General terms and conditions

(Annex 2) General terms and conditions of Recruit a Student Personeelsdiensten BV (for the supply of temporary agency workers / the recruitment and selection of candidates and payrolling)

Chapter 1. General provisions

Article 1. Definitions

In these general terms and conditions the following terms mean:

1. Temporary work agency: any natural or legal person who, in the course of a profession or business, supplies temporary agency workers to a user company to carry out work for that user company;

2. Temporary agency worker: any natural person who, through a temporary work agency, carries out or is to carry out work for a user company;

3. User company: any natural or legal person who obtains temporary agency workers through a temporary work agency;

4. Supply agreement: the agreement between a temporary work agency and a user company on the basis of which a temporary agency worker will carry out work for that user company through that temporary work agency;

5. User rate: the hourly amount the user company owes the temporary work agency for the supply of the temporary agency worker;

6. Temporary employment contract: the employment contract under which the temporary agency worker is supplied by the temporary work agency to a user company in order to carry out work under the supervision and direction of that user company, pursuant to a supply agreement concluded by the user company with the temporary work agency;

7. Employment intermediary: any natural or legal person who assists an employer, a job seeker or both in finding labour or employment respectively, with a view to the conclusion of an employment contract under civil law or an appointment as a civil servant.

8. Client: any natural or legal person who uses the services of an employment intermediary.

9. Intermediation agreement: the agreement between an employment intermediary and a client and/or a job seeker for the services referred to in point 7.

10. Payrolling company: any natural or legal person who, in the course of a profession or business, supplies employees to a user company to carry out work for that user company. The employee is recruited by the user company, not by the payrolling company.

11. Payrolling contract: the employment contract under which the employee is supplied by the payrolling company (employer) to a user company in order to carry out work under the supervision and direction of that user company, pursuant to a supply agreement concluded by the user company with the payrolling company. The payrolling contract is concluded after the employee has been recruited by the user company, not by the payrolling company.

12. Payrolling: the supply by an employer of an employee to a user company pursuant to a payrolling contract as referred to in point 11.

13. NBBU collective agreement: the collective labour agreement for temporary agency workers that applies to temporary work agencies that are members of the Nederlandse Bond van Bemiddelings- en Uitzendondernemingen (NBBU).

14. Where these general terms and conditions refer to temporary agency workers, this means male and female temporary agency workers; where they refer to him and/or he, this means him/her or he/she.

Article 2. Applicability of these terms and conditions

1. These terms and conditions apply to every offer by the temporary work agency and to every supply agreement between the temporary work agency and a user company to which the temporary work agency has declared them applicable, as well as to the resulting deliveries and services of any kind between the temporary work agency and a user company, in so far as the parties have not expressly departed from them in writing.

2. A user company with whom a contract has once been concluded on these terms is deemed tacitly to agree to their applicability to any supply agreement concluded later with the temporary work agency.

3. All offers, however made, are without obligation.

4. The temporary work agency is not bound by the user company’s general terms and conditions in so far as these depart from the present terms.

5. If any provision of these terms is void or is annulled, the remaining provisions remain fully in force and the parties will consult each other in order to agree new provisions to replace the void or annulled provisions, observing as far as possible the purpose and scope of the void or annulled provision.

Article 3. Method of invoicing

1. Unless otherwise agreed, the invoices of the temporary work agency are based among other things on the time sheet completed and approved by the user company.

2. The user company is responsible for completing and approving the time sheet correctly, on time and in full. Approval takes place by (digital) signature of the time sheet, unless otherwise agreed.

3. In the event of a difference between the time sheet submitted to the temporary work agency and the data kept by the user company, the time sheet submitted to the temporary work agency is deemed correct, unless the user company proves otherwise.

4. If the temporary agency worker disputes the data on the time sheet, the temporary work agency may invoice the hours worked and other costs according to the worker’s statement, unless the user company proves that the time sheet is correct.

5. Invoices are provided in digital form only (by e-mail or on the website).

6. If the user company does not comply with point 2 of this article, the temporary work agency may decide to invoice the user company on the basis of the facts and circumstances known to it. It will not do so until reasonable consultation about this has taken place with the user company.

7. The user company ensures that the invoices of the temporary work agency are paid within 14 days of the invoice date, without any retention, discount or set-off.

8. Rate changes resulting from collective agreement obligations and from changes in or as a result of legislation and regulations, such as tax and social security legislation, are passed on to the user company with effect from the date of those changes and are payable accordingly by the user company, even if those changes occur during the term of a supply agreement.

9. Only if the temporary work agency has a blocked account (G-rekening) or an indemnity account exists for its deposit may the user company ask the temporary work agency to discuss the possibility of the user company paying a percentage of the invoiced amount into that account, and the level of that percentage. This possibility may only be used if agreement is reached.

Article 4. Payment terms

1. Only payments made directly to the temporary work agency discharge the user company.

2. Direct payments or advances by the user company to the temporary agency worker are not permitted, whatever the reason for them or the way in which they are made. Such payments and advances do not concern the temporary work agency and provide no ground for any discharge of debt or set-off.

3. If the user company disputes an invoice, it must inform the temporary work agency of this in writing within eight days of the date on which the invoice was sent, failing which the right to dispute lapses. Disputing an invoice does not suspend the user company’s payment obligation.

4. If the user company fails to pay an amount due, or does not pay it on time or in full, it is in default by operation of law from the due date of the invoice concerned. From that moment the user company also owes the temporary work agency default interest of 1% per month on the gross invoice amount, part of a month counting as a full month.

5. All costs, both in and out of court, including the costs of legal assistance, that the temporary work agency has to incur as a result of the user company failing to meet its payment obligations are for the account of the user company. The temporary work agency’s extrajudicial collection costs, calculated on the amount to be collected, are set at no less than 15% of the principal sum, with a minimum of € 500.00.

6. The user company is classified on the basis of an assessment of its solvency and payment behaviour by credit insurer Euler Hermes. If the user company is uninsurable according to the criteria of Euler Hermes, services can only be provided if the invoice is collected by direct debit within 14 working days, or if a deposit is paid equal to the outstanding amount. Should the status of the user company change from insurable to uninsurable during the assignment, the direct debit or deposit takes effect immediately.

Article 5. Rescission

1. If a party fails to meet its obligations under the supply agreement, the other party is entitled, in addition to what the supply agreement provides, to rescind the agreement out of court by registered letter. Rescission only takes place after the defaulting party has been notified in writing of its default and has been given a reasonable period to remedy the serious shortcoming.

2. Furthermore, a party is entitled, without any reminder or notice of default being required, to rescind the supply agreement out of court in whole or in part with immediate effect by registered letter if: a. the other party applies for (provisional) suspension of payments or is granted it; b. the other party applies for its own bankruptcy or is declared bankrupt; c. the other party’s business is wound up; d. the other party discontinues its current business; e. a significant part of the other party’s assets is attached through no act of the first party, or if the other party must otherwise be regarded as no longer able to meet its obligations under the supply agreement.

3. If, at the time of rescission, the user company had already received performance under the supply agreement, it may rescind the agreement only in part, and solely for that part which has not yet been performed by or on behalf of the temporary work agency.

4. Amounts the temporary work agency invoiced to the user company before the rescission for what it had already performed under the supply agreement remain fully payable by the user company and become immediately due at the moment of rescission.

5. If the user company, after having been given notice of default, fails to meet an obligation under the supply agreement, or fails to meet it in full or on time, the temporary work agency is entitled to suspend its obligations towards the user company without being liable for any damages, or the user company will provide the temporary work agency with financial security in the form of an advance or a (bank) guarantee. The size of the advance or guarantee is proportionate to the user company’s obligations under the supply agreement. The foregoing also applies in the circumstances referred to in point 2 of this article.

6. If, in the opinion of the temporary work agency, there is reasonable doubt about the user company’s financial position, the user company will, at its request, provide the financial security referred to in point 5.

Article 6. Liability

1. Subject to mandatory law and with due regard for the general standards of reasonableness and fairness, the temporary work agency is not obliged to compensate any damage of whatever kind, direct or indirect, caused to the temporary agency worker or to property or persons at or of the user company or a third party, where that damage arises as a result of: a. the supply of the temporary agency worker by the temporary work agency to the user company, even where it turns out that the worker does not meet the requirements set by the user company; b. unilateral termination of the temporary employment contract by the temporary agency worker; c. an act or omission of the temporary agency worker, the user company itself or a third party, including the entering into of obligations by the temporary agency worker.

2. Any liability of the temporary work agency for direct damage is in any event limited, per event, to 50% of the amount invoiced or to be invoiced. The temporary work agency is never liable for indirect damage, including consequential loss.

3. The user company is obliged to take out adequate, all-round liability insurance for all direct and indirect damage referred to in point 1 of this article.

4. In any event, the user company must indemnify the temporary work agency against any claims by the temporary agency worker or third parties for compensation of damage as referred to in point 1 of this article suffered by that worker or those third parties.

5. The limitations of liability in points 1 and 2 of this article lapse in the event of intent or gross negligence on the part of the temporary work agency and/or its management staff.

6. The temporary work agency is entitled at all times, if and in so far as possible, to undo any damage of the user company. This also includes the right of the temporary work agency to take measures that may prevent or limit any damage.

Article 7. Force majeure

1. In the event of force majeure on the part of the temporary work agency, its obligations under the supply agreement are suspended for as long as the force majeure continues. Force majeure means any circumstance beyond the control of the temporary work agency which permanently or temporarily prevents performance of the supply agreement and which should not be at its risk either by law or by the standards of reasonableness and fairness.

2. As soon as a situation of force majeure as referred to in point 1 of this article arises at the temporary work agency, it will notify the user company.

3. In so far as not already included, force majeure also means: strikes, occupation of the business, blockades, embargoes, government measures, war, revolution and any comparable situation, power failures, failures of electronic communication lines, fire, explosion and other calamities, water damage, flooding, earthquakes and other natural disasters, as well as extensive illness of an epidemiological nature among staff.

4. For as long as the force majeure continues, the obligations of the temporary work agency are suspended. This suspension does not, however, apply to obligations to which the force majeure does not relate and which arose before the force majeure occurred.

5. If the force majeure has lasted three months, or as soon as it is established that it will last longer than three months, either party is entitled to terminate the supply agreement prematurely without observing any notice period. Even after such termination the user company remains obliged to pay the temporary work agency the fees it owes relating to the period before the force majeure.

6. During the force majeure the temporary work agency is not obliged to compensate any damage of or at the user company, nor is it so obliged after termination of the supply agreement as referred to in point 5 of this article.

Article 8. Disputes

1. The supply agreement is governed by Dutch law.

2. The Dutch courts have exclusive jurisdiction over disputes between the parties relating to the supply agreement.

3. In so far as such disputes fall within the jurisdiction of a district court, they will be heard exclusively by the court of the district in which the temporary work agency is established.

Chapter 2. Conditions for the supply of temporary agency workers

Article 9. Hiring in temporary agency workers

1. The temporary employment contract is concluded between the temporary agency worker and the temporary work agency. The NBBU collective agreement for temporary agency workers applies to it. There is no employment contract between the user company and the temporary agency worker.

2. When the temporary agency worker is supplied by the temporary work agency to the user company, the worker in fact works under the direction and supervision of the user company. In doing so, the user company exercises the same care as towards its own employees. As the formal employer, the temporary work agency has no view of the workplace or of the work to be carried out.

3. The work is carried out as agreed in the supply agreement. If the user company wishes to depart from this during the term of the supply agreement, this may only be done in consultation with the temporary work agency.

Article 10. (Hourly) pay and other allowances of the temporary agency worker

1. The pay and allowances of the temporary agency worker are determined before the supply and, where necessary, during it, and are equal to the pay and allowances granted to comparable employees in equivalent positions employed by the user company (the so-called equal pay rule).

2. Pay and other allowances comprise the following components: a. only the applicable periodic salary in the scale; b. the applicable reduction in working hours, which may be compensated, at the choice of the temporary work agency, in time and/or money; c. supplements for overtime, shifted hours, irregular hours (including public holiday supplements) and shift work; d. the initial pay increase; e. untaxed expense allowances: travel costs, accommodation costs and other costs necessary for the performance of the job; f. periodic increments. Note: different conditions apply to temporary agency workers employed in the construction sector.

3. The user company informs the temporary work agency in good time about the components referred to in point 2. If the user company provides incorrect information about these components, the temporary work agency is entitled to correct the pay and other allowances of the temporary agency worker as well as the user rate retroactively, with effect from the start of the position concerned, and to charge this to the user company.

4. If the pay and allowances of the temporary agency worker cannot be determined under the equal pay rule, they are determined in consultation between the temporary work agency, the temporary agency worker and the user company. The worker’s level of education and experience serve as a guide, as do the responsibilities and the skills the position requires.

5. If the user company, after the temporary agency worker has reported to the workplace, makes use of the worker’s services for less than three hours, the user company is obliged to pay the user rate for at least three hours per call-out if: a. the agreed volume of work is less than 15 hours a week and working times have not been fixed; or b. the user company has not fixed the volume of work, or has not fixed it unambiguously.

6. If the user company, for operational reasons, requires the temporary agency worker to have certain items, such as a certificate of conduct or personal protective equipment, these are provided by the user company in so far as possible. If these items are provided by the temporary work agency, it is entitled to charge the associated costs to the user company.

Article 11. Content of the supply agreement and notice periods

1. The supply agreement states the duration of the supply of the temporary agency worker and, where this is not yet clear in advance, as accurate an estimate as possible. In so far as possible and desirable, it also records the start and end dates of the supply, the number of hours to be worked, the notice period and the employment conditions of the temporary agency worker.

2. If the agency clause applies to the temporary employment contract, neither the temporary work agency nor the user company has to observe a notice period if they wish to end the supply prematurely, unless otherwise agreed in writing.

3. If the agency clause does not apply to the temporary employment contract, there is a temporary employment contract for a fixed or an indefinite period. In that case the supply agreement only ends on expiry of the agreed duration of the supply, unless otherwise agreed in writing.

4. If the user company wishes to end prematurely the supply of a temporary agency worker who works on the basis of a temporary employment contract for a fixed or an indefinite period, the user company owes the temporary work agency an immediately payable fee. This fee amounts to 100% of the last applicable user rate for the temporary agency worker concerned, multiplied by the number of hours agreed in the supply agreement for the period from the moment of early termination to the end of the supply agreement as originally agreed.

5. If the user company wishes to end the supply while nothing has been agreed about its duration and the temporary agency worker works on the basis of a temporary employment contract for a fixed or an indefinite period, a notice period of 20 working days applies, unless otherwise agreed in writing.

Article 12. The user company entering into a direct employment relationship with the temporary agency worker

1. If the user company wishes to enter into an employment contract or another kind of employment relationship directly with a temporary agency worker supplied or to be supplied to it by the temporary work agency, it notifies the temporary work agency of this in writing without delay. The parties then consult each other to discuss the user company’s wish.

2. Another kind of employment relationship as referred to in this article means, among other things: a. appointment as a civil servant; b. a contract for services; c. a contract for work; d. having the temporary agency worker supplied to the user company by a third party (for example another temporary work agency) for the same or other work.

3. The user company does not enter into an employment contract directly with the temporary agency worker if the worker has not lawfully terminated the temporary employment contract with the temporary work agency, without prejudice to the user company’s other obligations referred to in point 4 of this article.

4. If the user company, following the supply, enters into an employment contract or another kind of employment relationship with the temporary agency worker concerned within a period of 1040 hours from the start of the supply agreement, the user company owes the temporary work agency an immediately payable fee that is not open to mitigation. This fee amounts to 25% of the last applicable user rate for the temporary agency worker concerned, multiplied by the number of hours remaining between the hours the worker has already been supplied to the user company and 1040 hours. (By way of illustration: a temporary agency worker has worked 800 hours at a rate of € 25.00; the fee amounts to (25% of € 25.00) multiplied by (1040 hours minus 800 hours), being € 6.25 × 240 hours = € 1500.00.)

5. If the user company enters into an employment contract or another kind of employment relationship with the temporary agency worker concerned within six months after the supply to the user company has ended while 1040 hours have not yet been worked, or within six months after a temporary agency worker recruited and selected by the temporary work agency was put forward without any supply having taken place first, the user company owes the temporary work agency the fee referred to in point 4. This applies both where the user company approached the worker concerned directly or through third parties and where the worker approached the user company directly or through third parties. If no user rate had yet been agreed, the fee referred to in point 4 amounts to 50% of the gross hourly wage the temporary agency worker would have earned under article 10, multiplied by the number of hours referred to in point 4.

6. A user company that does not supply its own staff but in turn supplies the temporary agency worker it has hired in to another party, the ultimate user company, owes the temporary work agency (the employer) the fee referred to in point 4 of this article if a direct employment relationship is entered into between the ultimate user company and the temporary agency worker within a period of 1040 hours to be worked from the start of the supply agreement.

Article 13. Selection of temporary agency workers

1. The temporary agency worker is chosen by the temporary work agency on the basis of, on the one hand, the qualities and skills known to the agency of the temporary agency workers available for supply and, on the other hand, the information provided by the user company to the agency about the work to be assigned. 2. The user company may not set requirements that are not relevant to the position when providing information about the work to be assigned as referred to in point 1 of this article. In any event the temporary work agency will not act on such requirements. 3. If a temporary agency worker does not meet the requirements set by the user company, the user company has the right to inform the temporary work agency of this within 4 hours of the start of the work. In that case the user company is obliged to pay the temporary work agency at least the pay and allowances due to the worker, increased by the employer’s share of social security charges and contributions and by the obligations arising from the collective agreement. 4. During the term of the supply agreement the temporary work agency is entitled to propose replacing the temporary agency worker, for example if the worker is no longer able to carry out the work. The user rate is then set again.

Article 14. The user company’s duty of care and indemnity towards the temporary work agency

1. The user company is aware that under the Dutch Working Conditions Act and article 7:658 of the Dutch Civil Code it is obliged to provide a safe workplace for the temporary agency worker. The user company gives the worker specific instructions to prevent the worker suffering damage in the performance of the work. The user company also provides the worker with personal protective equipment in so far as necessary. 2. In good time before the supply begins, the user company provides the temporary agency worker and the temporary work agency with the necessary information about the professional qualification required, as well as the risk inventory and evaluation setting out the specific characteristics of the workstation to be occupied. 3. The user company will not in turn supply the temporary agency worker it has hired in to a third party to work under that party’s supervision and direction without the permission of the temporary work agency. 4. The user company is liable towards the temporary agency worker and the temporary work agency for, and consequently obliged to compensate, the damage the worker suffers in the performance of the work, unless the damage is largely the result of intent or deliberate recklessness on the part of the worker, all with due regard for article 6. 5. If the temporary agency worker has suffered injury in the performance of the work resulting in death, the user company is obliged, in accordance with article 6:108 of the Dutch Civil Code, to compensate the damage of the persons referred to in that article, towards those persons and towards the temporary work agency, unless the damage is largely the result of intent or deliberate recklessness on the part of the worker, all with due regard for article 6. 6. The user company will at all times indemnify the temporary work agency against claims brought against the agency because the user company has not met the obligations referred to in point 1 of this article, and grants the temporary work agency the authority to assign its claims in this respect to the directly interested parties or to enforce them against the user company, also on behalf of the agency. 7. The user company is obliged to take out adequate, all-round liability insurance for all direct and indirect damage referred to in this article.

Article 15. Identification and personal data

1. At the start of the supply of a temporary agency worker the user company establishes the worker’s identity on the basis of the original identity document and keeps a copy of that document in its records. 2. The user company treats the personal data of temporary agency workers that comes to its knowledge in the context of the supply as confidential and processes it in accordance with data protection legislation. 3. The temporary work agency is not liable for fines or claims imposed on the user company because it has not met the obligations referred to in the preceding points.

Article 16. Company car and business closure

1. If the user company intends to provide the temporary agency worker with a car, it notifies the temporary work agency without delay. Only in consultation with the temporary work agency does the user company agree with the worker that the car may be used privately, so that the agency can take this into account in the payroll tax. If the user company fails to do so, it is obliged to compensate the resulting damage, costs and (tax) consequences suffered by the temporary work agency.

2. If a business closure or compulsory day off occurs during the supply, the user company informs the temporary work agency of this when the supply agreement is concluded, so that the agency can take it into account when determining the employment conditions. If the user company fails to do so, it owes the temporary work agency, for the duration of the business closure or compulsory day off, the number of hours agreed in the supply agreement multiplied by the last applicable user rate.

Chapter 3. Conditions for employment intermediation

Article 17. Applicability of the general provisions

1. The provisions of chapter 1 of these general terms and conditions apply mutatis mutandis to the relationship between the employment intermediary and the client, with the exception of article 3, points 1, 2, 3, 4, 5 and 7. 2. Where chapter 1 of these terms refers to “temporary work agency”, “user company”, “temporary agency worker” or “supply”, these terms should, in the case of employment intermediation, be read as “employment intermediary”, “client”, “job seeker” and “intermediation” respectively.

Article 18. Fee and content of the intermediation agreement

1. The fee owed by the client to the employment intermediary may consist either of an amount fixed in advance or of a percentage agreed in advance of the full-time gross annual salary offered to the job seeker, increased by holiday allowance.

2. Unless otherwise agreed in writing, the fee referred to in point 1 of this article is only payable if the intermediation has led to an employment contract or an appointment as a civil servant with a job seeker selected by the employment intermediary.

3. The intermediation agreement records, in so far as relevant, the duration of the intermediation, the way in which the employment intermediary carries it out and the fee the client owes the intermediary for it.

4. The fee does not include the placement and production costs of advertisements, the travel and accommodation costs of the job seeker or the costs of a psychological test. These and any other pro memoria items are charged on the basis of subsequent calculation.

Article 19. The client entering into an employment relationship with the job seeker

If, during the term of the intermediation assignment or within six months of its termination, the client itself enters into an employment contract directly with, or proceeds to appoint, a job seeker selected by the employment intermediary, the client owes the intermediary an immediately payable penalty, not open to mitigation by a court, equal to the fee agreed with the client for the intermediation or equal to the fee that would have been charged if no such direct employment relationship had been entered into.

Article 20. Selection of the job seeker

1. The job seeker is selected by the employment intermediary on the basis of, on the one hand, the wishes the client has communicated to the intermediary regarding the job seeker’s qualities and skills and the information provided about the nature of the position and, on the other hand, the qualities and skills of the job seeker known to the intermediary.

2. The client may not set requirements that are not relevant to the position when communicating wishes and information about the desired candidate and the nature of the position as referred to in the previous point of this article. In any event the employment intermediary will not act on such requirements.

Chapter 4. Conditions for payrolling

Article 21. Applicability of chapters 1 and 2

1. Where there is a payrolling contract between the employee and the payrolling company, the provisions of chapters 1 and 2 of these general terms and conditions apply mutatis mutandis to the relationship between the payrolling company and the user company, with the exception of article 11, points 2 to 5, article 12, points 4 to 6, and article 13.

2. Where chapters 1 and 2 of these terms refer to “temporary work agency”, “temporary agency worker” and “temporary employment contract”, these terms should, in the case of payrolling, be read as “payrolling company”, “employee” and “payrolling contract” respectively.

Article 22. Invoicing

If the employee is unable to work because of unforeseen circumstances, for instance illness or lack of work, the hours not worked are also invoiced where the payrolling company has an obligation to continue paying the employee’s wages.

Article 23. Additional employment conditions

An employment condition from the user company’s collective agreement may only be applied if it does not conflict with the applicable NBBU collective agreement for temporary agency workers and in so far as it has been agreed in writing.

Article 24. Entering into and ending the supply agreement

1. Before the payrolling company enters into a payrolling contract with the employee, the user company provides correct and complete information about the employee’s employment history with the user company. If the user company provides incorrect or incomplete information, it compensates the resulting damage of the payrolling company.

2. The supply agreement can only be terminated by notice or, by way of departure from article 5, rescinded once the payrolling contract between the payrolling company and the employee has been lawfully ended. Where necessary, the user company cooperates in the payrolling of the employee through a third employer or in (re-)engaging the employee.

3. Notice may only be given earlier than provided for in point 2 if, by the standards of reasonableness and fairness, a party cannot be required to continue the supply agreement. If the payrolling company has an obligation to continue paying the employee’s wages, the user company observes a notice period of at least three months, unless otherwise agreed in writing. These general terms and conditions were filed with the Chamber of Commerce in Breda on 14 July 2011 under number 20092214.