PART I: GENERAL
Article 1: Definitions
- In these general terms and conditions the following definitions apply:
- ITM: Interim Transport Group consisting of the private companies:
- Interim Transport Group Dalen BV (registered with the Chamber of Commerce under number: 73682462);
- Interim Transport Group BV (registered with the Chamber of Commerce under number: 67532993);
- ITG International BV (registered with the Chamber of Commerce under number: 69373388);
- And the company under Polish law ITG International SPZOO.
- hirer: the (intended) client of ITM to whom ITM will make one (or more) Worker(s) available for the performance of work under the supervision and direction of the Hirer, other than on the basis of an employment contract;
- ON SALE: ITM's offer
- Agreement: the agreement between ITM and its Hirer to which these general terms and conditions apply, meaning the order given to ITM;
- labor power: the natural person who performs or will perform work for and under the supervision of the Hirer;
Article 2: Applicability
- These general terms and conditions apply to all Quotations made by ITG and/or Agreements concluded with ITG and/or the related services. The Hirer accepts the applicability of these general terms and conditions to all future Agreements concluded with ITM.
- In the event of a conflict between the terms and conditions as set out in the Agreement and these general terms and conditions, the terms and conditions as set out in the Agreement will prevail.
- If at any time one or more provisions in these general terms and conditions are wholly or partially void or destroyed, the other provisions referred to in these general terms and conditions will remain in full force and effect. In such a case, the parties will consult to agree on new provisions to replace the void or voided provisions, whereby the aim and intent of the original provisions will be pursued as much as possible.
- A reference by the Hirer to its own general terms and conditions is not accepted by ITM and expressly rejected.
Article 3: Conclusion of an Agreement
- All Offers from ITM are without obligation, unless a term for acceptance has been stated.
- Oral Offers by ITM or its subordinates are not binding, unless confirmed or confirmed in writing by ITM.
- Unless the parties agree otherwise, the Agreement is concluded at the moment that the Hirer has accepted the Acceptance of a Quotation by ITM, or at the moment the Agreement is signed by the Hirer or at the moment when ITM provides the Worker to the Hirer to makes available.
- If the Hirer has made reservations or changes to the Quotation in the acceptance of the Quotation by ITM, the Agreement will not be concluded until ITM has notified the Hirer that it agrees to these changes.
- The specific condition under which the Worker is made available by ITM will be included in the Agreement.
Article 4: Changes
- Changes to the Agreement and deviations from these general terms and conditions are only effective if they have been agreed in writing between ITM and the Hirer.
- ITM reserves the right to change the terms and conditions at any time.
- ITM is entitled to increase the agreed price if there is an increase in cost-determining factors after the Agreement has been concluded.
Article: (Un)enforceability of the Agreement, force majeure
- ITM is entitled to offer a replacement Worker during the term of the Agreement. The Hirer can only reject such a proposal on reasonable grounds.
- ITM is at all times entitled to make a proposal to the Hirer to replace a Worker made available with another Worker under the continuation of the Agreement, among other things with a view to ITM's company policy or personnel policy, retention of employment or compliance with applicable laws and regulations.
- ITM has the right to suspend the fulfillment of its obligations if it is temporarily prevented from fulfilling its obligations due to circumstances that were not foreseeable at the time of the conclusion of the Agreement and which are beyond its control.
- Circumstances that were not foreseen by ITM and that are beyond its control include, among other things, the circumstance that suppliers and/or subcontractors of ITM do not fulfill their obligations or do not fulfill their obligations on time, the weather, (natural) disasters, fire, loss , theft or loss of tools and materials, roadblocks, strikes, import or trade restrictions and/or government action.
- In the event of force majeure as referred to in Article 6:75 of the Dutch Civil Code, the parties will immediately inform each other of this, as well as of the expected duration of the force majeure situation. The fulfillment of the obligations of the parties is suspended for the duration of the force majeure situation, unless this situation lasts longer than 3 months or the nature of the Agreement precludes suspension. In the latter two cases, each of the parties is authorized to dissolve the Agreement in whole or in part, without being obliged to pay any form of compensation.
Article 6: Obligations of the Hirer
- The Worker actually works under the supervision and direction of the Hirer. In doing so, the Hirer takes the same care as it does towards its own employees. ITM has no view of the workplace and the work to be performed, on the basis of which the Hirer must ensure a safe working environment. In doing so, the Hirer takes the same care as it does towards its own employees.
- The Hirer must ensure a safe workplace for the Worker. The Hirer provides the Worker with concrete instructions to prevent the Worker from suffering damage in the performance of his work. The Hirer also provides the Worker with personal protective equipment to the extent necessary. If the supplies are provided by ITM, ITM is entitled to charge the costs associated with this to the Hirer.
Article 7: Entering into an employment relationship with an Employee
- If the Hirer wishes to directly enter into an employment contract or other type of employment relationship with a Worker made available to him or to be made available by ITM, he shall immediately notify ITM thereof in writing. The parties then enter into consultation to discuss the Hirer's wishes. The basic principle is that the Hirer owes ITM a reasonable compensation of 15% of the most recent gross monthly salary of the Worker, or at least a reasonable compensation to be agreed upon for the services rendered by ITM in connection with the posting, recruitment and/or training of the workforce.
- A different type of employment relationship as referred to in this article includes:
- An assignment agreement
- Acceptance of work
- The payroll agreement
- Having the Worker made available to the Hirer by a third party for the same or different work
- The Hirer is prohibited from inducing Labor Forces to enter into an employment contract or other type of employment relationship with another company, with the intention of hiring the Labor Forces through this other company.
- The Hirer also owes the compensation referred to in the first paragraph if the Worker applies to the Hirer directly or via third parties within six months after the posting to the Hirer has ended, or if the Hirer provides the Worker within six months after the posting to the Hirer has ended. Approach the Hirer directly or through third parties, and the Hirer enters into an employment relationship with the relevant Worker as a result of this.
- If the Hirer enters into an employment relationship with the Worker for the same or another position before the Worker has been made available to the Hirer for 1500 hours, the Hirer owes ITM a fee on top of the compensation referred to in paragraph 1 of this article. of 25% of the last applicable rate for the Worker concerned over the remaining hours. The remaining hours are calculated by dividing 1500 hours minus the number of hours that the Worker has already been made available to the Hirer.
- If a Worker has been introduced to a potential Hirer through the intermediary of ITM and this potential Hirer enters into an employment relationship with that Worker for the same or another position before the posting is made, this potential Hirer owes a fee of 25% of the Hirer's Rate, that would have been applicable to the Worker concerned over 1500 hours, if the posting had been made. The Hirer always owes this fee if the Hirer initially came into contact with the Worker through the intermediary of ITM. Even if the Worker applies directly or via third parties to the Hirer within six months after the contact has been established or if the Hirer approaches the Worker directly or through third parties within six months after the contact has been established, and as a result of this with the concerning the Worker enters into an employment relationship, the Hirer owes the compensation as referred to in the first sentence of this paragraph.
- If the Hirer enters into an employment relationship with the Worker during an assignment that can be terminated early, the Hirer is entitled to decide not to observe the notice period agreed in the Agreement. In that case, however, the Hirer is obliged to compensate the damage that ITM suffers as a result. This damage is fixed at 30% of the Hirer's Rate for the notice period that has not been observed for the relevant assignment. In addition, the Hirer must pay the fee referred to in paragraph 5 of this article, where applicable.
- If the Hirer enters into an employment relationship with the Worker during an assignment that cannot be terminated prematurely, the Hirer is obliged to pay the agreed hirer's rate for the relevant Worker for the remaining term of the Agreement. In addition, the Hirer must pay the fee referred to in paragraph 5 of this article, where applicable.
Article 8 – Identification and personal data
- At the start of the provision of a Worker, the Hirer establishes his/her identity on the basis of the original identity document. The Hirer organizes its administration in such a way that the identity of the Worker can be demonstrated.
- ITM and the Hirer will treat all personal data of Workers provided to them in the context of the posting confidentially and will process it in accordance with the provisions of the General Data Protection Regulation (GDPR) and other relevant privacy legislation.
Article 9 – Labor disputes/conflicts in the workplace
- If problems arise between the Hirer and the Worker, the Hirer will immediately inform ITM. The Hirer and ITM can then determine in good consultation which measures can and should reasonably be taken. A Hirer cannot dismiss a Worker or impose another measure on him. It is at the discretion of ITM whether the reasons for imposing any measures are sufficiently demonstrable.
- If the Worker acts or fails to act in such a way that the Hirer cannot reasonably be expected to allow the Agreement to continue and the employment relationship with the Worker can be terminated as a result, ITM may authorize the Hirer to terminate the Agreement prematurely. ITM may attach conditions to the granting of said permission. For example, with regard to the payment of a compensation that ITM must pay the Employee upon termination of the employment relationship.
Article 10: Liability ITM
- ITM is not liable for damage of any nature whatsoever caused to the Worker, the Hirer or to objects or persons at or of the Hirer or a third party, including damage that has arisen as a result of:
- The provision of the Worker by ITM to the Hirer, even if it turns out that that Worker does not meet the requirements set by the Hirer;
- Unilateral termination of the agency work employment contract by the Worker;
- Acts or omissions on the part of the Worker, the Hirer himself or a third party, including entering into commitments by the Worker;
- The on-lending of the Worker by the Hirer without written permission from ITM.
- ITM is not liable for damage caused by the Worker to vehicles and/or loads of the Hirer and/or a client of the Hirer, unless the damage is the result of intent or willful recklessness on the part of the Worker. Unless there is intent or willful recklessness on the part of the Worker, damage to vehicles and/or loads of the Hirer and/or a client of the Hirer must be recovered from the Hirer's insurance.
- Events resulting from the outbreak of a pandemic may mean that ITM is unable to comply with certain legal and contractual obligations. For that reason, ITM excludes any liability for non-fulfilment or late fulfillment of legal and/or contractual obligations insofar as these are the direct or indirect result of (measures regarding) a pandemic in the broadest sense of the word. Such as, but not limited to, the situation in which it is no longer responsible as far as ITM is concerned that the Worker carries out work.
- ITM is never liable for consequential and indirect damage.
- If and insofar as there is any liability on ITM, for whatever reason, this liability is at all times limited to:
- The amount that ITM's insurance pays out, or;
- If ITM is not insured for the damage in question or if the insurance does not pay out (in full), the amount invoiced by ITM to the Hirer that relates to the month prior to the damage report. In the absence of a previous month, it is decisive what ITM would or has charged to the Hirer in the month in which the event causing the damage occurred according to the Agreement.
- The Hirer is obliged to take out adequate and fully covering liability insurance for all direct and indirect damage.
- In any case, ITM's liability lapses in its entirety if the Hirer, as soon as it becomes aware of circumstances that may lead to ITM's liability for the first time, does not report this within a reasonable time, or if the Hirer does not take any action or omission to provide more prevent damage.
Article 11: Hirer's liability
- The hirer is liable for damage that ITM, the Worker or any other third party will suffer as a result of any accident and any event and as a result of violation of a contractual or non-contractual obligation, including any trading loss and consequential damage, as well as any fines paid and given discounts. The hirer shall indemnify ITG against any (damage) claim in this regard and is obliged to immediately inform ITG in the event of damage.
- The Hirer is liable vis-à-vis the Worker and ITM for and is consequently obliged to compensate the damage suffered by the Worker in the performance of his work, unless the damage is to a significant extent the result of intent or willful recklessness on the part of the Worker.
- If the Worker has suffered such an injury in the performance of his work that this results in death, the Hirer is obliged to compensate the damage to the persons referred to in Article 6:108 of the Dutch Civil Code towards the persons referred to in that Article and towards ITM. unless the damage is to a significant extent the result of intent or willful recklessness on the part of the Worker.
- The Hirer fully indemnifies ITM against claims brought against ITM due to the Hirer's failure to comply with the obligations referred to in this article and will fully reimburse ITM for the related costs of legal assistance.
Article 12: Invoicing and payment
- Unless expressly agreed otherwise in writing, payment must be made within 14 days of the invoice date, into the bank account indicated by ITM in the currency indicated on the invoice.
- If the Hirer disputes an invoice, this will be notified in writing by the Hirer to ITM within 8 days of the date on which the invoice concerned was sent, under penalty of forfeiture of the right to dispute.
A dispute of the invoice does not suspend the Hirer's payment obligation.
- If the payment term is exceeded, ITM is entitled to charge default interest on the outstanding amount from the due date until the day of full payment. The default interest is 8% per month.
- ITM, irrespective of the agreed payment conditions, is obliged to provide ITM with sufficient security for payment at the request of ITM. If the Hirer does not comply with this within the set term, it will immediately be in default. In that case, ITM has the right to dissolve the Agreement and to recover its damage from the Hirer.
- In the event of liquidation, bankruptcy, attachment or suspension of payments under Hirer, ITM's claims against Hirer are immediately due and payable.
- If payment has not been made within the agreed payment term, the Hirer will owe ITM all extrajudicial costs. The extrajudicial costs are set at a minimum of 15% of the principal sum, with a minimum of €500. If the actually incurred extrajudicial costs are higher, then the actually incurred costs are due.
- If ITM is wholly or partially successful in legal proceedings, all costs, including but not limited to the costs of legal assistance, bailiff's costs, court fees, costs of an expert, and the like, incurred in connection with these proceedings at the expense of the Hirer.
Article 13. confidentiality
- Without the prior written consent of ITM, the Hirer shall, regarding the content of the Agreement and all data relating thereto in the broadest sense of the word, which it requests within the framework of the Agreement or prior to it for statements or Quotations by ITG or a third party. informed or come to his knowledge, do not make any announcements to third parties, unless the normal performance of the Agreement expressly requires that this information be disclosed to third parties.
- The Hirer is free to directly oblige the Worker to secrecy. The Hirer informs ITM of its intention to do so and provides ITM with a copy of the relevant provisions.
Article 14. Dissolution
- Subject to the provisions of the law, the Hirer is legally in default in the cases referred to below and ITM is entitled to dissolve the Agreement in whole or in part without further notice of default or judicial intervention, without prejudice to ITG's right to compensation and regardless of the nature or the extent of the shortcoming or its significance;
- if the Hirer is declared bankrupt or (provisional) suspension of payments is granted, or if an application for one of these cases is submitted.
- If the Hirer transfers, liquidates or shuts down control over his company or a part thereof in whole or in part, or if the business operations are discontinued in any other way;
- if the goods of the Hirer or parts thereof are subject to a prejudgment or enforcement attachment.
- The claims of ITM on the Hirer existing after the dissolution, including the claim for compensation, are immediately due and payable in full.
Article 15: Applicable law and choice of forum
- The Agreement is exclusively governed by Dutch law.
- All disputes arising directly or indirectly from the Agreement(s) concluded with ITM will in the first instance be submitted to the competent court of the Northern Netherlands district, Assen location.
- The provisions of paragraph 2 of this article in no way affect ITM's right to apply at all times to the competent court of the place where the Hirer is established. Unless the parties agree otherwise, the proceedings will be conducted in the Dutch language.