General Terms & Conditions

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GENERAL TERMS AND CONDITIONS Sparks Visual 

 

Definitions

1.   Sparks Visual: Sparks Visual, established in Amsterdam , Chamber of Commerce no. 75892499.

2.   Customer: the person with whom Sparks Visual has entered into an agreement.

3.   Parties: Sparks Visual and customer together.

4.   Consumer: a customer who is an individual acting for private purposes.

 

Applicability

1.   These terms and conditions will apply to all quotations, offers, activities, orders, agreements and deliveries of services or products by or on behalf of Sparks Visual. 

2.   Parties can only deviate from these conditions if they have explicitly agreed upon in writing.

3.   The parties expressly exclude the applicability of supplementary and/or deviating general terms and conditions of the customer or of third parties.

Offers and quotations

1.   Offers and quotations from Sparks Visual are without engagement, unless expressly stated otherwise.

2.   An offer or quotation is valid for a maximum period of 2 weeks from its date, unless another acceptance period is stated in the offer or quotation. 

3.   If the customer does not accept an offer or quotation within the applicable time frame, the offer or quotation will lapse.

4.   Offers and quotations do not apply to repeated orders, unless the parties have agreed upon this explicitly and in writing.

 

Acceptance

1.   Upon acceptance of a quotation or offer without engagement, Sparks Visual reserves the right to withdraw the quotation or offer within 3 days after receipt of the acceptance, without any obligations towards the customer. 

2.   Verbal acceptance of the customer only commits Sparks Visual after the customer has confirmed this in writing (or electronically).

Prices

1.   All prices used by Sparks Visual are in Euros, are exclusive of VAT and exclusive of any other costs such as administration costs, levies and travel-, shipping- or transport expenses, unless expressly stated otherwise or agreed otherwise.

2.   Sparks Visual is entitled to adjust all prices for its products or services, shown in its shop, on its website or otherwise, at any time.

3.   The price with regard to services is determined by Sparks Visual on the basis of the actual working hours. 

4.   The price is calculated according to the usual hourly rates of Sparks Visual, valid for the period in which s/he carries out the work, unless a different hourly rate has been agreed.

5.   If the parties have agreed on a total amount for a service provided by Sparks Visual, this is always a target price, unless the parties have explicitly agreed upon in writing on a fixed price, which cannot be deviated from.

6.   Sparks Visual is entitled to deviate up to 10% of the target price. 

7.   If the target price exceeds 10%, Sparks Visual must let the customer know in due time why a higher price is justified. 

8.   If the target price exceeds 10%, the customer has the right to cancel the part of the order that exceeds the target price by 10%. 

9.   Sparks Visual has the right to adjust prices annually. 

10.   Sparks Visual will communicate price adjustments to the customer prior to the moment the price increase becomes effective.

11.   The consumer has the right to terminate the contract with Sparks Visual if he does not agree with the price increase.

 

Payments and payment term

1.   Sparks Visual may, at the conclusion of the agreement, require a down payment of up to 50% of the agreed amount. 

2.   The customer must have paid the full amount within 7 days after delivery of the product.

3.   Payment terms are considered as fatal payment terms. This means that if the customer has not paid the agreed amount at the latest on the last day of the payment term, he is legally in default, without Sparks Visual having to send the customer a reminder or to put him in default. 

4.   Sparks Visual reserves the right to make a delivery conditional upon immediate payment or to require adequate security for the total amount of the services or products.

Consequences of late payment

1.   If the customer does not pay within the agreed term, Sparks Visual is entitled to charge an interest of 1% per month from the day the customer is in default, whereby a part of a month is counted for a whole month.

2.   When the customer is in default, he is also due to extrajudicial collection costs and may be obliged to pay any compensation to Sparks Visual. 

3.   The collection costs are calculated on the basis of the Reimbursement for extrajudicial collection costs. 

4.   If the customer does not pay on time, Sparks Visual may suspend its obligations until the customer has met his payment obligation. 

5.   In the event of liquidation, bankruptcy, attachment or suspension of payment on behalf of the customer, the claims of Sparks Visual on the customer are immediately due and payable. 

6.   If the customer refuses to cooperate with the performance of the agreement by Sparks Visual, he is still obliged to pay the agreed price to Sparks Visual. 

 

Suspension of obligations by the customer

 

The customer waives the right to suspend the fulfilment of any obligation arising from this agreement.

 

Settlement 

 

The customer waives his right to settle any debt to Sparks Visual with any claim on Sparks Visual. 

 

Delivery (if applicable)

1.   Delivery takes place while stocks last.

2.   Delivery takes place at Sparks Visual unless the parties have agreed upon otherwise.

3.   Delivery of products ordered online takes place at the address indicated by the customer. 

4.   If the agreed price is not paid on time, Sparks Visual has the right to suspend its obligations until the agreed price is fully paid. 

5.   In the event of late payment, the customer is automatically in default, and hereby he can not object to late delivery by Sparks Visual.

 

Delivery period (if applicable)

1.   Any delivery period specified by Sparks Visual is indicative and does not give the customer the right to dissolution or compensation if this period is not met with, unless the parties have expressly agreed otherwise in writing.

2.   The delivery period starts after the customer has signed the agreement to Sparks Visual and is confirmed in writing or electronically by Sparks Visual to the customer. 

3.   Exceeding the specified delivery period does not entitle the customer to compensation or the right to terminate the contract, unless Sparks Visual cannot deliver within 7 days or if the parties have agreed upon otherwise.

 

Actual delivery (if applicable)

 

The customer must ensure that the actual delivery of the products ordered by him can take place in time.

 

Transport costs 

 

Transport costs are on behalf of the customer, unless the parties have agreed upon otherwise.

 

Packaging and shipping 

1.   If the package of a delivered product is opened or damaged, the customer must have a note drawn up by the forwarder or delivery person before receiving the product. In the absence of which Sparks Visual may not be held liable for any damage.

2.   If the customer himself takes care of the transport of a product, he must report any visible damage to products or the packaging prior to the transport to Sparks Visual, failing which Sparks Visual cannot be held liable for any damage.

 

Insurance

1.   The customer undertakes to insure and keep insured the following items adequately against fire, explosion and water damage as well as theft:

o goods delivered that are necessary for the execution of the underlying agreement

o goods being property of Sparks Visual that are present at the premises of the customer

o goods that have been delivered under retention of title 

2.   At the first request of Sparks Visual, the customer provides the policy for these insurances for inspection. 

 

Guarantee

When parties have entered into an agreement with services included, these services only contain best-effort obligations for Sparks Visual, not obligations of results.

 

Performance of the agreement

1.   Sparks Visual executes the agreement to the best of its knowledge and ability and in accordance with the requirements of good workmanship. 

2.   Sparks Visual has the right to have the agreed services (partially) performed by third parties.

3.   The execution of the agreement takes place in mutual consultation and after written agreement and payment of the possibly agreed advance by the customer. 

4.   It is the responsibility of the customer that Sparks Visual can start the implementation of the agreement on time.

5.   If the customer has not ensured that Sparks Visual can start the implementation of the agreement in time, the resulting additional costs and/or extra hours will be charged to the customer.

Duty to inform by the customer 

1.   The customer shall make available to Sparks Visual all information, data and documents relevant to the correct execution of the agreement in time and in the desired format and manner.

2.   The customer guarantees the correctness, completeness and reliability of the information, data and documents made available, even if they originate from third parties, unless otherwise ensuing from the nature of the agreement. 

3.   If and insofar as the customer requests this, Sparks Visual will return the relevant documents. 

4.   If the customer does not timely and properly provides the information, data or documents reasonably required by Sparks Visual and the execution of the agreement is delayed because of this, the resulting additional costs and extra hours will be charged to the customer.

Duration of the agreement 

1.   The agreement between Sparks Visual and the customer is entered into for the duration of 3 month, unless it results otherwise from the nature of the agreement or if the parties have expressly agreed otherwise in writing.

2.   If a fixed-term contract has been entered into, the agreement ends at the end of the fixed term.

3.   If the parties have agreed upon a term for the completion of certain activities, this is never a strict deadline, unless specified explicitly otherwise in writing. If this term is exceeded, the customer must give Sparks Visual a written reasonable term to terminate the activities, before it may either terminate the contract or claim damages.

Intellectual property 

1.   Sparks Visual retains all intellectual property rights (including copyright, patent rights, trademark rights, design and design rights, etc.) on all designs, drawings, writings, data carriers or other information, quotations, images, sketches, models, scale models, etc., unless parties have agreed otherwise in writing. 

2.   The customer may not copy or have copied the intellectual property rights without prior written permission from Sparks Visual, nor show them to third parties and / or make them available or use them in any other way.

Confidentiality

1.   The client keeps any information he receives (in whatever form) from Sparks Visual confidential.

2.   The same applies to all other information concerning Sparks Visual of which he knows or can reasonably suspect that it is secret or confidential, or of which it can expect that its disclosure may cause damage to Sparks Visual.

3.   The customer takes all necessary measures to ensure that he keeps the information referred to in paragraphs 1 and 2 secret. 

4.   The obligation of secrecy described in this article does not apply to information:

o which was already made public before the customer heard this information or which later became public without being the result of a violation of the customer's duty to confidentiality

o which is made public by the customer due to a legal obligation 

5.   The confidentiality obligation described in this article applies for the duration of the underlying agreement and for a period of 3 years after the end thereof. 

Penalties 

1.   If the customer violates the articles of these general terms and conditions about secrecy or intellectual property, then he forfeits on behalf of Sparks Visual an immediately due and payable fine of € 1000 if the customer is a consumer and € 5000 if the customer is a company, for each violation and in addition an amount of 5% of the aforementioned amount for each day that this violation continues. 

2.   No actual damage, prior notice of default or legal proceedings are required in forfeiting the fine referred to in the first paragraph of this article. 

3.   The forfeiture of the fine referred to in the first paragraph of this article shall not affect the other rights of Sparks Visual including its right to claim compensation in addition to the fine.

Indemnity

 

The customer indemnifies Sparks Visual against all third-party claims that are related to the products and/or services supplied by Sparks Visual. 

 

Complaints

1.   The customer must examine a product or service provided by Sparks Visual as soon as possible for possible shortcomings.

2.   If a delivered product or service does not comply with what the customer could reasonably expect from the agreement, the customer must inform Sparks Visual of this as soon as possible, but in any case within 1 month after the discovery of the shortcomings. 

3.   Consumers must inform Sparks Visual of this within two months after detection of the shortcomings.

4.   The customer gives a detailed description as possible of the shortcomings, so that Sparks Visual is able to respond adequately. 

5.   The customer must demonstrate that the complaint relates to an agreement between the parties.

6.   If a complaint relates to ongoing work, this can in any case not lead to Sparks Visual being forced to perform other work than has been agreed. 

 

Giving notice

1.   The customer must provide any notice of default to Sparks Visual in writing.

2.   It is the responsibility of the customer that a notice of default actually reaches Sparks Visual (in time). 

Joint and several Client liabilities

 

If Sparks Visual enters into an agreement with several customers, each of them shall be jointly and severally liable for the full amounts due to Sparks Visual under that agreement. 

 

Liability of Sparks Visual

1.   Sparks Visual is only liable for any damage the customer suffers if and insofar as this damage is caused by intent or gross negligence. 

2.   If Sparks Visual is liable for any damage, it is only liable for direct damages that results from or is related to the execution of an agreement.

3.   Sparks Visual is never liable for indirect damages, such as consequential loss, lost profit, lost savings or damage to third parties.

4.   If Sparks Visual is liable, its liability is limited to the amount paid by a closed (professional) liability insurance and in the absence of (full) payment by an insurance company of the damages the amount of the liability is limited to the (part of the) invoice to which the liability relates.

5.   All images, photos, colors, drawings, descriptions on the website or in a catalog are only indicative and are only approximate and can not lead to any compensation and/or (partial) dissolution of the agreement and/or suspension of any obligation.

Expiry period

 

Every right of the customer to compensation from Sparks Visual shall, in any case, expire within 12 months after the event from which the liability arises directly or indirectly. This does not exclude the provisions in article 6:89 of the Dutch Civil Code.

 

Dissolution

1.   The customer has the right to dissolve the agreement if Sparks Visual imputably fails in the fulfillment of its obligations, unless this shortcoming does not justify termination due to its special nature or because it is of minor significance. 

2.   If the fulfillment of the obligations by Sparks Visual is not permanent or temporarily impossible, dissolution can only take place after Sparks Visual is in default. 

3.   Sparks Visual has the right to dissolve the agreement with the customer, if the customer does not fully or timely fulfill his/her obligations under the agreement, or if circumstances give Sparks Visual good grounds to fear that the customer will not be able to fulfill his/her obligations properly. 

Force majeure

1.   In addition to the provisions of article 6:75 Dutch Civil Code, a shortcoming of Sparks Visual in the fulfillment of any obligation to the customer cannot be attributed to Sparks Visual in any situation independent of the will of Sparks Visual, when the fulfillment of its obligations towards the customer is prevented in whole or in part or when the fulfillment of its obligations cannot reasonably be required from Sparks Visual . 

2.   The force majeure situation referred to in paragraph 1 is also applicable - but not limited to: state of emergency (such as civil war, insurrection, riots, natural disasters, etc.); defaults and force majeure of suppliers, deliverymen or other third parties; unexpected disturbances of power, electricity, internet, computer or telecoms; computer viruses, strikes, government measures, unforeseen transport problems, bad weather conditions and work stoppages. 

3.   If a situation of force majeure arises as a result of which Sparks Visual cannot fulfill one or more obligations towards the customer, these obligations will be suspended until Sparks Visual can comply with it. 

4.   From the moment that a force majeure situation has lasted at least 30 calendar days, both parties may dissolve the agreement in writing in whole or in part. 

5.   Sparks Visual does not owe any (damage) compensation in a situation of force majeure, even if it has obtained any advantages as a result of the force majeure situation.

Modification of the agreement

 

If, after the conclusion of the agreement and before its implementation, it appears necessary to change or supplement its contents, the parties shall timely and in mutual consultation adjust the agreement accordingly. 

 

Changes in the general terms and conditions

1.   Sparks Visual is entitled to amend or supplement these general terms and conditions. 

2.   Changes of minor importance can be made at any time. 

3.   Major changes in content will be discussed by Sparks Visual with the customer in advance as much as possible.

4.   Consumers are entitled to cancel the agreement in the event of a substantial change to the general terms and conditions. 

 

Transfer of rights

1.   The customer cannot transfer its rights deferring from an agreement with Sparks Visual to third parties without the prior written consent of Sparks Visual . 

2.   This provision applies as a clause with a property law effect as referred to in Section 3:83 (2) Dutch Civil Code. 

 

Consequences of nullity or annullability

1.   If one or more provisions of these general terms and conditions prove null or annullable, this will not affect the other provisions of these terms and conditions. 

2.   A provision that is null or annullable shall, in that case, be replaced by a provision that comes closest to what Sparks Visual had in mind when drafting the conditions on that issue.

 

Applicable law and competent court

1.   Dutch law is exclusively applicable to all agreements between the parties. 

2.   The Dutch court in the district where Sparks Visual is established is exclusively competent in case of any disputes between parties, unless the law prescribes otherwise.

 

 

Drawn up on 16 september 2020. 

©2020 by Sparks Visual