General conditions
The provisions contained in these general terms and conditions shall apply to all offers and agreements of and with Com.pas, based in Ede, Frankeneng 114X, further referred to as the contractor.
Administrative Services
Article 1:
1.1 These general terms and conditions shall apply to all agreements punched by the contractor to perform any services except for modifications to be agreed upon between the parties, which must be established by the contractor in writing.
1.2 Unless expressly agreed otherwise in writing, general terms and conditions of clients shall apply to assignments given to the contractor only insofar as they do not conflict with these general terms and conditions. In case of doubt as to whether such a conflict exists, the general terms and conditions of the contractor shall prevail.
1.3 The client, with whom a contract was once concluded under the applicability of these terms and conditions, is deemed to have tacitly agreed to the applicability of these terms and conditions to subsequent contracts concluded with the contractor.
1.4 Amendments made by the contractor to the general conditions shall apply against the client as of one month from the date on which the amended general conditions were communicated to the client in writing – unless the client, notifies the contractor in writing within fourteen days of receipt of the communication that he objects to the amendment to the general conditions.
Article 2:
2.1 All quotations and offers of the Contractor are entirely without obligation.
2.2 Assignments and changes to assignments may be made either orally or in writing by the client.
2.3 Orders and amendments thereto shall not be binding on the Contractor until they have been accepted by the Contractor in writing.
Article 3:
3.1 Each party shall take all reasonable precautions to keep confidential the information of a confidential nature received from the other party.
3.2 The Contractor will comply with the Code of Conduct on the Personal Records Act.
3.3 The Contractor has taken adequate measures of an organizational, physical, operational and systemic nature to ensure the best interests of the Client.
3.4 The contractor shall, subject to obligations imposed on him by law to disclose certain information, be obliged to maintain confidentiality vis-à-vis third parties, who are not involved in the performance of the assignment, of all information made available to him by the client and the results obtained by processing it.
Article 4:
4.1 If the Agreement relates to the periodic or otherwise regular provision of computer service and related periodic services, the Agreement shall be entered into for an indefinite period, unless another period is expressly agreed upon.
4.2 Notice of termination may then only be given in writing by the end of a calendar year with a notice period of at least three months, unless otherwise agreed.
4.3 Subject to the provisions of Articles 4.5, 5.4, 9.1, 12.1 and 12.4, the agreement may be terminated prematurely only by dissolution and only if the other party, after expiry of a reasonable period following a proper written notice of default, imputably fails to comply with essential obligations under the agreement. The dissolution must be effected by registered letter to the other party; judicial intervention is not required.
4.4 If, at the time of dissolution, the Principal had already received performance in execution of the Agreement, he may only partially dissolve the Agreement and only in respect of that part which has not yet been performed by the Contractor.
4.5 Notwithstanding the provisions of Article 4.3, the contractor may terminate the contract, in whole or in part, without judicial intervention, by means of a written notification if the customer is declared bankrupt, if he is granted a suspension of payments – provisional or otherwise -, if he is otherwise unable to meet his payment obligations or if his company is wound up or terminated, other than for the purpose of reconstruction or merger of companies. The Contractor shall never be liable for any compensation on account of such dissolution.
4.6 Amounts that the Contractor has invoiced before the dissolution in connection with what it has already performed or delivered in performance of the Agreement shall remain due in full and shall become immediately payable at the time of dissolution.
4.7 If the agreement is terminated towards the end of the calendar year with due observance of the provisions of Article 4.2, the client may still obtain performance from the contractor for up to the first three months in the following calendar year with regard to the conclusion of administrative data processing concerning the past calendar year, against payment of the rates thereof as applicable at the time of termination of the agreement.
Article 5:
5.1 Prices and rates quoted by the contractor are exclusive of additional (consultancy) work not stipulated as such, as well as sales tax and levies imposed by the government.
5.2 If price determining factors undergo an increase, for whatever reason, the contractor shall be entitled to change the agreed prices and rates accordingly. Such a change shall not entitle the Client to terminate the Agreement prematurely.
5.3 Apart from the case provided for in Article 5.2, the rates for services, including computer services, may be changed by the contractor by written notification to the client. Rates thus amended shall apply from a date to be specified by the contractor in the said notification, but in no case earlier than one month after sending the notification to the client.
5.4 If the Client has objected to a proposed increase under Article 5.3 within fourteen days and fails to reach agreement with the Contractor on changes to those rates, the Client shall be entitled to terminate the Agreement by written notice within one month of the aforementioned notice by the end of the calendar year.
5.5 Unless the Client notifies the Contractor in writing within fourteen days of receipt of notification of a rate adjustment under Article 5.6 that it objects to the proposed increase, it shall be deemed to have accepted the amended rates.
Article 6:
6.1 Insofar as not otherwise agreed, the client shall pay the contractor’s invoices without discount and/or set-off within fourteen days of the date of the invoice in Dutch currency, at the contractor’s office or by payment into a bank account designated by the contractor.
6.2 If the client fails to pay the amount of the invoice as due by him within the prescribed period, he will be in default and in legal default. The Contractor will then be entitled to charge the Principal interest at a rate three percentage points higher than the statutory interest rate applicable at that time, with a minimum interest rate of 1% per month, with part of a month being regarded as a whole month, commencing on the due date and ending on the date of payment in full.
6.3 If the client is in default with any payment owed by him to the contractor, all other expired claims, which the contractor has against the client, will be immediately due and payable without further notice of default being required. From the date on which such claims become due and payable, the Client shall owe the Contractor interest on the amount of such claims in accordance with the provisions of Article 6.2.
6.4 Failure to pay the Contractor’s invoice on time will result in the Principal owing the Contractor all extrajudicial and judicial costs, which are set at a minimum of 15% of the invoice amount with a minimum of €50.
6.5 If the client disputes the amount of the invoice, he must notify the contractor of his objections in writing within fourteen days of the date of the invoice on pain of forfeiture of the right of complaint.
6.6 In the case of a jointly awarded order, clients are jointly and severally liable for payment of the amount of the invoice to the extent that the work was performed on behalf of the joint clients.
6.7 If warranted by the client’s creditworthiness, the contractor may require further security, failing which the contractor may suspend performance of the agreement.
Article 7:
7.1 All goods delivered to the Client shall remain the property of the Contractor or its supplier until all amounts owed by the Client for the goods delivered and to be delivered, work performed and to be performed under the relevant Agreement, as well as the amounts referred to in Article 6.2, have been paid to the Contractor in full. Rights will always be granted or, as the case may be, transferred to the client on the condition that the client pays the agreed fees on time and in full.
7.2 Files containing the Client’s (processing) data placed under the Contractor’s control shall remain the Client’s property under all circumstances.
Article 8:
8.1 The client shall cooperate in the performance of the agreement; to this end, the client shall always provide the contractor with all useful and necessary data or information.
8.2 If data necessary for the performance of the agreement are not at the contractor’s disposal, not in time or not in accordance with the arrangements made, or if the client fails to meet his obligations in any other way, the contractor shall be entitled to suspend the performance of the agreement.
Article 9:
9.1 All (delivery) deadlines stated by the contractor have been established to the best of his knowledge on the basis of the information known to the contractor at the time the agreement was concluded and will be observed to the extent possible. The contractor is not bound by (delivery) deadlines that can no longer be met due to circumstances, which occurred after entering into the agreement. If the exceeding of any deadline is imminent, the contractor and the client will consult as soon as possible. Excessive exceeding of deadlines may be considered grounds for dissolution of the agreement, ‘subject to the provisions of Articles 4 and 10.
Article 10:
10.1 For all direct damage suffered by the Client, in any way related to the performance of the assignment by the Contractor, the Contractor’s liability shall be limited to the amount of its fee in respect of the assignment in question.
10.2 The Contractor will never be liable for any indirect damage, including stagnation in the regular course of business in the Client’s company, in any way related to or caused by an error in the Contractor’s performance of the Work.
10.3 The Contractor shall at all times be entitled, if and to the extent possible, to undo the Client’s damage.
10.4 The Client shall indemnify the Contractor against all claims by third parties which are directly or indirectly, directly or indirectly, related to the performance of the Agreement.
10.5 The Contractor’s liability for damages shall expire after two years from the occurrence of the damage.
Article 11:
11.1 If the Contractor is unable to perform its obligations under the Agreement, or is unable to perform them on time or properly, as a result of a cause not attributable to it, including but not limited to stagnation in the regular course of business within its company, those obligations will be suspended until such time as the Contractor is still able to perform them in the agreed manner.
11.2 In the event of force majeure as referred to above, the Contractor will have the right to cancel the contract with the Client, in whole or in part, by simple notification to the Client without judicial intervention and without the Contractor being obliged to pay any compensation for any loss suffered by the Client as a result of the cancellation.
Article 12:
12.1 The Contractor shall perform computer services and related work with care in accordance with the arrangements established in writing with the Client.
12.2 The data to be processed by the Contractor shall be prepared and supplied by the Client according to guidelines to be given by the Contractor.
12.3 The Contractor may retain the items and data received from the Client and the results of the processing until the Client has paid all amounts owed ..
12.4 The Contractor may make changes in the scope or content of the computer services to be performed and the related work. If such changes result in a change in the procedures applicable at the Principal, the Contractor shall inform the Principal as soon as possible and the Principal shall bear the costs of the change in those procedures. In such a case, the client may terminate the agreement by means of a written notification to the contractor by the date on which the change takes effect, unless changes in the performance of the work are made necessary as a result of changes in legislation or other regulations to be issued by competent authorities.
12.5 Changes in the scope or content of the computer service shall not automatically result in rate increases.
12.6 The Contractor guarantees for the duration of the Agreement to adapt the necessary software to changes in regulations of competent authorities, in such a way that the processing of data of the Client can be performed permanently while maintaining quality.
Article 13:
Force majeure is defined as any failure in performance that is not due to intention, negligence and/or gross negligence, nor for our account. In the event that we are prevented from performing the contract, each party is entitled to dissolve the contract in whole or in part, without us being liable for any compensation. Contrary to the above, in the event of temporary impediment to the performance of the agreement due to force majeure, we are entitled to suspend performance for the duration of the impediment. The other party shall then be entitled to dissolve the contract if, in view of the circumstances of the case, it cannot reasonably be required to wait for the removal of the (cause of the) impediment. Such dissolution shall not entitle the other party to any damages.
Article 14:
With regard to all disputes relating to offers, assignments and agreements governed by these terms and conditions, unless the subject of the dispute falls within the competence of the subdistrict court, the court of the principal’s place of residence has jurisdiction.
Article 15:
All quotations, assignments and agreements and disputes arising therefrom shall be governed by Dutch law.
Payrolling
Article 16:
16.1 The framework agreement is established by written acceptance of the hirer or by the company actually making labor available to the hirer.
16.2 The specific conditions under which the labor force is made available by the company to the hirer are included in the framework agreement.
16.3 An amendment or addition to the Framework Agreement shall not take effect until it has been confirmed in writing by the Company.
16.4 The hirer cannot derive any rights from an offer of the company that is based on incorrect or incomplete information provided by the hirer.
16.5 An offer made by the company shall not automatically apply to subsequent framework agreements. However, these general terms and conditions shall also apply to such framework agreements without the company being obliged to provide these general terms and conditions to the hirer each time.
Article 17:
17.1 Unless otherwise agreed, the company’s invoices are based on the time sheet completed and approved by the hirer, the hirer’s rate and any additional surcharges and (expenses).
17.2 The hirer is responsible for the correct, timely and complete completion and approval of the timesheets. The approval takes place via (digital) signature of the timesheet, unless otherwise agreed. The hirer is liable for any damage suffered by the company if the hirer fails to properly fulfil the obligations in this paragraph, including but not limited to the administrative fine pursuant to article 18b paragraph 2 of the Minimum Wage and Minimum Holiday Allowance Act. The hirer shall compensate the company in full in this respect.
17.3 In the event of a discrepancy between the time sheet submitted to the company and the details thereof retained by the hirer, the time sheet submitted to the company shall be deemed correct, unless the hirer proves otherwise.
17.4 If the employee disputes the timekeeping records, the company may invoice the number of hours worked and other expenses according to the employee’s statement, unless the hirer proves that the timekeeping records used by the hirer are correct.
17.5 If the hirer does not comply with the provisions of paragraph 2 of this article, the company may decide to invoice the hirer on the basis of the facts and circumstances known to it. The company will not do so until reasonable consultation with the hirer has taken place in this regard.
17.6 The hirer shall ensure that the company’s invoices are paid without any deduction, discount or set-off within 14 days of the invoice date. Unless otherwise agreed upon.
17.7 The company shall have a G account. The hirer may request the company to enter into consultation about the possibility of the hirer depositing a percentage of the invoiced amount in the relevant account, as well as the amount of the percentage. Only if agreement is reached can the aforementioned possibility be used.
Article 18:
18.1 Only direct payments to the company shall work in discharge for the hirer.
18.2 Direct payment or provision of advances by the hirer to the employee is not permitted, regardless of the reason for or manner in which it is made. Such payments and provisions shall not affect the company and shall not provide grounds for any debt repayment or set-off.
18.3 If the hirer disputes an invoice, the hirer shall notify the company in writing within eight days of the date of dispatch of the relevant invoice, on pain of forfeiture of the right to dispute. A dispute of the invoice does not suspend the hirer’s payment obligation.
18.4 In the event of non-payment, late payment or incomplete payment by the user company of any amount owed by it, the user company shall be in default by operation of law from the due date of the relevant invoice. From that moment, the hirer shall also owe the company default interest equal to the statutory commercial interest pursuant to Section 6:119a of the Dutch Civil Code on the invoice amount.
18.5 All costs, both in and out of court, including the costs of legal assistance, which the company has to incur as a result of the hirer’s failure to fulfil its payment obligations, shall be borne by the hirer. The extrajudicial collection costs of the company, to be calculated on the amount to be collected, shall be set at a minimum of € 500.00 and at least 15% of the principal sum.
18.6 If the financial position and/or the payment behaviour of the hirer gives cause to do so – in the opinion of the company – the hirer is obliged, at the company’s first written request, to: – provide an advance payment; and/or – provide adequate security for the fulfilment of the obligations towards the company, for example by means of a bank guarantee or pledge. – The size of the requested security and/or advance payment shall be in proportion to the size of the relevant obligations of the hirer.
Article 19:
19.1 If a party defaults on its obligations under the Framework Agreement, the other party shall be entitled – in addition to what is stipulated in the Framework Agreement – to dissolve the Framework Agreement in whole or in part out of court by registered letter. Dissolution shall only take place after the defaulting party has been given written notice of default and given a reasonable period of time to remedy the default, and performance has not been forthcoming.
19.2 Furthermore, one of the parties is entitled, without any warning or notice of default being required, to dissolve the framework agreement in whole or in part extrajudicially and with immediate effect by means of a registered letter if: – the other party applies for (temporary) suspension of payment or is granted (temporary) suspension of payment; – the other party files for its own bankruptcy or is declared bankrupt; – the other party’s company is liquidated; – the other party discontinues its current business; – a substantial part of the other party’s assets are seized through no fault of the other party, or if the other party must otherwise be deemed unable to fulfill its obligations under the framework agreement.
19.3 If the hirer had already received performance under the framework agreement at the time of dissolution, it may only partially dissolve the framework agreement and only for that part, which has not yet been performed by or on behalf of the company.
19.4 Amounts that the company has invoiced to the hirer before the dissolution in connection with what it has already performed in execution of the framework agreement shall continue to be owed to it by the hirer in full and shall become immediately payable at the time of dissolution.
Article 20:
20.1 Barring provisions of mandatory law, and with due observance of the general standards of reasonableness and fairness, the company is not liable for any compensation for damage of whatever nature, direct or indirect, caused to the worker, the hirer or to goods or persons at or belonging to the hirer or a third party, in connection with a framework agreement, including damage caused as a result of – the posting of the worker by the company to the hirer, even if it turns out that that worker does not meet the requirements set by the hirer. – Unilateral termination of the payroll agreement by the worker. – acts or omissions of the worker, the hirer itself or a third party, including entering into commitments by the worker. – on-lending by the hirer of the labor force without the written consent of the company.
20.2 Any liability of the Company for any direct damage shall in any event, per event, be limited to: – the amount paid out by the Company’s insurance, or; – if the Company is not insured for the damage in question or the insurance does not pay out (in full), the amount invoiced by the Company. If the amount billed – depends on a time factor, liability is limited to the amount billed to the hirer by the company in the month preceding the notice of damage. In the absence of a previous month, what the company would charge or has charged the hirer under the framework agreement in the month in which the loss-causing event occurred shall be decisive.
20.3 For consequential damages such as lost profits and lost savings and for indirect damages, the Company shall never be liable.
20.4 The hirer shall be obliged to provide adequate, comprehensive liability insurance for all direct and indirect damage as referred to in paragraph 1 of this article.
20.5 In any event, the hirer must indemnify the company against any claims by the worker or third parties, for compensation for damage as referred to in paragraph 1 of this article suffered by that worker or third parties.
20.6 The limitations of liability contained in paragraphs 1 and 2 of this article shall cease to apply if there is intent or gross negligence on the part of the Company and/or its managerial staff.
20.7 The company shall at all times be entitled, if and to the extent possible, to undo any damage caused by the hirer. This includes the right of the company to take measures to prevent or limit any damage.
Article 21:
21.1 In the event of force majeure on the part of the company, its obligations under the framework agreement will be suspended for as long as the force majeure situation continues. By force majeure is meant any circumstance beyond the company’s control, which permanently or temporarily prevents fulfillment of the framework agreement and which should not be at the company’s risk, either by law or by the standards of reasonableness and fairness.
21.2 As soon as a force majeure situation occurs at the company as referred to in paragraph 1 of this article, it shall notify the hirer.
21.3 Insofar as not already included therein, force majeure shall also include: strikes, occupation, blockades, embargo, government measures, war, revolution and/or any condition equivalent thereto, power failures, failures in electronic communication lines, fire, explosion and other calamities, water damage, flooding, earthquake and other natural disasters, as well as extensive illness of an epidemiological nature of personnel.
21.4 As long as the force majeure condition continues, the obligations of the Company shall be suspended. However, this suspension will not apply to obligations to which the force majeure does not apply and which have already arisen before the force majeure condition occurred.
21.5 If the situation of force majeure has lasted three months, or as soon as it is established that the situation of force majeure will last longer than three months, either party is entitled to terminate the framework agreement prematurely without observing any period of notice. Even after such termination of the framework agreement, the hirer shall be obliged to pay to the company the fees owed by it to the company, which relate to the period prior to the force majeure condition.
21.6 During the force majeure condition, the company shall not be obliged to compensate any damage from or to the hirer, nor shall it be obliged to do so after termination of the framework agreement as referred to in paragraph 5 of this article.
Article 22:
22.1 The company and the hirer shall not disclose to third parties any confidential information of or about the other party, its activities and relations, which has come to their knowledge pursuant to an offer or framework agreement. This is unless – and then insofar as – the provision of that information is necessary for the proper performance of the framework agreement or they are under a legal obligation to disclose it.
22.2 At the request of the hirer, the company will oblige the employee to maintain confidentiality regarding all that becomes known or known to him in the performance of the work, unless the worker is subject to a legal duty of disclosure.
22.3 The hirer is free to impose confidentiality on the employee directly. The hirer shall inform the company of its intention to do so and shall provide the company with a copy of what is recorded in this regard.
22.4 The company shall not be liable for any fine, penalty or any damages incurred by the hirer as a result of breach of confidentiality by the employee.
Article 23:
23.1 These general terms and conditions, orders, framework agreements and/or other agreements are governed by Dutch law.
23.2 All disputes arising from or related to a legal relationship between the parties shall be tried in the first instance exclusively by the court within the district in which the company has its registered office, unless otherwise required by mandatory law.
Article 24:
24.1 If any provision of these terms and conditions is void or is nullified, the other provisions of these terms and conditions shall remain in full force and the parties shall consult in order to agree new provisions to replace the void or nullified provisions, taking into account as far as possible the purpose and purport of the void or nullified provision.
24.2 The company is entitled to transfer its rights and obligations under a framework agreement to a third party. Unless otherwise agreed in writing, the hirer is not permitted to transfer its rights and obligations under the framework agreement to a third party.
Article 25:
25.1 The employee actually works under the supervision and direction of the hirer. In doing so, the hirer shall exercise the same care as towards its own employees. As a formal employer, the company has no insight into the workplace and the work to be performed, on the basis of which the user company must ensure a safe working environment. In doing so, he observes the same care as towards his own employees.
25.2 The posted worker has entered into a payroll agreement with the company pursuant to Article 7:692 of the Dutch Civil Code. The framework agreement between company and hirer is decisive for this: if the company does not have an allocative function in the context of the assignment (does not do any recruitment and selection) and there is an exclusive placement with the hirer, then there is a payroll agreement.
25.3 The hirer shall not, without the written consent of the company, lend the employee hired by it to a third party to work under the latter’s supervision and management or to perform work abroad. A violation of this paragraph will result in the company being entitled to immediately terminate the supply of the employee and/or the framework agreement, as well as to charge the hirer for all resulting or related damages. The hirer shall then indemnify the company in full.
Article 26:
26.1 The specific conditions under which the worker is placed at the disposal of the hirer shall be included in the framework agreement. The posting of the employee to the hirer shall be for a definite or indefinite period.
26.2 The hirer shall inform the company of the intended duration, (weekly or at least monthly) scope of work and times of each posting, on the basis of which the company can determine the nature and duration of the temporary, or payroll agreement with the employee.
26.3 If, after the employee has appeared at the workplace, the hirer makes use of his offer of work for less than three hours, the hirer is obliged to pay the hiring rate for at least three hours per call if: – a scope of work of less than 15 hours per week has been agreed and the working hours have not been fixed; or – there is an on-call contract pursuant to Article 7:628a of the Dutch Civil Code.
26.4 If an employee has already been called up but cannot perform the work or the working hours are adjusted due to special circumstances on the part of the hirer, the hirer shall notify the company thereof at least four days prior to the time that the work is due to commence. If the hirer fails to do so and the employee has an on-call contract pursuant to Article 7:628a of the Dutch Civil Code, the hirer shall owe the hirer’s rate for the number of hours related to the original call-up including the working hours.
26.5 If the employee has an on-call contract pursuant to Article 7:628a of the Dutch Civil Code, the company is obliged to make the employee an offer for a fixed scope of work including the continued payment of wages obligation after twelve months, in which the fixed scope of work is at least equal to the average scope of work in the preceding twelve-month period. If the offer is accepted by the employee, the hiring rate will be calculated on the fixed scope of work and not on the actual number of hours worked.
26.6 The framework agreement cannot be terminated as long as workers are provided to the hirer.
26.7 The posting for a fixed term cannot be terminated prematurely. If the hirer nevertheless so wishes, the placement may only be terminated prematurely under the condition that the payment obligations associated with the placement continue until the expiry of the agreed term of the placement. The company shall then be entitled to (continue to) charge the user company the user fee in accordance with the usual or expected work pattern of the employee until the agreed duration of the placement, unless the company and the user company have made other written agreements in this respect.
26.8 The company and hirer shall agree in the framework agreement on the notice period for the indefinite posting. This shall take into account the obligation of the company to continue to pay wages to the employee. If no notice period has been agreed, the notice period referred to in Article 4.2 of the General Terms and Conditions shall apply.
26.9 If the hirer, without the knowledge of the company, has played a role in the allocation process or the recruitment and selection of the employee, by virtue of which the temporary employment contract converts into a payroll contract, the hiring rate shall be reset with retroactive effect in accordance with Article 24. The hirer shall then be obliged to continue paying the hiring rate for the duration of the payroll agreement, as agreed between the company and the employee. The hirer may offer the employee an employment contract in order to terminate the continuing payment obligation. In the event of a desired end of the posting, the company will make every effort to terminate the payroll agreement or to redeploy the employee, in which case all additional costs will be passed on to the hirer.
26.10 In connection with its obligation to give the hirer at least five weeks’ notice before the end of the temporary employment or payroll contract, the company may ask the hirer to indicate whether it wishes to continue the posting. The hirer is then obliged to indicate within three days whether it wishes to continue the posting. Failure to inform the company in good time or incorrectly shall result in the hirer having to reimburse the company in full for the costs associated with the compensation paid to the employee pursuant to Section 7:668(3) of the Dutch Civil Code.
26.11 If the reason for termination is due to a dispute with the employee, or a conflict situation, the hirer must notify the company in a timely manner. The company will then investigate whether the dispute or conflict situation can be resolved.
26.12 If a company closure or mandatory day off occurs during the placement, the hirer shall inform the company of this when entering into the framework agreement, so that the company can take it into account when determining the terms of employment. If the hirer fails to do so, it will owe the company the number of hours as agreed in the framework agreement multiplied by the most recently applicable user company rate for the duration of the company closure or mandatory day off.
Article 27:
27.1 The hirer shall inform the company in a timely, accurate and complete manner regarding the terms and conditions of employment as referred to in 32 of the General Terms and Conditions ex Article 12a of the Wet allocatie arbeidskrachten door intermediairs (Labour Force Allocation by Intermediaries Act), so that the company can determine the employee’s salary.
27.2 The Company shall be entitled to retroactively correct and charge the user fee to the hirer if it appears that any or all of the components referred to in Article 29 or 32 were determined incompletely or incorrectly.
27.3 If the hirer intends to provide the employee with a car, the hirer shall notify the company immediately. Only in consultation with the company will the hirer agree with the employee that the car may be driven privately, so that the company can take this into account in its payroll tax. If the hirer fails to do so, it will be obliged to compensate the company for any resulting damage, costs and (tax) consequences.
Article 28:
28.1 In addition to the company, the hirer shall be jointly and severally liable to the employee for the payment of wages due to the employee, unless the hirer qualifies as non-accountable with respect to any underpayment.
28.2 For the purpose of demonstrating its non-repudiation, the hirer must in any case provide the company with timely, accurate and complete information regarding the terms and conditions of employment as referred to in Article 21 or 24 of the General Terms and Conditions.
28.3 The company is obliged to the hirer to remunerate the employee in accordance with applicable laws and regulations.
Article 29:
29.1 If the hirer wishes to enter into an employment contract or other type of employment relationship directly with an employee provided or to be provided to it by the company, it shall notify the company immediately in writing. The parties shall then consult to discuss the hirer’s wishes. As a starting point, the hirer shall owe the company a reasonable fee for the services provided by the company in connection with the posting, recruitment and/or training of the worker, in accordance with the provisions of article 9a, paragraph 2 of the Dutch Intermediaries (Employment Allocation Act).
29.2 Other type of employment relationship as referred to in this article includes: – commission contract; – contracting work; having the labor force made available to the hirer by a third party (e.g. another company) for the same or other work.
29.3 The hirer shall not enter into an employment contract directly with the employee if the worker has not validly terminated the contract with the company.
29.4 The hirer is prohibited from inducing the employee to enter into an employment contract or any other type of employment relationship with another company with the intention of hiring the employee through that other company.
Article 30:
30.1 The hirer is aware that it has an obligation under Article 7: 658 of the Dutch Civil Code and the applicable occupational health and safety legislation to ensure a safe workplace for the worker. The hirer shall provide the employee with specific instructions to prevent the employee from suffering harm in the performance of his work. The hirer shall also provide the employee with personal protective equipment to the extent necessary. If the supplies are provided by the company, the company is entitled to charge the hirer for the related costs.
30.2 Before the commencement of the posting, the hirer shall provide the employee and the company with the necessary information about the required professional qualification of the worker, as well as the Risk Inventory and Evaluation (RI&E), containing the specific characteristics of the workplace to be filled. The employee must be given sufficient opportunity to familiarise himself with the contents before the work can begin.
30.3 The hirer is liable to the laborer and company for, and consequently liable to compensate, any damage suffered by the employee in the performance of his work, unless the damage is to a significant extent the result of intent or conscious recklessness on the part of the laborer, all subject to the provisions of Article 7.
30.4 If the employee is injured in the performance of his work to such an extent that death is the result, the hirer shall be liable to the persons referred to in Article 6:108 of the Dutch Civil Code and to the company, in accordance with Article 6:108 of the Dutch Civil Code, to compensate the damage to the said persons, unless the damage is to a significant extent the result of intent or deliberate recklessness on the part of the worker, all with due observance of the provisions of Article 7. The hirer shall also reimburse the company for the costs relating to the payment to be made pursuant to Article 7:674 of the Dutch Civil Code.
30.5 The hirer shall indemnify the company in full against any claims brought against the company on account of the non-fulfilment by the hirer of the obligations referred to in this article and shall reimburse the company in full for the costs of legal assistance in connection therewith. The hirer grants the company the authority to assign its claims referred to in this article to the party or parties directly concerned.
30.6 The hirer is obliged to ensure adequate, total coverage liability insurance for all direct and indirect damages as referred to in this article.
Article 31:
31.1 The hirer shall establish an employee’s identity on the basis of the original identity document upon commencement of the posting. The hirer shall set up its administration in such a way that the identity of the employee can be demonstrated.
31.2 The company and the hirer shall treat all personal data of employees provided to them in the context of the posting as confidential and process them in accordance with the provisions of the General Data Protection Regulation (GDPR) and other relevant privacy legislation.
31.3 Depending on the responsibilities and working method, the parties will make agreements in accordance with the AVG and related privacy legislation concerning data leaks, data subjects’ rights and retention periods. If there is joint processing responsibility, the company and user company will make further agreements on such matters as the exercise of the rights of data subjects and the obligation to provide information. These agreements are laid down in a mutual arrangement.
31.4 The Hirer shall be responsible for providing or requesting personal data from the Company only if and to the extent that the Hirer is entitled to provide or request them under the AVG.
31.5 The hirer shall indemnify the company against all claims by candidates, employees, employees of the hirer or other third parties against the company, in connection with a violation by the hirer of the AVG and other privacy laws and shall reimburse the related costs incurred by the company.
Article 32:
If there is successive employership, the hirer shall correctly and fully inform the company about the employee’s employment history with the hirer. If the hirer fails to do so, the resulting unforeseen costs and possible damages will be passed on to the hirer.
Article 33:
33.1 The hirer shall owe the company the user rate for the supply of the employee, unless otherwise agreed. The user rate is in direct proportion to the wages payable to the worker.
33.2 According to Article 8a of the Wet allocatie arbeidskrachten door intermediairs, the employee is entitled to at least the same working conditions as apply to employees employed by the hirer, working in equal or equivalent positions. Notwithstanding this, an adequate pension plan may apply.
33.3 For payroll contracts, in accordance with Article 7:668a of the Dutch Civil Code, the rules on succession apply in the same way as for employees employed by the hirer. Before the commencement of the posting, the hirer will inform the company in writing about the collective agreement or remuneration scheme that applies in its company, the legal status scheme included therein, the pension scheme and furthermore about all (interim changes to the) terms and conditions of employment under this collective agreement or remuneration scheme that are relevant to the posting, such as: wages, overtime, sick pay and leave arrangements.
33.4 Rate changes as a result of changed terms of employment, collective bargaining obligations and changes in or as a result of laws and regulations such as tax and social laws and regulations, shall be passed on to the hirer as of the time of such changes and shall be payable by the hirer accordingly, even if such changes occur during the term of a framework agreement.
33.5 All components of the hirer’s remuneration that are named in the placement confirmation and provided with a rate agreement are part of the agreement. Other hirer’s remuneration components that are not named and are subsequently applicable by operation of law will be charged to the hirer on a one-to-one basis. A number of examples are listed in articles a to f (below); – Gross and net allowances such as, among other things, travel (hours), subsistence allowances, transitional allowance, personal protection and work clothing allowances, bonuses, other types of gross and net allowances that are necessary for the performance of the job. – Costs related to illness and absenteeism prevention such as, among other things, costs due to illness abroad, travel expenses to the occupational health and safety service, medical examinations and analyses, a personal budget for external reintegration obligations, continued payment of vacations during illness and other types of allowances and contributions to the costs related to illness and absenteeism prevention. – Allowances for, among other things, on-call duty, shift premium (shifted hours), special expertise, food and equipment allowance, standby duty and other collective bargaining agreement-related allowances. -Costs surrounding continued payment of the employee’s wages in the event of, among other things, unworkable weather, paid parental leave, moving expenses for work, days off for bereavement and palliative leave, generation pact, days/hours for work or meetings of the affiliated union and other collective bargaining obligations for continued payment of wages. – Entitlement to additional days off such as, among other things, age-related additional ATV or vacation days, additional vacation days based on years of service and other costs surrounding additional days off. – Costs related to training such as, among other things, CAO mandatory training costs, first aid and BHV training, a personal development budget and costs related to study, days off in preparation for exams and exam days and other costs related to training.
33.6 If a worker does not meet the job requirements set by the hirer and the hirer has played no role in the allocation process (the recruitment and selection) of the worker, the hirer is entitled to notify the company of this within 4 hours of the commencement of work. In that case, the hirer shall be obliged to pay the company at least the wage due to the employee, plus the employer’s share of the social security contributions and premium tax and obligations arising from the applicable collective bargaining agreement/reward rule.
33.7 If there is an indefinite posting and parties have not agreed on a notice period, the hirer’s payment obligations related to the posting will continue until the termination of the payroll contract between payroll company and employee. The payroll company will then be entitled to (continue to) charge the hirer the user fee in accordance with the usual or expected work pattern of the employee.