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PA Online Secretaressepool General Conditions
Filed with the Chamber of Commerce of Amsterdam, the Netherlands
1
General
Unless the parties have agreed otherwise these General Terms and
Conditions govern all offers and agreements of or with PA Online, PA Services, PA Online Expat Services, PA Detachering, PA
Training, PA Webdesign, Organisatietalent, Secretaressepool,
Juristenpool and all related acts whether preparatory or executory.
1.1
Principal and PA Online: deliveries and payments
a.
The Principal is taken to mean the party that issues the assignment.
b.
All deliveries are deemed to be made at the place where PA Online has its registered office.
c.
All payments must be made there.
d.
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.
e.
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.
1.2
Offers
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.
An agreement is concluded when the offer or contract signed by the
Principal indicating the Principal’s acceptance has been received
and accepted by PA Online B.V..
1.3
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 hired 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.
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 B.V. 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. P.A. Online B.V. 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.
h.
If the offer includes an ‘indicative’ price, the amount indicated is
nothing more than a non-binding estimate of the costs.
1.4
Fixed 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 1.4(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 products or services of third
parties that PA Online B.V. 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.
1.5
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 B.V.’s exceeding the originally agreed term of delivery,
in which case Article 1.15 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.
1.6
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.
1.7
PA Online’s property
a.
Rough designs, presentation models and/or original image carriers,
such as original printed matter, positive and negative films,
photographs and master tapes on magnetic carriers (video and audio),
etc. remain the property of PA Online B.V. at all times.
b.
If the items of property referred to in the preceding subsection
that are 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.
1.8
Shipment and transport of the work performed
a.
In the event of delivery carriage paid, the least expensive manner
of shipment will be used at all times unless the parties have agreed
otherwise in advance.
b.
In the event of any other shipment method the additional costs will
be paid by the Principal.
1.9
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.
1.10
Information
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 B.V. 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.
1.11
Payment
a.
Payment must be made without deducting any discount and, unless the
parties have agreed otherwise, within 2 (two) weeks of the invoice
date.
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 goods and rights and to the
extent stipulated the ownership of such goods 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 goods delivered, including any in
respect of prior deliveries 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.
f.
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.
g.
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.
1.12
Right to retain possession/recovery
a.
If PA Online has goods belonging to the Principal in its
possession, PA Online B.V. will be entitled to retain possession of
those goods to secure payment of all costs that PA Online
incurs in performing the assignments from that Principal, regardless
of whether those assignments relate to the above-mentioned goods or
to other goods belonging to the Principal, unless the Principal has
granted sufficient security in respect of those costs.
b.
PA Online also has a right to retain possession in the event
that the Principal is declared bankrupt, in the event that the
Principal dies or in the event that the Principal is placed under
guardianship.
1.13.
Penalties
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 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 secretary 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.
1.13
Partial delivery
a.
The Principal may be charged for each partial delivery, including
the delivery of parts of a compound assignment. Article 1.1 of these
General Terms and Conditions applies accordingly.
1.14
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.
1.15
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.
1.16
Cancellation
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 and semi-manufactured
goods 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.
1.17
Purchase
a.
Unless the parties agree otherwise the Principal is obliged to take
possession of the assignment immediately after it has been
completed.
b.
If as the result of default PA Online is forced to store the
assignment after it has been completed, the Principal may be charged
for the related costs.
1.18
Complaints
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 that
was delivered into use, has not handled or processed it 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 material supplied by the Principal
1.19
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 B.V. 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.
1.20
Liability, indemnifications and exclusions
a.
Insofar as PA Online is dependent on the cooperation, services
or deliveries of third parties in respect of its activities, PA
Online cannot be held liable in any way for any damage
whatsoever that arises from those relationships with PA Online or
the severing of such relationships, regardless of whether that
damage arises or becomes apparent during the relationship with PA
Online
b.
PA Online is not liable for damage that is the result of
defects or flaws in hardware or software that is manufactured by
parties other than PA Online, including the packet software,
software components or runtime facilities of third parties that PA
Online supplies or that is present at the Principal’s place of
business.
c.
Even if it must be assumed that PA Online is liable for the
Principal’s damage, its liability will be limited to compensation of
the replacement damage up to a maximum of one time the amount of the
price stipulated for that agreement (exclusive of VAT). If the
agreement is principally a continuing performance contract having a
term that exceeds 6 (six) months, the price stipulated will be
deemed to be the total of the fees (exclusive of VAT) stipulated for
6 (six) months. Any liability on the party of PA Online for any
other form of damage is excluded, including additional compensation
in any form whatsoever, compensation of indirect damage,
consequential loss or damage due to loss of turnover or profit.
d.
The Principal warrants that no rights of third parties oppose making
hardware, software or materials of third parties available to PA
Online for the purpose of use, processing or improvement and
the Principal indemnifies PA Online against any action based on
the allegation that making available, using or processing such
hardware, software or materials of third parties infringes any right
of third parties.
e.
PA Online does not accept any liability if software that it
makes available is used in any way other than that for which it has
been developed or is intended or if the software that it makes
available is changed or supplemented by the Principal or by third
parties.
f.
After acceptance PA Online is not further liable
for defects until after the guarantee obligations referred to in
Article 12 have been complied with.
g.
Without prejudice to the other provisions contained in these General
Terms and Conditions in respect of PA Online’s liability, PA Online
does not accept any liability for loss of profit and/or other forms
of indirect or consequential damage and damage in respect of third
parties unless the case in question involves an intentional act or
gross negligence on the part of PA Online B.V. and/or subordinates
of PA Online
h.
PA Online does not accept any liability for errors or defects
in any respect whatsoever if PA Online has not stipulated any
consideration for its work or products.
i.
If the Principal claims full or partial dissolution of
the agreement and insofar as the Principal has demonstrably suffered
damage due to a breach on the part of PA Online, PA Online
will reimburse any surplus value of the replacement performance with
a maximum of one-half of the value of the inadequate or dissolved
portion of the agreement.
j.
Any claim for performance of PA Online’s contractual
obligations will lapse if the Principal is in default in respect of
its compliance with any obligation on its part towards PA Online
1.21
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.
1.22
Price changes
a.
Changes in the prices of materials and/or semi-manufactured goods
that are necessary for the assignment that 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.
1.23
Copyrights, industrial property rights and reproduction rights
a.
By giving an assignment to use, duplicate or reproduce goods
protected by the Dutch Copyright Act (Auteurswet)
or any industrial property right, the Principal declares that the
copyrights or industrial property rights of third parties are not
being infringed and it indemnifies PA Online at law and
otherwise against all consequences arising from the use, duplication
or reproduction.
b.
All intellectual property rights in respect of materials and the
like designed, created or produced by PA Online continue to
vest in PA Online.
c.
Copyrights are not included in the design costs.
d.
The Principal will receive from PA Online a licence to use
works protected by copyright that PA Online makes in the
implementation of an assignment for the benefit of the Principal.
That licence applies only as long as the Principal complies with the
financial obligations that are related to making available the
copyright-protected work.
The licence applies only to use of the work in question by
the Principal itself or its legal successors.
e.
Use by third parties is not permitted without written permission.
f.
Without the prior written permission of PA Online
the Principal and/or third parties are not permitted to make changes
to any model, design, photograph, etc. that has already been
accepted or put into use.
1.24
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;
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 rights.
1.25
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 B.V. 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 place where
PA Online B.V. has its place of business as the court having
jurisdiction.
2
Software
The provisions contained in this Article apply, in addition to the
General Provisions contained in these General Terms and Conditions,
if PA Online develops and/or loans software.
2.1
Software and right to use
a.
Software is taken to mean: all instructions recorded
on carriers for that purpose, whether or not readable by machines,
in respect of the operation of any automated provision or for the
processing of data therein and documentation directly related
thereto, including the preparatory and descriptive design materials.
b.
If the delivery also includes software, PA Online
grants the Principal a non-exclusive, non-transferable right to use
the software, including computer programs recorded on materials that
are readable for the computer and the related documentation,
including new versions, insofar as the parties have agreed in
writing that newer various would be provided.
c.
The ownership of and all industrial and intellectual
property rights in respect of the software vest at all times in PA
Online or the supplier that has empowered PA Online to
make the software available to the Principal. The Principal will not
remove any copyright designations. The Principal is aware that the
software contains confidential information and business secrets of
PA Online or the supplier and will ensure that the software is
kept secret and that third parties are not informed about it.
PA Online B.V. is free to take technical measures to protect the
software.
d.
The Principal will obtain a non-exclusive and
non-transferable right to apply the software for its own use in its
company or organisation.
e.
The Principal may use the software only in its own
company or organisation on the processors and for a particular
number or type of users or connections for which the right to use
has been granted. Insofar as the parties have not made any
agreements in this respect, the Principal’s right to use will be
deemed to have been granted for those processors and number of
connections on which the software is used or was connected for the
first time.
f.
No other use of the software is permitted, including
making the software available to third parties in any manner
whatsoever.
2.2
Supplier’s software
a. If and insofar
as PA Online makes available to the Principal software of third
parties and provided that PA Online so informs the Principal in
writing, the conditions of those third parties will apply in respect
of that software instead of the provisions contained in these
General Terms and Conditions. The Principal accepts those conditions
of third parties. PA Online B.V. will make those conditions
available to the Principal at the Principal’s first request.