ARTICLE 1. DEFINITIONS
In these general terms and conditions, the following terms are used in the sense given below, unless the nature or purport of these terms and conditions dictates otherwise.
1. Omnia Personal Training the user of these general terms and conditions, established in Amsterdam, registered in the Trade Register under KvK-number 72599936 with BTW-number NL859168633B01.
2. Participant: every natural person with whom Omnia Personal Training has concluded or intends to conclude an agreement and participates or intends to participate in training courses organised by Omnia Personal Training session.
3. Agreement: every agreement concluded between Omnia Personal Training and the participant with which Omnia Personal Training has committed itself towards the participant, at the agreed price, to provide personal training courses.
4. Session: each separate personal training session offered to the participant by or on behalf of Omnia Personal Training within the framework of the agreement on a specific day and at a specific time.
5. Written: to store both traditional written communication and digital communication on a durable data carrier, such as e-mail communication.
ARTICLE 2. GENERAL PROVISIONS
1. These general terms and conditions apply to every offer of Omnia Personal Training and every agreement concluded.
2. The applicability of the general or different conditions of the participant is explicitly rejected.
3. The provisions of these general terms and conditions may only be deviated from in writing. If and insofar as what the parties have expressly agreed in writing deviates from the provisions of these general terms and conditions, what the parties have expressly agreed in writing shall apply.
4. The nullification or invalidity of one or more of the present provisions shall not affect the validity of the other provisions. In such a case, the parties shall be obliged to enter into mutual consultation in order to reach a replacement arrangement with regard to the affected clause. The purpose and purport of the original provision shall be taken into account as much as possible.
5. Omnia Personal Training is authorised to amend these general terms and conditions at all times.
ARTICLE 3. OFFER AND FORMATION OF THE AGREEMENT
1. In order to conclude the agreement, an intake interview is required without any obligation, followed by registration by means of a registration form. Every offer of Omnia Personal Training is without obligation; Omnia Personal Training is never obliged to accept an enrolment or application for an intake interview.
2. The participant guarantees that the registration form is filled in completely and truthfully. The agreement is concluded at the moment that the completed registration form is provided to Omnia Personal Training and the registration of the participant is explicitly accepted by Omnia Personal Training.
3. Prior to the conclusion of the agreement, the participant shall complete the anamnesis form offered by Omnia Personal Training completely and truthfully. This form is intended to inform Omnia Personal Training of the personal circumstances of the participant and does not release the participant from his obligations as referred to in the following paragraphs of this Article in the event that the agreement is concluded.
4. By concluding the agreement, the participant declares that to the best of his knowledge he is healthy and physically capable of following the instructions of the personal trainer without harming his health. In case of doubt, it is the responsibility of the participant to consult his doctor before entering into the agreement with Omnia Personal Training.
5. By establishing the agreement, the participant further declares that he is in good physical and mental condition and that he is not aware of any medical or other reason why he should not be able to engage in active or passive training and that such training is not harmful to his health, safety, well-being or physical condition.
ARTICLE 4. CONTENT AND DURATION OF AGREEMENTS
1. In the event of illness or other kinds of force majeure Omnia Personal Training shall be entitled to leave the execution of the agreement in whole or in part to third parties, but shall not be obliged to do so. The applicability of Sections 7:404 and 7:407(2) of the Dutch Civil Code is excluded. If Omnia Personal Training leaves the execution of the agreement to third parties, it shall never be liable for damage that has arisen as a result of shortcomings attributable to these third parties.
2. Unless expressly agreed otherwise, the agreement shall be entered into for the agreed duration. The registration form explicitly states the duration of the agreement as well as the number of sessions that can be purchased.
3. The contract shall end after the term of the contract has expired.
ARTICLE 5. UNSUBSCRIBE FROM A SESSION
In case the participant fails to participate in a session, this session will expire for the participant without any claim to catch up on that session at a later time, or any other (financial) compensation. Contrary to the above, the participant is entitled to overtake a session on a day and time to be agreed between the parties on the grounds of illness or other force majeure, provided that the participant has de-registered at least 24 hours before the start of the session, stating the reason for the de-registration. In the event that Omnia Personal Training considers to have good reasons to assume that there is no question of illness or force majeure, there is no right to overtake the cancelled session or other compensation.
ARTICLE 6. RELOCATION OF A SESSION BY OMNIA PERSONAL TRAINING
1. Omnia Personal Training makes every effort to let a planned session go ahead, but may be forced to move it due to force majeure. Omnia Personal Training strives to inform the participant of this at least 24 hours in advance.
2. In the event that a planned session does not take place due to force majeure, an alternative date will be agreed in consultation with the participant.
3. Unless an alternative date for the session cannot be determined for serious reasons on the part of the participant, if the participant refuses to cooperate in determining it, the right to compensation, both financially and in terms of overtaking, shall lapse.
ARTICLE 7. GENERAL PROVISIONS FOR TRAINING COURSES
1. Omnia Personal Training performs each session to the best of its ability and insight. However, Omnia Personal Training commits itself at all times exclusively to an obligation to perform to the best of its ability. Omnia Personal Training never guarantees the results that the participant intends to achieve by entering into the agreement.
2. The rights to which the participant is entitled under the agreement are strictly personal and cannot be transferred by the participant to third parties.
3. Sessions shall be held at the Omnia Personal Training at Keizersgracht 583, unless explicitly agreed otherwise. The use of clean sports clothing and footwear is compulsory.
4. The participant undertakes to follow the instructions of the trainer during the session.
5. The participant complies with the provisions of these conditions and any house rules of the training location.
6. The participant agrees to take on all obligations of effort which are assigned to him in accordance with the instructions provided by Omnia Personal Training.
7. The participant must always inform Omnia Personal Training in good time of all facts and circumstances that may be important for the responsible following of the session.
8. The participant is obliged to report pain, fatigue, or changes that occur during or after the session to Omnia Personal Training, as well as changes in the physical condition that occur during the term of the agreement.
ARTICLE 8. SUSPENSION AND TERMINATION
1. If the circumstances so justify, Omnia Personal Training shall be authorised to suspend the execution of the agreement or to dissolve the agreement in whole or in part with immediate effect, if and insofar as the participant does not, does not timely or does not fully comply with the obligations arising from the agreement, or if circumstances that have come to Omnia Personal Trainings attention after the conclusion of the agreement give good reason to fear that the participant will not comply with his obligations.
2. If the Natural Persons Debt Rescheduling Act has been declared applicable to him, if any attachment has been placed on his property or in cases in which the participant cannot freely dispose of his assets in any other way, Omnia Personal Training shall be entitled to dissolve the agreement with immediate effect, unless the participant has already provided sufficient security for the payment(s).
3. Furthermore, Omnia Personal Training shall be entitled to dissolve the agreement if and insofar as circumstances arise of such a nature that fulfilment of the agreement is impossible or unaltered maintenance thereof cannot reasonably be required of it.
4. Insofar as this can be attributed to him, all extra costs to be incurred and damage suffered by Omnia Personal Training in connection with the suspension and/or dissolution of the agreement shall be for the account of the participant.
5. The participant shall never claim any form of compensation in connection with the right of suspension and dissolution exercised by Omnia Personal Training pursuant to this article.
6. If Omnia Personal Training dissolves the agreement on the basis of this article, all claims against the participant shall be immediately due and payable.
ARTICLE 9. FORCE MAJEURE
1. Omnia Personal Training is not obliged to fulfil any obligation under the agreement if it is hindered to do so by a circumstance that cannot be attributed to it by virtue of the law, a legal act or generally accepted standards.
2. As a result of the occurrence of force majeure, the obligations of Omnia Personal Training that are hindered as a result thereof shall be suspended, unless compliance due to force majeure becomes permanently impossible, in which case parties may dissolve the agreement with immediate effect.
3. If Omnia Personal Training has already partially fulfilled its obligations when the situation of force majeure arises, or can only partially fulfil its obligations, the participant shall continue to owe the price of the part already executed or the part of the agreement that can be executed, as if it were an independent agreement.
4. Damage as a result of force majeure, other than full or partial restitution or remission of the agreed price as provided for in these general terms and conditions, shall never qualify for compensation.
ARTICLE 10. PRICES AND PAYMENTS
1. The registration form shall contain as complete a list as possible of all price factors. In the event that it has been agreed that the agreement will be executed at a location designated by the participant, the travel expenses to be incurred by Omnia Personal Training shall additionally be borne by the participant.
2. Omnia Personal Training is entitled to change its prices and shall notify the participant of this in writing as soon as possible in the event of a price increase. The price increase takes place after the term of the current agreement has expired.
3. Unless expressly agreed otherwise, payments shall be made monthly by means of direct debit.
4. In the event of direct debit, Omnia Personal Training shall be entitled to charge reasonable administration costs if a payment cannot be collected automatically or is reversed. In that case Omnia Personal Training shall be entitled to claim payment, including these administration costs, by means of transfer.
5. If payment by means of a bank transfer has been agreed, this must be done within seven days of the invoice date, in the manner prescribed by Omnia Personal Training.
6. If timely payment is not made, the participant’s default shall take effect by operation of law. From the day that the participant’s default occurs, the participant shall owe the then applicable statutory interest on the outstanding amount.
7. All reasonable costs, judicial, extrajudicial and execution costs, for obtaining the amounts owed by the participant, shall be for his account.
ARTICLE 11. LIABILITY AND INDEMNIFICATION
1. Except in the case of intent and wilful recklessness on the part of Omnia Personal Training, he shall not be liable for any damage suffered in connection with the execution of the agreement. In particular, Omnia Personal Training shall not be liable for damage as referred to in the cases mentioned in the remainder of these general terms and conditions.
2. Participation in sessions shall be at the participant’s own risk. Omnia Personal Training is not liable for any injury or other damage incurred during or as a result of a session. The participant indemnifies Omnia Personal Training against all its claims and claims of third parties in this respect.
3. (Food) advice and (training) instructions are provided on the basis of expertise, but are always followed at the participant’s own risk.
4. Omnia Personal Training executes sessions to the best of its knowledge and ability. However, Omnia Personal Training commits itself exclusively to an obligation to perform to the best of its ability and shall not bear any liability for damage as a result of not or insufficiently achieving the results that the participant intended to achieve by entering into the agreement, as well as for any damage caused by following the advice and/or instructions of Omnia Personal Training, whether or not incorrectly and/or incompletely.
5. Omnia Personal Training shall not be liable for damage caused by the fact that it has assumed that the participant has provided incorrect or incomplete data or information which has not been provided correctly or completely to Omnia Personal Training in the interest of a proper execution of the agreement.
6. All information of Omnia Personal Training has the sole purpose of providing information. The information is not intended to replace medical advice. It is the responsibility of the participant to consult a doctor before diets are adjusted and/or the participant begins a training programme. The participant voluntarily agrees to take all risks of the services of Omnia Personal Training for his own account.
7. Omnia Personal Training is indemnified against all medical claims, processes, loss, damage or theft of property of the participant or of goods brought by him, injury or death, including claims of negligence arising from the services offered by Omnia Personal Training. Nor can Omnia Personal Training be held liable for any mental and/or psychological complaints.
8. Omnia Personal Training shall never be liable for consequential damage. If despite the provisions in these general terms and conditions liability of Omnia Personal Training nevertheless exists, only direct damage shall qualify for compensation. Direct damage is exclusively understood to mean:
– the reasonable costs for determining the cause and extent of the damage, insofar as the determination relates to damage that qualifies for compensation within the meaning of these terms and conditions;
– any reasonable costs incurred to have the defective performance of Omnia Personal Training comply with the agreement, insofar as these can be attributed to Omnia Personal Training;
– reasonable costs incurred to prevent or limit damage, insofar as the participant demonstrates that these costs have led to a limitation of the damage that qualifies for compensation within the meaning of these terms and conditions.
9. If despite the provisions in the other of these general terms and conditions liability of Omnia Personal Training should nevertheless exist, such liability shall be limited to a maximum of three times the invoice value of the agreement, or at least to that part of the agreement to which the liability of Omnia Personal Training relates, on the understanding that the liability of Omnia Personal Training shall never exceed the amount that is paid out in the case in question, on the basis of the liability insurance taken out by it, increased by any excess of Omnia Personal Training that applies pursuant to that insurance. Contrary to the previous sentence, if the agreement has a lead time longer than six months, only the last six months of the agreement shall be taken into account for determining the invoice value.
10. Except in the event of intent or conscious recklessness on the part of Omnia Personal Training, the participant shall indemnify Omnia Personal Training against all claims of third parties, on any account whatsoever, in respect of compensation for damage, costs or interest, in connection with the execution of the agreement by Omnia Personal Training.
11. The participant is liable for all damage attributable to him arising in connection with the use of the training materials and other property of Omnia Personal Training made available by Omnia Personal Training. The participant guarantees that he is adequately insured against such risks.
12. The limitation period for all claims and defences against Omnia Personal Training is one year.
ARTICLE 12. CONFIDENTIALITY
1. The parties are obliged to maintain the confidentiality of all confidential information they have obtained from each other or from another source within the framework of the agreement. Information is considered to be confidential if this has been communicated by the other party, or arises from the nature of the information.
2. If Omnia Personal Training is obliged on the basis of a statutory provision or a judicial decision to provide confidential information to third parties designated by law or by the competent court, and Omnia Personal Training cannot in that respect invoke a right to refuse to give evidence recognised or permitted by law or by the competent court, Omnia Personal Training shall not be obliged to pay damages.
ARTICLE 13. INTELLECTUAL PROPERTY
Omnia Personal Training reserves all intellectual property rights to all information, tips and ideas provided by it, as well as to the working methods used by it, in whatever form. The participant is prohibited from reproducing these property rights of Omnia Personal Training (or having them reproduced), reproducing (or having them reproduced), making them available to third parties or using them (or having them used) in a manner other than that provided for in the agreement.
ARTICLE 14. FINAL PROVISIONS
1. All agreements and all legal relationships between the parties arising from them are exclusively governed by Dutch law.
2. Before appealing to the courts, the parties are obliged to make every effort to settle the dispute in mutual consultation.
3. Insofar as the law does not compulsorily deviate from this, only the competent court within the district of the place of business of Omnia Personal Training shall be designated to take cognizance of legal disputes.