GENERAL TERMS AND CONDITIONS
InSpark May 2018


 
DEFINITIONS
Article 1
1.1. 	These General Terms and Conditions have been filed with the Chamber of Commerce in Amsterdam under number 52859452.
1.2. 	These General Terms and Conditions take effect on May 1, 2018.
1.3. 	In these General Terms and Conditions, the following definitions apply:
a.	InSpark: InSpark B.V., based at the Oude Molen 3A (1184 VW) in Amstelveen, user of these General Terms and Conditions.
b.	Client: the natural or legal person on behalf of whom InSpark provides services.
c.	Parties: InSpark and Client.
d.	Performance: the services and / or activities as specified in consultation between Parties that must be performed by InSpark on behalf of Client and the conditions, including these General Terms and Conditions, under which the specified services must be performed and therefore mutually are agreed upon.
e.	Agreement: the Performance(s) agreed upon by Parties in writing.
f.	Contract Period: the term as stated in the Agreement and for which the Agreement is extended upon each renewal.
g.	Invoicing Period: the period over which the Premium due is charged.
h.	Errors: the substantial non-fulfilment of the Performance to the functional or technical specifications of the Performance as expressly made known by InSpark in writing and, in case the Performance concerns Custom Software in whole or in part, to the explicitly agreed upon functional or technical specifications. An error only exists if Client can demonstrate this and moreover, is reproducible.
i.	Commencement Date: the date on which the Agreement will take effect. 
j.	Infrastructure: an interconnected system of devices for the transmission of electronic data and managed as a coherent whole.
k.	Premium: the periodic amount that is due for the Performance(s) to be delivered as described in the Agreement.
l.	License Agreement: an Agreement whereby InSpark provides Client with licenses and / or rights of use on a repetitive basis with regard to the right to use certain software for a longer period of time and on the basis of a periodic rate, this being the Premium.
m.	Managed Services: the carrying out of remote management activities, including, but not limited to, the management of the (virtual) Infrastructure of Client by InSpark on the basis of a periodic rate, this being the Premium.
n.	Custom Software: software that is tailor-made or adapted by InSpark to the specific wishes of Client.
o.	Service Agreement: an Agreement whereby InSpark delivers certain repetitive Performances to Client for a longer period of time and on the basis of a periodic rate, this being the Premium.
p.	Response time: the time between the reporting of an incident by Client to InSpark, according to the method described in the Agreement, up to the moment when InSpark commences with the provision of support or the execution of management activities whereby the response time, during the opening hours of the service desk, is up to eight (8) hours.
q.	the Processor Agreement: an additional agreement between Parties, which specifies how InSpark, in its capacity as processor within the meaning of the General Data Protection Regulation (GDPR), will deal with personal data.




GENERAL
Article 2
2.1.	Insofar as Parties have not agreed otherwise in writing, the provisions of these General Terms and Conditions shall apply to all quotations, Agreements and Performances of InSpark, including any subsequent agreement, Processor Agreement or amended or supplementary agreement, as well as all legal relationships as a result thereof or in connection therewith.
2.2. 	These General Terms and Conditions apply to the exclusion of the (general) terms and conditions of Client. The (general) terms and conditions of Client are explicitly rejected by InSpark.
2.3.	Deviations from these General Terms and Conditions at the expense of InSpark only apply if they have been approved in writing by InSpark. The remaining provisions of these General Terms and Conditions will remain in full force.
2.4.	These General Terms and Conditions also apply to all Agreements with InSpark whereby third parties, which do not belong to InSpark, must be involved in the implementation.

OFFERS
Article 3
3.1.	All quotations are always without obligation, unless a fixed period of validity is stated in the written offer.
3.2.	A first quotation is accompanied by a copy of these General Terms and Conditions.
3.3. 	When Client signs a quotation, these General Terms and Conditions are deemed known by InSpark and therefore accepted.
3.4.	Agreements and arrangements are binding to InSpark only if and insofar as they have been confirmed in writing by InSpark.

GUARANTEES
Article 4
4.1. 	InSpark will execute the Performances to be performed properly, soundly and according to the provisions of the Agreement, in accordance with the requirements of due care and quality.
4.2.	InSpark ensures that the Performances to be performed by or on behalf of InSpark are carried out by persons who are competent in the matter.
4.3. 	InSpark guarantees that the Performance to be performed by, or possibly on behalf of InSpark, will meet the agreed upon qualifications as specified in the Agreement.
4.4. 	InSpark undertakes to treat as such all data and documents relating to the Agreement that are reasonably applicable as confidential and secret.

IMPLEMENTATION OF THE AGREEMENT
Article 5
5.1. 	All agreed upon Performances are performed within normal working hours, unless Parties have explicitly agreed otherwise.
5.2. 	If and insofar as required for the proper execution of the Agreement, InSpark has the right to have certain work carried out by other employees within InSpark and / or third parties that do not belong to InSpark.
5.3.	Any implementation periods agreed upon by Parties never apply as a final deadline. If an implementation period is exceeded, Client will have to send InSpark a written notice of default. The Client must also provide InSpark the opportunity to fulfil its obligations under the Agreement within a reasonable period of time.

MODIFICATION OF THE AGREEMENT
Article 6
6.1.	If during the implementation of the Agreement it appears that for a proper implementation it is necessary to change or supplement the Performances to be delivered, Parties will adjust the Agreement accordingly in a timely manner and in mutual consultation.
6.2.	If an amendment or addition to the Agreement entails additional work, InSpark will notify Client of this in advance.
6.3. 	If at the time of the conclusion of the Agreement there is a change in exchange rates of foreign currency, InSpark is entitled to pass on the aforementioned change, if applicable, to Client in addition to the prices previously provided by InSpark to Client. However, such an amendment to the previously stated prices does not entitle Client to cancel the Agreement.
6.4.	If at the time of or after the conclusion of the Agreement there is a change of taxes, levies or import duties due to any government measure, InSpark is entitled to charge the aforementioned change, if applicable, in addition to the prices previously provided by InSpark to Client. However, such an amendment to the previously stated prices does not entitle Client to cancel the Agreement.

DEFECTS AND COMPLAINT TERMS
Article 7
7.1.	Complaints about the delivered Performance must be reported in writing to InSpark within one (1) week by Client after Client has discovered these or could reasonably have discovered them.
7.2.	If a complaint is warranted, InSpark will perform the agreed upon Performance properly, unless this has become demonstrably useless in the meantime. The latter must be made known by Client in writing. If the performance of the agreed upon Performance is no longer possible or useful, InSpark will only be liable within the limits of Article 11.

PRICES
Article 8
8.1. 	All prices are exclusive of VAT and other levies that are or will be imposed by the government. Unless otherwise agreed, all prices are always in euros and Client must make all payments in euros.
8.2.	At the conclusion of the Agreement Parties determine the manner of compensation. Unless Parties have agreed otherwise in writing, all Performances by InSpark on behalf of Client will be charged to Client on the basis of one of the following methods:
a.	Subsequent Calculation: all Performances to be performed by InSpark will be charged to Client according to the hourly rates made known to Client in advance, whereby the hourly rate applicable for the period in which the Performances are performed will be multiplied by the number of hours worked.
b.	Premium: the Performances to be performed by InSpark are periodically charged to Client.
8.3.	Any (preliminary) calculations and budgets to be provided by InSpark are only indicative. Client can never derive any rights or expectations from this.
8.4.	Once a year InSpark is entitled to adjust its prices as described in Article 8.2. for both new and existing Agreements If InSpark makes use of an agreement with third parties for the Agreement, InSpark is entitled to pass on any price changes. InSpark is also entitled to pass on reasonable increased operating costs.
8.5.	As a result of inflation, InSpark is entitled annually to implement a price increase equal to the annual percentage change of the consumer price index for all households (CPI), as published by Statistics Netherlands (CBS), during the preceding Invoicing Period.

PAYMENT
Article 9
9.1. 	Unless Parties have agreed otherwise in writing, the payment of invoices must take place within 30 days of the invoice date. Objections against the invoice do not suspend the payment obligation.
9.2.	InSpark is at all times entitled to require payment in advance, cash payment or security for the fulfilment of Client’s obligations under the Agreement. If Client does not comply with such a request, InSpark will not be liable for any damage that arises as a result of the termination or suspension of the work by