Terms and Conditions | Smarter Triathlete

GENERAL TERMS AND CONDITIONS

Definitions

TTA: Smarter Triathlete, established in Sint-Oedenrode, Chamber of Commerce no. 50531336.
Customer: the person with whom Smarter Triathlete has entered into an agreement.
Parties: Smarter Triathlete and customer together.
Consumer: a customer who is an individual acting for private purposes.

Applicability

These terms and conditions will apply to all quotations, offers, activities, orders, agreements and deliveries of services or products by or on behalf of Smarter Triathlete.
Parties can only deviate from these conditions if they have explicitly agreed upon in writing.
The parties expressly exclude the applicability of supplementary and/or deviating general terms and conditions of the customer or of third parties.

Prices

All prices used by Smarter Triathlete are in euros, are inclusive of VAT and exclusive of any other costs such as administration costs, levies and travel-, shipping- or transport expenses, unless expressly stated otherwise or agreed otherwise.
Smarter Triathlete is entitled to adjust all prices for its products or services, shown in its shop, on its website or otherwise, at any time.
Increases in the cost prices of products or parts thereof, which Smarter Triathlete could not foresee at the time of making an offer or the conclusion of the agreement, may give rise to price increases.
The consumer has the right to terminate an agreement as a result of a price increase as referred to in paragraph 3, unless the increase is the result of statutory regulation.
The price with regard to services is determined by Smarter Triathlete on the basis of the actual working hours.
The price is calculated according to the usual hourly rates of Smarter Triathlete, valid for the period in which he carries out the work, unless a different hourly rate has been agreed.
If the parties have agreed on a total amount for a service provided by Smarter Triathlete, this is always a target price, unless the parties have explicitly agreed upon in writing on a fixed price, which can not be deviated from.
Smarter Triathlete is entitled to deviate up to 10% of the target price.
If the target price exceeds 10%, Smarter Triathlete must let the customer know in due time why a higher price is justified.
If the target price exceeds 10%, the customer has the right to cancel the part of the order that exceeds the target price by 10%.
Smarter Triathlete has the right to adjust prices annually.
Smarter Triathlete will communicate price adjustments to the customer prior to the moment the price increase becomes effective.
The consumer has the right to terminate the contract with Smarter Triathlete if he does not agree with the price increase.

Payments and payment term

Smarter Triathlete may, at the conclusion of the agreement, require a down payment of up to 50% of the agreed amount.
The customer must have paid the full amount within 7 days after delivery of the product.
Payment terms are considered as fatal payment terms. This means that if the customer has not paid the agreed amount at the latest on the last day of the payment term, he is legally in default, without Smarter Triathlete having to send the customer a reminder or to put him in default.
Smarter Triathlete reserves the right to make a delivery conditional upon immediate payment or to require adequate security for the total amount of the services or products.

Consequences of late payment

If the customer does not pay within the agreed term, Smarter Triathlete is entitled to charge an interest of 1% per month from the day the customer is in default, whereby a part of a month is counted for a whole month.
When the customer is in default, he is also due to extrajudicial collection costs and may be obliged to pay any compensation to Smarter Triathlete.
The collection costs are calculated on the basis of the Reimbursement for extrajudicial collection costs.
If the customer does not pay on time, Smarter Triathlete may suspend its obligations until the customer has met his payment obligation.
In the event of liquidation, bankruptcy, attachment or suspension of payment on behalf of the customer, the claims of Smarter Triathlete on the customer are immediately due and payable.
If the customer refuses to cooperate with the performance of the agreement by Smarter Triathlete, he is still obliged to pay the agreed price to Smarter Triathlete.

Right of recovery of goods

As soon as the customer is in default, Smarter Triathlete is entitled to invoke the right of recovery with regard to the unpaid products delivered to the customer.
Smarter Triathlete invokes the right of recovery by means of a written or electronic announcement.
As soon as the customer has been informed of the claimed right of recovery, the customer must immediately return the products concerned to Smarter Triathlete, unless the parties agree to make other arrangements about this.
The costs for the collection or return of the products are at the expense of the customer.

Right of cancellation

A consumer may cancel an online purchase during a cooling-off period of 14 days without giving any reason, provided that

the product has not been used
it is not a product that can spoil quickly, like food or flowers
the product is not specially tailored for the consumer or adapted to its special needs
it is not a product that may not be returned for hygienic reasons (underwear, swimwear, etc.)
the seal is still intact, when the product is a data carrier with digital content (DVDs, CDs, etc.)
the product is not a (holiday)trip, a transportation ticket, a catering order or a form of leisure activity,
the product is not a separate magazine or a loose newspaper
the purchase does not concern an (assignment to) urgent repair
the consumer has not renounced his right of cancellation

The reflection period of 14 days as referred to in paragraph 1 commences:

on the day after the consumer has received the last product or part of 1 order
as soon as the consumer has received the first the product of a subscription
as soon as the consumer has purchased a service for the first time
as soon as the consumer has confirmed the purchase of digital content via the internet

The consumer can notify his right of cancellation via , if desired by using the withdrawal form that can be downloaded via the website of Smarter Triathlete, https://triathlontrainingacademy.com/.
The consumer is obliged to return the product to Smarter Triathlete within 14 days after the notification of his right of cancellation, after which period his right of cancellation will lapse.
The costs for return are due Smarter Triathlete if the complete order is returned.
If the purchase costs and any other costs (such as shipping and return costs) are eligible for reimbursement according to the law, Smarter Triathlete will refund these costs to the consumer within 14 days of receipt of the timely appeal to the right of withdrawal, provided that the consumer has returned the product to Smarter Triathlete in time.

Suspension of obligations by the customer

The customer waives the right to suspend the fulfillment of any obligation arising from this agreement.

Right of retention

Smarter Triathlete can appeal to his right of retention of title and in that case retain the products sold by Smarter Triathlete to the customer until the customer has paid all outstanding invoices with regard to Smarter Triathlete, unless the customer has provided sufficient security for these payments.
The right of retention of title also applies on the basis of previous agreements from which the customer still owes payments to Smarter Triathlete.
Smarter Triathlete is never liable for any damage that the customer may suffer as a result of using his right of retention of title.

Settlement

The customer waives his right to settle any debt to Smarter Triathlete with any claim on Smarter Triathlete.

Retention of title

Smarter Triathlete remains the owner of all delivered products until the customer has fully complied with all its payment obligations with regard to Smarter Triathlete under whatever agreement with Smarter Triathlete including of claims regarding the shortcomings in the performance.
Until then, Smarter Triathlete can invoke its retention of title and take back the goods.
Before the property is transferred to the customer, the customer may not pledge, sell, dispose of or otherwise encumber the products.
If Smarter Triathlete invokes its retention of title, the agreement will be dissolved and Smarter Triathlete has the right to claim compensation, lost profits and interest.

Delivery

Delivery takes place while stocks last.
Delivery takes place at Smarter Triathlete unless the parties have agreed upon otherwise.
Delivery of products ordered online takes place at the address indicated by the customer.
If the agreed price is not paid on time, Smarter Triathlete has the right to suspend its obligations until the agreed price is fully paid.
In the event of late payment, the customer is automatically in default, and hereby he can not object to late delivery by Smarter Triathlete.

Delivery period

Any delivery period specified by Smarter Triathlete is indicative and does not give the customer the right to dissolution or compensation if this period is not met with, unless the parties have expressly agreed otherwise in writing.
The delivery starts once the customer has fully completed the (electronic) ordering process and received an (electronic) confirmation of his order from Smarter Triathlete.
Exceeding the specified delivery period does not entitle the customer to compensation or the right to terminate the contract, unless Smarter Triathlete cannot deliver within [number of days late] or if the parties have agreed upon otherwise.

Actual delivery

The customer must ensure that the actual delivery of the products ordered by him can take place in time.

Transport costs

Transport costs are on behalf of the customer, unless the parties have agreed upon otherwise.

Packaging and shipping

If the package of a delivered product is opened or damaged, the customer must have a note drawn up by the forwarder or delivery person before receiving the product. In the absence of which Smarter Triathlete may not be held liable for any damage.
If the customer himself takes care of the transport of a product, he must report any visible damage to products or the packaging prior to the transport to Smarter Triathlete, failing which Smarter Triathlete cannot be held liable for any damage.

Insurance

The customer undertakes to insure and keep insured the following items adequately against fire, explosion and water damage as well as theft:

goods delivered that are necessary for the execution of the underlying agreement
goods being property of Smarter Triathlete that are present at the premises of the customer
goods that have been delivered under retention of title

At the first request of Smarter Triathlete, the customer provides the policy for these insurances for inspection.

Storage

If the customer orders products later than the agreed delivery date, the risk of any quality loss is entirely for the customer.
Any extra costs as a result of premature or late purchase of products are entirely at the customer’s expense.

Guarantee

When parties have entered into an agreement with services included, these services only contain best-effort obligations for Smarter Triathlete, not obligations of results.
The warranty relating to products only applies to defects caused by faulty manufacture, construction or material.
The warranty does not apply in the event of normal wear and tear and damage resulting from accidents, changes made to the product, negligence or improper use by the customer, or when the cause of the defect can not clearly be established.
The risk of loss, damage or theft of the products that are the subject of an agreement between the parties, will pass on to the customer when these products are legally and/or factually delivered, at least are in the power of the customer or of a third party who receives the product for the benefit of the customer.

Exchange

Exchange is only possible if the following conditions are met:

exchange takes place within 14 days after purchase upon presentation of the original invoice
the product is returned in the original packaging or with the original (price) tags still attached to it
the product has not been used

Discounted items, non-shelf articles such as food, custom made items or specially adapted articles for the customer cannot be exchanged.

Performance of the agreement

Smarter Triathlete executes the agreement to the best of its knowledge and ability and in accordance with the requirements of good workmanship.
Smarter Triathlete has the right to have the agreed services (partially) performed by third parties.
The execution of the agreement takes place in mutual consultation and after written agreement and payment of the possibly agreed advance by the customer.
It is the responsibility of the customer that Smarter Triathlete can start the implementation of the agreement on time.
If the customer has not ensured that Smarter Triathlete can start the implementation of the agreement in time, the resulting additional costs and/or extra hours will be charged to the customer.

Duty to inform by the customer

The customer shall make available to Smarter Triathlete all information, data and documents relevant to the correct execution of the agreement to in time and in the desired format and manner.
The customer guarantees the correctness, completeness and reliability of the information, data and documents made available, even if they originate from third parties, unless otherwise ensuing from the nature of the agreement.
If and insofar as the customer requests this, Smarter Triathlete will return the relevant documents.
If the customer does not timely and properly provides the information, data or documents reasonably required by Smarter Triathlete and the execution of the agreement is delayed because of this, the resulting additional costs and extra hours will be charged to the customer.

Duration of the agreement

The agreement between Smarter Triathlete and the customer is entered into for the duration of 1 months, unless it results otherwise from the nature of the agreement or if the parties have expressly agreed otherwise in writing.
If a fixed-term contract has been entered into, it will be tacitly converted into an open-ended contract at the end of the term, unless 1 of the parties terminates the contract with due observance of a notice period of 2 month(s), or if a consumer terminates the agreement with due observance of a notice period of 1 month / the agreement ends at the end of the fixed term.
If the parties have agreed upon a term for the completion of certain activities, this is never a strict deadline, unless specified explicitly otherwise in writing. If this term is exceeded, the customer must give Smarter Triathlete a written reasonable term to terminate the activities, before it may either terminate the contract or claim damages.

Intellectual property

Smarter Triathlete retains all intellectual property rights (including copyright, patent rights, trademark rights, design and design rights, etc.) on all designs, drawings, writings, data carriers or other information, quotations, images, sketches, models, scale models, etc., unless parties have agreed otherwise in writing.
The customer may not copy or have copied the intellectual property rights without prior written permission from Smarter Triathlete, nor show them to third parties and / or make them available or use them in any other way.

Confidentiality

The client keeps any information he receives (in whatever form) from Smarter Triathlete confidential.
The same applies to all other information concerning Smarter Triathlete of which he knows or can reasonably suspect that it is secret or confidential, or of which it can expect that its disclosure may cause damage to Smarter Triathlete.
The customer takes all necessary measures to ensure that he keeps the information referred to in paragraphs 1 and 2 secret.
The obligation of secrecy described in this article does not apply to information:

which was already made public before the customer heard this information or which later became public without being the result of a violation of the customer’s duty to confidentiality
which is made public by the customer due to a legal obligation

The confidentiality obligation described in this article applies for the duration of the underlying agreement and for a period of 3 years after the end thereof.

Penalties

If the customer violates the articles of these general terms and conditions about secrecy or intellectual property, then he forfeits on behalf of Smarter Triathlete an immediately due and payable fine of € 1000 if the customer is a consumer and € 5000 if the customer is a company,for each violation and in addition an amount of 5% of the aforementioned amount for each day that this violation continues.
No actual damage, prior notice of default or legal proceedings are required in forfeiting the fine referred to in the first paragraph of this article.
The forfeiture of the fine referred to in the first paragraph of this article shall not affect the other rights of Smarter Triathlete including its right to claim compensation in addition to the fine.

Indemnity

The customer indemnifies Smarter Triathlete against all third-party claims that are related to the products and/or services supplied by Smarter Triathlete.

Complaints

The customer must examine a product or service provided by Smarter Triathlete as soon as possible for possible shortcomings.
If a delivered product or service does not comply with what the customer could reasonably expect from the agreement, the customer must inform Smarter Triathlete of this as soon as possible, but in any case within 1 month after the discovery of the shortcomings.
Consumers must inform Smarter Triathlete of this within two months after detection of the shortcomings.
The customer gives a detailed description as possible of the shortcomings, so that Smarter Triathlete is able to respond adequately.
The customer must demonstrate that the complaint relates to an agreement between the parties.
If a complaint relates to ongoing work, this can in any case not lead to Smarter Triathlete being forced to perform other work than has been agreed.

Giving notice

The customer must provide any notice of default to Smarter Triathlete in writing.
It is the responsibility of the customer that a notice of default actually reaches Smarter Triathlete (in time).

Joint and several Client liabilities

If Smarter Triathlete enters into an agreement with several customers, each of them shall be jointly and severally liable for the full amounts due to Smarter Triathlete under that agreement.

Liability of Smarter Triathlete

Smarter Triathlete is only liable for any damage the customer suffers if and insofar as this damage is caused by intent or gross negligence.
If Smarter Triathlete is liable for any damage, it is only liable for direct damages that results from or is related to the execution of an agreement.
Smarter Triathlete is never liable for indirect damages, such as consequential loss, lost profit, lost savings or damage to third parties.
If Smarter Triathlete is liable, its liability is limited to the amount paid by a closed (professional) liability insurance and in the absence of (full) payment by an insurance company of the damages the amount of the liability is limited to the (part of the) invoice to which the liability relates.
All images, photos, colors, drawings, descriptions on the website or in a catalog are only indicative and are only approximate and can not lead to any compensation and/or (partial) dissolution of the agreement and/or suspension of any obligation.

Expiry period

Every right of the customer to compensation from Smarter Triathlete shall, in any case, expire within 12 months after the event from which the liability arises directly or indirectly. This does not exclude the provisions in article 6:89 of the Dutch Civil Code.

Dissolution

The customer has the right to dissolve the agreement if Smarter Triathlete imputably fails in the fulfillment of his obligations, unless this shortcoming does not justify termination due to its special nature or because it is of minor significance.
If the fulfillment of the obligations by Smarter Triathlete is not permanent or temporarily impossible, dissolution can only take place after Smarter Triathlete is in default.
Smarter Triathlete has the right to dissolve the agreement with the customer, if the customer does not fully or timely fulfill his obligations under the agreement, or if circumstances give Smarter Triathlete good grounds to fear that the customer will not be able to fulfill his obligations properly.

Force majeure

In addition to the provisions of article 6:75 Dutch Civil Code, a shortcoming of Smarter Triathlete in the fulfillment of any obligation to the customer cannot be attributed to Smarter Triathlete in any situation independent of the will of Smarter Triathlete, when the fulfillment of its obligations towards the customer is prevented in whole or in part or when the fulfillment of its obligations cannot reasonably be required from Smarter Triathlete .
The force majeure situation referred to in paragraph 1 is also applicable – but not limited to: state of emergency (such as civil war, insurrection, riots, natural disasters, etc.); defaults and force majeure of suppliers, deliverymen or other third parties; unexpected disturbances of power, electricity, internet, computer or telecoms; computer viruses, strikes, government measures, unforeseen transport problems, bad weather conditions and work stoppages.
If a situation of force majeure arises as a result of which Smarter Triathlete cannot fulfill one or more obligations towards the customer, these obligations will be suspended until Smarter Triathlete can comply with it.
From the moment that a force majeure situation has lasted at least 30 calendar days, both parties may dissolve the agreement in writing in whole or in part.
Smarter Triathlete does not owe any (damage) compensation in a situation of force majeure, even if it has obtained any advantages as a result of the force majeure situation.

Modification of the agreement

If, after the conclusion of the agreement and before its implementation, it appears necessary to change or supplement its contents, the parties shall timely and in mutual consultation adjust the agreement accordingly.

Changes in the general terms and conditions

Smarter Triathlete is entitled to amend or supplement these general terms and conditions.
Changes of minor importance can be made at any time.
Major changes in content will be discussed by Smarter Triathlete with the customer in advance as much as possible.
Consumers are entitled to cancel the agreement in the event of a substantial change to the general terms and conditions.

Transfer of rights

The customer can not transfer its rights deferring from an agreement with Smarter Triathlete to third parties without the prior written consent of Smarter Triathlete .
This provision applies as a clause with a property law effect as referred to in Section 3:83 (2) Dutch Civil Code.

Consequences of nullity or annullability

If one or more provisions of these general terms and conditions prove null or annullable, this will not affect the other provisions of these terms and conditions.
A provision that is null or annullable shall, in that case, be replaced by a provision that comes closest to what Smarter Triathlete had in mind when drafting the conditions on that issue.

Applicable law and competent court

Dutch law is exclusively applicable to all agreements between the parties.
The Dutch court in the district where Smarter Triathlete is established is exclusively competent in case of any disputes between parties, unless the law prescribes otherwise.

Drawn up on 01 june 2024.