1. Definitions

1.1. In these terms and conditions, New Amsterdam AI, hereinafter also referred to as "contractor," and the customer of New Amsterdam AI is referred to as "client." Where contractor and client are referred to collectively hereinafter, they are designated as parties.

1.2. Business days are defined as the days of the week, Monday through Friday, excluding national holidays.

1.3. All designations in the singular are deemed to include the plural form and vice versa, unless the context indicates otherwise.

2. General

2.1. These terms and conditions include everything contained in these conditions, as well as the Privacy Policy and any other instructions that the client receives or has received from the contractor. These terms and conditions apply to all offers and agreements whereby the contractor provides services of any nature to the client, as well as to the performance of agreements, the relevant goods or services of which are not (further) described in these terms and conditions.

2.2. These conditions expressly only apply insofar as the parties have not expressly and in writing deviated from these conditions.

2.3. If one or more provisions of these terms and conditions are non-binding or require adjustment on the basis of laws or regulations, the remaining provisions of these terms and conditions shall remain in force. In such a case, the parties will consult in order to reach a replacement arrangement, whereby the purport of these terms and conditions is maintained.

2.4. The applicability of the (general) terms and conditions used by the client is expressly excluded.

2.5. These terms and conditions also apply to all agreements with the contractor, for the execution of which third parties are involved by the contractor.

2.6. Once an agreement has been concluded with the client on the basis of these terms and conditions, these also apply to later agreements concluded with the client.

2.7. What is arranged between the contractor and the client in the separate agreement prevails in case of conflict with what is included in these terms and conditions. In case of ambiguity of one or more provisions in the separate agreement, the relevant provisions should be interpreted in light of what is stipulated in these terms and conditions.

2.8. The contractor has published these terms on its website (www.newams.ai). The most recently published version or the version that applied at the time of the conclusion of the assignment agreed with the client always applies. The contractor is entitled to amend these terms and conditions. The client is bound by such changes. Any changes will be communicated in writing to the client by the contractor as much as possible.

2.9. By entering into an agreement with the contractor, the client declares that they have been given a reasonable opportunity to become aware of these terms because the terms have been attached to the quotation previously sent to them or have been handed to them before or upon the conclusion of the agreement, or they have been offered to send or hand over the terms free of charge and have indicated that this is not necessary.

3. Quotations, formation of agreement and changes to assignments

3.1. All offers from the contractor, in whatever form, are without obligation and are only valid for a period of thirty (30) days, unless expressly stated otherwise in the offer.

3.2. Unless the parties agree otherwise, an agreement is only concluded after the contractor has accepted the client's order or assignment by means of a written (assignment) confirmation (with the determining date being the day of dispatch of the confirmation). The (assignment) confirmation is deemed to have correctly represented the agreed terms. For agreements for which no (assignment) confirmation has been sent, the contractor's first invoice is considered as (assignment) confirmation.

3.3. An amendment to the agreement, including expansion and limitation, has been concluded as soon as this amendment has been confirmed in writing by the contractor to the client.

3.4. If during the execution of the agreement it appears necessary for proper execution to change or supplement the work to be performed, the parties will adjust the agreement accordingly in a timely manner and in mutual consultation.

3.5. If, after the agreement has been concluded, changes are requested by the client with which the contractor cannot agree, and after which the agreement is canceled in whole or in part, all costs already incurred as well as the amount of lost profit, to be determined by the contractor, will be borne by the client.

3.6. If the parties agree that the agreement will be changed or supplemented, the time of completion of the execution may be affected thereby. The contractor will inform the client of this as soon as possible.

3.7. If a fixed fee or fixed price has been agreed, the contractor will indicate the extent to which the change or supplement to the agreement results in an excess of that fee or price. The client agrees in advance to the price adjustment to be determined by the contractor.

3.8. If third parties are engaged by the contractor for proper execution of the assignment, the costs thereof will be charged to the client in accordance with the price quotations provided.

3.9. The contractor reserves the right to refuse orders or assignments without stating reasons.

4. Prices and payment

4.1. Unless otherwise stated, all prices of the contractor are exclusive of sales tax (VAT), other levies whether or not imposed by the government, and administrative costs. Prices are in euros.

4.2. The contractor is entitled to unilaterally change the agreed prices and rates by means of written notification to the client, for example as a result of a (general) increase in price levels or costs of taxes and levies, labor, goods, or services to be obtained from third parties.

4.3. All invoices must be paid by the client in accordance with the payment conditions stated on the invoice. In the absence of a stated payment term, the client must pay the invoice within 14 days of the invoice date.

4.4. If the amounts due have not been received by the contractor within the agreed term, the client will be in default by operation of law without any notice of default being required and will immediately owe the statutory interest plus a surcharge of 4% on the outstanding amount. In such case, the client is also obliged, in addition to the total amount owed and interest, to fully reimburse extrajudicial costs, the amount of which is determined at a minimum of 15% of the total amount owed. Furthermore, if legal measures must be taken, the client is obliged to pay the contractor's legal costs. If the contractor proves to have incurred higher costs that were reasonably necessary, the client also owes these costs to the contractor.

4.5. In the event of non-payment, incomplete payment, or late payment, the contractor is entitled to suspend the execution of the agreement until full payment has been made or security has been provided for payment. Furthermore, in the event of non-payment, incomplete payment, or late payment, the contractor is entitled to dissolve the agreement without the contractor being liable for any form of damage.

4.6. Payments always serve first to settle all interest and costs owed and then to settle outstanding invoices that have been outstanding the longest, even if the client states that the payment relates to a later invoice.

5. Client obligations

5.1. The client ensures that all data, which the contractor indicates is necessary or which the client should reasonably understand is necessary for the execution of the agreement, is provided to the contractor in a timely manner. If the data required for the execution of the agreement is not provided to the contractor in time, the contractor has the right to suspend the execution of the agreement and/or to charge the client for the extra costs resulting from the delay according to the usual rates.

5.2. The client guarantees the accuracy, completeness, and reliability of the data provided to the contractor, even if this data originates from third parties.

5.3. If and insofar as the client requests this, the contractor returns the provided data carriers. If the client has not made such a request within thirty days after the contractor has pointed this out, the contractor has the right to destroy the data carriers, however, with retention of any statutory retention period.

5.4. The client is responsible for making backups of their own data and systems. The contractor is not liable for loss of data at the client.

6. Performance of the agreement

6.1. The contractor will execute the agreement to the best of its knowledge and ability and in accordance with the requirements of good workmanship, based on the state of science known at that time.

6.2. If and insofar as proper execution of the agreement requires it, the contractor has the right to have certain work performed by third parties.

6.3. The client ensures that the contractor can start the execution of the assignment in time and that the contractor has immediate access to all necessary facilities and system access.

6.4. Deadlines mentioned by the contractor in the context of the assignment are indicative and do not apply as a fatal deadline, unless expressly agreed otherwise in writing. In the event of exceeding a deadline, the client must therefore put the contractor in default in writing.

6.5. The contractor has the right to execute the agreement in different phases and to invoice the part thus executed separately.

7. Intellectual property rights and use of delivered materials

7.1. All intellectual property rights to materials developed or made available by the contractor, such as websites, content, images, software, AI models, prompts, databases, data structures, and other materials, rest exclusively with the contractor or its licensors.

7.2. The client only acquires the usage rights explicitly granted in these terms or otherwise agreed between parties. A right of use granted to the client is non-exclusive, non-transferable, and non-sublicensable.

7.3. The client is not permitted to remove or modify any indication concerning copyrights, trademarks, trade names, or other intellectual property rights from the materials.

7.4. The contractor is permitted to take technical measures to protect the materials. If the contractor has secured the materials through technical protection, the client is not permitted to remove or circumvent this security.

7.5. The client will not perform any acts that infringe on the intellectual property rights of the contractor. Among other things, the client is prohibited from reproducing, making public, or making available to third parties the delivered materials, except insofar as this is necessary for the own use for which the materials were provided.

7.6. Specifically for AI services: all AI models, prompts, training data, and methodologies developed by the contractor remain the property of the contractor. The client only acquires usage rights for the agreed purposes.

7.7. All materials provided by the client to the contractor remain the property of the client. The contractor may only use these materials for the execution of the agreement.

8. Confidentiality

8.1. Parties are obliged to maintain confidentiality of all confidential information they have obtained from each other or from other sources in the context of their agreement. Information is considered confidential if communicated by the other party or if this follows from the nature of the information.

8.2. If the contractor is required by law or court order to provide confidential information to third parties designated by law or competent court, and the contractor cannot invoke a legal or court-recognized or permitted right of non-disclosure, the contractor is not liable for compensation or indemnification and the other party is not entitled to dissolve the agreement on the grounds of any damage caused thereby.

9. Indemnification

9.1. The client indemnifies the contractor against any claims by third parties who suffer damage in connection with the execution of the agreement and which is attributable to the client.

9.2. If the contractor is addressed by third parties on this basis, the client is obliged to assist the contractor both in and out of court and to immediately do everything that may be expected of them in such a case. Should the client fail to take adequate measures, the contractor is entitled, without notice of default, to proceed with this itself. All costs and damages on the side of the contractor and third parties arising therefrom will be entirely at the expense and risk of the client.

10. Liability

10.1. The total liability of the contractor due to an attributable shortcoming in the performance of the agreement or from any other cause whatsoever, explicitly including any shortcoming in the performance of a warranty obligation agreed with the client, is limited to compensation for direct damage up to a maximum of the amount of the price agreed for that agreement (excluding VAT). If the agreement is mainly a continuing agreement with a term of more than one year, the amount agreed for the agreement is set at the total of the fees (excluding VAT) agreed for one year.

10.2. The contractor's liability for indirect damage, including consequential damage, lost profits, missed savings, loss of data, and damage due to business interruption, is excluded.

10.3. Apart from the cases mentioned in the previous paragraphs of this article, the contractor has no liability whatsoever regarding damage for compensation of damage, regardless of the grounds on which an action for damages would be based. However, the limitations mentioned in this article lapse if and insofar as the damage is the result of intent or deliberate recklessness of the contractor or its managerial subordinates.

10.4. The contractor's liability due to attributable shortcoming in the performance of an agreement only arises if the client immediately and properly puts the contractor in default in writing, thereby setting a reasonable period for remedying the shortcoming, and the contractor still attributably fails to fulfill its obligations after that period. The notice of default must contain as detailed a description of the shortcoming as possible, so that the contractor is able to respond adequately.

10.5. A condition for the creation of any right to compensation is always that the client reports the damage to the contractor in writing within 10 business days after its occurrence, after its discovery, or the moment when the damage could reasonably have been discovered. Damage notification after the aforementioned period does not give any claim to compensation.

10.6. The client indemnifies the contractor against all claims by third parties as a result of a defect in a service, product, or system delivered by the client to a third party, also based on the contractor's services.

10.7. The contractor is never liable for costs, damages, and interest that may arise as a direct or indirect consequence of infringement of patents, licenses, other industrial property rights, or other rights of third parties. The client indemnifies the contractor against all claims by third parties arising from any infringement of these rights.

11. Engaging third parties

11.1. Insofar as not evident from the agreements that the contractor enters into with an independent third party, the contractor contracts as a client in relation to this third party only on the basis of an agreement of assignment within the meaning of Article 7:400 of the Dutch Civil Code. The contractor will never enter into an agreement in this context that results in, or have the intention of entering into, an employment agreement within the meaning of Article 7:610 et seq. of the Dutch Civil Code, unless this is explicitly stated in the agreement.

11.2. The contractor chooses, in appropriate cases when entering into agreements with independent third parties, to exclude the deemed employment relationship of homeworkers or similar persons as referred to in Articles 2b and 2c of the Wage Tax Implementation Decree 1965 and Articles 1 and 5 of the Decree designating cases in which employment relationships are considered employment (Decree of December 24, 1986, Stb. 1986, 655), and to the extent not already sufficiently excluded by means of these terms, to expressly agree on this in a further agreement to be concluded and to sign this only before payment in connection with the assignment takes place.

12. Digital communication

12.1. An email message or an electronic message via an application (WhatsApp, etc.) will be equated with a written statement in the context of these terms and conditions.

12.2. Digital messages are deemed to have been received if they are accessible to the other party, which in any case includes the moment they reach the mailbox and/or application of the receiving party.

12.3. In case of a dispute about whether or not the contractor has received or sent the messages referred to in this article, the contractor's log file data will provide conclusive evidence.

13. Privacy and Security

13.1. The client guarantees that all legal requirements regarding the data to be processed in the context of the execution of the agreement, including in particular the requirements under or pursuant to the General Data Protection Regulation (GDPR) and the associated instructions of the Data Protection Authority, will be strictly complied with and that all prescribed (notifications) are or will be made in a timely manner. Parties oblige each other to provide all relevant information to each other immediately in writing. Parties will ensure adequate security of personal data registrations according to the state of the art.

13.2. If applicable, the contractor will be designated as "processor" and the client as "controller" within the meaning of the GDPR, and the agreement also serves as a processing agreement within the meaning of the GDPR. In that capacity, parties will comply with the obligations under the GDPR. The contractor will only process personal data in the context of the execution of the agreement and maintain confidentiality in line with what is stipulated in the contractor's privacy policy, unless any legal provision obliges disclosure to a third party. To this end, the contractor will maintain an appropriate level of security.

13.3. Specifically for AI services: If the contractor trains or optimizes AI models with client data, this will only be done in accordance with the client's written consent and in strict compliance with the GDPR. The contractor will not use the client's personal data for training AI models deployed for other clients, unless this data is fully anonymized.

14. Transfer of rights and obligations

14.1. The client is not entitled to transfer the rights and obligations of an agreement concluded between the parties to affiliated companies or other third parties, except with the prior express written consent of the contractor.

14.2. The contractor is entitled to transfer the agreement to a third party by means of a written notification to the client. The client grants the contractor permission to do so in advance.

15. Termination

15.1. If the client wishes to cancel an agreement after it has been concluded, this is possible after consent by the contractor, and 15% of the order price (including VAT) will be charged as cancellation costs, without prejudice to the contractor's right to full compensation and reimbursement of the costs actually incurred.

15.2. Each party only has the authority to dissolve the agreement if the other party, after a proper and as detailed as possible written notice of default in which a reasonable period is set for remedying the shortcoming, attributably fails to fulfill essential obligations under the agreement, unless performance is permanently impossible, in which case the authority to dissolve arises immediately.

15.3. If an agreement which by its nature does not end through completion has been entered into for an indefinite period, it may be terminated by either party after proper business consultation and stating reasons by written notice. If no explicit notice period has been agreed between parties, a period of 1 month must be observed upon termination. Parties will never be liable for any compensation due to this termination.

15.4. In case of – whether or not provisional – (application for or request for) suspension of payments, default, (application for or request for) bankruptcy, (request for admission to) debt restructuring, suspension of payment, liquidation, seizure of assets, or termination of the client's business, the contractor is entitled to immediately terminate the agreement in whole or in part without notice of default or judicial intervention and to claim the unpaid part of what has been delivered. In these cases, every claim by the contractor against the client will be immediately and fully payable. The contractor will never be liable for any compensation in connection with termination or dissolution on the basis of the aforementioned.

15.5. In case of termination of the agreement on one of the grounds mentioned in this article, or on any other ground mentioned in these terms and conditions, the contractor is never liable for any damage resulting therefrom and is entitled to charge the costs already incurred or the fees to which entitlement already existed to the client.

16. Applicable law and disputes

16.1. Dutch law applies to all offers and agreements of the contractor.

16.2. For all disputes arising from agreements with the contractor, the competent court is the court that has jurisdiction for the contractor's place of establishment, unless another court is mandatorily legally competent under the law.

16.3. Parties will only appeal to the court after they have made efforts to settle a dispute through mutual consultation.

New Amsterdam AI | www.newams.ai