Article 1. Definitions
In these general terms and conditions, the following terms shall have the meanings set out below:
1.1 General Terms and Conditions: the present general terms and conditions.
1.2 And AI B.V., registered at Zernikepark 12, 9747 AN, Groningen, listed with the Chamber of Commerce under number 97899356.
1.3 AI Solutions: the AI tools, applications, dashboards and other digital products developed, implemented and/or customised by And AI B.V. on behalf of the Client under the Assignment.
1.4 Client: the natural or legal person who has engaged And AI B.V. to perform work as referred to in the Agreement.
1.5 Assignment: the agreement for the provision of services entered into between And AI B.V. and the Client. The applicability of Articles 7:404 and 7:407(2) of the Dutch Civil Code is excluded.
1.6 Agreement: the agreement between the Client and And AI B.V. for the performance of work.
1.7 Parties: the Client and And AI B.V. jointly.
1.8 In Writing: by post or by e-mail.
1.9 AI Assessment: the analysis carried out by And AI B.V. of the Client's business processes and objectives, aimed at identifying growth opportunities through the deployment of AI.
Article 2. Applicability
2.1 The General Terms and Conditions apply to all quotations and/or Agreements of And AI B.V. The applicability of any general terms and conditions of the Client is expressly rejected.
2.2 If and insofar as the general terms and conditions of the Client should for any reason apply to the Agreement between the Parties, such terms and conditions shall only have effect insofar as they do not conflict with the General Terms and Conditions. In case of doubt as to whether such a conflict exists, the General Terms and Conditions (of And AI B.V.) shall prevail.
2.3 Deviating provisions shall only apply if and insofar as they have been expressly accepted by And AI B.V. In Writing.
2.4 If any ambiguity exists regarding the interpretation of one or more provisions of the General Terms and Conditions, reference shall be made to the Agreement. In the event of a conflict between the General Terms and Conditions and the Agreement, the Agreement shall prevail. Ambiguities regarding the content of the General Terms and Conditions, or situations not covered by the General Terms and Conditions and/or the Agreement, shall be assessed in accordance with the spirit of the General Terms and Conditions and/or the Agreement.
2.5 If one or more provisions of the General Terms and Conditions are at any time wholly or partially annulled or declared void by a court, this shall not affect the validity of the remaining provisions.
2.6 If And AI B.V. does not always require strict compliance with the General Terms and Conditions, this does not mean that the provisions thereof do not apply, or that And AI B.V. would in any way lose the right to require strict compliance with the provisions of the General Terms and Conditions in other cases.
2.7 The General Terms and Conditions also apply to Agreements for the performance of which And AI B.V. engages third parties.
2.8 And AI B.V. is entitled at all times to amend the General Terms and Conditions. Amendments shall take effect 30 days after Written notification to the Client, or at a later date specified in the notification. If the Client does not object In Writing within 30 days of notification, the Client shall be deemed to have consented to the amendments. If the Client objects in a timely manner, the unamended General Terms and Conditions shall remain in effect between the parties until the Agreement has been completed or terminated, but no longer than 6 months from the date of notification.
Article 3. Quotations and offers
3.1 All quotations and offers by And AI B.V. are without obligation, unless a deadline for acceptance has been stated in the quotation/offer. If no acceptance deadline has been stated, no rights may be derived from the quotation/offer in any way.
3.2 If the acceptance (whether or not on minor points) deviates from the offer included in the quotation/offer, And AI B.V. shall not be bound by it. The Agreement shall then not be formed in accordance with such deviating acceptance and And AI B.V. shall not be bound by it, unless And AI B.V. indicates otherwise.
3.3 All prices in quotations/offers are in euros, exclusive of VAT and other government levies, unless otherwise indicated.
3.4 And AI B.V. cannot be held to its quotations, offers or Agreements if the Client can reasonably understand that these, or any part thereof, contain an obvious error or clerical mistake.
3.5 Quotations, offers and Agreements of And AI B.V. are based on the information provided by the Client. The Client warrants that all essential information for the assignment has been provided to And AI B.V. in a timely and truthful manner.
3.6 A composite quotation and offer does not oblige And AI B.V. to perform part of the quotation at a corresponding part of the quoted price. Quotations and offers do not automatically apply to future orders.
Article 4. Formation, duration and nature of the Agreement
4.1 The Agreement is formed at the moment the Client accepts a quotation, proposal or contract from And AI B.V. Acceptance may be effected by signature, written confirmation by e-mail, or other unambiguous consent. In the absence of explicit acceptance, the Agreement shall be deemed to have been concluded once And AI B.V. has commenced performance of the work at the Client's request.
4.2 The Agreement is entered into for an indefinite period, unless the nature of the Agreement dictates otherwise or the Parties have expressly agreed otherwise In Writing.
4.3 The Agreement is a contract for the provision of services. The Parties expressly declare that they are not entering into an employment contract. The Parties declare that they shall never assert any rights against each other relating to an employment contract, nor shall they institute any claims relating to an employment contract. There is no relationship of authority or employment relationship between the Client and And AI B.V.
Article 5. Performance of the Agreement and additional work
5.1 And AI B.V. shall always exercise the necessary care in the performance of the Agreement that can reasonably be expected of And AI B.V. under the given circumstances. All services provided by And AI B.V. are performed to the best of its knowledge and ability. The obligations of And AI B.V. are obligations of best efforts only and shall never constitute obligations of result, unless the Parties have agreed otherwise.
5.2 And AI B.V. has the right, insofar as proper performance of the Agreement so requires, to have the Agreement (partially) performed by third parties without the express consent of the Client.
5.3 An agreed deadline for the delivery of a service by And AI B.V. shall only constitute a strict deadline if the Parties have expressly agreed so. An agreed deadline commences once the Client has provided all information requested by And AI B.V. If the performance deadline is exceeded, the Client must give And AI B.V. Written notice of default.
5.4 If it has been agreed that the Agreement will be performed in phases, And AI B.V. may suspend the execution of those parts belonging to a subsequent phase until the Client has approved and/or paid for the results of the preceding phase In Writing.
5.5 If during the performance of the Agreement it becomes apparent that it is necessary to amend or supplement the work to be carried out for its proper performance, the Parties shall adjust the Agreement accordingly in a timely manner and by mutual consultation.
5.6 And AI B.V. has the right to adjust its prices and schedules in the event of changes to the agreed scope of work. And AI B.V. also has the right to charge the Client for costs such as additions, tests, meetings and/or work carried out at the Client's request.
5.7 If a fixed fee has been agreed, And AI B.V. shall indicate the extent to which the amendment or supplement to the Agreement will result in an overrun of this fee.
5.8 Changes in the performance of the Agreement requested by the Client after the Assignment has been issued must be communicated to And AI B.V. In Writing in a timely manner. An amendment to or supplement of the Agreement shall only apply if accepted by both And AI B.V. and the Client (preferably In Writing).
5.9 If work is carried out by And AI B.V. or by third parties engaged by And AI B.V. in the context of the Assignment at the Client's premises or at a location designated by the Client, the Client shall provide free of charge the facilities reasonably required by such employees.
Article 6. Cooperation
6.1 In the performance of the work, And AI B.V. relies on the information and data provided by the Client. The Client warrants the accuracy of such information and data.
6.2 The Client is obliged to provide all information necessary for the proper performance of the Agreement to And AI B.V. in a timely manner. The Client shall inform And AI B.V. without delay of any circumstances that have changed if these may be relevant to the performance of the Agreement.
6.3 The Parties shall cooperate with respect to the agreed tasks and make all necessary information, materials and documentation available to the other Party.
6.4 If the Client's failure to provide the requested data in a timely or proper manner results in additional costs for And AI B.V., such costs shall be borne by the Client.
6.5 The Client is required to inspect the services delivered immediately after they have been made available.
Article 7. Suspension
7.1 And AI B.V. is entitled to suspend the performance of the Agreement as soon as the Client fails to meet its (payment) obligations or if And AI B.V. has well-founded concerns that the Client will not fully meet its obligations under this or other agreements. And AI B.V. shall never be liable for any damage suffered by the Client as a result of such suspension.
7.2 By mutual consultation, the work of And AI B.V. may be postponed. The Parties must reach agreement regarding the fees and other conditions.
Article 8. Fees
8.1 Upon formation of the Agreement, the Parties may agree on a fixed fee. If no fixed fee is agreed, the fee shall be determined on the basis of actual hours worked. The fee shall be calculated according to And AI B.V.'s customary hourly rates applicable during the period in which the work is carried out, unless a different hourly rate has been agreed.
8.2 The fee and any cost estimates are exclusive of VAT, unless otherwise stated.
8.3 Any costs incurred in the context of the Agreement, such as travel and other expenses, including but not limited to invoices from third parties engaged, shall be borne by the Client, unless otherwise agreed between the Parties.
8.4 And AI B.V. is entitled to increase the fee if, during the performance of the work, it becomes apparent that the originally agreed or expected volume of work was insufficiently estimated at the time the Agreement was concluded, and this is not attributable to And AI B.V., such that it cannot reasonably be expected of And AI B.V. to perform the agreed work at the originally agreed fee. And AI B.V. shall notify the Client of its intention to increase the fee, stating the extent and the date on which the increase shall take effect.
8.5 For subscriptions or periodic services, invoicing shall take place in accordance with the billing periods specified in the Agreement (monthly, quarterly or annually). Price changes shall be announced at least one month in advance.
Article 9. Payment terms
9.1 Unless expressly agreed otherwise between the Parties, payment of the fee by the Client shall be made within 14 days of the invoice date to a bank account designated by And AI B.V.
9.2 And AI B.V. is entitled to require an advance payment for the fulfilment of payment obligations. And AI B.V. is also entitled to suspend performance of the Agreement until such advance payment has been received, failing which all amounts owed by the Client to And AI B.V., on any account whatsoever, shall become immediately due and payable.
9.3 For Assignments with a duration of more than three months, the costs due shall be invoiced periodically.
9.4 If the Client fails to pay within the agreed terms, the Client shall owe statutory commercial interest in accordance with Article 6:119a of the Dutch Civil Code, whereby a partial month shall be counted as a full month, unless the statutory interest rate is higher, in which case the statutory interest rate shall apply. Interest on the amount due shall be calculated from the moment the Client is in default until the date of full payment, without prejudice to And AI B.V.'s other rights. If the Client is in default, all claims of And AI B.V. in respect of work performed and costs incurred shall become immediately due and payable.
9.5 If the Client is in default in the fulfilment of its payment obligations, all costs incurred in obtaining payment shall be borne by the Client. In any event, the Client shall owe extrajudicial collection costs in accordance with the statutory scale plus commercial interest pursuant to Article 6:119a of the Dutch Civil Code, or interest pursuant to Article 6:119 of the Dutch Civil Code. In the event that And AI B.V. has brought its claim before a court, the Client shall also be liable for the actual costs incurred in connection with such proceedings. These include, in any event, the costs of lawyers, legal advisors, bailiffs and process agents, as well as court fees.
9.6 Each payment by the Client shall first be applied to the costs, then to the interest owed, and finally to the principal sum owed to And AI B.V.
9.7 And AI B.V. may, without thereby being in default, refuse an offer of payment if the Client designates a different order of allocation. And AI B.V. may refuse full repayment of the principal sum if accrued and current interest and collection costs are not also paid.
9.8 A Client who cannot invoke Section 6.5.3 (Articles 231 to 247, Book 6 of the Dutch Civil Code) shall not, without And AI B.V.'s express Written consent, suspend its payment obligations, nor set off amounts owed against any amounts the Client may claim from And AI B.V.
Article 10. Retention of title
10.1 All items delivered by And AI B.V., including but not limited to reports, designs, equipment, software, (electronic) files, etc., shall remain the property of And AI B.V. until the Client has fulfilled all obligations under the Agreement(s).
10.2 Items delivered by And AI B.V. subject to retention of title may not be resold and may never be used as a means of payment. The Client is not authorised to pledge or encumber in any other way items subject to retention of title.
10.3 If third parties levy an attachment on items delivered subject to retention of title or wish to establish or enforce rights thereto, the Client is obliged to notify And AI B.V. as quickly as may reasonably be expected.
10.4 The Client undertakes to insure and keep insured items delivered subject to retention of title against fire, explosion and water damage as well as theft, and to make the policy of such insurance available for inspection upon first request.
10.5 If And AI B.V. wishes to exercise its property rights as referred to in this article, the Client hereby grants unconditional and irrevocable consent to And AI B.V. or to third parties designated by And AI B.V. to enter all locations where the property of And AI B.V. is located and to recover such items.
Article 11. Complaints
11.1 And AI B.V. strives for high-quality service delivery and a solid partnership with its clients. Should the Client nevertheless be dissatisfied with the services delivered, such dissatisfaction must be reported, with reasons, by e-mail within fourteen (14) calendar days of written confirmation of delivery.
11.2 And AI B.V. takes every complaint seriously and shall respond within five (5) business days with a proposal for further resolution.
11.3 In the case of a justified complaint, And AI B.V. shall, in consultation with the Client, repair or supplement the work, or offer an appropriate credit.
11.4 Objections to the amount of an invoice must also be reported within fourteen (14) calendar days. An ongoing complaint does not suspend the payment obligation for the undisputed portion of the invoice.
11.5 Both parties shall endeavour to resolve complaints through amicable consultation. If this does not succeed, the parties are free to engage a mediator before taking legal action.
Article 12. Force majeure
12.1 If And AI B.V. is unable to fulfil its obligations under the Agreement, whether in whole, in a timely manner or properly, as a result of force majeure, such obligations shall be suspended until such time as And AI B.V. is able to fulfil them in the agreed manner.
12.2 Force majeure in these General Terms and Conditions is understood to mean, in addition to what is understood in this regard in law and case law, all external causes, foreseen or unforeseen, beyond the control of And AI B.V., as a result of which And AI B.V. is unable to fulfil its obligations. This includes illness of And AI B.V. or third parties engaged by And AI B.V., as well as disruptions to computer networks, telecommunications facilities or power failures.
12.3 And AI B.V. also has the right to invoke force majeure if the circumstance preventing (further) performance of the Agreement arises after And AI B.V. should have fulfilled its obligation.
12.4 If the period during which fulfilment of And AI B.V.'s obligations is not possible due to force majeure lasts longer than two months, either Party shall be entitled to dissolve the Agreement without any right on the part of the Client to compensation. What has already been performed under the Agreement shall then be settled proportionally.
Article 13. Liability and indemnification
13.1 And AI B.V. shall only be liable for any damage if this follows from this Article 13.
13.2 And AI B.V. shall only be liable for direct damage if, after a Written notice of default granting it a reasonable period to remedy the breach, it remains in default. Direct damage is understood exclusively as: a. the reasonable costs incurred in determining the cause and extent of the damage, insofar as the determination relates to damage within the meaning of the General Terms and Conditions; b. any reasonable costs incurred to bring And AI B.V.'s defective performance into conformity with the Agreement, insofar as these can be attributed to And AI B.V.; and c. reasonable costs incurred to prevent or limit damage, insofar as the Client demonstrates that such costs have resulted in a reduction of direct damage.
13.3 And AI B.V. shall not be liable for damage of any kind: a) arising because And AI B.V. relied on incorrect and/or incomplete data provided by or on behalf of the Client; b) due to errors in software or other programs/materials provided by the Client; c) arising from misunderstandings, errors or shortcomings in the performance of the Agreement if these are caused by acts of the Client, such as the failure to deliver complete, sound and clear data/materials in a timely manner; d) due to errors or shortcomings of third parties engaged by or on behalf of And AI B.V. and/or the Client; e) due to deficiencies in quotations from third parties or for overruns of price estimates from third parties; f) due to errors or shortcomings in the design or text/data, if the Client has given its approval or has been given the opportunity to carry out an inspection and has not availed itself of that opportunity; g) due to errors or shortcomings in the design or text/data, if the Client has omitted to have a particular model, prototype or test produced, and such errors would have been observable in such a model, prototype or test; h) due to the non-functioning or incorrect functioning of AI solutions or third-party services beyond And AI B.V.'s control; i) due to the Client's failure to implement, or timely implement, measures or improvements recommended by And AI B.V.
13.4 And AI B.V. shall never be liable for indirect damage, including consequential damage, loss of profits, missed savings and damage due to business stagnation, damage to property of the Client or third parties in any way connected with the Agreement, or damage caused by third parties engaged by And AI B.V. (including liability for subcontractors under Article 6:171 of the Dutch Civil Code).
13.5 If And AI B.V. is liable for any damage, the liability of And AI B.V. shall be limited to a maximum of the invoice amount, or at least to that part of the amount to which the liability relates, up to a maximum of EUR 10,000 per event and a maximum of EUR 25,000 per year, unless a higher maximum has been expressly agreed in the Agreement.
13.6 And AI B.V. accepts no liability for the content of materials or information provided by or on behalf of the Client. If the Client provides And AI B.V. with information carriers, electronic files or software, etc., the Client warrants that such information carriers, electronic files or software are free from viruses and defects.
13.7 The limitations of liability set out in this article shall not apply if the damage is attributable to wilful misconduct or gross negligence on the part of And AI B.V.
13.8 The Client indemnifies And AI B.V. against claims by third parties who suffer damage in connection with the performance of the Agreement, the cause of which is attributable to parties other than And AI B.V.
13.9 The Client is obliged to assist And AI B.V. both in and out of court if And AI B.V. is held liable on the basis of the preceding paragraph, and to take all steps that may be expected of the Client in such a case without delay. If the Client fails to take adequate measures, And AI B.V. shall be entitled, without notice of default, to take such measures itself. All costs and damage incurred by And AI B.V. and third parties as a result shall be entirely for the account and risk of the Client.
13.10 The limitations of liability and indemnifications set out in this article shall also apply with respect to third parties engaged by And AI B.V.
Article 14. Termination
14.1 The Agreement shall be terminated exclusively in the following ways:
- upon expiry of the period for which the Agreement was entered into: by operation of law as of the end date;
- by Written termination with mutual consent: at the end of the calendar month with a notice period of one (1) calendar month, unless otherwise agreed in the Agreement;
- if And AI B.V. or the Client fails to fulfil one or more obligations under the Agreement in whole or in part, or in the event of any other form of non-performance, and the default is not remedied within fourteen days of receipt of a notice of default sent by registered mail with acknowledgement of receipt: with immediate effect by dissolution by either Party;
- if And AI B.V. or the Client is declared bankrupt, or the Client is granted a suspension of payments, an attachment is levied -- if and insofar as the attachment is not lifted within three months -- against the Client, or any other circumstance arises whereby the Client can no longer freely dispose of its assets: with immediate effect by Written termination by either Party;
- if circumstances arise of such a nature that performance of the Agreement is impossible or can no longer reasonably be required according to standards of reasonableness and fairness, or if other circumstances arise of such a nature that the unaltered continuation of the Agreement cannot reasonably be expected: with immediate effect by Written termination by either Party.
14.2 With respect to the above terminations/dissolutions, no compensation shall be owed by the Parties to each other. Claims against the Client shall become immediately due and payable upon termination for whatever reason.
Article 15. Confidentiality
15.1 The Parties undertake to maintain the confidentiality of all confidential information obtained from each other or from other sources in the context of the Agreement. Information shall be deemed confidential if it has been designated as such by the other party or if this follows from the nature of the information.
15.2 If And AI B.V. is required pursuant to a statutory provision or a court order to disclose confidential information to third parties designated by law or by the competent court, And AI B.V. shall not be liable for damages or compensation, and the Client shall not be entitled to dissolve the assignment on the basis of any resulting damage.
15.3 The Parties shall impose their obligations under this article on any third parties or employees engaged by them.
Article 16. Intellectual property
16.1 All intellectual property rights, including but not limited to copyrights, patent rights and database rights, with respect to the Assignment and more specifically the developed products such as the AI Solutions, are vested in And AI B.V. The Client is not permitted to publish and/or reproduce these products in any form whatsoever, including but not limited to selling, modifying, making available, distributing and, whether or not after modification, integrating in networks, unless such publication and/or reproduction has been permitted In Writing by And AI B.V. and/or such publication and/or reproduction follows from the nature or purpose of the Agreement.
16.2 Insofar as such a right can only be obtained through a filing or registration, And AI B.V. alone shall be authorised to do so.
16.3 Unless the work is not suited to it, And AI B.V. shall at all times be entitled to have its name placed on or near the work or to have it removed, and the Client shall not be permitted, without prior consent, to publish or reproduce the work without mentioning the name of And AI B.V.
16.4 If And AI B.V. is willing to commit to a transfer of intellectual property rights, the Parties must record this in the Agreement or another instrument. If the Parties agree In Writing that an intellectual property right in respect of specific material/work shall be transferred to the Client, this shall not affect the right or ability of And AI B.V. to use and/or exploit the components, general principles, ideas, designs, programming languages, standards and the like underlying such development without any restriction for other purposes, whether for itself or for third parties. Nor shall such a transfer affect And AI B.V.'s right to make developments for itself or for a third party that are similar to or derived from those made for the Client.
16.5 Unless otherwise agreed, the Assignment does not include conducting investigations into the existence of rights, including patent rights, trademark rights, design rights, copyrights or portrait rights of third parties. The same applies to any investigation into the possibility of such forms of protection for the Client.
16.6 If the Parties arrange for a transfer of intellectual property rights in the Agreement, such rights shall only be transferred on the condition that the Client has paid all fees owed under the Agreement in full.
16.7 And AI B.V. indemnifies the Client against claims by third parties regarding infringement of applicable Dutch intellectual property rights in respect of the material/works developed by And AI B.V. However, And AI B.V. shall never be liable for any damage arising from any infringement of intellectual property rights by or on behalf of the Client.
16.8 The Client warrants that no rights of third parties preclude the provision to And AI B.V. of certain information, software, materials intended for websites (images, text, music, domain names, logos, hyperlinks, etc.), data files or other materials, including design material, for the purpose of use, modification, installation or incorporation. The Client indemnifies And AI B.V. against any claim by a third party alleging that such provision, use, modification, installation or incorporation infringes any right of such third party.
16.9 After completion of the Assignment, neither Party shall have a duty to retain the materials and data used.
Article 17. Contact
For questions about these Terms and Conditions, please contact:
And AI B.V.
Zernikepark 12, 9747 AN, Groningen
[email protected]
Article 18. Final provisions
18.1 All Agreements between And AI B.V. and the Client are governed exclusively by Dutch law.
18.2 Without prejudice to And AI B.V.'s right to submit a dispute to the court with jurisdiction under the law, disputes between the Parties shall in the first instance be submitted to the competent court in the place where And AI B.V. is established.
18.3 These General Terms and Conditions have been filed with the Chamber of Commerce under the KvK number of And AI B.V.