1.1 The General Terms and Conditions of SECUREX NEDERLAND B.V. (Private Limited Company),
hereinafter referred to as “SECUREX”, shall govern any services SECUREX furnishes the client with within the framework of the agreements that were concluded between the client and SECUREX.
1.2 Save for any provisions to the contrary expressly accepted by SECUREX, the general terms and conditions operated by the client shall be inapplicable. Unless stipulated otherwise, the present general terms and conditions shall govern any future annexes and other documents that may be(come) part of the agreement. These present general terms and conditions, together with the special conditions of any agreement, shall constitute the agreement (hereinafter referred to as “the Agreement”) binding the parties. The client declares himself to have taken cognizance of these general and special conditions and to accept them in full.
Article 2 – Obligations incumbent on the parties
2.1 Vis-à-vis the client, SECUREX undertakes to make every effort to supply the services described in the special conditions (standard services and, where applicable, optional services) to the best of its ability and in line with the type of agreement that has been concluded with the client.
As to these services, SECUREX undertakes to, vis-à-vis the client and in the latter’s name and on the latter’s behalf, perform any administrative and financial transactions and formalities of a social and fiscal nature arising from his capacity as an employer with the Tax Administration, and where applicable, with the Employee Insurance Schemes Implementing Body (UWV). In this context, SECUREX shall act as the authorized representative of the client to whom it shall provide with assistance and the relevant information. The client accepts that SECUREX should furnish him with the relevant information by electronic means, notably via its website. In any of the other cases, SECUREX shall act as a services company bound by an agreement to provide services.
SECUREX undertakes to furnish the contractual services in conformity with the prevailing laws and regulations, the present general terms and conditions, and with due regard for the information the client has provided, and where applicable, the latter’s instructions.
2.2 The client undertakes to fulfil his obligations in accordance with the Agreement and more
specifically the financial obligations incumbent on him referred to in article 4. The client undertakes to, within the time limits imposed, furnish SECUREX with all the relevant information the latter may need to perform its obligations by means of an electronic data medium put at the client’s disposal or by means of any other data medium SECUREX may deem acceptable. The use of non-electronic data media for communication purposes may result in additional costs which shall be passed on to the client.
Article 3 – Powers of attorney
3.1 The client grants SECUREX a power of attorney to fulfil the formalities referred to in article 2.1 with the Tax Administration and, where applicable, the UWV.
3.2 The client authorizes SECUREX to, on his behalf, furnish his bookkeeper, accountant or auditor with all the relevant accounting, financial or tax details and information. Where necessary, the client shall grant SECUREX a special power of attorney to represent him and/or to guarantee the transfer of information or data to third parties (employees of the client, private or public organizations…).
3.3 In cases where the client is a foreign company employing staff in the Netherlands, the former shall be obliged to appoint an authorized representative, domiciled in the Netherlands, whose details shall be specified in the special conditions.
Article 4 – Financial terms and conditions
4.1 Remuneration
In consideration of the services SECUREX provides the client shall pay SECUREX the fees agreed upon in the special conditions. The fees shall, for every individual client, be fixed at the moment the Agreement is signed. Save otherwise provided in the special conditions, the fees shall be fixed per salary calculation and per month, on a flat-rate basis and in accordance with the parameters described in the special conditions. All fees are quoted exclusive of VAT. SECUREX reserves the right to amend its fees on an annual basis in line with the parameters described in the special conditions. As the fees are linked to the consumer price index (CPI) as fixed by CBS (base index = 2004), any change in said index of 2 points shall lead to a corresponding adjustment of the fees. The amount thus obtained for the following year shall, unless otherwise specified in the special terms, be increased by a maximum of 3 %. Unless otherwise provided for by mandatory provisions, SECUREX reserves the right to adjust the aforementioned fees at any time if an amendment to the laws and regulations, collective bargaining agreements included, were to lead to an increase in its costs ensuing from its
social and tax obligations.
4.2 – Surcharges
Any additional services the client may ask for which are not included in the contractual services described in the special conditions may give rise to additional costs and/or surcharges. These additional services shall comprise any optional services described in the special conditions and any additional services SECUREX may offer. The exact additional cost and/or surcharges can be obtained from SECUREX.
4.3 – Payment
The amounts owed by the client, fees and costs included, shall be paid to SECUREX by the due date specified on the payment message.
Where payments are issued because of the address for service having been elected at SECUREX, the client’s bank account shall be debited within a period of three (3) days of the corresponding payment message having been sent out. Any amounts the client may owe the organizations referred to under article 3.1 shall be paid by transfer. Complaints regarding payment messages shall be made by substantiated, registered letter addressed to SECUREX and within fifteen (15) calendar days of the date of the payment message in question. Any non-payment or delay in the payment of fees shall give rise to reminders and formal notices, the cost of which the client shall be obliged to cover in full.
Without prejudice to article 7.3, SECUREX shall furthermore be entitled to suspend all or part of its services if the outstanding fees have not been settled within 15 days of a second reminder to pay having been sent out. The first reminder to pay issued by SECUREX shall give rise to an increase in the principal amount by the statutory commercial interest rate ex 6:119a CC, calculated as of the due date, and to fixed damages of ten (10) % of the principal amount or € 100, whichever amount is the highest.
Article 5 – Liability
5.1 The client shall be solely responsible vis-à-vis private and public organizations, employees and third parties for the obligations SECUREX, in its capacity of authorized representative, has fulfilled within the framework of the present agreement. On no account shall the services SECUREX has furnished release the client from his responsibility as an employer. The client guarantees the accuracy of the information and data communicated to SECUREX. The client is obliged to notify SECUREX in writing of any inaccuracies in the information or data concerning him and forwarded to SECUREX as soon as possible and in any case within five (5) days of the date at which he took cognizance or should have taken cognizance of the incorrect information or data in question. On no account shall SECUREX be held responsible for any damage, such as surcharges and/or interests, that may ensue
from the inaccuracy or the non-submission of information that was relevant to or necessary for the services SECUREX has provided.
5.2 SECUREX cannot be held accountable for any damage, including surcharges and/or interests, that may ensue from the non-performance of the obligations incumbent on the client described in the Agreement, among which any late performance or non-performance of the latter’s financial obligations vis-à-vis private or public organizations. SECUREX shall decline all liability for any consequences ensuing from the non-performance or delay in the performance of its obligations if said non-performance or delay in performance is the result of a request to amend its services, a request for additional services or circumstances beyond its control. On no account shall the fact that SECUREX furnishes the client with information, opinions or advice be construed as SECUREX substituting itself for the client, who shall be deemed to be the sole decision maker and to assume full liability for any actions taken subsequently. SECUREX shall furthermore not be held liable for the use the client makes of the information SECUREX passes on or for the client’s non-implementation or defective
implementation of the information, recommendations, opinions, or advice offered by SECUREX or in respect of which SECUREX would have expressed reservations. In this respect, the opinions and advice furnished by SECUREX shall be construed as basic opinions or general advice (such as notably oral opinions, opinions in the form of “FAQ” or standard documents), with the exception of express and written requests from the client for a, tailored, written opinion or written advice, a second opinion, or an opinion from a specialized consultant within the SECUREX Group (Extended Services, etc.). SECUREX cannot under any circumstances be held responsible for the fact that the client has failed to consult the information he was furnished with by electronic means or the information that was
published on the SECUREX website. SECUREX furthermore declines all liability for any
decisions the client may take without notifying SECUREX. Without prejudice to the provisions of the present article, any liability on the part of SECUREX in relation to the Software put at the client’s disposal is described in article 6.
5.3 Liability on the part of SECUREX for any damage the client may sustain because of an
attributable failure in the performance of one of SECUREX’s obligations, including any failure in the performance of a pre-agreed guaranteed obligation or warranty or of any other nature, irrespective of the services concerned, shall in all cases be limited to the direct damage. Direct damage shall be exclusively construed as: a) the costs the client incurred as a result of being obliged to keep his old system or systems and any associated facilities operational because SECUREX failed to deliver by the delivery date binding on it, less any savings ensuing from the belated service; b) reasonable costs incurred in establishing the cause and extent of the loss, insofar as the assessment relates to direct loss within the meaning of this article; c) reasonable costs incurred to prevent or limit the loss, insofar
as the recipient can demonstrate that the costs in question have resulted in the limitation of direct loss within the meaning of this article. Losses resulting from death or physical injury excepted, SECUREX’s total liability shall be limited to the total amount of the fees (excl. VAT) the recipient has paid during the twelve (12) months preceding the harmful event.
5.4 SECUREX’s liability for indirect losses, consequential losses, loss of profits, fines or the
retrospective collection of taxes, savings foregone, loss of goodwill, losses ensuing from the
stagnation of business, losses arising from claims from the client’s clients, losses ensuing from SECUREX having used third-party equipment or software specified by the client and any losses arising from SECUREX having called on suppliers specified by the client shall be excluded. On no account shall SECUREX be held liable for losses ensuing from the careless use of the service, such as the incorrect implementation of the segregation of functions, the incorrect management of passwords or misuse. Neither shall SECUREX be held liable for the mutilation, destruction or loss of data or documents.
5.5 Liability on the part of SECUREX for an attributable failure in the performance of an agreement shall only arise if the client forthwith issues SECUREX with formal notice in writing, setting a reasonable period of time for the failure to be redressed and SECUREX remains in breach of its obligations even after that period has expired.
5.6 Any claim for damages against SECUREX shall be extinguished by the mere lapse of twenty-four months after the claim has arisen.
Article 6 – Software
6.1 SECUREX shall be entitled to put computer software at the client’s disposal, where appropriate under different names and in different versions which may change over the course of time, including the SECUREX website(s), their content and their terms and conditions of use, which are available online (hereinafter, “the Software”). The Software may among other matters enable the client to manage the identification data of his employees and to transmit data to SECUREX within the framework of the Agreement and, depending on the versions and/or options, may come with additional functionalities and modules for the management of the client’s personnel. Depending on the versions and options chosen, the use of the Software may either be included in the fees or be subject to surcharges. The terms and conditions of use governing the Software as communicated to the client by SECUREX and/or put at the former’s disposal by electronic means, and which may be amended over the course of time, shall form an integral part of the Agreement. By virtue of the fact that the client uses the software SECUREX put at his disposal, he unreservedly undertakes to abide by its terms and conditions of use.
6.2 The intellectual property rights on the Software appertain to SECUREX, its suppliers or partners. Unless expressly indicated otherwise, the Software shall be put at the client’s disposal by distance communication via an electronic communication network, with the result that it does not need to be installed on the client’s computers. This means that any full or partial reproduction, modification, adjustment or decompilation of the Software is strictly prohibited, as are communications about or presentations on the software to third parties.
6.3 SECUREX shall not assume any responsibility for any problems with the infrastructure (such as hardware, (utility) software…) the client may own which may cause the Software not to function properly. SECUREX shall furthermore not be held accountable for any damage or costs ensuing from transmission errors, malfunctions, or the non-availability of the Software. In all cases, SECUREX’s liability for any damage that may directly or in any other way ensue from the use or a malfunction of the Software or from negligence on the part of the supplier of the Software shall be limited to the damages SECUREX can claim from the supplier of the Software or a third party, which the supplier of the Software settled with SECUREX.
6.4 The client undertakes to ensure the security of the means of access to the Software SECUREX has supplied him with (such as login, password, etc.) and not to disclose them to third parties on any account. The client shall assume sole responsibility for the management of the access to the Software by his staff or any other persons under his authority. SECUREX shall be entitled to limit the number of users who can simultaneously access the Software. SECUREX shall decline all responsibility in the event the Software is used by third parties using the client’s means of access.
6.5 The client shall abide by the instructions, guidelines and recommendations furnished by
SECUREX regarding the use of the Software. On no account shall SECUREX be liable for any
damage the client, or third parties may sustain because of the Software not having been used in accordance with SECUREX’s instructions. The client shall compensate SECUREX for any damage that may arise from the Software not having been used in conformity with SECUREX’s instructions, and notably for any additional services SECUREX may be required to furnish to remedy the consequences of said non-conform use.6.6 SECUREX uses reasonable means and makes every effort to safeguard the data the client has communicated by means of the Software or which the client has saved in the Software and to guarantee the reliability, completeness, security and accuracy of the Software with due regard for the foregoing. SECUREX does not furnish any guarantees regarding the Software and does not give any undertakings as regards the availability, the conformity with a specific use or the specific expectations of the client, or the Software’s service levels. On no account shall SECUREX be held liable for any damage the client, or third parties may sustain because of the use of the Software. In all cases, even in the event of gross negligence on the part of SECUREX, the limit of liability specified in article 5 shall apply.
6.7 The client’s right to use the Software shall automatically expire on the expiry date or on termination of the agreement, whatever the reasons. SECUREX reserves the right to fully or partially suspend the client’s right of access to the Software if SECUREX has sound reasons to believe that the client does not adhere to the conditions set forth in the present Agreement.
Article 7 – Duration and end of the Agreement
7.1 The present Agreement shall come into effect on the date specified in the special conditions and is concluded for an indefinite period of time, though for a minimum of one calendar year, extended by the period between the signing of the Agreement and the subsequent first day of January, save otherwise stipulated in the special conditions.
7.2 Either party shall be free to terminate the Agreement subject to issuing the other party with three (3) months’ prior notice served by registered letter, on the understanding however that said termination shall only take effect once the minimum period has expired or, thereafter, once the calendar year following the end of the notice period has come to an end.
7.3 If the client were to default on his obligations ensuing from the present Agreement, or part thereof, and more specifically, if the client fails to furnish the relevant information or documents by the specified deadlines or fails to comply with all or part of his financial obligations referred to in article 4, SECUREX shall, once the client has failed to act on its formal notice within a period of fifteen (15) calendar days, be entitled to terminate the Agreement as soon as the current quarter has come to an end.
7.4 If either one of the parties were to go into liquidation, were to be dissolved or would cease trading, the other party shall automatically and without further formalities be entitled to consider the Agreement terminated, unless otherwise stipulated by law.
7.5 The client shall ipso jure pay SECUREX a fixed indemnity equal to three (3) months’ fees, as
referred to in article 4.1, without prejudice to SECUREX’s right to seek redress for the actual damage it has sustained in any one of the following cases:
Article 8 – Personal data
8.1 The client, who at all times remains responsible for the processing, shall see to the accuracy and relevance of the personal data transmitted to SECUREX, and to their conformity with the prevailing laws and regulations. The responsibility of SECUREX shall be limited to the application of the rules specified hereafter, which shall be regarded as the applicable data processing agreement: SECUREX shall ensure that access to the data and the processing opportunities for the persons working under its authority shall be limited to what said persons need to perform their duties or to what is required to perform the service.
8.2 SECUREX shall ensure that the persons acting under its authority are au fait with the provisions of the applicable privacy laws and regulations.
8.3 On no account can SECUREX be held liable for any damage that may arise from a third party or the supplier of the Software disclosing the personal data and confidential information the client communicated in the Software.
8.4 SECUREX shall ensure that any persons who have access to personal data shall only be able to obtain and process these at the client’s instructions, in a proper and careful manner in line with the applicable privacy laws and regulations, without prejudice to the statutory obligations.
8.5 To guarantee the security of said personal data, SECUREX shall take all the technical and
organisational measures that may be required to protect the personal data against accidental or unauthorised destruction, against accidental loss and against modification, access and any other form of unauthorized processing of said personal data. By taking these measures, SECUREX aims to offer an effective level of protection considered the state of technology and the cost ensuing from the implementation of said measures, on the one hand, and the nature of the data to be protected and the possible risks, on the other hand.
8.6 The client expressly authorizes SECUREX to forward any personal data that are relevant to and useful for the performance of the present Agreement or of any other individual agreements that may be concluded between the client and any other legal entities to these legal entities constituting the economic entity of the SECUREX Group, as referred to in article 2:24b CC. The client (and, as the case may be, any person concerned) is entitled to at any time demand access to the data he transmitted to SECUREX, to have the data in question rectified or deleted by putting in a request to that effect by letter or e-mail to his administrator. The client hereby authorizes SECUREX and any other entities of the economic entity of the SECUREX Group to, once the personal data transmitted to SECUREX has been rendered anonymous, use them for statistics on the functioning of their services.
8.7 The client guarantees that the data SECUREX processes on his behalf shall be irrevocably
deemed to correspond to the data the client has furnished unless an opinion to the contrary is delivered within five (5) days of SECUREX having processed the data.
Article 9 – Miscellaneous provisions
9.1 Any amendment to the Agreement shall be set out in a separate annex.
9.2 Neither party shall be authorized to transfer the rights and obligations ensuing from the Agreement in part or in full without having obtained the other party’s prior consent in writing.
9.3 Any event that may arise, such as power cuts, computer downtimes, interruptions to orders, transport or deliveries, strikes, lockouts, terrorist attacks, adverse weather conditions and, more in general, any commensurate natural phenomenon that may affect the parties which delays or renders the performance of their respective obligations impossible, shall suspend the performance of their respective obligations. The party invoking any such event shall furnish the other party with proof to that effect as soon as possible. The performance of the obligations shall be suspended until the end of the event has been announced and on the understanding that neither party shall be entitled to claim damages from the other party. The parties shall do everything in their power to inasmuch as possible limit the difficulties and/or damage caused. If the event of force majeure persists for more than sixty (60) consecutive days, the parties shall do everything in their power to renegotiate the further
performance of the Agreement. In the absence of an arrangement, either party shall be entitled to terminate the Agreement by notifying the other party to that effect in writing.
9.4 The nullity or inapplicability of any one provision of this Agreement shall not in any way affect the validity or the applicability of the other provisions. In that case, the parties undertake to replace the null and void or inapplicable provision with a valid provision which, from an economic point of view, approximates the null and void or inapplicable provision as closely as possible.
9.5 The present general terms and conditions, together with the special conditions of the Agreement, including the annexes, if any, shall constitute the full agreement between the parties on the subject matter described therein. The present agreement replaces any earlier agreements, in writing or otherwise, on the subject matter of the present agreement.
9.6 Derogations or the non-enforcement of any one provision of the present general or special conditions shall not be construed as a waiver of that right regarding the provision in question or to any other provisions of these general and special conditions, which shall remain in full force and effect.
9.7 If the present general terms and conditions are amended, the client shall be furnished with a new version of these general terms and conditions via a suitable data medium, for instance by electronic means, in which case said latest version shall replace the former version, unless the parties decide otherwise by common agreement.
Article 10 – Applicable law and jurisdiction
10.1 The present Agreement is exclusively governed by Dutch law, to the exclusion of the Vienna Sales Convention.
10.2 Any dispute arising from the present Agreement, negotiations, interpretation, performance and termination of same included, shall exclusively be submitted to the Court of Midden-Nederland in Utrecht, for adjudication.