General Terms & Conditions

Table of Contents

  • Article 1 - Definitions
  • Article 2 - General
  • Article 3 – Offers and Formation of the Agreement
  • Article 4 - Performance of the Agreement and Delivery
  • Article 5 - Fees and Payment Terms
  • Article 6 - The Client's Obligations
  • Article 7 - (Early) Termination and the Consequences thereof
  • Article 8 - IP Rights and License
  • Article 9 - Privacy and Personal Data
  • Article 10 – Liability and Indemnity
  • Article 11 - Force Majeure
  • Article 12 - Transfer of Rights and Obligations
  • Article 13 - Applicable Law

 

Article 1 - Definitions

In these general terms and conditions, the following terms are spelled with an initial capital letter, both in the singular and the plural. These terms are defined as follows:

 

    • Agreement: All offers for the provision of services issued by AllYourBI and accepted by the Client.
    • AllYourBI:  AllYourBI B.V., a private company with limited liability, registered with the Chamber of Commerce under number 62936808, with a registered office in Rotterdam and place of business at Lloydstraat 210, 3024 EA in Rotterdam.
    • AllYourBI IP Rights: All intellectual property rights, related rights, source codes, object codes, and know-how intended for or otherwise relating to the design, development, structure, functioning, and presentation of the Services or parts of the Services provided by AllYourBI, including, albeit not limited to trademark rights, copyrights on source codes and object codes, visual and auditive elements of the interfaces relating to the look and feel, including color schemes, window designs, the layout of information, and all other figurative elements, buttons, icons, menu windows, and sounds; preparatory material relating to the design and development of the programs, including schedules, flow charts, organization charts, and descriptions and drawings of the structure, architecture, and look and feel of the programs; the structure of the interfaces; the architecture of the interfaces.
    • Client: The natural person or legal entity who/which has entered into an Agreement or will enter into an Agreement with AllYourBI.
    • Data Processing Agreement: the agreement between the parties regarding AllYourBI’s processing of personal data.
    • General Terms and Conditions: These general terms and conditions Business Intelligence Support of AllYourBI.
    • Maintenance Contract: the agreement entered into by the Parties regarding the maintenance of the Services provided.
    • Offer: a proposal from AllYourBI to Client concerning the request made by Client to provide Services.
    • Parties: AllYourBI and the Client.
    • Personal Data: All data regarding an identified or identifiable natural person, as specified in Section 4 (1) of the General Data Protection Regulation.
    • Personal Data Legislation: the in The Netherlands applicable personal data legislation, such as the General Data Protection Regulation (GDPR).
    • Service(s): AllYourBI’s development of data warehousing systems and all other, associated or otherwise, services that AllYourBI provides to the Client.
    • Service Level Agreement: the agreement entered into by the Parties on the quality and continuity of the Services provided.
    • Sprint(s): The Services are provided in so-called Sprints made up of milestones that include a lead time and a cost indication to achieve a certain goal as part of the Services agreed.

Article 2 - General

  1. These General Terms and Conditions apply to all legal relationships, Offers, and Agreements. These General Terms and Conditions also apply to all additional agreements and subsequent agreements between AllYourBI and the Client.
  2. Deviations from these General Terms and Conditions shall be valid if expressly agreed in writing and duly signed.
  3. AllYourBI will not accept any references by the Client to its general terms and conditions, and the applicability of the Client’s general terms and conditions is hereby expressly rejected.
  4. If and to the extent that any provision of these General Terms and Conditions is declared null and void, the other provisions of these General Terms and Conditions will remain in full force. The Parties will in that case enter into consultation to define a new provision to replace the provision that has been declared null and void, where the spirit of the provision declared null and void will be observed as much as possible.
  5. If any provision in the General Terms and Conditions conflicts with any of the provisions in any term of the Agreement, Service Level Agreement, Maintenance Agreement, and agreements, the following ranking order will be applied: firstly the Agreement, then Service Level Agreement, Maintenance Contract and/or other agreements between the Parties regarding the provision of Services, and finally any provision of these General Terms and Conditions.
  6. These General Terms and Conditions have been filed with the Rotterdam Chamber of Commerce.

Article 3 – Offers and Formation of the Agreement

  1. Offers issued by AllYourBI are non-binding unless stated otherwise in writing by AllYourBI. Obvious mistakes, printing and/or writing errors in Offers and other expressions of AllYourBI shall not be binding.
  2. Offers will cease to be valid after four weeks have passed since the date on the Offer unless the Offer states otherwise in writing.
  3. Electronic communication between the Parties is deemed to have been received on the day it was sent unless proven otherwise.

 

Article 4 - Performance of the Agreement and Delivery

  1. AllYourBI agrees to endeavor to perform the Agreement to the best of its knowledge and ability and high standards as per the state of the art as it is at that time. The Agreement is entered into based on a best-efforts obligation, unless and to the extent that AllYourBI specifically commits in writing to a sufficiently specific result in the Agreement. Any agreements on the quality and continuity are agreed separately in writing.
  2. The Client guarantees that AllYourBI will have received all user rights, usernames, tokens, and/or passwords it needs to provide the Services by the date on which the Agreement is established; to the extent that AllYourBI does not have these items by that date, the Client agrees to see to it that AllYourBI receive the user rights as soon as possible.
  3. AllYourBI reserves the right to deliver the Services agreed in the Agreement in one single phase or in Sprints, to be decided at AllYourBI’s discretion and based on AllYourBI’s insight. In the case of Sprints, AllYourBI reserves the right to send separate invoices for each Sprint.
  4. If the Agreement is to be performed in Sprints, AllYourBI reserves the right to postpone the start of the next Sprint that is part of a subsequent phase until the Client has accepted the results of the phase preceding this Sprint.
  5. Acceptance of the Sprints as specified in 4.3 is confirmed in writing or communicated during an acceptance meeting between the Parties. If AllYourBI confirms acceptance in writing, barring notice to the contrary from the Client, this will be final confirmation that the Sprint has been accepted.
  6. The Services will be deemed to have been provided once AllYourBI has completed all the Sprints. The Services will be deemed to have been completed after the process specified in 4.4 has been completed. After completion, the Client has 7 days to conduct tests. Within three days after this test period, the Client can report any faults by submitting adequate specifications and documentation that clearly show the nature of the fault or faults. After the expiry of this term, or if no fault is reported in the proper manner within that term, the Client will cease to have the right to invoke any kind of fault.
  7. The delivery term specified by AllYourBI for the Services, including the Sprints, is a target term and can never be considered a fatal term. AllYourBI is under an obligation to endeavor to deliver within the terms specified but is not subject to an obligation of result in this respect. The Sprints and delivery terms quoted by AllYourBI are for informative purposes only, hence the Client cannot derive any rights from such indications. AllYourBI cannot be held liable for the consequences of exceeding these delivery terms relating to the Sprints in question. The mere exceeding of a stated or agreed (delivery) term will not cause AllYourBI to be in default and will therefore not constitute an attributable failure. If any term is exceeded, AllYourBI shall still perform the Services for the Client’s benefit.
  8. If a delay is likely to occur in the delivery of the Services by AllYourBI, the Parties will enter into consultation to discuss the consequences for the performance of the Agreement and its schedule.
  9. AllYourBI is not under an obligation to comply with any instructions by the Client that impact the scope of the Services. Any change, addition, or correction to the Agreement or the scope of the Agreement will be considered a form of additional work and be charged based on AllYourBI’s usual fees.
 

 

 

Article 5 - Fees and Payment Terms

  1. All fees quoted by AllYourBI are listed in euros and are exclusive of sales tax (VAT), excise duties, and any other levies imposed by the government, unless explicitly stated otherwise by AllYourBI.
  2. The payment must be made in euros, without any deduction, discount or set-off, by payment or transfer to the bank account indicated on the invoice within thirty (30) days of the invoice date.
  3. If the Client fails to pay the amounts due in time, the Client will automatically and without any reminder or notice of default being required, be in default and liable to pay statutory interest on the amount due from the invoice due date onwards.
  4. AllYourBI is authorized to send the Client mid-term invoices based on advance payments. AllYourBI is also authorized to offset its payment obligations against the Client’s payment obligations. AllYourBI is, furthermore, authorized to require that the Client provide adequate security for compliance with its obligations.
  5. All costs related to payment, including any provision of security, shall be borne by the Client.
  6. The Client agrees to accept electronic invoicing by AllYourBI.
  7. AllYourBI will be entitled to suspend its Services for the Client once the Client is in default under its payment obligations.
  8. If the Client fails to pay the claim, AllYourBI may pass on the claim for collection, in which case the Client will also be obliged to pay extrajudicial and judicial costs, including all costs calculated by external experts in addition to the costs established in court, relating to the collection of this claim or the exercise of justice otherwise. The extrajudicial collection costs to be incurred by AllYourBI in the event of late payment by the Client amount to 15% of the amount due over the first €2,500.00 of the claim, 10% over the next €2,500.00 of the claim, 5% over the next €5,000.00 of the claim, 1% over the next €190,000.00 of the claim and 0.5% over the excess of the claim with a maximum of €6,775.00. The extrajudicial collection costs shall at all times never be less than €150.00.
  9. The Client is not entitled to set off any (pretense) claim against AllYourBI against debts to AllYourBI.
  10. AllYourBI reserves the right to change the fees agreed on with the Client on an annual basis. The Client agrees to accept AllYourBI’s new fees.
  11. Objections regarding invoices, bills, and expense claims sent by AllYourBI must be submitted within eight (8) days of the date listed on the invoice, bill, or expense claim, failing which the invoice, bill, or expense claim will be deemed to have been accepted. Such objections will not suspend the Client’s obligation to pay the amount due.
  12. If the Client is a legal entity and is affiliated with other legal entities in a group within the meaning of Article 2:24b of the Dutch Civil Code, it shall be jointly and severally liable to AllYourBI for the payment of all current and future claims of AllYourBI against the other legal entities with which it is affiliated in a group.
 

 

Article 6 - The Client's Obligations

  1. The Client guarantees that its staff and other workers are sufficiently qualified and capable of delivering the assistance required to AllYourBI in a skilled and timely manner.
  2. The client will guarantee to provide all relevant and required information to AllYourBI to have the Services provided adequately.
  3. Additionally, Client guarantees that it will provide all information in advance
  4. AllYourBI is authorized to suspend the Agreement if the user data needed for the performance of the Agreement has not been provided to AllYourBI in time, if the Client fails to meet its obligations under the Agreement or fails to do so in full, or if AllYourBI has, after entering into the Agreement, learned of circumstances that give it good grounds to fear that the Client will not meet its obligations. In these cases, AllYourBI will also be authorized to pass any extra costs incurred due to the delay on to the Client based on the fees as they are at that time.
  5. To the extent that user rights, usernames, tokens, and/or passwords are provided by the Client to AllYourBI, the Client will be and remain responsible for these usernames, tokens, and/or passwords and for obtaining and issuing user rights, usernames, tokens and/or passwords. The Client will be fully liable for any improper use thereof unless such improper use is the result of intent or gross negligence on the part of AllYourBI.
  6. The Client guarantees that these user rights, usernames, tokens, and/or passwords will not be disclosed to third parties during the duration of the Agreement without AllYourBI’s prior written consent. AllYourBI holds the exclusive right to the use of these user rights, usernames, tokens, and/or passwords.
 

 

Article 7 - (Early) Termination and the Consequences thereof

  1. Both Parties are entitled to terminate the Agreement without observing a notice period if:
    1. the other party has not fulfilled its obligations under the Agreement after having first received a notice of default from the other party offering a reasonable period for recovery; or
    2. the other party files for bankruptcy or suspension of debts, a petition for bankruptcy has been filed against it; or
    3. the other party is wound up, closed down, terminated, or dissolved or has applied for a debt moratorium, or has ceased its operations; or
  2. AllYourBI will at all times be authorized to terminate the Agreement under observance of a three (3) month notice period. Notice of termination has to be given in writing.
  3. If the Agreement is terminated, all of AllYourBI’s receivables from the Client will become immediately due and payable.
  4. In case of termination, AllYourBI will not be held to compensate for losses and cover any costs.
  5. If the Agreement is terminated in full or in part, any work done by AllYourBI for which the Client has not yet been charged can be charged in full and must be paid by the Client, and the Client must also cover any costs incurred for any time reserved for the Client and other costs incurred by AllYourBI in this respect.
 

 

 

Article 8 - IP Rights and License

  1. Unless the Agreement states otherwise, all AllYourBI IP Rights are held exclusively by AllYourBI or its licensors. Under no circumstances will there be a transfer of AllYourBI IP Rights from AllYourBI to the Client by or as a result of the execution of the Agreement.
  2. The Client is granted a non-exclusive and non-transferable license right to the required parts of the AllYourBI IP Rights for the Services for the duration of the Agreement.
  3. AllYourBI will be granted a user right to all intellectual property rights of the Client or its licensors that are required to provide the Services. Client indemnifies AllYourBI against any claims by a third party with respect to or related to the use of this user right.
Article 9 - Privacy and Personal Data
  1. The Parties agree to comply with the Personal Data Legislation.

 

Article 10 – Liability and Indemnity

  1. AllYourBI shall not be liable for any indirect, incidental, special, consequential, or punitive damages, including but not limited to loss of profits, revenue, data, or use, incurred by the Client or any third party, arising out of or in connection with the Services. AllYourBI’s liability, or obligation to compensate or refund, whether in contract, tort (including negligence), including obligations based on a warranty or indemnification, or otherwise, arising under or in relation to the Agreement. AllYourBI’s liability or obligation to compensate or refund, for any and all claims, whether in contract, tort, or otherwise, arising out of or related to this SOW shall be limited to an aggregate amount of $ _____ (in words: ____ U.S. dollars).
  2. Limitations of liability do not apply in the event of gross negligence or willful misconduct by AllYourBI.
  3. The Client agrees to report in writing any loss or damage to AllYourBI as soon as possible and at least within 15 days after the loss or damage arises, failing which any right to compensation will lapse.
  4. Neither party will be held to compliance with any obligation if compliance is made impossible by a situation of force majeure.
  5. AllYourBI cannot be held liable for any loss or damage caused by the actions or omissions of the Client, persons engaged by the Client, or persons for whom the Client is responsible.
  6. Any claim for compensation by the Client will expire twelve (12) months after the grounds for the claim arise.
  7. The provisions of this article also apply for the benefit of all (legal) persons and staff whose services AllYourBI uses for the performance of the Agreement.
 

 

Article 11 - Force Majeure

  1. AllYourBI will not be under an obligation to fulfill any obligation towards the Client if AllYourBI is prevented therefrom as a result of a circumstance not attributable to its fault, and for which AllYourBI is not accountable by law, a legal act, or according to generally accepted standards.
  2. AllYourBI reserves the right to suspend its obligations under the Agreement while the situation of force majeure endures. If this period of force majeure lasts longer than two months, either Party will be entitled to cancel the Agreement, without being held to compensate the other Party for losses. In case of cancellation of the Agreement, neither Party will be under an obligation to undo the work done in light of the Agreement.
  3. Force majeure includes: (i) power outages, (ii) industrial action, (iii) work stoppage, (iv) unavailability of one or multiple members of staff, (v) uprising, (vi) government measures, (vii) fire, (viii) natural disasters, (ix) war, (x) failure by the Parties’ suppliers, (xi) failure by third parties engaged by the Parties, (xii) lack of user rights, usernames, tokens, and/or passwords enabling AllYourBI to provide the Services, (xiii) internet connection disruptions, (xiv) hardware failures, (xv) cyber incidents or attacks by third parties and (xvi)(telecommunication) network failures.

 

 

Article 12 - Transfer of Rights and Obligations

  1. The Client can only transfer rights and obligations under the Agreement to third parties with AllYourBI’s prior written consent.
  2. AllYourBI is authorized to engage third parties to perform part or all of the Agreement and otherwise involve third parties in the performance of the Agreement.

 

 

Article 13 - Applicable Law

  1. These General Terms and Conditions are governed exclusively by Dutch law
  2. Applicability of the Vienna Sales Convention is excluded.
  3. Any disputes as may arise between AllYourBI and the Client as part of or concerning this Agreement will be submitted only to the competent court in the Rotterdam district.