General Terms and Conditions HR Help
Version November 2020
Article 1 Definitions and Applicability
1.1 The definitions below starting with a capital letter have the following meanings in the context of these General Terms and Conditions:
Agreement: the Agreement between the Client and HR Help;
Clause: a clause in this General Terms and Conditions;
Client: the natural person or legal entity that engages HR Help to perform Services;
General Terms and Conditions: these general terms and conditions of HR Help;
HR Help: the sole proprietorship HR Help, located at Wodanstraat 5 Almere, (Commercial Trade Register number 69913919)
Parties: Client and HR Help together;
Party: Client or HR Help individually;
Services: all work and services performed by HR Help under or in relation to the Agreement;
Worker: a natural or legal person working at, for or on behalf of HR Help, whether on the basis of an employment contract, freelance contract or otherwise.
1.2 These General Terms and Conditions apply to: all offers, quotations, Agreements and legal relations, by whatever name, by which HR Help binds itself to perform Services for the Client, as well as to all Services arising therefrom for HR Help. These General Terms and Conditions will also apply to any additional or follow-up contracts for Services awarded by the Client to HR Help.
1.3 Derogations from and additions to the Agreement and/or these General Terms and Conditions will be valid only if they have been agreed in writing.
1.4 If any term or condition in these General Terms and Conditions differs from a term or condition in the Agreement, the term or condition included in the Agreement will take precedence.
1.5 Natural persons and legal entities involved directly or indirectly or in whatever way in the provision of Services to the Client by or on behalf of HR Help, whether or not under an employment contract, may also rely on the contents of and rights under the Agreement and these General Terms and Conditions.
1.6 HR Help is entitled to amend these General Terms and Conditions unilaterally. Should an amendment have been made within three months after conclusion of the Agreement between the Client and HR Help, the Client will have the right to terminate the legal relationship. The Client may exercise this right only until one month at the latest after the amended General Terms and Conditions have entered into effect.
1.7 Should any provision of these General Terms and Conditions or of the Agreement be wholly or partially null and void and/or invalid and/or unenforceable pursuant to any statutory provision, court judgment or otherwise, this will have no consequence whatsoever for the validity of all other provisions of these General Terms and Conditions or the Agreement. In this case, the Parties shall agree on a provision with the same purpose that is valid and that approaches the wholly or partially null and void or nullified provision as closely as possible.
Article 2 Formation of the Agreement
2.1 The Agreement will be formed at the time HR Help and Client have signed the Agreement. If the Agreement has been agreed orally, or if the Agreement has not (yet) been signed and received, the Agreement will deemed to have been concluded subject to applicability of these General Terms and Conditions at the time HR Help has started performing the Agreement at the Client’s request.
2.2 All Agreements will be accepted and performed exclusively by HR Help and not by or on behalf of an individual Worker or subcontractor. Application of Sections 404, 407(2) and 7:409 of Book 7 of the Dutch Civil Code (BW) is excluded.
Article 3 Obligations of the Client
3.1 The Client must make all information available to HR Help which, in HR Help’s opinion, it needs for correct performance of the Agreement, in the desired form in the desired way and in time.
3.2 The Client warrants that the information it provides is accurate, complete and reliable, even if they have come from third parties, in so far as not otherwise ensuing from the nature of the Agreement.
3.3 Additional costs, additional hours, as well as other damage and/or loss for HR Help due to the fact that the Client has not complied with the obligations referred to in this Clause will be at the Client’s expense and risk.
3.4 The Client indemnifies HR Help for damage and/or loss resulting from inaccurate or incomplete information it provides.
Article 4 Provision of Services
4.1 HR Help will perform the Agreement to the best of its ability and with due observance of the applicable laws. HR Help cannot however warrant the achievement of any intended result.
4.2 HR Help will determine the way in which the Agreement is performed and by which Worker(s).
4.3 HR Help will be entitled to have Services performed by a third party to be designated by HR Help.
4.4 Time-limits within which the Work must be finished will only be considered deadlines if the Parties have explicitly agreed this in writing.
Article 5 Prices and Payment
5.1 The costs of performance of the Agreement by HR Help comprise HR Help’s fee, the expenses incurred by HR Help and the expense claims of one (or more) of the third parties engaged by HR Help.
5.2 Except to the extent explicitly agreed otherwise with the Client, the fee will be determined on the basis of time spent and the hourly rate applicable to the Worker in question.
5.3 The applicable hourly rate will be determined on the basis of the hourly rate determined periodically by HR Help.
5.4 If after conclusion of the Agreement, but before the Services have been completely performed, fees or prices change, HR Help will have the right to adjust the agreed fees, unless explicitly agreed otherwise.
5.5 HR Help is entitled to require an advance payment before Services are performed. An advance payment will be deducted at the end of the Agreement.
5.6 All prices quoted or mentioned by HR Help are exclusive of turnover tax (VAT). VAT will be charged separately on all amounts due from the Client to HR Help if the law so requires.
5.7 Payments by the Client of the amounts owed to HR Help must be made within 14 days of the invoice date, without the Client having a right to any deduction, discount, suspension or setoff.
5.8 If the Client has not paid within the applicable payment period, the Client will be in default by operation of law and HR Help will be entitled to charge statutory (commercial) interest from that time.
5.9 If the Client has not paid within the applicable payment period, the Client will be required to reimburse all judicial and extrajudicial (collection) costs actually incurred by HR Help. Reimbursement of the costs incurred will not be limited to any order of costs pronounced by a court.
Article 6 Force Majeure
6.1 If a Party fails to comply, does not comply in time or is unable to comply properly with one or more obligations under the Agreement and/or these General Terms and Conditions as a result of force majeure within the meaning of Section 75 of Book 6 of the Dutch Civil Code, those obligations will then be suspended until the time that Party is finally able to comply in the agreed way.
6.2 If the situation as referred to in paragraph 1 of this article continues for more than ninety days, the other Party will have the right to terminate the Agreement wholly or partially in writing and with immediate effect, without the existence of a right to any compensation.
6.3 If HR Help has already complied wholly or partially with the agreed obligations at the start of the force majeure situation, HR Help will be entitled to invoice the Services performed separately and in the interim, and the Client must pay this invoice as if it related to a separate transaction.
Article 7 Liability
7.1 HR Help will only be liable for loss of the Client that is the direct result of a failure attributable to HR Help to perform the obligations arising for it from Article 5 paragraph 1, with exclusion of the provisions in Book 7, Section 407(2) of the Dutch Civil Code.
7.2 HR Help will not be liable for damage and/or loss arising for the Client because the Client has not provided HR Help with any, or with incorrect or incomplete information, or because the Client did not deliver information in time.
7.3 HR Help will not be liable for any consequential loss, trading loss or indirect loss that is the result of non-performance, late or improper performance by HR Help.
7.4 If performance of the Agreement entails that HR Help will engage a person not employed by HR Help, HR Help will not be liable for the acts or omissions of this person.
7.5 HR Help’s liability will be limited at all times to compensation of direct loss that is directly the result of a (connected series of) attributable failure(s) in performing the Agreement. This liability for direct loss will be limited to the amount paid out by HR Help’s liability insurer in the particular case, plus any excess to be borne by HR Help on the basis of the insurance.
7.6 If, for whatever reason, the liability insurer does not proceed to pay, HR Help’s liability will be limited to the amount of the fee charged for performance of the Agreement. If the Agreement is a continuing performance contract with a term of more than one (1) year, the above-mentioned amount will be set at once the amount of the fee charged to the Client in the six months prior to the occurrence of the loss. Under no circumstances will the total compensation of the loss under this paragraph amount to more than €12.000 for one or more attributable failures.
7.7 A connected series of attributable failures will count as one (1) attributable failure.
7.8 The limitations of liability included in this article will not apply if and in so far as there has been intent or willful recklessness on the part of HR Help or its executive management.
7.9 The Client must take measures to limit the damage and/or loss. HR Help will have the right to undo or limit the damage by repairing or improving the Services performed.
7.10 The Client indemnifies HR Help for claims of third parties (including Employees of HR Help and third parties engaged by HR Help) who suffer damage and/or injury in connection with performance of the Agreement, which damage and/or injury is the result of the acts or omissions of the Client or of unsafe situations in its company or organization.
7.11 HR Help will not be liable for damage to or destruction of information or data.
Article 8 Termination
8.1 The Client and HR Help may at all times (partly) terminate the Agreement (in the interim) without observing a notice period by giving notice to the other Party by registered post. If the Agreement ends before the Services have been completed, the Client will owe the fee in accordance with the hours indicated by HR Help for Services performed for the Client.
8.2 In the event of (interim) termination, HR Help will be entitled to compensation of the loss resulting from lower capacity utilization on its part, to be made plausible, as well as to compensation of additional costs HR Help has already incurred, and to compensation of costs arising from possible cancellation of third parties engaged. The preceding sentence will not apply in the event of intent or willful recklessness on the part of HR Help. This Clause also applies to a reduction of Services agreed between HR Help and the Client, which is considered as termination of part of the Agreement.
8.3 If HR Help has proceeded to terminate (in the interim), the Client will be entitled to cooperation by HR Help in the transfer of Services to third parties, unless there has been intent or willful recklessness on the part of the Client owing to which HR Help feels compelled to terminate. A condition for the right to cooperation as stipulated in this paragraph is that the Client has paid all underlying outstanding advances or all expense claims.
Article 9 Intellectual Property Rights
9.1 Performance of the Agreement by HR Help does not also entail the transfer of intellectual property rights vested in HR Help. All intellectual property rights created during or arising from performance of the Agreement will be vested in HR Help.
9.2 The Client is explicitly prohibited from reproducing, disclosing or exploiting the products in which HR Help’s intellectual property rights are established, or products in which intellectual property rights are established in relation to the use for which HR Help has acquired rights of use (including in any case, but not limited to: computer programs, systems, system designs, working methods, advice, (model) contracts, reports, templates, macros and other products of the mind).
9.3 Without prior, explicit written permission from HR Help, the Client will not be allowed to make the products referred to in paragraph 2 of this article available to third parties. This will not apply in the event that the Client wants to obtain an expert opinion on the performance of the Services by HR Help. In that case, the Client must impose its obligations under this Clause on the third parties engaged by it.
Article 10 Confidentiality
10.1 HR Help shall maintain the confidentiality of data and information provided by or on behalf of the Client with respect to third parties who are not involved in performing the Agreement.
Article 11 Personal data
11.1 In all cases in which HR Help acts as a processor of personal data for the Client as controller in the context of the Agreement, the Module Processing Agreement as included in these General Terms and Conditions will be applicable to that processing, unless a separate processing agreement is concluded with respect to that processing.
11.2 The provisions of the Module Processing Agreement or the processing agreement are higher in rank than (all other provisions of) these General Terms and Conditions.
Article 12 Miscellaneous
12.1 The Client shall not be entitled to assign any of its obligations under the Agreement to third parties without HR Help's prior written consent.
12.2 The District Court in Amsterdam, the Netherlands, shall have exclusive authority to hear and decide on all disputes relating to these General Terms and Conditions and ensuing Agreements. This shall not prejudice HR Help's right to submit the dispute to the Court which has jurisdiction in the Client's place of residence or establishment.
12.3 All agreements with HR Help and ensuing obligations shall be governed exclusively by the laws of the Netherlands.
Article 13 Module Processing Agreement
13.1 Capitalized words in this Clause have the same meaning as definitions in article 4 of the General Data Protection Regulation (“GDPR”).
Purpose of processing Personal Data
13.2 The Processor will process Personal Data on behalf of the Controller in the context of the Agreement. The Processor will process Personal Data exclusively on the written instructions of, in accordance with the processing purposes and with the means as determined by or in cooperation with the Controller, unless the Processor must act differently pursuant to applicable laws and regulations.
13.3 The Controller warrants the (monitoring of) correctness, completeness and lawfulness of the acquisition and processing of the Personal Data.
Obligations of the Processor
13.4 The Processor must observe the conditions set on the basis of the GDPR on its role and the Processing of Personal Data. The Controller will enable the Processor to comply with the GDPR - in particular Article 28 GDPR.
Processing and transmission of Personal Data
13.5 The Processor will Process the Personal Data in countries within the European Economic Area or in case of transmission: in accordance with Chapter V GDPR, whereby account will be taken of an adequate level of protection.
Use of Sub-processors
13.6 After prior permission from the Controller, the Processor may use a third party (Sub-processor) for the Processing of Personal Data. Prior permission from the Controller will be deemed to have been given if no essential change occurs in the manner of, and guarantees for, the Processing of Personal Data. In case of an essential change, the Processor will inform the Controller of the intended (change of) Sub-processor, to which the Controller can lodge objection, with reasons and on reasonable grounds, as soon as possible, but within 7 days after having been informed to that effect.
13.7 The agreement between the Processor and the Sub-processor will be governed by Article 28(4) GDPR.
13.8 Notwithstanding the Controller’s obligations under Articles 32-36 GDPR, the Processor, as it sees fit and in accordance with Article 32 GDPR, will take appropriate technical and organisational measures for the Processing of Personal Data, in order to guarantee a level of security appropriate to the risk, taking account of the risks presented by processing.
13.9 The Controller will inform the Processor immediately of each change to the risks and risk categories of the Personal Data to be processed.
Record of processing activities
13.10 If Article 30 GDPR so requires, in accordance with Article 30(2), the processor will keep a written record of processing activities as specified therein.
13.11 On request, the Processor will give the Controller the opportunity once a year to have an audit conducted of compliance with the Processor’s obligations under this Module and/or Article 28 GDPR (Audit). All costs of the Audit will be borne by the Controller, unless the audit shows that the Processor has failed attributably to comply with its obligations under this Module.
13.12 The Audit by the Controller - if desired assisted by a certified auditor, subject to the obligation of confidentiality - will take place on an agreed date and at an agreed time and in such a way that the Processor will experience as little nuisance as possible from it. The Processor will receive a (unrestricted) copy of the Audit report. The Audit report is strictly confidential and may be disclosed only after prior explicit permission from the Processor. The Processor and Controller will assess in consultation whether the Processor must make changes in order to comply with the mandatory legislation applicable at the time to the protection of Personal Data and who will bear the costs involved, unless the audit shows that the Processor has failed attributably to comply with its obligations under this Module.
Obligation to notify Personal Data Breaches
13.13 If the Processor is aware that a Data Breach has occurred or is occurring at the Processor or a Sub-Processor, it must notify the Controller of the Data Breach without delay, but in any case within 48 hours after the first discovery of it, stating (i) the nature of the Data Breach, where possible mentioning categories and numbers of Data Subjects (ii) the likely consequences of the Data Breach and (iii) the measures the Controller or third parties can take to limit or end the present and future adverse consequences of the Data Breach.
Assisting the Controller
13.14 If the Controller needs assistance from the Processor in relation to:
a. the exercise of rights of a Data Subject in accordance with Chapter III GDPR; and/or
b. compliance with the Controller’s obligations under Articles 32-36 GDPR, the Processor will then provide this assistance, in so far as reasonably possible, under the conditions as laid down in the GDPR. If the request for assistance as referred to in this Clause entails such high costs and/or workforce that the Processor cannot reasonably be required to bear the costs of this itself, the Controller will then reimburse these costs.
Duty of Confidentiality
13.15 The Processor must observe the confidentiality towards third parties of the Personal Data in its possession in the context of this Module, unless an applicable statutory provision, code of conduct or professional code or court order requires it to disclose them, or if this necessarily ensues from the Agreement.
13.16 The Processor will require its staff members and Sub-processors, if any, to observe confidentiality in accordance with this Clause.
Term and termination
13.17 This Module will also remain in force after the end of the Agreement, if and for as long as the Controller provides or processes Personal Data. After the Agreement ends, at the Controller’s discretion, the Processor will: (i) copy, (ii) erase, (iii) return (whether or not by way of a back-up file) the Personal Data and files received, unless retention or storage is necessary for the Processor pursuant to a statutory obligation (for a specific time).
13.18 The liability regime as agreed by the Parties in the Agreement and/or General Terms and Conditions also applies to this Module, except in so far as there has been (i) an intentional act or omission or gross negligence on the part of the Processor, (ii) violation proved to the Controller of an obligation to which the Processor is specifically subject under the GDPR, and (iii) actions by the Processor in conflict with the lawful instructions of the Controller.
13.19 In case a third party (including: a Data Subject) submits a claim (for compensation) to the Controller in connection with the Processing of Personal Data under this Module (“Third-party Claim”), the Controller must inform the Processor of this immediately and allow full inspection of the facts and documents known to it.
13.20 In its defence against the Third-party Claim, the Controller must always consider the reasonable and legitimate interests of the Processor, and inform the Processor of each procedural action and consult with it about the strategy to be followed. The Controller may only agree to an arrangement, settlement, judgment or other measure relating to a Third-party Claim after prior written permission from the Processor; the Processor will not withhold such permission on unreasonable grounds.
13.21 In case a third party (including: a Data Subject) submits a claim (for compensation) to the Processor in connection with the Processing of Personal Data under this Module, when asked, the Controller must cooperate in providing relevant data regarding the Processing or otherwise in order to enable the Processor to defend itself adequately against claims (for compensation) of Data Subjects and/or third parties.