PA Online B.V. General Terms and Conditions
Filed with the Chamber of Commerce of Amsterdam, the Netherlands under number 34144771
Unless the parties have agreed otherwise these General Terms and Conditions govern all offers and agreements of or with PA Online B.V., PA Services, PA Online Expat Services, PA Detachering, PA Training, PA Webdesign, Organisatietalent, Secretaressepool, Juristenpool and all related acts whether preparatory or executory.
1. Principal and PA Online: deliveries and payments
a The Principal or Hirer is taken to mean the party that issues the assignment.
b The Candidate is taken to mean a Secretary to be hired on an interim basis or employed by the Principal.
c The interim Candidate is taken to mean the person who now or in the future is or will be working on behalf of PA Online, employed in secondment or contractor.
d All deliveries are deemed to be made at the place where PA Online has its registered office.
e All payments must be made there.
f These General Terms and Conditions are deemed to form part of all agreements between the Principal and PA Online unless the parties explicitly deviate from these Terms and Conditions in writing. Both parties are familiar with the Terms and Conditions at the time at which they enter into the agreement.
g In the event of a conflict between the uniform terms and conditions of purchase used by the Principal and these terms and conditions of delivery, the latter will prevail.
a Unless the parties explicitly agree otherwise all offers made by or on behalf of PA Online are without engagement in respect of the price, content and delivery times and will lapse after a period of 30 days.
b In the event of compound prices there is no obligation to deliver in respect of a portion of the assignment at a portion of the agreed price indicated for the entire assignment.
c If models, copy, etc. have been provided in respect of only a portion of the work to be performed or produced, PA Online is not bound by the price indicated for the entire assignment if it appears that the portion that has not been shown proportionally requires more work that the portion that has been shown.
d If no assignment is placed after an offer has been requested the costs related to the offer may be charged.
e If a candidate, upon request or quotation by an organisation and after having been introduced or quoted to that organisation by PA Online, has been working at the aforesaid organisation within one year after introduction and/or offer though not through PA Online, either on an interim basis or on a long term contract, PA Online may invoice the full recruitment fee, which fee is due within 14 days.
f An agreement is concluded:
i) When the offer or contract signed by the Principal indicating the Principal’s acceptance has been received and accepted by PA Online.
ii) When a Candidate on the same day of the offer or after is being hired or employed by Principal, the verbal agreement and/or the e-mail confirmation from PA Online and as such the silent acceptance of the General Conditions of PA Online by Principal apply.
iii) The concerning contract is to be signed and received as soon as possible by both Principal and PA Online, either by regular post, by fax or scanned by e-mail.
iv) In case the countersigned contract has not been received by PA Online within a couple of days, article 2. e. ii. applies and remains valid.
3. Fee, costs and rates
a PA Online’s fees are based on an hourly rate or a percentage of 20% of the gross annual salary, inclusive of holiday allowance, in the event of recruitment, unless the parties have agreed on another form of remuneration. The applicable hourly rate is indicated in the offer.
i) When a Candidate works for the Principal in secondment first and successively is being employed by the Principal, a fee of 20% of the gross annual salary inclusive of holiday allowance applies -/- the months already worked for Principal by the Candidate in secondment.
ii) In case Principal assigns PA Online to recruit a Candidate, who is being employed by Principal and offered a definite contract, independent of the number of months, Principal is obliged to pay the whole recruitment fee of 20% on the gross annual salary inclusive of holiday allowance all at once and within 14 days after invoice date.
b Necessary travel, accommodation and administrative expenses, such as telephone, fax, postage, copy, printing and other costs, of third parties that are incurred by PA Online necessarily and in accordance with the agreement within the framework of the assignment will be charged separately in addition to the hourly rate.
c Insofar as the parties have not explicitly agreed otherwise in writing, all amounts are exclusive of the turnover tax and other government levies that are due.
d The Principal will reimburse the costs of third parties that are incurred by PA Online within the framework of the assignment directly to that third party. If payment to third parties is made via PA Online, P.A. Online B.V. will be entitled to request an advance on those costs. It will also be entitled to charge a surcharge for administrative expenses. PA Online will pass on to the Principal discounts on deliveries from third parties.
e The fee due and other costs will be invoiced on a weekly basis unless the parties agree otherwise.
f Assignments that will be completed within one month will be invoiced upon completion of the related work. The parties may agree on an advance on the fee and the costs. Costs of third parties may be charged upon receipt of the relevant invoices.
g PA Online undertakes to maintain a record of the hours and costs and to make that record available to the Principal upon request. This obligation applies only if the related work is not performed on the basis of an agreed fixed fee. The record of hours (timesheet), signed for approval by one or more working persons at Principal’s is binding.
h If the offer includes an ‘indicative’ price, the amount indicated is nothing more than a non-binding estimate of the costs.
i Except as otherwise agreed, the invoices of PA Online will be based in part on the completed time sheets approved by the Hirer.
j The Hirer is responsible for completing the time sheets correctly, fully and in good time and for approving them. The approval will be given by (digital) signature of the time sheets, unless agreed otherwise.
k In the event of a discrepancy between the time sheets submitted to PA Online and the data kept by the Hirer, the time sheets submitted to PA Online will be deemed to be correct unless the Hirer provides proof to the contrary.
l If the temporary worker disputes the time sheet data, PA Online may invoice the number of hours worked and other costs in accordance with the statement of the temporary worker, unless the Hirer shows that the time sheets are correct.
m If the Hirer does not comply with the provisions of Paragraph i of this Article, PA Online may decide to invoice the Hirer on the basis of the facts and circumstances known to it. PA Online will not do this as long as no reasonable consultation has taken place with the Hirer as regards this matter.
n The Hirer will ensure that the invoices of PA Online are paid within 14 days of the date of the invoice, without any deduction, withholding or set-off.
- Changes in rates and charges as a consequence of obligations under collective agreements and changes to or as a consequence of laws and regulations, such as tax and social security legislation and regulations, will be passed on to the Hirer with effect from the date of the changes and will accordingly be payable by the Hirer even where such changes occur during the term of a contract of hire.
p Blocked ‘G’ account / indemnity account (vrijwaringsrekening): PA Online has payrolling outsourced to a NEN certified payroll company, and pays about 34% of all payrollers invoices on their ‘G’ account, thus preventing tax liability in relation to the Sequential Liability Act (Wet Keten Aansprakelijkheid)
4. Fixed fee, no cure no pay or retainer fee
a If a fixed fee has been agreed upon with the Principal, that fixed fee relates only to the work and services of PA Online referred to in the agreement. The Principal will be charged for any work and services in addition thereto or any changes to that work and those services that PA Online provides on the instructions of the Principal, referred to below as the ‘Additional Work’, on the basis of the actual costs.
b The following circumstances can give rise to Additional Work and therefore to settlement in the manner referred to in article 4.a:
i) expansion or change in the analysis, package of requirements and wishes or design, after being approved by the Principal;
ii) the Principal’s requirements, wishes, parameters, or expectations that were not or were not sufficiently communicated to PA Online at the time at which the agreement was entered into;
iii) defects and flaws in services of third parties that PA Online could not reasonably have expected or in respect of which PA Online could exert little or no influence; and
iv) insufficient cooperation on the part of the Principal in the performance of the agreement.
c In case of recruitment assignment Principal has the possibility to choose from:
i) No cure no pay: The recruitment fee is 20% of the gross annual salary, inclusive of holiday allowance of the recruited Candidate, or
ii) Retainer fee: Payment of € 1,000 on assignment, and an achievement fee of 17% of the gross annual salary, inclusive of holiday allowance of the concerned Candidate -/- the already paid retainer fee.
a Payment must be made without deducting any discount and, unless the parties have agreed otherwise, within 2 (two) weeks of the invoice date. Objections against the height of the invoice does not allow postponement of payment.
b Regardless of the payment conditions agreed by the parties, PA Online is entitled to demand sufficient security for payment before the delivery and to cease work on the assignment if that security cannot be furnished.
c If the payment term is not complied with, the Principal will be charged interest on the invoice amount in accordance with the statutory interest rate. Partial months will be regarded as full months for the calculation of the statutory interest.
d PA Online retains the ownership of services and rights and to the extent stipulated the ownership of such services and rights will not be transferred to the Principal until the day on which the Principal has paid the principal amount, interest, costs and compensation of any damage due in respect of the services rendered, including any in respect of prior deliveriy or services.
e Partial payment may be required for assignments that require a long period of time to complete. The parties must agree on such partial payments in advance. All judicial and extra judicial costs in respect of the collection of amounts owed by the Principal that have not been paid in a timely manner will be paid by the Principal; such amounts will be equal to at least 15% of the amount due, with a minimum of EUR 125 exclusive of VAT.
f The Principal must inform PA Online in writing within one week of the invoice date of any objections to an invoice of PA Online If it fails to do so the Principal will be deemed to have accepted the amount of the invoice.
6. The hiring of temporary workers
a A temporary employment contract is entered into between a temporary worker and a temporary employment agency. The temporary employment contract is subject to the NBBU Collective Agreement for Temporary Workers. No employment contract exists between the Hirer and the temporary worker.
b When a temporary worker is provided by a temporary employment agency to the Hirer, the temporary worker works under the actual direction and supervision of the Hirer. The Hirer will observe the same degree of care in respect of the temporary worker as it does in respect of its own employees. As the formal employer of the temporary worker, PA Online has no control or influence over the workplace or the activities to be performed.
c The activities will be performed as agreed in the contract of hire. If the Hirer wishes to derogate from such agreements during the term of the contract of hire, it may do so only after consultation with PA Online.
7. Changes to the assignment
a The Principal will be charged extra for changes to the original assignment, of any kind whatsoever, made orally or in writing by or on behalf of the Principal that lead to higher costs that those that could have been taken into consideration when the quotation was given. However, changes that lead to a decrease in the costs will accordingly lead to a lower amount being charged than was agreed by the parties.
b The Principal must inform PA Online in writing in a timely manner of any changes in the performance of the assignment that the Principal wishes to have made after the assignment was given. If the Principal communicates such changes orally or by telephone the risk in respect of the implementation of the changes will be for the Principal’s account.
c Changes to an assignment that has already been given may lead to the PA Online’s exceeding the originally agreed term of delivery, in which case article 16 will apply accordingly.
d PA Online must be informed in writing in a timely manner of all contractual amendments. The Principal will reimburse PA Online for all costs caused by contractual amendments and incurred in order to comply with the term of delivery.
8. Principal’s property
a PA Online must observe the same duty of care with respect to the storage and use, handling and processing of items of property with which it is entrusted by or on behalf of the Principal as it observes with respect to its own property.
b Notwithstanding the foregoing subsection and the other provisions contained in these General Terms and Conditions, the Principal bears the risk in respect of the above-mentioned items of property. It must take out insurance at its own expense if it wishes to cover the above mentioned risk.
9. PA Online’s property
a All materials owned by PA Online made available and/or lent out remain the property of PA Online at all times.
b If any items made available to the Principal are damaged or destroyed, the Principal will be charged for the damage without prejudice to the right to claim other costs and interests.
i) In the exceptional case of a by PA Online recruited and by Principal employed Candidate does not do his or her work well demonstrably and provably (case file), a 100% guarantee applies during the probation period of the contract and the duties by the concerned Candidate. PA Online then has the right and will provide a good Candidate as a replacement to Principal.
ii) If the above takes place after the probation period though before the 7th month, a 50% guarantee applies. This means that against a settlement of 50% of the original fee another Candidate is being sought and provided.
iii) If the request for replacement by Principal to PA Online takes place after 7th months from starting date from the concerned Candidate, replacement is being sought and provided against the full recruitment fee, in conformity with art. 3.a..
iv) Provided all invoices have been paid in full.
b Interim / Secondment:
i) In the exceptional case of a via PA Online placed interim Candidate at Principal’s does not do his or her work well demonstrably and provably (case file), PA Online then has the right and will provide a good Candidate to Principal. Depending on the Candidate’s wages, the hourly rate may be higher or lower.
ii) Provided all invoices have been paid in full.
11. Confidential information
a The parties will carefully store and keep secret all confidential information of which the party in question has become aware in the context of a relationship governed by these General Terms and Conditions and with respect to which it is clear that the other party wishes that information be kept confidential.
a The Principal will make available in a timely manner and in the form desired by PA Online all information and documents that PA Online requires in order to properly perform the assignment given.
b PA Online is entitled to suspend the performance of the assignment until the time at which the Principal has complied with the obligations referred to in the preceding subsection.
c The Principal guarantees that the information and documents made available to PA Online are correct, complete and reliable. PA Online is not liable for damage arising from incorrect or incomplete information provided by the Principal.
a Principal is not permitted during the term of the Contract for Professional Services and for a period of one year after the termination of the Contract for Professional Services to employ the (interim) Candidate, on either a direct or an indirect basis.
b As the interim Candidate or Contractor is not permitted during the term of the Contract for Professional Services and for a period of one year after the termination of the Contract for Professional Services to work for or be involved with the Principal and/or to hire a third party at Principal’s other than via PA Online, regardless of from which party the initiative came in that respect.
c In the event that the foregoing provision is violated the interim worker and the Principal will both jointly and severally forfeit a penalty due on call in the amount of EUR 1,000 for each violation plus EUR 500 for each day on which the violation continues.
14. Default on the part of the Principal
a If the progress in the performance or delivery of the work is delayed due to default on the part of the Principal or due to a case of force majeure on its part, PA Online will be entitled to charge the full agreed amount including the costs already incurred for the materials intended for that assignment, without prejudice to its right to claim other costs, damage and interest.
15. Scope of contract of hire and notice periods
a The contract of hire specifies the term of the temporary worker’s posting or, if the term of posting is not known in advance, an as accurate as possible estimate of the term of posting. Where possible and appropriate, the contract of hire also states the starting and end dates of the term of posting, the number of hours to be worked and the terms and conditions of employment for the temporary worker.
b If the temporary employment clause applies to the temporary employment contract, no period of notice need be observed by PA Online or the Hirer if the agency or the Hirer wishes to terminate the posting early, unless otherwise agreed in writing.
c If the temporary employment clause does not apply to the temporary employment contract, the contract is deemed to be a fixed-term or an open-ended contract. In such a case, the contract of hire will end only upon the expiry of the agreed term of the posting, unless otherwise agreed in writing.
d f the Hirer wishes to terminate early the posting of a temporary worker who is employed under a fixed-term or an open-ended temporary employment contract, the Hirer will owe PA Online a charge which is due and payable forthwith. This charge will be 100% of the most recent Hirer’s fee for the temporary worker in question, multiplied by the number of hours agreed in the contract of hire for the period between the date of early termination and the end date of the contract of hire initially agreed.
e If the Hirer wishes to terminate a posting when nothing has been agreed about the term of the posting and the temporary worker is employed under a fixed-term or an open-ended temporary employment contract, a period of notice of 20 working days applies, unless otherwise agreed in writing.
16. Failure to meet the term of delivery
a The terms indicated by PA Online are indicative and cannot under any circumstances be deemed to be of the essence. PA Online will not be in default merely because a term of delivery has not been met.
a If the Principal cancels the assignment in whole or in part it will be obliged to reimburse PA Online for all costs reasonably incurred with a view to the performance of that assignment (costs related to preparation, storage, fees, etc.) and if PA Online so wishes to take possession of the materials intended for the performance of that assignment at the price that PA Online included in its calculation; all of the foregoing is without prejudice to PA Online’s right to compensation of loss of profit and the costs, damage and interest arising from the cancellation.
a Complaints must be made in writing within 14 days after the delivery of the assignment.
b Complaints within the meaning of the preceding subsection may be made only insofar as the Principal has not put the assignment into use and has not had it at its disposal in any other way.
c The liability of PA Online on the basis of any agreed delivery is limited to the amount related to the assignment in question.
d PA Online may furnish proper work for improper work, unless the parties have agreed otherwise in writing.
e PA Online is not liable for the consequences of defects in the assignment, models or materials supplied by Principal.
19. Force majeure
a Force majeure is taken to mean: any circumstance that is independent of the parties’ will or any unexpected circumstances as a result of which the parties cannot reasonably expect that the agreement will be complied with. In this respect force majeure will be deemed to include permanent or temporary disruptions in one of the parties’ business or impediments that prevent the normal performance of the agreement, including but not limited to circumstances such as strikes, lockouts, measures taken by the authorities, a state of war and/or martial law, fire, natural disasters, epidemics, extremely long periods of frost, extreme weather conditions and similar circumstances.
b Illness, temporary or permanent incapacity for work and personal indispensability of the persons performing the work discharge PA Online from its duty to meet the agreed term of delivery or its duty to deliver, without the Principal being entitled to enforce any right to compensation of costs, damage or interest on that basis.
c PA Online will immediately notify the Principal in the event of a case of force majeure. After receiving that notification the Principal will have a period of eight (8) days in which it is entitled to cancel the assignment in writing; however, in that case the Principal will be obliged to take delivery from PA Online and pay for the part of the assignment that has been completed.
d During the continuance of the force majeure, PA Online is not obliged to pay compensation for any loss or damage suffered by or affecting the Hirer, nor is it obliged to do so after termination of the contract of hire as referred to in Paragraph 5 of this Article.
20. Liability, indemnifications and exclusions
a Subject to the provisions of mandatory law and the general requirements of reasonableness and fairness, PA Online is not obliged to pay any compensation for loss or damage of any kind caused directly or indirectly to the temporary worker or to things or persons with or of the Hirer or a third party, where such loss or damage occurs as a consequence of:
i) the posting of the temporary worker by PA Online to the Hirer, even if it transpires that the temporary worker does not meet the requirements made of him by the Hirer;
ii) unilateral termination of the temporary employment contract by the temporary worker;
iii) acts or omissions of the temporary worker, the Hirer itself or a third party, including the assumption of obligations by the temporary worker.
b Any liability of PA Online for direct loss or damage will in any event be limited, per occurrence, to 50% of the relevant amount invoiced or yet to be invoiced. PA Online will never be liable for indirect loss or damage, including consequential loss or damage.
c The Hirer is obliged to arrange for adequate liability insurance providing full cover for any direct and indirect loss or damage as referred to in Paragraph a of this Article.
d The Hirer must in any event indemnify PA Online against any claims of the temporary worker or third parties for compensation for loss or damage as referred to in Paragraph a of this Article suffered by the temporary worker concerned or third parties.
e The limitations on liability referred to in Paragraphs a and b of this Article will cease to apply if there has been intent or gross negligence on the part of PA Online and/or its management.
f PA Online has the right at all times, if and in so far as possible, to make good any loss or damage suffered by the Hirer. This includes the right of PA Online to take measures that may prevent or mitigate any such loss or damage.
21. Hirer’s duty of care and indemnity for PA Online
a The Hirer is aware that under the Netherlands Working Conditions Act (Arbeidsomstandighedenwet) and Section 658 in Book 7 of the Netherlands Civil Code it is under an obligation to provide a safe place of work for temporary workers. The Hirer will give temporary workers specific instructions in order to prevent such workers from suffering loss, damage or injury when carrying out their duties. The Hirer will also provide temporary workers with personal protective equipment, in so far as necessary.
b The Hirer will provide the temporary worker and PA Online in good time, before the start of the posting, with the necessary information about the professional skills and qualifications required of the temporary worker, as well as the workplace risk assessment and evaluation setting out the specific characteristics of the temporary worker’s workplace.
c Where a Hirer hires a temporary worker, he will not hire out the temporary worker to a third party to work under the supervision and direction of such third party without the consent of PA Online.
d The Hirer is liable to the temporary worker and temporary employment agency and therefore required to pay compensation for any loss, damage or injury which the temporary worker suffers in the course of carrying out his duties, unless such loss, damage or injury is largely a consequence of intent or deliberate recklessness on the part of the temporary worker, subject to the provisions of Article 20.
e If the temporary worker is injured in the performance of his duties and dies as a result of his injuries, the Hirer is under an obligation, pursuant to Section 108 in Book 6 of the Netherlands Civil Code, to (i) the persons referred to in the said Section and (ii) to PA Online to pay compensation to the persons concerned, unless the injury is largely a consequence of intent or deliberate recklessness on the part of the temporary worker, subject to the provisions of Article 20.
f The Hirer agrees to indemnify, defend and hold PA Online harmless at all times from and against all claims made against PA Online on account of non-performance by the Hirer of the obligations referred to in Paragraph a of this Article and authorises PA Online to assign its claims in respect thereof to the party or parties directly concerned, or to assert such claims against the Hirer also on behalf of PA Online.
g The Hirer is obliged to arrange for adequate and comprehensive liability insurance covering all direct and indirect loss, damage and injury as referred to in this Article.
22. Amendments to the General Terms and Conditions
a PA Online reserves the right to amend or supplement these General Terms and Conditions.
b Amendments also apply in respect of agreements that have already been concluded with due observance of a term of 30 (thirty) days after notification of the amendment in writing.
c If the Principal does not wish to accept an amendment to these General Terms and Conditions it will be entitled to dissolve the agreement until the date on which the new conditions enter into effect, effective from that date.
23. Price changes
a Changes in the prices as a result to inflation and/or legislation regulations, which enter into effect after the assignment has been accepted may be charged on to the Principal. Price changes include changes in fees, financial or otherwise, and payments established by law.
24. Termination by PA Online
a The Principal will be deemed to be attributably in default without any further notice being required:
i) in the event that it fails to comply with any obligation under the agreement in full and in a timely manner;
ii) in the event of a bankruptcy or suspension of payments (or a threatened bankruptcy or suspension of payments) in respect of the Principal itself or its business; or
iii) in the event that its business is wound up.
b In the cases referred to in the preceding subsections PA Online will be entitled, without any notice and/or judicial intervention being required, to suspend the performance of the agreement in whole or in part or to dissolve the agreement in whole or in part without owing any compensation.
c The foregoing provisions apply without prejudice to PA Online’s other
25. Applicable law
a All portions of the agreement are governed by Dutch law.
b If a court pronounces that one or more articles contained in these General Terms and Conditions are invalid, the remaining provisions contained in these General Terms and Conditions will continue to apply in full and PA Online and the Principal will consult in order to agree on new provisions to replace the provisions that are void or that have been declared void, in which context the purpose and purport of the provisions that are void or that have been declared void will be taken into consideration to every extent possible.
c The parties designate the competent court in The Netherlands as the court having jurisdiction.