I.General provisions
1. Applicability
1.1These general terms and conditions apply to all offers made by Stackhavn B.V., based in Amersfoort, with Chamber of Commerce number 42006447, and to all agreements entered into between Stackhavn (hereinafter: “the Contractor”) and the other party (hereinafter: “the Client”).
1.2The terms and conditions consist of general provisions and the following special provisions:
•II. Terms and conditions for consultancy and projects
•III. Development, use and maintenance of Software-as-a-Service (SaaS)
•IV. AI applications
1.3In the event of a conflict between the general provisions and a specific provision, the specific provision shall prevail. In the event of a conflict between these terms and conditions and a specific agreement, the provision in the agreement shall prevail.
1.4Deviations from these terms and conditions are only valid if agreed in writing between the Client and the Contractor.
1.5Any general terms and conditions of the Client are expressly excluded, unless accepted in writing by the Contractor.
2. Conclusion of the agreement
2.1All offers and communications from the Contractor are without obligation, unless otherwise stated in writing. The Client is responsible for the accuracy and completeness of the information provided by them to the Contractor that forms the basis of an offer, with the exception of obvious typographical errors.
2.2Unless otherwise stated, the Contractor’s quotations are valid for 28 days from the date of issue.
3. Duration and performance of the agreement
3.1If the agreement is a fixed-term agreement, it shall apply for the agreed duration. If no duration has been agreed, a standard period of one year shall apply.
3.2A fixed-term agreement is tacitly renewed for the originally agreed period, up to a maximum of one year, unless terminated in writing by the Client or the Contractor with a notice period of three months prior to the end of the period.
3.3The Contractor shall perform the agreed services with due care, in accordance with the agreements and procedures set out in writing. The provision of services constitutes an obligation to use best efforts, unless a result that is sufficiently specifically defined has been explicitly promised in the agreement.
3.4The Contractor is not obliged to follow instructions from the Client that alter the content or scope of the services. If such instructions are followed, the additional work shall be remunerated at the Contractor’s usual rates.
4. Deadlines for performance
4.1The Contractor shall endeavour to meet, as far as possible, any (delivery) deadlines and completion dates specified by it or agreed between the parties. All interim completion dates serve as guide dates and are indicative; they are not binding on the Contractor.
4.2Even in the case of agreed deadlines or completion dates, the Contractor shall only be in default following a written notice of default from the Client. This notice of default must contain a detailed description of the shortcoming and allow the Contractor a reasonable period to remedy the shortcoming.
4.3If the work is carried out in phases, the Contractor may postpone the start of the next phase until the Client has approved the results of the preceding phase in writing.
4.4The Contractor is not bound by deadlines or dates if changes are made to the agreement (such as additional work or amended specifications) or if the Client fails to fulfil its obligations on time or in full. Additional work does not constitute grounds for the Client to terminate the agreement.
5. Reporting
5.1Upon request, the Contractor shall report periodically on the progress of the work, in the manner agreed in writing. The Client shall make available in advance all relevant circumstances and information that may be of importance for the report, such as priorities, issues and available resources. The Client shall ensure the further dissemination and assessment of the information provided within its organisation and shall inform the Contractor thereof.
6. Cooperation by the Client
6.1The Client shall provide, in a timely manner, all data, information and cooperation necessary for the proper performance of the agreement, including access to premises. The Client guarantees that all data provided is accurate, complete and reliable, even if obtained from third parties. Employees of the Client deployed for the performance of the work must possess the necessary knowledge, experience and capacity.
6.2The Client shall immediately inform the Contractor of any facts and circumstances relevant to the performance of the agreement.
6.3The Client bears the risk for the selection, use and application of software, equipment, data files and other products and services of the Contractor within its organisation, including system management and security procedures.
6.4Software, websites, materials or data supplied must comply with the specifications provided by the Contractor.
6.5If the Client fails to fulfil its obligations, or fails to do so in a timely manner or in full, the Contractor may suspend the performance of the agreement in whole or in part and charge the additional costs in accordance with its usual rates, without prejudice to other legal rights.
7. Engagement of third parties
7.1The Contractor is at all times authorised to engage third parties, including freelancers or subcontractors, independently for the performance of the agreement, without the Client’s prior consent.
7.2The engagement of third parties is fully covered within the agreed fee or budget for the assignment. Costs of third parties exceeding the agreed budget will only be charged following the Client’s express written approval.
7.3The Contractor shall not be liable for any shortcomings, errors or delays caused by third parties engaged, regardless of whether these were proposed by the Client or engaged independently by the Contractor.
8. Rates
8.1The Contractor shall charge a fee for the services to be performed or the products to be supplied, based on an agreed hourly rate or a fixed price. This shall be set out in writing. The Contractor reserves the right to adjust rates following written notification to the Client. In addition to the agreed rate, costs incurred by the Contractor shall also be eligible for reimbursement.
8.2Unless otherwise agreed, the rates are exclusive of VAT and other statutory levies. All prices are in euros and payment must be made in euros.
8.3Preliminary calculations or estimates provided by the Contractor do not create any rights or expectations, unless otherwise agreed in writing. A budget specified by the Client shall only be deemed a fixed price if this has been confirmed in writing.
9. Payment
9.1Payment by the Client must be made within 30 days of the invoice date.
9.2Set-off against the Client’s claims or suspension of payment is excluded.
9.3In the event of persistent non-payment and referral to a debt collection agency, the Client shall be liable for 15% in extrajudicial collection costs on the outstanding amount.
9.4If payment is more than 1 month overdue, the Contractor may suspend all work, including work carried out by entities affiliated with the Contractor.
10. Objections
10.1Objections regarding work or invoices must be raised in writing within 30 days of completion or receipt, or within 30 days of discovery of a hidden defect. Objections do not suspend the payment obligation.
10.2In the event of a valid objection, the Contractor may, at its discretion, adjust the invoice, rectify or repeat the work free of charge, or terminate the contract in whole or in part with a pro rata refund of amounts already paid.
11. Intellectual property rights and other property rights
11.1All intellectual and industrial property rights to software, frameworks, algorithms, AI models, websites, equipment and other materials (excluding client data) developed or made available under the agreement are vested exclusively in the Contractor, its licensors or suppliers. The Client shall only acquire the rights of use expressly granted in these terms and conditions, the agreement or by law. Further reproduction or transfer to third parties is not permitted, unless otherwise agreed in writing. The right of use is non-exclusive and non-transferable.
11.2Notwithstanding article 11.1, custom configurations created specifically for the Client shall become the Client’s intellectual property upon full payment of the services performed by Contractor. All rights to Client’s data remain with the Client at all times.
11.3Any transfer of intellectual or industrial property rights may only be agreed in writing and expressly. Parties may negotiate an extended licence or transfer of platform technology on terms to be agreed. Any such transfer leaves the Contractor free to continue using parts, ideas, designs and documentation of the development for other purposes, and to realise similar developments for itself or third parties.
11.4Contractor may freely use general knowledge, experience, and skills acquired during engagements for other clients of Contractor, including in the same industry, provided no confidential information or Client data is used. This is without prejudice to the Contractor’s right to use anonymised and aggregated insights as set out in the article about privacy and data processing.
11.5The Contractor indemnifies the Client against legal claims from third parties concerning infringement by materials developed by the Contractor, provided that the Client informs the Contractor immediately and cooperates fully in the resolution of the matter. The indemnity lapses in the event of infringement by materials supplied by the Client or modifications made by third parties. If an infringement is established, the Contractor shall ensure continued use by adapting the materials or obtaining a licence; if this is not feasible, the Contractor may take back the delivered materials against a credit note. Any further liability on the part of the Contractor is excluded.
11.6The Client guarantees that no third-party rights are infringed by making materials available to the Contractor and indemnifies the Contractor against any claims.
11.7The Contractor shall not carry out any investigation into third-party rights or protection options for the Client, unless expressly agreed in writing.
12. Security
12.1Where security is contractually required, it shall comply with the specifications agreed in writing. The Contractor does not guarantee the absolute effectiveness of security. Where no specification has been laid down, an adequate level shall be maintained, taking into account the state of the art, costs, nature and scope of the information, purpose and normal use.
12.2Access and identification codes, certificates or other means are confidential and may only be provided to authorised employees. The Contractor may change codes or certificates. The Client manages authorisations and the revocation of codes.
12.3Where security or testing relates to material not supplied by the Contractor, the Client guarantees that all necessary licences and approvals have been obtained. The Client indemnifies the Contractor against any claims.
12.4The Contractor may adjust security measures if this is necessary due to changing circumstances.
12.5The Client shall adequately secure its own systems and infrastructure.
12.6The Contractor may issue security instructions; failure to comply with these shall result in the Contractor being exempt from liability and the Client indemnifying the Contractor.
12.7The Contractor may take technical and organisational measures to protect software, equipment, websites or other works and to impose restrictions on use. The Client may not remove or circumvent these measures.
13. Risk
13.1The risk of loss, theft or damage to goods, products, software or data passes to the Client at the moment these are brought into the Client’s actual possession or that of an auxiliary person.
14. Liability and indemnity
14.1The Contractor’s liability for attributable failure is limited to compensation for direct damage, up to a maximum of the amount agreed for the relevant contract, excluding VAT. In the case of continuing contracts lasting longer than one year, a maximum of the amount for one year applies, with an absolute maximum of €100,000. Direct damage comprises exclusively:
•Reasonable costs of ensuring that the service provided is subsequently performed in accordance with the contract, unless the contract has been terminated at the Client’s request;
•Reasonable costs of keeping existing systems operational for a longer period due to delayed delivery, less any savings;
•Reasonable costs of determining the cause and extent of direct damage;
•Reasonable costs of mitigating direct damage, insofar as demonstrably effective.
14.2Liability for indirect damage, consequential damage, loss of profit, lost savings, reduced goodwill, business interruption, damage caused by third parties or the use of items supplied by the Client or third parties engaged by the Client is excluded.
14.3The limitations set out in the above paragraphs shall not apply in the event of wilful misconduct or gross negligence on the part of the Contractor.
14.4Liability shall only arise following a written notice of default by the Client, setting a reasonable period for rectification, and in the event of a continuing attributable failure. The notice of default must contain a detailed description of the failure.
14.5Damage must be reported in writing as soon as possible. Claims lapse 6 months after they arise.
14.6The Client indemnifies the Contractor against claims from third parties relating to the performance of agreements.
14.7The provisions of this article also apply in favour of all persons engaged by the Contractor in the performance of the work.
15. Notice and termination
15.1Termination on the grounds of a breach for which the other party is responsible is only possible following a written notice of default setting a reasonable period for rectification, in the event of a failure to fulfil essential obligations, including payment and cooperation obligations.
15.2Services already provided remain invoiced and payable, even in the event of termination.
15.3Contracts of indefinite duration may be terminated by either party in writing, stating the reasons, subject to a reasonable notice period of two months. The Contractor shall not be liable for any loss or damage resulting from termination.
15.4Fixed-term contracts or contracts ending upon completion cannot be terminated prematurely.
15.5Either party may terminate the agreement immediately in writing in the event of suspension of payments, bankruptcy, liquidation or a change of control over the Client’s business. Upon termination, the Contractor shall not be obliged to provide a refund or pay compensation. In the event of the Client’s bankruptcy, the right to use software, websites and services shall lapse automatically.
16. Force majeure
16.1Force majeure includes circumstances that reasonably prevent performance and cannot be attributed to the Contractor, including:
•Non-performance by suppliers;
•Incapacity for work or death of essential employees;
•Non-performance by suppliers prescribed by the Client;
•Defective goods, equipment, software or materials from third parties;
•Government measures;
•Power cuts;
•Pandemics;
•Disruption to the internet, data networks or telecommunications;
•(Cyber)crime, (cyber)vandalism, war or terrorism;
•General transport problems.
16.2The Contractor shall notify the Client in writing if force majeure prevents performance.
16.3In the event of force majeure, the Contractor may suspend or terminate the agreement without liability for damages, without prejudice to other rights.
16.4If the agreement has been partially performed, the Contractor may invoice the part already performed separately; the Client is obliged to pay this invoice as if it were a separate contract.
17. Confidentiality
17.1Both parties shall ensure that all confidential information received from the other party remains confidential. Confidential information may only be used for the purpose for which it was provided. Exceptions apply where disclosure is required by law or necessary for the performance of the agreement. The obligations under this confidentiality clause shall survive termination or expiry of the agreement for a period of one (1) year; provided, however, that with respect to any information that constitutes a trade secret under applicable law, the obligations shall continue for as long as such information remains a trade secret.
17.2The Client acknowledges that software and other materials provided by the Contractor are confidential and contain trade secrets of the Contractor or its suppliers.
17.3Upon termination of an agreement, all confidential information, documents, data files and business assets must be returned to the original owner without delay.
18. Takeover of staff
18.1During the term of the agreement and for one year thereafter, the Client may not enter into any direct or indirect employment or service relationship with employees of the Contractor or engaged third parties without the Contractor’s prior written consent and any agreed compensation.
19. Penalty clause
19.1In the event of a breach of articles 17 and 18, the Client shall be liable to pay an immediately payable penalty of €50,000, plus €5,000 per day and, where applicable, per employee for as long as the breach continues.
20. Privacy and data processing
20.1Where relevant to the performance of the agreement, the Client shall inform the Contractor in writing regarding compliance with relevant legislation, including the GDPR.
20.2Client data, meaning business-specific documents, files, and materials provided by the Client or uploaded into the Contractor’s products, remains the property of the Client at all times.
20.3The Contractor implements appropriate technical and organisational measures to protect client data in accordance with applicable data protection regulations.
20.4The Client shall indemnify the Contractor against any claims from persons whose personal data is processed by the Client, unless the claim arises from the Contractor’s attributable conduct.
20.5The Client remains at all times responsible for the content, use and processing of data carried out via the Contractor’s services and indemnifies the Contractor against claims from third parties.
20.6Upon termination of the agreement, the Contractor shall return or securely delete all Client data within thirty (30) days after a request thereto, at the Client’s choice.
21. Assignment of Contract
21.1The transfer of rights under an agreement to third parties is not permitted, except in the event of a transfer of the Client’s entire business.
22. Applicable law and competent court
22.1All agreements are governed by Dutch law. Disputes shall be submitted exclusively to the competent court in Utrecht.
II.Terms and conditions for consultancy and projects
These terms and conditions apply in addition to the general provisions where the Contractor provides consultancy or project services. In the event of any conflict, these specific provisions shall prevail.
23. Selection of staff
23.1The Contractor selects staff on the basis of their qualifications and the information provided by the Client regarding the work to be carried out.
23.2If an employee does not meet the Client’s expectations, the Client must notify the Contractor in writing, stating the reasons, within five working days of the start of the work. After this period, the Contractor shall no longer be liable.
23.3If the Client selects an employee themselves, all responsibility for that employee’s suitability rests with the Client.
24. Replacement of staff
24.1The Contractor is entitled to replace a designated employee with one or more employees with comparable qualifications, unless otherwise agreed in writing.
24.2If, during the performance of the work, it becomes apparent that a more highly qualified employee is required, the Contractor may, after consultation, deploy a replacement at the applicable rate.
25. Good client conduct
25.1The Client shall treat the Contractor’s employees with the same care as its own employees.
25.2Any deviation from the agreed deployment of staff requires the Contractor’s prior written consent, to which conditions may be attached.
26. Composition of the project team and the Client’s cooperation
26.1The Contractor may change the project team provided this does not impede the execution of the work.
26.2If the Client deems a change to the project team necessary, consultation shall take place to find a suitable solution.
26.3The Client shall appoint a representative to liaise with the representative designated by the Contractor.
26.4The Client shall provide all necessary cooperation, including the timely provision of relevant data and information.
26.5The Client is responsible for the proper use of the Contractor’s services and resources and for their security.
26.6Participation in project or steering groups requires that the exchange of information and decision-making take place in accordance with written agreements.
26.7The Contractor is not obliged to implement decisions that are incompatible with the performance of the contract.
26.8The Client guarantees that the designated participants are authorised to take binding decisions.
26.9If an employee is unable to work due to illness or accident, the Contractor shall, where possible, arrange for a replacement and inform the Client in good time.
27. Obstacles to performance
27.1If circumstances hinder the performance of the contract or jeopardise the quality or schedule, the Client must immediately notify the Contractor in writing.
27.2Consultations shall take place to record any amendments to the agreement in writing..
III.Development, use and maintenance of Software-as-a-Service (SaaS)
These terms and conditions apply in addition to the General Provisions if the Contractor develops, uses, installs and/or maintains software on behalf of the Client and if the Contractor provides services under the name or concept of Software-as-a-Service (SaaS). SaaS means that the Contractor makes functionality available remotely via the internet or another data network, without the Client receiving the underlying software on physical media or as a download.
Where the terms comprises both a development phase (the “Build” phase) and an ongoing SaaS phase (the “Run” phase), the development phase concludes upon acceptance in accordance with the relevant acceptance provisions. The SaaS phase commences immediately upon acceptance unless the parties agree otherwise in writing. Obligations, warranties and limitations specific to each phase apply only during that phase, unless expressly stated otherwise.
28. Development of software
28.1The Contractor may examine the accuracy, completeness or consistency of data, specifications or designs supplied by the Client. In the event of any identified shortcomings, the Contractor may suspend the work until the Client has remedied them.
28.2The functional specifications agreed upon in writing prior to the development phase shall form the basis for development. Any changes to the specifications requested by the Client during the development phase shall be subject to the Contractor’s change-request procedure and may result in additional fees and adjusted timelines.
29. Delivery, installation and acceptance during development phase
29.1Software shall be delivered as far as possible in accordance with written specifications and, if agreed, installed.
29.2If an acceptance test has been agreed, the test period shall be 14 days following delivery or installation. During this period, the software may not be used for operational purposes. The Client shall carry out the test using suitably qualified personnel and shall report the results in writing.
29.3The software shall be deemed accepted:
•if no acceptance test is carried out: upon delivery or completion of installation;
•where an acceptance test has been agreed: at the end of the test period;
•in the case of receipt of a test report before the end of the test period: after rectification of the errors mentioned therein, except for minor insignificant errors. Premature use for operational purposes shall be deemed to constitute acceptance.
29.4If errors hinder the test, the test period shall be suspended until the hindrance has been remedied.
29.5The Client shall report errors no later than the final day of testing. The Contractor shall endeavour to rectify these within a reasonable period and may apply temporary solutions.
29.6Acceptance may not be withheld on account of minor errors or subjective aspects such as interface design.
29.7Rejection of a phase does not affect acceptance of previous phases.
29.8Acceptance signifies full fulfilment of the Contractor’s obligations, subject to the Client’s rights regarding minor defects and warranty.
29.9Payment shall be made upon delivery or, where applicable, upon completion of installation, unless otherwise agreed.
30. Provision of SaaS
30.1The Contractor may modify the content or functionality of the service, provided that custom features (as accepted during the development phase) are not materially diminished without the Client’s prior written consent. In the event of substantial changes that affect the Client’s procedures, the Contractor shall provide timely notification. The costs of any necessary adjustments shall be borne by the Client, unless otherwise agreed. In such a case, the Client may terminate the agreement in writing with effect from the date the change takes effect, unless the change is required by law or the Contractor bears the costs.
30.2The Contractor may deploy new versions of the underlying software. Such deployments shall not remove or materially impair features that were built custom for the Client during the development phase.
30.3Temporary interruptions for maintenance or servicing may occur, where possible at times of low usage.
30.4The Contractor is not obliged to supply the underlying software as a physical medium or download.
31. Right of use of SaaS
31.1The Client may use the SaaS service exclusively within its own organisation for the intended purpose and the agreed number of users or connections. The Client may not grant access to third parties unless otherwise agreed in writing. Where the Client’s use case involves making the SaaS service or a derivative thereof available to the Client’s own end users, this shall be expressly set out in the agreement, including any applicable conditions, fees and liability arrangements.
31.2The Client is granted a non-exclusive right of use, subject to the agreed restrictions. Use comprises solely the use of the service via the internet, unless otherwise agreed in writing.
31.3The right of use is non-transferable. Sale or rental to third parties is not permitted. Sub-licensing (including white-labeling) is only permitted if expressly agreed upon in writing. White-labeling is subject to additional fees. ‘Time-sharing’ is prohibited. Source code shall remain confidential.
31.4Upon termination of the right of use, the Client shall return all copies to the Contractor or destroy them, with written confirmation of destruction if agreed.
32. Warranty development phase
32.1Errors reported within three months of delivery or acceptance shall be rectified by the Contractor to the best of its ability. The warranty does not cover interruptions, or the recovery of corrupted or lost data. Costs for rectification outside the scope of the warranty or resulting from improper use shall be borne by the Client.
32.2Repairs shall take place at a location to be determined by the Contractor; temporary solutions or restrictions may be applied.
32.3Repair obligations lapse after the warranty period. Thereafter, defects shall be governed by the maintenance provisions or, if the SaaS phase has commenced, by the SaaS warranty below.
33. Warranty SaaS phase
33.1The Contractor does not guarantee error-free or uninterrupted operation of the SaaS service. Errors in underlying software developed by the Contractor, reported in writing by the Client, will be rectified to the best of the Contractor’s ability within a reasonable period. Errors or interruptions in third-party software are not covered under warranty. Temporary solutions or restrictions may be applied.
33.2The Client shall identify and manage the risks of malfunctions or data loss, and may take additional measures. The Contractor may cooperate reasonably subject to conditions. The restoration of available backups is included in the service provision.
34. Commencement of services and remuneration
34.1The SaaS service will commence within a reasonable period after the agreement has been signed, usually by providing access credentials. The Client shall ensure that the necessary facilities are available.
34.2Payment shall be made in accordance with the agreement. In the absence of payment arrangements, the amounts are payable in advance per calendar month.
35. Maintenance of SaaS
35.1Maintenance agreements or included maintenance fees oblige the Client to report errors in detail. The Contractor shall endeavour to rectify errors or make improvements available.
35.2The Contractor does not guarantee error-free operation or the complete correction of errors.
35.3Costs for rectification due to user errors or non-attributable causes may be charged.
35.4Improved versions of the platform shall be made available to the Client as part of the SaaS service. After the deployment of a new version, the obligation to provide support for the immediately preceding version shall continue for three months, after which it shall lapse. New functionality that falls outside the scope of the original functional specifications may require additional remuneration.
36. Third-party software
36.1If the Contractor supplies or integrates third-party software, the terms and conditions of those third parties shall apply, provided they have been communicated in writing. The Client accepts these terms and conditions. If third-party terms and conditions do not apply, the general terms and conditions shall remain in full force.
36.2The Contractor shall inform the Client of known limitations or restrictions of third-party software or services that may affect the Client’s use of the solution.
IV.AI applications
These provisions apply if the Client purchases or uses AI applications from the Contractor.
37. Rights of use
37.1All ownership rights to the output of AI systems, whether standard or customised, remain with the Contractor. The Client is granted only a right of use for the duration of the agreement. The Contractor may reuse or reproduce the output for other purposes.
38. Liability
38.1The Contractor shall not be liable for any direct, indirect, incidental, consequential, special, exemplary or punitive damages arising out of or in connection with the use of any AI system or AI-generated output, except to the extent such damage is caused by the Contractor’s wilful misconduct or gross negligence. The Client is solely responsible for evaluating, verifying and validating any AI-generated output before acting upon it.
39. Automated decision-making
39.1AI systems may not be used for automated decision-making with legal or similar consequences for individuals without the Contractor’s prior written consent.
40. Data processing
40.1Contractor does not use Client data to train its own AI models without prior written consent from the Client. Contractor may use anonymised and aggregated insights derived from the use of its products to improve its platform technology and services.
41. EU AI Act Compliance
41.1The Contractor acts as provider and the Client acts as deployer of AI systems within the meaning of Regulation (EU) 2024/1689 (the “EU AI Act”). The Client shall use the AI systems strictly in accordance with the Contractor’s instructions for use, comply with its deployer obligations under (but not limited to) Article 26 of the EU AI Act, and shall not modify the AI system, alter its intended purpose, or make it available to third parties under its own name.
41.2Each Party bears sole responsibility for its own obligations under the EU AI Act. The Contractor shall not be liable for penalties, fines, claims or damage arising from the Client’s use of the AI system, including the Client’s failure to ensure adequate human oversight, proper input data, or transparency towards affected individuals. If the Client acts in a manner that causes it to be classified as a provider under the EU AI Act, the Client shall assume all corresponding obligations and indemnify the Contractor against any resulting claims, fines or costs.