Article 1. Applicability
Article 2. Definitions
Article 3. Quotations/offers
Article 4. Payments to MPLORA
Article 5. Duration and termination of the cooperation agreement and/or service agreement
Article 6. Termination of the payroll agreement
Article 7. Provision of EMPLOYEES
Article 8. Duty of care of the CLIENT
Article 9. Liability
Article 10. Remuneration
Article 11. Entering into an employment contract between the CLIENT and an EMPLOYEE
Article 12. Fee
Article 13. Identity verification and processing of personal data
Article 14. Applicable law and disputes
Article 1. Applicability
1.1 These General Terms and Conditions apply to all quotations, offers, order confirmations, (framework) agreements, and the provision of Payroll Services on behalf of: MPLORA B.V., registered with the Chamber of Commerce under number 52451038, hereinafter referred to as: MPLORA.
1.2 These general terms and conditions may be amended or supplemented by MPLORA at any time. The amended general terms and conditions shall also apply to previously concluded agreements with effect from one month after written notice of the amended terms has been provided.
1.3 Any purchase or other terms and conditions of the CLIENT shall not apply.
1.4 Deviations from these general terms and conditions shall only be valid upon written approval by MPLORA and shall apply exclusively to the specific agreement concerned.
1.5 If one or more provisions of these general terms and conditions are declared null and void or are annulled, the remaining provisions of these general terms and conditions shall remain in full force and effect. Any provisions that are not legally valid or cannot be applied by law shall be replaced by provisions that approximate the intent of the provisions to be replaced as closely as possible.
1.6 The headings of articles and subheadings in these general terms and conditions have no independent meaning and shall not affect the interpretation of the articles.
1.7 The General Terms and Conditions of MPLORA apply to the Cooperation Agreement as well as to the Service Agreement(s). To the extent that the Cooperation Agreement and/or the Service Agreement and/or the General Terms and Conditions of MPLORA are in conflict with one another, the provisions in the higher-ranking document shall prevail over the provisions in the lower-ranking document, in the following order:
• The Service Agreement;
• The Cooperation Agreement;
• The General Terms and Conditions of MPLORA.
Article 2. Definitions
In these general terms and conditions, the following terms shall have the following meanings:
• MPLORA: the company that makes workers available to a CLIENT for the performance of work under the supervision and direction of the CLIENT, other than on the basis of an employment contract concluded with the latter.
• EMPLOYEE: the worker, being a natural person, recruited and selected by the CLIENT, who performs or will perform work in the employ of MPLORA for and under the supervision and direction of the CLIENT. For the sake of readability, references in these general terms and conditions to EMPLOYEES are intended to include both male and female employees. Furthermore, where reference is made to him and/or he, this shall mean his/her or him/her.
CLIENT: the party to whom the EMPLOYEE – in the employ of MPLORA – has been assigned to perform work under its direction and supervision in the context of an Assignment as referred to in clause 2.6.
• Cooperation Agreement: the agreement regarding Payroll services between MPLORA and the CLIENT, which is not concluded for the purpose of bringing together supply and demand in the labor market, but on the basis of which MPLORA, at the request of the CLIENT, enters into a Payroll agreement with an EMPLOYEE who is then exclusively made available to the CLIENT to perform work under its direction and supervision in exchange for payment of the fee.
• Fee: the amount per unit of time that the CLIENT owes to MPLORA for making the EMPLOYEE available. This includes labor costs, including wage costs, payroll tax, and social security contributions, as well as a margin for the services provided by MPLORA.
• Service Agreement: the agreement between MPLORA and the CLIENT setting out the specific terms and conditions under which an EMPLOYEE is made available to perform work for and under the direction and supervision of the CLIENT.
• Salary: The agreed gross monthly or hourly wage of the EMPLOYEE.
• Payroll Agreement: the employment contract between the EMPLOYEE and MPLORA, on the basis of which the EMPLOYEE is exclusively made available to the CLIENT under the Cooperation Agreement between MPLORA and the CLIENT to perform work for and under the direction and supervision of the CLIENT as referred to in Section 7:692 of the Dutch Civil Code.
• Payroll Service: the service provided by MPLORA, whereby the CLIENT outsources the legal employment of the EMPLOYEE(S) recruited and selected by the CLIENT to MPLORA. EMPLOYEES recruited and selected by the CLIENT join MPLORA on the basis of a Payroll Agreement that makes them available to the CLIENT, where they perform work under the direction and supervision of the CLIENT. MPLORA pays the salary to the EMPLOYEES.
Article 3. Quotations/offers
3.1 The CLIENT warrants the completeness and accuracy of the information provided by him/her on which MPLORA’s offer is based.
3.2 All quotations and offers from MPLORA are entirely without obligation, unless stated otherwise.
3.3 All quotations and offers from MPLORA are valid for one (1) month, unless stated otherwise.
Article 4. Payments to MPLORA
4.1 Payments by the CLIENT shall be made without any discount, set-off, deduction, or suspension. Unless otherwise agreed in writing, payment must be made within fourteen (14) days of the invoice date by means of a bank transfer to the account designated by MPLORA, including, if requested, partial payment to the designated G-account.
4.2 Only payments made to MPLORA shall constitute a discharge of the payment obligation. Payments made by the CLIENT to an EMPLOYEE, under any title whatsoever, do not constitute a discharging payment towards MPLORA.
4.3 In the event of late or incomplete payment by the CLIENT, the CLIENT shall be in default without any notice of default being required. Without prejudice to its other obligations, the CLIENT is obliged, from the due date of the invoice until the date of full payment, to reimburse all costs incurred by MPLORA for the collection of the claim that MPLORA has against the CLIENT, with a minimum amount of € 250.00 per invoice. All collection costs, including the full costs of legal assistance, both in and out of court, provided by whomever, shall be borne entirely by the CLIENT. This compensation shall always be charged without further proof and shall be due by the CLIENT as soon as legal assistance has been invoked by MPLORA or the claim has been invoked by MPLORA and transferred for collection.
4.4 If the CLIENT remains in default of any payment owed to MPLORA, all other claims of MPLORA shall become immediately due and payable, without any further notice of default being required. From the due date, the CLIENT shall owe MPLORA interest on the amount of these claims at a rate of 1.7% per month.
4.5 In the event of late or incomplete payment, the CLIENT shall be sent a written reminder (via email).
4.6 Complaints regarding an invoice must be submitted to MPLORA in writing within seven (7) calendar days of the invoice date. Invoking the right to complain does not suspend the payment obligation.
4.7 MPLORA has the option to request the CLIENT in writing to provide an advance payment or sufficient financial security in the form of a bank guarantee, pledge, personal guarantee, or otherwise for its financial obligation towards MPLORA. MPLORA has the option to do so for both existing and future payments. The requested security must be proportionate to the relevant obligations of the CLIENT.
4.8 If the CLIENT fails to provide the requested security within the set period, the CLIENT shall be in default. MPLORA is entitled to suspend all obligations or to terminate the cooperation with the CLIENT.
Article 5. Duration and termination of the cooperation agreement and/or service agreement
5.1 The Cooperation Agreement is entered into for an indefinite period and shall take effect on the date of the first signed Service Agreement. Subsequently, for each EMPLOYEE made available, a separate Service Agreement shall be concluded between MPLORA and the CLIENT.
5.2 The duration of the Service Agreement is equal to the duration of the Payroll Agreement between MPLORA and the EMPLOYEE and may only be terminated by the CLIENT if the Payroll Agreement also terminates by operation of law. The CLIENT cannot terminate the Service Agreement before the expiry of the first three months of the Service Agreement, nor earlier than the Payroll Agreement.
5.3 If the Service Agreement has been entered into for a fixed term, it may be terminated by giving one month’s notice, effective as of an end date that is no earlier than the legally valid end date of the Payroll Agreement. A Service Agreement entered into for a fixed term that has not been terminated in time shall be extended after the expiry of that fixed term for the same period and under the same terms and conditions, unless otherwise agreed in writing.
5.4 If the Service Agreement has been entered into for an indefinite period and the CLIENT wishes to terminate the Service Agreement due to insufficient work (‘operational circumstances’), the CLIENT is only entitled to terminate the Service Agreement (subject to the agreed notice period of one month) if, in the opinion of MPLORA, the CLIENT has sufficiently demonstrated that the CLIENT is actually forced to terminate the Service Agreement for operational reasons (also in view of the applicable laws and regulations). In short, this means that the CLIENT must demonstrate that the lapse of the relevant EMPLOYEE’S employment contract is necessary for the efficient operation of the CLIENT’S business. Furthermore, the proposal for the dismissal of the EMPLOYEE in question must comply with the applicable laws and regulations. Only in that situation can MPLORA terminate the Payroll Agreement with the EMPLOYEE and thereby also terminate the Service Agreement.
5.5 If the CLIENT wishes to terminate the Service Agreement for an indefinite period for reasons other than operational reasons – for example, due to the underperformance of or a labor dispute with the EMPLOYEE concerned – the CLIENT is only entitled to terminate the Assignment, subject to the agreed notice period, if the statutory conditions for dismissal on those grounds have been met. The CLIENT shall always involve MPLORA in this process in a timely manner, so that MPLORA can properly fulfill its role as employer. In this context, the CLIENT shall also provide MPLORA with all information and documentation relevant to the termination of the employment contract (such as, for example, reports of performance reviews).
5.6 As long as the (statutory) conditions for terminating the Payroll Agreement described in this article have not been met, the Service Agreement shall continue until MPLORA can legally terminate the underlying Payroll Agreement with the EMPLOYEE (including the possibility of terminating the Payroll Agreement by mutual consent).
5.7 Termination of the Cooperation Agreement and the Service Agreement must be effected in writing.
5.8 All costs, including but not limited to the hiring of legal advice, incurred by MPLORA as a result of the termination of the Cooperation Agreement, Service Agreement, and/or Payroll Agreement, shall be borne by the CLIENT and shall be charged to the CLIENT.
Article 6. Termination of the payroll agreement
6.1 Both the CLIENT and MPLORA are bound by Dutch laws and regulations regarding the termination of Payroll Agreements. If the CLIENT wishes to terminate the Service Agreement (prematurely or for an indefinite period), there must be a reasonable ground within the meaning of Section 7:669 of the Dutch Civil Code in order for MPLORA to be able to legally terminate the Payroll Agreement. The Cooperation Agreement and Service Agreement can only be terminated after the Payroll Agreement has been fully and legally terminated. The termination shall only be deemed completed after the signing of a (settlement) agreement between the CLIENT and the EMPLOYEE, and optionally MPLORA.
6.2 An employment contract can be legally terminated by MPLORA, among other reasons, through:
a) During the probation period, without stating any reasons;
b) With immediate effect in the event of an urgent reason (for example, theft or fraud);
c) In the event of operational reasons, provided that the UWV (Employee Insurance Agency) has issued a dismissal permit;
d) in the event of individual grounds, such as underperformance or a disturbed employment relationship, by means of dissolution by the District Court.
e) It is also possible that the CLIENT, MPLORA, and the EMPLOYEE collectively decide, by mutual consultation, to terminate the Payroll Agreement by means of a settlement agreement.
6.3 With regard to Article 6.2, reference is also made to Article 5 of these General Terms and Conditions regarding the maintenance of an adequate file by the CLIENT. If the CLIENT wishes to terminate the Service Agreement for any reason whatsoever, the CLIENT must inform MPLORA thereof immediately.
6.4 If legal proceedings are initiated and an oral hearing is ordered, the CLIENT shall be requested by MPLORA to be present at the hearing.
6.5 MPLORA is entitled to charge the CLIENT, in the customary manner, for all costs – including salary costs, transition severance pay and/or fair compensation (billijke vergoeding), and legal assistance costs – related to the termination of the Payroll Agreement.
Article 7. Provision of EMPLOYEES
7.1 The CLIENT shall enable the EMPLOYEE to perform work in accordance with the pre-determined assignment and the pre-agreed terms and conditions.
7.2 At the time the EMPLOYEE performs work for the benefit of the CLIENT, the CLIENT may only deviate from the Assignment and the agreed terms and conditions with the prior written approval of MPLORA and the EMPLOYEE.
7.3 If, for any reason whatsoever, the CLIENT does not enable the EMPLOYEE or is unable to enable the EMPLOYEE to perform the agreed work in accordance with the agreements, the CLIENT must pay the agreed rate (as agreed in the Service Agreement) in full to MPLORA.
7.4 The CLIENT may not, without the prior written consent of MPLORA, second the EMPLOYEE in question to a third party to perform work under their supervision and direction. In the event of a violation, the CLIENT risks the required work permit being revoked by the IND (Immigration and Naturalisation Service), as a result of which the EMPLOYEE is no longer entitled to perform work. The CLIENT is liable for all damages suffered by MPLORA and/or the EMPLOYEE as a result.
7.5 If the CLIENT, with the written consent of MPLORA, seconds the EMPLOYEE in question to a third party to work under the supervision and direction of this third party, the CLIENT shall ensure that this third party commits to all obligations and responsibilities that the CLIENT must fulfill pursuant to the agreements with MPLORA. The CLIENT remains jointly and severally liable towards MPLORA and the EMPLOYEE for the fulfillment of all obligations and responsibilities under these General Terms and Conditions and the agreements resulting therefrom.
Article 8. Duty of care of the CLIENT
8.1 The CLIENT must exercise the same duty of care towards the seconded EMPLOYEE as towards its own EMPLOYEES directly employed by the CLIENT. As evidence of compliance with its duty of care, the CLIENT shall provide the RI&E (Risk Inventory and Evaluation) applicable within its organization to MPLORA in a timely manner.
8.2 The CLIENT must comply with the provisions of Section 7:658 of the Dutch Civil Code, whereby the CLIENT assumes the obligations of MPLORA as the legal employer. The CLIENT must ensure a safe working environment for the EMPLOYEE. The CLIENT has a duty of care towards the EMPLOYEE(S) who are under its direction and supervision. The CLIENT is obliged to properly instruct the EMPLOYEE in the performance of the agreed work, insofar as this is reasonably necessary to prevent the EMPLOYEE from suffering damage in the performance of his/her duties.
8.3 If the CLIENT fails to fulfill the obligations referred to in Article 8.1 and/or 8.2, the CLIENT shall be liable and held to compensate the resulting damages to MPLORA and/or the damaged EMPLOYEE in the broadest sense of the word.
8.4 If the EMPLOYEE is involved in an industrial accident during work, the CLIENT must ensure that the Labour Inspectorate is engaged immediately and that MPLORA is informed simultaneously.
8.5 The CLIENT is obliged to take out a business liability insurance policy with sufficient coverage against liability under the provisions of these General Terms and Conditions.
8.6 The CLIENT accepts liability and shall compensate the damages suffered by MPLORA, as well as the damages that the EMPLOYEE suffers or will suffer in the performance of the obligations mentioned in this article.
8.7 The CLIENT is obliged to indemnify MPLORA for all damages caused by the EMPLOYEE to the CLIENT or to third parties.
Article 9. Liability
9.1 The CLIENT is held to compensate all damages and costs directly resulting from the failure to comply with one or more obligations arising from the Cooperation Agreement, the Service Agreement, and/or these General Terms and Conditions, without any notice of default being required.
9.2 The provisions of this article shall be without prejudice to MPLORA’s right to submit other claims against the CLIENT, including a claim for performance or the right to termination by MPLORA.
9.3 MPLORA may invoke this article at any time.
9.4 MPLORA is not liable for damages of any kind, whether direct or indirect, caused to the EMPLOYEE, the CLIENT, or to property or persons at or belonging to the CLIENT, which is related to or arises from the Assignment of the EMPLOYEE. The CLIENT indemnifies MPLORA against any liability for damages and/or losses that the EMPLOYEE suffers themselves or causes to the CLIENT themselves and/or to third parties.
9.5 If a court ruling becomes final and binding (kracht van gewijsde) and is, in accordance with Article 6.4, deemed to be unreasonably onerous and/or in conflict with the principles of reasonableness and fairness pursuant to Section 6:248, paragraph 2 of the Dutch Civil Code, the liability of MPLORA shall be limited to the provisions set forth in the following paragraphs.
9.6 MPLORA is solely liable for damages suffered by the CLIENT, including damages resulting from fines, if such damages result from MPLORA’s failure to perform, or improper performance of, any obligation directly arising from the Cooperation Agreement. MPLORA shall never be liable for indirect damages, including consequential damages, loss of profit, or missed savings.
9.7 The liability of MPLORA is limited to the amount paid out under the coverage of the liability insurance taken out by MPLORA. If, for any reason whatsoever, no payment is made under the aforementioned insurance, or if no insurance has been taken out, any liability of MPLORA is limited to the amount invoiced by MPLORA to the CLIENT in the month preceding the claim. In the absence of a preceding month, the amount shall be determined based on what MPLORA would have invoiced to the CLIENT in accordance with the Service Agreement in the month in which the damage-causing event occurred. MPLORA shall in no event—under any name whatsoever and on any legal grounds whatsoever—be liable for any [further] amount.
9.8 Fines and/or (additional assessments) imposed on the basis of laws and/or regulations and which are the direct result of the CLIENT’s failure to comply, or to comply correctly and/or in a timely manner, with procedures and/or obligations, shall be levied by MPLORA and charged to the CLIENT. These fines/additional assessments shall be paid to MPLORA within the set term without any discount or set-off.
9.9 The CLIENT is obliged to maintain adequate insurance for its statutory and contractual liability. The CLIENT is obliged to provide access to its insurance policies at the first request of MPLORA.
Article 10. Remuneration
10.1 EMPLOYEES shall be remunerated in accordance with the customary or legally required remuneration scheme or collective labour agreement (CAO).
10.2 The CLIENT is obliged to inform MPLORA about all applicable allowances, overtime surcharges, employment conditions, and any changes thereto. The monthly/daily/hourly rate shall be adjusted pro rata to any salary increase. If it appears that the correct employment conditions have not been applied to an EMPLOYEE, MPLORA is obliged to apply the correct employment conditions retroactively. All associated costs shall be charged to the CLIENT.
10.3 If it is determined that the work performed by the EMPLOYEE, compared to the job description provided by the CLIENT, should reasonably lead to a higher salary for the EMPLOYEE, MPLORA shall correct this in consultation with the CLIENT. The CLIENT shall owe the adjusted fee (retroactively) to MPLORA.
10.4 The salary, allowances, and remunerations of the EMPLOYEE shall be determined prior to the assignment and, where necessary, during the assignment. The salary, allowances, and remunerations are equal to the salary, allowances, and remunerations received by comparable EMPLOYEES of the CLIENT in the same or comparable positions.
Article 11. Entering into an employment contract between the CLIENT and an EMPLOYEE
11.1 If the EMPLOYEE was already employed by the CLIENT in the period of 6 months prior to the commencement of the Payroll Agreement with MPLORA, MPLORA shall be considered a successive employer. The provisions of the Dutch Civil Code regarding successive employment shall be applicable at that time.
11.2 If the CLIENT wishes to enter into an employment relationship with an EMPLOYEE, the CLIENT must inform MPLORA thereof in writing in advance.
11.3 The CLIENT shall only enter into an employment contract with an EMPLOYEE after the Payroll Agreement between MPLORA and the EMPLOYEE has been legally terminated and only after the Service Agreement between MPLORA and the CLIENT has been legally terminated.
Article 12. Fee
12.1 The monthly/daily/hourly rate for the EMPLOYEE shall be agreed upon in writing between MPLORA and the CLIENT for the duration of the Assignment and recorded in the Service Agreement.
12.2 If the work performed by the EMPLOYEE leads to a higher salary for the EMPLOYEE as a result of a change in job position, the monthly/daily/hourly wage shall be increased accordingly from that moment. Both the EMPLOYEE and MPLORA must have agreed to the change in job position in writing.
12.3 MPLORA is in any case entitled to unilaterally adjust the monthly/daily/hourly rate during the term of the assignment if the gross salary must be increased due to changes in or as a result of laws and regulations, including social and tax laws and regulations or any mandatory provision.
Article 13. Identity verification and processing of personal data
13.1 The CLIENT is responsible for establishing and verifying the identity of the EMPLOYEES by means of the original identity document (within the meaning of Article 1, paragraphs 1, 2, and 3 of the Compulsory Identification Act). The signatory of the CLIENT who signs the agreements between MPLORA and the CLIENT must provide MPLORA with a legible copy of the EMPLOYEE’S passport.
13.2 The CLIENT shall treat and process the personal data of the EMPLOYEE, of which it has knowledge in the context of the assignment, confidentially and in accordance with the provisions of the Personal Data Protection Act and other relevant legislation. In the event of joint controllership, MPLORA and the CLIENT shall make further agreements regarding the exercise of the rights of data subjects and the duty to provide information. These agreements shall be recorded in a mutual arrangement.
13.3 In the event of a data breach, where there is a risk of loss or unlawful processing of personal data, the CLIENT is obliged to inform MPLORA thereof, after which MPLORA will inform the relevant EMPLOYEE(S).
13.4 The CLIENT indemnifies MPLORA against all claims by EMPLOYEES or other third parties brought against MPLORA in connection with a breach of the provisions of this article by the CLIENT and shall compensate all related costs incurred by MPLORA.
13.5 Fines and additional taxes imposed on MPLORA as a result of an incorrect establishment or verification of the identity of the EMPLOYEES by the CLIENT, shall be charged to the CLIENT.
Article 14. Applicable law and disputes
14.1 The agreements between MPLORA and the CLIENT shall be governed exclusively by Dutch law.
14.2 Disputes between MPLORA and the CLIENT shall be settled exclusively by the competent court in Amsterdam. Before either party turns to the competent court, both parties shall make every effort to resolve their dispute out of court.