TERMS AND CONDITIONS

1. General

• 1.1 In these terms and conditions, the following definitions shall apply:
  Client: the other party of the Contractor in the Agreement, as well as his legal successor(s);
  (b) Contractor: Kers IT BV hodn Datakings, based in Eindhoven, with offices in Beringe;
  (c) Contract Executor: the natural person, who is made available to the Client by or through the intermediary of the Contractor in order to work temporarily under the Client’s management and supervision;
  (d) Assignment: the contract of assignment between the Client and the Contractor, whereby the Contractor undertakes to select and make available one (or more) contractor(s) in order to have these (these) contractor(s) temporarily work under the Client’s management and supervision, as well as to provide related services.
• 1.2 Datakings itself offers services such as consulting, coaching, training and technical implementation processes, as well as interim management services, and also acts as a mediator between independent providers of such services and customers thereof.
• 1.3 These general conditions of Datakings apply to all quotations and offers made by Datakings, to all services and work offered by Datakings and to all agreements concluded with Datakings, including agreements of assignment, mediation agreements, etc.
• 1.4 Differing terms and conditions can only be agreed upon expressly and in writing. In case of conflict between these general terms and conditions and terms and conditions of the client, these general terms and conditions shall prevail by exclusion.

2. Selection and provision of assignment contractor(s).

• 2.1 Datakings’ offers are based on the information provided by the client. The client guarantees that, to the best of his knowledge, he has provided all essential information for the design and execution of the agreement by Datakings. Datakings shall perform its obligations under the agreement, which in all cases shall be considered a best efforts obligation, to the best of its knowledge and ability, and in accordance with the requirements of good craftsmanship.
• 2.2 Nominations from potential contractors will be made to the best of our knowledge. The Contractor thereby assumes that the information which the Contractors have provided about themselves or which has been obtained from references about them is correct. The Principal is responsible for the ultimate choice of Contractor.

3. Assignment and compensation

• 3.1 Datakings will always record in writing the agreements made with the client and assignment executor(s) (c.q. the assignment to be carried out by Datakings or the mediation agreement).
• 3.2 During the contractually agreed term, as well as any extensions, the rate will not be changed unless the position of the assignment manager(s) is changed and/or the work to be performed changes to such an extent that a rate adjustment is justified. A rate adjustment will not be implemented until the parties have reached written agreement.
• 3.3 Unless otherwise agreed, the amount charged for fees shall be calculated on the basis of time spent applying Datakings’ agreed hourly rates. Travel and accommodation expenses shall be charged separately. Expenses incurred by Datakings (such as postage, transport and/or accommodation expenses, fees, materials used, telephone and fax costs and invoices from third parties engaged) will also be charged to the client, unless otherwise agreed.

4. Payment terms

• The fees and expenses as mentioned in article 3, which are not included in the rates, will be charged on a weekly basis upon invoice. Payment must be made within 14 days of the invoice date. After the due date, statutory commercial interest will be charged, without notice of default being required. If payment is not made, Datakings may suspend performance of the engagement by invoking the uncertainty exception. If the client is in default or otherwise fails to fulfill one or more of his obligations, all reasonable costs for obtaining satisfaction shall be at his expense, both judicial and extrajudicial. If the order is given by more than one client, all clients are jointly and severally liable for the fulfillment of the obligations as stated in this article (regardless of the name of the invoice).

5. Client responsibility

• 5.1 The work to be performed by the contractor(s) in the context of the order shall be performed exclusively under the client’s management and supervision. In giving direction and exercising supervision, the client shall comply with the principle of good employment practice laid down in Article 7:611 of the Civil Code.
• 5.2 The Client shall be obliged to provide the Contractor(s) with all the information required for the performance of the work referred to in Article 5.1 in a timely manner.
• 5.3 The Client is not authorized, without the Contractor’s prior written consent:
  (a) to make Contractor(s) available to third parties;
  (b) to change agreed work;
  (c) to have Contractor(s) perform work outside the Netherlands.
• 5.4 The Client is familiar with the obligations incumbent upon it as an “employer” within the meaning of Article 1 of the Working Conditions Act. Client is further obliged to comply with the obligations arising for an employer from Article 7:658 of the Civil Code (concerning the safety of the workplace and work equipment) as its own obligations.
• 5.5 The Principal shall, after prior consultation with the Contractor, be authorized to determine the vacations of the Contractor(s), taking into account the provisions of Articles 7:634 to 7:645 of the Civil Code (relating to vacations and leave).
• 5.6 The client shall always be obliged to notify the contractor immediately of any facts and/or circumstances – including incapacity for work, accident or illness – as a result of which one or more of the contractor’s contractor(s) is/are unable or no longer able to perform the work commissioned. Should such facts and/or circumstances arise, the Contractor shall not be obliged to arrange for the immediate replacement of the Contractor(s) concerned.
• 5.7 If and so long as one (or more) contractor(s) is/are unable, for whatever reason, to perform work within the scope of the assignment, and no replacement has been or is offered by the contractor to the satisfaction of the customer, no fee as referred to in Article 3 will be payable by the customer in respect of the contractor(s) concerned.

6. Interim termination of the agreement

• The parties may unilaterally terminate the agreement prematurely, if one of them considers that its execution can no longer take place in accordance with the confirmed quotation and any subsequent additional specifications to the agreement. This termination must be motivated and made known to the other party in writing. The client does not have a notice period, the contractor has a notice period of 1 week. Datakings retains the claim to payment of invoices for the work performed up to that point, whereby preliminary results will be made available to the client subject to reservation. In case either party files for bankruptcy, suspension of payments or ceases business operations, the other party has the right to terminate the agreement without observing a notice period, all subject to rights.

7. Direct agreement between contractor(s) and client

• 7.1 The client is not authorized to approach a contractor during the execution of the assignment or within two (2) years after its completion for the purpose of entering into a contract – by whatever name – with such contractor(s), under which such contractor(s) is or will be employed (temporarily or otherwise) on behalf of the client, unless this is done after mutual consultation between the parties and with the contractor’s prior written consent.
• 7.2 If, during the performance of the assignment or within one (1) year after its completion, the client enters into or causes to be entered into an agreement as referred to in Article 7.1, the client will owe the contractor a fee for each contractor who performs or will perform work for the client on the basis of the aforementioned agreement.
• 7.3 Within ten (10) working days after the conclusion of the agreement referred to in Article 7.1, the Principal shall be obliged to notify the Contractor thereof in writing, providing the Contractor with all such information as is necessary for the calculation of the fee payable by the Principal to the Contractor.
• 7.4 Unless the parties have expressly agreed otherwise, the fee for each Contractor shall be twenty percent (35%) of the gross annual salary agreed between the Client and the relevant Contractor on a full-time basis, plus VAT. The gross annual salary referred to above shall also include vacation allowance, commissions, guarantee commissions, committed profit distributions and gratuities.
• 7.5 The provisions of Article 7.4 shall apply mutatis mutandis if a contract as referred to in Article 7.1 is concluded for a term of less than one (1) year, in which case the fee shall be calculated on the total amount of the remuneration agreed between the Client and the Contractor in question.
• 7.6 Unless the parties have expressly agreed otherwise, the fee will be charged to the client in one lump sum. The provisions of Articles 7.2 to 7.4 apply mutatis mutandis.

8. Intellectual property

• Models, techniques, instruments, including software, used in the performance of the agreement and included in the result are and shall remain the property of the contractor. Disclosure may be made only after obtaining permission from the owner.

9. Confidentiality

• 9.1 The Contractor is obliged to maintain the confidentiality of the information provided by the Client and furthermore of all information obtained by the Contractor in the context of the assignment concerning the Client, its activities and/or its business relations, the confidential nature of which the Contractor knows or ought to know and which the Contractor knows or ought to know that the knowledge of which by a third party could harm the interests of the Client or any of its business relations. The duty of confidentiality shall not apply if and insofar as the disclosure of said information to third parties is necessary for the proper execution of the order or if the Contractor is required by law to disclose or publish such information.
• 9.2 The Contractor shall be obliged to impose the obligation arising for it from Article 9.1 on Contractor(s) as well.

10. Complaints

• 10.1 Any complaint regarding the services provided and/or the amount invoiced must be reported to Datakings in writing within 30 days.
• 10.2 Complaints as referred to in the first paragraph shall not suspend the client’s payment obligation. Under no circumstances shall the client be entitled on the basis of a complaint relating to a particular service to delay or refuse payment for other services provided by the contractor to which the complaint does not relate.
• 10.3 In the event of a justified complaint, the client will have the choice between adjustment of the fee charged, rectification or re-performance of the rejected work free of charge, or the complete or partial non-performance (or no longer performance) of the assignment.

11. Liability

• 11.1 Barring intent or deliberate recklessness on the part of Datakings executives, Datakings’ liability for failure to comply with its contractual obligations shall in all cases be limited to the amount of the fee received in connection with the work.
• 11.2 In the case of agreements with a lead time longer than six months, liability shall at all times be limited to a maximum of the invoice amount for the last month preceding the error.
• 11.3 In cases where the commitment of Datakings consists of mediating in the conclusion of a contract of assignment between a client and one of the contractor(s) collaborating with Datakings (ZZP’ers and/or their B.V.’s), Datakings can under no circumstances be held liable for damage caused by or attributable to this contractor, not even if there is intent or deliberate recklessness on the part of this contractor.
• 11.4 Any claims against Datakings must be submitted to Datakings within 1 month after the damage has been discovered or could reasonably have been discovered, and in any case always no later than 6 months after the termination of the agreement or the order, failing which the right to compensation shall lapse and be processed.

12. Independence

• In addition to its own staff, Datakings also works with independent assignment contractors who meet the requirements set forth in the DBA Act. This is formally verified by the fact that the contract performers work according to a model agreement approved in this context by the Inland Revenue. This practice exempts Datakings from deducting taxes and social security contributions. The client is also exempt from claims for taxes and social security contributions related to the hiring of the contract performer.

13. Governing law.

• Agreements and any disputes arising from or related to them shall be governed exclusively by the laws of the Netherlands.

14. Disputes

• All disputes shall be submitted to the appropriate civil court within the district in which Datakings is located. A dispute is present if either party so declares.