These Terms of Service describe your rights and responsibilities when using our platforms and services (the “Services”). If you are a Customer, these Terms of Service govern your access and use of our Services. We are grateful you’re here. This document was last updated on June 29, 2023.
Data: all data entered by the Customer in the Software, including but not limited to information about the Customer and content posted by Users or other third parties who use the Software;
Service: the provision of the Software, either as a SaaS Service;
Error: substantial non-compliance with specifications of the Software as described on the Website. An error only exists if the Customer can demonstrate this and if it is reproducible. The Customer is obliged to notify Sparki of any errors promptly;
Helpdesk: a place where customers can go with questions about the Service and Software. Support questions can be sent to firstname.lastname@example.org;
User: individual or company which i) through the Website signed an Agreement with Sparki entered, or ii) signed a written agreement with Sparki to make use of the Service;
Customer: individual or company whose identity is recorded for use in the Service but is not the User. A Customer supplies their data to the User with the Service.
Intellectual Property Rights: all rights of intellectual property and related rights, such as copyright, trademark, patent rights, design rights, trade name rights, database rights and neighbouring rights, as well as rights to know-how and single-line performance;
Emergency: a situation in which the availability and/or use of the Software becomes wholly or at critical points unusable if Sparki does not take immediate action;
Agreement: the agreement that the User enters into with Sparki regard to the use of the Software, concluded using a cooperation agreement or via the Website, including all Appendices;
Maintenance: the maintenance performed by Sparki in respect of the Software, including support through the Helpdesk;
Parties: Sparki and the User jointly;
SaaS Service: the service whereby Sparki makes the Software available to the User from a distance.
SLA: the service level agreement that can be concluded between the Parties for the purpose of the Maintenance and support of the Service and the Software;
Software of Third Parties: software developed by third parties which is used in this Software, including open source software;
Sparki: the private company Sparki, with its software developed by Decoders Bv registered in Utrecht at Rooseveltlaan 748, 3526BK Utrecht, registered at the KVK under number 84779179.
Website: the website https://sparki.app as well as all underlying web pages.
The applicability of any purchase or other conditions of the User is explicitly rejected.
3. Right of use
The right of use only includes the object code of the Software and does not extend to the source code of the Software. The source code of the Software is not made available to the User.
The User shall set up, parameterise and tune the Software himself and, if necessary, adapt the equipment and user environment. Sparki is not obliged to perform data conversion.
The User may only use the Software in and for the benefit of his own company or organisation and only for the intended use.
If the User is a company, the User is fully responsible for the actions and omissions of the natural person who has been appointed as User.
The User is not entitled to publish the Software, to reproduce it, to modify it, to decompile it and/or to apply reverse engineering, unless and insofar as mandatory law provides otherwise.
The User is not permitted to sell, rent, alienate or grant limited rights to the Software or to make it available to a third party in any way or for any purpose whatsoever. Nor will the User give a third party - whether or not remotely - access to the Software.
In the context of the Service, the User will have access to a username and password. The User is responsible for keeping the username and password combination confidential. The User is liable for all use made via the username and password of the Service. Sparki may assume that the User is the one who logs in under the User's username. As soon as the User knows or has reason to suspect that the password and/or the username have come into the hands of unauthorised persons, the User must inform Sparki of this immediately, without prejudice to the User’s obligation to immediately take effective measures itself, such as changing of the password.
The User is responsible for monitoring the Consumer's interest in using the Software, not Sparki.
Sparki will use its best efforts to execute the Service with due care. The Service is performed on the basis of an effort commitment.
The User may use the Service after signing the Agreement.
User determines which Data is stored with the help of the Service and how it and its Users use the Service. Sparki has no knowledge of that Data and the use of the Services by the User and/or its Customers. The User is, therefore, responsible for ensuring that the Data and the use of the Service are lawful and do not infringe on the rights of third parties. Sparki does not accept any liability for the Data stored with the help of the Service or for the use that the User and/or its Users make with the Service. The User indemnifies Sparki against claims from third parties, including but not limited to Users of the User, which are based on the statement that the use of the Service by the User and/or its Customers or the Data stored with the Service is unlawful.
Sparki may make changes to the content or scope of the Service. Sparki will inform the User about this as soon as possible. If it concerns a substantial change to the Service that was agreed upon, the User is entitled to terminate the Agreement in writing within thirty days notice, adjusting for the date the change would take effect. Unless expressly agreed otherwise in writing, Sparki is not obliged to maintain, modify or add specific features or functionalities of the Service or the Software specifically for the User.
If the new version of the Software contains new functionalities, Sparki may charge additional costs. The User is not obliged to take this new functionality.
The User guarantees the correctness and completeness of all information provided by or on behalf of the User to Sparki.
The User will never receive a physical carrier or a copy of the Software.
Sparki takes care of the maintenance as stipulated in this article 5, insofar as the User purchases the SaaS Service. Sparki also offers the User the opportunity to conclude an SLA with Sparki. If the User purchases an SLA, it will form an Annex to this Agreement.
Sparki does not guarantee that the Software is error-free or operates without interruption.
If the User has questions about the Services and/or the Software, the User can contact the Helpdesk as described on the Website. The Helpdesk will endeavour to answer the User's questions as well as possible within a reasonable period.
Sparki can not guarantee that Errors will not occur or that these will be resolved. However, Sparki will endeavour to repair any Errors in the SaaS Services as soon as possible.
Sparki is always entitled to install temporary solutions, program bypasses, or problem-avoiding restrictions in the Software. Sparki is never obliged to repair corrupted or lost data.
Sparki is not responsible for the purchase and/or proper functioning of the User's infrastructure. Sparki is not liable for damage or costs due to transmission errors, malfunctions or non-availability of computer, data or telecom facilities, including the Internet.
Sparki may suspend temporarily or completely turn off the Software and/or restrict its use if it is necessary, for example, for Maintenance. If Sparki deems this necessary, it will inform the User in advance. If an Emergency requires that the Software be immediately put out of use or its use is restricted, Sparki will inform the User as soon as reasonably possible.
Sparki will not provide Maintenance unless otherwise agreed. The User can contact the Helpdesk, and Sparki will endeavour to answer the User's questions as quickly and properly as possible.
Sparki attaches great importance to the security of its Services and data security. Sparki, therefore, uses security systems and modern technologies to secure the Services, the Software and the Data.
With the SaaS Service, logging in to the Service always takes place via a secure connection and passwords on the servers are stored encrypted.
The Users Data is backed-up regularly.
Sparki uses a modern data centre that has taken the necessary technical and organisational (access) measures to ensure the security of the servers.
7. Intellectual Property Rights
All Intellectual Property to Services and/or Software, excluding the Data, rests exclusively with Sparki. The User is not permitted to remove or change any designation concerning the confidential nature or Intellectual Property Rights from the Software, files or materials.
Sparki may bring or have placed technical provisions to protect the Software, files or materials. The User is not permitted to remove or circumvent such technical provisions or have them circumvented.
The User is not permitted to make changes or additions or have third parties carry out maintenance or repairs to the Software, files or materials supplied by Sparki.
If the User purchases the free Service, this grants Sparki the right to use the User's name and any User logo in various communications, including - but not limited to - advertisements, promotional statements, in a pitch and on the website.
8. Third-party software
It is possible that the Software contains applications, content and services of third parties and/or links to websites of third parties. The inclusion or presence of third-party content within the Software or the possibility of linking third-party applications to the Software on the Website does not imply that Sparki has approved or checked this content. Sparki is not responsible for the content and working method of third-party content or any use thereof by the User. The use of third-party content may be subject to general conditions and/or privacy policies from those parties.
9. Prices and payment
Prices depend on the chosen Service and the number of Users thereof. All amounts relating to the Service are due before use unless otherwise agreed between the Parties. Payments must be completed and can not be rescinded.
All prices exclude the VAT and other levies that the government imposes. Unless otherwise stated, all prices are always in euros, and the User must pay all payments in euros.
Sparki is entitled, during the Agreement, to increase the prices for its Services annually, with effect from 1 January, under the price index figures of the previous calendar year, as published by the Dutch Statistics Bureau (CBS, Consumer price index 'All households'), plus at the highest 25%. Sparki is entitled to carry out the cost increase later if it considers it desirable from an administrative point of view. Suppose the User is a consumer, and the price is increased after signing the Agreement. In that case, the User is entitled to terminate the Agreement with a month's notice period from when the price increase would have taken effect.
Apart from the case mentioned in Article 9.3, Sparki is entitled to increase the prices for its Services if the costs for Sparki have increased. Sparki will report this price increase no later than a month before the date on which the price increase takes effect. If the User can not agree to the price increase, the User is entitled to cancel the Agreement with a month's notice period from when the price increase would have taken effect.
Any appeal by the User to suspension, set-off or deduction is not permitted unless imperative law on consumers determines otherwise.
If, after the expiration of this period by Sparki, no (full) payment has been received, the User is immediately in default, without prior summons and notice of default being required. From the moment of default, the User will owe statutory commercial interest.
If the User continues to fail to comply with the claim after a reminder, Sparki can hand over the claim. In that case, all costs made by Sparki, such as litigation costs and extrajudicial and judicial costs, including costs for legal assistance, bailiffs and collection agencies, incurred in connection with late payments, will be borne by the User.
Sparki is entitled to suspend the fulfilment of its obligations until the User has met all its due and payable obligations.
Concerning the by Sparki performed Services and the amounts owed by the User, the relevant documents and data from the administration or systems of Sparki will provide full proof without prejudice to the User's right to provide proof to the contrary.
10. Duration and termination
The Agreement is entered into for one year unless otherwise specified in the Agreement. The User can then extend or conclude the Agreement. The User and Sparki have the right to terminate the Agreement after the initial period in writing with due observance of a notice period of a month unless otherwise stipulated in the Agreement.
Each Party is entitled to dissolve the Agreement in whole or in part in the event of bankruptcy or suspension of payments of the other Party, as well as in the event of the closure or liquidation of the business of the other Party other than for reconstruction or merger of companies, or if decisive control over the business of the other Party changes.
Sparki does not return (part of the) costs of an annual subscription if the User decides not to use the Service.
In the event of dissolution of the Agreement, no undoing takes the place of what Sparki has already delivered and/or has performed and the related payment obligation unless the User proves that Sparki is in default concerning the essential part of those performances. Amounts that Sparki has invoiced before the dissolution in connection with what Sparki has already performed or delivered properly to execute the Agreement remains subject to the provisions of the previous sentence and will become immediately due and payable at the time of the dissolution.
If the Agreement ends, for whatever reason, simultaneously all rights that the User benefits under the Agreement, including but not limited to the right to add data in the User's protected environment. The User shall immediately, after the end of the Agreement, delete all copies of the Software, files or materials supplied by Sparki under the Agreement will be removed from its systems and returned to Sparki. If no agreements have been made between Sparki and the User, Sparki is not obliged at or after the end of the Agreement to assist the User with insight into the data desired by the User. The User is responsible for securing the Data before the end of the Agreement.
Sparki is at all times entitled to (temporarily) block the access of the User to the Service if it deems this necessary and/or to dissolve the Agreement, including but not limited to the situations in which: The User acts in violation of articles 3, 4.3, User has used the word and/or logo, trade name and/or logo of a third party without being entitled to do so, the company to which the User belongs decides to purchase a paid Service. The account created in such a case will be transferred to the person to be appointed by the company.
Provisions in the Agreement which are intended to survive the end of the Agreement shall remain in full force after termination.
In the context of the execution of the Agreement, Sparki will process the Customer's personal data. Sparki does this in accordance with applicable laws and regulations.
In the context of implementing the SaaS Service, Sparki will also process users' personal data. Sparki qualifies this processing as a processor within the meaning of the Personal Data Protection Act.
The User guarantees that it fully complies with all legal obligations, including but not limited to the obligations arising from the Personal Data Protection Act, and that it is entitled to contact Sparki as a (sub) processor of the personal data in question. The User also guarantees that it is Sparki entitled to grant the right to use (sub) processors itself. The User indemnifies Sparki fully against all claims from third parties, including the sub-processors, arising in any way from and/or connected with the processing of personal data by Sparki and/or that are the result of the breach of the guarantees above by the User.
Sparki makes every reasonable effort to secure its systems and the data transfer between User and Sparki against loss and/or against any form of unlawful use. For this, Sparki implements appropriate technical and organisational measures as described in article 6, considering, among other things, the state of the art. The User declares to have taken note of Sparki's measures and established that these measures guarantee adequate security concerning the personal data being processed. The User indemnifies Sparki fully against all claims from third parties which are in any way based on the statement that by Sparki are technical and organisational measures taken inadequate and/or adequate.
The provisions included in this article regarding the processing of personal data qualify as a processor agreement, as referred to in the Personal Data Protection Act.
The liability of Sparki indirect damage, consequential loss, lost profit, missed savings, reduced goodwill, loss due to business stagnation, damage as a result of claims by third parties, materials, services and/or software from third parties and damage related to the use of suppliers are excluded. Also excluded is the liability for mutilation, destruction or loss of data.
The limitations mentioned in the previous paragraphs of this article lapse if and insofar as the damage is the result of intent or willful recklessness of Sparki or its managers ("own actions").
The liability of Sparki due to an attributable shortcoming in the fulfilment of an Agreement shall in all cases only arise if the User gives it immediate and sound written notice of default, whereby a reasonable term for the purification of the attributable shortcoming is made. The notice of default must contain as complete and detailed a description of the shortcoming as possible so Sparki can respond adequately.
A condition for the existence of any right to compensation is always that the User notifies Sparki as fast as possible. Any claim for compensation against Sparki expires by the mere lapse of twelve (1) months after the claim arose.
Sparki is not liable for any actions the User takes based on the content displayed on the Website or the data shown in its Service.
13. Force Majeure
Neither of the Parties is obliged to fulfil any obligation, including any guarantee obligation agreed between the Parties, if any is prevented from doing so due to force majeure.
Force majeure also means force majeure of suppliers of Sparki; failure to properly fulfil obligations due to suppliers that the User has prescribed to Sparki; defects in goods, equipment, software or materials of third parties that the Customer has prescribed to Sparki; government measures; electricity failure; failure of the internet, computer network or telecommunications facilities; war; strike; general transport problems; and the unavailability of one or more employees.
In the event of force majeure, Sparki is entitled to suspend its obligations under the Agreement or dissolve the Agreement in whole or in part without any obligation to compensate the User.
If the force majeure situation lasts longer than three (3) months, the Parties have the right to dissolve the Agreement in writing without Sparki having any obligation to pay compensation.
The User is not entitled to transfer the Agreement or the rights and/or obligations from the Agreement to a third party.
Sparki is entitled to have the Agreement fully or partially executed by third parties or at least to engage third parties in the execution of the Agreement.
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