These Terms of Business apply, amongst others, to the following:
(a) all agreements entered into with Sparks Surveyors, a trade name of Van Ameyde
Marine (Belgium) NV, Ketenislaan 1, 9130 Kallo, KBO 0400.532.301;
(b) all services rendered by Sparks Surveyors;
(c) all work carried out by Sparks Surveyors;
(d) all offers and quotations made by Sparks Surveyors;
(e) anything resulting from or in connection with the aforementioned agreements, services, work, offers quotations, etc. under which, but not restricted to, future assignments and/or amended assignments.
The agreements to be entered into with Sparks Surveyors are agreements of assignment. Everything as mentioned above under article 1.1. sub (a) up to and including (e), to be hereafter collectively also referred to as "assignment". Those granting an assignment to Sparks Surveyors will hereafter be referred to as "Principal". Those granting the assignment to Sparks Surveyors on behalf of another party are required to immediately submit a copy of these Terms of Business to that other.
The stipulations in these Terms of Business have been made on behalf of:
(a) Sparks Surveyors, including its employees, members of the board, management
and persons working in any capacity for Sparks Surveyors;
(b) all third parties who have been or will be instructed by Sparks Surveyors;
(c) anybody through whose actions or negligence Sparks Surveyors has or will be held liable;
(d) all previous employees, members of the board, management of Sparks Surveyors and/or any other persons previously having worked in any other capacity for Sparks Surveyors;
(e) any possible beneficiaries and legal successors of the parties mentioned under (a) up to and including (d).
All assignments will be accepted and carried out exclusively by Sparks Surveyors. This also applies when it is the explicit or implied intention of the Principal that the assignment is to be carried out by a particular person.
An assignment granted to Sparks Surveyors is to be considered as accepted by Sparks Surveyors only in the event that this has been confirmed in writing by Sparks Surveyors or when Sparks Surveyors has commenced with the execution of the assignment.
Should at a certain moment, whether the assignment has been accepted or not, or after commencement of the execution of the assignment, Sparks Surveyors be of the opinion that the assignment cannot be carried out without risk to persons and/or property, the extent of danger every time to be solely assessed by Sparks Surveyors, then Sparks Surveyors is entitled to suspend execution of the assignment or to cancel the agreement in whole or in part without prior written notice, this as desired by Sparks Surveyors, and whilst retaining any (future) right to compensation for costs, damage and interest, such without being liable or becoming liable.
The Principal should, at the time of granting the assignment or immediately thereafter, furnish Sparks Surveyors free of charge with all data and information which are necessary in order to adequately carry out the assignment. The Principal guarantees that all data and information provided are correct and complete. Sparks Surveyors is entitled to suspend the commencement and/or execution of the assignment so as to verify the accuracy of the data and information provided.
When carrying out the assignment, Sparks Surveyors will attend to matters with due diligence.
The execution of an assignment will be for account and risk of the Principal.
Sparks Surveyors is authorised to take or refrain from taking any measures which in Sparks Surveyors’ view are necessary in the interests of the assignment and such for account and risk of the Principal.
Sparks Surveyors is entitled to decide which employee or person working otherwise for Sparks Surveyors is to actually (also) carry out the assignment.
Sparks Surveyors is entitled within the scope of the assignment and the execution thereof to instruct third parties, whereby Sparks Surveyors is free in its choice as to the identity of the third party involved. Sparks Surveyors shall, when choosing the third party, execute due diligence in such choice.
The Principal declares hereby unconditionally and irrevocably that Sparks Surveyors has the authority, either in its own name, or in the name of the Principal, to contract third parties under acceptance of and/or applicability of the Terms of Business employed by third parties, even when such general conditions include a stipulation, which completely excludes the liability of the third party or (excessively) restricts liability, contains a jurisdiction clause (whether arbitrational or not), a legal option and/or an indemnity clause. All clauses including those limiting, excluding or establishing liability that third parties can invoke, within the framework of the assignment granted, against Sparks Surveyors, can also be invoked by Sparks Surveyors against the Principal.
Third parties are instructed for account and risk of the Principal. Sparks Surveyors is not liable or responsible for shortcomings of third parties, whilst Sparks Surveyors can invoke liability exclusions and liability limitations, which it can invoke also in the case of not or not correctly functioning of the persons mentioned in article 2 paragraph a) up to and including e) the equipment used or to be used, software, databases, registers or other matters.
Sparks Surveyors is authorised to declare force majeure when the execution of the assignment is partly or in whole – whether or not temporarily – prevented or hampered by circumstances beyond its control, such as - but not limited to - governmental measures, fire, weather circumstances, the (temporary) non-delivery of goods or services by third parties, operational breakdowns, labour stoppages or strikes or illness etc. Sparks Surveyors can also declare force majeure when the execution of the assignment is delayed because Sparks Surveyors has given priority to other assignments when this priority is in all reasonableness necessary.
In the case of force majeure on the side of Sparks Surveyors, its obligations will be suspended for the length of the force majeure. Should Sparks Surveyors declare force majeure for a period longer than one month, then both Sparks Surveyors and the Principal retain the right to annul the part of the assignment not yet executed by means of a written notice to the other party, without being liable for compensation for damages.
Sparks Surveyors will complete its assignment within a reasonable period of time, yet is entitled to give priority to other assignments when this priority is in all reasonableness necessary and without being liable for any compensation.
Following the completion of the assignment, Sparks Surveyors will issue a written report of its findings to the Principal. Furthermore, also at the request of the Principal, Sparks Surveyors can issue an interim report to the Principal.
Every (interim) report(ing), certificate, advice, communication or message (further called “report”) issued by Sparks Surveyors is exclusively intended for the Principal. Only the Principal can recourse to these reports and derive rights thereof. The Principal who lets a third party take cognisance of the executed assignment and/or of the reports, will immediately provide this third party with a copy of these Terms of Business informing them that these General Terms and Conditions are applicable to the services and reports of Sparks Surveyors and that only the Principal can recourse to these reports and derive rights thereof. The Principal indemnifies and holds harmless Sparks Surveyors against claims from third parties (and their (subrogated) underwriters) claiming to have suffered damage resulting from or in connection with the services rendered and/or work carried out by Sparks Surveyors on behalf of the Principal, including all claims in relation to or as a result of any report.
Should execution of the assignment by Sparks Surveyors lead to liability, then this liability, in compliance with the stipulations mentioned below, will always, and in every circumstance, be restricted to the amount to be paid out for the matter in question under the applicable (liability) insurance of Sparks Surveyors, such to be increased with the potential amount of the deductible, which in that particular case comes for account of Sparks Surveyors.
Should, for whatever reason, no payment by virtue of the aforementioned insurance under article 8.1 take place, any liability of Sparks Surveyors is restricted to three times the amount charged by Sparks Surveyors for the assignment in question, excluding VAT, such with an absolute maximum of EUR 50.000 excluding VAT.
The Principal indemnifies all parties mentioned in article 2 paragraph a) up to and including e) against claims from third parties within the framework of the assignment granted.
The above mentioned conditions in article 8.1 up to and including 8.3 apply unless the damage and/or liability is a result of Sparks Surveyors' own action or negligence, done with the intention to cause that damage and/or that liability.
Sparks Surveyors is in any case never liable for consequential loss, including, but not restricted to, loss of profits, time loss and / or loss of hire, cleaning costs, being unable to enter into or continue with agreements and the missing out on income and other forms of indirect damage.
Every claim against Sparks Surveyors lapses after a single course of six months. This term shall commence on the day following the day on which the damage causing event occurred, or on the day following the day on which the claim is due, or on the day following the day on which the Principal and/or the aggrieved party becomes aware of the damage, but in any case on the day following the day on which any (interim) written report of findings and/or survey report was issued by Sparks Surveyors or when the assignment was ended by Sparks Surveyors In any case the date which first occurs is the date on which the term commences.
Sparks Surveyors may at any time send an (interim) invoice. Settlement of the invoices of Sparks Surveyors and other costs connected to this agreement should, without any right to postponement or set-off, take place within 30 days following the date of the invoice, unless Sparks Surveyors explicitly and in writing has agreed to a different time of payment or Sparks Surveyors, in the relevant matter, unilaterally employs and/or stipulates a different term.
In all cases in which agreed or invoiced amounts are invoiced exclusive of taxes, levies or governmental surcharges, including VAT, Sparks Surveyors still has the right to invoice such amounts later to the Principal also in cases where on the invoices from Sparks Surveyors or in correspondence sent with an invoice it is stated that the invoice is a final invoice.
All costs in connection with payments to be made to Sparks Surveyors, such as banking costs, are always for account of the Principal.
The Principal should lodge any possible objections to the amount charged within thirty days of the invoice date in writing to the Managing Director of Sparks Surveyors. Failing this, the Principal will be deemed to have accepted the amount charged as due whilst disputing the indebtedness of the amount payable is thereafter no longer possible.
In the event that the Principal has not complied with the aforementioned terms of payment without prior written notice, then he is in default and Sparks Surveyors has the right to charge a compound delayed payment interest of 1.5% a month (whereby a part of a month shall be counted as a whole month).
Sparks Surveyors is at all times entitled to request from the Principal (because of her motivating reasons) an advance payment in part or in whole, as well as to request suitable security being put up for the payment obligation. An applicable term of payment or credit limit does not alter this authority.
All (extra) judicial costs in connection with collection of fees and expenses incurred by Sparks Surveyors for amounts invoiced and/or amounts to be invoiced (with a minimum of 20% of the amount to be received) are always for account of the Principal.
Sparks Surveyors is, at its discretion, entitled to postpone the execution of the assignment or, without prior notice by means of a written declaration, to annul the assignment either in part or in whole, while retaining any (future) right to compensation for costs, damages and interests, this without being liable or becoming liable, should the Principal not, or not on time, comply with any of his obligations completely or satisfactorily when there is the fear that the Principal shall not (cannot) comply with (some of) his obligations on time completely and satisfactorily, is declared insolvent, or his insolvency has been applied for, will be placed in receivership or apply for a moratorium, dissolve the company, as well as when the assets of the company are arrested either in part or in whole.
The Terms of Business are known as the Sparks Surveyors Terms of Business. In the event of possible deviations or discrepancies between these Sparks Surveyors Terms of Business and those of the Principal, the Terms of Business of Sparks Surveyors prevail.
In the event of deviations between the Dutch text of the Terms of Business of Sparks Surveyors and any translation thereof, the Dutch text takes precedence.
In the event that Sparks Surveyors deviates from any stipulation in its Terms of Business, which only Sparks Surveyors is permitted to do and in the event that any clause of the Sparks Surveyors Terms of Business is lawfully declared completely or partly null and void or unlawful, then the remaining stipulations and the still valid part of the stipulation, which was partially declared null and void or unlawful, remain unabridged.
All intellectual property rights resulting from the assignment, including copyright, style rights and patent rights belong to Sparks Surveyors whereby in so far that a right can be obtained, established and/or created by filing a registration or other judicial act, only Sparks Surveyors is authorised to do so.
Films, photographs, (electronic) files, (work) drawings, illustrations, designs, prototypes, models, moulds and designs etc. made by Sparks Surveyors within the framework of the assignment, remain the property of Sparks Surveyors, whether or not these have been given to the Principal or third parties.
Where Sparks Surveyors is instructed to sell and/or auction any property or goods, whether or not Court permission has been obtained (by the Principal), Sparks Surveyors shall make an effort to obtain a reasonable going-rate price, such taking into account the relevant circumstances, such as the condition of the property and/or goods and the then current market prices etc. In such sales Sparks Surveyors shall always act as agent to the Principal. Sparks Surveyors shall be accountable to the Principal for any realised proceeds. Sparks Surveyors has the right to settle any outstanding amount from the Principal to Sparks Surveyors with the realised proceeds, which right to settlement also covers claims towards the Principal, which are not directly related to the present assignment and/or sale and/ or auction. The Principal shall indemnify Sparks Surveyors against all liability, costs, charges, claims, assessments, fines, taxes, losses and charges of any sort, which arise either directly or indirectly or are connected to the sale and/or auction.
Sparks Surveyors can within the framework of the assignment, be it at the request of the Principal or not, take into custody any samples or objects. Sparks Surveyors is free to refuse such a request for custody or to apply conditions. After completion of the assignment Sparks Surveyors shall keep in custody any sample or object taken into custody for a period of twelve months, after which the sample and/or object will be destroyed. Should Sparks Surveyors explicitly agree to a request in this matter from the Principal, then this term of storage of twelve months can be extended. Sparks Surveyors can at any time end the accepted assignment for storage (mindful of a reasonable term of notice). Any storage costs, destruction costs, fines and other related costs to the custody or destruction are for account of the Principal.
All disputes arising out of or in connection with this agreement and/or assignment between Sparks Surveyors and the Principal are subject to Belgian law. Sparks Surveyors and the Principal can both apply to the Court of Antwerp The Court meeting will take place in Antwerp, Belgium. The language of the Court meeting will be Dutch.
Also a dispute which is regarded as such by only one of the parties is a dispute as meant in this article.
Furthermore, only Sparks Surveyors has the authority, for collection of an invoice (and other resultant costs relating to the agreement and further (collection) costs related to the aforementioned invoice), to approach the Civil Magistrate, in which case the Court of Law in Antwerp is competent, while further only Sparks Surveyors has the authority to issue a summons before a court of law competent in the country where the Principal or one of the Principals is established, in the event that the term of payment of the invoice has been exceeded.
The Principal shall not bring any legal action against a surveyor of Sparks Surveyors, and all actions of the Principal shall be brought against Sparks Surveyors.
Only Belgian law applies to the assignment and any disputes resulting thereof.