This clause defines a number of terms that are written with initial capitals in these General Terms and Conditions. The definitions used have the same meaning in the singular and the plural, unless the context demands a different meaning.
Platform: The Platform managed by London Dynamics (including System Software) owned by London Dynamics, by the Client, or by third parties engaged by London Dynamics and that is used to provide the Services as specified in the Agreement.
Application: The Software developed or acquired under license by London Dynamics and made available to the Client by means of a Continuous Service.
3D Asset / Model: A digital representation of a physical product.
GDPR: European General Data Protection Regulation. This act governs the privacy of the European citizens.
Backup: A duplicate copy of Customer Data, used as an archive or to protect against dam- age or loss, stored at a different location, where the aforementioned location is not within the server that contains the original Customer Data.
Appendices: Appendices to the Agreement that are an integral part thereof.
Service: The activities to be carried out by London Dynamics for the Client and any performance to be delivered as part of these activities and as specified in the Agreement.
Continuous Service: Service of a continuous, non-project-based nature.
Public Holidays: New Year’s Day, Easter Sunday and Easter Monday, the Dutch King’s Birthday (April 27th), Liberation Day (May 5th), Ascension Day, Whit Sunday and Monday, Christmas Day and Boxing Day and any other public holidays agreed by the parties.
IT Infrastructure: Both the physical and logical environment of the Client (physical space, (virtual) hardware, client software, network components etc.) from which the Client will use the Services and Continuous Services.
Interface: Software enabling the exchange of data between Platform and/or Service(s) on the one hand and the Client’s Application(s) and/or Services on the other, IT Infrastructure and/or systems of third parties.
Month: When referring to a Month, this means a calendar month.
Employee: A staff member of London Dynamics or third party engaged by London Dynamics.
Client: Any natural person or legal entity who orders a Product or Service from London Dynamics.
Agreement: Any agreement between London Dynamics and the Client that these General Terms and Conditions are (declared to have been) applied to.
Customer Specific Cloud: Form of cloud services, realised on the basis of a configuration determined by London Dynamics in consultation with the Client and using Platform specifically set up for the Client and on which the Client may also install or have installed and use Client service.
SLA: Service Level Agreement
Malfunctioning: Any Continuous Service malfunctioning related to the performance of London Dynamics whereas Client would have been out of service for more than 15 minutes.
WAN: Wide Area Network.
Weekend: Saturday and Sunday.
Working Days: All calendar days with the exception of Weekends and Public Holidays.
Working Hours: Hours on Working Days between 8.00 am and 6.00 pm CET.
These General Terms and Conditions will apply to all offers by London Dynamics, as well as to all Agreements and resultant agreements between London Dynamics and Client, unless otherwise agreed upon explicitly in writing. These General Terms and Conditions are an integral part of every Agreement and offer.
London Dynamics explicitly rejects the applicability of any General Terms and Conditions other than these General Terms and Conditions. Deviation of these General Terms and Conditions is only possible when it has been agreed upon in writing. The Client cannot derive any rights from an earlier deviation from these General Terms and Conditions in a (similar) future situation.
An offer by London Dynamics will be valid for thirty (30) days and will expire automatically at the end of that period, unless stated otherwise in the relevant offer.
The Agreement between Client and London Dynamics will be established after both parties have signed the agreement, or in the case of an Agreement concluded on-line, after London Dynamics as received Confirmation from the Client in response to the verification e-mail from London Dynamics.
London Dynamics can end ongoing negotiations with the Client at any time, without being liable for any damages.
Unless otherwise agreed upon by London Dynamics and Client, all periods of time are indicative and specified by London Dynamics to the best of its knowledge and will never constitute firm deadlines.
If the progress of the activities is delayed or threatens to be delayed, London Dynamics will inform the Client, stating the cause of the delay and indicating to what extent this is expected to affect the delivery period.
All prices and rates are stated in euros excluding VAT and any other levies imposed by the government.
Travel and accommodation, if applicable, expenses will be charged separately, after the Client has given written permission to London Dynamics.
As far as prices are determined based on measurement systems, such as the number of, 3D Assets, users, traffic, storage etc., or transactions between the client and its customers, the systems of London Dynamics are decisive. London Dynamics will provide relevant reports to the client upon a written request by the client.
London Dynamics is entitled to amend the agreed prices and rates by a percentage equalling the price index per hour for commercial services, including special fees, as published by Statistics Netherlands, with 2020 = 100 serving as a basis. Prices and rates will be amended annually and communicated to the Client by London Dynamics in writing at least one (1) month before the effective date. If London Dynamics increases the agreed prices and rates by a percentage higher than stated above, the Client will be entitled to give notice of termination of the Agreement by registered letter within thirty (30) days of the receipt of the notification. Such termination will apply from the date on which the change(s) become effective.
In addition to the provisions of the previous section, any price or rate changes imposed by the suppliers of London Dynamics may be passed on immediately to the Client after having informed the Client thereof in writing.
All invoices from London Dynamics are to be paid by the Client within fourteen (14) days of the invoice date, unless otherwise explicitly agreed upon in writing.
If the Client fails to pay, even after being sent a notice of default, London Dynamics can claim extrajudicial costs of at least fifteen percent (15%) of the total amount due. In addition London Dynamics will be entitled to charge statutory interest over the invoice amount with a minimum of € 250 (in words: two hundred and fifty euros). London Dynamics will then also be entitled to suspend provision of its Services to the Client, providing it gives written warning to this effect.
Payments by the Client will be made without any discount, deduction or any other set-off, unless parties have explicitly agreed otherwise in writing.
London Dynamics aims to provide its Services as far as possible in accordance with the service levels specified in the SLA and will take all the necessary measures available to it in this respect.
The Client cannot claim under a warranty if the Client is in default to London Dynamics because, for instance, the Client has failed to comply with one or more of the conditions included in the SLA in force between the parties.
As far as its Services are concerned, London Dynamics warrants that these will be performed in a professional manner. London Dynamics is allowed at all times to subcontract all or part of its duties to a third party.
In the event of termination of a Continuous Service London Dynamics will, at the Client’s request, enter into consultations with Client on any transfer activities needing to be carried out by London Dynamics, such as transferring and/or destroying data and Client Applications, as well as the time frame for performing such activities. If the Client does not submit such a request as referred to above within one (1) month of the Continuous Service being terminated, London Dynamics will be entitled to destroy the data, Links and any other data of the Client on the Platform.
All activities carried out by London Dynamics under this clause will be charged on the basis of actual costs at the applicable rates at that time.
Parties will treat in the strictest of confidence all information on each other’s organisation, Platform, Links, data and IT Infrastructure, as well as all other information that the parties knew or should know to be of a confidential nature. Except with the other party’s prior written permission, neither party will make information or information carriers that are at its disposal and relate to the other party available to third parties or to its employees except insofar as such is required in order to perform the agreed activities.
When London Dynamics receives a request from a third party (including, among others, federal government organisations) to make information or documents available that are related to (the activities of) the Client then London Dynamics will always redirect the requesting party to the Client first (making available contact details of the Client). London Dynamics will immediately notify the Client of such requests (and provide a copy of them), unless that is prohibited by any statutory regulations. In all situations London Dynamics will only provide the information or documents requested when required to do so by any statutory regulation, in which case no information or documents will be made available other than those specifically requested.
All intellectual property rights, including copyright, on work provided by London Dynamics, including – but not exclusively– the software, applications or other results of Services provided by London Dynamics or it’s supplier(s), are held by London Dynamics, or it’s supplier(s) respectively. These rights are not transferable, unless otherwise agreed upon in writing.
All intellectual property rights of the modelled 3D Assets rest with the Client, after payment of all outstanding invoices.
London Dynamics is entitled at all times to add or remove mention of its name (or have mention of its name added/removed) and the Client does not have permission to make the result of the work public without mentioning the name of London Dynamics without prior written permission, unless the result of the Agreement is not suitable for this.
When the Client has fulfilled all his obligations under the Agreement with London Dynamics, the Client obtains an exclusive license to use the result of the Agreement as far as the use is in accordance with the purpose that was agreed upon. When there are no Agreements about the purpose, then the license to the use of the result of the Agreement will be limited to the established intentions, which existed at the time the Agreement was entered. These intentions must have been made known to London Dynamics before the Agreement was entered.
London Dynamics remains entitled, even after a transfer of rights, to use the result of the Agreement for its own publicity or promotional purposes, respecting the rights of third parties.
The Client is not entitled to use the result of the Agreement in ways beyond the limitations of the Agreement or in ways other than those in the Agreement without prior written permission from London Dynamics. In situations where there is use beyond the limitations set forward in the Agreement, or in ways other than those described in the Agreement, including, but not limited to, amendments, garbling or affecting the preliminary or final results of the Assignment, London Dynamics is entitled to a compensation for infringement on its rights.
The Client is entitled to use the Service for the purpose for which London Dynamics has provided the Service to the Client. If and insofar as London Dynamics has advised the Client of any conditions or additional conditions of London Dynamics or third-party suppliers applying to the use of the Application(s) or the Client is or should be aware of such conditions, such conditions will be strictly observed.
Each party indemnifies the other against claims by third parties relating to the actual or alleged infringement of third-party intellectual property rights resulting from the use of the Continuous service.
London Dynamics indemnifies the Client only on the condition that the Client notifies London Dynamics of any such claim or action immediately and permits London Dynamics exclusively to conduct the defence against the claim or action. London Dynamics will not indemnify the Client if the breach or alleged breach is attributable to the Client.
An Agreement between London Dynamics and the Client will be entered into for the period stipulated in that Agreement, in the absence of which that Agreement will end no earlier than two (2) years after the calendar day on which the Client is provided with the Continuous Service in working order. After this period the Agreement will automatically and tacitly be extended for an indefinite period until either party gives notice of termination at the end of a calendar quarter and subject to at least three (3) months’ notice.
The Client is not permitted to terminate the Agreement during the initial term, unless parties agree termination arrangements in writing or the Agreement includes such arrangements, in which cases early termination will be possible with effect from the end of a calendar quarter, subject to payment of the sum stipulated in the termination arrangements and a notice period of at least three (3) months. Notwithstanding the above provisions in this sub clause, early termination by London Dynamics is possible, subject to three (3) months’ notice.
If and insofar as termination is possible under the above provisions, such notice will be given by registered letter addressed to the other party and specifying the termination date.
Each of the parties is entitled to give notice that the Agreement is to be dissolved by sending a registered letter, containing the dissolution date, to the other party if the other party fails to fulfill the Agreement in an attributable way and persists in such failure even after being duly gran- ted a reasonable period of time to rectify the failure.
Each of the parties is entitled immediately to dissolve the Agreement by registered letter requesting confirmation of receipt, without any demand or notice of default being required, if the other party files for or is granted suspension of payment, the other party is declared insolvent or bankrupt, the other party’s business is liquidated, discontinued or terminated other than for the purposes of a merger, or if the other party can no longer be considered capable of fulfilling the financial obligations under the Agreement.
If the Client dissolves the Agreement, the Client loses its right to compensation.
Any liability of London Dynamics for an event, whereby a series of events will constitute a single event, will be limited to direct loss and to a maximum of the price stipulated for such Agreement excluding VAT. If the Agreement provides for continuing performance with duration of more than one (1) year, liability will be limited to the total price agreed for one (1) year excluding VAT. The maximum extent to which London Dynamics will be liable will in any event be limited to €50,000 (in words: fifty thousand euros). Direct loss will be taken exclusively to mean:
a. reasonable costs that the Client incurs in order to have the performance of London Dynamics meet the terms of the agreement.
b. reasonable costs that the Client incurs in order to establish the cause and
c. reasonable costs incurred in order to prevent or limit loss.
Liability in respect of indirect and all other forms of loss or damage other than as referred to in sub clause 12.1 is excluded.
London Dynamics will not be held liable for an attributable failure in the performance of the Agreement until it is given proper notice of default by registered letter that contains notice of default and grants a reasonable period of time for London Dynamics to fulfil its obligations under the Agreement and London Dynamics fails to fulfil its obligations within such period.
London Dynamics is not liable for any loss or damage resulting from directions or instructions or the following of directions or instructions given by the Autoriteit Consument en Markt (ACM) [Authority for Consumers and Market] or by any other authorities with statutory powers to give London Dynamics directions or instructions.
A right to compensation will arise only if London Dynamics is given proper, specific and detailed notification in writing of the damage or loss suffered as soon as possible after it becomes known and in any event within six (6) weeks of its being established.
London Dynamics cannot be held liable for damages of any kind that are the direct or indirect result of providing incorrect and/or incomplete information. The Client indemnifies London Dynamics against third party claims regarding infringement on their rights (including intellectual property rights) as a result of the use of the Services by the Client.
Neither party is obliged to fulfil any obligation under an Agreement if hampered from doing so by force majeure. Force majeure on the part of London Dynamics includes non-attributable failure in the performance of obligations by a supplier of London Dynamics, floods, fire, overheating, dust, terrorist attacks, pandemics and/or acts of war.
If the condition of force majeure persists for more than hundred eighty (180) days, the parties will have the right to terminate the Agreement with immediate effect by means of a registered letter notifying the termination, without any obligation on either party to pay the other party compensation. Any activities already performed under the Agreement will be settled by the parties pro rata.
Under the European General Data Protection Regulation Act (from now on: GDPR), the Telecommunications Act and/or other legislation or regulations relating to privacy or the protection of personal data, London Dynamics will be considered the “Processor” and the Client will be considered the “Controller”.
The Client is aware that, in its capacity as Controller within the meaning of the GDPR, it is obliged to inform London Dynamics of the measures to be taken in order to meet the requirements of the GDPR.
In the relationship between London Dynamics and the Client, the responsibility of London Dynamics with regard to the personal data registered and processed by the Client by means of London Dynamics Services and/or infrastructure will never exceed that of a Processor within the meaning of the GDPR. By virtue of its obligations in its capacity as Controller within the meaning of the GDPR the Client will enter into consultation with London Dynamics before implementing any security plan if and insofar as the contents of such security plan may affect the business operations of London Dynamics.
In accordance with the GDPR and other applicable legislation and regulations pertaining to the protection of privacy the parties will, if and insofar as applicable, guarantee a reasonable level of security for activities that include processing personal data as defined in the GDPR. Whether the level of security is deemed reasonable will depend on all the circumstances, including the nature of the data, the current state of technology and the costs involved in guaranteeing a certain level of security.
Each party confirms that it indemnifies the other against all claims by third parties relating to a party’s failure to comply with the Client’s obligations under the GDPR and other applicable legislation and regulations pertaining to the protection of personal data.
London Dynamics is entitled to the use of third parties in performance of an Agreement. The use of third parties will not affect (the limitations with respect to) the liability of London Dynamics as stipulated in Clause 12 (Liability).
The Client is not entitled to transfer rights and/or obligations to third parties without the prior written consent of London Dynamics. London Dynamics is at all times entitled to attach conditions to such transfer.
At the request of London Dynamics the Client will provide London Dynamics fully, promptly, and in a sound manner with all requested information that London Dynamics deems is required for proper performance of the Agreement.
If data required for performance of the agreement are not provided to London Dynamics, or are provided late, or are not provided to London Dynamics in full, or in the format (digital or otherwise) required by London Dynamics, or are not as agreed between the Client and London Dynamics (or flawed in another way), or if the Client fails to meet its obligations in any other way, London Dynamics will have the right to suspend performance of its activities after giving a written warning to this effect. London Dynamics entitled to charge the Client for any additional costs incurred in this respect at rates in accordance with the London Dynamics prices and rates than applying.
Dutch law will apply to all Agreement concluded between London Dynamics and the Client.
A dispute will be deemed to have arisen if either party indicates that there is a dispute and describes the substance of the dispute as well as possible solution.
The provisions of subclause 17.2 and sub-clause 17.3 will not affect the parties’ right to apply in urgent cases to the Preliminary Relief Judge [Voorzieningenrechter] of the Court of Law in Amsterdam for a decision in interlocutory proceedings or to apply to the Court of Law in Amsterdam for protective measures.
The provisions of subclause 17.4 will not affect the parties’ obligation, wherever possible, to make every effort to resolve disputes relating to the performance of the agreement by mutual agreement.
Unless agreed otherwise, London Dynamics will be entitled at its option, whether including a logo or otherwise, to list the Client as a reference on its website.
If one of the provisions of these present General Terms and Conditions is invalid or nullified, the remaining provisions will remain in full force and the parties will enter into consultation with each other on a new provision that retains as much as possible of the nature and purport of the invalid or nullified provision.
If and insofar as there is any inconsistency between these General Terms and Conditions and an Agreement, the provisions of the Agreement will apply.
If and insofar as there is any inconsistency between an Agreement and the Appendices to an Agreement, the provisions of the relevant agreement will apply.
If and insofar as there is any inconsistency between Appendices, the provisions of the Appendix with the lowest number will apply.
If London Dynamics carries out activities for the Client that were not foreseen when the Agreement was entered into, such activities will be charged on the basis of the actual costs and the rates applying at the time.
Unless it is evident from the context that notification in actual written form is required (as, for example, in the case of documents to be sent by registered mail), notifications that the parties are required under the Agreement to give to each other in writing may also be given digitally (i.e. by e-mail), with the provison that the burden of proof will rest on the party choosing to use an electronic medium if the other party states that a notification did not arrive or did not arrive in good order.
Any complaints must be submitted to London Dynamics in writing within one (1) month. London Dynamics will endeavour to handle and resolve the com- plaint within five (5) working days. A complaint will not release the Client from the obligation to pay invoices within the agreed payment term.
The Client will not, whether by act or omission, cause direct or indirect disruption of the functioning of any part of the infrastructure of London Dynamics, the infrastructure of third parties and/or Links between such infrastructures by data traffic or the contents or volume of such data traffic.
If London Dynamics believes that the uninterrupted functioning of the Platform of London Dynamics and/or services to the clients of London Dynamics is at risk of being disrupted in any way, including, but not limited to, disruptions caused by virus contaminations, Denial or Service attacks, port scans, hacking, Spam caused by or attributable to the Client, or otherwise, London Dynamics may give instructions that must be immediately followed by the Client, as well as suspend all or some of the services for as long as the relevant risk exists.
The Client will be in default, without any further notice of default being required, if the Client does not immediately comply with the instruction referred to in subclause 19.2.
London Dynamics offers its Services on the basis of fair-use policy. This means that in principle it does not impose any restrictions on the nature and extent of the client’s use of the services other Platform as referred to in subclause 19.2 and subject to the restriction that London Dynamics reserves the right to take measures in the event of excessive use, being use that is significantly higher than that of the average Client. The Client must immediately take steps to end such excessive use or load upon notification to this effect by London Dynamics. London Dynamics is entitled to suspend (Continuous) Services in the event of constant excessive use or load. London Dynamics will pass on the costs of such excessive use or load to the Client at the prices and rates applying at the time. An excessive use or load also includes an excessively high use of the Platform, as well as excessive recourse to Support and management.
The Client will refrain from using the Services for acts and/or practices that are in conflict with the law (including the Dutch Criminal Code), the Personal Data Protection Act and the Tele- communications Act), netiquette (code of con- duct for the internet), the Agreement and the General Terms and Conditions or from using the Services in any other way that exposes London Dynamics to negative publicity.
It is up to the Client to prove that prior permission was granted by a recipient in the event of communications sent in large quantities by or on behalf of the Client. If a recipient granted prior permission by e-mail, a website or another electronic medium without any guarantees as to the sender’s identity, permission will be deemed proven only if the recipient confirms that permission has been granted to the Client.
The Client will use the Services only for their own operational management and not sell and/or rent the Services to any other party (or have a third party profit of them in any other way) without the prior written consent of London Dynamics.
In the event of any breach of the provisions of this clause London Dynamics will have the right to terminate the Agreement or stop or suspend all or some of its services and/or remove the Client’s data from the Platform, whether temporarily or otherwise, without any effect on the Client’s obligation to pay the remaining instalments of the Agreement and without any obligation to pay any form of compensation to the Client.
The Client will immediately notify London Dynamics if the Client is able at any time to access the London Dynamics network layers.