General Terms and Conditions
Who are we?
We are Prophets and Wizards B.V., yet we call ourselves Bit, a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) incorporated under the laws of the Netherlands, having its corporate seat in Amsterdam with office address: Science Park 608A, 1098 XH Amsterdam, the Netherlands and registered with the Dutch Trade Register under number 71363092 (Bit).
What do we do?
We are a research and prototyping studio that builds prototyping hardware, software and AI for frontrunning companies and transforms challenges into tangible prototypes by the use of emerging technology.
We aim to find (technological) developments that may enable the aspirations of our clients and we will translate these into the first versions of concepts within the context of the client.
Before we can carry out an assignment for you, you must enter into an agreement with us (Agreement).
What are you reading here?
These are our general terms and conditions (in short, the Terms). We will send you these Terms together with an offer (Offer). These terms apply to any Offer, Agreement and assignment specified therein.
When we refer to you or Client in these Terms, we mean you as our client.
1. Applicability of these Terms
1.1. These Terms and the Bit handbook (the Handbook) apply to any Offer, Agreement and any Assignment (as meant in article 3.1) specified therein and to any supplementary or follow- up assignments of the Client.
1.2. Any general terms and conditions or purchase conditions of the Client are not applicable and hereby explicitly excluded from any Agreement.
1.3. If an Agreement and these Terms contain conflicting conditions, the conditions specified in the Agreement shall prevail.
2. Offer and Agreement
2.1. If you provide us with information, we may assume that it is correct and complete, and we will base the Offer on this information.
2.2. All Offers are non-binding. An Offer is valid for the term stated in the Offer. If the term is not included, the validity term is 10 days after receipt. The Offer is only valid for the specific underlying assignment (and not for any future assignments).
2.3. If an Offer is signed by Bit and the Client an Agreement is formed.
3. Assignment
3.1. The assignment is specified in the Agreement (Assignment).
3.2. Bit will accept and execute the Assignment exclusively for the benefit of the Client. Third parties will not derive any rights from the services performed.
3.3. If an Assignment is amended before the end of the agreed upon term in the Agreement, Bit is only bound by the amendment if we confirm the amendment in writing, including by e- mail.
4. Assignment and Structure
4.1. Everything stated in the Terms applies to the entire Assignment.
4.2. The Assignment has several optional phases: Discover Phase, Determine Phase, Develop Phase and optionally a Pilot Phase. The detailed rules of the phases are set out in Chapter 1 of the Handbook (Phases).
4.3. The relevant Agreement specifies which phase(s) are applicable for the Assignment, subject to a Go/No Go decision for each phase (see article 4.4).
4.4. Each phase after the Discover Phase is conditional, depending on the Go/No Go Moment, determined by the Client, but in close consultation with Bit. When the Client gives approval to a next phase, the Assignment will be extended with (a) next phase(s) by means of the Go/No Go moment. The procedure for the Go/No Go decisions is set out in Chapter 2 of the Handbook (Go/No Go Procedure).
4.5. Bit and the Client will evaluate the work throughout the Assignment.
5. Execution of the Assignment
5.1. The nature of our services entails that the results can be different than expected or non- existent. The obligations of Bit are therefore always best-efforts obligations (inspanningsverplichting) and never a result obligation (resultaatsverbintenis). We will use our best efforts to execute the Assignment, but we cannot guarantee the usability, viability, functioning or the quality of the results of an Assignment.
5.2. If Bit exceeds a term mentioned in the Agreement, it is never a fatal or final term. If Bit exceeds a term, the Client will firstly give Bit a notice of default.
5.3. Bit is dependent on the information of the Client when executing an Assignment. The information needs to be correct, complete and delivered in time. If this is not the case, Bit can suspend its activities. Bit can charge additional costs which are a result of the late delivery of information or the delivery of incorrect or incomplete information.
5.4. Bit is entitled to execute the Assignment in different phases.
5.5. Bit is authorized to (partly) execute the Assignment by means of (one or more) third parties, for example when specific expertise is needed. Third parties will only be engaged by us after consultation with the Client. The articles 7:404 of the Dutch Civil Code (execution of the assignment by a specific person), article 7:407 paragraph 2 (joint and several liability of two or more clients) and 7:409 of the Dutch Civil Code (death of a specifically assigned person) are not applicable.
5.6. Bit may share information relating to the Client and the Assignment to other persons connected to Bit, when this is necessary or useful for the purposes of executing the Assignment. If Bit shares information Bit must take the provisions of article 16 (Confidential Information) into account.
6. Start date and Planning
6.1. The start date and indicative planning of the Assignment are agreed in writing between Bit and the Client.
6.2. Bit may amend the indicative planning in consultation with the Client. Bit will confirm any amended planning to the Client by e-mail.
6.3. Bit plans the teams for the entire Assignment. The Client may only stop the Assignment at the scheduled Go/No Go moments as further determined in Chapter 2 of the Handbook (Go/No Go Procedure).
7. Responsible Persons, Bit Team, Engagement Lead Client
7.1. Bit and the Client will each appoint a responsible person(s) to act on their respective behalf (each a Responsible Person and together the Responsible Persons).
7.2. The Responsible Persons will each determine which persons of their organizations will be involved for the Assignment. Bit and the Client will inform each other who those people are, what their responsibilities are and how they can be contacted. At least the following persons will be identified by Bit and the Client: the members of the Team(s), the Bit Project Manager and the Engagement Lead Client.
7.3. The Engagement Lead is employed or retained by the Client and mandated to make decisions regarding the Assignment on behalf of the Client.
8. Fees and Costs
8.1. The cost specification and payment terms of an Assignment are specified in the relevant Agreement.
8.2. All prices mentioned by Bit are quoted in EUR and exclusive of VAT, unless explicitly stated otherwise.
8.3. Bit is entitled to increase its fees and costs if unexpected and cost price increasing events occur after the conclusion of a relevant Agreement.
8.4. If the Client terminates a relevant Agreement because of a fee- or costs increase, Bit will charge the costs/hours and the Client will have no right to compensation.
9. Payment terms
9.1. The term of payment is included in the relevant Agreement. If the term of payment is not included, the term is 14 days.
9.2. The billing frequency is included in the relevant Agreement. If the billing frequency is not included, the billing will be done per phase. Each phase will be invoiced in full on the start date of that phase.
9.3. If the invoice is not paid in time, Bit will first send a reminder, followed by a request for payment. If the Client again fails to pay the invoice within the term mentioned in the request for payment, the Client will be in default. In that event, the Client owes (in addition to the invoice) the statutory commercial interest rate and the collection costs.
9.4. If the Client has any objection against (the amount of) an invoice, the Client will submit its objection within 10 days after the invoice date to Bit in writing.
9.5. The Client is not allowed to set off any claim of Bit with claims that the Client may have on Bit.
10. Required facilities
10.1. During the Sprint 0 planning planning meeting in the Develop Phase, Bit and the Client will determine who will provide the required facilities such as machinery, materials, data, enquiries and further equipment, including, but not limited to, software licenses.
10.2. If other facilities are required during the Assignment, Bit and the Client will discuss these needs to find a proper solution. Bit reserves the right to charge additional expenses if the Client agrees to these expenses.
10.3. The Client reimburses Bit for the costs for any specific equipment and/or facilities required to execute the Assignment if the costs are reasonable and the Client gives its written approval. Bit will provide the Client with proper supporting documentation of the costs incurred. These costs are subsequently included in a separate invoice to the Client.
11. Term of the Agreement
11.1. The Agreement is concluded for a fixed duration, as specified therein.
11.2. If we agree that an Assignment is renewed without signing a new Agreement, the last fully signed Agreement will apply in full.
12. Termination of the Agreement
12.1. The Agreement terminates by operation of law after the delivery of an Assignment. A termination notice is not required.
12.2. Bit or the Client may terminate an Agreement immediately in the following cases:
a) a party has requested or obtained a suspension of payments (surseance van betaling);
b) a party has filed for bankruptcy or has been declared bankrupt;
c) a party is declaring bankrupt, or declares that it intends to file for bankruptcy;
d) a party enters into in or out of court debt or creditor restructuring scheme;
e) a party is dissolved or liquidated;
f) a party is in other respects no longer capable of disposing of its property;
g) a party acts in such a manner that this constitutes a material breach of the fulfilment of the obligations under the Agreement, insofar such breach has not been remedied within 30 days after having notified the other party.
12.3. If Bit suspends its obligations and if performance is permanently impossible, the Client is entitled to terminate the part of the Agreement which is no longer possible to perform. In the event of suspension or termination caused by force-majeure, there is no right to compensation.
12.4. Upon termination of the Agreement for any reason, each party will immediately return to the other party within 5 days, all Confidential Information (as meant in article 16) and materials of such other party and all copies that are in its possession or under its control, or alternatively destroy such Confidential Information, provided that the other party has agreed with the destruction instead of the return of such Confidential Information.
13. Meetings and Control during Assignment
13.1. During the Assignment, the Bit Team and the Client team meet on a (bi) weekly basis.
13.2. The Bit Team and the Client team (including the Engagement Lead Client) will steer the Assignment and decide on the prioritization of work to be done in a week. At any time requested, Bit will notify the Client about the progressions during each phase of the Assignment.
13.3. The Project Manager and the Engagement Lead Client will jointly report on a bi weekly basis to the Responsible Persons or as otherwise agreed between Bit and the Client.
13.4. The priorities of the Assignment, the planned work and the results of the Assignment are stored within Bit’s project management software such as Notion or Pivotal Tracker. The Engagement Lead Client will have access to this software and will have editing rights.
13.5. The Client will receive all access to documentation produced during the Assignment. Bit will hand over all produced documents to the Client at the end of the Assignment.
14. Use of the Results, Intellectual Property and Licenses
14.1. Bit is never able to transfer or (sub)license any intellectual property to the Client if the intellectual property is not owned by Bit. As a result of an Assignment, new (joint) intellectual property may be created (the Result).
14.2. There are different options for agreement on the Result. An option will be chosen in the Agreement. The detailed information about these options and the use of intellectual property of Bit (Bit IP), the Client (Client IP) and the Result are included in Chapter 3 of the Handbook (Intellectual Property and Licences).
14.3. In consultation with the Client, Bit may use the results of the Assignment for marketing purposes such as blogs, social media posts and videos. Certain methods and techniques developed within an Assignment, with respect to intellectual property rights and licenses as mentioned in this article 14, can (partially) be used in other assignments of Bit, provided that all Client’s features have been removed.
15. Non Solicitation
15.1. Bit and the Client will not directly or indirectly contact each other’s employees and staff member in any way to persuade them to end their (employment) agreement or to enter into an (employment) agreement with them within 1 year after the date of termination of the Agreement. An employee may freely and of its own accord apply for a publicly posted job vacancy with the other party.
15.2. If Bit or the Client breaches article 15.1, that party is liable to pay a penalty of EUR 25.000 per breach to the other party who may still claim further damages.
16. Confidentiality
16.1. Bit and the Client must maintain absolute confidentiality about everything that they learn from one another in the context of the Agreement, the Assignment, the IPR, and any and all further information received by the other party (Confidential Information).
16.2. Bit and the Client will not:
(a) disclose Confidential Information to any legal entity or natural person;
(b) use any Confidential Information for its own purposes or for any purposes, other than the lawful purposes of the Company; and
(c) through any material failure to exercise due care and diligence, permit or cause the disclosure of any Confidential Information to any legal entity or natural person.
16.3. Bit and the Client are solely allowed to disclose Confidential Information:
(a) required by applicable law or stock exchange rules or by any competent authority, without there being a reason to challenge the imposed disclosure, but in any case, only after consultation with the Responsible Persons about the timing and content of such disclosure;
(b) disclosure to its professional advisers or, subject to a duty of confidentiality and only to the extent necessary for any lawful purpose concerning Bit and the Client to the Agreement;
(c) to the extent that at the date hereof or hereafter the related Confidential Information has become public knowledge otherwise than through the improper disclosure by any of Bit and the Client.
(d) to affiliated companies, employees or any advisers solely on a ‘need to know’ basis, provided that the Party disclosing Confidential Information to such affiliated companies, employees or advisers on this basis, to the best of its ability, requires such employees or advisers to agree to adhere to the obligation set out in this article 16.
16.4. Bit and the Client will not violate each other’s reputation in any way.
17. Personal Data
17.1. Personal data that is collected by the Client and provided to Bit as part of Bit’s services, is subject to the provisions of the data processing agreement concluded by Bit and the Client.
17.2. Bit and the Client will at all times be responsible to act in accordance with the legal regulations with regard to personal data. If a party provides access to datasets which comprises personal data, that party will indemnify the other party against any liability that can result from improper use of the personal data.
18. Complaints
18.1. If there is any complaint about (a part of) our services, this must be submitted to Bit
in writing or by e-mail, furnished with reasons, within a reasonable time.
18.2. Bit handles complaints reported as soon as possible. Complaints which are not reported on time, will in principle not be handled.
18.3. A complaint will not suspend the (payment) obligations of the Client.
19. Force Majeure
19.1. Bit may suspend its obligations under the Agreement if Bit cannot comply with its obligations because of force-majeure.
19.2. Force-majeure means certain circumstances beyond our reasonable control which causes a delay in, or obstruct the fulfilment of (a part of) our obligations without our fault or negligence, such as the late delivery of materials, lack of (fit) materials, default or wrongful acts of third Bit and the Client engaged by us, liquidity or solvency problems on our part, our supplier’s or any third Bit and the Client engaged by us or any pandemic safety or governmental measures.
20. Liability
20.1. Bit is only liable for direct damages of the Client which are directly and exclusively caused by a failure of Bit, except for wilful intent or gross negligence of Bit
20.2. Bit is not liable if the damages are a consequence of incorrect, incomplete or overdue information provided by the Client.
20.3. Bit’s liability is limited to (i) the amount paid out in a particular case, if any, under the professional liability insurance policy of Bit increased with the applicable amount of any deductible sum (eigen risico) payable by Bit, or (ii) if no insurance payment is made, for whatever reason, the invoice amount of the Assignment which was completed most recently, and with a maximum of EUR 100,000.
20.4. The limitation period of all claims and defences against Bit is 1 year after the Client became or should have become aware of the damages.
20.5. The Client indemnifies Bit against possible claims of third Bit and the Client who incur damages because of the execution of the Assignment and which cause is not attributable to Bit. If third Bit and the Client address Bit to be liable for damages resulting from the execution of the Assignment, the Client will assist Bit in and out of court and will do anything that may be expected from him in that case.
21. Notices
21.1. Any notice, consent, waiver, resolution and other communication under or in connection with the Agreement must be in writing and delivered by hand or sent by courier or by registered mail and will be effective when received or in any event no later than 3 days after dispatch.
21.2. Bit and the Client must use the (email)-addresses as mentioned in the Agreement for the communication. The communication will be made to the attention of the Responsible Persons.
21.3. For ease of communication, Bit and the Client agree that an electronic copy will always be sent by email for reference.
21.4. The provisions of this article 21 will not apply in relation to the service of documents for the purpose of litigation.
21.5. Any communications copied to the respective advisers of Bit and the Client will be for information purposes only and will not constitute a valid notification under the Agreement.
22. Miscellaneous
22.1. If any provision of these Terms or an Agreement should turn out to be null and void or legally invalid, Bit and the Client will remain bound to the other provisions of the Terms or Agreement. Bit and the Client will replace any provision which is null and void or legally invalid by a provision which is legally valid and the purport/consequences of which are as similar as possible to the provision to be replaced.
22.2. Only written amendments to these Terms or an Agreement are valid.
22.3. The obligations undertaken by Bit and the Client have also been undertaken on behalf of their legal successors under universal or particular title.
22.4. Bit and the Client will not be permitted to assign any rights and/or obligations under the Agreement to a third party without the prior written consent in writing of the other party.
23. Dispute Resolution: Applicable law and jurisdiction
23.1. These Terms and any Agreement are solely governed by Dutch law.
23.2. Bit and the Client agree to their maximum reasonable effort to solve a conflict amicably. If that does not work out, the district court of Amsterdam has exclusive jurisdiction to hear all disputes ensuing from these Terms or the Agreement.