ARTICLE 1 – GENERAL
General terms and conditions
Moxie Sport Analysis & Coaching
- Moxie Sport Analysis & Coaching based in Erp is a sole proprietorship run by Dr. C. Munsters (hereinafter referred to as Moxie Sport).
- The Client is the party instructing Moxie Sport to carry out work or a third party engaged by the Client.
- In these general terms and conditions ‘Assignment’ is understood to mean all activities for which a Client wishes to engage Moxie Sport and which, upon acceptance by Moxie Sport, results in an Agreement.
- Agreement means: any agreement concluded between Moxie Sport and the Client with regard to the provision of services by Moxie Sport, any amendment or supplement thereto, as well as all (legal) acts in preparation for and in execution of that Agreement.
- In these general terms and conditions all services of Moxie Sport (such as courses, fitness testing, monitoring, analysis, training and supervision) are described with the term ‘Training’.
- The general terms and conditions have also been filed with the Chamber of Commerce (The Netherlands).
ARTICLE 2 – APPLICABILITY
Applicability of General Terms and Conditions
- These General Terms and Conditions form part of and apply to all requests made by the Client, to the offers issued by Moxie Sport, to orders issued by the Client, to order confirmations issued by Moxie Sport and to all Agreements concluded and to be concluded by the Client with Moxie Sport relating to the provision of services by Moxie Sport. ‘
- All agreements and training courses accepted by Moxie Sport are exclusively governed by these general terms and conditions. Other terms and conditions, whether or not made known in advance, are explicitly excluded.
- These General Terms and Conditions will always be made known to the Client at the start of the first assignment and will be deemed to be applicable to all subsequent assignments of any nature whatsoever.
- Moxie Sport may deviate from the provisions of these General Terms and Conditions only if agreed in writing.
- Moxie Sport is entitled to make changes to its General Terms and Conditions. These must be sent in writing to the Client. If no written objection is made by the Client within three weeks after the date of dispatch, the amended General Terms and Conditions are irrevocably applicable. In the event of an objection, Moxie Sport and the Client will enter into consultation.
- If, in the opinion of the competent court, any provision of these General Terms and Conditions is inapplicable or contrary to public order or the law, only the provision in question will be regarded as not written, but the General Terms and Conditions will otherwise remain in full effect. Instead of a possibly invalid provision, a provision that comes closest to the intention of the parties shall apply.
ARTICLE 3 – INFORMATION, ADVICE AND CONCLUSION OF AGREEMENT
- Moxie Sport will inform the Client without obligation in a general sense about what it can do for the Client, the extent to which this information relates to training in technical aspects is exclusively at the discretion of Moxie Sport.
- In principle, training in technical advice with regard to content is not provided without obligation and is regarded as work on commission.
- All offers to conclude an agreement are without obligation, unless otherwise agreed between the parties.
- The agreement to be entered into between Moxies Sport and the Client is legally valid from the moment the horse is offered for training and Moxies Sport has commenced the execution of the agreement and/or has delivered the training.
- Moxie Sport has at all times the right to charge all costs incurred by Moxie Sport to provide the offer to the Client if an offer does not ultimately lead to a final agreement.
- Moxie Sport has the right to refuse to enter into an agreement with regard to a horse offered to accompany it for reasons of movement and/or to accept only under certain conditions, unless Moxie Sport is obliged to accompany the horse offered on the basis of legal and/or behavioural/ disciplinary regulations. In addition, Moxie Sport can refuse an assignment without being liable for damages.
ARTICLE 4- ACCEPTANCE OF ASSIGNMENT
- An order will not be accepted until it has been confirmed in writing by Moxie Sport, or when its execution has actually commenced.
- An accepted assignment leads to an agreement for the provision of training and all related activities. Moxie Sport carries out these activities to the best of its ability and with the care that may be expected of it.
- Moxie Sport is free to involve third parties in its activities.
- The Client is obliged to provide all data relevant to the performance of the agreement in a timely manner. Moxie Sport is never liable for damage of the Client or a third party engaged by the Client as a result of Moxie Sport acting on the basis of incorrect and/or incomplete information provided by or on behalf of the Client.
- Moxie Sport will execute the agreement to the best of its knowledge and ability and in accordance with the requirements of good craftsmanship. All this on the basis of the at that time known state of science.
- By providing the agreement of Moxie Sport, the Client declares to agree with the prices used by Moxie Sport, including the fee.
- All stipulations of these conditions have also been made for the benefit of employees of Moxie Sport, as well as other persons working at, for or on behalf of Moxie Sport.
ARTICLE 5 – FORCE OF THE MAJORITY
- Force of the majority on the part of Moxie Sport shall mean any circumstance beyond the control of Moxie Sport as a result of which the fulfilment of its obligations towards the Client is reduced in whole or in part or as a result of which the fulfilment of its obligations cannot reasonably be demanded of Moxie Sport, regardless of whether that circumstance could have been foreseen at the time of the conclusion of the Agreement. These circumstances include strikes, calamities at Moxie Sport, (civil) war, danger of war, (natural) disasters, riots, riots, fire, acts of war, other industrial disturbances and measures taken by government bodies.
- Moxie Sport will inform the Client as soon as possible of a (threatening) force majeure situation.
- If Moxie Sport is prevented by force of the majority from performing the Agreement, Moxie Sport has the right, without judicial intervention, to suspend performance of the Agreement or to dissolve the Agreement in whole or in part out of court, at the discretion of Moxie Sport, without Moxie Sport being obliged to pay any compensation to the Client.
ARTICLE 6 – SUSPENSION AND TERMINATION
1. Moxie Sport is entitled, without prejudice to its right to compensation, to suspend the execution of the Agreement and all related Agreements with immediate effect, without notice of default and without judicial intervention, and/or to dissolve the Agreement and all related
Agreements in whole or in part, without being able to be held liable for compensation by the Client, if:
a) Client does not fulfil any obligation under the Agreement, or does not fulfil it on time or properly;
b) Bankruptcy or suspension of payment has been applied for in respect of the Client, or if the Client is a natural person, debt rescheduling has been applied for;
c) The Client’s company will be dissolved, liquidated or shut down;
d) A substantial part of the assets of the Client will be seized by means of an executive attachment;
e) Moxie Sport has well-founded reasons to fear that the Client is not able or will not be able to fulfil its obligations ensuing from the Agreement concluded with Moxie Sport and that the Client, at the request of Moxie Sport, does not, or does not provide sufficient security for the fulfilment of its obligations.
2. All claims which Moxie Sport may have or acquire against the Client in the cases referred to in paragraph 1 of this article will be immediately due and payable in full.
3. The Client is not entitled to invoke any right of suspension or setoff against Moxie Sport.
4. Client is not entitled to dissolve the Agreement in whole or in part if he himself was already in default with the fulfilment of his obligations.
ARTICLE 7 – CANCELLATION BY MOXIE SPORT
1. When fewer participants register for a Training than the minimum required for the Training concerned, Moxie Sport reserves the right to cancel the Training without Client being entitled to claim any compensation. Any payments already made for the Training concerned will be refunded.
ARTICLE 8 – CANCELLATION BY CLIENT
- If Client or a third party is unable to participate in the Training, he must deregister no later than 24 hours in advance. The Course may then be overtaken at a later time in consultation with the Client.
- In the event Client does not cancel a Training on time, the Training cannot be caught up and the Client owes the full costs.
ARTICLE 9 – LIABILITY
- Every rider who participates in the Training of Moxie Sport guarantees that the horse is ‘fit to compete’. This means that the horse is physically capable of completing the Training in good health. If, during or after the Training, it appears that the horse is (was) unable to do so and gets injured, the risk remains with the rider at all times. This also applies in case the horse gets injured due to another cause during Training.
- Every rider who follows the Training provided by Moxie Sport does so entirely at his own risk. This means that if the horse is injured as a result of or during Training, the risk remains with the rider at all times. The Client, or the third party attending the Moxie Sport Training, shall take out adequate liability insurance, fire insurance, theft insurance and accident and/or health insurance and insure themselves, their belongings and property as well as horse and harness.
- In the unlikely event that an event occurs during the execution of the Agreement that leads to liability on the part of Moxie Sport, this liability is limited to direct damage. Direct damage is exclusively understood to mean:
- – reasonable costs to determine the cause and extent of the damage, insofar as the determination relates to damage within the meaning of these terms and conditions;
- – any reasonable costs incurred to make the defective performance of Moxie Sport conform to the contract, insofar as these can be attributed to Moxie Sport;
- – reasonable costs incurred to prevent or limit damage, insofar as Client demonstrates that these costs have led to limitation of direct damage as referred to in these general terms and conditions.
Moxie Sport is never liable for indirect damage, including consequential damage, loss of profit, missed savings and damage due to business or other stagnation.
- If Moxie Sport should be liable for any damage, the liability of Moxie Sport is always limited to the amount of the invoice value for the Training in which the damage occurred.
- The limitations of the previous paragraphs do not apply if the damage is due to intent or deliberate recklessness on the part of Moxie Sport.
- Within the framework of the limitation of liability in the previous paragraphs, Moxie Sport shall only be liable for damage resulting from work carried out by Moxie Sport itself or on its instructions.
- The Client indemnifies Moxie Sport against all claims of whatever nature that third parties may assert against Moxie Sport in respect of any damage suffered or suffered that goes beyond the liability that the Client can assert against Moxie Sport, unless mandatory law stipulates otherwise.
ARTICLE 10 INTELLECTUAL PROPERTY RIGHTS
- All intellectual property rights concerning the products and services of Moxie Sport, including but not limited to the analysis tool, and all documents produced by Moxie Sport on behalf of the Client, including but not limited to database rights and copyrights to analyses, training programmes, fitness test protocols and course material carried out, belong exclusively to Moxie Sport. The Client acknowledges these rights and guarantees that it will refrain from any infringement thereof.
- Client only acquires a non-transferable right of use (in the sense of property law) to the aforementioned documents for internal use only, solely for the purposes arising from the Agreement and subject to the condition of full compliance by Client with its obligations under the Agreement. Without prejudice to the foregoing and subject to the prior written consent of Moxie Sport, the Client is therefore not permitted to reproduce, publish, edit and/or otherwise use and/or exploit the aforementioned documents.
- During a Training the Client receives feedback on the analyses of the Training done. The database right of the analyses carried out as well as the analysis tool for this remains with Moxie Sport at all times.
ARTICLE 11- FEE AND COSTS
- Moxie Sport determines the rates and fees to be charged according to its own rates according to time and circumstances and is authorised to adjust its rates. The invoice will mention the calculated VAT.
- Payment of the invoice of Moxie Sport can be made in cash, immediately after the transaction unless otherwise agreed between Moxie Sport and the Client. Non-cash payments are subject to a payment term of 14 days after the invoice date. In both cases administration costs may be charged.
- If Moxie Sport has brought the claim in legal proceedings, including arbitration or binding advice, the Client is obliged to reimburse Moxie Sport for the costs actually incurred in the proceedings. This includes the costs of (procedural) lawyers and attorneys at law as well as the fee owed to arbitrators or binding advisers and the fixed fee, even if these exceed a possible order for costs on the basis of Article 237 and further of the Dutch Code of Civil Procedure.
- If Moxie Sport has reason to doubt that the Client will meet its financial obligations, Moxie Sport is at all times entitled to require the Client to make (partial) advance payment and/or to require the other party to provide adequate security at the discretion of Moxie Sport.
- Set-off or set-off by the Client is never permitted.
ARTICLE 12 – EXTRAJUDICIAL EXPENSES
1. In the event that the Client is in omission of full payment of the amounts invoiced by Moxie Sport to the Client, the Client shall owe Moxie Sport (among other things) the extrajudicial (collection) costs as set out below:
a. Insofar as the Client did not act in the exercise of a profession or business, Moxie Sport is entitled to an amount equal to the statutory maximum permitted compensation in respect of extrajudicial collection costs, as determined in and calculated in accordance with the Decree on compensation for extrajudicial collection costs, insofar as the outstanding amount – after the commencement of the default – is not paid by Moxie Sport within 14 days calculated from the day following the day of the reminder.
b. Insofar as the Client was acting in the exercise of a profession or business, Moxie Sport, contrary to Section 6:96 subsection 5 of the Dutch Civil Code, is also entitled to compensation and payment of the extrajudicial (collection) costs in deviation from the Decree on the Compensation of Extrajudicial Collection Costs (Besluit vergoeding voor buitengerechtelijke incassokosten), which is now set at an amount equal to 15% of the total outstanding Client sum with a minimum of € 50.00 for each invoice left partially or completely unpaid.
ARTICLE 13 – COURSE PROVISIONS
- Each participant must be insured for civil liability and his/her horse(s) must be in good health and vaccinated against influenza/tetanus. A horse should also be recently dewormed.
- After confirmation of the registration form by Moxie Sport, the registration is final and the participant is obliged to pay. In case of late payment or when the documents required for registration for the course or training are missing in whole or in part, the (prospective) participant is in default. Without a further notice of default being required, the participant may be refused access to the course or training, whereby the participant’s payment obligation remains in full force and effect, possibly increased by costs and interest.
- After participation, the participant is entitled to a certificate, proof of participation or another relevant document, after all payments to Moxie Sport have been made by the participant.
ARTICLE 14 – PRIVACY STATEMENT
- Moxie Sport processes personal data (all information about an identified or identifiable natural person, such as address, telephone number and email address). The scope of the Avg is limited to the processing of personal data of natural persons. Data or animal data, including age and level, are therefore strictly speaking outside the scope of the Avg. Moxie Sport makes a clear distinction between the processing of personal data on the one hand and the processing of data of horses on the other hand.
- Moxie Sport processes personal data and for the purpose of communication, marketing, payment traffic, identification and handling of the agreement between the Client, Moxie Sport stores data provided by each Client, namely name, address, gender, age, email address, telephone number, financial data and possibly in case of application website data.
- Mail exchange between Client will take place via a secure environment, via a laptop of Moxie Sport which is only accessible after a login obligation.
- Personal data will not be provided to third parties.
- Storage of personal and horse data and processing data takes place on an encrypted cloud environment, which is secured with a login obligation from Moxie Sport. No personal data and horse data and processing data is stored on laptops or computers.
- Upon termination of the assignment or agreement, the personal data of the former Client in question will be deleted after five years.
- The client has the right to inspect personal data, the right of rectification, the right to erase data and the right to restrict processing.
- Data and processing data of horses and/or ponies that undergo training under the supervision of Moxie Sport will be treated as private sensitive personal data. This means that name, age, level, discipline and feedback on the analyses of the training and competition of the horse/pony in question is stored in a secure encrypted cloud environment with a login requirement. This data is needed to provide a customised Training or advice regarding the current fitness of the horse or pony.
- As horses and/or ponies of Clients fall under the participant agreement of a national federation, the data of exercise tests and monitoring training and competitions will only be shared with other third parties (like national federation, relevant national coach, team veterinarian) when rider has given the written permission to do so.
- The raw data of the training and competitions of the horses and/or ponies of Clients are stored on a cloud service which is set up for these purposes. The individual login details of these personal cloud accounts of Clients are provided by the Clients for the purpose of handling the assignment agreement. These login details are then stored at Moxie Sport in an encrypted Cloud environment with a login obligation.
- The raw data of trainings and competitions of the horses and/or ponies are exported from the personal cloud accounts by Moxie Sport and further analysed in an analysis tool developed by Moxie Sport. In this analysis tool raw data is further analysed to provide insight into training modifications and this data is used for long-term monitoring. The analysis tool forms an overview per horse per year, which is called the Database.
- The analysis tool as well as the Database also run fully in an encrypted cloud environment and is not available as a standalone on a PC or laptop. This cloud environment is created by encrypted connections and data is stored via untraceable means. Access to this database is limited to the owner of Moxie Sport and an IT processor with whom a processing agreement has been made.
- Data and processing data of horses and ponies can be used at any time for further scientific research or to improve the analysis tool or storage in the Database. These are not personal data of the Client. Data and processing data of the horses and/or ponies will then be further anonymised, so that individual horse data cannot be traced. The research is aimed at gaining more insight into training, load and load capacity of the horse, in order to further optimise the well-being of the horse.
- Moxie Sport has drawn up a register of processing operations (Article 30 Avg). This describes, among other things, all processing activities, storage periods, processing purposes and a description of the categories of data subjects. This register is provided on request to the supervisor, the Personal Data Authority, for the purpose of monitoring compliance with privacy legislation.
ARTICLE 15 – APPLICABLE LAW AND DISPUTES
- All Agreements shall be governed by Dutch law, to the exclusion of the provisions of international treaties to the extent that they do not contain mandatory law.
- All disputes that may arise between the parties in connection with the Agreement will be exclusively adjudicated by the District Court of Oost-Brabant, location ‘s-Hertogenbosch, without prejudice to the right of Moxie Sport to summon the Client to appear before the court that is competent according to the law or convention. A dispute exists as soon as one of the parties has notified the other of this in writing.
- In the event of differences between these general terms and conditions and translations thereof, the Dutch text shall prevail.