General Terms and Conditions applicable to the execution of consultancy contracts

1. General

1.1 Spark Optimus B.V. (the “Contractor”) is a private company with limited liability, with corporate seat in Amsterdam registered with the Chamber of Commerce under number 34254566.
1.2 Unless explicitly agreed otherwise in writing, these general terms and conditions apply to all offers, quotations by and to all services to be performed by the Contractor. Natural persons and legal entities who are involved in the service by the Contractor, directly or indirectly, may also invoke these terms and conditions.
1.3 The applicability of the conditions of the counterparty or the contracting party (hereinafter: the “Client”) are hereby explicitly rejected. The Client may only invoke non-standard clauses that deviate from these terms and conditions insofar as they have been accepted by the Contractor in writing. In the event of conflicting terms and conditions, the current general terms and conditions shall prevail.
1.4 By agreeing with the current terms and conditions, the Client also agrees in advance to the applicability of the terms and conditions to any subsequent or new contracts, even if these have not been included explicitly in the new agreement.
1.5 If one or more provisions of these general terms and conditions should become null and void or annulled, in whole or in part, then they shall be regarded as having been replaced by a stipulation that most closely approaches the purpose of the annulled provision. The other provisions of these general terms and conditions shall remain in full force.

2.Offers / Quotations / Agreements

2.1 All offers and quotations by the Contractor are non-binding unless explicitly agreed otherwise.
2.2 Agreements are initially binding for the Contractor when the confirmation of the contract signed by the Client has been received by the Contractor or when the execution thereof has commenced. Moreover, the Contractor is only bound by agreements, additional agreements or amendments insofar as it has declared so in writing.

3. Prices

3.1 All prices specified by the Contractor exclude VAT and other levies set by the government, any expenses incurred in the context of the agreement, including travel and accommodation costs, shipping, and administration costs, unless indicated otherwise.

4. Rights and obligations on the part of the Client / Contractor

4.1 The Contractor shall exercise due care in performing its activities. In particular, the Contractor shall ensure the confidentiality of all data and information made available to it by the Client in the context of the agreement under the conditions of Article 9 (Confidentiality).

4.2 The Contractor shall perform its activities to the best of its knowledge and ability. The Contractor only takes on best efforts obligations and not result obligations.

4.3 For a clear compliance with its obligations, the Contractor depends on the correctness and completeness of the information provided by the Client. The Client shall guarantee and ensure timely provision of all required documents and data.

4.4 The Contractor shall determine the manner in which the contract is executed and shall, where possible, take into account timely provided and responsible instructions of the Client regarding this matter.

4.5 The Contractor is the only contractor, even if there is an explicit or tacit intention that the contract be executed by a specific person. The applicability of Articles 7:404, 7:407 (2) and 7:409 of the Dutch Civil Code is excluded.

4.6 The Contractor is authorized to engage third parties when performing a contract and also to accept, on behalf of the Client, an exclusion or restriction of liability on the part of the third parties.

5. Amendments to agreement

5.1 The Contractor may, in consultation with the Client, amend the composition of the advisory team if it is of the opinion that this is required for the performance of the contract or in the event that one or several members of the advisory team drop out or is/are no longer capable of forming a part of the team. The amendment may not endanger the quality of the advisory services to be performed nor the continuity of the contract.

5.2 The Client accepts that both the time schedule and the consultancy fees of the contract may be influenced if, in the interim period, the parties agree to expand or amend the approach, working method or scope of the contract and/or the activities arising therefrom.

5.3 If the Contractor is requested to make an interim amendment to or supplement a contract or performance of a contract (“additional work”), the Contractor shall confirm an additional assignment to the Client that shall form part of the agreement as from the moment of receipt of the confirmation. For such additional work, the Contractor shall charge the actual hours worked at the hourly rate customary at that time.

6. Delivery

6.1 The lead time specified by the Contractor is indicative. Any interim delivery dates (“milestones”) agreed on are target dates and explicitly do not qualify as final. Consequently, the Contractor is only in default after the Client has sent a notice of default to the Contractor.

6.2 In the unlikely event that delivery dates shall be exceeded, this does not give the Client a right to additional or replacement compensation or to non-fulfilment of any obligation arising from the agreement.

7. Intellectual property

7.1 The intellectual property rights of texts, materials, database, software, designs or other works or creations that have been created, developed or made available to the Client by the Contractor in the context of the contract remain the property of the Contractor (or third-party proprietors hired in by the Contractor) and shall never be transferred to the Client. Documents, data and materials provided by the Contractor continue to be the property of the Contractor and may not be made public or reproduced by the Client without the Contractor’s explicit consent.

7.2 The Client is permitted to use or reproduce documents drawn up by the Contractor and made available to the Client, although only for its own use.

8. Payment

8.1 Payments must be made within, at most, 14 (fourteen) days after the invoice date in the terms agreed between the Contractor and the Client in the contract. In the event no agreements have been made between the parties as to terms of payment with the contract, the Contractor is entitled to invoice periodically and/or require whole or partial payment in advance.

8.2 The Client shall waive any rights to set off amounts owed between the parties, also in the event of objections by the Client against the amount of the invoices.

8.3 Should the Client not fulfil its payment obligations within the period set by the Contractor, the Client shall be in default without notice of default and the Contractor shall charge the Client interest at the rate of 1% per month, unless the statutory commercial interest rate is higher, in which case the statutory commercial interest rate is owed. The interest shall be calculated as from the lapse of the terms of payment until the time of payment. All judicial and extrajudicial expenses are for the account of the Client, which expenses shall be estimated on the basis of that which is customary in the Dutch debt collection practice regardless of the right to recover actual expenses.

8.4 The Contractor reserves the right to apply payments made by the Client first to reduce any older outstanding invoices and to the relevant interest owed.

8.5 If the agreement was entered into by more than one Client, all contracting parties are jointly and severally liable for the compliance of the (payments) obligations as specified in this article.

9. Confidentiality

9.1 The Contractor shall commit to confidentiality of all confidential information and data of the Client unless prior permission by the Client or if the Contractor is under obligation by law or public order to disclose such data to a designated body, in which case the Contractor shall inform the Client of such disclosure. In the context of the contract, the Contractor shall take all possible precautionary measures to protect the interests of the Client.

9.2 Without prior consent from the Contractor, the Client shall not inform third parties as to the Contractor’s approach, method and such, nor shall the Client make available the advice or investigation results and reports provided by the Contractor to the Client.

9.3 After the (interim) termination of the contract, all materials still present, insofar as they contain confidential information, shall be returned to the Client or all copies of such materials shall be destroyed by the Contractor in such a manner that the confidential information is not made available to third parties.

10. Non-compete clause

10.1 During the execution of the contract and within one year after termination of the contract, the Client is not permitted to employ the Contractor’s personnel or negotiate with its personnel with respect to the commencement of employment.

11. Force Majeure

11.1 If the execution of the agreement, either wholly or partially, whether or not temporarily, is hindered or impeded by circumstances that are in fairness beyond the will or power of the Contractor, including war, danger of war, riots, mobilization, wilful damage, fire, water damage, weather conditions, excessive sickness absence by personnel, business embargoes, strikes, government measures, goods or services other than circumstances, accidents and business disruptions that can be attributed to the Contractor, the Contractor is entitled to invoke force majeure without being held liable for any compensation.

12. Liability / indemnification

12.1 If and insofar as there should be a deficiency in the Contractor’s best efforts obligation, the liability for any resulting damage suffered is excluded, except in the event of intent or gross negligence. Subsequent damage, including missed profits or suffered losses, shall never be eligible for compensation. The Contractor shall never be liable for any damage that has arisen as a result of incorrect and/or incomplete data provided by the Client. In any event, the Contractor’s liability is restricted to the amount that was paid by the Client as a fee to the Contractor in the year in which the liability arose.

12.2 Without prejudice to the provisions of Article 6:89 Dutch Civil Code, every right to compensation on the part of the Client lapses after one year after the event from which the damage arose.

12.3 The Client indemnifies the Contractor, its employees and its agents engaged for the execution of the agreement with respect to all claims by third parties for damage that is related to or arises from the agreement.

13. Interim termination

13.1 If the Client does not fulfil its obligations, does not fulfil them completely or does not fulfil them on time, goes bankrupt, applies for a moratorium of payment or ceases business operations, the Contractor is entitled to suspend the contract or to terminate the agreement entirely or partially without prior notice of default by means of an extrajudicial statement, without prejudice to any of Contractor’s rights. In that event, the Contractor is entitled to the full agreed on price for those goods reduced by the savings that arise directly from the termination.

13.2 The Client is entitled to an interim termination for convenience of the contract in writing with due regard to a notice period of at least 4 weeks. In that event, the Contractor is entitled to a part of the payment, to be determined in proportion to the fee agreed on for the works up to and including the date on which the agreement terminates for convenience, with due regard to aforementioned notice period. Upon termination for convenience, the Client shall have no claim to repayment of amounts or payments that were already paid by the Client at the time of termination of convenience even if this payment proportionately exceeds the compensation referred to in the previous sentence.

14. Interim termination

14.1 All offers, quotations and agreements to which these general terms and conditions apply and all agreements related to them shall be governed by Dutch law exclusively.

14.2 Disputes shall be subject to the exclusive jurisdiction of the court in Amsterdam, the Netherlands.