Terms of Service - Tshakka Solutions B.V.
Last Updated: 12.04.2025
Parties:
This Terms of Service (the “Agreement”) is made between Tshakka Solutions B.V., a Dutch private limited company (Besloten Vennootschap) registered with the Netherlands Chamber of Commerce (KvK) under number 95773134, having its registered office at Saturnusstraat 95, 2516 AG The Hague, The Netherlands(hereinafter “Tshakka”), and the client entity that signs a project order or Statement of Work referencing these terms (hereinafter the “Client”). Tshakka and Client are each a “Party” and collectively the “Parties.”
Background:
Tshakka is in the business of custom software development and SaaS solutions. The Client wishes to engage Tshakka to develop and/or provide certain software services. These Terms of Service, together with any Order Forms, Statements of Work, annexes, and Tshakka’s General Terms and Conditions (Algemene Voorwaarden) (collectively forming the “Agreement”), govern the provision of services by Tshakka to Client. By executing an Order Form or otherwise using Tshakka’s services, the Client acknowledges and agrees to this Agreement. All services are provided exclusively for business (B2B) purposes; the Client confirms it is not a consumer.
Table of Contents – Terms of Service of Tshakka Solutions B.V.
1. Definitions – 1.1 Services, 1.2 Order Form / Statement of Work, 1.3 Client Materials, 1.4 Tshakka Platform, 1.5 Intellectual Property Rights, 1.6 General Terms and Conditions, 1.7 Additional Definitions
2. Scope of Agreement – 2.1 Structure, 2.2 Entire Agreement, 2.3 Business Use Only, 2.4 No Conflicting Terms
3. Tshakka’s Services and Responsibilities – 3.1 Provision of Services, 3.2 Project Management, 3.3 Sub-contractors, 3.4 Compliance with Law, 3.5 Development Tools & Environment, 3.6 Deliverables, 3.7 Warranty of Correction, 3.8 No Improper Means
4. Client Responsibilities and Obligations – 4.1 Provide Information & Resources, 4.2 Timely Decisions & Approvals, 4.3 Project Liaison, 4.4 Facilities & Access, 4.5 Compliance & Licences, 4.6 Testing & Review, 4.7 Use of Platform / Service, 4.8 Data Security & Backup, 4.9 Payment of Fees, 4.10 Legal Compliance by Client
5. Delivery, Acceptance Testing & Warranty – 5.1 Delivery of Deliverables, 5.2 Acceptance Testing, 5.3 Acceptance or Rejection, 5.4 Remedy of Defects, 5.5 Repeated Testing Cycles, 5.6 Warranty Period, 5.7 No Other Warranties
6. Fees, Invoicing & Payment Terms – 6.1 Fees & Pricing Models, 6.2 Invoicing, 6.3 Payment Term, 6.4 Late Payments, 6.5 Fee Increases, 6.6 No Refunds of Paid Fees, 6.7 Disputed Charges
7. Intellectual Property Rights – 7.1 Tshakka Background IP, 7.2 Deliverables & Project-Specific IP, 7.3 Third-Party Components, 7.4 Client Materials & Data, 7.5 Feedback, 7.6 Moral Rights, 7.7 No Trademark Licence, 7.8 Protection of IPData
8. Protection & Privacy – 8.1 Roles of Parties, 8.2 Data Processing Agreement, 8.3 Processor Obligations, 8.4 Sub-processors, 8.5 Controller Obligations, 8.6 Data Location & Transfer, 8.7 Privacy & Confidentiality, 8.8 Data Requests & Co-operation, 8.9 Processor/Controller Liability
9. Confidentiality – 9.1 Definition of Confidential Information, 9.2 Obligations, 9.3 Exclusions, 9.4 Compelled Disclosure, 9.5 Return or Destruction, 9.6 Confidentiality of Agreement, 9.7 Duration, 9.8 Remedies
10. Term and Termination – 10.1 Term of Agreement, 10.2 Termination for Convenience, 10.3 Termination for Cause, 10.4 Termination for Insolvency or Legal Status, 10.5 Effects of Termination, 10.6 Partial Termination, 10.7 Force Majeure
11. Indemnification – 11.1 Tshakka’s Indemnity (IP), 11.2 Exclusions & Remedies, 11.3 Client’s Indemnity, 11.4 Indemnity Limitations
12. Limitations of Liability – 12.1 No Indirect Damages, 12.2 Liability Cap, 12.3 Multiple Claims, 12.4 Unlimited Liability (Exceptions), 12.5 Fair Allocation of Risk, 12.6 Limitation Period
13. Governing Law & Dispute Resolution – 13.1 Governing Law, 13.2 Jurisdiction, 13.3 Good-Faith Negotiation, 13.4 Language of Proceedings
14. Miscellaneous Provisions – 14.1 Integration & Order of Precedence, 14.2 Changes to Terms, 14.3 Assignment, 14.4 No Third-Party Beneficiaries, 14.5 Independent Contractors, 14.6 Severability, 14.7 No Waiver, 14.8 Notices, 14.9 Headings & Language, 14.10 Counterparts & E-Signatures, 14.11 Priority of Negotiated Terms
- Feedback and Information
1. Definitions
For the purposes of this Agreement, the following terms shall have the meanings set out below:
1.1 “Services” – The custom software development services, SaaS (Software-as-a-Service) platform access, implementation, support, or other services to be provided by Tshakka to Client as described in an Order Form or Statement of Work. This includes any associated deliverables, such as software, applications, websites, APIs, documentation, or other work product (collectively, “Deliverables”).
1.2 “Order Form” or “Statement of Work (SOW)” – A document (which may be titled as an Order, SOW, proposal, quotation, or similar) agreed in writing by both Parties that references these Terms of Service and describes the specific Services, Deliverables, fees, project timeline, and any special terms for a particular project or engagement. Each Order Form/SOW shall form an integral part of this Agreement.
1.3 “Client Materials” – All information, content, software, datasets, logos, designs, specifications, documentation, hardware, and other materials provided by or on behalf of Client to Tshakka for use in the Services or incorporation into Deliverables. This also includes any Client Data, meaning any data (including personal data) that the Client or its end-users input, upload, or otherwise make available to Tshakka’s platform or that is processed by Tshakka on the Client’s behalf under this Agreement.
1.4 “Tshakka Platform” or “Platform” – Any proprietary software platform, framework, or tools owned or licensed by Tshakka that are used to provide the Services or form a basis for Deliverables. For example, if Tshakka provides a SaaS application or uses pre-existing modules in developing custom software, those underlying components and architecture are part of the Tshakka Platform.
1.5 “Intellectual Property Rights” – All forms of intellectual property rights and protections including but not limited to copyrights, database rights, patents, patent applications, trade secrets, know-how, design rights, trademarks, service marks, brand names, and any other proprietary rights (registered or unregistered) anywhere in the world, as well as all related goodwill.
1.6 “General Terms and Conditions” – Tshakka’s standard general terms and conditions (“Algemene Voorwaarden”) which may be separately provided or referenced. These General Terms and Conditions are incorporated by reference into this Agreement to the extent they do not conflict with the terms herein. (See Section 14 on Order of Precedence.)
1.7 Additional Definitions: Any other capitalized terms in this Agreement shall have the meaning assigned in context or in an Order Form.
2. Scope of Agreement
2.1 Structure: This Agreement establishes the general terms under which Client may engage Tshakka for custom software development and related services. Specific details (scope of work, deliverables, fees, timeline, etc.) for each project will be set forth in one or more Order Forms or Statements of Work signed by the Parties. Each such Order Form/SOW shall be governed by and subject to the terms of this Agreement.
2.2 Entire Agreement: Except where expressly stated otherwise, this Agreement (including these Terms of Service, any Order Forms/SOWs, annexes, and the incorporated General Terms and Conditions) constitutes the entire agreement between the Parties regarding its subject matter and supersedes all prior discussions, proposals, or agreements. The Parties acknowledge that they are not relying on any representations, agreements, or promises not expressly set out in this Agreement.
2.3 Business Use Only: The Services and Deliverables are provided exclusively for use by business customers. The Client confirms that it is acting in the course of its trade, business, or profession and not as a “consumer,” and therefore acknowledges that consumer-specific laws or remedies (which can apply in non-business consumer contracts) do not apply to this Agreement.
2.4 No Conflicting Terms: The Client’s general terms of purchase or any other standard terms shall not apply to this Agreement, even if referenced in any purchase order or other document, unless expressly accepted in writing by Tshakka. This Agreement may only be modified or supplemented by a document in writing signed by authorized representatives of both Parties (except for updates to the General Terms and Conditions as allowed under Section 14.2).
3. Tshakka’s Services and Responsibilities
3.1 Provision of Services: Tshakka shall perform the Services with due professional care, skill, and diligence, in accordance with the agreed specifications and timeline in the applicable Order Form/SOW. All Services are provided on the basis of a best-efforts obligation (inspanningverplichting) unless expressly stated otherwise in the Order Form (no absolute obligation to achieve a specific result is given, except as explicitly agreed). Tshakka will assign qualified personnel and devote appropriate resources to fulfill its obligations.
3.2 Project Management: Tshakka will use reasonable efforts to cooperate with Client’s designated project manager and adhere to any project management or reporting requirements outlined in the Order Form/SOW. Tshakka will keep the Client reasonably informed of progress, and will promptly inform Client of any material issues or deviations that could impact delivery, costs, or timelines. Regular meetings or status updates will be conducted as agreed.
3.3 Subcontractors: Tshakka may involve subcontractors or third-party specialists in delivering the Services, provided that Tshakka remains responsible for the performance of the Services and compliance with this Agreement. Tshakka shall ensure that any subcontractors are bound by obligations of confidentiality and (where applicable) data protection no less strict than those binding Tshakka hereunder.
3.4 Compliance with Law: Tshakka will perform the Services in accordance with applicable laws and regulations, including (where relevant) Dutch and EU laws on data protection (as further detailed in Section 8) and export control laws. However, Tshakka’s compliance is dependent on Client fulfilling its own obligations to enable lawful processing (for example, obtaining end-user consents if required by law).
3.5 Development Tools and Environment: Unless otherwise agreed, Tshakka will use its own development tools, environment, equipment, and software (including the Tshakka Platform) to perform the Services. Any third-party software components or open-source libraries that Tshakka incorporates into the Deliverables will be disclosed to Client and (if not owned by Tshakka) will be licensed to Client under the terms of the applicable open-source or third-party license. Tshakka will not knowingly include any software in Deliverables that it does not have the right to use or license to Client.
3.6 Deliverables: Upon completion of development milestones or final project completion (as specified in the Order Form/SOW), Tshakka shall deliver the agreed Deliverables to the Client. Delivery may occur by providing access to a software environment, by electronic delivery (e.g. download link, repository access), or other method agreed. Any delivery requirements or format shall be described in the Order Form/SOW. Tshakka will use reasonable efforts to ensure Deliverables substantially conform to the specifications agreed.
3.7 Warranty of Correction: If, before acceptance (as described in Section 5) or during the warranty period (Section 5.6), a Deliverable is found to contain material defects or not conform to the agreed requirements, Tshakka will, at its own expense, correct or replace the Deliverable to conform with the specifications. This obligation does not apply to the extent the non-conformance is caused by Client Materials, third-party components specified by Client, or misuse by Client.
3.8 No Improper Means: Tshakka shall not knowingly include any malicious code, viruses, or harmful instructions in the Deliverables. Tshakka shall not use any unauthorized third-party intellectual property in Deliverables. In the event any such issue is discovered, Tshakka will promptly notify Client and use best efforts to remove such harmful code or replace any infringing components.
4. Client’s Responsibilities and Obligations
The Client acknowledges that the success and timely delivery of the Services require its active cooperation and fulfillment of the following obligations:
4.1 Provide Information and Resources: The Client shall timely provide all information, requirements, documentation, use cases, test data, and materials that Tshakka reasonably requires to perform the Services. This includes clear and complete specifications for the software to be developed, any branding or design assets, user content, or data that the Deliverables must accommodate. The Client will ensure that such information and materials are accurate, up-to-date, and free of infringing or illegal content.
4.2 Timely Decisions and Approvals: The Client shall make timely decisions and provide feedback or approvals as reasonably requested by Tshakka throughout the project (for example, approval of design prototypes, clarification of requirements, or acceptance of deliverables as described in Section 5). Delays in Client feedback or decision-making may result in schedule adjustments and/or additional costs, for which Tshakka shall not be liable.
4.3 Project Liaison: The Client will designate a qualified representative or project manager who will be the primary point of contact for Tshakka. This person will be authorized to make decisions on behalf of Client or escalate matters within Client’s organization as needed. The Client’s project manager will be available for periodic meetings and will facilitate communications between Tshakka and Client’s internal stakeholders.
4.4 Facilities and Access: Where Services are to be performed on-site at Client’s premises or involve access to Client’s systems, the Client will provide Tshakka personnel with the necessary access, credentials, workspace, equipment, and permissions to perform the Services. The Client shall ensure that its systems and working environment meet any technical or security requirements communicated by Tshakka that are necessary for the proper functioning of the Deliverables.
4.5 Compliance and Licenses: The Client is responsible for obtaining any licenses, consents, or authorizations from third parties that are necessary for Tshakka to use Client Materials or third-party systems in the course of the Services. The Client represents that it has the legal right to use and permit Tshakka to use any Client Materials or third-party resources it provides. The Client will ensure that its instructions and use of the Services (and Tshakka’s use of Client Materials) will not cause Tshakka to infringe any third-party rights or violate any laws. If any open-source or third-party software is required from Client’s side, Client will ensure such use complies with the applicable licenses.
4.6 Testing and Review: During development and any testing phases, the Client is responsible for performing its own review and testing of interim deliverables or beta releases in accordance with the project plan. This includes promptly reporting any issues, bugs, or non-conformities to Tshakka. Client should also conduct any user acceptance tests within the agreed timeframes.
4.7 Use of Platform/Service: If the Services include access to or use of a Tshakka Platform or SaaS service, the Client must use it only for lawful purposes and in accordance with the Agreement. The Client shall not (and shall not permit any third party to) copy, decompile, modify, or reverse engineer any software provided by Tshakka (except to the extent expressly allowed by law for interoperability and after providing Tshakka the opportunity to achieve interoperability). The Client shall not use the Services to transmit or store any content that is offensive, defamatory, violates privacy or data protection laws, contains malware, or infringes intellectual property rights. The Client is fully responsible for all use of the Services under its account or by its personnel, and will promptly notify Tshakka of any unauthorized use or security breaches.
4.8 Data Security and Backup: The Client is responsible for maintaining appropriate backups of its own data and materials that it supplies to Tshakka. Unless otherwise explicitly agreed as part of the Services, Tshakka’s role is not to serve as a data backup or archival service for Client Data. The Client should also implement necessary security measures on its own networks or endpoints when accessing the Tshakka Platform or Deliverables, including using strong access credentials and keeping such credentials confidential.
4.9 Payment of Fees: The Client shall pay fees and expenses timely as per Section 6. Adherence to payment obligations is a key Client responsibility; failure to pay on time can result in suspension of Services by Tshakka as outlined in Section 6.4.
4.10 Legal Compliance by Client: The Client will use the Deliverables and Services in compliance with all applicable laws and regulations. This includes (if applicable) obtaining any end-user consents for processing of personal data, complying with import/export controls if software is exported, and adhering to any industry-specific regulations. The Client shall indemnify Tshakka for any claims, fines or damages arising from Client’s use of the Services or Deliverables in an unlawful manner or in breach of third-party rights (see Section 11.2).
5. Delivery, Acceptance Testing, and Warranty
5.1 Delivery of Deliverables: Tshakka shall deliver the Deliverables in accordance with the delivery schedule or milestones set out in the Order Form/SOW. Delivery may be made in parts (e.g., module by module or milestone deliverables) as agreed. Each delivery will be accompanied by any agreed documentation (such as user manuals, installation guides, release notes, etc.) and a notice from Tshakka that the Deliverable (or milestone) is ready for acceptance testing by Client.
5.2 Acceptance Testing: Upon delivery of each Deliverable or milestone, the Client shall have a specified period to evaluate and test it (the “Acceptance Period”). Unless a different timeframe is defined in the Order Form/SOW, the Acceptance Period shall be ten (10) business days from the date of delivery to Client. The Client will test the Deliverable against the agreed specifications or acceptance criteria.
5.3 Acceptance or Rejection: The Client shall, within the Acceptance Period, provide Tshakka with either (a) a written acceptance of the Deliverable, or (b) a written report of any deficiencies or non-conformities in the Deliverable that cause it not to materially meet the agreed specifications or acceptance criteria. Acceptance shall not be unreasonably withheld or delayed. Minor defects or issues that do not materially impair the intended use of the Deliverable shall not be a valid reason for withholding acceptance, provided that Tshakka commits to remedy such minor issues within a reasonable time. If the Client does not respond with either acceptance or a deficiency report within the Acceptance Period, the Deliverable shall be deemed accepted on the next day following the end of the Acceptance Period.
5.4 Remedy of Defects: If the Client timely reports material non-conformities during the Acceptance Period, Tshakka will promptly review the report and, if the Deliverable indeed fails to conform in any material respect to the specifications due to reasons attributable to Tshakka, Tshakka shall, at no additional cost to Client, use commercially reasonable efforts to correct the deficiencies. Tshakka will then re-deliver the corrected Deliverable or issue an update/patch and a new Acceptance Period of five (5) business days shall commence for re-testing the specific corrected aspects.
5.5 Repeated Testing Cycles: If the Deliverable still fails to meet the acceptance criteria in a material way after two (2) rounds of corrections and re-submission (i.e. the Deliverable has been delivered, tested and rejected by Client for valid reasons, and corrected and re-delivered by Tshakka twice), the Parties shall promptly confer in good faith to determine if the issues can be resolved with further efforts or if requirements need adjustment. If, despite good faith efforts, a Deliverable cannot meet the agreed specifications after a maximum of three (3) delivery attempts in total, then the Client may choose to: (a) accept the Deliverable “as-is” with an agreed adjustment to the fees or scope, or (b) terminate the applicable Order Form/SOW for material breach with respect to that Deliverable. In case of such termination due solely to Tshakka’s failure to deliver conforming work, the Client shall be entitled to a refund of any fees paid for the non-conforming Deliverable or milestone, and Tshakka may retain ownership of that non-conforming Deliverable (unless it contains Client’s confidential information or data, in which case Tshakka will destroy or return such information). These remedies (acceptance with adjustment or termination with refund) are Client’s exclusive remedies for failure of a Deliverable to meet acceptance criteria after the above process.
5.6 Warranty Period for Deliverables: Upon acceptance of each Deliverable (whether express or deemed), a warranty period of ninety (90) days will commence for that Deliverable (unless a different duration is specified in the Order Form/SOW). During this warranty period, Tshakka warrants that the Deliverable, as accepted, will function materially in accordance with the agreed specifications and will be free from material defects that impair its functionality. If any such material defects are discovered and reported by Client in writing during the warranty period, Tshakka shall repair or correct them without charge to Client. If Tshakka is unable to correct a reported defect or deficiency in a Deliverable within a reasonable time, the Client’s remedy shall be as set forth under the limitation of liability and/or service credits if provided in an SLA. The warranty does not cover issues or errors caused by modifications made by Client or third parties without Tshakka’s consent, misuse or use outside the intended scope, or third-party systems/data outside of Tshakka’s control. After the expiration of the warranty period, any further maintenance, bug fixes or support for the Deliverable will be provided only if agreed under a separate support/maintenance agreement or on a time-and-materials basis.
5.7 No Other Warranties: Except for the express commitments in Section 5 (and any Service Level Agreement or express warranties in an Order Form), the Services and Deliverables are provided “as is” and all other warranties, representations or conditions (including any implied warranties of merchantability, fitness for a particular purpose, or non-infringement) are hereby disclaimed to the fullest extent permitted by law. Tshakka does not guarantee that the software or Services will be uninterrupted or error-free, or that all software defects will be corrected (other than as provided in this Section 5 and Section 7.4 for IP infringement). The Client is responsible for determining that the Deliverables meet its needs.
6. Fees, Invoicing, and Payment Terms
6.1 Fees and Pricing Models: The Client agrees to pay Tshakka the fees set out in each Order Form/SOW. Fees may be structured in various models depending on the nature of the project:Fixed Price: A set total fee for the defined scope of Services or Deliverables. This may be payable in milestones (e.g., percentage payments upon achievement of certain milestones or deliverables) or in full upon completion, as specified in the Order Form.
Time and Materials (T&M): Fees calculated based on hourly or daily rates for actual work performed, possibly with an estimated budget. Tshakka will periodically report hours expended. If a cap or estimate is provided, Tshakka will inform Client if it expects to exceed it, and additional work beyond an agreed cap will require Client’s approval.
Subscription Fees: For ongoing SaaS or platform access, a recurring fee (e.g., monthly or annual) as specified. This may allow a certain level of usage (such as number of users, transactions, or data volume) within the base fee.
Usage-Based Fees: Charges determined by actual usage metrics (for example, per active user per month, per API call, storage volume, or other measurable parameter). If usage-based fees apply, the Order Form will define the unit rates and any minimum commitments.
Minimum Fee Commitments: If the Order Form specifies a minimum monthly or annual fee, the Client will be billed at least that minimum amount regardless of actual usage. Usage charges exceeding the minimum will be billed in addition to the minimum fee.
Expenses: Any out-of-pocket expenses (e.g., travel, accommodation, third-party licenses, or equipment procured for the project) that are to be charged to the Client will either be included in the fee or billed separately, but only if such expenses are pre-approved by Client in the Order Form or in writing (email confirmation suffices).
6.2 Invoicing: Tshakka shall invoice the Client for fees as set forth in the Order Form/SOW. Unless otherwise specified:Fixed price projects may be invoiced according to milestone completion (with the invoice issued upon or shortly after each milestone acceptance) or other schedule defined in the SOW.
T&M work may be invoiced monthly in arrears for hours worked in the prior month (with reasonably detailed timesheets or summaries provided on request).
Recurring subscription or maintenance fees are typically invoiced in advance (e.g., monthly or annually at the start of each billing period). Any usage-based fees could be invoiced in arrears on a monthly cycle, unless the Order provides for prepayment and true-up.
Tshakka will add any applicable taxes (such as VAT) to each invoice, which will be clearly itemized. All fees are stated exclusive of VAT and any other applicable taxes or duties, unless explicitly noted as inclusive. The Client is responsible for any taxes due from its side (such as withholding tax), except taxes on Tshakka’s income. If Client is required by law to withhold taxes from a payment, it shall gross-up the payment so that Tshakka receives the full net amount agreed.
6.3 Payment Term: The Client shall pay each invoice in full within thirty (30) calendar days of the invoice date, unless a different payment term is specified in the Order Form or invoice. Payment shall be made in the currency stated on the invoice, via the method indicated (bank transfer to the designated account, unless otherwise agreed). Timely payment is of the essence. The Client is not entitled to suspend any payment or to set-off any amount against payments due, except with Tshakka’s prior written agreement or by order of a court.
6.4 Late Payments: If the Client fails to pay any invoice by its due date, Tshakka reserves the right to take some or all of the following actions after giving a written reminder and a reasonable short cure period (e.g., 7 days): (a) charge default interest on the overdue amount at the statutory commercial interest rate under Dutch law (as per Article 6:119a/120 of the Dutch Civil Code) or at 1.5% per month (or the highest rate permitted by law) calculated from the due date until full payment, whichever is higher; (b) recover from Client all reasonable costs of collection of the late payment, including legal fees, collection agency fees, and court costs, as permitted by law; and/or (c) suspend performance of Services or access to the Deliverables (such as temporarily disabling the Client’s access to a hosted platform) until all overdue amounts are paid in full. Tshakka will notify the Client in writing (email is sufficient) at least 7 days in advance of any suspension of Services due to non-payment. Suspension of Services for non-payment shall not be considered a breach by Tshakka of its obligations.
6.5 Fee Increases: For any ongoing Services or subscription that continue over an extended period (for example, beyond one year or on a renewal basis), Tshakka may adjust its standard fees Monthly. Increases tied to inflation may be applied by default (for instance, an annual indexation not exceeding the percentage increase of the Dutch Consumer Price Index (CPI) for all households). If Tshakka intends to raise fees beyond a normal inflationary adjustment within the signed contract period, Tshakka shall provide the Client with at least (thirty) 30 calendar days ’ written notice of the new fees. If the Client objects to the fee increase (beyond CPI), the Client may terminate the affected Service by providing written notice to Tshakka before the effective date of the change, such termination to be effective on the last day before the price increase would apply. Continued use of the Services without objection after the effective date constitutes acceptance of the new fees. Pre-paid fees for periods beyond the termination effective date will be refunded pro rata if Client terminates due to a fee increase. After the end of the initial contract term, Tshakka reserves the right after the initial signed contract period to adjust its prices at its discretion without prior notice, unless a new agreement is signed or a renewal is explicitly agreed.
6.6 No Refunds of Paid Fees: Except as expressly provided in this Agreement or required by law, all fees paid are non-refundable. In particular, if Client terminates the Agreement or any Services for convenience (where such termination is permitted) or if Tshakka terminates due to Client’s breach, Client shall not be entitled to a refund of fees paid. This does not affect any remedies expressly provided (e.g., refund for non-conforming deliverables under Section 5.5, or service credits/refunds for downtime if provided in an SLA).6.7
Disputed Charges: If the Client believes an invoice is incorrect or disputes certain charges, it must notify Tshakka in writing within 14 days of the invoice date, specifying the amount in dispute and the reason. The Parties will promptly discuss in good faith to resolve the dispute. Client shall timely pay any undisputed portion. Tshakka will not suspend services for non-payment of disputed amounts in good faith, provided Client has followed this process. Once resolved, any agreed adjustments will be reflected in a credit or corrected invoice, and any remaining amount due shall be paid promptly.
7. Intellectual Property Rights
7.1 Tshakka Background IP: The Client acknowledges that Tshakka has developed or obtained certain proprietary technologies, software, tools, libraries, algorithms, processes, know-how, and documentation prior to or outside of the scope of this Agreement (“Background Materials”). This includes the Tshakka Platform and any generic or pre-existing components, frameworks, or modules used by Tshakka in providing its Services. All Intellectual Property Rights in such Background Materials, as well as any improvements or modifications to them (even if made during the course of performing Services, but not specifically developed for Client), are and shall remain the exclusive property of Tshakka or its licensors. Nothing in this Agreement transfers ownership of Tshakka’s Background Materials to the Client. Tshakka grants the Client a non-exclusive, worldwide, royalty-free license to use and reproduce Tshakka’s Background Materials solely as incorporated in or necessary to use the Deliverables provided to Client, and strictly for the Client’s internal business purposes and the intended use of the Deliverables. This license is granted upon Client’s full payment of all fees due for the relevant Deliverable and shall last for the duration of the applicable intellectual property right (unless earlier terminated pursuant to this Agreement). The Client shall not separate, extract, or use Tshakka’s Background Materials apart from the Deliverables or Services.
7.2 Deliverables and Project-Specific IP: Subject to the above (Tshakka’s Background IP) and subject to any contrary provision in the Order Form, all Intellectual Property Rights in the Deliverables that are developed specifically and exclusively for the Client under an Order Form (sometimes called “Foreground IP”) shall, upon full payment of all fees for that Deliverable, be assigned to the Client. Tshakka hereby assigns and agrees to assign to Client all rights, title, and interest in such Deliverables and their intellectual property, to the extent they are developed for Client and do not include or consist of Tshakka’s Background Materials or third-party materials. To the extent such rights cannot be automatically transferred by operation of law, Tshakka shall execute any documents reasonably required to effectuate or perfect such transfer. Until such payment and transfer, Tshakka retains ownership of the Deliverables. If the Order Form specifies that Deliverables remain the property of Tshakka (for example, in a SaaS subscription model), then Client is instead granted a license to use those Deliverables as per Section 7.1 (and no assignment occurs). Notwithstanding the foregoing, Tshakka reserves the right to re-use, adapt, or commercially offer any generic software components, technical solutions, modules, or features developed during the performance of the Services, provided such re-use does not include any Client Materials, confidential information, or branding (such as logos, designs, or proprietary data) specific to the Client. Nothing in this Agreement shall restrict Tshakka from independently developing or offering similar functionality or services to other customers, provided such work does not infringe the Client’s Intellectual Property Rights.
7.3 Third-Party Components: Tshakka may use third-party software or open-source components as part of the Deliverables, including frameworks, libraries, or utilities developed by others. Ownership of such third-party components remains with their original rights holders. The Client’s right to use those components is subject to the applicable license terms, which Tshakka shall identify or make available to the Client upon request. Tshakka may freely use, integrate, and modify open-source software in accordance with its licenses, and may include such components in Deliverables without requiring assignment or approval, provided the usage is permitted under the applicable open-source license. Tshakka retains ownership of the Deliverables as a whole, including the manner in which such third-party elements are integrated or customized, but does not claim ownership over the open-source components themselves. If a third-party license requires a separate commercial license, the Client agrees to obtain it directly or reimburse Tshakka if acquired on the Client’s behalf.
7.4 Client Materials and Data: All Client Materials, including Client Data, provided by the Client and all Intellectual Property Rights therein, shall remain the property of the Client (or its licensors). The Client grants Tshakka a limited, non-exclusive, royalty-free license to use, reproduce, modify, and, if necessary, share with subcontractors the Client Materials solely for the purpose of performing the Services or delivering the Deliverables to the Client. In addition, Tshakka may, during and after the term of the Agreement, use Client Data — in aggregated, de-identified, or anonymized form — to improve its services and platform, including for model training, algorithm enhancement, analytics, and performance optimization, provided that such use does not disclose or make identifiable any confidential or personal information of the Client or its end-users. Tshakka may track and monitor usage of the Deliverables or platform by the Client or its users without separate notice, solely for internal operational, security, support, or product improvement purposes. Tshakka shall not disclose, sell, or share any Client Data with third parties, except to approved subprocessors for the performance of the Services, and always subject to confidentiality and data protection obligations no less strict than those in this Agreement. Tshakka acquires no ownership in the Client Materials or Client Data beyond the limited rights described above. All such materials shall be returned or deleted (at the Client’s election) upon termination of the Agreement or completion of the Services, subject to Section 10.4 (Data handover). The Client represents and warrants that it has all necessary rights in the Client Materials to permit the use contemplated here and that the use of Client Materials by Tshakka for the Services will not infringe or violate any third-party rights or applicable laws, including data protection regulations.
7.5 Feedback: If the Client or its users provide Tshakka with suggestions, feedback, improvement ideas or other comments about the Services or Deliverables (“Feedback”), Tshakka may use and incorporate such Feedback freely in its products and services. The Client grants Tshakka a perpetual, irrevocable, worldwide, sublicensable, royalty-free license to use and incorporate any Feedback into Tshakka’s current or future services or software, without any obligation to Client. Any incorporation of Feedback will not be considered a Deliverable under this Agreement and does not affect ownership of the Deliverables or Client’s rights.
7.6 Moral Rights: To the extent permitted by applicable law, Tshakka waives (or will procure waiver of) any moral rights (droit moral) in the Deliverables developed for the Client, so that the Client may use and modify the Deliverables without restriction for its business purposes. Where such waiver is not permissible, Tshakka agrees not to assert such rights in a manner that interferes with the intended use of the Deliverables by the Client.
7.7 No Trademark License: Nothing in this Agreement grants either Party the right to use the other Party’s trade names, trademarks, logos, or service marks in any advertising or publicity without prior written consent. However, Tshakka may include Client’s name and logo in lists of reference clients (including on Tshakka’s website or marketing materials) unless and until Client expressly opts out by written notice.
7.8 Protection of IP: Each Party agrees not to remove or obscure any copyright notices, confidential or proprietary markings on any materials exchanged under this Agreement. The Client will not purport to register any rights (including patents or copyrights) in Tshakka’s Background Materials or in Deliverables that remain Tshakka’s property. If the Client becomes aware of any infringement or unauthorized use of the Deliverables or Tshakka’s IP by a third party, it shall promptly inform Tshakka and reasonably cooperate in any enforcement action.
8. Data Protection and Privacy
8.1 Roles of Parties: To the extent Tshakka will process any personal data on behalf of the Client as part of the Services (for example, end-user data processed by a SaaS platform or personal information contained in Client Data), the Parties acknowledge that, for purposes of applicable data protection laws, the Client is the “Controller” and Tshakka is the “Processor” of such personal data. Each Party agrees to comply with the obligations applicable to it under the EU General Data Protection Regulation (GDPR) and any other applicable privacy laws. If Tshakka is processing personal data as a Processor, it shall do so only on documented instructions from the Client and for the purposes of providing the Services.
8.2 Data Processing Agreement: If Tshakka processes personal data on behalf of the Client in the context of the Services, the Parties agree that the terms in Sections 8.3 to 8.9 shall apply and serve as the required data processing agreement under Article 28 of the GDPR. These terms govern how personal data is processed, secured, and returned, and include the rights and obligations of both Parties.
8.3 Processor Obligations: When acting as a Processor, Tshakka shall: (a) process personal data only on the documented instructions of Client (the Controller) as set forth in this Agreement or as otherwise directed in writing, unless required otherwise by EU or Member State law (in which case Tshakka will inform Client unless prohibited); (b) ensure that persons authorized to process the personal data have committed to confidentiality; (c) take appropriate technical and organizational measures to protect personal data against unauthorized or unlawful processing and against accidental loss, destruction, damage, alteration or disclosure, taking into account the state of the art, costs of implementation, and nature of data (these measures may include encryption, access controls, pseudonymization, etc., as appropriate); (d) assist the Client in responding to data subject requests and in ensuring compliance with the Client’s obligations under GDPR Articles 32–36 (security, breach notifications, data protection impact assessments, etc.), taking into account the nature of processing and information available to Tshakka; (e) upon discovery, promptly inform Client of any personal data breach involving Client’s data and cooperate in any necessary notifications; (f) upon termination of Services relating to processing, at Client’s choice delete or return all personal data to Client (unless EU or Dutch law requires retention of some data); and (g) make available to the Client all information necessary to demonstrate compliance with these obligations and allow for and contribute to audits or inspections conducted by the Client or an auditor mandated by the Client, provided such auditor is bound by confidentiality.
8.4 Subprocessors: The Client provides a general authorization for Tshakka to engage Subprocessors (contractors or affiliates of Tshakka who may process personal data on Tshakka’s behalf to deliver the Services). Tshakka shall maintain an up-to-date list of Subprocessors upon Client’s request. Tshakka will impose on any Subprocessor data protection obligations equivalent to those in this Section 8. Tshakka remains fully liable to Client for the performance of Subprocessors’ obligations. Tshakka shall inform Client of any intended addition or replacement of Subprocessors with access to personal data, giving Client the opportunity to reasonably object on legitimate data protection grounds. If Client objects and the Parties cannot resolve the objection, Client may terminate those Services that cannot be provided without the proposed Subprocessor, with a prorated refund of any fees prepaid for periods after termination.
8.5 Controller Obligations: The Client, as Controller, warrants that it has all necessary rights to provide the personal data to Tshakka for processing in connection with the Services. The Client shall ensure that any required data subject consents or legal bases for processing are obtained and that the instructions it provides to Tshakka are lawful. The Client remains responsible for the accuracy, quality, and legality of personal data provided to Tshakka and the means by which the Client acquired such data. If any processing instructions from Client infringe applicable data protection law, Tshakka will inform Client (unless the law prohibits such notice).
8.6 Data Location and Transfer: Tshakka will process and store personal data in the European Economic Area (EEA) or in such other locations as agreed with Client. If any personal data is transferred outside the EEA to a country that does not have an EU adequacy decision, Tshakka shall ensure appropriate safeguards are in place for such transfer, such as by executing the relevant Standard Contractual Clauses adopted by the European Commission, or using another valid transfer mechanism under GDPR. Tshakka will cooperate with Client to implement any required cross-border transfer solution as needed to lawfully transfer personal data.
8.7 Privacy and Confidentiality: All personal data and Client Data processed by Tshakka is deemed Confidential Information of the Client. Tshakka shall not use or disclose such data except as permitted under Section 9 (Confidentiality) and this Section 8. Tshakka’s privacy policy (if any services involve personal data from individuals directly engaged via Tshakka’s platform) will be made available to Client or data subjects as required by law. Tshakka shall not sell personal data or process it for purposes outside the scope of this Agreement.
8.8 Data Requests and Cooperation: If Tshakka receives any request or query from a data subject or supervisory authority relating to Client’s personal data, it shall (to the extent legally permitted) promptly forward the request to Client and await Client’s instructions before responding. Tshakka will reasonably assist Client with addressing such requests or investigations, at Client’s expense if the effort is material and not attributable to Tshakka’s breach.
8.9 Processor/Controller Liability: Both Parties acknowledge that under Article 82 GDPR, if both a Controller and Processor are involved in processing causing damage, each may be held liable for the entire damage to ensure effective compensation, but as between the Parties, if Tshakka has paid full compensation for an incident, it shall be entitled to claim back from Client that portion of the compensation corresponding to Client’s responsibility for the damage (and vice versa). The limitations of liability in Section 12 of this Agreement apply to such claims between the Parties, to the maximum extent permitted by law.
9. Confidentiality
9.1 Definition of Confidential Information: “Confidential Information” means any non-public or proprietary information disclosed by one Party (“Disclosing Party”) to the other Party (“Receiving Party”) in connection with this Agreement, whether disclosed in writing, orally, visually, or in any other form, that is either identified as confidential at the time of disclosure or should reasonably be understood by the Receiving Party to be confidential due to the nature of the information or the circumstances of disclosure. Confidential Information of the Client includes, without limitation, Client Materials, Client Data, business plans, product requirements, marketing and financial information, and any technical information or trade secrets related to Client’s business. Confidential Information of Tshakka includes, without limitation, the terms of this Agreement and any Order Form (including pricing), the source code and documentation for the Tshakka Platform, any software or Deliverables (before delivery or general release), algorithms, know-how, product plans, and any non-public information regarding Tshakka’s business.
9.2 Obligations of Confidentiality: The Receiving Party shall: (a) use the Disclosing Party’s Confidential Information only for the limited purpose of performing its obligations or exercising its rights under this Agreement; (b) not disclose or permit disclosure of the Disclosing Party’s Confidential Information to any third party without the Disclosing Party’s prior written consent, except to the Receiving Party’s and its affiliates’ employees, officers, agents, contractors, or advisors who need to know such information for the purposes of this Agreement and are bound by confidentiality obligations at least as protective as those herein; and (c) protect the Disclosing Party’s Confidential Information using the same degree of care it uses to protect its own confidential information of a similar nature, but in no event less than a reasonable standard of care.
9.3 Exclusions: Information shall not be considered Confidential Information to the extent the Receiving Party can demonstrate that such information: (i) is or becomes generally publicly available through no breach of this Agreement by the Receiving Party (for example, information that is publicly released by the Disclosing Party); (ii) was already known to the Receiving Party, without confidentiality obligations, prior to disclosure by the Disclosing Party; (iii) is lawfully received from a third party without any obligation of confidentiality, provided that the third party did not acquire or disclose it through a wrongful or unauthorized act; or (iv) was independently developed by the Receiving Party without reference to or use of the Disclosing Party’s Confidential Information.
9.4 Compelled Disclosure: If the Receiving Party is required by law, regulation, or court order to disclose any of the Disclosing Party’s Confidential Information, the Receiving Party shall (to the extent legally permitted) promptly notify the Disclosing Party in writing so that the Disclosing Party may seek a protective order or other appropriate remedy. If disclosure is nonetheless required, the Receiving Party will disclose only that portion of Confidential Information which it is legally compelled to disclose and will use commercially reasonable efforts to ensure that the disclosed information is treated confidentially.
9.5 Return or Destruction: Except as otherwise provided in this Agreement or required by law, upon the Disclosing Party’s written request or upon termination of the Agreement, the Receiving Party shall promptly return to the Disclosing Party or destroy (and certify in writing such destruction) all materials embodying the Disclosing Party’s Confidential Information, including all copies, excerpts or summaries thereof. However, the Receiving Party may retain copies of Confidential Information that are automatically archived in its IT backup systems or that must be retained for legal or compliance purposes; any such retained information remains subject to the confidentiality obligations herein. Tshakka may also retain one copy of the project deliverables for record and evidence of its work, subject to ongoing confidentiality.
9.6 Confidentiality of Agreement: The Parties may disclose the existence of this Agreement, but the specific terms (including pricing, scope, etc.) are Confidential Information. Neither Party shall make any press release or public announcement about the relationship or the project without the prior consent of the other, except that Tshakka may list Client’s name and logo as referenced in Section 7.7.
9.7 Duration: The obligations in this Section 9 shall commence upon disclosure of Confidential Information and continue for a period of five (5) years after termination or expiration of this Agreement. With respect to any trade secrets of the Disclosing Party, the obligations shall continue for as long as such information remains a trade secret under applicable law.
9.8 Remedies: The Parties acknowledge that unauthorized disclosure of Confidential Information may cause substantial harm for which monetary damages may be an insufficient remedy. Each Party therefore agrees that the Disclosing Party will have the right to seek injunctive relief and specific performance in the event of any breach or threatened breach of this Section 9, in addition to any other remedies available at law or in equity.
10. Term and Termination
10.1 Term of Agreement: This Agreement enters into force on the Effective Date and shall remain in effect until terminated as provided herein. If the Parties have not specified a fixed term, the Agreement shall continue in effect for as long as any Order Form/SOW is active or Services are being provided, and thereafter until terminated by either Party in accordance with this Section 10. Individual Order Forms may have their own term (e.g., a start and end date for a project or an initial subscription term for a service). Termination of this Agreement shall automatically terminate all active Order Forms, unless the Parties agree otherwise in writing. Conversely, termination or expiration of a specific Order Form does not automatically terminate the entire Agreement (which will remain in effect for other ongoing Orders, if any).
10.2 Termination for Convenience: Unless expressly stated otherwise in an Order Form (e.g., some subscriptions or fixed-price projects may be non-cancellable for a certain term), either Party may terminate this Agreement or any individual Order Form for convenience by giving at least thirty (30) days’ prior written notice to the other Party, provided that if an Order Form specifies a longer notice period or fixed non-cancellable term, that shall govern for that Order. If the Client terminates an Order Form for convenience before completion of the Services or the end of a subscription term, the Client shall be responsible for payment of: (a) in a project scenario, the fees for work performed up to the termination effective date (on a pro-rated or T&M basis, as appropriate), including for any deliverables completed or in progress; and (b) any committed costs or expenses that Tshakka has incurred for the project which cannot be reasonably mitigated. In the case of prepaid subscription fees, unless otherwise specified in the Order, no refund will be due for early termination for convenience by Client. Tshakka may allow a credit or refund solely at its discretion depending on the circumstances and remaining term. If Tshakka terminates for convenience, it will refund any fees paid for services that would have been delivered after the termination effective date (pro rata refund of unused period of any subscription or incomplete deliverables for which payment was received).
10.3 Termination for Cause: Either Party may terminate this Agreement or any Order Form with immediate effect by written notice to the other Party if the other Party commits a material breach of this Agreement (including any incorporated terms or specific obligations of an Order Form) and, if the breach is capable of cure, fails to cure such breach within fourteen (14) days (or a longer cure period if explicitly provided, or a shorter period if the circumstances reasonably require more urgency) after receiving written notice detailing the breach. In the case of a breach that is not curable (for example, a breach of confidentiality that caused irreparable harm), termination may be immediate. Non-payment by Client of any undisputed fees within the agreed term (including the additional 7-day grace after reminder as per Section 6.4) shall constitute a material breach by Client. Unauthorized use or infringement of Tshakka’s intellectual property by Client, or Client’s insolvency, shall also be grounds for immediate termination by Tshakka for cause.
10.4 Termination for Insolvency or Legal Status: Either Party may terminate this Agreement immediately by written notice if the other Party (a) files for bankruptcy, suspension of payments (surseance van betaling), or similar protection from creditors, or such action is filed against it and not dismissed within a reasonable time; (b) is declared bankrupt or goes into liquidation; (c) enters into an arrangement or composition with its creditors; (d) has a receiver or administrator appointed over significant portion of its assets; or (e) is dissolved or ceases to do business in the ordinary course. In any such event, the terminating Party shall have the maximum protection available under applicable law to continue or terminate the Agreement, and any mandatory provisions of Dutch insolvency law (or EU regulations) regarding continuation or termination of contracts will apply.
10.5 Effects of Termination: Upon expiration or termination of this Agreement or a specific Order Form for any reason:
Cessation of Services: Tshakka will cease performing the Services under the terminated Order and will deliver to Client any work-in-progress for which fees have been paid (or will be paid per Section 10.2). Any licenses granted to Client to use Deliverables or Tshakka Platform as part of the Services will terminate immediately as of the termination effective date, except to the extent a Deliverable was fully paid and delivered prior to termination (in which case the license or assignment for that Deliverable survives). For avoidance of doubt, if a SaaS subscription is terminated, Client’s right to access the platform ends on the termination date.
Payment of Outstanding Amounts: Client shall immediately pay all outstanding invoices and any accrued but unbilled fees for Services performed up to termination. In case of termination by Tshakka for Client’s breach, any fees for the remaining term of a fixed contract or subscription (if any) shall become immediately due as liquidated damages (this is not a penalty but a reasonable estimate of loss due to early termination). In case of termination by Client for Tshakka’s breach, Client shall owe fees only for the Services satisfactorily provided up to termination and shall be entitled to a refund of any pre-paid fees for Services not provided due to early termination.
Return of Confidential Information: Each Party shall, upon request, return or delete the other Party’s Confidential Information as per Section 9.5.
Data Handover: For any Client Data or content hosted by Tshakka as part of a Service (e.g., data stored in a SaaS platform), Tshakka shall, upon Client’s request made at or before termination, provide the Client with a final export or copy of Client Data in a commonly used format. Tshakka may charge for any reasonable costs associated with such data export if it is a significant effort and not part of standard service. After providing the data or if no request is made within 30 days after termination, Tshakka will delete or render inaccessible all Client Data in its possession, except as required to retain by law or archival backups.
Ongoing Clauses: Any provisions of this Agreement which by their nature or intent are meant to survive termination (such as accrued rights to payment, confidentiality, limitations of liability, indemnities, governing law, etc.) shall so survive. Termination shall not prejudice any claim either Party may have against the other arising out of the Agreement prior to termination.
10.6 Partial Termination: If a particular Order Form or subset of Services is terminated, the Agreement and any other Order Forms not affected shall remain in effect. In such case, the Effects of Termination in 10.5 apply only to the terminated Order/Services, and the Parties shall adjust their obligations accordingly for the ongoing parts.
10.7 Force Majeure: Neither Party shall be liable for any delay or failure in performing its obligations (except payment obligations) if such delay or failure is caused by events or circumstances beyond its reasonable control (“Force Majeure”), including but not limited to acts of God, war, terrorism, civil unrest, strikes or labor disputes, utility or telecommunication outages, pandemics, fire, flood, earthquakes, or governmental action. The affected Party shall promptly notify the other of the Force Majeure event and make reasonable efforts to mitigate its effects. If a Force Majeure event continues for more than sixty (60) days, either Party may terminate the affected Services or Order by written notice without liability, provided that fees for work already performed or costs incurred by Tshakka until termination shall still be due.
11. Indemnification
11.1 Tshakka’s Indemnity (IP Infringement): Tshakka shall defend, indemnify, and hold harmless the Client and its affiliates, and their officers, directors, and employees, from and against any third-party claims, suits, or legal proceedings (and any resulting damages, liabilities, costs or expenses, including reasonable attorney’s fees) to the extent based on an allegation that the Deliverables or Services provided by Tshakka under this Agreement (excluding any Client Materials or third-party components specified by Client) infringe or misappropriate a third party’s patent, copyright, trademark, or trade secret under the laws of: (i) The Netherlands, (ii) the European Union, or (iii) the jurisdiction where the Client’s primary place of business is located (if disclosed to Tshakka). This indemnity obligation is conditioned on the Client: (a) promptly notifying Tshakka in writing of the claim (such that no prejudice is caused to Tshakka’s ability to defend); (b) giving Tshakka sole authority and control over the defense and settlement of the claim (provided that any settlement that imposes non-monetary obligations on Client or admits liability on Client’s part shall require Client’s prior written consent); and (c) providing reasonable information and assistance to Tshakka in the defense. Provided these conditions are met, Tshakka will pay any settlements agreed to by Tshakka or final court-awarded damages arising from such claim.
11.2 Exclusions and Remedies: Tshakka’s obligations in Section 11.1 shall not apply if the alleged infringement arises from: (i) Client’s use of Deliverables in combination with any other software, product, or data not provided or approved by Tshakka, where the Deliverable itself would not be infringing but for such combination; (ii) use of the Deliverable in a manner contrary to the Agreement or for a purpose not intended by Tshakka; (iii) any modification of the Deliverable by anyone other than Tshakka or its authorized agents; or (iv) any designs, specifications, instructions or Client Materials provided by Client. In the event any Deliverable is, or in Tshakka’s reasonable opinion is likely to be, held to be infringing, Tshakka may, at its expense and option: (a) obtain for the Client the right to continue using the Deliverable; (b) modify or replace the Deliverable (or infringing part thereof) to make it non-infringing, without materially reducing its functionality; or (c) if the above options are not feasible on commercially reasonable terms, terminate the license for the affected Deliverable and (if the Deliverable was a major part of the Services) refund to the Client a fair portion of the fees paid for that Deliverable, depreciated on a straight-line basis over three (3) years from delivery (unless another useful life was agreed). This Section 11.1–11.2 states the sole and exclusive liability of Tshakka, and the sole remedy of the Client, for any third-party intellectual property infringement or misappropriation claims regarding the Services or Deliverables.
11.3 Client’s Indemnity: The Client shall defend, indemnify, and hold harmless Tshakka, its affiliates, and their officers, directors, and employees, from and against any third-party claims, demands, or legal proceedings (including all damages, liabilities, costs and expenses, and reasonable legal fees) arising out of or related to: (i) Client Materials or Client Data supplied by Client, including any claim that Client’s data or content (or Tshakka’s use thereof in accordance with this Agreement) infringes the rights of a third party (including intellectual property rights or privacy rights) or has caused harm to a third party; (ii) the Client’s use of the Deliverables or Services in violation of the Agreement or applicable law (including any breach of Section 4.7 on acceptable use, or any processing of personal data by Client as Controller that violates data protection laws); or (iii) any injury or damage to persons or property caused by the Client’s products or business operations to the extent not due to Tshakka’s breach. The same conditions of defense apply: Tshakka shall (a) promptly notify Client of the claim, (b) allow Client to control the defense and settlement (with similar caveat about any settlement affecting Tshakka’s rights or imposing non-monetary obligations requiring Tshakka’s consent), and (c) provide necessary information and cooperation.
11.4 Indemnity Limitations: The indemnifying Party under Section 11.1 or 11.3 shall not be responsible for any settlement it does not pre-approve in writing (such approval not to be unreasonably withheld). The indemnified Party may participate in the defense with its own counsel at its own expense. Subject to Section 12, the liability of the Parties under this Section 11 is subject to the limitations and exclusions of liability as set forth in Section 12, except that any indemnity obligations owed to third parties (amounts actually paid to third parties or to opposing parties in litigation) shall not be considered indirect or consequential damages insofar as they constitute direct losses to the indemnified Party for which indemnification is provided.
12. Limitations of Liability
12.1 No Indirect Damages: To the maximum extent permitted by law, neither Party shall be liable to the other for any indirect, special, incidental, punitive, or consequential damages of any kind, nor for any of the following types of loss or damage, whether arising in contract, tort (including negligence), or otherwise, and even if the Party has been advised of the possibility: loss of profits, loss of revenue, loss of business or opportunity, loss of anticipated savings, loss of goodwill or reputation, or loss, corruption or compromise of data (except to the extent a Party is specifically liable under this Agreement for data restoration costs as part of a provided Service).
12.2 Liability Cap: Except for the excluded matters set forth in Section 12.4 below, each Party’s total aggregate liability arising out of or in connection with this Agreement, whether in contract, tort, breach of statutory duty or otherwise, shall not exceed the total amount of fees paid or payable by the Client under this Agreement in the twelve (12) months immediately preceding the event giving rise to the liability (or, if the duration of Services under the Agreement has been less than 12 months, the total amount paid or payable for such shorter period). If the claim relates to a specific Order Form or Service, the liability shall be limited to the fees paid/payable for that specific Order or Service in the 12 months before the claim. For one-time development projects where fees are paid on a milestone or project basis, the total liability of Tshakka shall not exceed the total fees paid by Client for the project in question.
12.3 Multiple Claims: The foregoing liability cap applies in the aggregate to all claims and causes of action arising under or related to the Agreement. Multiple claims shall not enlarge the cap. All amounts (e.g., damages, indemnity payments, etc.) for which a Party is liable shall count toward the cap.
12.4 Unlimited Liability (Exceptions): Nothing in this Agreement shall operate to exclude or limit either Party’s liability for: (a) death or personal injury caused by its negligence or willful act; (b) fraud or fraudulent misrepresentation; (c) gross negligence or willful misconduct (opzet of bewuste roekeloosheid) of that Party or its management; (d) any breach of obligations implied by applicable law that cannot be excluded or limited by contract (to the extent such limitation is not permitted); or (e) to the extent arising from the indemnity obligations in Section 11 towards third-party claims for which the indemnifying Party is liable to pay (provided that this exception (e) shall not be construed as implying any unlimited liability towards the other Party beyond the indemnity payments actually owed to third parties). Additionally, the liability cap in Section 12.2 shall not apply to Client’s obligation to pay fees due under this Agreement or any misuse or infringement of the other Party’s intellectual property rights (in case of infringement, standard damage rules apply, and injunctive relief may be sought).
12.5 Fair Allocation of Risk: The Parties agree that the limitations and exclusions of liability in this Agreement were agreed as a fair allocation of risk and form part of the consideration for the fees charged under the Agreement. Each Party acknowledges that the other has set its pricing and entered into the Agreement in reliance on the disclaimers and limitations of liability and that these limitations shall apply notwithstanding any failure of essential purpose of any limited remedy.
12.6 Limitation Period: To the extent permitted by law, no action or proceeding arising out of this Agreement may be brought by either Party more than two (2) years after the cause of action has accrued, except that this limitation shall not apply to collection of past due fees or to enforcement of intellectual property rights.
13. Governing Law and Dispute Resolution
13.1 Governing Law: This Agreement and any disputes or claims arising out of or relating to it (including non-contractual disputes or claims) shall be governed exclusively by the laws of The Netherlands, without giving effect to any conflict of laws principles that would result in the application of the laws of another jurisdiction. The Parties expressly exclude the applicability of the United Nations Convention on Contracts for the International Sale of Goods (1980) (CISG) and any other international treaties that could apply to the extent such exclusion is permitted.
13.2 Jurisdiction: The Parties agree that the courts of The Netherlands shall have exclusive jurisdiction. In particular, any disputes arising out of or in connection with this Agreement shall be submitted to the competent court in The Hague, The Netherlands (Rechtbank Den Haag). Each Party irrevocably submits to the personal jurisdiction of such court and waives any objections to venue or inconvenient forum.
13.3 Good Faith Negotiation: Before initiating any legal action, the Parties shall first attempt in good faith to resolve their dispute by negotiation between senior executives. If a dispute arises, either Party may give written notice to the other describing the issue and requesting a meeting between representatives with decision-making authority. The Parties shall meet (in person or via teleconference) within 14 days of such notice to attempt to resolve the dispute. If after 30 days from the initial dispute notice the Parties have not resolved the dispute, either Party may proceed to litigation (or agreed arbitration, if they so choose by mutual consent). This clause shall not prevent either Party from seeking preliminary injunctive relief at any time if necessary to prevent imminent harm.
13.4 Language of Proceedings: The official language of this Agreement is English. In case of a dispute, the proceedings and documentation will be in English (unless both Parties agree to use Dutch or are required by the court to provide translations). The Parties acknowledge that they are business entities capable of conducting business in English.
14. Miscellaneous Provisions
14.1 Integration with General Terms; Order of Precedence: The provisions of Tshakka’s General Terms and Conditions (Algemene Voorwaarden) are hereby incorporated into this Agreement. In the event of any conflict or inconsistency between documents, the following order of precedence shall apply (unless explicitly stated otherwise in a particular document): (1) the Order Form or Statement of Work (project-specific terms), (2) these Terms of Service (main body of this Agreement), and (3) the General Terms and Conditions of Tshakka. Higher-ranked documents will prevail over lower-ranked ones to the extent of the conflict. Any addendum or annex (such as a Data Processing Agreement or Service Level Agreement) that is expressly made part of this Agreement shall have the priority as stated therein, or if not stated, would typically rank above these Terms for the specific subject matter it addresses.
14.2 Changes to Terms: Tshakka may update or modify its General Terms and Conditions or these Terms of Service from time to time to reflect changes in law or best practices, or adjustments to business processes. However, any such changes shall not apply to an ongoing project or Order Form unless agreed by the Client in writing. For new engagements or renewal terms, Tshakka shall notify the Client of the updated terms. If the Client objects to a material change that adversely affects its rights, the Parties shall negotiate in good faith to resolve the difference or the Client may choose not to enter into a new Order under the changed terms. In no event will a unilateral change to terms apply retroactively to services already under contract without the Client’s consent.
14.3 Assignment: Neither Party may assign or transfer this Agreement or any of its rights or obligations hereunder to any third party without the prior written consent of the other Party, except that: (a) Tshakka may assign this Agreement in its entirety to a successor in interest in the event of a merger, acquisition, or sale of all or substantially all of its assets or business to which this Agreement relates, or to an affiliate as part of an internal reorganization, provided that the assignee agrees in writing to be bound by all terms of this Agreement and is capable of performing Tshakka’s obligations; and (b) Client may assign its rights and obligations to a successor in the event of a merger or sale of the Client’s business units that use the Deliverables, with Tshakka’s prior consent (not to be unreasonably withheld). Any purported assignment in violation of this Section is void. This Agreement shall be binding upon and inure to the benefit of the Parties, their successors and permitted assigns.
14.4 No Third-Party Beneficiaries: This Agreement is made for the sole benefit of Tshakka and the Client and their respective permitted successors and assigns. Except as expressly provided in Section 11 (Indemnification) with respect to indemnified persons, nothing in this Agreement confers any legal rights or benefits on any third party, whether under Dutch Civil Code Book 6 Article 253 (derdenbeding) or otherwise. The Parties may amend or terminate this Agreement without the consent of any third party.
14.5 Independent Contractors: The relationship of the Parties under this Agreement is that of independent contractors. Nothing in this Agreement is intended to, or shall be deemed to, establish a partnership, joint venture, employment, or fiduciary relationship between the Parties. Neither Party has authority to act as agent for, bind, or incur obligations on behalf of the other Party. Tshakka personnel working on Client’s premises shall remain under Tshakka’s direction and control and shall not be considered employees of Client. The Client is solely responsible for its own employees and contractors.
14.6 Severability: If any provision of this Agreement is held to be invalid, illegal, or unenforceable by a court of competent jurisdiction, that provision shall be deemed modified to the minimum extent necessary to make it enforceable (or if not possible, severed) so that the remainder of the Agreement will continue in effect. The Parties shall negotiate in good faith a valid and enforceable provision substituting for the invalid provision that most closely approximates the intent and economic effect of the invalid provision.
14.7 No Waiver: A failure or delay by either Party to enforce any right or provision of this Agreement shall not constitute a waiver of that provision or any other provision. Similarly, a single or partial exercise of any right or remedy shall not preclude further exercise of any other right or remedy. To be effective, any waiver of rights must be in writing and signed by the Party waiving the right.
14.8 Notices: Any formal notices or communications under this Agreement that are required to be “written” or delivered shall be in English and shall be deemed given: (a) when delivered by hand or courier with tracking to the recipient’s address specified in the Order Form or registered office; (b) when sent by registered mail or an internationally recognized express mail service (receipt requested) to that address (notice effective on the date of confirmed delivery or attempted delivery); or (c) when sent by email to the legal or contract notice email address provided by the Parties, provided that a copy is also sent by one of the foregoing physical delivery methods. Day-to-day project communications and operational notices (such as routine reports, support requests, etc.) may be conducted via regular email or project management tools and do not require formal notice procedure. Each Party shall promptly notify the other of any change in its notice address or contact.
14.9 Headings and Language: The headings of sections in this Agreement are for convenience only and shall not affect the interpretation of any provision. Terms defined in singular include the plural and vice versa. The words “including” or “for example” shall be construed without limitation. This Agreement is drawn up in the English language at the request of both Parties. In case of any translation of this Agreement into another language, the English text shall prevail.
14.10 Counterparts and Electronic Signatures: If this Agreement (including Order Forms) is to be signed, it may be executed in counterparts, which together will form one instrument. Signatures transmitted by electronic means (scanned PDF or electronic signature services) shall be valid and binding as original signatures. Alternatively, acceptance of an Order Form referencing this Agreement (including clicking acceptance through an online platform provided by Tshakka) shall constitute execution of this Agreement by the Client.
14.11 Priority of Negotiated Terms: The Parties agree that the terms of this Agreement, including any Order Form, are the result of mutual negotiation between sophisticated business parties. Therefore, the rule of construction that ambiguities shall be resolved against the drafter shall not apply to this Agreement. If the Parties have added any negotiated clauses or amendments in an Order Form or addendum, those negotiated clauses shall take precedence over any conflicting standard term in this document, as per the order of precedence in Section 14.1.
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By signing an Order Form or Statement of Work that references these Terms of Service, each Party’s authorized representative acknowledges that they have read and agree to all of the provisions of this Agreement.