ascertains that the accuracy of this information and data is the responsibility of Customer. Any costs incurred to obtain the necessary information or data shall be borne by Customer.
An agreed time frame for the provision of a service by Trainin BV is never considered a deadline but serves as a guideline, unless expressly agreed otherwise in writing between the parties.
The assignment given is carried out solely on behalf of Customer. Third parties cannot derive any rights from the content of the service provided.
6. Licence, duration and termination
Customer first obtains a temporary licence during the term of the Trial Account as referred to in Art. 3.1. If the Account is not converted as referred to in Art. 3.7 into a Paid Account, the licence will expire after the trial period.
After conversion of the Trial Account into a Paid Account, Customer acquires a licence for one of the chosen Plans.
The effective date of the licence and the commencement of the Paid Account referred to in Art. 6.2 is the day on which the agreement - to enter into the Paid Account - is entered into between Trainin BV and Customer and the amount due - pro rata Service Fee - is credited to the account of Trainin BV; or the day on which access to the Paid Account is granted to Customer.
As long as the licence is not terminated as referred to in Art. 6.5 or Art. 6.6, the licence period will automatically be tacitly extended each month for a period of 1 month (in words: one month) and the Service Fee will be charged for this.
The licence referred to in Art. 6.3 ends upon cancellation by Customer whereby a notice period of 1 (in words: one) full calendar month needs to be observed. The service thus ends after the last day of the next calendar month after cancellation. Customer should cancel by sending an e-mail to support@trainin.com. Customer will receive confirmation of this by e-mail from Trainin BV. The licence will continue until the original renewal date but will not be renewed thereafter.
Trainin BV reserves the right to terminate the licence with immediate effect in the event that Customer has breached any obligation contained in these Terms and Conditions or is otherwise acting unlawfully in the opinion of Trainin BV. In such case, access to the Trial Account or the Paid Account is immediately stopped and the (Personal) Data are deleted from the Account, unless it is necessary under the law, an order from a competent authority or in the opinion of Trainin BV, for Trainin BV to retain the (Personal) Data for a longer period of time. For the actions referred to in Art. 6.6, Trainin BV is never liable for any damages. Trainin BV endeavours to inform Customer in advance of the immediate termination. Trainin BV may still grant Customer the opportunity to correctly comply or to remove the unlawful situation within a given time period before proceeding with termination.
An extended agreement as referred to in Article 6.4 cannot be terminated prematurely by Customer.
Customer cannot stop (pause) the Plan temporarily or indefinitely.
Upon the termination of a licence, in any manner whatsoever, or the expiry of a Trial Account period, Trainin BV promptly deletes all (Personal) Data from the Account.
For the duration of the licence, Customer is liable for the charges referred to in Art. 4.2.
7. Privacy
Trainin BV protects Customer's privacy in accordance with the General Data Protection Regulation (GDPR). In addition to the measures mentioned in this Article, Trainin BV has established a processing register and a data breach protocol as referred to in the GDPR.
Trainin BV processes Personal Data about Customer which it receives from Customer and may obtain or collect about Customer. Trainin BV is Controller for this personal data.
Trainin BV, as Processor for Customer, also processes Personal Data, including potentially special Personal Data, which Customer obtains from Customer's own Members or its employees. The Data Processing Agreement in part 2 of this document applies to the processing of Personal Data, which the Customer needs to accept before the Customer can use the services of Trainin BV. Customer needs to have express written consent from its Members and employees for Trainin BV to process this personal data, and properly inform its Members and employees accordingly. Customer guarantees this. Customer indemnifies Trainin BV against all liability and potential damages in the event that a Member or employee has not provided express written consent and Customer is responsible and liable for all data (personal or otherwise) of its Members and employees. Customer needs to process Personal Data of its Members and employees in accordance with the GDPR and other applicable privacy legislation.
Trainin BV does not provide or sell the personal data of Customer or its Members and employees to third parties, such as other companies or organisations, unless this is necessary for the performance of its services and unless it is required to do so by law or mandatory request. The companies to which it may be necessary - for the performance of its services - to provide data are: Payment providers, email service providers, hosting providers, analytics tools and signing tools (Please note: If possible, in the future Trainin BV may also provide Personal Data to other types of companies which is necessary in order to provide our services). We have entered into Processing Agreements with these parties. When purchasing our services, it is agreed that data may be sent to these parties.
In the event that Trainin BV is fined by the Dutch Data Protection Authority or any other authority as a result of Customer breaching: these Terms and Conditions; any agreement entered into between the parties; the law including the GDPR; or other privacy legislation, in the broadest sense of the word, then such fine is transferred to Customer who needs to pay such fine in a timely manner.
8. Confidentiality
Trainin BV and Customer are not permitted to disclose information which is or could be of a confidential nature to third parties not involved in the agreement or to use the information for any purpose other than that for which it was obtained. Such information is subject to an obligation of confidentiality. Information is considered confidential if this has been communicated by one of the parties or if this results from the nature of the information.
The obligations under this Article also remain in force following the termination, interim or otherwise, of the services provided by Trainin BV to Customer.
9. Amendments to the agreement and/or provision of services
Should circumstances change, Customer is obliged to inform Trainin BV without delay of these changed facts and circumstances which may be relevant to the performance of the agreement. If the changed circumstances are caused by the fault of Customer or are attributable to Customer by virtue of fault, the law, a legal act or common opinion, any resulting (additional) costs or additional work shall be charged to Customer.
In the event that the circumstances assumed by Trainin BV and Customer at the time of the conclusion of the agreement change to such an extent that compliance with all or part of the agreement cannot reasonably be required of Trainin BV, Trainin BV shall notify Customer of this interim change without being liable to pay compensation to Customer.
Trainin BV is also entitled to amend the performance of the agreement if it proves impossible to carry out the assignment as agreed. Where possible, Customer will be notified of any deviation in writing.
Customer may request to extend or amend the agreement. Trainin BV is at all times entitled to refuse a request to amend the agreement, without Trainin BV being liable to pay compensation to Customer. Should Trainin BV decide to amend the agreement entered into at the request of Customer, Customer accepts that the time schedule and price of the agreement may be amended. The failure to perform the amended agreement, or to perform it without delay, does not constitute a breach of contract on the part of Trainin BV and is not an entitled ground for Customer to dissolve the agreement.
10. Accounts
Trainin BV has various types of Plans. Each Plan has its own set of features and services. Customer, Customer's Members and its employees only have access to the components that comprises the Plan chosen by Customer.
The components comprised by the chosen Plan are described on the Trainin BV website.
At all times Trainin BV reserves the right to amend, modify, add to, or remove components from the Plan.
Customer is at all times liable for the content posted by Customer, Customer's Members and its employees on Customer's online environment.
Customer is responsible for contacting its Members and employees who have an Account and answering and handling all questions, disputes, etc. that Customer has with its Members and employees. Customer is also responsible for whether or not to delete the Accounts of its Members and employees.
Trainin BV may at any time carry out (technical) maintenance to its websites as it deems necessary. This may result in Customer's and its Members' Accounts being inaccessible or partially inaccessible.
11. Costs
Between Trainin BV and Customer, the costs apply as stated in Art. 4.2, plus any additional costs in accordance with the agreement or correspondence with Customer.
If Customer changes the Plan to a Plan with more extensive options or purchases additional features (Add-ons), the additional costs will be invoiced directly to Customer on a pro rata basis.
If Customer changes the Plan to a Plan with less extended features or wants to purchase fewer features (Add-ons), Customer may continue to use the current Plan until the end of the current billing period - no amount will be refunded. Thereafter, the new invoice amount (Service Fee) will be charged at the start of the new new billing period.
The fee excludes VAT and other government levies. In some cases, Trainin BV reverse-charges the VAT.
Trainin BV is permitted at any time to increase the cost of the Plan (Service Fee) and the Transaction Fee. The increase will be notified to Customer two months in advance.
The costs of the Transaction Fee may change immediately, if the increase in the costs is a consequence of a cost change of the Payment provider used for the online payments.
Also, the charges as per Art. 4.2 may change immediately if this increase is the result of a power or obligation pursuant to legislation or regulations, or is caused on other grounds that were not reasonably foreseeable at the time of entering into the agreement, such as a change in currency prices, without Customer in that case being entitled to dissolve the agreement for that reason.
12. Payment and collection costs
For any invoices for customized work, Customer is obliged to pay Trainin BV's invoices within a term specified on the invoice and, if no term is specified, no later than 30 days after the invoice date, in a manner to be indicated by Trainin BV in the currency in which the invoice was drawn up, without any deduction, discount or set-off being permitted. Objections to the amount of the invoices do not suspend the payment obligation.
If Customer's Service Fee cannot be debited, or is subsequently cancelled, the Transaction Fee is subsequently found not to have been debited or is subsequently cancelled, or if the invoice as in Art. 12.1 is not paid on time, Trainin BV will send a warning to Customer with a payment reminder, before proceeding with the measures referred to in Art. 12.3. For its own reasons, Trainin BV may decide to proceed directly to the measures referred to in Art. 12.3.
In the event of a failure as referred to in Art. 12.2, Customer is in default by operation of law without any further notice of default being required. In case of default, in addition to payment of the invoice amount, all costs for obtaining payment - in and out of court - and the costs of collection shall be for the account of Customer. Customer shall also owe interest equal to the statutory commercial interest rate, which shall be calculated on the amount due from the moment Customer is in default until the moment of payment in full of the amount due. The extrajudicial collection costs are set at 15% of the unpaid part of the invoice amounts. If the costs exceed 15%, the actual costs will be charged to Customer.
Trainin BV is entitled to offset the payments made by Customer as follows: firstly against the costs, then against the interest falling due and finally against the longest outstanding payable invoice(s) and current interest.
If the assignment is given (also) by someone other than Customer, both Customer and this other party are jointly and severally liable for payment of what is due to Trainin BV.
Trainin BV requires a deposit from Customer for customised work before the assignment is carried out. The amount may be invoiced in several instalments. This deposit is offset against the final invoice.
In addition, for customised work Trainin BV is entitled to invoice periodically if, in the opinion of Trainin BV, Customer's financial position or payment behaviour gives cause to do so. Trainin BV is then entitled to require from Customer to immediately provide (additional) security in a form to be determined by Trainin BV and/or to make an advance payment. If, in Trainin BV's opinion, this requested security is not provided by Customer or is provided insufficiently, Trainin BV is entitled, without prejudice to its other rights, to immediately suspend the further provision of services, and all amounts owed by Customer to Trainin BV for whatever reason shall be immediately due and payable.
In the event of a failure as referred to in Art. 12.2, Trainin BV is entitled to stop or suspend further provision of services until the outstanding invoice has been paid. This also applies to Customer agreements and/or services other than the agreement and/or services to which the unpaid invoice relates. Trainin BV is not liable for any damages, whether direct or indirect, which may arise as a result of the discontinuation or suspension of the services to be provided. In the event a service is suspended or discontinued, this does not relieve Customer of its obligation to still pay the invoices.
In the event that Customer is in a state of liquidation, bankruptcy or suspension of payments, Trainin BV's claims and Customer's obligations towards Trainin BV are immediately due and payable.
13. Inquiries and complaints
Complaints relating to the invoice amount, the items supplied or the services provided must, at the risk of such a complaint lapsing, be submitted in writing and described in as much detail as possible within 14 days of the invoice date or the performance of the services to which the complaint relates. After expiry of these periods, Customer is deemed to be in agreement with the services provided and/or the invoices, and all his rights and claims for whatever reason in respect of what he has complained about or could have complained about within that period shall lapse.
Complaints of any nature whatsoever do not suspend the payment obligation.
Trainin BV endeavours to process complaints within a reasonable time frame. In the event of a justified complaint, Trainin BV has the choice between a. either reducing the amount invoiced, b. re-performing the service concerned, c. refunding part of the price already paid without further performance of the agreement and/or provision of services. When the subsequent performance of the service is impossible or is not considered advisable, Trainin BV's liability will be limited in accordance with Article 14 of these Terms and Conditions.
14. Liability
Should Trainin BV be liable, this liability is limited to what is provided for in this clause and these Terms and Conditions.
To the extent that liability of Trainin BV can be established in the performance of its services or an agreement, the amount of damages shall at all times be limited to the amount of the Service Fee paid for the months in which the failure occurred, subject to a maximum of 3 months of paid Service Fee charged by Trainin BV to Customer for the items supplied and/or for the performance of the service in which the cause of the damage is located - and then only in the case of serious failures on the part of Trainin BV. In this provision and the following provisions of this Article, Trainin BV shall include its employees and any third parties engaged by it in carrying out the assignment.
The liability of Trainin BV is excluded among others for indirect damages, including consequential damages, lost profits, damages as a result of business interruption, missed savings, damages caused by delay, damages as a result of exceeding the delivery period, damages as a result of changed circumstances, personal injury and property damage, unless the damages are directly attributable to an intentional act or omission or gross negligence on the part of Trainin BV and Customer moreover shows that he cannot be blamed in this respect.
Should Trainin BV be liable for damages to persons or goods, such liability shall be limited to the amount paid out under Trainin BV's business liability insurance in such a case, less any applicable excess, as per the contents of this business liability insurance.
Trainin BV is furthermore never liable for damages resulting from faulty cooperation, information or materials provided by Customer. Trainin BV is not liable if, against the advice of Trainin BV, Customer requires certain work to go ahead.
Trainin BV is not liable for any damages if - due to any circumstance such as maintenance, technical problems, removal of a service, discontinuation of Trainin BV's business - the web-based platform is not (or no longer) or partially accessible.
Trainin BV is not liable for any damages if Customer or any person designated by Customer fails to properly protect, secure or store (Personal) Data etc. collected through a Trainin BV service or made available by Trainin BV.
Trainin BV is not liable for the loss of digital data belonging to Customer or obtained by Customer (from its Members and employees) via any of Trainin BV's service products, or made available by Trainin BV to Customer.
A condition for the possible occurrence of any right to compensation is always that, once Customer has observed or ought to have observed any type of damage, Customer notifies Trainin BV in writing as soon as reasonably possible, but within a maximum of 2 weeks.
Trainin BV is at all times entitled to limit or remedy any damages suffered by Customer as much as possible, to which end Customer shall cooperate fully and Customer is obliged to limit or, where possible, remedy his/her damages as much as possible.
Customer shall indemnify Trainin BV against and compensate Trainin BV for all claims by employees, Members and third parties directly or indirectly linked to the performance of the services and all related financial consequences.
Any claim for damages against Trainin BV lapses one year after the services have been performed, without prejudice to the possibility of previous other grounds for expiry under the law.
15. Force majeure
Trainin BV is not liable in the event of force majeure. Trainin BV is not obliged to fulfil any obligation towards Customer if it is prevented from doing so as a result of circumstances which are not its fault or are not for its own account pursuant to the law, a juridical act or generally accepted practice or are not imputable to it. As long as the period of force majeure continues, Trainin BV is entitled to suspend its obligations under the agreement and/or service provision towards Customer. Customer is not entitled to dissolve the agreement unless the period of force majeure lasts for 3 months or longer.
In the event of force majeure, Customer cannot claim any compensation, nor after Customer has terminated the agreement on the grounds of force majeure on the part of Trainin BV.
For the purposes of these Terms and Conditions, force majeure shall include, in addition to its definition in law, case law and common opinion, all external contingencies, foreseen or unforeseen, over which Trainin BV cannot exercise any control but which prevent Trainin BV from meeting its obligations. Illness, death, work strikes or resignation of persons associated with Trainin BV or of third parties engaged or measures imposed by the authorities. Trainin BV is also entitled to invoke force majeure if the circumstance preventing (further) performance of the agreement and/or provision of services occurs after Trainin BV should have fulfilled its obligation.
If, at the time the force majeure occurs, Trainin BV has already partially fulfilled its obligations under the agreement or will be able to fulfil them and if independent value can be attributed to the fulfilled or to the part to be fulfilled respectively, Trainin BV is entitled to separately invoice the part already fulfilled or to be fulfilled respectively and Customer is obliged to fulfil his obligations toward Trainin BV. Customer is obliged to pay this invoice as if it were a separate agreement.
16. Suspension and termination for cause
Trainin BV is entitled to suspend (further) performance of the agreement or terminate the agreement if Customer fails to meet its payment obligation, or if Customer fails to fulfil other obligations, such as providing Trainin BV with correct and sufficient information, or if Trainin BV has legitimate reason to fear that Customer will fail to meet its payment obligation, or in the event that the circumstances assumed by Trainin BV at the time of the conclusion of the agreement change to such an extent that compliance with the agreement or part thereof cannot reasonably be required of Trainin BV, without prejudice to Trainin BV's right to claim compensation. Should Trainin BV proceed with suspension or termination, Trainin BV is in no way obliged to compensate for damages and costs incurred in any way as a result, except in the case of intent or recklessness bordering on intent on the part of Trainin BV.
Trainin BV is entitled to suspend the provision of services to Customer in connection with the performance of an agreement until all outstanding invoices have been paid by Customer.
Furthermore, Trainin BV is entitled to terminate the agreement if circumstances arise which are of such a nature that performance of the agreement is impossible or if other circumstances occur which are of such a nature that Trainin BV cannot reasonably be required to maintain the agreement unamended. In the event that the agreement is terminated, Trainin BV's claims against Customer are immediately due and payable.
If the termination is attributable to Customer, Trainin BV is entitled to compensation from Customer, for both direct and indirect damages, due to the resulting and plausible loss resulting from lower capacity utilization, unless facts and circumstances underlying the termination are attributable to Trainin BV. If the latter is the case, the part of the fault attributable to both parties will be considered when calculating the compensation.
If Customer fails to comply with his obligations arising from the agreement and this non-compliance justifies termination, Trainin BV is entitled to terminate the agreement immediately, without any further notice of default and judicial intervention and with immediate effect, without any obligation on its part to pay any compensation; on the other hand, Customer, by reason of breach of contract, is obliged to pay compensation.
If Customer cancels all or part of a placed confirmed quote, Customer remains liable to Trainin BV for the entire invoice amount of the underlying agreement, unless Trainin BV expressly deviates from this in writing. Work performed, plus any additional costs incurred and working time reserved for the performance of the agreement, shall be charged in full to Customer.
If Customer is declared bankrupt or a request to that effect has been filed with the court, if Customer has applied for or has been granted suspension of payment, if Customer's company is shut down or liquidated, if property of Customer is seized, or if Customer is placed under guardianship or curatorship, the Debt Restructuring (Natural Persons) Act is declared or applied in respect of Customer (as a natural person) or any other circumstance arises as a result of which Customer can no longer freely dispose of his assets, Trainin BV is free to terminate the agreement forthwith and with immediate effect, without any obligation on the part of Trainin BV to pay any compensation. No judicial intervention or notice of default is required. In such a case, the claims of Trainin BV against Customer are immediately due and payable.
17. Intellectual property
All intellectual and/or industrial property rights as well as similar rights, relating to all products and services provided by Trainin BV, as well as in respect of services and/or products carried out or proposed by Trainin BV for Customer, belong solely to Trainin BV or to licensors or licensees of Trainin BV.
Trainin BV is entitled to use the knowledge acquired on its side as a result of the execution of an agreement and/or provision of services for other purposes, insofar as no strictly confidential information of Customer is brought to the attention of third parties.
Without the express prior written consent of Trainin BV, Customer is not permitted to reproduce, publish, modify or imitate, in full or in part, any service or product provided to Customer by Trainin BV. If Customer does so, it infringes Trainin BV's intellectual property rights and is liable for damages in the amount of €10,000, unless the actual damages are greater, in which case Customer shall owe Trainin BV the amount of the actual damages.
With the consent of Customer, Trainin BV will use Customer's name and work performed for its own promotion, such as including a reference on Trainin BV's website to Customer.
18. Indemnity
Where the proper performance of the assignment requires, Trainin BV will engage third parties. Trainin BV is not liable for any shortcomings or negligence of these third parties, except for wilful intent or gross negligence on the part of Trainin BV.
Should these third parties wish to limit their liability in connection with the performance of an assignment given by Customer, Trainin BV assumes and, if necessary, hereby confirms that all assignments given to it by Customer include the power to accept such a limitation of liability on behalf of Customer.
Customer indemnifies Trainin BV against any claims from third parties, such as its Members or employees, who suffer damages in connection with the performance of the agreement and/or provision of services. Should Trainin BV be sued by third parties on that account, Customer is obliged to assist Trainin BV both in and out of court, unless Trainin BV expressly refrains from doing so in writing, and to immediately do all that may be expected of him in this respect. Should Customer fail to take adequate measures, Trainin BV is entitled, without notice of default, to do so itself. All costs and damages incurred on the part of Trainin BV and third parties as a result shall be borne in full by Customer.
19. Other
In the event that one or more provision(s) (or parts thereof) of these Terms and Conditions are null and void or annulled, the remaining provisions shall remain fully applicable and the null and void or annulled provision(s) of these Terms and Conditions shall be replaced by (a) new, legally admissible provision(s). The purpose and meaning of the original void or annulled provision(s) will be observed as much as possible.
If any ambiguity exists regarding the interpretation of one or more provisions of these Terms and Conditions, or if a situation arises between the parties which is not provided for in these Terms and Conditions, then the explanation should be given and these Terms and Conditions should be acted upon "in the spirit" of these provisions or these Terms and Conditions respectively.
All assignments given by Customer are deemed to have been given exclusively to Trainin BV and not to any person(s) associated with Trainin BV. Even if it is the (tacit) intention that a service is performed by a particular person.
Changes to be notified to Customers will be sent by e-mail to the e-mail address provided by Customer and/or will be visible in Customer's Account.
20. Applicable law
All agreements and services between Trainin BV and Customer and these Terms and Conditions are governed by Dutch law.
All disputes arising from or relating to these Terms and Conditions and the provision of services between Trainin BV and Customer shall be decided by the District Court of Amsterdam, or any other court designated by Trainin BV, except to the extent that mandatory rules of jurisdiction would prevent this choice.
Recourse to the courts is regarded as the last resort. Only after Trainin BV and Customer have made every effort to resolve the dispute by mutual agreement will the parties take the dispute to court.
If Trainin BV has instituted its claim in legal proceedings (including arbitration and binding advice), Customer is obliged to reimburse the actual (legal) costs involved in these proceedings if Customer is (predominantly) ruled against.
21. Final provision
The Terms and Conditions have been filed with the Chamber of Commerce under CoC number 64113442.
These Terms and Conditions remain in force if Trainin BV changes its name, legal form or ownership.
The latest version of the Terms and Conditions as notified to Customer shall always apply.
In the event of any conflict between the Dutch and the English terms and conditions, the Dutch terms and conditions will prevail.
Part 2: Data Processing Agreement
Parties:
Controller: the (legal) person acting in the exercise of their profession or business who enters into an agreement with Trainin BV, or purchases services from Trainin BV, hereinafter referred to as the 'Controller';
Processor: Trainin BV, with its registered office at Recht Boomssloot 7-3, 1011 CR Amsterdam, The Netherlands under CoC number 64113442, hereinafter referred to as the 'Processor'.
Jointly referred to as ‘Parties’ and each individually as ‘Party’, whereas:
This Processing Agreement, hereinafter referred to as the ‘Agreement’, is entered into in the framework of the service provided by Processor to Controller: Processor offers a web-based platform (SaaS) to companies, wishing to control their business online in a simple, effective and affordable manner. Processor facilitates this via the websites: trainin.com, trainin.nl, trainin.be, trainin.app and trainin.co.
Processor processes to this end Personal Data in the meaning of Article 4(1) of the General Data Protection Regulation (GDPR) by order of Controller;
Processor is prepared to comply with the obligations under this Agreement, the security and other aspects of the GDPR, insofar as it is within its power;
Controller designates the purposes and means of the Processing;
In this Agreement, Controller and Processor wish to lay out in writing the mutual rights and obligations for the Processing of Personal Data by Processor as in Article 28(3) of the GDPR.
1. Definitions
In this Processing Agreement, the below terms have the following meaning:
a) Data Subject: the person who is the subject of Personal Data;
b) Controller: the Controller as meant in Article 4(7) of the GDPR;
c) Processor: the Processor as meant in Article 4(8) of the GDPR;
d) Sub-Processors: the person engaged by Processor to process Personal Data for the purposes of providing services for the Controller;
e) Agreement: this Processing Agreement;
f) Underlying Agreement: Controller creates a (paid or trial) Account and enters into this Processing Agreement together with the creation of this Account. In the context of the performance of this Underlying Agreement, Personal Data of Controller and members of Controller (both Data Subjects) will be made available to Processor, among others by uploading Personal Data to Processor's websites;
g) Personal Data: any Data that is directly or indirectly traceable to a natural person processed by Processor pursuant to its provision of services for the Controller, as referred to in Article 4(1) of the GDPR;
h) Process/ Processing: any operation or set of operations which is performed on Personal Data, whether or not by automated means, such as collection, recording, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction, as referred to in Article 4(2) of the GDPR;
i) Data Breach (Breach): a loss or unauthorised Processing of Personal Data, or the disclosure of a security flaw which creates a significant risk thereof;
j) General Terms and Conditions: the General Terms and Conditions of Trainin BV;
k) Privacy and Cookie Terms: the Privacy and Cookie Terms of Trainin BV
2. General
Unless otherwise agreed in writing, the provisions of this Agreement shall apply to all Processing carried out by Processor for Controller as part of its services.
If one or more provisions of this Agreement are found to be legally invalid, the Agreement shall otherwise remain in force. Parties shall consult on the provisions that are not legally valid, in order to find a replacement arrangement that is legally valid and as close as possible to the purport of the arrangement to be replaced.
If there is a lack of clarity concerning the interpretation of one or more provisions of this Agreement, or if a situation arises between Parties that has not been provided for in these Terms and Conditions, the explanation must be given and Parties must act 'in the spirit' of this Agreement.
Controller shall fully cooperate with Processor, to amend this Agreement and/or the Privacy and Cookie Terms, to make it suitable for any new privacy legislation, or changes in Processor's privacy policy.
3. Obligations of Processor
Processor Processes Personal Data only on behalf of Controller, except for different legal obligations.
Processor Processes Data for the benefit of Controller, according to his instructions and under his responsibility. Processing may be either automatic or manual. If Processor is of the opinion that Controller's instructions violate the Regulation or other Union or Member State data protection provisions, Processor shall notify Controller. Processor may decide not to process the information further and to delete it.
The Controller warrants to Processor that the content, use and/or Processing of the Personal Data is not unlawful and does not infringe any right of a third party.
Controller sets the objectives for the Processing of Personal Data. These are described in Annex 1. To the extent that the processing purposes involve or include more than the performance of the Agreement, Controller shall notify Processor of these additional processing purposes.
Processor Processes the Personal Data in principle for the sole purpose and of the categories defined in Annex 1. Processor shall not use this information for any other purpose than that for which he obtained it.
Processor shall ensure compliance with the conditions imposed on the Processing of Personal Data under the GDPR and other regulations.
Processor shall only provide access to Personal Data to his employees or others with whom he cooperates to the extent necessary for the performance of his services to Controller.
Processor shall deal with all requests for information from Controller regarding the Processing of Personal Data within a reasonable time. If possible at Controller's expense at Processor's usual (hourly) rate. The latter shall first be communicated to Controller in advance.
Processor shall enable Controller to comply with the obligations under the GDPR within the statutory time limits, in particular with regard to the rights of the persons to whom the Personal Data relate, such as a request for inspection, correction, addition, deletion or blocking of Personal Data or an opposition procedure, at Controller's expense at Processor's usual (hourly) rate. The latter shall first be communicated to Controller in advance.
4. Data transfer
Processor may also transfer Personal Data outside the EEA for certain services. This is necessary for the performance of Processor's services. The parties to which Personal Data may be transferred are described in Annex 3.
5. Third-party requests
Processor provides Personal Data to a third party if he considers this necessary for the proper performance of the (underlying) Agreement. Also, Processor may provide Personal Data to a third party pursuant to an order of Controller or by order of a judicial or administrative authority.
6. Data subject requests
In the event that a Data Subject (Member of Controller) makes a request to Processor to exercise his/her legal rights, Processor shall forward the request to Controller and Controller shall further process the request. Processor may notify the Data Subject accordingly.
7. Sub-processors
1. Processor may engage a Sub-processor without Controller's prior written consent. Processor remains responsible for this Sub-processor and shall impose on this Sub-processor at least the same obligations towards Controller as arise for himself from this Processing Agreement, also in view of, but not exclusively, data protection, confidentiality and taking appropriate technical and organisational measures.
8. Duty to report Data breaches
Processor shall notify Controller without delay, but no later than 48 hours after Processor becomes aware of it, of any Data breach that may affect Controller.
In the event of any Data breach, Processor shall provide Controller at least with the following information without delay:
(i) The (alleged) cause of the breach;
(ii) The (proposed) solution;
(iii) The (potentially) affected Personal Data;
(iv) The date on which the breach occurred (if no exact date is known: the period during which the breach occurred);
(v) The date and time when the breach became known to Processor or to a third party or subcontractor engaged by him;
(vi) Whether the Data have been encrypted, hashed or otherwise made unintelligible or inaccessible to unauthorised persons;
(vii) The measures Processor has taken and will take to limit and prevent the negative consequences of the breach in the future;Processor shall take the measures necessary to limit the (possible) damage and support Controller, within reasonable limits, in reporting to Data Subjects and/or authorities. Controller will ensure compliance with any (legal) reporting obligations.
9. Security measures and inspection
1. Processor shall take, maintain and if necessary adapt all appropriate technical and organisational measures to secure the Personal Data against destruction, loss, falsification, unlawful disclosure, unauthorised use or any other form of negligent Processing. These measures shall at all times provide an adequate level of protection, given the current and future state of the art. Annex 2 includes the main technical and organisational measures.
10. Audits
Processor allows Controller to have his compliance with these security measures and the Processing of Personal Data in connection with the processing activities covered by this Agreement inspected by an independent investigating authority (the Audit) in case of a concrete suspicion of a serious Data breach.
Controller may exercise this right as set out in Art. 10.1. once per year at most.
The Audit can only take place if it has been notified by Controller to Processor at least 14 days in advance.
The Audit can, in case of Art. 10.1, focus on the security measures and compliance with general rules on Processing Personal Data.
Controller shall reimburse all reasonable costs and expenses incurred in connection with such Audit, including reasonable internal costs incurred by Processor.
Controller shall promptly provide Processor with a copy of the Audit report.
The parties shall agree by consultation on how to handle the results of the Audit. Processor shall make adjustments, if necessary, as indicated in the Audit report, at Controller's expense.
11. Confidentiality
All Personal Data received by Processor from Controller and/or collected or to be collected by Processor himself for the purpose of Processing them in accordance with the provisions of the Agreement to that effect, shall be subject to an obligation of confidentiality towards third parties.
The duty of confidentiality shall not apply to the extent that Controller or the Data Subject himself/herself has expressly authorised the disclosure of the Personal Data to a third party or if and to the extent that there is a legal obligation or compelling legal request from an authority to disclose information to a third party.
12. Liability
In the event Processor is fined by the Dutch Data Protection Authority or any other authority for (partly) acting in breach of this Agreement or the GDPR through the actions of Controller, such fine shall be transferred to Controller, who shall pay such fine immediately.
Processor excludes all liability for damage in connection with the Processing of Personal Data as referred to in this Agreement and the Privacy and Cookie Terms, with the exception of intent or recklessness bordering on intent on the part of Processor.
13. Duration and Termination
This Agreement shall only have legal effect if Processor has validly accepted it (digitally) in accordance with Processor's instructions.
This Agreement is valid as long as Processor performs his services for Controller on the basis of the Underlying Agreement.
Even after termination of this Agreement, in whatever manner, Processor shall ensure that the Personal Data it (still) has in its possession are properly Processed and secured.
14. Applicable law and disputes
This Agreement is governed by Dutch law.
Going to court is seen as the last resort. Only after the Parties have made every effort to settle the dispute in mutual consultation, the Parties shall submit the dispute to the court.
All disputes arising from or related to this Agreement shall be exclusively submitted to the competent court within the district where the Processor has its registered office.
In the event of any conflict between the Dutch and the English terms and conditions, the Dutch terms and conditions will prevail.
Annex 1. Purpose and categories of processing Personal Data.
Purposes
Trainin BV processes Personal Data in order to perform its services: Trainin BV offers a web-based platform (SaaS) to companies who want to manage their business online in a simple, effective and affordable way. Trainin BV offers its services through various platforms as described in the Privacy and Cookie Terms.
Data Subject Categories
Customer (Controller)
Members of the Customer
Employees of the Customer
Personal Data Categories
Personal Data of the Customer: Company name, contact name (first name and surname), company address, business registration number, VAT number, e-mail address, telephone number, (digital) signature and bank details.
Personal Data of Members of the Customer: Name (first and last name), e-mail address, telephone number, emergency telephone number, address, gender, date of birth, financial data, company data, profession, tag ID, photos.
Personal Data of Employees of the Customer: Name (first and last name), e-mail address, telephone number, photos.
Device information and technical data: login data, device ID, device name, browser type and version.
Any other possible (special) Personal Data provided or added by Customer, Members of the Customer or Employees of the Customer (whether or not through the Account).
Annex 2. Technical and organisational measures.
Technical measures
Automatic updates: when updates become available, they are installed automatically.
Non-automatic updates: quarterly. In case of urgent notifications (e.g. a breach), updates are implemented as soon as possible.
Daily backups and outdated backups are automatically deleted.
Access to database servers is restricted to trusted sources only (internal web servers).
Access to web servers is only possible after exchange of key files.
Access to web servers is only possible via trusted IP addresses and/or secure VPN connection.
Mandatory use of two-step verification (2FA) (if possible).
Using strong passwords and a different password for each software application used.
Payment data are managed by a third party (payment provider).
Regular internal audits and code reviews.
Various measures against SQL injections, cookie / session hijacking and Cross-site scripting (XSS).
Organisational measures
Limited authorisation for employees: authorisations are determined on the basis of tasks/roles.
When applying for a job, a reference check is made based on the applicant's CV.
Update processing register in case of changes, such as new or modified processes or use of other applications.
Data breach protocol and Data breach register.
Annex 3. Breakdown of sub-processors.
Sub-processors
Digital Ocean: processing and storing data
SimpleBackups: storing data
Google Ireland Limited: support and sales
Sendgrid: e-mail notifications
Trengo: support and sales
Mollie: payment provider
BugSnag: logging and monitoring
Xero: invoicing
Firebase: push notifications
Pipedrive: client relation management
Make.com: task automation
Calendly: support and sales
MailerLite: marketing
Dropbox Sign: agreements