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Terms & Conditions

Definitions

a. Client: the natural or legal person who has commissioned AInablers to manufacture goods or to perform work.

b. gracious B.V.: supplier located in The Hague that has accepted the commission as referred to in point a., or has issued a quotation or offer preceding a potential assignment.

c. Data Carriers: magnetic tapes and disks, optical discs, and all other means intended for recording, editing, transmitting or reproducing texts, images, sounds or other data using equipment, in the broadest sense of the word.

d. Emergency: the failure of a product and/or service that must be investigated and resolved as soon as possible because the product and/or service can no longer function.

e. Bug: an error in the software of a product and/or service that prevents it from functioning as intended.

f. Request: a missing functionality that does not meet the criteria of a bug or emergency.

g. AInablers: trade name of gracious B.V..

Article 1: Applicability

  1. These conditions apply to all quotations, order confirmations, assignments, sales, deliveries and all other agreements concluded with AInablers.

  2. Conditions of the client shall only apply to agreements concluded with AInablers insofar as AInablers has acknowledged and confirmed this in writing.

  3. The client who has once contracted under these conditions is deemed to have tacitly agreed to the applicability of these conditions to later agreements concluded with AInablers.

Article 2: Quotations and Offers Definitions

  1. The mere issuance of a price quote, budget, pre-calculation or similar communication by AInablers, whether or not designated as a quotation or offer, does not oblige AInablers to conclude an agreement with the client, but the quotation or offer only serves as an invitation to enter into negotiations unless the quotation or offer states otherwise.

  2. If the quotation or offer explicitly states that it constitutes an offer pursuant to Article 6:217 of the Dutch Civil Code, this offer includes a period for acceptance of one month, unless the quotation or offer states otherwise.

  3. In the case of a quotation or offer that explicitly states that it constitutes an offer pursuant to Article 6:217 of the Dutch Civil Code, the agreement is concluded as soon as AInablers has received the written acceptance of the offer from the client. By this, the client expressly agrees to these General Terms and Conditions of Delivery and Payment and also expressly waives any applicability of his own General Terms and Conditions.

  4. If the acceptance includes reservations or changes to the quotation or offer, contrary to what is determined in paragraph 2, the agreement is only concluded if AInablers has notified the client that it agrees with these deviations.

  5. If the quotation or offer is to be considered as an invitation to enter into negotiations, an offer shall be considered a proposal made by the client to AInablers to conclude an agreement, which immediately leads to the establishment of an agreement upon acceptance.

  6. Acceptance by AInablers of the client's offer also includes an express rejection of the General Terms and Conditions of the client, referring to Article 6:225 paragraph 3 of the Dutch Civil Code.

  7. A quotation or offer made by AInablers, or an order accepted by AInablers, only includes the work and services described therein. Under no circumstances can AInablers be required to perform more work and/or services, however closely these additional work and/or services are related to those described in the quotation or assignment.

  8. AInablers reserves the right to perform more work than agreed upon and to charge the client for this, if these works are in the interest of the client and/or for the proper execution of the assignment. The client will be informed of the execution of these additional works as soon as possible.

Article 3: Electronic Data Traffic

  1. An email message shall be equated with a written statement within the context of these general terms and conditions and all agreements.

  2. In the event of a dispute over whether email messages have been received or sent, the logfile data of AInablers will constitute full proof. The client cannot suspend its obligations by disputing this.

Article 4: Changes and Cancellations

  1. Changes to the agreement and deviations from these General Terms and Conditions will only be effective if they have been agreed upon in writing between the client and AInablers.

  2. AInablers reserves the right to cancel orders in whole or in part if such a change in circumstances occurs that fulfillment cannot reasonably be expected of AInablers. The client has no right to compensation in case of cancellation.

  3. The client is entitled to cancel an agreement before AInablers has started the execution of the agreement, provided that he compensates AInablers for the damage incurred. This damage includes the losses and lost profits suffered by AInablers and at least the costs that AInablers has already made in preparation, including those of reserved production capacity, purchased materials, services called in and storage.

  4. Payments for performed work are made according to the price mentioned in the quotation or agreement, or against further written price agreements. Work not mentioned in the quotation will be charged to the client based on post-calculation unless price agreements have also been established in writing for this.

Article 5: Prices

  1. In the case of composite offers, there is no obligation to deliver a part of the total performance at the amount mentioned for this part in the offer or at a proportional part of the price stated for the whole.

  2. AInablers is always entitled to adjust the prices to changes in price-determining factors that have occurred in the period after the time of acceptance of the assignment and the execution of the work. If this adjustment takes place within three months after acceptance of the assignment, the client has the right to dissolve the agreement unless price changes are the result of legislation and/or government measures.

  3. Texts that are more difficult to process, unclear copy, unclear sketches, drawings or models, defective data carriers, defective computer software or data files, defective delivery methods of materials or products to be supplied by the client and all similar supplies by the client that require more work or costs than AInablers could reasonably expect when entering into the agreement, are grounds for increasing the agreed price. Extraordinary or unforeseeably difficult processing difficulties arising from the nature of the materials and products to be processed are also grounds for increasing the agreed price.

Article 6: Obligations of AInablers

  1. AInablers commits itself to the client to provide services in accordance with the description as further given in the quotation or agreement.

  2. AInablers guarantees that the work assigned to it will be performed according to the requirements of good and sound craftsmanship and in accordance with any applicable regulations. AInablers warrants that the delivered work is original, unless similarity is required. In the latter case, the client indemnifies AInablers against liability towards third parties in this regard.

  3. AInablers determines the manner in which it deems the assignment should be executed. AInablers undertakes to follow the client's instructions if requested, unless this is contrary to the nature of the assignment.

  4. AInablers is entitled to outsource the assignment or parts thereof to or have it performed by third parties not employed by her, if this, in her opinion, promotes a good and efficient execution of the assignment.

  5. The obligation of AInablers lapses:


    a. If the client does not or does not properly fulfill his obligations from the agreement or part thereof.


    b. If the client requests work that deviates from AInablers' advice.


    c. If work on the assignment has been performed by others than by assistants and other persons who are directly employed by AInablers, including subsequent changes.

  6. The liability of AInablers under this guarantee will in all cases be limited to the total invoiced amount per assignment excluding VAT.

Article 7: Obligations of the Client

  1. The client is obliged to provide AInablers with all information in a timely manner that may be important for AInablers in the context of the execution of this agreement.

  2. AInablers has the right to suspend the execution of the assignment until the client has fulfilled the obligations mentioned in the previous paragraph.

  3. If a term has been agreed or specified for the execution of certain work or for the delivery of certain goods, this is never a strict deadline. In the event of an overrun of a term, the client must therefore put AInablers in default in writing. AInablers must then be offered a reasonable period to still comply with what has been agreed upon. AInablers is not liable for late delivery of products outsourced to third parties.

  4. The client is prohibited from employing employees, staff or assistants of AInablers or attempting to do so. In the event of a violation of this prohibition, the client shall owe AInablers an immediately payable fine equal to 5 times the annual turnover of the respective force, calculated on the average over the five years preceding the employee's employment by the client.

  5. The client is not allowed to make changes to the designs, sketches, illustrations, etc., without the permission of AInablers. The client must always give AInablers the opportunity to carry out the changes. Changes that are necessary due to a changed or incorrect assignment will be charged extra to the client.

  6. The client is obliged to provide AInablers with four copies of the work as soon as reproduction has taken place.

  7. If the client simultaneously provides the same assignment to several companies, he must immediately inform AInablers of this. If the client has already given the same or a similar assignment to another company, he must state this when giving the assignment to AInablers, regardless of whether the assignment has been accepted or not by the other party.

  8. The proof copy or prototype of a project to be reproduced by the client must be submitted to AInablers for approval before reproduction is started. AInablers checks the last proof or last prototype and provides it with her initials and date with the mention "good for reproduction".

Article 8: Delivery and Storage

  1. In the event that the client provides his data carriers to AInablers, these data carriers must comply with the specifications given by AInablers to the client. In such a case, the client must also ensure that he keeps a copy or duplicate of his data carriers for himself or has them made for his storage.

  2. If the delivery of information takes place through a public telephone network or other direct connection, this can only take place at times previously agreed with AInablers and in accordance with the rates and conditions of the party that operates this connection, according to agreements made in advance by both parties regarding methodologies and protocols.

  3. AInablers is obliged to ensure careful storage of information originating from the client. Unless proven otherwise, AInablers is deemed to have fulfilled this obligation.

  4. AInablers will make all data of the client used in the execution of the assignment available to the client immediately after the execution of the assignment.

  5. The risk of damage or loss of information stored at AInablers is expressly for AInablers.

  6. The risk of damage or loss of information during transport or shipment is always for the client, regardless of whether the transport or shipment is carried out by or on behalf of AInablers, the client or third parties.

  7. The client indemnifies AInablers against all claims by third parties related to the damage or loss of the information referred to in the preceding paragraphs.

  8. The client is obliged to ensure careful storage of goods originating from AInablers.

  9. The risk of damage or loss of goods stored at the client is expressly for the client.

Article 9: Disruptions and Incidents

  1. AInablers strives to make the service as uninterrupted as possible. However, it is technically impossible to prevent every disruption of the service. If there is an emergency, AInablers is expected to respond within 1 hour and then treat the emergency within 3 hours. If the client has problems with a bug, AInablers must respond within 1 day and the defect is treated within 3 days. For a request, AInablers must respond within 1 day and the request is treated within 3 days.

Article 10: Delivery

  1. Unless otherwise agreed, delivery takes place at the location where AInablers operates its business.

  2. The client is obliged to cooperate fully with the delivery of the items to be delivered by AInablers under the agreement. The client will also be in default without having to be summoned if he does not pick up the items to be delivered from AInablers after the first request or, if delivery to his address has been agreed, refuses to accept the items to be delivered.

  3. All delivery times mentioned in a quotation or otherwise are non-binding unless the parties have explicitly agreed in writing on a strict delivery date. AInablers commits itself to do everything reasonably possible to deliver within the desired term.

  4. An agreed delivery term for AInablers only starts after all data to be provided by the client has been received by AInablers and, if any advance payment has been agreed, this advance payment has been received by AInablers.

  5. AInablers is not obliged to deliver the manufactured items in parts.

  6. When the performance must be done in parts, each part will be considered as a separate transaction with all legal consequences thereof.

Article 11: Examination upon Delivery and Complaints

  1. If the client does not file a written complaint with AInablers within 14 days in the case of non-proper delivery or performance by AInablers, AInablers is no longer obliged to meet the objections of the client.

  2. The performance of the agreement is deemed to be proper between parties if the client has failed to conduct the investigation or notification referred to in paragraph 1 of this article in time.

  3. The performance of AInablers is in any case deemed to be proper between parties, if the client has put the delivered or part of the delivered into use, has processed or treated it, has delivered it to third parties, respectively has put it into use, has processed or treated it or has delivered it to third parties, unless the client has complied with the provisions of paragraph 1 of this article.

  4. If the term of 14 days referred to in paragraph 1 of this article is to be considered unacceptably short for a careful and alert client according to standards of reasonableness and fairness, this term will be extended to the first moment at which the investigation or the notification to AInablers is reasonably possible for the client.

  5. AInablers is always entitled to provide a new proper performance in place of a previous improper performance, unless the default is irremediable.

Article 12: Samples and Models

  1. If a sample, model, test copy, work copy, concept, or version has been shown or provided to the client, it is presumed to have been provided only as an indication, unless it is expressly agreed that the product to be delivered will correspond with it.

Article 13: Liability and Indemnification

  1. The liability of AInablers under the agreement with the client is limited to such an amount as is in proportion to the agreed price according to standards of reasonableness and fairness, notwithstanding the provision in Article 5 paragraph 6 of these terms and conditions.

  2. AInablers is not liable for any kind of damage that arises after the client has put the manufactured goods into use, has processed or treated them, delivered them to third parties, respectively has put them into use, has processed or treated them or delivered them to third parties.

  3. AInablers is also not liable for damage in the form of loss of turnover or reduced goodwill in the business or profession of the client.

  4. AInablers is also not liable for damage to materials or products received from the client and to be processed or treated by AInablers, if the client has not provided AInablers with information about the properties and nature of these materials or products and proper information about the applied pre-treatments and surface treatments at the time of entering into the agreement.

  5. If AInablers is held liable by a third party for any damage for which it is not liable under the agreement with the client or these delivery terms, the client shall indemnify AInablers in full and compensate AInablers for everything it has to pay to this third party.

  6. The client bears the risk of misunderstandings regarding the content and execution of the agreement if they have their cause in specifications or other communications that were not received by AInablers, were not received correctly, not timely, or were incomplete, which were made orally or by a person appointed by the client or were transmitted by technical means such as telephone, fax, email, and similar transmission media.

  7. The client indemnifies AInablers against liability regarding copyrights for reference material provided by the client such as photos, drawings, etc., as well as for damage, loss, or destruction of materials and/or data provided by the client. The client is responsible for all consequences of what he has published.

  8. Advice from AInablers is given to the best of its knowledge, but AInablers is in no way liable in this respect.

Article 14: Force Majeure

  1. AInablers cannot be held responsible for a failure to fulfill the agreement if it is not due to its fault, nor is it accountable according to the law, legal acts, or generally accepted practices.

  2. Force majeure on the part of AInablers occurs if AInablers is prevented from fulfilling its obligations under the agreement or the preparations thereof due to unforeseen circumstances of any kind, such as war, war risk, civil war, riot, molestation, fire, sickness or accidents, business occupation, transport problems, government measures, and further by all other causes outside the fault and risk sphere of AInablers that prevent AInablers from performing the assignment on time or without, in its opinion, burdensome extra effort and/or costs.

  3. In the event of force majeure, AInablers has the right to cancel the agreement with the client in whole or in part, simply by notifying the client, without judicial intervention and without being obliged to compensate AInablers for any damage suffered due to the cancellation.

  4. If AInablers has already partially fulfilled its obligations at the onset of the force majeure, AInablers is entitled to invoice the already delivered or the services already provided separately, and the client is obliged to pay this invoice as if it were a separate transaction.

Article 15: Payment

  1. The amount charged as compensation is, unless otherwise agreed in writing, calculated according to AInablers' usual rates.

  2. Travel hours are fully charged, unless otherwise follows from the agreement.

  3. Costs incurred by AInablers (such as research, documentation costs, etc.) are charged to the client.

  4. AInablers can at any time require the client to pay the entire or part of the agreed compensation and/or costs to be made in advance.

  5. Unless otherwise agreed with the client, the client is obliged to make payments within 14 days after the invoice date, without this giving rise to any right to deduction or discount.

  6. If the client does not fulfill his payment obligations, all rights transferred by AInablers to the client expire at the end of the payment term. Among other things, this implies that the client is then not allowed to use or have the work made available to him used for any purpose.

  7. The client will be in default solely by exceeding the payment term stated in paragraph 5 of this article. If the client remains in default in the timely payment of an invoice, then the client is legally in default, without a notice of default being required. AInablers is entitled to charge an interest rate equal to the statutory interest rate plus 2%, calculated from the due date of the invoice. Both extrajudicial and judicial collection costs, lawyers and bailiffs incurred in connection with late payments, are at the expense of the client.

  8. If the client also fails to proceed with the payment of the amount due after a written reminder, this has, without prejudice to any other right of claim accruing to AInablers, the following consequences: a. All other claims in the name of the client outstanding at AInablers become immediately due. b. All costs of AInablers, both judicial and extrajudicial, including collection costs, discount costs, bank commissions, and similar, to achieve full or partial collection of its claim on the client, are borne by the client. Regardless of the actual costs incurred in connection with the collection, the client shall owe AInablers at least 15% of the invoice amount with a minimum of € 500. If the actual costs are higher than the said 15% of the invoice amount, then the actual costs will be charged to the client. In the case of payment by bills of exchange and checks, bill and check costs are borne by the client. The same applies to costs of a remboursement or costs associated with telephone bank orders.

  9. Payments made by the client to AInablers are always applied to settle the oldest outstanding item against the client, including the interest and costs incurred.

  10. If the client disputes the amount, he must communicate his objections to AInablers in writing within 7 days after the invoice date.

  11. In the event of a justified complaint, AInablers has the choice between adjusting the amount of its invoice, improving or re-performing any rejected work, or wholly or partially canceling the underlying agreement, the latter by simple notification to the client, without judicial intervention being required and against pro rata restitution of the amount already paid by the client in this respect.

  12. The amount payable by the client only entitles to the use of the sketches, designs, software, and similar, as agreed upon by the parties. For any additional use at a later stage, the client owes an additional fee, the amount of which is determined by AInablers. If nothing has been agreed in writing in this respect, the first use and the first edition are considered as the agreed destination and edition.

Article 16: Assignments for an Indefinite Period

  1. Assignments that entail regularly repeating work, whether slightly different or not, are considered to be given for an indefinite period.

  2. All other assignments than those given for an indefinite period end with their completion at the time determined by the parties.

  3. Either party can terminate the given assignment for an indefinite period at any time. Judicial intervention is not required for this.

  4. For the termination of an assignment for an indefinite period, each of the parties must observe a notice period of at least one month.

Article 17: Suspension and Dissolution

  1. AInablers is authorized to suspend the fulfillment of the obligations or to dissolve the agreement if the client does not or does not fully comply with the obligations under the agreement.

  2. In addition to what is stated elsewhere in these terms and conditions regarding dissolution, the agreement will be dissolved without judicial intervention and without any notice of default being required, at the time when the client is declared bankrupt, applies for a suspension of payment or loses the authority over his assets or parts thereof by attachment, under guardianship or otherwise, unless the curator or administrator acknowledges the obligations arising from this agreement as estate debts.

  3. Upon dissolution, existing claims become immediately due and payable. The client is liable for the damage suffered by AInablers, including loss of profit.

Article 18: Right of Retention

  1. AInablers is authorized to suspend the delivery of goods that it has in connection with the execution of any assignment for the client until all its claims in respect of any assignment have been met.

Article 19: Copyright and Property Rights

  1. The client guarantees AInablers that by fulfilling the agreement and in particular by reproducing or making public the items received from the client such as copy, typesetting, models, drawings, photographic recordings, lithographs, films, data carriers, computer software, data files, etc., no infringement is made on rights that third parties can claim under the Copyright Act of 1912 or other national, supranational or international regulations in the field of copyright or industrial property rights or the law concerning unlawful acts. The client indemnifies AInablers both in and out of court for all claims that third parties can make under the said law or regulations.

  2. If reasonable doubt arises or persists regarding the correctness of the rights claimed by third parties as referred to in paragraph 1 of this article, AInablers is authorized but not obliged to suspend the fulfillment of the agreement until it has been irrevocably established in court that AInablers does not infringe these rights by fulfilling the agreement. Thereafter, AInablers will still execute the order within a reasonable period.

  3. Unless expressly agreed otherwise in writing, AInablers always remains the owner of the copyright that may arise on the works produced by it in the fulfillment of the agreement, such as copy, typesetting, design drawings, models, working and detailed drawings, data carriers, computer software, data files, photographic recordings, lithographs, films and similar production and auxiliary means, even if the respective activities are mentioned as a separate item in the offer or on the invoice.

  4. The items to be delivered or delivered by AInablers according to its design, such as copy, typesetting, design drawings, models, working and detailed drawings, data carriers, computer software, data files, photographic recordings, lithographs, films and similar production and auxiliary means, may not, even if or insofar as no copyright or other legal protection exists for AInablers with respect to the design, be reproduced without its written permission as part of any production process.

  5. After delivery by AInablers, the client acquires the non-exclusive right to use the works produced by AInablers within the agreement in the sense of the Copyright Act of 1912 or works in the sense of paragraph 4 of this article. The aforementioned right of use is limited to the right of normal use of the delivered items and in particular does not include the use for reproduction of these items as part of any production process.

  6. The rights to inventions, know-how and software obtained or developed by AInablers before or during the execution of the assignment or the provision of services remain the property of AInablers at all times.

  7. Every delivery of goods by AInablers to the client takes place subject to the retention of title thereof until the client has fulfilled everything he is obliged to do under the agreement, including interest and costs.

  8. The client must return all designs and sketches, whether approved or rejected, to AInablers within two months after delivery and is not entitled to reproduce these designs, sketches, and similar or parts thereof in any form without written permission from AInablers. The return shipment is at the expense and risk of the client.

  9. The data carriers not provided by the client remain the property of AInablers, as far as these have not been invoiced separately by him and have been paid for by the client. The same applies to the equipment and parts belonging to it that are used for the data carriers.

  10. In the event of loss or damage to the sketches, designs and/or illustrations that are under the client and/or third parties, the client is obliged to compensate the resulting damage to AInablers. The return shipments are also at the risk and expense of the client.

Article 20: Applicable Law and Jurisdiction

  1. This agreement is governed by Dutch law.

  2. A dispute is deemed to exist as soon as one of the parties declares it to be so.

  3. All disputes arising from any agreement between AInablers and the client will be submitted to the judgment of the competent court in the district where AInablers is located.