Terms of Service
Background
These general service terms and conditions (the “General Terms”) shall apply to all offers and orders that are made by and to MarvelX AI B.V., company registration number 96622970, a company duly organized and existing under the laws of the Netherlands, having its registered address at Haarlemmerweg 1134, 1014BL, Amsterdam, The Netherlands (“MarvelXAI”), to and by any customer (the “Customer”) regarding the Services (as defined below). These General Terms shall govern the Customer’s access to and use of the Services and form an integral part of the Agreement (as defined below).
1. Definitions
In this Agreement, the following terms, each with a capital letter, have the following meaning:
“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with a Party;
“Fees” means any fees, costs and charges payable by the Customer to MarvelXAI under the Agreement;
“Service(s)” means all services offered by MarvelXAI, which MarvelXAI performs for and on behalf of the Customer, as specified in the Services Description;
“Intellectual Property Rights” means all intellectual property rights and related rights anywhere in the world, including, but not limited to, patent rights, copyrights, neighboring rights, trademark rights, design rights, database rights and rights to know-how.
“Start Date” means the date agreed between MarvelXAI and the Customer as specified in the Specification.
“User” means the Customer, its Affiliates, and/or any third party, and each of their respective employees, officers, directors, and representatives that, directly or indirectly, accesses or uses any of the Services provided to the Customer under the Agreement and/or any Customer Content;
2. Provision of the Services
2.1 MarvelXAI shall make the Services available from the Start Date, in accordance with the terms of the Agreement.
2.2 From the Start Date, the Customer may access and use the Services in accordance with the terms of the Agreement.
2.3 Unless expressly agreed otherwise in writing, the specified deadlines do not qualify as strict deadlines (‘fatale termijnen’). Exceeding these deadlines does not cause MarvelXAI to be in default.
2.4 MarvelXAI shall provide the Services with reasonable skill and care and shall comply with applicable laws and regulations with respect to its provision of the Services under the Agreement.
2.5 MarvelXAI has the right to engage third parties where necessary for the proper execution of the Agreement.
2.6 MarvelXAI will exercise reasonable care in selecting and overseeing such third parties but is not liable for their independent errors or shortcomings. However, MarvelXAI remains responsible for its own obligations under the Agreement and will make reasonable efforts to mitigate any issues arising from third-party performance. MarvelXAI is also entitled to accept general terms and conditions of third parties on behalf of the Customer and may object to these terms and conditions insofar as they relate to the performance of the work by the third party.
2.7 MarvelXAI provides the Services “AS IS”. Except to the extent prohibited by mandatory law, MarvelXAI: (a) makes no representations or warranties of any kind, whether express, implied, statutory or otherwise regarding the Services; and (b) disclaims all warranties, including any implied or express warranties (i) of merchantability, satisfactory quality, fitness for a particular purpose, non-infringement, or quiet enjoyment, (ii) arising out of any course of dealing or usage of trade, (iii) that the Services will be uninterrupted, error free or free of harmful components, and (iv) that any content will be secure or not otherwise lost or altered. For the avoidance of doubt, MarvelXAI shall not be responsible for any problems, conditions, delays, delivery failures or any other loss or damage and the Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of the Services.
2.8 All assignments are considered to be given exclusively to MarvelXAI. The responsibility for the performance of the Services rests on MarvelXAI and not on its employees, even if it is the express or implied intention that an assignment will be carried out by a specific natural person associated with it. The operation of art. 7:404, 7:407 paragraph 2 and 7:409 Dutch Civil Code (Burgerlijk Wetboek) is excluded.
2.9 The Customer shall ensure that all data, of which MarvelXAI indicates that they are necessary or which the Customer should reasonably understand to be necessary for the performance of the Agreement, is provided to MarvelXAI in a timely manner. If the information required for the implementation of the Agreement has not been provided to MarvelXAI in time, MarvelXAI has the right to suspend the implementation of the Agreement and/or to charge the Customer the additional costs resulting from the delay in accordance with the usual rates. MarvelXAI is not liable for damage, of any nature whatsoever, caused by the fact that MarvelXAI relied on incorrect and/or untimely, and/or incomplete information provided by the Customer.
2.10 The Customer accepts that the time schedule of the Services can be influenced if the Parties agree in the meantime to expand or change the approach, working method or scope of the Services. If the interim change affects the agreed Fee, MarvelXAI will report this to the Customer as soon as possible. If an interim change in the Services arises through the fault of the Customer and this leads to additional work, this will be confirmed as an additional assignment from the Customer.
3. The Customer’s Use of the Services
3.1 The Customer is granted a limited, non-exclusive, non-sublicensable (except to Users), non-transferable and revocable right to access and use the Services in accordance with the Agreement. Such access and use of the Services is limited to the term, Users and other details specified in the Agreement.
3.2 The Customer shall:
provide all information necessary for MarvelXAI to perform its obligations under the Agreement, and to verify the Customer’s compliance with the Agreement;
ensure that all information provided to MarvelXAI by the Customer is accurate, complete and not misleading.
ensure that the Customer’s (and any User’s) access and use of the Services do not infringe the Intellectual Property Rights of any third party;
not access or use (nor allow the access or use of) the Services in any way to avoid incurring Fees or exceeding usage limits under the Agreement;
unless explicitly agreed, not (i) copy, modify, duplicate, create derivative works of, or distribute all or part of the Services; (ii) de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or part of the Services (except to the extent applicable law does not allow such restrictions);
ensure that information provided by MarvelXAI for access to and use of the Services (including without limitation account, login and security information) are kept confidential in accordance with the General Terms, and shall notify MarvelXAI immediately in the event of becoming aware of any unauthorised access or use of the Services;
The Customer shall ensure that each User complies with the Customer’s obligations under the Agreement in connection with access to and use of the Services, and that Users shall not access or use the Services in any manner or for any purpose other than as expressly permitted by the Agreement. The Customer shall be solely responsible and liable for any and all acts and omissions of Users as if they were the acts and omissions of the Customer under the Agreement.
4. Fee and payment
In consideration of the Services to be provided by MarvelXAI, the Customer shall pay the Fees to MarvelXAI.
All rates are exclusive of VAT unless explicitly stated otherwise by MarvelXAI. Any agreed advances will be settled by MarvelXAI with the first invoice that is sent in connection with the agreed advances.
Payments must be received by MarvelXAI within a period of fourteen (14) days after the invoice date, unless agreed otherwise. Payment is made in the manner indicated by MarvelXAI on the invoice.
In the event of overdue payment, the amount due is payable immediately and the Customer is in default without further notice of default. In that case, MarvelXAI will send a first payment reminder. If the Customer does not respond to this reminder, MarvelXAI is entitled to hand over the collection and to increase the amount due with administration and collection costs. In addition, upon overdue payments MarvelXAI is entitled to terminate the Agreement with immediate effect by written notice and to receive damages for any and all loss incurred by MarvelXAI due to such late payment and termination of the Agreement.
5. Suspension
MarvelXAI may, without liability or prejudice to its other rights or remedies under the Agreement, suspend, restrict or disable any access or use of the Services (including part thereof) if: (a) the Customer is in breach of its payment obligations under section 7; (b) MarvelXAI reasonably believes that the Customer or any User is in breach of the Agreement; (c) the provision of the Services is in breach of applicable laws; and/or (d) needed to make changes to the Services for the purposes of corrections, updates, security, emergency maintenance and/or compliance with applicable laws. The Customer shall remain responsible for all Fees accruing during the period of such suspension, restriction or disablement.
6. Duration, cancellation and termination
6.1 The Agreement will take effect on the date of signature and will remain in force for the duration as agreed in the Specification.
6.2 Except in cases of force majeure, each of the Parties is entitled to terminate the Agreement in whole or in part if the other Party is in default in the performance of one or more of its obligations under the Agreement, unless the default, given its minor significance or special nature, does not justify the termination. The omission will only take effect after the relevant Party has been given a proper and written notice of default, whereby it has been given a reasonable period to fulfill its obligations. In the case of a shortcoming by MarvelXAI, this reasonable period is at least thirty (30) days. A notice of default is not required if the shortcoming can no longer be corrected.
6.3 Each of the Parties is entitled at all times, without judicial intervention and without liability to the other Party, to terminate this Agreement if:
(a) the other party is in a state of bankruptcy or has filed for bankruptcy;
(b) the other party has been granted, or has requested, suspension of payment;
(c) the other party offers a creditors' agreement to its creditors;
(d) the other party has ceased its activities or if a prejudgment attachment has been levied on its assets.
If one of the Parties terminates the Agreement on the basis of Article 6.2 or 6.3, it is not obliged to pay any compensation, directly or indirectly.
6.4 Subject to the contract period agreed in the Specification, the Customer shall have the right to terminate their subscription to the MarvelXAI services on a monthly basis. To exercise this right, the Customer must provide written notice of cancellation to MarvelXAI B.V. at least 30 days prior to the intended date of cancellation. This notice must be sent to the designated contact address or email provided by MarvelXAI for such purposes.
6.5 Upon receipt of a valid cancellation notice, the subscription will be terminated effective as of the end of the billing cycle immediately following the expiration of the notice period. The Customer will be responsible for all charges incurred until the termination becomes effective. No pro-rata refunds will be provided for cancellation within an ongoing billing cycle.
6.6 MarvelXAI reserves the right to modify the terms of the monthly cancellation right upon providing reasonable notice to the Customer, which shall not be less than 90 days. Such modifications will take effect at the start of the billing cycle following the expiration of the notice period, unless the Customer elects to cancel their subscription in accordance with the terms of this section prior to the modifications taking effect.
7. Confidentiality
7.1 All information from one Party that comes to the knowledge of the other Party during the execution of this Agreement that is orally or in writing, or of which the receiving Party could reasonably have understood to be confidential, will be kept strictly confidential by the receiving Party. The receiving party will only use the information for the execution of the Agreement and will restrict access to that information to persons who need to have access to it for that purpose. The receiving Party guarantees that these persons are bound to a duty of confidentiality through an employment contract and/or a confidentiality agreement. However, a Party may disclose such information to the extent such Party is obliged to do so according to (a) applicable law; (b) any court or authority's judgment or decision; (c) mandatory stock exchange rules or equivalent; or (d) the course of a dispute or other legal proceedings regarding the Agreement.
7.2 Confidential information does not include information that was public at the time it became known to the receiving Party or that subsequently became public without the involvement of the receiving Party, or that the receiving Party received from a third party that was not bound to a duty of confidentiality.
8. Intellectual Property Rights and use of data
8.1 All current and future Intellectual Property Rights on the results of the Services and the ensuing activities for the execution of the Agreement, including – but not limited to – models, methodologies, instruments, reports, advice, assignments, designs, sketches, drawings, database rights, software and software applications, are held exclusively by MarvelXAI.
8.2 All Intellectual Property Rights to (parts of) products developed exclusively and specifically for the Customer shall vest in the Customer from inception, except for pre-existing tools, libraries, or methodologies owned by MarvelXAI, which remain MarvelXAI property.
8.2.1 All documents provided by MarvelXAI in the context of the Agreement and by the provision of the Services are exclusively intended for use by the Customer. Except with the express prior written consent of MarvelXAI, the Customer is not permitted to reproduce, publish, exploit or make available to third parties these documents, including the results that have not been recorded but have been provided orally. Persons who work within the organization of the Customer, for whom it is not necessary to use or view the relevant documents, are also considered third parties in this respect.
8.2.2 MarvelXAI may use documents and knowledge provided by the Customer solely for the execution of the agreed-upon use case(s) under this Agreement. Under no circumstances shall MarvelXAI use, disclose, or process any Customer business documents, data, or information, including that which may be indexed or processed by MarvelXAI, for purposes outside the specified use case(s) without the Customer's prior written consent. If any data is used for research purposes, it will only be done in an anonymized and aggregated form, ensuring that no confidential information is disclosed to third parties.
9. Data protection
9.1 The Parties shall comply with their respective obligations under applicable data protection laws.
9.2 If MarvelXAI gains access to personal data of the Customer and/or of Customers of the Customer during the execution of the Agreement, the Customer will be regarded as the data controller for this processing of personal data within the meaning of the General Data Protection Regulation (AVG). In that case, specific agreements between MarvelXAI and the Customer will be laid down in a Data Processing Agreement (DPA) that shall form an integral part of the Agreement.
10. Guarantees and indemnifications
10.1 MarvelXAI guarantees that the Services provided will be in accordance with the Agreement and that it will make every effort to achieve the desired results. Unless otherwise agreed in writing, MarvelXAI does not guarantee that the results of the Services and the resulting work performed by MarvelXAI and the resulting recommendations to the Customer will produce the desired result for the Customer.
10.2 The Customer guarantees that it is fully authorized to enter into the Agreement and will therefore not violate the rights of third parties or contractual obligations towards third parties.
10.3 The Customer will defend, indemnify, and hold MarvelXAI, and its employees, officers, directors, and representatives harmless from and against any liability, losses, damages, costs and expenses arising out of or relating to any third party claim concerning (a) financial claims and claims in connection with Intellectual Property Rights on the materials or data provided by the Customer that suffer damage in connection with the execution of the Agreement, (b) the Customer’s or any Users’ use of the Services; (b) breach of the Agreement or violation of applicable laws by the Customer, Users or the Customer Content; or (c) the relationship between the Customer and any User. Such indemnity shall not be subject to the limitations of liability set out in the General Terms.
11. Limitation of Liability
11.1 Any liability on the part of MarvelXAI for an attributable shortcoming in the performance of the Agreement arises only if MarvelXAI has been notified in writing by the Customer immediately and no later than one month after discovery of the shortcoming, whereby MarvelXAI has a reasonable period of at least thirty days to properly fulfill its obligations.
11.2 The total liability of MarvelXAI due to an attributable shortcoming in the performance of this Agreement or for any other reason, is limited to compensation for direct damage up to a maximum of the amount that is paid for the services.
11.3 If the insurer, for legitimate reasons attributable to MarvelXAI, does not pay any compensation on behalf of the Customer, the total liability of MarvelXAI is at all times limited to reimbursement of an amount equal to the total amount invoiced to the Customer for Services provided in the twelve (12) months immediately preceding the event that caused the damage, or, if the partnership has not yet lasted twelve (12) months, the amount invoiced during the term of the partnership. In all cases, this amount shall not exceed a maximum of €25,000 (twenty-five thousand euros). MarvelXAI will not invoke this limitation of liability if the damage is the result of intent or gross negligence on its part.
11.3.1 Each Party’s liability shall be limited to the fifteen percent (15%) of the aggregate amounts paid and payable by the Customer for the Service(s) during the twelve (12) month period preceding the event for which damages are claimed.
11.3.2 Each Party’s liability under this Agreement shall be limited to direct damages only and neither Party shall be liable, whether due to negligence, breach of the Agreement, misrepresentation or otherwise, for any indirect or consequential loss or damage howsoever arising, including loss of revenue, loss of profits or turnover, loss of data, loss of goodwill, loss of anticipated business or savings, or other indirect or consequential loss, irrespective of whether or not such loss or damage can be deemed foreseeable by a Party.
11.3.3 The limitations of liability of a Party set forth in this section 11 shall not apply in the event of: (i) wilful misconduct or gross negligence of such Party; or (ii) to any indemnification obligation of such Party set out under this Agreement.
12. Force Majeure
12.1 A Party shall be entitled to suspend the performance of its obligations under the Agreement where such performance is prevented by a circumstance which is beyond such Party’s control and which such Party could neither have foreseen nor reasonably should have foreseen in conjunction with the conclusion of the Agreement (“Force Majeure”). Force Majeure may include, inter alia, war or a state of affairs similar to war, mobilisation or military conscription of a corresponding extent, revolt and rebellion, terrorism, sabotage, fire, floods, natural catastrophes, epidemics, pandemics, disruptions to public communications, disruptions to the public power networks, strikes, lock-outs or other general local labour market conflicts, requisition, seizure, decisions by public authorities, trade, payment or currency restrictions, or circumstances equivalent thereto. The same applies where the Force Majeure event exists for a Party's counterparties.
12.2 In the event a Party is prevented from performing its obligations under the Agreement due to a Force Majeure event during a continuous period exceeding three (3) months, either Party shall be entitled to terminate the Agreement with immediate effect.
12.3 A Party shall not be liable for damage or loss which arises for the other Party as a consequence of the postponement of the performance of the Agreement, or that the Agreement is terminated due to a Force Majeure event.
12.4 If a Party wishes to invoke a Force Majeure event in accordance with this section 13, it shall give notice thereof to the other Party when there is a risk for failure or delay to perform an obligation under this Agreement. In the absence of such notice, the Party shall not be discharged from liability for any damage which could have been avoided had notice been given in due time.
13. Miscellaneous
13.1 Interpretation. The headings in the Agreement are for ease of reference only and shall not affect the interpretation of any provision of the General Terms.
13.2 Severability. If any provision of the Agreement or part thereof is held to be unenforceable, the Agreement will continue to be in force and if the unenforceability will have an effect on a Party’s rights or obligations according to the Agreement, the Agreement shall be modified on reasonable grounds.
13.3 Amendment and waivers. No modification or amendments of the Agreement shall be effective or enforceable unless made in writing and signed by both Parties, unless otherwise expressly stated in the Agreement. In no event shall any delay, failure or omission of a Party in enforcing, exercising or pursuing any right, claim or remedy under the Agreement be deemed as a waiver thereof, unless such right, claim or remedy has been expressly waived in writing.
13.4 Assignment. The Customer shall not be entitled to assign its rights or obligations under this Agreement without the prior written consent of the other Party. MarvelXAI may assign its rights and obligations under the Agreement to a third party without the approval of the Customer.
13.5 Notices. Unless otherwise specified in the Agreement, all requests, notifications, demands or other notices under the Agreement shall be in writing and sent by one Party to the other Party at the address specified in the Agreement (or to the address which a Party subsequently notifies to the other Party in writing in accordance with the provisions of this section 13.5). Such notices shall be deemed to have been received by the recipient if:
(a) delivered by courier, upon delivery to the recipient;
(b) sent by registered mail, five (5) days after dispatch; or
(c) sent by email which has been confirmed by the recipient, at the date and time the email arrives at the receiving Party’s email address.
14. Governing law and Dispute Resolution
14.1 This Agreement shall be governed by the substantive law of the Netherlands.
14.2 All disputes arising out of or in connection with the Agreement shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce (ICC) by one or more arbitrators appointed in accordance with the said Rules. The place of arbitration shall be [City, Country]. The language of the arbitration shall be [Language].
14.3 The Parties undertake and agree that all arbitral proceedings conducted with reference to this arbitration clause will be kept strictly confidential. This confidentiality undertaking shall cover all information disclosed in the course of such arbitral proceedings, as well as any decision or award that is made or declared during the proceedings. Information covered by this confidentiality undertaking may not, in any form, be disclosed to a third party without the written consent of the other Party. This notwithstanding, a Party shall not be prevented from disclosing such information in order to safeguard in the best possible way its rights vis-à-vis the other Party in connection with the dispute, or if the Party is obliged to so disclose pursuant to statute, regulation, a decision by an authority, applicable stock exchange regulations or the regulations of any other recognised marketplace.
14.4 In case this Agreement or any part of it is assigned or transferred to a third party, such third party shall automatically be bound by the provisions of this arbitration clause.
