General Terms and Conditions of Moneypenny

General

1. These terms and conditions are an integral part of all offers, assignments, and agreements relating to services to be performed by us.
2. Providing us with an (follow-up) assignment implies acceptance of these terms and conditions.
3. Deviations from and exceptions to these terms and conditions, as well as the general terms and conditions of the Client, will only apply if they have been accepted by us in writing.
4. If no notice period is included in an agreement for an indefinite period, a notice period of one month applies to each of the parties.
5. Dutch law applies to these terms and conditions.

Order confirmation

6. An order confirmation is deemed to be correct and complete, unless the other party has immediately objected to this in writing. A signed proposal has the status of an order confirmation.
7. Additional agreements or changes are only binding if they have been confirmed in writing.

Definitions

8. Employee: any natural person who carries out the agreed work on our behalf, whether or not employed.
9. Recruitment and selection: the recruitment of candidates for a position and the supervision and placement thereof with the client.
10. Written: delivered by regular mail or electronically with a read receipt.

Best efforts obligation

11. We commit ourselves to carrying out the assignment given to us with care. We guarantee the soundness and quality of the services we perform.

Implementation period

12. Deadlines mentioned by us have been determined to the best of our knowledge based on the information made known to us when entering into the agreement.
13. Fixed deadlines are observed as much as possible
14. An excessive exceeding of deadlines, which is not the result of an act of the Client, can be considered as a ground for dissolution of the agreement.

Explicit additional work

15. If, due to additional wishes of the Client, our work is demonstrably increased or expanded, there is explicit additional work. Explicit additional work is not included in the price originally agreed.
16. Additional work also means actually deviating from the agreements made in the sense that more work is actually carried out than agreed.

Price and payment

17. The price is exclusive of VAT and expenses incurred in carrying out the assignment, such as telecom allowance, computer allowance, mileage allowance, office supplies, postage costs, etc..
18. If, prior to or during the execution of the services, we are faced with (cost) price-increasing circumstances due to changes in laws and regulations or government measures, we may increase the agreed prices/rates in accordance with these changes and to the client.
19. The amount mentioned in the previous article will be adjusted annually in accordance with the consumer price index (CPI), published by Statistics Netherlands (CBS): the year 2021 = 100.

Payment

20. All invoices will be paid by the client within 14 days after the invoice date of the relevant invoice. Complaints about invoices must be submitted in writing within eight days of the invoice date. In the event of disputes about the number of hours spent/charged to the Client, our time registration is binding, unless the client demonstrates that this registration is not correct.
21. If, for whatever reason, only part of the assignment can be carried out by us, this does not relieve the Client of his obligation to pay after the expiry of the agreed payment term, of the amount charged for execution.

Non-Payment on Due Date

22. If the Client exceeds the agreed payment term, the entire or the remainder of the invoice amount is immediately due and payable in full, without further notice, while we are also entitled to suspend the execution of current work, or to cancel all existing agreements without notice of default or judicial intervention, without prejudice to our right to also claim compensation for the damage suffered.
23. Non (timely) payment also results in the cancellation of guarantees with the Client.
24. Does payment remain due after we have sent a reminder? Then, in addition to the default interest, we will charge extrajudicial collection costs of 15% of the invoice amount with a minimum of € 40.00. For the calculation of these collection costs, we may increase the principal sum of the claim after 1 year with the default interest accrued in that year.
25. In the event of any proceedings, the Client will also be liable for the legal costs determined by judgment, as well as subsequent costs.
26. We will first deduct payments received from the Client from the interest and costs owed by you and then from the invoice amounts that have been outstanding the longest.
27. The Client may not set off the amounts owed to us against any counterclaims that the Client has against us. This also applies if the Client requests a (provisional) suspension of payment or is declared bankrupt.

Confidentiality

28. Material provided electronically by the client or electronic material that arises during the execution of the assignment can – if the client gives us a written order to do so – be stored securely in our digital, secure archive for a fee.
29. We are not liable for the loss of electronic material that does not have to be stored in the secure archive pursuant to the aforementioned order in the previous paragraph.
30. Intellectual Property Rights
31. The intellectual property rights of Moneypenny, made available in any way whatsoever, belong exclusively to Moneypenny, just as the intellectual property rights of the Client, made available in any way whatsoever, belong (remain) exclusively to the Client.
32. The Client obtains the non-exclusive user rights that are expressly granted in the agreement for all services performed.

Cooperation by the Client

33. The Client shall cooperate in the execution of the agreement and shall always provide us with all useful and necessary information in a timely manner.
34. If data necessary for the execution of the agreement is not (timely) or incompletely available to us, or if the Client fails to fulfill his obligations in any other way, we are entitled to suspend the execution of the agreement. The resulting costs, which will be calculated according to the usual rates, will be borne by the Client.
35. If we have made the amount of our payment partly dependent on an objectively determinable result, and this result is not achieved or cannot be achieved because the Client refuses to provide the necessary cooperation, the Client is obliged to pay us a fee equal to the amount that the Client would owe us if the result had been achieved.

Change of Activities

36. If during the execution of an assignment it appears that it is necessary for proper execution to change or supplement the work to be performed, we will consult with the Client in good time about adjusting the agreed work.
37. If it follows from the aforementioned consultation that agreements made will be adjusted, the agreement will be amended or supplemented accordingly. The new agreements will be confirmed in writing.
38. A change in the assignment may affect the time at which the assignment would have been completed, as well as the amount of the payment.

Checking and Approving Assignments

39. The Client shall immediately check documents submitted by or on behalf of us for correctness and completeness upon receipt. If any inaccuracy or incompleteness is found, the Client is obliged to inform (the contact person of) Moneypenny as soon as possible. Moneypenny will ensure that the reported inaccuracy or incompleteness is corrected.
40. If the Client has not disputed the content of documents submitted by us within 14 days after those documents can reasonably be deemed to have reached the Client, the content of those documents is deemed to have been approved by the Client. If such documents contain calculation and/or language errors, we are authorized and obliged to correct those calculation and/or language errors, even after the aforementioned period of 14 days has expired.
41. Our liability as a result of inaccuracies or incompleteness in documents submitted by us is expressly limited to repair work as described in the two preceding provisions.
42. If it is no longer possible or useful to perform the agreed services, we will only be liable within the limits of Article 50 and 51 (liability).

Limitation of Powers

43. The Client is not entitled to grant an Employee powers that fall outside the agreed work. For example, the Client will not have the Employee sign documents or make payments. If a Client does grant such a power, this is entirely at the Client’s risk.

Replacement of Employees

44. We are entitled to have an Employee temporarily or permanently replaced in the performance of an assignment, provided that the replacement employee has the same skills and the replacement has no (financial) consequences for the Client.
45. Prohibition on Employment
46. The Client or (an) affiliated company(ies) is not entitled, without our express written permission, to employ an Employee directly or indirectly, whether for payment or free of charge, outside the framework of the assigned work, both during the term of an assignment and for a period of one year, calculated from the completion of work for the execution of the last assignment.
47. In the event of violation of this provision, the Client will owe us an immediately due and payable penalty of € 5,000 per violation and € 1,000 for each day that the violation continues.

Loss etc. of Documents

48. Moneypenny will carefully store and handle the documents and other documents made available to the Employee by the client.
49. If (an Employee of) Moneypenny observes any irregularity such as loss, theft or misuse with regard to those documents and/or other documents, we will immediately notify the client.
50. If the relationship between Moneypenny and the client is terminated, Moneypenny will return the relevant documents at the client’s first request.

Liability

51. The liability of Moneypenny for direct damage as a result of a shortcoming in the fulfillment of the agreement, an unlawful act or otherwise, is limited to the amount that the Client has paid to Moneypenny under the agreement during the 6 months prior to the occurrence of the damage, with a maximum of € 5,000.00.
52. Direct damage is exclusively understood to mean; (1) reasonable costs to determine the cause and extent of the damage, (2) any reasonable costs incurred to have Moneypenny’s defective performance comply with the agreement and (3) reasonable costs incurred to prevent or limit the damage. Consequential damage and data loss, loss of profit, lost savings and damage due to business interruption are not included in direct damage.

Force Majeure

53. In these general terms and conditions, force majeure means, in addition to what is understood in this respect in law and jurisprudence, all external causes, foreseen or unforeseen, over which we cannot exert any influence, but as a result of which we are unable to fulfill our obligations. Strikes are included, as well as the inability to use digital resources or telecommunications due to the actions of third parties, for example due to persistent malfunctions at a provider.
54. During force majeure, our obligations are suspended. If the period in which fulfillment of the obligations by us is not possible due to force majeure lasts longer than 2 months, both parties are authorized to dissolve the agreement without any obligation to pay compensation in that case.
55. If, upon the occurrence of force majeure, we have already partially fulfilled our obligations, or can only partially fulfill our obligations, we are entitled to invoice the part already executed or executable separately and the Client is obliged to pay this invoice as if it were a separate contract. However, this does not apply if the part already executed or executable has no independent value.

Disputes

56. A dispute relating to the agreement or these terms and conditions will be submitted to the judgment of the competent court in the district of Amsterdam, with the exclusion of any other judicial authority, in the first instance.

Appendix 1: Data Processing Agreement

This Data Processing Agreement applies to all forms of processing of personal data that Moneypenny.nl BV, registered with the Chamber of Commerce under number 34142873, (hereinafter: Processor) carries out for a counterparty to whom it provides services (hereinafter: Controller).

Article 1. Purposes of Processing

1.1. Under the conditions of this Data Processing Agreement, the Processor undertakes to process personal data on behalf of the Controller. Processing will only take place within the framework of the main agreement, including the handling of orders and payments for products or services of the Controller, management of the accounting and financial administration of the Controller, management of the personnel administration of the Controller, offering and managing the online Customer Relationship Management package of the Processor for the Controller, maintaining telephone contact with customers of the Controller for handling complaints and providing service, performing Public Relations and marketing activities for the Controller, sending newsletters on behalf of the Controller, managing the customer administration of the Controller, managing the patient administration of the Controller, plus those purposes that are reasonably related to this or that are determined with further consent.

1.2. The personal data processed by the Processor in the context of the activities as referred to in the previous paragraph and the categories of data subjects from whom they originate are included in Appendix 1. The Processor will not process the personal data for any other purpose than as determined by the Controller. The Controller will inform the Processor of the processing purposes insofar as these are not already mentioned in this Data Processing Agreement.

1.3. The personal data to be processed on behalf of the Controller remain the property of the Controller and/or the data subjects concerned.

Article 2. Obligations of the Processor

2.1. With regard to the processing operations referred to in Article 1, the Processor will ensure compliance with the applicable laws and regulations, including in any case the laws and regulations in the field of the protection of personal data, such as the General Data Protection Regulation (GDPR).

2.2. The Processor shall, at the Controller’s first request, inform the Controller of the measures it has taken regarding its obligations under this Data Processing Agreement.

2.3. The obligations of the Processor arising from this Data Processing Agreement also apply to those who process personal data under the authority of the Processor, including but not limited to employees, in the broadest sense of the word.

2.4. The Processor shall immediately inform the Controller if, in its opinion, an instruction from the Controller violates the legislation referred to in paragraph 1.

2.5. The Processor shall, insofar as it is within its power, assist the Controller in carrying out data protection impact assessments (DPIAs) if this is legally required. The Processor may charge reasonable costs for this.

Article 3. Transfer of Personal Data

3.1. The Processor may process the personal data in countries within the European Union. Transfer to countries outside the European Union is also permitted, provided that the legal conditions for this are met.

3.2. The Processor will inform the Controller of the country or countries concerned.

Article 4. Division of Responsibility

4.1. The permitted processing operations will be carried out by employees of the Processor within a (semi-)automated environment.

4.2. The Processor is solely responsible for the processing of the personal data under this Data Processing Agreement, in accordance with the instructions of the Controller and under the express (final) responsibility of the Controller. For the other processing operations of personal data, including in any case, but not limited to, the collection of personal data by the Controller, processing for purposes that have not been reported to the Processor by the Controller, processing by third parties and/or for other purposes, the Processor is expressly not responsible.

Article 5. Engaging Third Parties or Subcontractors

5.1. The Controller hereby authorizes the Processor to use subcontractors (sub-processors) in the processing of personal data on the basis of this Data Processing Agreement, with due observance of the applicable privacy legislation.

5.2. The Processor shall inform the Controller as soon as possible about the third parties it intends to engage. The Controller has the right to object to any sub-processor to be engaged by the Processor, in writing and with reasons, within two weeks. If the Controller objects to a sub-processor to be engaged by the Processor, the Parties will consult with each other to reach a solution.

5.3. The Processor shall in any case ensure that these sub-processors assume the same obligations in writing as have been agreed between the Controller and the Processor. The Processor guarantees the correct fulfillment of these obligations by these sub-processors and, in the event of errors by these sub-processors, is itself liable to the Controller for all damage as if it had committed the error(s) itself.

Article 6. Security

6.1. The Processor will make every effort to take sufficient technical and organizational measures with regard to the processing of personal data to be carried out, against loss or against any form of unlawful processing (such as unauthorized access, damage, modification or provision of the personal data).

6.2. If an explicitly described security measure is missing in the Data Processing Agreement, the Processor will ensure that the security meets a level that, given the state of the art, the sensitivity of the personal data and the costs associated with taking the security measure, is not unreasonable.

6.3. The Controller shall only make personal data available to the Processor for processing if it has ensured that the required security measures have been taken. The Controller is responsible for compliance with the measures agreed by the Parties.

Article 7. Reporting Obligation

7.1. The Controller is responsible at all times for reporting a security breach and/or data breach (which means: a personal data breach; unless the breach is reasonably unlikely to result in a risk to the rights and freedoms of natural persons) to the supervisory authority and/or data subjects. To enable the Controller to comply with this legal obligation, the Processor shall inform the Controller of a data breach discovered by it within a reasonable period of time.

7.2. The reporting obligation includes in any case reporting the fact that there has been a leak. In addition, the reporting obligation includes:

the nature of the personal data breach, where possible including the categories of data subjects and personal data records concerned and, approximately, the number of data subjects and personal data records concerned;
the name and contact details of the data protection officer or other contact point where more information can be obtained;
the likely consequences of the personal data breach;
the measures which the Processor has proposed or taken to address the personal data breach, including, where appropriate, measures to mitigate its possible adverse effects.

Article 8. Handling Requests from Data Subjects

8.1. In the event that a data subject submits a request to exercise his/her legal rights to the Processor, the Processor will forward the request to the Controller, and the Controller will further handle the request. The Processor may inform the data subject accordingly.

Article 9. Secrecy and Confidentiality

9.1. All personal data that the Processor receives from the Controller and/or collects itself in the context of this Data Processing Agreement is subject to a duty of confidentiality towards third parties. The Processor will not use this information for any other purpose than that for which it was obtained, even if it has been put in such a form that it cannot be traced back to data subjects.

9.2. This duty of confidentiality does not apply insofar as the Controller has given express permission to provide the information to third parties, if the provision of the information to third parties is logically necessary given the nature of the assignment provided and the execution of this Data Processing Agreement, or if there is a legal obligation to provide the information to a third party.

Article 10. Audit

10.1. The Controller has the right to have audits performed by an independent, expert third party who is bound to secrecy to check for misuse of personal data by employees of the Processor, and everything directly related to this.

10.2. This audit may take place if there is a concrete suspicion of misuse of personal data.

10.3. The Processor shall cooperate with the audit and make all reasonably relevant information for the audit available as soon as possible, including supporting data such as system logs, and employees.

10.4. The findings of the audit will be assessed by the Parties in mutual consultation and, based on this, will or will not be implemented by one of the Parties or by both Parties jointly.

10.5. The Controller will be responsible for the costs of the audit.

Article 11. Liability

11.1. For the provisions on liability, the main agreement concluded between the parties is followed.

Article 12. Duration and Termination

12.1. This Data Processing Agreement is concluded by signing by the Parties and on the date of the last signature.

12.2. This Data Processing Agreement has been entered into for the duration as determined in the Main Agreement between the Parties and, in the absence thereof, in any case for the duration of the cooperation.

12.3. As soon as the Data Processing Agreement has been terminated, for whatever reason and in whatever way, the Processor will – at the choice of the Controller – return all personal data held by it in original or copy form to the Controller, and/or delete and/or destroy these original personal data and any copies thereof.

12.4. The Processor is entitled to revise this Agreement from time to time. It will give at least three months’ notice of the changes to the Controller. The Controller may terminate the agreement by the end of this three-month period if it cannot agree to the changes.

Article 13. Applicable Law and Dispute Resolution

13.1. The Data Processing Agreement and the execution thereof are governed by Dutch law.

13.2. All disputes that may arise between the Parties in connection with the Data Processing Agreement will be submitted to the competent court in the district where the Processor is located.

Appendix to the Data Processing Agreement: Specification of personal data and data subjects

Personal Data

Within the framework of Article 1.1 of this Data Processing Agreement, the Processor will process the personal data of relations, customers and employees of the Controller, on behalf of the Controller.

This may include the following data:

• contact details;
• address details;
• company details;
• financial data;
• payment details;
• agenda details;
• other data that the Controller provides to the Processor for the purpose of executing the main agreement.