GENERAL TERMS AND CONDITIONS OF SECONDMENT NEXT GEN B.V.
ARTICLE 1 – DEFINITIONS
1.1 These general terms and conditions use the following definitions:
Client: the natural person or legal entity that instructs Next Gen B.V. to assign qualified members of staff for a certain period of time.
Supplier: Next Gen B.V., established in Borne (the Netherlands).
The general terms and conditions: these general terms and conditions of “Secondment” Next Gen B.V., used by Next Gen B.V.
Instruction and/or agreement: every agreement between Next Gen B.V. and the client in connection with the temporary employment of qualified members of staff unless the parties have explicitly agreed otherwise in writing.
In these General Terms and Conditions, Next Gen B.V. also refers to the Secondee who will perform the instruction in question on behalf of Next Gen B.V.
Every instruction is documented in writing by means of an agreement between the client and Next Gen B.V. An agreement between Next Gen B.V. and a client is not concluded until both parties have duly signed the agreement or when the performance of the instruction is started.
Every agreement that is subject to these General Terms and Conditions is governed by Dutch law. If any provision of these terms and conditions is declared invalid, in violation of the law or unenforceable by a competent court, the provision in question will be deleted from the General Terms and Conditions and all other provisions remain in full force. All disputes are exclusively settled by the competent court within whose district Borne is located. Insofar as these terms and conditions are also available in a language other than Dutch, the Dutch text will prevail in the event of disputes.
ARTICLE 2 – APPLICABILITY
2.1 These general terms and conditions apply to all agreements for service concluded between Next Gen B.V. and the client unless the parties have explicitly agreed otherwise in writing.
2.2 Next Gen B.V. explicitly rejects the applicability of any general terms and conditions of the client.
2.3 By issuing an instruction and/or asking Next Gen B.V. to provide services, the recipient accepts the general terms and conditions of the client and they are expected to form a (tacit) part of the agreement, without the need for any further written confirmation from Next Gen B.V. or the client.
ARTICLE 3 – OFFERS/AGREEMENT
3.1 All offers and/or quotations from Next Gen B.V. are entirely without obligation.
3.2 Subject to the stipulations set out below, an agreement with Next Gen B.V. is not concluded until Next Gen B.V. has accepted or confirmed an instruction in writing or when Next Gen B.V. effectively performs the agreement.
3.3 The confirmation of instruction is deemed to reflect the contents and purport of the agreement accurately and in full.
3.4 In the event that the instruction is not accepted or confirmed in writing and Next Gen B.V. still effectively performs the agreement, the parties will consider the invoice as a confirmation of instruction that is also deemed to reflect the contents and purport of the agreement accurately and in full.
ARTICLE 4 – TERM OF THE AGREEMENT; TERMINATION
4.1 The nature and objective of the project, the term of the project and other relevant project-related matters are clearly set out in the agreement, in close consultation with the client.
4.2 Next Gen B.V. can refuse assigned work at all times if it falls outside the agreed instruction.
4.3 If for whatever reason, a project is not completed within the term agreed on in the contract, a suitable solution will be found in mutual agreement with the client.
4.4 Depending on the term of the instruction, an evaluation is held in the interim and after completion of each instruction. To that end, an evaluation form is completed, a copy of which is sent to the client (if he/she wants one).
4.6 The client can terminate the agreement in writing in the interim in accordance with a notice period of one month, starting on the first day of the next calendar month.
4.7 Next Gen B.V. can terminate the agreement in the interim in accordance with a notice period of one month, starting on the first day of the next calendar month.
4.8 Next Gen B.V. guarantees that it will not terminate the agreement in the interim because it has accepted a new instruction from another client.
ARTICLE 5 – BEST EFFORTS OBLIGATION; LIMITATION OF LIABILITY; INDEMNIFICATION
5.1 Within the framework of an agreement between Next Gen B.V. and a client, Next Gen B.V. will do anything within its power to make the secondment of members of staff a success. However, Next Gen B.V. cannot guarantee any result with regard to the work to be undertaken within the framework of the secondment.
5.2 Next Gen B.V. is not liable for any damage suffered by the client within the framework of an agreement between the parties, which damage could (potentially) be the result of an act or omission on the part of Next Gen B.V. and/or its subordinates and/or auxiliary persons.
5.3 The limitation of liability referred to in paragraph 2 does not apply in the event of intent and/or wilful recklessness on the part of Next Gen B.V. and/or its subordinates.
5.4 The liability of Next Gen B.V. is, in any case, limited to the payment made by the insurance of Next Gen B.V. in the event of liability, increased by the amount of any applicable policy excess.
5.5 The client is aware of the duty of care and liability as set out in Section 7: 658, subsections 1 to 4 of the Dutch Civil Code [Burgerlijk Wetboek (BW)] and he is obliged to comply with the provisions of subsection 1 of that section.
5.6 If the client is held liable within the meaning of Section 7:658 of the Dutch Civil Code, he will unconditionally indemnify Next Gen B.V. If Next Gen B.V. is nevertheless obliged to pay the seconded member of staff and/or third parties compensation following a violation of the duty of care within the meaning of Section 7:658 of the Dutch Civil Code by the client, Next Gen B.V. has a right of recourse against the client. The right of recourse includes compensation paid or to be paid by Next Gen B.V., as well as interest and costs within the meaning of Section 6:96, subsections 2a to 2c of the Dutch Civil Code.
5.7 In the event that third parties sue Next Gen B.V.for damage causes by actions/omissions on the part of Next Gen B.V. and/or its subordinates and/or auxiliary persons, the client will unconditionally indemnify Next Gen B.V. in those instances in which Next Gen B.V., either by virtue of these conditions or otherwise, is not (or no longer) liable towards the client. If Next Gen B.V. is nevertheless obliged to pay compensation to third parties, Next Gen B.V. will have a right of recourse against the client. The right of recourse includes compensation paid or to be paid by Next Gen B.V., as well as interest and costs within the meaning of Section 6:96, subsections 2a to 2c of the Dutch Civil Code.
ARTICLE 6 – HOLIDAYS; LEGISLATION
6.1 The client is aware of the fact that the seconded member of staff accrues holiday entitlements.
6.2 The client is also aware of the seconded member of staff’s statutory rights to holiday and leave schemes under the Work and Care Act [Wet Arbeid en Zorg].
6.3 The client will stay updated about new legislation that could change or reduce the availability of the seconded member of staff.
6.4 If the availability of the seconded member of staff is reduced as a result of legislation, this fact does not constitute an attributable failure on the part of Next Gen B.V.
ARTICLE 7 – AGREEMENT FOR SERVICE BETWEEN NEXT GEN B.V. AND THE MEMBER OF STAFF
7.1 In the event Next Gen B.V. and the seconded member of staff (or a general partnership controlled by the latter) have concluded an agreement for service rather than an employment contract, Article 4.2 and Article 6 do not apply.
7.2 The notice period to be observed by the parties is one month, starting on the first day of the next calendar month; notice of termination must be given in writing.
ARTICLE 8 – RATES/PAYMENTS
8.1 Unless indicated otherwise, the rates used by Next Gen B.V.:
are based on the facts that are of importance to the execution of the instruction at the time of the confirmation of instruction;
exclusive of turnover tax and any other costs, including travel and subsistence costs; quoted in Euros.
8.2 Next Gen B.V. uses an hourly rate as set out in the confirmation of instruction. The hourly rate does not include travel and subsistence expenses.
8.3 Next Gen B.V. invoices at the start of the week that follows each week in which work was carried out, on the basis of a timesheet submitted to Next Gen B.V. by the secondee and authorised by the client.
8.4 Next Gen B.V. only invoices the hours actually worked by its member of staff and authorised by the client. The days on which the member of staff takes part in the management development programme are counted as working days.
8.5 The payment term is 14 days after the invoice date. Payments must have been received by Next Gen B.V. in the bank accounts listed on its invoice within this term.
8.6 The client must pay this invoice without invoking any right to suspension and without invoking any discount or set-off.
8.7 In the event the term referred to in paragraph 4 is exceeded, the client will be in default from the day that this term has expired, without Next Gen B.V. having to issue any further notice of default. In such cases, the client owes statutory interest on the outstanding amount from the day on which payment should have been made and with any part of a month being counted as a full month. The client also owes extrajudicial collection costs of 15% of the invoice amount, including VAT.
ARTICLE 9 – NON-COMPETITION AND NON-SOLICITATION CLAUSE
9.1 During the term of the secondment, as well as a two-year period after the termination of the agreement, the client is not entitled to conclude an employment contract with the seconded member of staff or to otherwise allow the seconded member of staff to work for him and/or for an affiliated company unless the seconded member of staff has been seconded to the client via Next Gen B.V. for more than 2,080 consecutive hours. After having worked 2,080 hours, the seconded member of staff can enter the client’s employment free of charge.
9.2 When the ban referred to in paragraph 1 is violated, the client owes an immediately due and payable fine of €25,000, as well as €500 for each day or a part of the day that the violation continues, without prejudice to the right of Next Gen B.V. to claim compensation.
9.3 The supplier, the seconded member of staff and the client declare to treat all (customer and business-related) information disclosed to them via the client in confidence and not to use it for purposes other than the purpose assigned to it by the client or to disclose this information to third parties.
ARTICLE 10 – FINAL STIPULATIONS
10.1 All offers, agreements and the performance thereof which these terms and conditions fully or partially apply to are exclusively governed by Dutch law.
10.2 All disputes ensuing from the agreement concluded between the parties will be submitted to the civil court that is competent on the basis of the place of business of Next Gen B.V., to the extent permitted by law.
10.3 If these general terms and conditions are available in a language other than Dutch, the text in the Dutch version prevails over the foreign language version.