These terms are used by Rafael Matabadal, trading under the name WinSphere (sole proprietorship), located at Krooneendstraat 19 in The Hague, registered with the Dutch Chamber of Commerce under number 93325614.
1. Definitions
In these terms and conditions, the following definitions apply: WinSphere: WinSphere Dynamics, sole proprietorship, registered with the Dutch Chamber of Commerce under number 93325614, located at Krooneendstraat 19 in The Hague, trading under the name WinSphere; the user of these terms. Client: the natural person or legal entity that enters into an agreement with WinSphere or submits a request to do so. Assignment: the work to be performed by WinSphere in the field of AI, automation and data systems. Agreement: any arrangement between WinSphere and the client for the provision of services. In writing: also by email or via another electronic channel.
2. Applicability
These terms apply to all quotations, offers, assignments and agreements under which WinSphere provides services. Deviations apply only if agreed in writing. Any purchasing or other terms of the client are expressly rejected. If any provision of these terms proves void or voidable, the remaining provisions remain in full force.
These terms are made available to the client before or upon conclusion of the agreement and can be downloaded and saved via winsphere.ai/algemene-voorwaarden. WinSphere attaches these terms, together with the privacy policy and the AI Act policy, as standard annexes to every order confirmation. The client confirms receipt of these annexes upon signing the order confirmation. By agreeing to a quotation or order confirmation that refers to these terms, the client accepts their applicability.
3. Quotations and offers
All quotations and offers from WinSphere are without obligation, unless the quotation includes a term for acceptance. Quotations are valid for thirty days, unless stated otherwise. Prices quoted are exclusive of VAT, unless stated otherwise. WinSphere cannot be held to a quotation if the client could reasonably understand that it contained an obvious mistake or clerical error.
4. Performance of the assignment
WinSphere performs the assignment to the best of its insight and ability, on the basis of a best-efforts obligation, unless a result has been explicitly promised. WinSphere determines the manner in which the assignment is performed. WinSphere may engage third parties in the performance, with due observance of the agreements on confidentiality and data protection.
5. Cooperation and data supplied by the client
The client ensures that all data, access and resources WinSphere needs are available on time and in the desired form. The client guarantees the accuracy and completeness of the data supplied. If the client fails to cooperate, or fails to do so on time, WinSphere may suspend performance and charge the resulting additional costs.
6. Prices and payment
Unless agreed otherwise, services are invoiced on the basis of a fixed amount per assignment or per agreed period. Invoices must be paid within fourteen days of the invoice date, unless agreed otherwise in writing. In the event of late payment, the client is in default by operation of law and WinSphere may charge statutory (commercial) interest and reasonable collection costs. WinSphere may suspend its work as long as outstanding invoices remain unpaid.
7. Delivery and deadlines
Stated deadlines are indicative and do not count as strict deadlines, unless expressly agreed otherwise in writing. If a deadline is exceeded, the client must give WinSphere written notice of default and offer a reasonable period to still perform. A delivered result is deemed accepted if the client has not made written and substantiated comments within a reasonable period after delivery.
8. Changes and additional work
If during performance it appears that the assignment needs to be adjusted or extended, the parties will consult on the consequences for planning and price. Work that falls outside the originally agreed assignment is considered additional work and invoiced separately. WinSphere only performs additional work after the client's approval, except where postponement is not reasonably possible.
9. Intellectual property
All intellectual property rights in works developed or delivered by WinSphere, including workflows, code, configurations, documentation and concepts, remain with WinSphere, unless agreed otherwise in writing. After full payment, the client obtains a right of use for the agreed purpose. The client is not permitted to reproduce delivered works or make them available to third parties without permission, except for its own internal use. Insofar as third-party AI models are used in performing the assignment, any rights in the underlying models remain with the relevant model provider. Output generated with an AI system specifically for the client falls under the right of use described in this article. WinSphere may use anonymised or aggregated data to improve its own services, unless agreed otherwise in writing.
10. Confidentiality
The parties treat all confidential information they receive from each other as confidential and use it solely for the performance of the agreement. Confidential information includes, among other things, business data, customer data, technical data and strategic information. This obligation remains in force after the end of the agreement.
11. Processing of personal data
Insofar as WinSphere processes personal data in performing the assignment, this is done in accordance with applicable legislation, including the General Data Protection Regulation. Where WinSphere acts as a processor, the parties record the arrangements in a data processing agreement. See our Privacy Policy for more information. The client warrants that the personal data it provides to WinSphere or has processed in the context of the assignment has been obtained lawfully and that an adequate legal basis exists for its processing, including, where required, valid consent from the data subject(s). The client indemnifies WinSphere against claims from third parties or supervisory authorities related to the absence of an adequate legal basis for the data supplied by the client.
12. AI Act, human oversight and transparency
Insofar as WinSphere develops, configures or delivers AI systems in the context of the assignment, the client is regarded as the deployer within the meaning of the EU AI Act (Regulation (EU) 2024/1689) for the use of the delivered system within its own organisation, unless the parties have expressly agreed otherwise in writing. WinSphere does not act as a provider within the meaning of the AI Act, unless this has been agreed in writing for a specific assignment, or unless WinSphere is designated as such under Article 25 of the AI Act (for example in the event of a substantial modification of an existing high-risk system under its own name). The client is itself responsible for assessing whether a delivered AI system qualifies as a high-risk AI system within the meaning of Annex III to the AI Act, including in particular systems for the recruitment, selection or assessment of natural persons (Annex III, point 4), and for complying with the resulting obligations, including Article 26 of the AI Act. WinSphere provides on request the technical information about the delivered system relevant to this assessment. The client ensures adequate human oversight of AI systems delivered by WinSphere in accordance with Article 14 of the AI Act, in particular for systems used for decisions that may affect natural persons. WinSphere delivers the system with technical capabilities for human control and intervention; the design and execution of that oversight within the client's organisation is and remains the client's responsibility. The client is responsible for informing its own end users, candidates or other data subjects about the use of AI in processes in which they are involved, including the obligations under Article 50 of the AI Act and Articles 13 and 14 of the GDPR. The client indemnifies WinSphere against third-party claims arising from failure to fully comply with this information obligation.
13. Liability
WinSphere's liability for damage suffered by the client due to an attributable failure in the performance of the assignment is limited to a maximum of three times (3x) the fee agreed for the relevant assignment. WinSphere is never liable for indirect damage. Indirect damage includes in any event: consequential damage, lost profit, loss of goodwill, business interruption, and claims from the client's customers. These limitations do not apply in the event of intent or deliberate recklessness on the part of WinSphere or its managers, in line with established case law (Dutch Supreme Court 19 May 1967, ECLI:NL:HR:1967:AC4745, Saladin/HBU) and Article 6:248(2) of the Dutch Civil Code. WinSphere's liability for damage caused by auxiliary persons or third parties engaged by it is limited in the same way as WinSphere's own liability. A claim for damages must, on penalty of forfeiture, be submitted to WinSphere in writing and substantiated within twelve months after the client became aware, or could reasonably have been aware, of the damage and WinSphere's possible liability, without prejudice to the statutory limitation periods of Articles 3:307 and 3:310 of the Dutch Civil Code for claims that survive this forfeiture period.
14. Force majeure
WinSphere is not obliged to perform any obligation if it is prevented from doing so by force majeure within the meaning of Article 6:75 of the Dutch Civil Code. Force majeure includes, among other things, failures or outages of internet, telecommunications or energy, failures at suppliers, cloud or AI model providers, and other circumstances beyond WinSphere's control. During force majeure, obligations are suspended. If the force majeure lasts longer than thirty days, both parties may dissolve the agreement without any obligation to pay damages.
15. Duration and termination
The agreement is entered into for the duration of the assignment or for the agreed period. Ongoing agreements may be terminated by either party in writing with due observance of a reasonable notice period, unless agreed otherwise. Work already performed and costs incurred are invoiced upon termination.
At the end of the agreement, WinSphere makes the client's data and configurations available in a common format on request and subsequently deletes the remaining copies under its management, subject to statutory retention obligations. The costs of an extensive export and transfer may be invoiced separately.
16. Governing law and disputes
All agreements between WinSphere and the client are governed by Dutch law. Disputes will, insofar as the law permits, be submitted to the competent court in the district where WinSphere is located. The parties will endeavour to resolve a dispute by mutual consultation first before submitting it to the court.
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