General Terms and Conditions of Hiring

In these General Terms and Conditions of Hiring, the following terms will have the following meanings:

Client: LINKIT B.V.

Contractor: A legal entity or natural person with which or whom the Client concludes a Hiring Agreement.

Parties: The Client and the Contractor.

Customer: Customer for whose benefit the activities are performed. This term can refer either to the Client’s client or to the (end) customer where the activities are performed.

Task: Activities pertaining to the task as described in the Hiring Agreement.

Assignee: IT specialist who shall perform the tasks as stipulated in the Hiring Agreement.

Hiring Agreement: Agreement between the Client and the Contractor under which the Contractor makes an Assignee available and in which basic arrangements are specified.

Written/In Writing: Written documents committed to paper and sent by post; communications by e-mail and fax are considered equivalent to written documents.

General Terms and Conditions of Hiring: These Terms and Conditions of Hiring, which will apply to a Hiring Agreement concluded between the Client and the Contractor.

2.1          The conditions laid down in these General Terms and Conditions of Hiring apply to all Hiring Agreements concluded between the Contractor and the Client for the benefit of the Customer specified in the Hiring Agreement.

2.2          Derogations from and additions to these General Terms and Conditions of Hiring will only be legally valid if they have been explicitly agreed In Writing between the Client and the Contractor.

2.3          Any applicability of (general) terms and conditions on the Contractor’s part is expressly excluded.

3.1          A Hiring Agreement will be formed at the moment when it is again in the Client’s possession, signed for approval by the Contractor.

3.2          If the Client does not receive a copy of the Hiring Agreement signed by the Contractor, but the Contractor nevertheless agrees (either implicitly or explicitly) to the Assignee starting the performance of the Task, the Hiring Agreement will be deemed to have been concluded in a legally valid manner, and these General Terms and Conditions of Hiring and the Hiring Agreement sent to the Contractor will apply.

4.1          The (hourly) rate will be specified in the Hiring Agreement. The (hourly) rate is denominated in euros. The (hourly) rate excludes turnover tax (VAT) and other government levies that have been or will be imposed, but will otherwise be all-in.

4.2          Overtime work/surcharges, where applicable, will be further documented In Writing in consultation with the Client.

4.3          In concluding a Hiring Agreement, the Parties expressly do not wish to conclude an employment contract.

4.4          The Contractor will not be entitled to change the rate unilaterally during the term of the Hiring Agreement and extensions thereof.

4.5          The agreed rate as laid down in the Hiring Agreement also serves to enable the Contractor to fulfil its statutory obligations towards the Assignee. If the agreed rate should be insufficient to serve this purpose due to changes, the Parties will hold consultations on this point.

4.6          The Contractor will not be reimbursed for travel and subsistence expenses, costs of a certificate of good conduct, telephone costs, training costs, Internet charges, data bundle charges or parking charges. These costs will be payable by the Contractor.

5.1          The Contractor guarantees that the Assignee will be able to organise the Task independently and at his/her discretion, and will carry out the activities to the best of his/her knowledge and ability and in accordance with the requirements of good workmanship, as befits a good Contractor. The activities will be carried out in consultation with the Customer where this is compatible with the Contractor’s independence. The Contractor guarantees that the Assignee is not bound by any non-competition clause which would prevent him/her from taking on the activities.

5.2          Any interruption of the activities will be arranged in consultation with the Customer, whereby the continuation of the project will be of compelling importance.

6.1          The Contractor guarantees that the Assignee will carry out the activities in a professional manner and to the best of his/her knowledge and ability, and that the Assignee’s knowledge and expertise meet the technical knowledge specified in the Hiring Agreement or, in the absence of such specification, the technical knowledge that may reasonably be expected of him/her in connection with the Task.

6.2          If it turns out during the performance of the activities pertaining to the Task that the Assignee’s knowledge and expertise are inadequate, the Client will notify the Contractor of this In Writing, whereupon the Client will have the Assignee replaced in accordance with Article 7 of these General Terms and Conditions of Hiring.

6.3          The Contractor must notify the Customer and the Client immediately of any obstacles arising during the performance of the Task. Among other things, obstacles are understood to mean (i) the Customer insufficiently making the resources available that are necessary for the performance of the activities, or (ii) changes to the activities which result in the Assignee having insufficient or unsuitable knowledge, skills and/or experience for the proper performance of the activities.

6.4          If it appears that the Assignee does not meet the requirements set out in the hiring application, does not deliver the required quality during performance or is unsuitable for the performance of the Task, the Client will be entitled to terminate the Hiring Agreement without further notice of default. In that case, the Client will not be obliged to observe a notice period or to pay the Contractor or the Assignee any compensation.

6.5          The Contractor will verify the Assignee’s diplomas, degree certificates and references. Copies of these documents must be submitted immediately when the Client so requests.

7.1          The Client will be entitled to terminate the deployment of the relevant Assignee immediately and request the Contractor to replace that Assignee if, in the Customer’s opinion, this Assignee does not deliver a satisfactory performance. In that situation, the Client will not owe the Contractor any payment in respect of the relevant Assignee, except if and insofar as the Customer is prepared to pay the fee.

7.2          In the event of sickness on the Assignee’s part which is expected to be long-term (more than ten days), or if other urgent reasons prevent the Assignee from working during at least ten days, the Assignee must be replaced immediately at the Client’s request. The same will apply if the Assignee were to end the cooperation with the Contractor. An induction period will be at the Contractor’s expense. Where applicable, the number of days which the Contractor is unable to charge in this connection will be determined in advance.

7.3          The Contractor will contact the Client immediately if and as soon as it is expected that an Assignee deployed will not be available for the performance of the activities, either temporarily or permanently.

7.4          If the Contractor replaces the Assignee at the Client’s request, any induction period will be at the Contractor’s expense. Where applicable, the number of days which the Contractor is unable to charge in this connection will be determined in advance.

8.1          The Contractor must see to it and guarantee that the Assignee, in carrying out the activities, will take account of the risks entailed by the working conditions at the location where the activities are to be carried out, including the hazards of working with computer screens and RSI in particular, and that in this connection the Assignee will do and/or omit everything necessary to prevent health problems as a result of working with computer screens. The Client rejects all liability for any damage in this respect, and the Contractor will indemnify the Client against any legal or other claim that may be brought by third parties (including the Customer and the Assignee) in this connection.

8.2          Without prejudice to the provisions of Paragraph 1, the Contractor will be obliged to notify the Client and the Customer immediately In Writing of any complaints about the workplace and/or working conditions that might give rise to health problems.

9.1          The Contractor guarantees to the Client that all statutory requirements, including in any case the requirements in force pursuant to the Foreign Nationals (Employment) Act (Wet arbeid vreemdelingen), the Compulsory Identification Act (Wet op de identificatieplicht) and the Placement of Personnel by Intermediaries Act (Wet allocatie arbeidskrachten door intermediairs), are fulfilled.  . If it appears that the Contractor failed to fulfil the statutory requirements, the Client will also be entitled to terminate the Hiring Agreement with immediate effect without being obliged to pay compensation.

9.2          The Contractor will be liable for all damage caused to the Client and/or the Customer or to third parties by the Contractor and/or the Assignee in the performance of the activities under the Hiring Agreement. The Contractor will also be liable for all damage sustained by the Client as a result of the Contractor’s failure to fulfil its obligations pursuant to these General Terms and Conditions of Hiring and/or the Hiring Agreement, or to do so adequately.

9.3          The Client rejects all liability for, and the Contractor will indemnify the Client against, any legal or other claim that may be brought against the Client in respect of illness, injury and/or the death of the Assignee, and/or the loss of and/or damage to the property of the Assignee or of the Contractor itself, except in situations in which the legal or other claim is the result of the Client’s own actions.

9.4          The Contractor must have taken out business and professional liability insurance providing for a sum insured of at least € 1.000.000,00 per claim and € 2.000.000,00 per policy year. The Contractor will provide the Client with a copy of the aforesaid insurance policy at the time when the Client and the Contractor conclude a Hiring Agreement for the first time, or when the Client so requests.

9.5          The Client must compensate the Contractor for all damage not attributable to the Contractor which the latter sustains in connection with the performance of the activities due to the manifestation of the special hazard associated with the performance of the Task which exceeds the risks entailed by the nature of the Contractor’s business.

9.6          The Contractor guarantees that the Assignee has the abilities reasonably required in view of the Task to be performed, that the Assignee will perform the Task to the best of his/her ability and that he/she will comply with all the instructions and guidelines applicable to him/her. Any attributable failures on the Assignee’s part will be attributed to the Contractor.

9.7          The Contractor will be liable for all damage sustained by the Client and/or the Customer if it turns out that the Assignee does not have the requisite abilities or fails imputably in any way in the performance of the Hiring Agreement.

10.1       The Assignee will abide by the working hours in force at the Customer’s business and will behave in accordance with the guidelines and internal rules applied by the Customer. The working hours do not include commuting time. Days off and/or holidays will be taken with due regard for the progress of the activities and only after consultation with and approval by the Client or the Customer.

11.1       Time will be recorded in the manner required by the Customer. The Contractor will issue monthly invoices to the Client on the basis of the time recorded in this way. This time sheet will be sent to the Client separately. Only hours actually worked can be charged to the Client (these therefore do not include the time during which the Assignee did not perform activities for whatever reason, such as sickness, leave, etc.).

11.2       The Client will effect payment to the Contractor within the period specified in the Hiring Agreement. However, the Contractor’s invoice will not be paid if and for as long as the Customer does not pay the Client’s invoice because the execution or result of the Contractor’s work for the Customer does not comply with the assignment. In addition, the Client has the option to suspend payment of the invoice if and for as long as the Contractor has not provided the Client with a copy of the liability insurance policy, the G account number and/or the signed Hiring Agreement.

12.1       The Contractor is obliged to provide the Client with the following information:

– an extract from the Trade Register of the Chamber of Commerce;

– the G account number and proof of registration with a bank.

12.2       Payment to the Contractor will be effected in two parts: 55% of the total invoice amount will be paid into the G account, 45% will be paid out directly.

a. If the Contractor is NEN 4400-1 certified, 25% will be paid into the G account and the remaining portion will be paid out directly.

b.The Contractor will see to it that the Assignee provides the Client with his/her personal data (if the Assignee originates from outside the EEA, a copy of the identity document will be required pursuant to Section 15 of the Foreign Nationals (Employment) Act) insofar as this is necessary for the performance of the Task and insofar as this is prescribed by law. Every Assignee will have to comply with this. In addition, an Assignee must show his/her identity document to the Customer when requested to do so.

13.1       The Contractor declares that it complies strictly with its statutory obligations concerning the deduction and payment to the Tax and Customs Administration of VAT, income tax and social security contributions.

13.2       The Contractor indemnifies the Client against and will compensate the latter for all possible claims, by whatever name and based on whatever position, from the Tax and Customs Administration and/or the Employee Insurance Agency to deduct and/or pay taxes and/or social security contributions – insofar as possible under the law – including the interest, increases and possibly administrative fines applicable to these amounts, in relation to the activities performed by the Contractor under these General Terms and Conditions of Hiring. If the Client is held liable with regard to a deduction, payment, additional assessment and/or fine, this deduction, payment, additional assessment and/or fine will be recovered from the Contractor insofar as this is possible under the law.

14.1       To prevent possible hirer’s liability and/or vicarious tax liability, the Contractor guarantees to the Client that:

– the Contractor acts in accordance with the applicable laws and regulations and complies with the employment conditions in force, which means among other things that the Contractor pays its employees their salaries correctly and in time;

– the Contractor is not behind on payments to the Tax and Customs Administration (or was behind on such payments in the last three years); and

– the Contractor’s accounts are correct and complete, will be carefully kept during the term of these General Terms and Conditions of Hiring and will be carefully retained in accordance with the statutory regulations in force.

14.2       When the Client so requests, the Contractor will provide the Client with documentary evidence showing the correctness and completeness of the guarantees set out in Paragraph 1 of this article.

14.3       If Customer should desire this, the Contractor will provide the Client with a recent original copy of a clean payment history report, issued by the Tax and Customs Administration, when the Client so requests.

14.4       If the Client finds that the Contractor does not pay the Assignee’s fee correctly and in time, the Client will have the option to suspend payment of the invoice or invoices until the Contractor has effected payment correctly and in time.

15.1       The Contractor undertakes to observe strict secrecy in respect of all data concerning the Client and the Customer which it should reasonably understand to be of a confidential nature. The Contractor and/or the Assignee will sign a non-disclosure agreement when the Client and/or the Customer should so request.

15.2       The Contractor and/or the Assignee will not be permitted to hold copies of software programs which are used or owned by the Client and/or the Customer, unless these were provided to them for the purpose of the work, in which case they will be held only to the extent that this is necessary for the performance of the activities.

15.3       The Contractor sees to it and guarantees that the Assignee will also comply with the obligation described in Paragraphs 1 and 2 of this article.

15.4       If the Contractor or the Assignee breaches any obligation under this article, the Contractor will owe the Client, without any prior demand being required, an immediately due and payable penalty of € 5.000,00 (in words: five thousand euros) per breach, to be increased by € 750,00 (in words: seven hundred and fifty euros) for each day or part of a day that the breach continues or has continued.

16.1       All things brought about by the Assignee in the context of these General Terms and Conditions of Hiring will be the exclusive property of the Customer.

16.2       Insofar as necessary and possible, the Contractor will transfer to the Customer free of charge all intellectual and industrial property rights to copyrighted works and/or any other products, documents, inventions, trademarks or designs to be developed in whatever form by the Assignee during the performance of the Hiring Agreement.

16.3       Insofar as the rights referred to in this article are not already vested in the Customer pursuant to the law and/or these General Terms and Conditions of Hiring, the Contractor will be obliged to transfer them to the Customer free of charge in the shortest possible term both in the Netherlands and elsewhere, and to lend the Customer all cooperation free of charge which the Client and/or the Customer will require of the Contractor in connection with the establishment, transfer, disposition and enforcement of the rights vested in and/or transferred to the Customer as referred to above.

16.4       The Contractor sees to it and guarantees that the Assignee will also comply with the obligation described in this article.

16.5       If the Contractor or the Assignee breaches any obligation under this article, the Contractor will owe the Client, without any prior demand being required, an immediately due and payable penalty of € 5.000,00 (in words: five thousand euros) per breach, to be increased by € 750,00 (in words: seven hundred and fifty euros) for each day or part of a day that the breach continues or has continued.

17.1       During the term of the Hiring Agreement and during a period of 12 months after its termination, the Contractor will not make any offers to, accept assignments from and/or perform activities for the Customer.

17.2       In the event that the Assignee performs the activities pursuant to the Hiring Agreement under the Customer’s supervision and direction, the Contractor guarantees to the Client that the Contractor agreed with the Assignee that the Assignee may not perform activities for the Customer, via the Contractor or a third party for the benefit of the Customer, during the term of the Hiring Agreement and during a period of 12 months after its termination. Consequently, the Contractor will also be liable if the Assignee starts performing activities for the Customer in any way via the Contractor or a third party during the period specified.

17.3       In the event that the Assignee performs the activities pursuant to the Hiring Agreement without being supervised and directed by the Customer, the Contractor guarantees to the Client that the Contractor agreed with the Assignee that the Assignee may not perform activities for the Customer, either directly or indirectly, during the term of the Hiring Agreement and during a period of 12 months after its termination. Consequently, the Contractor will also be liable if the Assignee starts performing activities for the Customer in any way during the period specified.

17.4       If the Contractor or the Assignee breaches any obligation under this article, the Contractor will owe the Client, without any prior demand being required, an immediately due and payable penalty of € 5.000,00 (in words: five thousand euros) per breach, to be increased by € 750,00 (in words: seven hundred and fifty euros) for each day or part of a day that the breach continues or has continued.

18.1       Before the expiration of the original term of the Hiring Agreement, the Client may extend this Hiring Agreement by means of a written notice to the Contractor. If the Contractor does not submit a written objection to the extension within five (5) days of the notice being sent, the Hiring Agreement will be deemed to have been extended for the same period under the same terms and conditions.

18.2       Either Party is entitled to terminate the Hiring Agreement prematurely or otherwise, subject to 30 days’ notice,  without this resulting in liability for compensation in whatever form. Notice of termination must be given in writing. It is possible to deviate from this term in the Hiring Agreement if Client uses a different notice period.

18.3       Irrespective of the reason and without this resulting in liability for compensation in any way, the Hiring Agreement will end with immediate effect by operation of law if and at the moment when the Customer terminates the assignment prematurely or otherwise.

18.4       Finally, either Party will be entitled to terminate the Hiring Agreement prematurely with immediate effect in the following situations:

– in the event of force majeure lasting longer than 14 days, or upon the occurrence of default due to an attributable failure of either Party that is of such a serious nature that the other Party cannot be required within reason to continue the Hiring Agreement;

– in the event of bankruptcy, a moratorium or debt management on the part of the other Party, or a petition to this effect filed by the other Party on its own behalf, or in the event of a private composition offered by the other Party or apparent insolvency of the other Party in other ways.

19.1       The Client may process personal data concerning the Contractor and/or the Assignee in the context of these General Terms and Conditions of Hiring or in order to comply with statutory obligations applicable to the Client.

19.2       The personal data which the Client processes in respect of the Contractor will be used only for the purpose of performing the Hiring Agreement or in order to comply with a statutory obligation.

19.3       Personal data as referred to in Paragraphs 1 and 2 of this article comprises the following: name and address, date of birth, nationality, number of identity document, curriculum vitae and the personal data requested by the competent regulator.

19.4       Processing of personal data by the Client as referred to in Paragraphs 1 and 2 will take place exclusively on the instructions of the Client or the competent regulator.

19.5       The Client will comply with the applicable legislation in the area of privacy and personal data protection.

19.6       Furthermore, the Client undertakes to observe secrecy in respect of the personal data made available and/or accessible by or on behalf of the Contractor.

19.7       If the Client uses the services of processors in the processing of the personal data, the Client will conclude a data processing agreement with these processors in accordance with the requirements of the General Data Protection Regulation (“GDPR”).

19.8       Insofar as the Client processes personal data in the context of an actual assignment from the Customer and the Customer determines the purpose and means of this data processing, the Customer will act as the controller in respect of the personal data processing and the Client will act as the processor within the meaning of the GDPR.

19.9       In the context of Paragraph 8 of this article, the Customer will conclude a data processing agreement with the Client in accordance with the GDPR.

19.10    The Client shall retain the data referred to in paragraph 3 of this Article for a period of 28 days after the last day on which the Contractor has performed work for the Client under an agreement.

20.1       The Contractor will not be permitted to assign its claims to third parties, except with the Client’s Written consent.

20.2       The Client will always be entitled to offset any amounts it owes to the Contractor against the amounts which the Contractor or its affiliates owes/owe to the Client, which amounts may or may not be due and payable, subject to conditions or a time limit.

20.3       The Contractor will always be entitled to offset any amounts it owes to the Client against the amounts which the Client or its affiliates owes/owe to the Contractor, which amounts may or may not be due and payable, subject to conditions or a time limit.

21.1       These General Terms and Conditions of Hiring are governed by Dutch law. The competent court of Utrecht will have exclusive jurisdiction to hear any and all disputes arising from these General Terms and Conditions of Hiring.