Terms of Service

Effective Date: 01-05-2024

1. Definitions

1.1. Terms and Conditions: these conditions.

1.2. Customer: the natural or legal person with whom BestReply B.V. has entered into an Agreement. It also refers to anyone negotiating with BestReply B.V. about an Agreement, as well as their representatives, authorized persons, legal successors, and heirs.

1.3. Quotation: an offer from BestReply B.V. for the provision of the SaaS service.

1.4. Agreement: the Agreement between BestReply B.V. and the Customer.

1.5. BestReply B.V: established in Groningen and registered with the Chamber of Commerce under number 52880419.

1.6. SaaS service: an online platform through which users can train personalized AI models. These models can be integrated into various communication channels to automatically answer customer inquiries and improve communication efficiency.

2. Applicability of the Terms and Conditions

2.1. These Terms and Conditions apply to all Quotations and Agreements where BestReply B.V. provides the SaaS service to the Customer.

2.2. Deviations from and additions to these Terms and Conditions are only valid if agreed upon in writing between the parties.

2.3. The applicability of purchase or other terms from the Customer is explicitly rejected.

2.4. If and to the extent that BestReply B.V. provides or grants access to products or services of third parties to the Customer, the (license or sales) terms of the relevant third parties apply to the relationship between BestReply B.V. and the Customer, notwithstanding any deviating provisions in these Terms and Conditions, provided that BestReply B.V. has notified the Customer of the applicability of the third-party terms and has provided a reasonable opportunity for the Customer to review these terms. Contrary to the previous sentence, the Customer cannot claim failure by BestReply B.V. to meet this obligation if the Customer is a party as referred to in Article 6:235(1) or (3) of the Dutch Civil Code (BW).

2.5. If and to the extent that the third-party terms are not applicable or are declared inapplicable for any reason, these Terms and Conditions remain fully in effect.

2.6. If any provision of these Terms and Conditions is void or annulled, the remaining provisions of these Terms and Conditions remain in full force. In such a case, BestReply B.V. and the Customer will consult to agree on new provisions as closely aligned as possible with the purpose of the invalid or annulled provisions.

2.7. Without prejudice to the provisions of Article 2.6, in the event of any conflict between agreements made by the parties, the provisions of these Terms and Conditions apply unless the parties have explicitly deviated in writing, referring to these Terms and Conditions. In the case of conflict between provisions from different chapters of these Terms and Conditions, the provisions of an earlier chapter take precedence unless explicitly stated otherwise.

2.8. The legal relationship between the Customer and BestReply B.V. is an assignment agreement. The applicability of Articles 7:404 and 7:407(2) of the Dutch Civil Code is expressly excluded.

3. Offers

3.1. All Quotations from BestReply B.V. are non-binding unless otherwise stated in writing. Quotations do not apply to future Agreements. The Customer guarantees the accuracy and completeness of the information provided by or on behalf of them to BestReply B.V. on which the Quotation is based. Apparent errors in the Quotation and other expressions do not bind BestReply B.V.

4. Price and Payment

4.1. The Customer can use the SaaS service for 30 days free of charge according to the Agreement, and the conditions included in these Terms and Conditions apply during this period. Afterward, the Customer owes the fee for the SaaS service stated in the Agreement. In the absence of an agreed payment schedule, all amounts related to the SaaS service provided by BestReply B.V. are due monthly in advance.

4.2. All prices are exclusive of VAT and other product- or service-specific government levies. All prices communicated by BestReply B.V. are in euros, and the Customer must pay in euros.

4.3. If the Customer consists of multiple natural and/or legal persons according to the Agreement, each of those (legal) persons is jointly and severally liable for fulfilling the Agreement towards BestReply B.V.

4.4. With regard to the services provided by BestReply B.V. and the amounts owed by the Customer, the data from BestReply B.V.'s administration constitute full proof, without prejudice to the Customer’s right to provide counter-evidence.

4.5. The parties will record in the Agreement the date(s) on which BestReply B.V. will invoice the Customer for the agreed services. Amounts owed are paid by the Customer according to the agreed or invoiced payment terms. The Customer is not entitled to suspend any payment or to set off any amounts owed.

4.6. BestReply B.V. applies a payment term of 30 days.

4.7. If the financial position and/or payment behavior of the Customer, in the opinion of BestReply B.V., gives cause to do so, BestReply B.V. is entitled to require the Customer to provide (additional) security in a form determined by BestReply B.V.

4.8. If the Customer fails to pay the amounts owed on time, they are automatically in default, without the need for a reminder or notice of default, and they owe contractual interest of 1% per month on the overdue amounts from the default date, unless the statutory (commercial) interest is higher, in which case the statutory (commercial) interest applies. If BestReply B.V. needs to take collection measures after the invoice due date, the Customer is liable for extrajudicial costs. The amount of these costs is 15% of the principal sum, with a minimum of €250. This does not affect the other statutory and contractual rights of BestReply B.V.

4.9. BestReply B.V. is entitled to suspend its obligations if the Customer does not comply fully with the obligations under this article, without being liable for damages to the Customer.

4.10. The SaaS service (and any associated support) provided by BestReply B.V. will commence within a reasonable time after the Agreement has been concluded. If not otherwise agreed, the SaaS service starts by BestReply B.V. making available the means to access the service. The Customer must ensure that they have the necessary facilities for using the SaaS service immediately after the Agreement is concluded.

5. Duration of the Agreement

5.1 The Agreement is concluded for a period of 12 months. After this period, the Agreement will be tacitly renewed for consecutive periods of 12 months each. The Agreement can be terminated by either party with one month’s notice.

6. Confidentiality

6.1 The Customer and BestReply B.V. will ensure that all information received from the other party, which is known or should reasonably be known to be confidential, remains secret. This prohibition does not apply if and to the extent that the disclosure of the information is required by a court ruling, a statutory provision, a legally mandated order from a government body, or for the proper performance of the Agreement. The party receiving confidential information will only use it for the purpose for which it was provided. Information will be considered confidential if designated as such by either party or if this follows from the nature of the information.

6.2 The Customer acknowledges that the software made available by or through BestReply B.V. always has a confidential nature and contains trade secrets of BestReply B.V.

6.3 This article remains in effect after the end of the Agreement between the parties.

7. Intellectual Property

7.1 All (future) intellectual property rights, including but not limited to: trademark rights, patent rights, design rights, copyrights and related rights, trade name rights, database rights, know-how, trade secrets, and domain names concerning the software, websites, databases, devices, training, test, and examination materials or other materials developed or made available to the Customer under the Agreement, rest solely with BestReply B.V., its licensors, or its suppliers. The Customer is not allowed to claim any intellectual property rights belonging to BestReply B.V., its licensors, or its suppliers. The Customer only obtains the usage rights explicitly granted under these Terms and Conditions, the written Agreement between the parties, and mandatory statutory law. A right of use granted to the Customer is non-exclusive, non-transferable, non-pledgeable, and non-sub-licensable.

7.2 Any provision, disclosure, or communication, whether through an offer or Agreement, of software, products, data, or services to the Customer will never constitute a transfer of intellectual property rights.

7.3 The Customer will not remove or modify any indication(s) regarding the confidential nature, or any authorship, trademark, trade name, or any other intellectual property rights from the software, websites, databases, devices, or materials.

7.4 The Customer guarantees that no third-party rights prevent the availability of devices, software, website materials, databases, and/or other materials, designs, and/or other works provided to BestReply B.V. for use, maintenance, modification, installation, or integration, including the proper licenses for these. The Customer indemnifies BestReply B.V. against any third-party claim based on the infringement of any third-party right resulting from the availability, use, maintenance, modification, installation, or integration of the SaaS service.

7.5 BestReply B.V. is entitled to use the Customer’s logo, brand, or name in its external communications without prior consent from the Customer.

7.6 If the Customer violates any obligation under this article, the Customer owes BestReply B.V. an immediately payable penalty of €25,000 (in words: twenty-five thousand euros) per violation or per day, without prejudice to any right of BestReply B.V. to claim compensation or enforcement or other measures available to BestReply B.V. under the law.

7.7 This article remains in effect after the end of the Agreement between the parties.

8. Execution of the SaaS Service

8.1 BestReply B.V. will use its best efforts to perform services with care, where applicable in accordance with the written agreements and procedures established with the Customer. All services of BestReply B.V. are performed on a best-efforts basis unless and to the extent that BestReply B.V. has expressly committed to a result in the written Agreement and the specific result has been clearly defined in the Agreement.

8.2 BestReply B.V. is not liable for damages or costs resulting from the use or misuse of access or identification codes, certificates, or other security measures unless the misuse is directly caused by the intent or deliberate recklessness of BestReply B.V.'s management.

8.3 BestReply B.V. is not obliged to follow instructions from the Customer during the performance of its services, especially if such instructions concern changes or additions to the agreed services. If such instructions are followed, the corresponding work will be reimbursed according to BestReply B.V.'s usual rates.

8.4 BestReply B.V. is authorized to engage third parties for the performance of services without the Customer's consent.

8.5 BestReply B.V. provides the SaaS service on behalf of the Customer. The Customer may only use the SaaS service for its own business or organization, and only to the extent necessary for the intended use by BestReply B.V. The Customer is not permitted to allow third parties to use the SaaS service provided by BestReply B.V.

8.6 BestReply B.V. may make changes to the content or scope of the SaaS service. If such changes are substantial and result in changes to the Customer’s procedures, BestReply B.V. will inform the Customer as soon as possible.

8.7 BestReply B.V. may continue to perform the SaaS service using a new or modified version of the underlying software. BestReply B.V. is not obliged to maintain, change, or add specific features or functionalities of the service specifically for the Customer.

8.8 BestReply B.V. may temporarily suspend the SaaS service, in whole or in part, for preventive, corrective, or adaptive maintenance or other forms of service. BestReply B.V. will not allow the suspension to last longer than necessary and, where possible, will schedule it at times when the SaaS service is typically used the least.

8.9 BestReply B.V. is never obliged to provide the Customer with a physical carrier or download of the underlying software.

8.10 BestReply B.V. may set a maximum limit on the amount of storage space or data traffic per month that the Customer may use within the framework of the SaaS service. The Customer will not exceed these limits unless the Customer has accepted a proposal from BestReply B.V. to expand the Agreement. If the maximum is exceeded, BestReply B.V. is entitled to charge an additional fee according to the amounts for additional data traffic specified in the Agreement. If no storage or data limits are agreed, the fair use policy of BestReply B.V. applies.

8.11 BestReply B.V. does not provide any guarantees or result obligations regarding the loading speed or availability of the SaaS service.

9. Support Services

9.1 If the service provided by BestReply B.V. under the Agreement includes support to users and/or administrators of the SaaS service, BestReply B.V. will advise on the use and functionality of the SaaS service mentioned in the Agreement via online, telephone, or email. The Customer will describe notifications regarding support as fully and in detail as possible, so that BestReply B.V. has the opportunity to respond adequately. BestReply B.V. may set conditions for the manner of reporting, qualifications, and the number of persons eligible for support. BestReply B.V. will handle well-founded support requests within a reasonable timeframe, according to its usual procedures. BestReply B.V. does not guarantee the accuracy, completeness, or timeliness of responses or support provided. Support is provided on business days during the usual office hours of BestReply B.V.

9.2 The Customer has the option to export their data from the SaaS service. In the case of lost Customer data, the Customer may send a request to BestReply B.V. to restore such data. This will be done based on the applicable hourly rate of BestReply B.V., and a separate Quotation will be provided. The Customer is responsible for complying with all legal administration and retention obligations applicable to them.

10. Notice and Takedown (NTD)

10.1 The Customer will always act carefully and will not act unlawfully towards third parties, in particular by respecting the intellectual property rights and other rights of third parties, respecting the privacy of third parties, respecting the honor and reputation of third parties, respecting the sexual privacy of third parties, not distributing data in violation of the law, not gaining unauthorized access to systems, not distributing viruses or other harmful programs or data, and refraining from criminal acts and violation of any other legal obligation.

10.2 To prevent liability towards third parties or to limit its consequences, BestReply B.V. is always entitled to take measures concerning an action or omission by or for which the Customer is responsible. The reasonable costs associated with these measures will be borne by the Customer. Upon first written request from BestReply B.V., the Customer will promptly remove data and/or information from BestReply B.V.'s systems; failing this, BestReply B.V. is entitled to remove the data and/or information itself or block access to it. Furthermore, BestReply B.V. is entitled to immediately deny the Customer access to its systems in the event of a violation or impending violation of this article, without prior notice. The foregoing does not affect any other measures or the exercise of other legal and contractual rights by BestReply B.V. against the Customer. In such cases, BestReply B.V. is also entitled to terminate the Agreement with immediate effect, without being liable to the Customer.

10.3 BestReply B.V. cannot be required to form a judgment about the validity of third-party claims or the Customer's defense or be involved in any dispute between a third party and the Customer. The Customer will have to deal with the relevant third party and must inform BestReply B.V. in writing, providing evidence supported by documents.

10.4 BestReply B.V. is not responsible or liable for the content that the Customer makes available to third parties via the SaaS service.

11. Warranty

11.1 BestReply B.V. does not guarantee that the SaaS service will be error-free or function without interruptions. BestReply B.V. will make reasonable efforts to correct errors in the underlying software within a reasonable time if and to the extent that the underlying software was developed by BestReply B.V. and the relevant errors have been reported to BestReply B.V. in writing by the Customer with sufficient detail. In such cases, BestReply B.V. may postpone the correction of errors until a new version of the underlying software is released. BestReply B.V. does not guarantee that errors in the SaaS service not developed by BestReply B.V. will be fixed.

11.2 Based on the information provided by BestReply B.V. about measures to prevent and limit the consequences of malfunctions, errors, and other imperfections in the SaaS service, data corruption, or data loss, the Customer will assess the risks to their organization and take any additional measures as needed. BestReply B.V. is willing to reasonably cooperate with further measures taken by the Customer upon request, subject to financial terms set by BestReply B.V. BestReply B.V. is never required to restore corrupted or lost data other than by restoring the most recent backup available, if possible.

11.3 BestReply B.V. does not guarantee that the SaaS service will be adapted in time to changes in relevant laws and regulations.

11.4 The SaaS service and all associated information and functionality are of a supportive nature. BestReply B.V. does not guarantee that:

• the results of the SaaS service are complete;
• the information on the SaaS service is complete;
• the Customer fully complies with the legal requirements applicable to the Customer under laws and regulations through the use of the SaaS service.

12. Information and Other Cooperation Obligations

12.1 The parties acknowledge that the success of activities in the field of information and communication technology depends on proper and timely cooperation between the parties. The Customer will always provide reasonable cooperation and will inform BestReply B.V. of relevant facts and circumstances in a timely manner.

12.2 The Customer is responsible for the accuracy and completeness of the data, information, designs, and specifications provided by or on behalf of the Customer to BestReply B.V., even if they originate from third parties. The data, information, designs, and specifications must be provided in the form and manner requested by BestReply B.V. If the information provided by the Customer contains inaccuracies that are recognizable to BestReply B.V., BestReply B.V. will inquire with the Customer.

12.3 The Customer is responsible for managing the settings, the use of the products and/or services provided by BestReply B.V., and the manner in which the results of the products and services are used. The Customer is also responsible for providing instruction to and managing the users.

12.4 The Customer will arrange for the necessary equipment, infrastructure, and supporting software, install the necessary (auxiliary) software on their own equipment, configure, parameterize, tune, and, if necessary, modify the equipment, other (auxiliary) software, and usage environment and keep them up to date to achieve the desired interoperability.

12.5 If the Customer fails to comply with any of the obligations under this article, BestReply B.V. has the right to suspend its own obligations in whole or in part. The resulting costs are the responsibility of the Customer, without prejudice to the right of BestReply B.V. to exercise any other legal right.

13. Deadlines

13.1 BestReply B.V. will make reasonable efforts to adhere to the deadlines and/or delivery dates mentioned or agreed upon between the parties. Any intermediate (delivery) dates agreed upon or mentioned by BestReply B.V. are always target dates, not binding, and should not be considered fatal dates, as they have an indicative nature.

13.2 If a delay is expected, BestReply B.V. and the Customer will consult to discuss the consequences of the delay for further planning.

13.3 A single delay in an agreed (delivery) deadline or (completion) date does not result in BestReply B.V. being in default. In all cases – even if an agreed (delivery) deadline or (completion) date is exceeded – BestReply B.V. will only be in default after the Customer has issued a detailed written notice of default, setting a reasonable period for remedying the shortcoming, and BestReply B.V. has failed to fulfill its obligations within this period. The notice of default must include a description of the shortcoming as complete and detailed as possible to allow BestReply B.V. to respond adequately.

13.4 If it has been agreed that the work will be performed in phases, BestReply B.V. is entitled to postpone the start of the activities belonging to a phase until the Customer has approved the results of the preceding phase in writing.

13.5 BestReply B.V. is not bound by a final (delivery) deadline or (completion) date if the parties have agreed to change the content or scope of the Agreement (e.g., additional work, change of specifications, etc.) or if the Customer fails to meet its obligations arising from the Agreement on time or in full. The occurrence of additional work during the execution of the Agreement never constitutes grounds for the Customer to terminate or dissolve the Agreement.

14. Termination and Cancellation of the Agreement

14.1 Each party is entitled to terminate the Agreement due to an attributable failure to perform the Agreement if the other party, in all cases after a detailed written notice of default has been issued, setting a reasonable period for remedying the shortcoming, fails to fulfill essential obligations under the Agreement. Payment obligations of the Customer and all obligations of cooperation and/or provision of information by the Customer or a third party engaged by the Customer are considered essential obligations under the Agreement.

14.2 If the Customer has already received services under the Agreement at the time of termination, these services and the corresponding payment obligations will not be subject to undoing unless the Customer proves that BestReply B.V. is in default concerning the essential part of those services. The amounts invoiced by BestReply B.V. prior to termination for what has already been performed or delivered in accordance with the Agreement remain fully payable, taking into account the previous sentence, and become immediately due upon termination.

14.3 The Customer is not entitled to prematurely terminate an assignment Agreement that has been concluded for a fixed term or an Agreement that ends by fulfillment.

14.4 Each party may terminate the Agreement in writing without notice with immediate effect if the other party is granted suspension of payments, if bankruptcy is filed against the other party, if the business of the other party is liquidated or terminated other than for the purpose of restructuring or merging businesses. BestReply B.V. may also terminate the Agreement without notice with immediate effect if the controlling interest in the Customer's business changes, directly or indirectly. BestReply B.V. is never liable for the refund of amounts already received or for compensation in the event of termination as described in this article. In the event of the Customer's bankruptcy, the Customer's right to use the software, websites, and similar services provided by BestReply B.V. and the Customer's right to access or use BestReply B.V.'s services will automatically terminate, without the need for any notice of termination by BestReply B.V.

15. Liability of BestReply B.V.

15.1 BestReply B.V. is only liable for direct damage. In this article, direct damage refers to property damage, reasonable costs to prevent property damage, and reasonable extrajudicial costs. Direct damage is limited to a maximum amount, whichever is lower:

• the maximum amount equal to the total annual fee that BestReply B.V. has received from the Customer under this Agreement.

15.2 Indirect damage, consequential damage, lost profits, missed savings, reduced goodwill, damage due to business interruption, damage resulting from claims from the Customer's clients, damage related to the use of goods, materials, or software prescribed by the Customer to BestReply B.V., and damage related to the involvement of suppliers prescribed by the Customer to BestReply B.V. is excluded. Also excluded is the liability of BestReply B.V. for or in the event of:

• damage resulting from the destruction or loss of documents and/or data;
• damage resulting from the provision of incorrect or incomplete information by the Customer to BestReply B.V. or otherwise resulting from the Customer's actions or omissions;
• the Customer having made changes to BestReply B.V.'s software, products, or services;
• damage at the Customer or third parties due to the malfunction of hardware, devices, software, and/or internet connections of the Customer.

15.3 The exclusions and limitations of liability described in this article do not affect the other exclusions and limitations of liability described elsewhere in these Terms and Conditions.

15.4 The exclusions and limitations referred to in this article do not apply if and to the extent the damage is the result of intentional or reckless misconduct by BestReply B.V.'s management.

15.5 Unless performance by BestReply B.V. is permanently impossible, BestReply B.V.'s liability for an attributable failure to perform an Agreement only arises if the Customer has immediately issued a detailed written notice of default, setting a reasonable period for remedying the shortcoming, and BestReply B.V. continues to fail in its obligations after that period. The notice of default must include a description of the shortcoming as complete and detailed as possible to allow BestReply B.V. to respond adequately.

15.6 A condition for the Customer to claim any right to compensation is that the Customer reports the damage to BestReply B.V. as soon as possible after the occurrence. Without prejudice to the provisions of Article 6:89 of the Dutch Civil Code, any claim for compensation against BestReply B.V. expires 12 months after the claim arises unless the Customer has initiated legal action to claim compensation before the expiry of this period.

15.7 The provisions of this article, as well as all other limitations and exclusions of liability mentioned in these Terms and Conditions, also benefit all (legal) persons that BestReply B.V. and its suppliers engage for the execution of the Agreement. This article constitutes a third-party clause.

15.8 The Customer indemnifies BestReply B.V. against claims from third parties based on information and results derived from the SaaS service.

16. Force Majeure

16.1 Neither party is obligated to fulfill any obligation, including any statutory and/or agreed guarantee obligation if they are prevented from doing so due to force majeure. Force majeure for BestReply B.V. includes, but is not limited to: (i) force majeure of suppliers of BestReply B.V., (ii) failure by suppliers prescribed by the Customer to BestReply B.V., (iii) defects in items, devices, software, or materials of third parties whose use by the Customer has been prescribed to BestReply B.V., (iv) government measures, (v) power outages, (vi) failures in internet, data network, or telecommunication facilities, (vii) (cyber)crime, (cyber)vandalism, war or terrorism, pandemic, epidemic, and (viii) general transport problems.

If a force majeure situation lasts longer than 30 days, either party has the right to terminate the Agreement in writing. In such a case, what has already been performed under the Agreement will be settled proportionally, without either party owing anything further.

17. Transfer of Rights and Obligations

17.1 The Customer will never sell, transfer, or pledge the rights and obligations they have under an Agreement to a third party.

17.2 BestReply B.V. may sell, transfer, or pledge the rights and obligations it has under the Agreement to a third party.

18. Applicable Law and Disputes

18.1 The Agreement between BestReply B.V. and the Customer is governed by Dutch law. The applicability of the Vienna Sales Convention 1980 is excluded.

18.2 Disputes arising between BestReply B.V. and the Customer in connection with the Agreement and/or subsequent Agreements that result from it will be resolved by the competent court in the district where BestReply B.V. is established unless mandatory legal provisions dictate otherwise.