General Terms & Conditions
MTB – General Terms & Conditions for the provision of workers, assignments and contracts for work. MTB Regio Maastricht N.V. and its affiliated subsidiaries (hereafter referred to as 'MTB', separately or jointly), have drawn up the following conditions (hereafter 'General Terms & Conditions') which have been filed with the Registry of the Court of Limburg, located in Maastricht, deed number 23/2015 AL, dated 18 September 2015.
Article 1 - Definitions
1.1 In these general terms and conditions, the following terms are defined as stated below
a. Principal: the party granting MTB the assignment to provide workers, perform an assignment and/or contracts for work;
b. Provision of workers: the provision of workers in the meaning of the Work and Social Assistance Act and/or the Participation Act;
c. Workers: employees who are employed by MTB or one of its subsidiaries and who are provided to the Principal in that capacity in order to perform work under the management and supervision of the Principal;
d. Secondment agreement: agreement between MTB and the Principal on the basis of which the worker will perform work for the benefit of the Principal, and in which the duration of the secondment will be determined or estimated as accurately as possible;
e. Rate: the amount per time unit (to be determined by MTB) owed to MTB by the Principal for the provision of Workers;
f. Contracts for work: providing and generating material works without employment contracts but against payment, ex article 7:750 et seq., whereby MTB functions as the contractor in this context at all times;
g. Assignment: the agreement between MTB and a Principal on the basis of which MTB commits – against payment of the agreed price by Principal – to the execution of the work assigned to them, the execution of an assignment or contracts for work.
Article 2 – General Terms
2.1 These terms and conditions apply to all offers, assignments and other agreements by MTB, in so far as concerns the provision of workers, assignments, or contracts for work.
2.2 The abovementioned agreement(s) and/or assignment shall be established only if and in so far as an MTB officer duly registered in the Trade Register has signed the assignment, unless MTB nonetheless confirms the agreement in writing. Agreements deviating from these General Conditions are only valid if agreed in writing.
2.3 The applicability of any terms and conditions of the Principal is hereby explicitly rejected.
2.4 If any provision in these Terms & Conditions were to prove invalid, the remaining provisions in these Terms & Conditions continue to apply in full. Furthermore, any such invalid provision will be interpreted, as far as possible, as a provision with, as much as possible, the same effects that is applicable.
2.5 If and as soon as the Principal agrees the applicability of these Terms & Conditions with MTB, the Principal will be deemed by their establishment to also agree to the applicability of these Terms & Conditions to future agreements (applying to the provision of workers, assignments or contracts for work).
2.6 The Principal hereby explicitly declares his agreement to being sent electronic communications and to electronic acknowledgement of conditions
Article 3 – The provision of workers
3.1 The agreement is entered into by MTB and/or one of its affiliated subsidiaries. The relevant CAO (Collective Labour Agreement) applies to the agreement, depending on the nature and the scope of the work. There shall be no employment contract between the Worker and the Principal. MTB will appoint a separate supervisor for each Worker if necessary.
3.2 When seconded to the Principal by MTB, the Worker shall perform the work under the direction and supervision of the Principal. The Principal shall herein observe the same level of care as they would towards their own employees. MTB, the formal employer, has no insight into the workplace and the work to be performed. The work shall be performed as agreed in the Secondment Agreement.
3.3 Should Principal wish to end a Worker's secondment, the Principal shall owe an immediately claimable compensation to the amount of 100% of the most recently applied rate for said Worker, multiplied by the number of time units agreed upon in the secondment agreement, applicable to the period starting from the moment of the interim termination until the moment when the Secondment Agreement as originally agreed ends.
3.4 Excepting mandatory provisions of the law, MTB is not liable for any damages of any kind, directly or indirectly, to properties or persons of or at the Principal's, as a result of the Worker's actions; whether damages result from: (i) the secondment, even if it should appear that the Worker does not meet the requirements stipulated by the Principal, (ii) unilateral termination of the agreement by the Worker, (iii) action or inactivity of the Worker, the Principal or a third party, including any commitments entered into by the Worker.
3.5 The Principal is required to provide sufficient comprehensive liability insurance for all direct and indirect damages, as referred to, inter alia, in article 3. The Principal guarantees to indemnify and compensate MTB against/for any claims by Worker and/or third parties, to compensate for damages as, inter alia, referred to in article 3, as well as any consequential damage. If and in so far as MTB should be held liable by the competent court for damages resulting from the execution of the agreement, this liability shall be limited in all cases to the amount to be paid under cover of the liability insurance taken out by MTB, increased by the excess according to the relevant policy.
3.6 MTB's invoices to the Principal shall be based on completed timesheets, approved by the Principal. The Principal is responsible for the correct, timely and complete filling out of the timesheets. In case of any discrepancy between the timesheets kept by MTB and the Principal, MTB's timesheet will prevail unless the Principal immediately provides proof to the contrary to the satisfaction of MTB.
3.7 In the event of the Principal not meeting the requirements in article 3.6, MTB shall invoice the Principal based on the facts and circumstances known to it.
3.8 Rate changes as a result of changes in relevant laws and regulations and/or CLA will be passed on to the Principal from the time of the changes, separately from annual rate changes based on the CBS (Statistics Netherlands) index (Consumer Price Index all households for consumer goods, base year 2006 = 100; 00000 Total spending), without any need to adapt the agreement.
Article 4 – Assignment granting / contracts for work
4.1 MTB will perform Assignments other than those specified under articles 2 and 3 in a manner befitting a reasonable contractor. A best efforts obligation shall apply at all times, unless the nature of the agreement specifically mentions a performance obligation.
4.2 Where work in the construction sector is contracted, the AvA 2013 (General Terms & Conditions for Contracts for Work 2013) shall equally apply, if and in so far as the Assignment does not explicitly deviate from the contents of the AvA 2014. The Principal shall be provided with a copy of the AvA 2013 upon signing of Agreements pertaining to contracts for work in the construction sector; the Principal shall acknowledge receipt. The AvA 2013 are available at www.mtb.nl/algemene-voorwaarden. The validity of any observed deviations to the AvA 2013, on the basis of which said General Terms & Conditions are applicable, is at the discretion of MTB. In such cases MTB shall decide which set of terms and conditions prevails with regard to the relevant issue, whereby MTB reserves the right to declare other additional terms and conditions applicable. In case of doubt whether article 4.1 (assignment granting) or 4.2 (contracts for work) applies, MTB shall decide by way of determination.
4.3 MTB's liability in the context of these general terms and conditions and all activities undertaken by MTB shall be limited to the provisions of this paragraph, with the exception of intent or conscious recklessness by the management of MTB. Consequential and/or indirect damage under any heading whatsoever is excluded at all times. If and in so far as MTB should be held liable by the competent court for damages that have arisen in the execution of the Assignment, this liability shall be limited in all cases to the amount to be paid under cover of the liability insurance taken out by MTB, increased by the excess according to the relevant policy and, in the absence thereof, up to a maximum of the amount invoiced by MTB in respect of the agreement during the last year, less any third party costs invoiced or yet to be invoiced. If MTB is able to invoke limitations of liability under these or other terms and conditions, only MTB shall be entitled to make such choices. Claims must be submitted in writing to MTB within 12 months of execution of the Assignment from which the damage ensues, under penalty of lapsing of the claim.
4.4 The Principal guarantees that the stipulations included in these conditions by MTB shall, by way of stipulation in favour of a third party, form a part of any agreement entered into by Principal with third parties in which, factually or legally, work, services and/or movable property provided by MTB are used. The Principal guarantees to indemnify and compensate MTB against/for any claims by third parties related directly or indirectly to the Principal, which indemnification shall also cover all internal and external costs, including attorney fees.
Article 5 – Pricing and payment
5.1 Prices quoted by MTB always exclude VAT and costs and are fixed and binding, unless explicitly agreed otherwise by MTB in writing. MTB is entitled at all times to adapt prices to any changes in circumstances that (may) affect the price.
5.2 MTB shall only perform extra work after (written) instructions by the Principal. The Principal shall be invoiced for the cost of extra work. Moreover, the absence of written instructions shall not affect the claim to compensation for extra work.
5.3 MTB invoices on a monthly basis, notwithstanding the provisions in the last sentence of this paragraph. Only direct payments to MTB shall lead to discharge. The Principal is obliged to pay in euros within thirty (30) days. On the mere expiry of this due date Principal shall be in default by operation of the law. In this case all claims MTB has on the Principal shall be immediately claimable, notwithstanding any other rights due to MTB. MTB is entitled at all times to request, at its discretion, adequate security.
5.4 Unforeseen complaints by the Principal about MTB's execution of the agreement, Assignment or Contracts for Work, do not suspend the Principal's payment obligations as referred to in article 5.3.
5.5 The Principal is not entitled to suspension or payment setoff. MTB and its affiliated subsidiaries are at all times entitled to payment setoff within its subsidiaries.
Article 6 – Final provisions
6.1 In case of force majeure, including but not limited to war, strikes by MTB employees or third parties employed by MTB, floods, fire, vandalism, restrictions on import and export, government regulations, power cuts and other situations beyond MTB's control that prevent MTB from properly carrying out the agreement, MTB is entitled to either suspend the execution of the agreement or terminate the agreement (partially or completely). In such cases MTB shall never be liable for any compensation to the Principal.
6.2 If the Customer does not, not conveniently or not timely comply with any obligation in the agreement, Assignment of Contract for Work, or if there is good reason to fear that the Customer is not or will not be able to meet his obligations under the agreement, Assignment of Contract for Work, as well as in case of bankruptcy, suspension of payment, dissolution, liquidation and shutdown of the Principal and/or insufficient liquidity of the Principal or in case of a change in ownership within the Principal's company, MTB shall be entitled without summons, judicial intervention and without prejudice to any other rights due to MTB, to either suspend the execution of all or part of the agreement, assignment of Contract for Work or partly or fully dissolve it. In such cases MTB shall not be held liable to pay any damages that may be incurred by the Principal as a result of this partial/complete suspension/dissolution.
6.3 The Principal is obliged to maintain confidentiality with regards to all information obtained in the execution of the agreement, Assignment or Contract for Work, unless the Principal is entitled by law to deviate from this default and/or unless otherwise agreed in writing by MTB. This duty of confidentiality applies under penalty of an immediately payable fine of € 10,000 per day or part thereof, without prejudice to MTB's right to demand compensation for damages actually incurred and/or to exercise its other rights.
6.4 The Principal hereby explicitly agrees to allow MTB to communicate electronically with the Principal.
6.5 The law of the Netherlands shall govern all assignments agreed upon with MTB, of which these General Terms and Conditions form a full or partial component. Parties are deemed to have elected domicile in Maastricht.
6.6 All disputes arising in relation to agreements or these General Terms & Conditions will be submitted to the court of Limburg, Maastricht location, with the exclusion of any other court. MTB – General Terms & Conditions for the provision of workers, assignments and contracts for work. MTB Regio Maastricht N.V. and its affiliated subsidiaries (hereafter referred to as 'MTB', separately or jointly), have drawn up the following conditions (hereafter 'General Terms & Conditions') which have been filed with the Registry of the Court of Limburg, located in Maastricht, deed number 23/2015 AL, dated 18 September 2015.