General terms and conditions of R8A B.V., a private limited liability company under Dutch law, registered in Almere, the Netherlands, hereafter referred to as “R8A.”
R8A is registered with the Dutch Chamber of Commerce under number 92818137.
Article 1: Applicability, offer, contract realization
1.1
These General Terms and Conditions apply to all offers and contracts pursuant to which R8A delivers goods and/or provides services to the customer.
1.2
Except where specified otherwise by R8A in writing, all offers issued by R8A shall be subject to these terms and conditions.
Article 2: Prices and payment
2.1
All prices are in euros and exclusive VAT and other government levies (for instance withholding tax).
2.2
If a term of payment has not been agreed upon, a term of payment of thirty days applies.
2.3
In case the contract specifies more than one natural and/or legal persons as the customer, each of these persons shall be joint and severally liable in respect of payment of the amounts due.
Article 3: Delivery dates
3.1
R8A shall make every commercially reasonable effort to observe delivery periods or delivery dates wherever possible. In any case, any delivery period or delivery date shall only be indicative in nature and R8A shall not be bound by a delivery period or delivery date nor shall be able to be held liable for any damages resulting from a change in indicated delivery period or delivery date.
3.2
In case a delivery period or date has been exceeded, R8A shall not be in default until such time as the customer has given written notice of default including a specified and comprehensive description of the breach and has given R8A a reasonable period to comply with its obligations and this period has expired.
Article 4: Performance, guarantee
4.1
The customer shall ensure that it will actively contribute and cooperate, for instance with respect to, testing and decision-making. The customer delivers and is responsible for the Product Owner (an individual designated to oversee the active contribution and cooperation from the customer's side).
4.2
In case of delivery of automated processes, AI (artificial intelligence) products, and software, R8A shall make every effort to fix errors in the software within a reasonable period insofar as R8A receives written, detailed notification of these errors within a period of three weeks following delivery or within three weeks of acceptance if the parties have agreed to an acceptance test. Under no circumstances shall R8A be obliged to recover lost or scrambled data. R8A does not have any obligation to fix errors that are reported following expiry of the guarantee period stated in this article, unless a separate maintenance agreement is entered into by the parties that holds an obligation to this effect.
4.3
Due to the nature of its services, R8A cannot guarantee that the service and/or software will always operate with no interruptions, errors, defects or, that all errors and defects can always be fixed and that the service and/or
software will function effectively in conjunction with all types of software and/or hardware of third parties or updates thereof.
4.4
Where this General Terms and Conditions refer to ‘errors’, this shall mean: the substantial failure to meet the specifications explicitly agreed in writing between the parties. An error shall only be deemed to exist if it can be demonstrated by the customer and can be reproduced. R8A is under no obligation to fix any defect other than errors that fall under the above definition.
4.5
The customer guarantees the completeness and accuracy of all information that is provided to R8A.
Article 5: Intellectual property rights
5.1
Insofar the parties agree that intellectual property rights in software, data files, websites, hardware or other material specifically developed for the customer, shall be transferred to the customer, this shall not affect R8A’s
right or option to use and/or to exploit the algorithms, general principles, components, ideas, designs, documentation, programming languages, protocols, work, standards and suchlike that form the basis of the
development work on its own behalf or on behalf of a third party for other purposes without any restriction.
Article 6: Liability, indemnity
6.1
The total liability of R8A due to an attributable failure to perform this agreement and/or agreements that result from this agreement or due to any other reason, explicitly including any failure to comply with a guarantee obligation and/or liability under an indemnification obligation, shall be limited to compensation of the direct damage or loss, not exceeding the sum stipulated for this agreement (excl. VAT). If the agreement is a continuing performance contract with a term of more than one year, the sum stipulated for the agreement shall be set at the total fees (excl. VAT) stipulated for one year. However, the total liability of R8A for any reason whatsoever shall under no circumstances exceed an amount of €10,000 (ten thousand euro).
6.2
The liability of R8A for resulting loss, indirect damage or loss, loss of profit, reduced goodwill, loss of savings, loss due to penalties, business interruption, claims from the customer’s customers or partners, loss in connection with the use of software, items or other materials provided by third parties that R8A is instructed to use by the customer and loss in connection with the engagement of secondary suppliers by R8A on the customer’s instructions, shall be excluded. Liability of R8A due to the scrambling, destruction or loss of data or documents shall also be excluded.
6.3
The limitations of liability stated in this article shall not apply if and insofar as the loss is the result of intentional acts or deliberate recklessness on the part of R8A’s management.
6.4
If performance by R8A is still possible, R8A shall only be liable as a result of an attributable failure to perform the agreement if the customer gives R8A immediately a detailed and substantiated notice of default in writing, holding a reasonable term in which the breach can be remedied, and R8A still attributably fails to meet its obligations after this period.
6.5
The customer shall notify R8A in writing of the loss or damage as soon as possible after it occurs, failing which the corresponding claim for damages shall expire. Claims for damages shall also expire by the mere passage of 12 months from the date on which the claim arose unless the customer has instituted proceedings against R8A within this term.
6.6
All restrictions and exclusions of liability referred to in these General Terms and Conditions shall also apply in favour of all (legal) persons that R8A engages to execute the agreement.
Article 7: Acceptance
7.1
The customer shall perform an acceptance test within seven days following delivery, during which the customer shall assess whether the product/service delivered conforms to the functional or technical specifications agreed between the parties in writing.
7.2
The delivered product/service shall be deemed to have been accepted between the parties upon the first day following the test period.
7.3
In case errors are discovered in the good/service during the acceptance test, the customer shall notify R8A of these errors by means of a written and detailed test report, no later than on the last day of the test period. R8A shall make every effort to fix these errors within a reasonable period of time.
7.4
The customer may not withhold acceptance of the good/service 1) on grounds that do not relate to the written specifications agreed between the parties or 2) due to the existence of defects that cannot reasonably be deemed to prevent the operational or productive use of the good/service, without prejudice to R8A’s obligations under the guarantee scheme of article 4 of these General Terms and Conditions. Acceptance of software and/or a design shall also not be withheld on the basis of aspects that can only be assessed subjectively, such as aesthetic aspects and design of user interfaces.
7.5
In case of delivery of the good/service in parts and/or in stages, the non-acceptance of a specific part and/or stage shall not affect the acceptance of another part and/or a previous stage.
7.6
With the acceptance of the software R8A is discharged in respect of compliance with its obligations in relation to the provision and delivery of the software, notwithstanding customer’s rights pursuant the guarantee scheme under article 4 of these General Terms and Conditions.
Article 8: Processing of data
8.1
Responsibility for the data processed by R8A in conformity with the instructions of the customer shall rest solely with the customer. The customer shall guarantee that such processing of the data is not unlawful and does not infringe the rights of third parties. The customer shall indemnify R8A against legal claims by third parties in relation
to this data.
8.2
If the agreement stipulates some form of information security, this security shall meet the specifications agreed upon by the parties in writing. R8A shall not guarantee that the information security will be effective under all
circumstances. If the agreement does not give an explicit description of the required security measures, the security measures shall be of such a level that, having regard to the sensitivity of the data, the state of the art, and the costs associated with the security measures, is not unreasonable.
Article 9: Force majeure
9.1
Neither of the parties shall be obliged to meet any obligations, including any guarantee obligation and/or indemnification obligation, if it is prevented from doing so as a result of force majeure. Force majeure shall include: (i) a situation of force majeure encountered by R8A’s own suppliers, (ii) failure by secondary suppliers engaged by R8A on the customer’s instructions to meet their obligations, (iii) the defectiveness of software, items, hardware,
or other materials provided by third parties that R8A has been instructed to use by the customer, (iv) electricity failure, (v) faults affecting the internet, computer network or telecommunication facilities, (vi) government
measures (vii) war, (viii) circumstances outside the parties reasonable control.
9.2
Either of the parties shall be entitled to terminate the agreement in writing if a situation of force majeure lasts for longer than ninety days. In such case services already performed on the basis of the agreement shall be settled on a pro rata basis, and the parties shall not owe one another any other amounts.
Article 10: Additional work
10.1
If R8A has, at the request or with the prior consent of the customer, carried out work or performed other services that fall outside of the scope or content of the agreed work, such work or services shall be paid for by the customer
in accordance with the agreed rates or R8A’s standard rates in case no rates are agreed upon.
10.2
Either of the parties shall be entitled to terminate the agreement in writing if a situation of force majeure lasts for longer than ninety days. In such case services already performed on the basis of the agreement shall be settled on a pro rata basis, and the parties shall not owe one another any other amounts.
Article 11: Confidentiality and taking over of personnel
11.1
The parties shall ensure that all information received from the other party that is known or should reasonably be known to be of a confidential nature, is kept secret and will only be used for the purpose for which it has been
provided.
11.2
During the term of the agreement and for one year following termination of the agreement, Customer will refrain from directly or indirectly engaging or otherwise employing employees of R8A who are or were previously involved in the execution of the agreement, without prior written consent of R8A.
Article 12: (Interim) End of Contract; assignment
12.1
A fixed term agreement regarding the provision of services may not be terminated by the customer before the end of the term.
12.2
Either of the parties shall be entitled to terminate the agreement in part or in full, with immediate effect, in writing if the other party is granted a moratorium of payments or if a winding-up petition is filed in respect of the other party. Every right of use of the software, websites and suchlike made available to the customer shall end if the customer becomes bankrupt or is liquidated.
12.3
Either of the parties shall only be authorized to rescind the agreement until it has given the other party written notice of default including a specified and comprehensive description of the breach and has given the other party a
reasonable period to comply with is obligations, this period has expired and the other party continues to attributably fail to meet its fundamental obligations arising from this agreement. If the customer has at the time of
rescission already received goods or services under the agreement, these goods or services and the associated payment obligations shall not be undone unless the goods and/or services are not in conformity with the
agreement.
12.4
Fixed-term contracts between the customer and R8A will be automatically converted into an open-ended contract subject to three months’ notice, if none of the parties have indicated an intent to end the contract.
12.5
The customer shall not be entitled to sell and/or transfer the rights and/or obligations arising from the agreement to a third party.
Article 13: Applicable law, competent court
13.1
The agreements between R8A and the customer shall be exclusively governed by Dutch law. The applicability of the Convention on Contracts for the International Sale of Goods 1980 is excluded.
13.2
Any disputes that may arise between R8A and the customer in relation to an agreement concluded between R8A and the customer or in relation to further agreements that arise from such an agreement, will be exclusively
submitted to the competent sector of the Court of Noord-Holland, The Netherlands.