Article 1 Definitions
In the context of these General Terms and Conditions the definitions have the following meaning:
1.1 General Terms and Conditions: these General Terms and Conditions, applicable for the legal relation between the Client and SparkLing One. Using the Services and/or Products from SparkLing One is considered as awareness of these General Terms and Conditions, as well as acceptance thereof;
1.2 Agreement: any agreement of service provision or other Agreement that SparkLing One concludes with the Client and all Agreements and/or commitments arising from or relating to this.
1.3 Assignment: the Agreement by which SparkLing One commits itself to the Client to undertake certain Services;
1.4 Quotation: the free offer made by SparkLing One to the Client;
1.5 The Client: the natural person or legal entity that has given SparkLing One the order to perform Services or other work activities;
1.6 Parties: SparkLing One and the Client jointly;
1.7 Work activities: all assigned Work activities to be performed by SparkLing One for the benefit of the Client and that have been accepted by SparkLing One as well as the Work activities agreed in the Agreement between SparkLing One and the Client as well as all Work activities arising from this for SparkLing One;
1.8 Services: all Services delivered or to be delivered to and at the request of the Client by SparkLing One, such as the providing of guidance and intermediary services with regard to the (temporary) residence in the Netherlands;
1.9 Intellectual property: all intellectual property rights of SparkLing One, including the copyright and trademarks;
1.10 Personal data: any data about an identified or identifiable natural person;
1.11 Days: all calendar days;
1.12 Force Majeure: any circumstance beyond the control of SparkLing One – even when this was to be foreseen in the company of SparkLing One or its suppliers at the time that the Agreement was concluded and furthermore all circumstances whereby compliance of the Agreement cannot reasonably be requested from SparkLing One;
1.13 Non-accountable failure: among others, war, threat of war, rebellion, fire, factory disruption, strike, malfunction of systems/software, blockades, exclusion, traffic disruption, sickness of staff, the non-compliance or late compliance of their obligations by third parties;
1.14 SparkLing One: Mrs Y.L. de Vries – Chan, operating under the name “SparkLing One”, registered at the Chamber of Commerce under number 67803997.
Article 2 Applicability
2.1 These General Terms and Conditions apply on all Quotations, Orders and Agreements, whatever they are called, whereby SparkLing One commits itself or will commit itself to perform Services and/or supply Products for the benefit of the Client, as well as all work activities arising from this for SparkLing One. These General Terms and Conditions are applicable in any case and at any time with respect to supporting and guiding expats in matters that relate to their (temporary) residence in the Netherlands.
2.2 Deviations and/or additions to these General Terms and Conditions are only valid if these have explicitly been agreed in writing. This agreement never implies that the deviating conditions of the Client are also applicable on other Agreements between SparkLing One and the Client.
2.3 If any condition in these General Terms and Conditions is in breach with a condition stipulated in the Agreement, the condition stipulated in the Agreement applies regarding the contradiction.
2.4 If any provision of these General Terms and Conditions is invalid, the other provisions in these General Terms and Conditions remain in force. The relevant invalid provision(s) will be replaced by another, valid, provision that will approach the intended effect of the invalid provision as much as possible.
2.5 The applicability of the General Terms and Conditions of the Client are explicitly rejected by SparkLing One.
2.6 When these General Terms and Conditions are once applicable between Parties, this agreement implies that these General Terms and Conditions will also apply on other (future) Agreements between SparkLing One and the Client.
2.7 Provisions from these General Terms and Conditions will not apply, if and insofar mandatory legal regulations object to this. If a provision based on this ground would be invalid under circumstances, the most favourable regulation for SparkLing One applies and all other provisions remain in full force.
2.8 If there is confusion regarding the explanation of one or more provisions from these General Terms and Conditions, the explanation must take place ‘in the spirit’ of these provisions.
2.9 If a situation arises between parties that is not regulated in these General Terms and Conditions, this situation must be assessed ‘in the spirit’ of these General Terms and Conditions.
Article 3 Concluding of the agreement
3.1 A Quotation made by SparkLing One is always without obligations. A Quotation is valid for 14 days.
3.2 An Agreement between SparkLing One and the Client is concluded at the moment that the Client agrees with a Quotation or at the moment that SparkLing One has confirmed the Agreement between Parties in writing.
3.3 If the agreements made between Parties contain typing and/or spelling mistakes, SparkLing One will not be bound to these and SparkLing One will be given the opportunity to correct these mistakes.
3.4 Regarding the work activities for which in relation to the nature and scope no Agreement was concluded, the invoice applies as order confirmation, which is considered to correctly display the Order or Agreement.
Article 4 Cancellation of the order
4.1 SparkLing One reserves the right to cancel or interim stop Assignments or Agreements without stating a reason.
4.2 Cancellation or adjustment of the Agreement by the Client, based on legal requirements and the applicable Agreement between Parties, gives SparkLing One the right on compensation for made costs, including costs arising from contractual or other obligations towards third parties, as well as damage compensation due to loss of profit.
Article 5 Prices and payment conditions
5.1 Agreed upon prices are exclusive 21% VAT and inclusive travel expenses and travel time, unless otherwise specified.
5.2 Private clients will receive a 50% advance payment invoice, which shall be sent upon order confirmation. This amount must be paid before SparkLing One will proceed with the order. Upon order completion, the remaining 50% will be charged in a second invoice. This second invoice must be paid before final information can be released. Corporate clients will receive an invoice for the full amount, which must be paid in advance and prior to the execution of the assignment.
5.3 The payment term for invoices from SparkLing One is 7 (seven) days from the invoice date.
5.4 SparkLing One has the right – if SparkLing One deems this to be necessary or desirable – to engage third parties for the performance of the Order it has received. If this is the case, SparkLing One will specify the costs for this in the Quotation and/or Agreement.
5.5 The Client explicitly renounces the right on discount or debt settlement. Furthermore, the Client, by law and without requiring a summons or notice of default, will already be in default and in failure towards SparkLing One before the expiring of the mentioned payment term if the Client requests receivership or is declared bankrupt.
5.6 Any invoice or claim is considered as a separate claim of SparkLing One on the Client.
5.7 If the Client or third party does not pay within the term mentioned in article 5.3, the Client is in default only by the expiration of that term, without this requiring any further notice of default.
5.8 In all cases whereby the Client is in default towards SparkLing One, the following is the result by law:
̵ SparkLing One has the right to immediately suspend or terminate the service provision;
̵ The Client owes the legal trade interest on the main amount or on the unpaid part of the main amount;
̵ The client owes to SparkLing One the collection costs that are the result of non-payment or late payment, both the judicial as extrajudicial costs. The extrajudicial collection costs are owed by the Client as soon as SparkLing One has engaged the assistance of a bailiff or an attorney/lawyer for the outstanding amount. The collections costs are 15% of the main amount increased with legal interest with a minimum of Euro 40.
Article 6 Extra work
6.1 SparkLing One has the right to charge a reasonable amount of extra work to the Client against the rate of SparkLing One that is applicable at that moment. With extra work SparkLing One also means Work activities which are not included in the Quotation and/or Assignment confirmation, but which are necessary for a good performance of the Agreement.
6.2 If SparkLing One receives a (verbal) order from the Client regarding Work activities that have not been agreed, and the Client has accepted this work after the extra work was performed, or at least has not objected to the extra work, SparkLing One may assume that the extra work is done at the explicit request of the Client against the prices and rates used by SparkLing One.
Article 7 Delivery of services
7.1 The delivery of Services can be done at once or in parts, by choice of SparkLing One. Where delivery is mentioned below this also includes part delivery.
7.2 The Client understands that adjustment of the Agreement can result in a longer delivery time. If this is the case, SparkLing One will inform the Client of this as soon as possible.
7.3 The delivery times and/or other data agreed between Parties are no deadlines. SparkLing One makes every effort to meet the mentioned delivery times/data, however cannot guarantee these.
7.4 If the Client does not provide information on time or otherwise causes a delay of the (part) delivery, SparkLing One can charge costs for this.
Article 8 Obligations of the Client
8.1 The Client ensures that all data and/or information required by SparkLing One for a good performance of the Agreement, is provided to SparkLing One on time and complete.
8.2 If the Client does not provide the necessary data and/or information to SparkLing One on time, SparkLing One has the right to suspend the performance of the Agreement. In that case SparkLing One can charge costs as a result of the delay.
Article 9 Force majeure
9.1 If SparkLing One cannot meets it obligations due to a non-attributable permanent failure, it has the right to completely or partially terminate the Agreement by written notice, within a reasonable period, without SparkLing One being obliged towards the Client to pay any damage compensation – and also compensation of possible gained advantage.
9.2 A failure that cannot be attributed to SparkLing One is marked as permanent if the relevant performance cannot be carried out within a reasonable period after the circumstances have occurred. The reasonable period is considered to be at least 14 days.
9.3 If the performance can be carried out within a reasonable period the failure is not permanent and neither SparkLing One, nor the Client can terminate the Agreement. The obligation of SparkLing One to perform is suspended without SparkLing One being obliged towards the Client to pay any damage compensation or advantage allowance.
Article 10 Confidentiality
10.1 Parties guarantee the confidentiality of all data received from the other party of which one knows or should know that this has a confidential nature, unless a legal obligation requires disclosure of this data. In any case Data is considered as confidential if this is marked as such by any of the parties. This confidentiality applies for a period of three (3) years after termination of the Agreement between parties.
10.2 The parties are not bound to the obligations mentioned in article 10.1 if:
̵ the relevant information was already known to the relevant party before being received from the other party;
̵ the relevant information was already public knowledge before being received from the other party;
̵ the relevant information becomes public knowledge after being received from the other party;
̵ when the relevant information must be disclosed based on a legal obligation;
̵ Both parties have given permission to disclose the relevant information.
Article 11 Privacy
11.1 When SparkLing One, in the course of executing its Services, needs to process any Personal Data, the Client will be identified as the Data Controller, and SparkLing One as the Data Processor in compliance with the General Data Protection Regulation.
11.2 The Client shall guarantee that the Personal Data is not obtained illegally, nor that this information infringes on any entitlements of third parties. The Client shall indemnify SparkLing One of any claims that may result from the processing of the Personal Data.
Article 12 Intellectual property
12.1 Unless agreed otherwise in writing, all intellectual property rights related to the Products and/or Services of SparkLing One belong to SparkLing One. These rights are not transferred unless parties agree otherwise in writing.
Article 13 Liability and indemnities
13.1 With the performance of the Agreement SparkLing One will use all care and expertise that can be reasonably expected from SparkLing One. SparkLing One it not liable for damage of whatever nature if it relied on inaccurate and/or incomplete data provided by the Client unless the inaccuracy or incompleteness should be known to SparkLing One.
13.2 SparkLing One is not liable for any direct or indirect damage suffered by the Client, including consequential damage, that is related to a failure by SparkLing One or by people engaged by SparkLing One in the performance of the Agreement, unless this concerns intent and/or gross negligence.
13.3 Any claim on SparkLing One expires after a period of twelve (12) months after this has become due.
13.4 If SparkLing One, with consideration of the aforementioned, can be held liable, this liability is limited to the insured amount that qualifies for payment under the (business) liability insurance of SparkLing One. If the damage is not covered by the insurance or the insurer does not pay out in any case, the liability is limited to maximum twice the invoice amount of the relevant Agreement or twice the invoice amount of the total of the last three (3) months, all this always with a maximum of Euro 5,000.-.
13.5 The Client indemnifies SparkLing One against all claims from third parties, for which SparkLing One is not liable under the aforementioned.
13.6 The burden of proof related to any alleged liability of SparkLing One lies with the Client. The Client accepts this burden of proof.
Article 14 Right to suspend
14.1 If the Client does not correctly or not timely comply with any obligation that arises for him from an Agreement concluded with SparkLing One, as well as in case of bankruptcy or receivership or liquidation of the Client, the Client is legally considered to be in default and SparkLing One has the right, without any notice of default or legal intervention, to suspend the performance of the Agreement, till the obligation is met. In case SparkLing One suspends the performance of the Agreement or completely or partially terminates the Agreement, any claim it has or will have on the Client will be due immediately and at once.
Article 15 Proof
15.1 Regarding the applicable scope of the obligations from the Agreement concluded with SparkLing One – subject to proof by any means – the administrative data of SparkLing One are decisive.
15.2 Subject to proof by any means, the information mentioned on the invoice and/or Agreement applies as correct between the Client and SparkLing One.
Article 16 Other provisions
16.1 If SparkLing One includes another legal status in its company or there is talk of a merger with another company these General Terms and Conditions will remain applicable on the concluded Agreement(s).
16.2 SparkLing One is free to transfer all its rights and obligations based on the Agreement to a third party. This does not require the approval of the Client.
Article 17 Applicable law
17.1 All Agreements concluded with SparkLing One or commitments arising from these are exclusively subject to Dutch law.
17.2 In case of any dispute as a result of the Agreement on which these General Terms and Conditions applies, the court of Rotterdam has jurisdiction to be informed about the dispute.
Article 18 Adjustment
18.1 SparkLing One has the right to adjust these General Terms and Conditions. The adjusted provision(s) come(s) into force at the date indicated on the adjustment decision. On the website of SparkLing One a new version of the General Terms and Conditions can be read and downloaded after the moment of adjustment.
Article 19 Effective date
19.1 These General Terms and Conditions will come into force on 16 May 2018.
Article 20 Correction clause trivialities
20.1 If any provision from these General Terms and Conditions or from the underlying order/agreement may completely or partially be void and/or invalid and/or not enforceable, this due to any legal regulation, court ruling or otherwise, this will not affect the validity of all other provisions of these General Terms and Conditions or the underlying order/Agreement.
20.2 If any provision from these General Terms and Conditions or from the underlying order/agreement may not be valid for a reason as meant in the previous paragraph, but could be valid if it would have a more limited range or scope, this provision – for the time being – will automatically apply with the most reaching or extensive limited scope or meaning for or in which it is valid.
20.3 Without prejudice to the provision in paragraph 2 parties can consult with each other, if desired, in order to replace the void or annulled provisions with new provisions. Whereby these new provisions will relate to the purpose and scope of the void or annulled provisions, as much as possible.