The natural or legal person who gives orders to Bring out the Best, established in Huizen at Dekemastate 10, hereinafter referred to as: “service provider” to provide certain services.
The person who, whether or not on the basis of an (employment) agreement with the service provider, performs services at or on behalf of the Client on behalf of the service provider.
Article 1 Applicability
- These general terms and conditions apply to all quotations from, assignments to and agreements with the service provider and its client.
Article 2 Quotations and conclusion of the assignment
- All quotations provided by the service provider and prices and conditions stated therein are always made without obligation and, unless otherwise stated, have a maximum validity of four weeks.
- The prices stated on offers, quotations and invoices of the service provider are exclusive of VAT and any other government levies, unless expressly stated otherwise.
- In any case, assignments are concluded when a professional of service provider actually starts the execution of the work, even if the agreements have not yet been signed for this purpose.
- Offers and quotations do not automatically apply to follow-up orders. The parties must agree this expressly and in writing.
Article 3 Duration and termination of the contract
- The contract is entered into for a definite or indefinite period of time. The fixed-term assignment ends by operation of law at the moment that the agreed time expires, when a pre-agreed future event occurs or after the achievement of a certain agreed objective.
- If the duration of a contract is subject to a future event or the achievement of a certain agreed objective, no interim termination is possible.
- Interim termination of a fixed-term assignment is only possible if this has been agreed in writing between the parties, and with due observance of a notice period of one calendar month.
- If and after a pre-agreed future event occurs in the context of a fixed-term contract, a certain agreed objective has been achieved or after the agreed time of the assignment has expired, the assignment is tacitly continued, the assignment shall be continued for at least one month or the renewal period stated in the order confirmation.
- Assignments between the service provider and the client can be dissolved without judicial intervention and without any notice of default being required at the time when:
- The client is declared bankrupt;
- the client applies for provisional suspension of payments;
- client by seizing the client’s property,
- Under the guardianship of the client or as a client otherwise loses the power to dispose of its assets or parts thereof;
- In the opinion of the service provider, collection of existing or future claims cannot be secured;
- The Client is in default with regard to the fulfilment of any obligation arising from the assignment and/or these general terms and conditions.
If, in the case of a fixed-term agreement, it is dissolved for the aforementioned reasons, the service provider is fully entitled to the agreed compensation for the remaining term of the agreement and regardless of whether it has saved costs through the dissolution or otherwise.
Article 4 Provision of information by the Client
- The Client shall make all information relevant to the execution of the assignment available to the service provider.
- The Client is obliged to make available all data and documents that the service provider believes it needs for the correct execution of the assignment on time and in the desired form and manner.
- The Client guarantees the accuracy, completeness and reliability of the data and documents made available to the Service Provider, even if they come from third parties, insofar as the nature of the assignment does not result otherwise.
- The Client indemnifies the Service Provider against any damage in any form whatsoever resulting from non-compliance with the provisions of the first paragraph of this article.
- If and insofar as the Client so requests, the service provider will return the relevant documents.
- If the Client does not make the information and documents required by the service provider available, not on time or not properly, and if the execution of the assignment is delayed as a result, the resulting extra costs and extra fees will be borne by the Client.
Article 5 Performance of the contract
- The Service Provider will execute the agreement to the best of its knowledge and ability and in accordance with the requirements of good workmanship. However, the Service Provider is not responsible for information and data provided by the Client in the context of the assignment.
- If and insofar as this requires the proper execution of the assignment, the service provider has the right to have certain activities carried out by third parties.
- The choice of the professional who performs the work in the context of the assignment takes place in close consultation between the service provider and the Client. Service provider reserves the right to withdraw or replace an already nominated professional with another professional at any time.
- During the first 5 working days of the professional at the Client, the Client has the right to unilaterally terminate the assignment with regard to the relevant professional with immediate effect, if the professional demonstrably does not meet the requirements necessary for the proper performance of the function and has informed the Client service provider of this at least 1 working day in advance. However, termination of the order with immediate effect is not possible if the service provider can arrange for replacement within 10 working days. The foregoing applies exclusively to the professional who works for the Client for the first time.
- The Client is not permitted to have the professional perform activities other than those agreed in the assignment or to have the work carried out outside the Netherlands without the prior written permission of the service provider.
Article 6 Working hours, holidays, etc.
- The professional of service provider will adhere to the usual working hours at the Client.
- The professional will work in accordance with the guidelines applicable to the service provider or the guidelines applicable to the Client and the house rules applicable to his workplace.
- Any vacation days to be taken by the professional will also be coordinated with the Client.
Article 7 Withdrawal of the contract
- The Client is free to terminate the assignment to the service provider at any time, taking into account the provisions of Article 3.
- If the Client withdraws the assignment, the Client is obliged to pay the wages due and the expenses incurred by the service provider.
Article 8 Safety and liability
- The Client is obliged to have the work carried out in compliance with what is stated by or on the basis of the Working Conditions Act.
- The Client is obliged to take such measures and provide instructions as are reasonably necessary to prevent the professional from suffering damage in the performance of his work and is familiar with the obligation under Article 7:658 paragraph 1 of the Dutch Civil Code.
- The Client indemnifies the service provider against any claims by a professional on the basis of Article 7:658 of the Dutch Civil Code or any other legal basis insofar as the claims relate to working conditions at the client.
- The Client indemnifies the service provider against all possible claims by a professional in connection with damage suffered by the professional as a result of an item belonging to the professional being damaged or destroyed in the performance of the work for the Client.
Article 9 Confidentiality
Both parties are obliged to maintain the confidentiality of all confidential information obtained from each other or from other sources in the context of their agreement. Information is considered confidential unless otherwise stated by the other party.
Article 10 Intellectual and industrial property
- At the request of the client, and only to the extent possible, the Service Provider will make every effort to ensure or promote that all intellectual and industrial property rights to the results of the work, including reports, reports, budgets, drawings, sketches, specifications and other documents; models and computer files that the professional has produced in the context of the assignment will or will be transferred to the Client.
- The Service Provider reserves the right to keep all items made available to it in the context of the assignment until the client has fully fulfilled its obligations under the agreement as well as all claims of the service provider due to non-compliance with the agreement by the client.
- Without prejudice to the provisions of article 8.1 of these terms and conditions, the service provider reserves the rights and powers that accrue to it under the Copyright Act. All documents provided by the service provider, such as reports, advice, designs, sketches, drawings, software, working methods, (model) contracts and other mental products of the service provider and that in the broadest sense, are exclusively intended to be used by the other party and may not be reproduced, published or brought to the attention of third parties by him, whether or not by using third parties, without the prior permission of the service provider.
Article 11 Force majeure
- The Service Provider is not obliged to execute the agreement and is entitled to invoke force majeure in this regard if the execution of the agreement is prevented or complicated in whole or in part, temporarily or otherwise, by circumstances beyond its reasonable control. Force majeure includes, but is not limited to, illness of the professional (-s) who performs or would perform the work in the context of the assignment and insofar as this cannot reasonably be replaced by other, at that time available, professionals of service provider.
- In the event of force majeure on the part of the service provider, its obligations will be suspended. If the force majeure lasts longer than 3 (three) months, both the service provider and the client are entitled to dissolve the agreement for the unenforceable part.
Article 12 Liability
- With the exception of the situation described in Article 9, the service provider guarantees that it will make the agreed professional available to the client at the beginning of the agreed work. For the rest, all obligations of the service provider include an obligation of best efforts and without the service provider being able to guarantee any result.
- The total liability of the service provider, and with due observance of the foregoing Article 9, due to an attributable shortcoming in the performance of an agreement or unlawful act is limited to compensation for direct damage and to a maximum of half the amount of the price stipulated for that agreement. If the agreement also includes a continuing performance agreement with a term of more than 1 (one) year, the liability is also limited to a maximum of half of the total of the fees stipulated for one year but in no case more than € 25,000 (in words: twenty-five thousand euros). Direct damage within the meaning of this Article shall only mean:
- The reasonable costs – and minus the savings – that the client had to incur in order for the contractor’s performance to comply with the agreement. However, this damage will not be compensated if the client has dissolved the agreement;
- Reasonable costs incurred to determine the cause and extent of the damage, insofar as the determination relates to direct damage within the meaning of these terms and conditions;
- Reasonable costs incurred to prevent or limit damage, insofar as these have demonstrably led to limitation of direct damage within the meaning of these general terms and conditions.
- Liability of the service provider for indirect damage, which includes – and is not intended exhaustively – consequential damage, loss of profit, missed savings, reduced goodwill, image damage, damage as a result of claims by customers of the Client, damage due to business interruption and the like, is excluded.
- Apart from the cases referred to in Articles 10.1 and 10.2, the service provider shall not be liable for any compensation, regardless of the ground on which an action for compensation would be based.
- The liability of the service provider pursuant to Article 11.2 only arises if the client has duly given it notice of default and has given a reasonable period of at least 10 (ten) working days to remedy the shortcoming and the service provider continues to fail imputably in the fulfillment of its obligations even after that period. The notice of default must contain as detailed a description of the shortcoming as possible, so that the service provider is able to respond adequately.
- Liability limiting or excluding conditions, which may be invoked by professionals in connection with the assignment to the service provider, may be invoked by it against the client.
- All legal claims against the service provider, including claims for compensation, expire within one year after the relevant claim/claim has arisen.
Article 13 Fees
- The fee is determined on the basis of hours actually spent and on the basis of the hourly rate, as laid down in the order confirmation.
- The fee is exclusive of VAT, unless expressly agreed otherwise.
- The parties can agree on a fixed price when the agreement is concluded. The fixed fee is exclusive of VAT.
- In the event of an increase in the professional’s wage costs as a result of (a change in) a government measure and/or other binding regulation and/or as a result of changes in social security contributions and/or tax legislation, and/or collective labour agreement, the service provider is entitled to adjust the fee accordingly.
- The service provider is also entitled to adjust the fee in connection with the increase in the remuneration of the professional as of 1 January of any calendar year (whether or not on the basis of the CBS index for household consumption).
- An adjustment of the fee will be announced in writing to the client by the service provider as soon as possible.
- The service provider is responsible for withholding contributions, employee insurance premiums and levies.
Article 14 Method of invoicing
- The service provider invoices on the basis of the timesheets drawn up by the professional that bind the client, unless there is a fixed fee.
- Only at the express request of the client will invoices be made on the basis of written timesheets signed by the client for agreement, which bind the client. By signing these timesheets, the client declares that they have been filled in correctly and completely.
- If the client does not sign the timesheets or is negligent in signing the professional’s timesheets for approval and has not provided a timesheet to the service provider within 5 working days after the relevant work, the service provider is entitled to determine the number of hours worked by the professional in a binding manner, whereby the agreed work volume will serve as a starting point.
- The Service Provider will provide the following documents at the request of the Client:
- An extract from the trade register of the Chamber of Commerce
- Documentary evidence of the contractual relationship between the service provider and the professional to be deployed
Article 15 Payments
- Payments must be credited within 14 days of the invoice date and without the Client being able to invoke any right to set-off, suspension or otherwise withholding to account number NL45 INGB 0008 9121 52, attn. Bring out the Best. Payments to and/or the provision of (an) advance(s) to a professional are not permitted and will in no way lead to a reduction in the claim of service provider.
- If the client does not pay within the set period, default will automatically take effect with effect from the expiry date, without the service provider being obliged to give any notice of default or summons. In such a case, the client owes interest of 1% per calendar month on the amount remaining, whereby part of a month is regarded as a full month.
- If the service provider proceeds to take measures to collect the claim, the client is obliged to reimburse the service provider for all costs incurred in this regard. This includes all fees to the third parties engaged in this regard and all costs incurred by the service provider within its own organisation, which can reasonably be attributed in whole or in part to the relevant measures. In that case, the service provider has the choice to claim the costs incurred from the client or to determine those costs at a flat rate of 20% of the amount wrongly owed.
- Complaints about an invoice must be submitted in writing to the service provider within 8 calendar days of the day of sending the invoice. The burden of proof regarding the timely submission of the complaint rests on the client. After this period, complaints will no longer be processed and the client has processed his right to complain. A complaint does not affect the payment obligation.
- If payment has not been made within the period indicated in Article 13.1, the Client is immediately in default and obliged to pay the statutory commercial interest pursuant to Article 6:119a of the Dutch Civil Code on the invoiced amount as well as the additional costs including the (extrajudicial) collection costs.
Article 16 Staff readmission
- The parties will refrain from making offers to and/or employing each other’s employees, who are charged with the execution of the assignment, other than after prior consultation and with mutual consent on a case-by-case basis, under penalty of an immediately due and payable fine of a maximum of € 50,000.00 per employee.
- During the execution of the assignment and within one year after termination of the assignment, the Client may not employ any of the persons who are or have been involved in the execution of the assignment or negotiate with these persons about employment with the service provider, under penalty of an immediately due and payable fine by the Client to the service provider of a maximum of € 50,000.00 per employee.
Article 17 Applicable law
This agreement shall be governed in all parts by and construed in accordance with the laws of the Netherlands; all disputes that may arise in connection with this agreement will be submitted to the competent court in Amsterdam.
Article 18 Modification of the conditions
Any change to these terms and conditions is only binding if agreed in writing between the parties.