General Terms and Conditions
In this Agreement the following definitions apply;
“NAC”: Means NEW AMSTERDAM CAPITAL B.V. (company no. 62696645) whose registered office
address is at Keizersgracht 555, 1017 DR, Amsterdam, the Netherlands;
“Candidate”: Any person Introduced to the Client to be considered by the Client for Engagement;
“Client”: XXXX (company no. XXXX) whose registered office address is at XXXX, XXXX, XXXX;
“Data Protection Laws”: The Dutch Personal Data Protection Act (“Wet Bescherming Persoonsgegevens”), any applicable statutory or regulatory provisions and All European Directives and regulations in force from time to time relating to the protection and transfer of personal data;
“Engagement”: The employment, engagement, hire or other use, directly or indirectly, of a Candidate on a permanent, temporary or other basis, whether under a contract of service or contract for services, or under an agency, licensee, franchise, partnership agreement or otherwise, and “Engage”, “Engaging” and “Engaged” shall be construed accordingly;
“Introduction”: Directly or indirectly introducing a Candidate by way of CV, interview, meeting or referral, by telephone or otherwise, following the Client’s instruction to NAC to search for a Candidate, and "Introduce", "Introducing" and "Introduced" shall be construed accordingly;
“Fee”: The fee payable to NAC by the Client upon any Engagement pursuant to these Terms; and
“Terms”: The terms of this agreement between NAC and the Client.
1 TERMS, TERM, TERMINATION
1.1 All and any business relating to direct permanent recruitment undertaken by NAC is transacted subject to these Terms, all of which shall be incorporated in any agreement between NAC and the Client. If there is any conflict between these Terms and any other terms and conditions, these Terms shall prevail unless expressly agreed otherwise in writing by NAC.
1.2 This agreement shall have a term of one calendar month and shall be effective as from 1 February 2018. This agreement shall be renewed in subsequent periods of 3 months through tacit renewal, unless terminated towards the end of a period by a party by giving a four weeks written notice. These Terms supersede all previous terms and conditions of business of NAC in respect of the subject matter of these Terms whether written, oral or implied.
1.3 Receiving a Candidate’s CV, interviewing or Engaging a Candidate, or a Candidate commencing work for or providing services to the Client or to any Third Party as envisaged under Clause 3.1 (whichever first occurs) shall be deemed acceptance of and agreement to these Terms by the Client.
1.4 After the Client has granted the assignment, NAC will be entitled to use the Client’s name and/or logo in order to support the provision of the services and promotion of NAC and will use social media channels (such as LinkedIn, FaceBook and Twitter).
2 INTRODUCTIONS AND CONFIDENTIALITY
2.1 The Client shall notify NAC immediately:
2.1.1 of any offer of an Engagement which the Client makes to a Candidate;
2.1.2 upon an offer of Engagement being accepted by a Candidate or otherwise upon the commencement of an Engagement (whichever first occurs).
2.2 Notwithstanding Clause 5.2 and without prejudice to Clause 6.3 (if applicable), the Client:
2.2.1 shall satisfy itself as to the suitability of any Candidate for the purposes of the vacancy for which a Candidate has been Introduced;
2.2.2 has sole responsibility for selecting a Candidate for Engagement;
2.2.3 should, NAC recommends, make all offers of Engagement subject to receiving satisfactory references, which the Client should take up directly, and verify to its own satisfaction all statements made by or on behalf of a Candidate, in particular ensuring that any legal, professional body or other requirements relating to (without limitation) training, qualifications, authorisations, professional certification, medical requirements and immigration status, are satisfied.
2.3 Introductions of Candidates and any CV supplied by NAC to the Client are confidential and should not be disclosed to any other person without the prior written consent of NAC. The Client may only use any CV supplied for the purposes of selecting a Candidate for interview and deciding whether to Engage a Candidate. If the Client decides not to Engage a Candidate, the Client hereby undertakes to return all copies of the Candidate's CV to NAC and to remove, delete or destroy all records it may have which include details of or from the CV.
3.1 If the Client:
3.1.1 Engages a Candidate; or
3.1.2 Introduces a Candidate to another person, including (without limitation) any subsidiary, associated or holding company of the Client, (a “Third Party”) resulting in an Engagement by that Third Party at any time within 12 calendar months from the later of:
(a) the Introduction of a Candidate to the Client by NAC; or
(b) the date of a Candidate’s last interview with the Client, the Client shall pay NAC a one-off Fee as specified in the Fees schedule as set out in Exhibit 1 attached hereto.
3.2 All monies due under this Clause 3 shall become due and payable in full by the Client within 14 calendar days[HA1] from the start date of Engagement.
3.3 NAC reserves the right to charge the Client statutory commercial interest on any amount outstanding after the period for payment set out in Clause 3.2 in accordance with the provisions of Articles 119a and 120(2) of Book 6 of the Dutch Civil Code.
3.4 All amounts payable under these Terms are exclusive of value added tax which shall be payable by the Client at the prevailing rate where applicable.
4.1 If a Candidate leaves, is dismissed or the Engagement is terminated (as appropriate) after commencing the Engagement all monies due and payable by the Client under these Terms shall remain due and payable by the Client and there shall be no rebate nor refunds of any fees.
4.2 The exceptions on Clause 4.1 are:
4.2.1 Only if the Candidate decides to leave the Client in the probation period, as agreed with the Client, NAC will deduct 100% of the fee of the next hire replacing this specific Candidate;
4.2.2 Only if the Candidate decided to leave the Client in the first or second month after the probation period, as agreed with the Client, NAC will deduct 50% of the fee of the next hire replacing this specific Candidate;
5 NAC'S OBLIGATIONS
5.1 Save in respect of the authority given under these Terms, NAC has no authority to act for the Client, and, in particular, has no authority to enter into any contract with the Candidate on behalf of the Client.
5.2 NAC will use its reasonable endeavours to Introduce to the Client a suitable Candidate to fill the position which the Client seeks to fill based on the information provided by the Client to NAC on the position, including the type of work a Candidate in that position would be required to do. Whilst NAC will make every effort to maintain a high standard of integrity and an efficient service, NAC gives no warranty as to the suitability of any Candidate.
6 THE CLIENT’S OBLIGATIONS
6.1 The Client warrants and confirms that prior to Introduction it has given to NAC sufficient information in order for NAC to select a suitable Candidate(s) for the position the Client seeks to fill, including but not limited to:
6.1.1 the identity of the Client and, if applicable, the nature of the Client’s business;
6.1.2 the date on which the Client requires a Candidate to commence work and the duration, or likely duration, of the work;
6.1.3 the position which the Client seeks to fill, including, but not limited to, the type of work a Candidate in that position would be required to do, the location at which and the hours during which the Candidate would be required to work, any risks to health or safety known to the Client and the steps the Client has taken to prevent or control such risks;
6.1.4 the experience, training, qualifications and any authorisation which the Client considers are necessary, or which are required by law or by any professional body, for the Candidate to possess in order to work in the position;
6.1.5 any expenses payable by or to the Candidate;
6.1.6 the minimum rate of remuneration and any other benefits which the Client would offer to a person in the position which it seeks to fill, and the intervals at which the person would be paid; and
6.1.7 where applicable, the length of notice which the Candidate in such a position would be required to give, and entitled to receive, to terminate the Engagement with the Client.
6.2 The Client confirms, where applicable, that prior to Introduction NAC has supplied it with confirmation of the following:
6.2.1 the identity of the Candidate;
6.2.2 that the Candidate has the experience, training, qualifications and any authorization which the Client considers are necessary, or which are required by law or by any professional body, to work in the position which the Client seeks to fill; and
6.2.3 that the Candidate is willing to work in the position which the Client seeks to fill.
6.3 Where the Candidate is required by law, or any professional body, to have any qualifications or authorizations of the Candidate, the Client confirms, where applicable, that prior to Introduction NAC has offered to provide the Client with copies of any relevant qualifications or authorizations of the Candidate;
6.4 To the extent that NAC may not have supplied the Client with confirmation as set out in Clause 6.2, the Client confirms that it is satisfied with the confirmation supplied; and the Client agrees that, if the Candidate fails to have the experience, training, qualifications or any authorization which the Client considers are necessary, or which are required by law or by any professional body, NAC shall have no liability to the Client in respect of this.
7.1 Neither NAC nor any of NAC's staff shall be liable to the Client for any loss, injury, damage, expense or delay incurred or suffered by the Client arising in connection with any Introduction or Engagement and, in particular (but without limitation to the foregoing), any such loss, injury, damage, expense or delay arising in connection with:
7.1.1 failure of any Candidate to meet the requirements of the Client for all or any of the purposes for which the Candidate is required by the Client;
7.1.2 any act or omission of any Candidate, whether willful, negligent, fraudulent, dishonest, reckless or otherwise;
7.1.3 any loss, injury, damage, expense or delay incurred or suffered by a Candidate;
provided that nothing in this Clause 7.1 shall be construed as purporting to exclude or restrict NAC's liability to the Client for personal injury or death resulting from NAC's own negligence nor any statutory liability or any exclusion or limitation which is prohibited by law.
7.2 The Client acknowledges that in entering into these Terms, it has not relied on any representations, warranties or other assurances by NAC other than those expressly set out in these Terms, provided that nothing in this Clause 7.2 shall operate to limit or exclude any liability for fraudulent misrepresentation between NAC and the Client.
8 DATA PROTECTION
8.1 Each party warrants and undertakes to the other that, in relation to these Terms, it shall comply strictly with all requirements of the Data Protection Laws.
8.2 The Client's attention is drawn to any confidentiality and data protection notice printed on the front sheet of the CV.
9.1 These Terms are personal to the Client and it shall not be entitled to assign or subcontract its obligations or rights under these Terms to any third party without the prior written consent of NAC. NAC shall however be entitled to assign its obligations or rights under these Terms to any member of NAC’s Group and, upon such assignment, without prejudice to the assignor’s rights in respect of matters arising prior to such assignment, all references to NAC shall be deemed to refer to the assignee.
9.2 No variation or amendment to these Terms is effective unless it is in writing and signed on behalf of each party by a person duly authorised by that party.
9.3 These Terms shall be governed by and construed in all respects in accordance with Dutch law[HA2] .
9.4 If any provision or any part of these Terms is held to be illegal or unenforceable, in whole or in part, under any enactment or rule of law:
9.4.1 such provision or part shall to that extent be deemed not to form part of these Terms but the enforceability of the remainder of these Terms shall not be affected;
9.4.2 to the extent permitted by law, NAC and the Client shall negotiate in good faith a replacement to any provision severed under Clause 9.4.1 by a provision which is of similar effect but which is not illegal or unenforceable.
9.5 Each Party agrees not to disclose any information or documentation pertaining to the object of this agreement to any third parties, unless so authorized
By the other party or unless a party becomes legally compelled to disclose any confidential information. In that event, the disclosing party shall immediately notify the other party of this legal requirement. In any event the disclosing party shall disclose only that part of the confidential information that is required to be disclosed and shall use reasonable efforts to obtain an assurance that the information disclosed will be treated confidentially. Each party shall protect the confidentiality of said information by making all the necessary arrangements with its personnel. These confidentiality obligations between the parties shall remain in force for one (1) year after the termination of this agreement.
None of the provisions of these Terms is intended to be for the benefit of, or enforceable by third parties (other than permitted assignees of NAC who shall be entitled to enforce the provisions of these Terms as if original parties to it).