These Terms and Conditions of Use apply to the use of all SPARQUE Products and Services.
In these General Delivery Terms the following definitions are used, both in singular and plural.
1.1 General Delivery Terms
These General Terms and Conditions, regardless of the form in which they are made known (on paper or electronically).
The direct and/or indirect (through third parties) provision by SPARQUE of products through a hosted (web) application.
The services to be provided and/or rendered by SPARQUE in the context of an agreement for the benefit of the client and the activities to be performed and/or carried out.
1.4 Identification data.
Login name, passwords, addressing data and/or other codes.
Maintenance of Cloud service.
The client to whom SPARQUE makes an offer or with whom SPARQUE concludes an agreement.
An agreement entered into between SPARQUE and the client, including appendices, to which these General Delivery Terms and Conditions apply.
SPARQUE and the client
The staff members and/or third parties to be engaged by the parties for the execution of an agreement.
All movable property that is the subject of any offer, quotation, agreement or other legal act in the relationship between SPARQUE and the client.
SPARQUE B.V. and its legal successors or a company affiliated to SPARQUE B.V. (parent company, sister company and/or subsidiary) which enters into a legal relationship with the client and has declared the General Terms and Conditions of Delivery of SPARQUE to be applicable.
1.12 SLA (Service Level Agreement).
Appendices to an agreement that define the applicable performance levels.
The provision of verbal and written advice regarding the use and operation of the Cloud Service.
1.14 Working Days
Calendar days, excluding weekends and public holidays in the Netherlands and scheduled days off, during office hours from 8.30 a.m. to 5 p.m. CET, on which the agreed services will be provided.
2.1 These General Conditions of Delivery shall apply to all agreements and offers made by SPARQUE. Deviations from these General Terms and Conditions of Delivery shall only be valid if agreed in writing between the parties.
2.2 Unless otherwise agreed in an Agreement or in these General Delivery Terms and Conditions, other general or special terms and conditions shall not apply.
2.3 In case of conflict, an Agreement shall prevail over these General Delivery Terms.
2.4 The general terms and conditions of delivery of SPARQUE are filed with the Chamber of Commerce under number 67538819.
2.5 SPARQUE is at all times entitled to make amendments or additions to the general terms and conditions of delivery of SPARQUE. The amended general terms and conditions of delivery of SPARQUE shall continue to apply, unless written objections are made within 30 (thirty) days after the date of the amendment.
2.6 In the event that one or more of the provisions in these general terms and conditions should at any time be wholly or partially null and void or voided, the remaining provisions of these general terms and conditions of delivery shall continue to apply in full. SPARQUE and the client will then consult to agree on new provisions to replace the void or voided provisions, with the purpose and intent of the original provisions being taken into account as much as possible.
3. Offer, acceptance, modification and transfer
3.1 All offers made by SPARQUE are valid for 30 days, unless otherwise indicated in writing.
3.2 Agreements shall be concluded when SPARQUE accepts the order placed by the client by means of an electronic or written confirmation/signature of a written agreement, or at the moment the client actually enables SPARQUE to commence the activities to be performed under the agreement. SPARQUE reserves the right to refuse an order without giving reasons.
3.3 SPARQUE's offers are based on the information provided by the client. The client guarantees the accuracy and completeness of that information and ensures that he has provided all essential information for the design and execution of the assignment.
3.4 The offers and quotations of SPARQUE, in whatever form, contain a complete and accurate description of the products and/or services offered. SPARQUE is not bound by obvious mistakes or errors in the offer or the quotation.
3.5 The agreement concluded between the parties and the rights and obligations resulting from it cannot be transferred to third parties without the prior written consent of the parties. This does not apply to SPARQUE with regard to the transfer of the entire agreement or parts thereof to parent, sister and/or subsidiary companies; SPARQUE has this right in advance, without the express permission of the client.
4. Delivery periods, shipment and transport
4.1 Unless otherwise expressly provided for in the offer and/or the agreement, all the (delivery) dates mentioned by SPARQUE have been estimated to the best of their knowledge on the basis of the information known to SPARQUE when concluding the agreement or when drawing up the offer. Exceeding a given (delivery) date shall not cause SPARQUE to be in default. Whenever a term threatens to be exceeded, SPARQUE shall immediately contact the client both verbally and in writing.
4.2 Shipment and transport of goods, which includes the delivery of data, shall always take place at the expense and risk of the client, even if they are performed or arranged by SPARQUE.
5. Prices, rates and fees
5.1 The prices and rates offered and agreed upon by SPARQUE are always in Euros and are exclusive of sales tax (VAT) and other government levies with regard to the delivery of goods and/or services.
5.2 SPARQUE is entitled to adjust its prices and rates annually during the term of the agreement. SPARQUE will inform the client in a timely manner of the changes in prices and rates. The announced price changes with regard to the delivery of products and/or services will take effect 60 days after the announcement.
5.3 If the client does not agree with a change in prices and/or rates announced by SPARQUE, the client has the right to terminate the agreement with SPARQUE within 30 days after the announced change, in the manner laid down in the agreement, by the date on which the change in question takes effect.
5.4 Under no circumstances can the client derive any rights from rates quoted in the past for the same or a similar assignment.
6.1 Fees for (use) of products and any periodic fees agreed in an SLA will be invoiced periodically in advance. Unless otherwise agreed this will be monthly.
6.2 Fees for services will be invoiced on a subsequent costing basis. The invoices will be specified according to the nature of the provided services.
6.3 In case of fixed price agreements, invoicing will take place as specified in the relevant agreement. If nothing has been agreed in this respect, invoicing will take place as follows:
- 50% at the time the order is placed;
- 50% upon delivery;
6.4 Payments by the client should be made within 30 days after the invoice date.
6.5 In the event that the client cannot agree with an invoice sent by SPARQUE, the client must make a written, motivated objection to SPARQUE within 30 days of the invoice date. If the client has not complied with the foregoing, he shall be deemed to have accepted the invoice.
6.6 If the agreed payment term is exceeded, the client shall be in default by operation of law without the preceding summons or notice of default by SPARQUE being required.
All (extra) judicial costs related to the collection of invoices shall be for the account of the client, with a minimum of 15% of the amount to be collected. The client will also owe the legal interest rate of 8% per year on late payments.
6.7 SPARQUE reserves the right, in case the client remains in default, 1. to suspend the delivery of the products and/or services and/or the access to the delivered products and/or services, whereby the payment obligation remains; and 2. in case of a continuing performance agreement, to claim the installments still due until the next termination possibility of the client.
6.8 SPARQUE is at all times entitled to demand (partial) advance payment or authorization with regard to the delivery of products and/or services, for instance by means of a direct debit authorization provided to SPARQUE, and to suspend delivery until the advance payment or authorization has been received.
7. Intellectual property rights
7.1 All intellectual property rights with regard to the products and/or services as well as the designs, software, documentation and all other materials developed and/or used in the preparation or execution of the agreement between SPARQUE and the client, or resulting from it, belong exclusively to SPARQUE or its suppliers. The delivery of products and/or services does not imply any transfer of intellectual property rights.
7.2 Parties undertake mutually to safeguard each other from claims by third parties on account of infringement of intellectual property rights claimed by those third parties with regard to data, software, equipment and/or (results of the) services provided to the other party, unless the infringement has arisen through a change or addition made by the other party - and not agreed upon in writing between parties. Each party will inform the other without delay about such claims of third parties by virtue of intellectual property rights.
7.3 The client is not permitted to remove or change any indication concerning copyrights, brands, trade names or other intellectual property rights from the products, (results of the) services or materials, including indications concerning the confidential nature and secrecy.
8.1 SPARQUE grants the client a non-exclusive, non-transferable right of use on the products for the duration of the agreement. The client will only use the products for his own purposes and for the agreed upon objectives. The client will strictly comply with the conditions laid down in the General terms of delivery or otherwise imposed on the client.
8.2 The client shall not copy, duplicate or alter the products in any way, nor shall he remove or circumvent the security measures applied.
8.3 SPARQUE is entitled to incorporate technical limitations and control mechanism in the products to prevent and/or control that the client exceeds the agreed usage.
8.4 The client will in no case use the products and/or services for actions which are in violation with the applicable laws or regulations, including but not limited to the Telecommunications Act, the Implementation Act General Data Protection Regulation, European privacy regulations, and the standards applicable on the Internet.
9. CLOUD SERVICE
9.1 SPARQUE provides use of products, among other things, through a Cloud service.
9.2 SPARQUE shall ensure the provision of the Cloud service. Unless otherwise agreed in an SLA, SPARQUE will, to the best of its ability and to the extent that it can influence SPARQUE, strive for an availability rate of:
- 99% from Monday to Friday between 09:00 and 17:00 (CET);
- 95% in the other hours.
The mentioned percentages are measured over a calendar year. The time for maintenance is not included in this.
9.3 The client must use the Cloud service and/or the other facilities offered in a responsible manner. It is forbidden to use the Cloud service and/or the other facilities offered in such a way that damage can occur to the systems of SPARQUE and/or third parties or that disruptions can occur in the use.
9.4 SPARQUE reserves the right to put the Cloud service and/or the other facilities offered out of use. This is the case if, in its own opinion, if forced to do so by law or a court decision and/or if a third party informs SPARQUE and/or suspects that by means of the Cloud service, the rights of a third party are infringed, if the provisions of the General Terms and Conditions of Delivery of SPARQUE and/or the agreement are violated and if the obligations resulting from these provisions are not, not properly or not fully fulfilled.
9.5 SPARQUE shall never be liable for damage of any kind suffered by the client and/or third parties as a result of the measures taken by and/or on behalf of SPARQUE on the basis of article 9.4.
9.6 In the context of access to and use of the Cloud service, the client has directly or indirectly equipment and software that meets generally accepted standards of Internet security. If and as long as equipment and / or software do not meet these standards, the obligation of SPARQUE to provide access to the Cloud service and the use of it by SPARQUE will be suspended.
9.7 In the event that the client notices a malfunction, this should be reported immediately to SPARQUE. After reporting a malfunction by the client, SPARQUE shall take those measures that lead or could possibly lead to recovery.
9.8 The costs for resolving the malfunction shall be borne by the client if it appears that the cause of the malfunction is the result of his injudicious use or is due to his acts or omissions in violation of the agreement.
9.9 SPARQUE shall notify the client in advance of any intended maintenance with regard to the Cloud service, if such maintenance will result in problems with regard to obtaining access to the Cloud service or the unavailability of the Cloud service.
9.10 SPARQUE will only make Identification Data available to the client for the use of products. The client will treat these Identification Codes with care. The client will notify SPARQUE in case of loss, theft and/or other forms of unlawful use, so that parties can take appropriate measures.
9.11 If it can be reasonably suspected that abuse or unlawful use has been made of the Identification Data of the client, SPARQUE may give the client instructions, which must be implemented.
9.12 SPARQUE is entitled to make additions and/or changes to the Cloud service without notice. These changes may include but are not limited to access procedures, security requirements, provider/supplier, facilities, user interface and functionalities.
10. Client's Data Traffic.
10.1 SPARQUE has no control over and/or insight in the content of the data traffic from and/or to the client. SPARQUE only acts as a conduit. SPARQUE makes no guarantees regarding the content of data in terms of, for example, reliability and completeness.
10.2 The client is responsible for the content of data traffic originating from the client.
10.3 The client is responsible for providing SPARQUE with complete and timely information for the desired use of products. The client furthermore guarantees that it is entitled to provide SPARQUE with these data.
10.4 The client shall indemnify and hold SPARQUE harmless from and against any claim, accusation or court procedure by a third party in connection with (the content of) the data traffic or the information originating from the client.
10.5 Insofar as the client is entitled to do so, the client explicitly agrees to the inclusion of (personal) data of users in the personal registration of SPARQUE for administration and management purposes. This registration of persons includes Identification data and is only accessible to SPARQUE. This information will not be provided to third parties, except in cases where SPARQUE is obliged to do so by law or a court order.
11. Protection of confidential information and data
11.1 All information and data exchanged between parties will be treated as confidential by the other party. The parties undertake not to disclose such information and data to third parties without the written permission of the other party, unless and insofar as they are required to do so under any mandatory statutory provision. The parties shall require their staff and other persons involved to observe this duty of confidentiality.
11.2 The client shall not use documentation, software, know-how or other goods made available by SPARQUE for any other purpose than that for which it was made available, nor disclose them to third parties without written permission from SPARQUE.
11.3 In the event of termination of an agreement, the data and information made available by the parties shall be destroyed or returned in a manner to be agreed.
11.4 SPARQUE is entitled to place the name and logo of the client to whom rights have been granted on the Products on the SPARQUE website and/or a reference list and to make these available to third parties for information. For other expressions in which the client is mentioned, SPARQUE shall ensure that the client's permission is obtained in advance.
12. Obligations from the General Data Protection Regulation (GDPR)
12.1 The provisions of this paragraph shall apply as a processor agreement within the meaning of the General Data Protection Regulation (GDPR) and shall apply to the agreement if and insofar as SPARQUE can be regarded as a processor within the meaning of the GDPR towards the client. This is particularly the case if the client has provided SPARQUE with Personal Data for the purpose of executing the agreement. If parties conclude a separate processor agreement, the processor agreement shall prevail over this paragraph.
12.2 The following terms have the meaning defined in Article 4 GDPR: Personal Data, Processor (being SPARQUE), Processor (being the client), Data Subject(s), Processing, Third Party, Recipient, Data Subject's Consent, Personal Data Breach (hereinafter: Data Breach). Duty to Report: the obligation to report a Data Breach as referred to in Article 33 of the GDPR.
12.3 SPARQUE shall only process Personal Data at the instruction of and on the basis of written instructions from the client. SPARQUE has no control over the purpose of the processing of Personal Data.
12.4 The client guarantees that the purposes of processing are at all times in line with the GDPR and that a legitimate basis exists for the processing. The client guarantees that the content, the use and the instruction to process Personal Data as referred to in the agreement, is not unlawful and does not infringe any right of Third Parties and the client indemnifies SPARQUE for all liability towards Third Parties in this regard.
12.5 SPARQUE shall not process Personal Data outside the European Union, unless it has obtained express written permission to do so from the client and except for different legal obligations.
12.6 SPARQUE is entitled to engage a sub-Processor in the processing, provided that the provisions of Art. 28 paragraphs 2 and 4 of the GDPR are followed. SPARQUE guarantees that all persons authorized to process personal data have committed themselves in writing to confidentiality towards it.
12.7 SPARQUE shall assist the client in enforcing the obligations under Articles 32 to 34 of the Regulation. SPARQUE shall, if possible, upon reimbursement of SPARQUE's reasonable costs, assist Client in enforcing the obligations under Articles 35 (data protection impact assessment) and 36 (prior consultation of supervisory authority) GDPR.
12.8 SPARQUE shall make available all information necessary to demonstrate that the obligations under this Processor Agreement have been and are being fulfilled.
12.9 SPARQUE shall provide all necessary cooperation in audits. The client may monitor SPARQUE's compliance with safeguards under the GDPR by means of audits at the expense of the client, which will be carried out by an independent expert to be appointed by the client.
12.10 Security Measures. SPARQUE has - taking into account the state of the art, the implementation costs, as well as the nature, scope, context and processing purposes and the risks to the rights and freedoms of individuals that vary in terms of probability and severity - taken appropriate technical and organizational measures to secure Personal Data against loss or against any form of unlawful processing, including the measures required in accordance with Article 32 GDPR, if appropriate. In any case, measures have been taken regarding the authorization of employees, awareness, an update protocol of patches, SSL/TSL certificate, pseudonymization of data, password verification for access to Personal Data, physical security with a limited number of key holders and intrusion protection. The client declares that the measures taken are appropriate in the given circumstances.
12.11 Data Leaks. SPARQUE shall, upon discovery of a Data Leak, inform the client without unreasonable delay, and in principle within 48 hours - not counting the time falling on weekends and public holidays - of its discovery, communicating the information referred to in art. 33 paragraph 3 AVG, namely - in short: a. the nature of the Data Breach, b. the details of the Data Protection Officer if SPARQUE has appointed one, c. the likely consequences of the Data Breach and d. the measures taken and to be taken to address the Data Breach.
12.12 SPARQUE is never obliged to report a Data Breach to Data Subject(s) and/or the supervisory authorities. This is the sole responsibility of the client.
12.13 Rights of Data Subjects. SPARQUE shall, to the extent possible and upon reimbursement of SPARQUE's reasonable costs, assist the client in fulfilling its duty to request the exercise of the rights of Data Subjects as mentioned in Chapter III GDPR. If SPARQUE receives a request for the improvement, addition, modification or blocking of personal data, as referred to in Article 16 AVG, SPARQUE shall forward the request to the Client with simultaneous notification thereof to the Complainant(s) and the client shall - if necessary in consultation with SPARQUE - deal with the request.
12.14 The client shall indemnify SPARQUE against any and all claims by third parties, including the Complainant(s), due to a breach of privacy.
12.15 Secrecy and Confidentiality. All Personal Data processed by SPARQUE from the client shall be subject to a duty of confidentiality towards Third Parties, except with the prior express written consent of the client.
12.16 SPARQUE will keep Personal Data provided by the client for the execution of the Agreement for a maximum period of 3 months after the end of the agreement, among other things, with a view to follow-up assignments to be provided by the client, after which the Personal Data will be destroyed by SPARQUE.
13. Use of external capacity
13.1 SPARQUE is entitled to make use of external capacity (including external experts and/or external computer capacity) for the performance of its obligations set out in an agreement. SPARQUE may do so on its own initiative and without the client's consent.
13.2 SPARQUE shall, when using external capacity on its own initiative, remain fully responsible for the correct performance of its obligations laid down in the agreement even though it only made use of the capacity available within its company.
13.3 The additional costs associated with the use of external capacity by SPARQUE shall be borne by the client. SPARQUE shall inform client in advance of the amount of the additional costs.
13.4 In the event that the client explicitly requests SPARQUE to make use of external capacity and SPARQUE agrees to this in writing, SPARQUE shall do what can reasonably be required of it for the proper performance of the agreement. However, SPARQUE will not be liable for the performance by the relevant third parties. The client shall enter into an agreement with said third parties on its own behalf.
14. The duration of the agreement, suspension and termination
14.1 Unless otherwise agreed, an agreement between SPARQUE and the client has a duration of one year if delivery concerns a product. After the initial period, the agreement shall be tacitly renewed each time for a period of one year, unless one of the parties cancels the agreement by the end of the then current period, with due observance of a notice period of 3 months. Notice of termination must be given in writing, namely by e-mail or by registered mail.
14.2 If one of the parties imputably fails to comply with essential obligations under an agreement, the other party has the right to terminate the agreement concerned with immediate effect, after the defaulting party, after having been given notice of default in writing by the other party, still fails to (properly) comply with the relevant obligation within a reasonable period set in the notice of default.
14.3 SPARQUE is entitled to suspend the fulfillment of the obligations or to dissolve the agreement, if the client does not fulfill the obligations under the agreement, or does not fulfill them fully or in a timely manner, or if after the conclusion of the agreement circumstances come to the knowledge of SPARQUE giving SPARQUE good grounds to fear that the client will not fulfill his obligations, or if the delay on the part of the client can no longer be required from SPARQUE to fulfill the agreement under the originally agreed conditions.
14.4 SPARQUE shall furthermore be entitled to dissolve the agreement when circumstances arise of such a nature that performance of the agreement is impossible or when other circumstances arise of such a nature that the unaltered maintenance of the agreement cannot reasonably be required of SPARQUE.
14.5 If SPARQUE proceeds with suspension or dissolution, it shall in no way be held to compensate for the damage and costs caused in any way.
14.6 If the dissolution is attributable to the client, SPARQUE shall be entitled to compensation for damage, including direct and indirect costs.
14.7 Each party shall furthermore be entitled to fully or partially dissolve the agreement without notice of default and without judicial intervention by means of a written statement with immediate effect if the other party applies for a (temporary) moratorium, is declared bankrupt by a final decision or if the company of the other party is liquidated or ended other than for the purpose of merging or splitting up companies. The party that dissolves the agreement for these reasons will never be liable for any damages.
14.8 Immediately after termination of the agreement, for whatever reason, the client will cease to use the products and/or services made available.
14.9 Obligations and rights pursuant to an agreement which, by their nature, are intended to continue after dissolution or termination of the agreement will remain in force between the parties - insofar as legally possible. These obligations and rights include Intellectual Property (article 7), Protection of Confidential Information (article 11), Liability (article 15) and Choice of Law and Forum (article 17).
15.1 If one of the Parties fails to perform one or more of its obligation(s) under an Agreement, the other Party shall give notice of default, unless performance of the obligation(s) in question is already impossible on a permanent basis, in which case the defaulting Party shall be immediately in default. The notice of default shall be in writing and shall grant the defaulting party a reasonable period in which to fulfill its obligation(s). This period has the nature of a deadline.
15.2 In the event of an attributable failure by one of the Parties to comply with its obligation(s), this Party shall be liable to the other Party for compensation of the direct damage suffered or to be suffered by the other Party as a result of the relevant attributable failure. This liability for direct damage is limited per event and per year to the fee(s) (excluding VAT) invoiced for that Agreement, with a maximum of EUR 1,100,000 and, in the case of continuing Agreements, is limited per event and per year to an amount equal to the fee(s) (excluding VAT) invoiced for that year under that Agreement, with a maximum of EUR 1,100,000. A series of connected events shall be deemed to be a single event.
15.3 Direct damage is exclusively understood as:
1. damage to software, equipment, data files and configuration data of data communication equipment, which shall be understood to mean: material damage as well as defective or non-functioning
2. material damage to other property of the other party and/or third parties;
3. costs of necessary modifications and/or changes in equipment, software, specifications, materials or documentation made to limit or remedy direct damage
4. reasonable costs incurred to prevent or limit direct damage which could be expected as a result of the event on which the liability is based
5. reasonable costs incurred in determining the cause of the damage, the liability, the direct damage and the method of recovery.
15.4 Any liability for consequential loss is excluded. In this connection consequential loss shall be understood to mean:
1. loss of profit;
2. costs incurred in preventing, limiting or determining consequential loss
3. other damage than the direct damage referred to in article 11.3, including but not limited to damage due to loss of data, damage due to exceeding delivery terms as a result of changed circumstances, damage as a result of the provision of inadequate information by the Client and damage due to information or advice by SPARQUE, the contents of which do not explicitly form part of a written agreement.
15.5 A condition for the existence of any right to compensation is always that one of the Parties notifies the other Party in writing by registered mail within 60 (sixty) days of the occurrence of the damage and takes such measures as will limit the damage as much as possible.
15.6 SPARQUE shall not be held liable if the Client has the possibility to directly sue his insurance company or that of a third party with regard to the occurrence of the damage.
15.7 The limitations of liability included in articles 15.2 and 15.4 shall cease to apply in the event of intent or gross negligence on the part of the party at fault.
15.8 The Client shall indemnify SPARQUE against all claims by third parties, however named, with regard to Products and Services provided, with due observance of the provisions of article 7.2.
15.9 The limitations of liability mentioned in articles 15.2 and 15.4 shall apply accordingly to indemnifications.
16. Non-attributable failure (force majeure)
16.1 In the event of force majeure on the part of either Party, the obligations to which the force majeure relates under an Agreement will be suspended for as long as the force majeure situation persists. Force majeure means any circumstance independent of the will of the Parties which permanently or temporarily prevents the performance of an Agreement and which cannot reasonably be attributed to that Party.
16.2 In these general terms and conditions, force majeure is understood to mean, in addition to what is understood in the law and in case law, all circumstances independent of the will of SPARQUE, external causes that cannot reasonably be foreseen and which result in SPARQUE not being able to (fully) fulfill its agreements. These circumstances include, but are not limited to: war, strikes, riots, pandemics, outbreaks, illness of own staff as well as of hired third parties, lack of staff, fire, company and technical failures or closures at SPARQUE or at hired external parties, government measures imposed on SPARQUE or external parties on which SPARQUE depends, closing of national borders, having insufficient or incorrect information at one's disposal, or if insufficient cooperation is provided.
16.3 If the situation of force majeure has lasted for three months, or as soon as it is clear that the situation of force majeure will last for longer than three months, each of the parties is entitled to terminate the agreement concerned prematurely, without observing any term of notice, on the understanding that such prematurely termination is no longer possible after fulfilment of the obligation whose fulfilment was temporarily prevented by force majeure.
17. Choice of law and forum
17.1 Dutch law shall exclusively govern the legal relationship between SPARQUE and the client.
17.2 Disputes that may arise from Agreements or may be related to them shall in the first instance be submitted exclusively to the competent court in Utrecht.
Date of last revision: March 2021