Article 1 – Definitions
In these Terms and Conditions, the following terms have the following meanings:
Subscription: Contract under which Hemelz ProBooks commits to periodically providing Content and/or a Service to the Customer during the subscription period until the time of regular cancellation by the Customer or termination by Hemelz ProBooks.
Content: any and all works and other materials, in any form whatsoever, digital and otherwise, published by Hemelz ProBooks or any third parties and sold or made available online or otherwise by Hemelz ProBooks, including books, e-books, newspapers, current-affairs magazines and weekly publications, magazines, articles, calendars, tests, questionnaires/surveys, learning tools, training courses, assessments and databases.
Hemelz ProBooks: Hemelz ProBooks, with its registered office at Almere, the Netherlands, listed in the commercial register of the Amsterdam Chamber of Commerce under number 70724849 and also trading as: Hemelz.
Digital Content: any Content made available in electronic format.
User: natural person (individual) who, pursuant to the Agreement or the Terms and Conditions, is entitled to use an Online Service.
Terms and Conditions of Use: terms and conditions applicable to the use of an Online Service by the Customer and Users.
Customer: the natural person or legal entity, acting for purposes relating to its trading, business or professional activities, who enters into an Agreement with Hemelz ProBooks.
Online Service: Service whereby Hemelz ProBooks provides the Customer with online access to Content using an electronic communication network and/or software.
Agreement: agreement between Hemelz ProBooks and the Customer regarding the sale or provision of Content and/or a Service in any form and any manner whatsoever.
Terms and Conditions: these General Terms and Conditions.
Article 2 – Hemelz ProBooks identity
Hemelz ProBooks uitgevers, Almere, trading as: Hemelz ProBooks, Hemelz and ProBooks.
- Jaagmeent 68
- 1356 AH Almere
- the Netherlands
- Email address: firstname.lastname@example.org
- Chamber of Commerce registration number: 70724849
- VAT number: NL111459564B02
Article 3 – Applicability of, and amendments to, the Terms and Conditions
1. These General Terms and Conditions apply to all Contracts and Agreements signed between Hemelz ProBooks and the Customer.
2. Hemelz ProBooks rejects any terms and conditions employed by the Customer. Any such terms and conditions do not form part of the Agreement, unless they have been expressly accepted by Hemelz ProBooks in writing.
3. Hemelz ProBooks is authorised to amend the Terms and Conditions. Any amendments to the Terms and Conditions also apply to existing Agreements. Hemelz ProBooks will announce any amendments to the Terms and Conditions prior to their effective date on its website and through newsletters. The amended Terms and Conditions will become effective two weeks after they have been announced, or at such later date as stated in the announcement. If any amendments to the Terms and Conditions were to substantially undermine the Customer’s legal position, the Customer will be authorised to cancel the Agreement with effect from the day the amended Terms and Conditions enter into force.
Article 4 – Offers, orders and negotiation of the Agreement
1. All offers made by Hemelz ProBooks are without obligation and serve solely as invitations to make an offer. The order placed by the Customer will be deemed to constitute the offer.
2. The Agreement will be deemed to be in place once Hemelz ProBooks has accepted an order placed by the Customer in writing or by means of the de facto performance by Hemelz ProBooks of the Agreement to which the order relates. Hemelz ProBooks will be authorised at any time to refuse any order placed by the Customer.
3. For the application of the Terms and Conditions, electronic messages are deemed to be equal to written messages.
4. Articles 227b, paragraph 1 and 227c of Book 6 of the Dutch Civil Code are excluded from application.
Article 5 – Price, billing and payment
1. Content and Services will be provided at the prices and rates applicable at the time the Agreement is negotiated. All prices charged by Hemelz ProBooks are inclusive of VAT.
2. Hemelz ProBooks will be authorised to amend prices and rates. Any amended prices and rates will apply from the time they are listed.
3. The Customer is required to make payment within 14 days of the time the Agreement has been signed, using the bank and/or giro account specified by Hemelz ProBooks, unless the Customer has made payment/advance payment by credit card, iDEAL, or another payment method approved by Hemelz ProBooks .
4. Failure by the Customer to comply with the terms of payment will result in default without a notice of default being required. If the Customer fails to make payment by the due date, Hemelz ProBooks will be entitled to charge default interest equivalent to 1% of the amount outstanding per month or a portion thereof, unless the statutory commercial interest rate is higher, in which case the statutory interest is payable. The Customer will be liable for any court and out-of-court fees incurred by Hemelz ProBooks in connection with the collection of invoices, subject to a minimum of 15% of the outstanding invoice amount plus any interest payable. The Customer will not be entitled to suspend its payment obligations. The Customer will not be entitled to deduct any payment obligation to Hemelz ProBooks of any kind whatsoever from any receivables payable by Hemelz ProBooks to the Customer.
5. Hemelz ProBooks will be authorised to suspend its obligation to provide Content or Services to the Customer as long as the latter has not fulfilled its obligations (including payment obligations) to Hemelz ProBooks in relation to the relevant Content or Services. Hemelz ProBooks will not be liable for any loss resulting from the exercise of a right of suspension.
Article 6 – Warranty and return shipments
1. Hemelz ProBooks guarantees that the Content and Services comply with the terms of the Agreement, the specifications included in the offers, as well as complying with the reasonable requirements of soundness and/or usability and with the statutory obligations existing on the date of the negotiation of the Agreement.
2. The Customer will be authorised to return all physical goods except on special demand produced goods, like P.O.D. printing or on demand created eBooks, to Hemelz ProBooks within seven days of receipt. Hemelz ProBooks will solely accept return shipments if it has received the physical data medium unused, undamaged and including the original packing slip or invoice and if the Customer has specified the reason for returning the product in writing.
3. If the return shipment satisfies the terms set out in the second paragraph, Hemelz ProBooks will refund the amount paid to the Customer within 30 days of receipt of the return shipment.
Article 7 – Complaints
1. The Customer is required to submit to Hemelz ProBooks any complaints regarding the Content and/or Services provided in writing within seven days of delivery, including clear and full details. Hemelz ProBooks will process the complaint in accordance with its complaints procedure.
2. Any complaints will be processed, and the Customer will receive a reply, within 14 days from the date of receipt. If a complaint unexpectedly requires a longer processing time, Hemelz ProBooks will respond within 14 days with a confirmation of receipt and an indication of when the Customer can expect a more detailed reply.
3. The submission of a complaint by a Customer does not entitle the Customer to suspend its payment obligation.
Article 8 – Delivery, performance and risk
1. Content, Hardware and Physical Goods are supplied in the following ways:
a) By supplying ordered physical goods or the medium on which the Content is stored to the address provided by the Customer, or
b) By making them available online, using a personal Token or other verification method if applicable.
2. From the time the Content or movable property is supplied, the Customer is liable for any risk of loss or damage.
3. Hemelz ProBooks will endeavour to deliver Content to the Customer (or arrange for a third party to do so on its behalf) within seven working days after the Agreement has been signed or on the date agreed between customer and Hemelz ProBooks. Note that this is a target date as opposed to a strict deadline.
4. The Customer will be entitled to terminate the Agreement if delivery takes longer than thirty (30) days.
5. Hemelz ProBooks will retain ownership of all goods supplied to the Customer until the Customer has fulfilled all its obligations to Hemelz ProBooks under the Agreement.
Article 9 – Privacy
Article 10 – Liability
1. Hemelz ProBooks liability is limited to the amount paid in the relevant case as part of Hemelz ProBooks insurance policy, plus the excess, which, under the policy terms of this insurance, will be payable by Hemelz ProBooks.
2. If no payment is made under the insurance policy referred to in paragraph 1 of Article 10, for any reason whatsoever, Hemelz ProBooks liability will be limited to the total of the amounts invoiced to the Customer over the past 12 months, subject to a maximum of €5000.
3. The provisions of paragraphs 1 and 2 of Article 10 do not apply in the event of gross negligence or wilful misconduct on the part of Hemelz ProBooks.
Article 11 – Intellectual Property Rights
1. All intellectual property rights, including, but not limited to, copyright, design rights, database rights, trademark rights, trade name rights or patent rights, and any other rights to and relating to the Content and/or Services and related knowhow are owned by Hemelz ProBooks and its licensors.
2. The Customer is not authorised to reproduce or publish Content and/or Services supplied and/or provided by Hemelz ProBooks to the Customer in whole or in part without Hemelz ProBooks prior written consent, unless and to the extent that this is permitted under mandatory law.
3. No part of the Agreement or these Terms and Conditions can be interpreted as a transfer of intellectual property rights in relation to the Content and/or Services.
Article 12 – Use of Digital Content
1. All intellectual property rights specified in Article 11, paragraph 1 to, and relating to, Digital Content are owned by Hemelz ProBooks or its licensor(s). The Customer will only be granted a non-exclusive, non-transferable and non-sublicensable licence to the Digital Content provided.
2. The licence referred to in paragraph 1 will be provided for the terms of the agreement between Hemelz ProBooks and the Customer. On the purchase of e-books, Hemelz ProBooks will provide the Customer with a licence for a 10-year period.
3. Unless expressly otherwise provided, Digital Content must only be consulted for personal and non-commercial use or – if the Customer is a business customer – for internal business purposes.
4. The Client is not authorised to edit, reproduce, transmit or lend the Digital Content or make it available to any third parties in any manner whatsoever or use it to perform any other acts which extend beyond the scope of the licence provided in this article (Article 11), unless otherwise provided for in the Dutch Copyright Act (Auteurswet).
5. Hemelz ProBooks or its licensor(s) are entitled to take technical measures in order to protect their Intellectual Property Rights. The Customer will not be authorised to remove or circumvent these security measures.
6. Hemelz ProBooks or its licensor(s) are authorised, to the extent reasonably necessary for the purpose of enforcing intellectual property rights, imposing restrictions (temporary or otherwise) on the scope or extent of the licence or the number of devices or types of devices on which the Digital Content can be consulted.
7. If the Customer acts in contravention of this article (Article 12), Hemelz ProBooks will be authorised to suspend access to the relevant Digital Content or the Customer’s web account, notwithstanding Hemelz ProBooks right to recover from the Customer the loss suffered as a result of or in connection with the infringement in question (including any expenses incurred). Hemelz ProBooks will not be liable for the effects of suspending access to the web account.
8. Temporarily reduced access to, or availability of, the Digital Content will not entitle the Customer to suspend the payment of the fees payable. The Customer will not be entitled to a refund of the fees it has paid in the event of temporarily lack of access, or reduced access, to the Digital Content.
Article 13 – Sale of Digital Content by the Customer
1. The Customer is prohibited from marketing Digital Content, e.g. by selling, offering for sale, renting out or lending copies online.
2. To the extent that exhaustion of copyright can be invoked in relation to Digital Content within the meaning of Section 12b of the Dutch Copyright Act (Auteurswet), the Customer, contrary to the provisions of paragraph 1, will solely be authorised to market the copy it has obtained in the following cases:
– If it has obtained a licence for the relevant copy from Hemelz ProBooks for an indefinite period of time;
– If it has paid a price to Hemelz ProBooks matching the economic value of the copy;
– If it transfers both its licence and a copy and has disabled its own copy (i.e. rendered it inoperable) and can provide evidence thereof.
3. The Customer is not authorised, under any circumstances, to rent out and lend Digital Content.
Article 14 – Termination of the Agreement
1. Hemelz ProBooks will be authorised to terminate the Agreement in writing in whole or in part, without a notice of default being required and without being liable to pay any compensation or fees, in the following events:
b) If the Customer has been granted a moratorium;
c) If a bankruptcy petition is filed on behalf of the Customer;
d) If the Natural Persons Debt Rescheduling Act (Wet schuldsanering natuurlijke personen) is applied to the Customer, a natural person;
e) If the Customer’s business is dissolved, wound up or otherwise terminated and/or transferred to a third party without Hemelz ProBooks prior written consent.
2. The provisions of Article 14, paragraph 1 do not affect the option of rescission pursuant to the law.
3. In the event of termination of the Agreement, all payments made by Hemelz ProBooks to the Customer will be immediately due and payable in full.
4. Rescission of the Agreement will result in the immediate revocation of the Customer’s rights to use the Content and/or Service.
5. Hemelz ProBooks can cancel the subscription at any time, subject to one month’s notice, unless otherwise provided for in the Agreement.
Article 15 – Miscellaneous
1. The Agreement is subject to Dutch law. The applicability of the United Nations Convention on Contracts for the International Sale of Goods (Vienna Sales Convention) is excluded.
2. Any disputes arising from or relating to the Agreements will be exclusively referred to the Amsterdam District Court.
last update: 06-05-2018