General Conditions « Project Sourcing » – PROSERVIA

« PROSERVIA BELGIUM », a member of the ManpowerGroup and part of ManpowerGroup Solutions Belgium NV/SA, focuses on IT end-user support (EUS – end user support). This includes the outsourcing of support in the 1st, 2nd and 3rd line. The support can be given remotely by EUS-employees or « on site » by experienced Field Technicians or in the form of consultancy by our IT consultants.
The client expressly and irrevocably acknowledges that the present general terms and conditions are fully binding and have precedence over all general terms and conditions of the client, even those that were communicated later. Every deviation from the provisions of these general terms and conditions must be agreed upon in writing between Proservia and the client. Proservia undertakes to provide the services that are necessary in order to bring each assignment agreed upon by the parties to a satisfactory conclusion.
In principle, Proservia will provide its services in its own offices or workplaces. Proservia can nevertheless provide, at the client’s request, part or all of its services in the client’s offices or at any other place that is necessary to ensure the proper execution of the services. In that case, the client will grant Proservia’s employees access to its offices, facilities, network or worksites.
During the performance of services, where appropriate on the client’s premises, Proservia’s personnel will remain under the exclusive authority of Proservia and no contractual relationship whatsoever will be created between Proservia’s personnel and the client. The client acknowledges that it may not exercise any employer authority under any circumstances or in any manner whatsoever with respect to Proservia’s personnel.
Notwithstanding the aforementioned limitations, the Client is permitted to give instructions to Proservia’s employees during the execution of the agreement, within the limits of Article 31§1 of the Law of 24 July 1987: (1) Instructions in relation to the well-being at work and (2) instructions regarding the execution of the work as listed and detailed in the “Appendix Instruction Rights” enclosed in the Commercial Proposal and/or Agreement. These instructions will not in any way undermine Proservia’s employer’s authority over its employees. These instructions can be adapted between the parties at regular intervals as reflected in a written amendment. The instructions given by the Client must be fully consistent with those listed in “Appendix Instruction Rights” and / or with the instructions in the frame of the Client’s obligations on well-being at work. If the Client gives instructions other than the aforementioned instructions, he shall solely bear all consequences thereof and indemnify Proservia against any damage claims and/or penalties that may be imposed on Proservia.
The Client will immediately inform his Work council of the existence of this agreement. In the absence of a Work council, the Client must inform the person designated in the internal rules of his Committee for prevention and protection at work of the existence of this Agreement, and in absence thereof the members of the Trade union delegation. In addition the Client will provide its Work council upon its request a copy of the “Appendix Instruction Rights” which specifies the instructions that can be given by the Client to Proservia’s employees . In the absence of Work council the Client will provide this copy to the Committee for prevention and protection at work or, to the members of the Trade union delegation. The client shall provide such copy within 14 calendar days after the start date, or if the Agreement is made for a shorter time frame, before its end date. If the Client, after receiving the request of the Work council / Committee for prevention and protection at work / the Trade union delegation, refuses to provide a copy of the “Appendix Instruction Rights”, then the Client is legally prohibited to give any instruction to Proservia’s employees. The Client will be exclusive liable for all consequences and shall indemnify Proservia against any possible damage claims and/or penalties that may be imposed on Proservia, as a result of Client’s violation of this prohibition. If the Client does not comply with these information obligations, Proservia will also be entitled at any time to consider this Agreement null and void. In addition, Proservia can claim compensation from the Client for all damages and expenses incurred . The invalidity of the agreement cannot cause any disadvantage for Proservia, nor limit its rights. The Client on the other hand cannot invoke the nullity of the Agreement.
Proservia will designate an employee to supervise the execution of the entrusted assignment. The name of the designated employee will be mentioned in the work order or will be communicated later by Proservia. The client shall contact this representative with regards to any problem related to the services executed by Proservia’s employees.
The client undertakes to not recruit or otherwise enter into a work relationship with any person, whether directly or indirectly, that is an employee or a former employee of Proservia during the duration of the Agreement, as well as during a period of 24 months after its termination. Will be considered as a work relationship: (1) entering into an employment agreement or any other form of cooperation between the client and an employee of Proservia; (2) the provision of Proservia’s employee by a third party to the client (including a temporary employment agency or another service provider); (3) entering into an agreement for the provision of services or work with an Proservia employee or with a third party who has recruited the Proservia employee to this end; (4) entering into a work relationship by an Proservia employee and a third party, whereby the client and the third party belong to the same group, are a subsidiary or a parent company of one another, or are bound or associated companies, in accordance with Title II, Chapter II of the Company Code [Wetboek Vennootschappen]; (5) entering into a work relationship by an Proservia employee and a third party, whereby the third party belongs to the client portfolio of the client. In case the client enters into a work relationship with a Proservia employee, whether directly or indirectly, the client will pay Proservia an amount equivalent to 100% of the gross annual employer’s cost of the employee in question, by way of compensation for damage and loss suffered, with a minimum amount of 35.000€. The abovementioned compensation is a flat-rate fee that is determined on the basis of the mutual agreement between the client on the one hand and Proservia on the other hand, without prejudice to the right of Proservia to prove that the damage and loss it has suffered exceeds the abovementioned amount.
The client expressly acknowledges that the task or Service he assigns to Proservia does not result in the closure and/or the transfer of any line of activity or department, unless it has informed Proservia of this in writing prior to the signature of the work order, in order to ensure that Proservia has full knowledge of all the necessary facts, before committing to the services. If this provision is not complied with, the client will fully indemnify all costs that Proservia may have suffered as a result of the closure and/or transfer of a line of activity or department of the client, including, and without any limitation, any amount that Proservia would have to pay to one or more employees by way of severance pay or any other compensation, as well as all tax and social security costs, etc.
Proservia and its personnel shall comply with all Safety regulations applicable on the client’s premises, as well as the provisions of the General Occupational Health and Safety Regulations. At the start of the execution of the services, the client will immediately communicate the name of its prevention advisor or president of its Committee for prevention and protection at work in writing to Proservia and will inform Proservia immediately of any changes.
During the course of the provision of services, Proservia’s contractual liability will be limited to major error(s) and/or fraud in performing its services, as far as this has been proven. In the event that contractual liability has been established in case of major error(s) and/or fraud on the part of Proservia, damages will be limited to direct damages and losses and will never amount to more than the annual remuneration paid by the client for the provision of services. Proservia cannot be held liable in any way whatsoever for any damages and losses suffered by the client that have been demonstrably caused by Proservia’s employees during and as a result of performance of the agreement, except in case of a major error, fraud and/or gross negligence. In the event that non-contractual liability has been established, damages will be limited to direct damages and losses and will never amount to more than the coverage limit as determined in the insurance policies taken out by Proservia. Consequential, indirect and special damages will not be compensated. Subject to the termination of its claim, the client explicitly undertakes to immediately notify Proservia of all its liability claims against Proservia by means of registered letter and within a period of 10 days after the occurrence of the event leading to the claim. Proservia will take all necessary steps required to guarantee the safety of the client’s personnel with reference to the provision of services on the client’s premises. Proservia will insure its personnel against all accidents at its own expense, in accordance with the statutory provisions. In addition, Proservia has taken out civil liability insurance to cover damage and loss occurring through its employees fault in the course of work activities to any possible property belonging to the client or to a third party. The amounts insured by this policy are the following: 1.000.000€ per instance of damage or loss for the Civil Liability exploitation, bodily injury and material damage and loss combined; 250.000€ for entrusted objects, per instance of damage and loss per policy year.
The client undertakes to provide Proservia with all studies, documents, and in general all technical data that it possesses and that are necessary for the satisfactory performance of the provision of services. Proservia assumes no liability whatsoever with regard to damage and loss resulting from errors or gaps found in the documents or information provided to Proservia by the client.
Proservia will provide its services according to the rules commonly applied in its sector and in accordance with the relevant applicable laws, regulations and customs. Its obligations are limited to the use of the means necessary for the performance of the service.
Proservia is entitled to arrange for its replacement by any subcontractor it considers necessary to call upon.
When the services that are the subject of the agreement or purchase order (work order) will have been fully performed by Proservia, they will be subject to a provisional, contradictory acceptance by the client. Where necessary, the parties will draft a list of the services yet to be completed or supplemented, so that they can be completed. Once the services are terminated, the parties will proceed to the final acceptance and the client will provide Proservia with a written discharge. If the parties have no comments at the time of the provisional delivery it is considered that the performance has been completed, and the provisional delivery will count as the final acceptance and the client will provide Proservia with a written discharge. If there has not been a contradictory inspection and/or provisional acceptance and/or final acceptance, the final acceptance and discharge are supposed to take place and to have been given 15 days after the end date of the services, as set out in the relevant work order. If no such mention is found on the work order or if the completion of services took place earlier, the final acceptance and discharge will be deemed to have taken place and have been given 15 days after Proservia has indicated to the client that it considers its services to be completed. During this period the client will have the possibility to call for a contradictory inspection, in the absence of which the final acceptance and discharge will take place as mentioned above.
The express or tacit final acceptance of the services by the client relieves Proservia from all its obligations rising out of the agreement and from any liability that the client could assert in respect of Proservia on any basis whatsoever, except damages and losses resulting from fraud or a major error on the part of Proservia or its employees, even if this only becomes apparent after delivery. Without prejudice to the above reservations, the liability of Proservia will, in all cases in which it may be held liable as a result of services provided, always be limited to the reimbursement of the fees paid by the client for the services, listed in the work orders, that gave rise to the liability of Proservia, with the exception of its liability under Clause 11 and beyond the specific case of fraud, and this irrespective of the number of requirements, proceedings and direct claims that may be filed against Proservia.
The services will be provided during the periods indicated on the purchase orders (work orders).
No damages whatsoever will be due by either party if the suspension or the dissolution of the agreement or the work order is the result of force majeure. In the event that Proservia would lose its registration with regard to the activities mentioned in the Royal Decree of October 5th, 1978, and as far as the services agreed upon by the parties fall within the scope of this Royal Decree, the agreement with regard to these services will terminate immediately following the simple notification to the client. In addition, Proservia will immediately inform the client of the loss of its registration number for the activities that are in scope of the abovementioned Royal Decree. Proservia is entitled to cancel any services, set out in a work order, by means of a registered letter and without having to pay any damages: (1) if the client fails to pay in a timely manner any invoice due , even if this invoice is related to other work orders; (2) if the client remains in default in any way whatsoever of its contractual obligations, all of which are considered as being essential, without any exception.
In these cases the client will indemnify Proservia for all costs of services already performed, as contractually agreed, and will indemnify Proservia for all costs, damages, losses (including loss of income) occurring as a result of the early termination of the agreement between the parties.
The client will communicate before the start and at the latest the 15th of the month in which the services have started, all information, including, but not limited to, a correct PO-number, in order to allow Proservia to send a correct invoice. The absence of a correct PO-number does not absolve the client of its obligation to pay the full amount of the invoice within the agreed payment terms. If a corrective invoice is necessary due to the absence of any of the necessary invoice information, including a correct PO-number, Proservia will have the right to invoice this additional administrative costs to the client.
Proservia’s invoices are due and payable 30 days after the invoice date, net and without discount, unless otherwise agreed upon in writing. In case of payment by other means than by bank transfer or direct debit, the costs of collection will be charged to the client. In case of failure to make payment of the invoice within 30 days of the invoice date, the amount billed will be increased automatically and without prior notice of default by an index rate of 10% annually. In addition, a mutual agreed flat rate compensation of 15% of all outstanding sums, with a minimum of 125€ and a maximum of 12.500€, will be due, if an invoice remains unpaid for longer than 30 days after its due date. The late payment of one invoice will make all other not yet expired invoices immediately due and payable automatically and without prior notice of default, regardless of the payment terms allowed beforehand. Proservia is entitled to deduct, automatically and without prior written notice, all unpaid amounts (including all penalty fees, recovery and legal costs) from any sums to which the Client may be entitled for whatever reason.
Invoices can only be disputed within 15 days of the invoice date, by registered letter, which must contain the detailed reasons of the dispute. The client is not allowed to withhold or deduct sums of money. Objections to an invoice will not suspend the payability of the invoices. If there is no formal contestation of the invoice within this time frame, objections are no longer possible and all invoices will be deemed to have been accepted by the client. Any payment modality, granted in writing to the client, expires automatically as soon as Proservia is forced to start legal procedures for the recovery of the outstanding payments. In case of a written notice of default, in the case of summonses by the National Social Security Office (RSZ) or other signs of dubious solvency of the client, any payment modality granted by Proservia shall automatically expire. In such cases, all outstanding invoices as well as all any yet to expire invoices, will become immediately due and payable. In case of non-payment of the expired invoices, Proservia is entitled to unilaterally suspend the execution of the agreement until all expired invoices have been settled. The client will be solely responsible for all possible claims for damages resulting from its liability as a result thereof , whether contractual or non-contractual. In such cases, the client will pay the fees, stated in the agreement, for the services that already have been delivered by Proservia and will indemnify Proservia for all costs and damages that Proservia may suffer as a result of a suspension or premature rupture of the agreement.
To guarantee the payment of all outstanding sums, the client gives Proservia in pledge:
– all current and future claims and receivables opposite or at Proservia, where Proservia, as debtor of the arrears, expressly acknowledges to take note of this pledge,
– all present and future claims on third parties, for whatever reason, such as trade receivables and other claims against clients, resulting from performances and services, claims from returns on goods and property, claims against credit or other financial institutions, claims concerning compensation of damages, pensions, insurance payments, indemnities relating to social security, or claims on the government in the framework of the tax regulations.
Each party is entitled to terminate a work order, with respect of a 3-month notice period to be notified by registered letter. Where such notice is served, the terms of any other work orders will continue to apply in full.
In the event that Proservia refuses to replace one of its employees providing services on the client’s premises, and of whom it has been proved that he/she through his/her erroneous conduct negatively affects the satisfactory course of the client’s activities, the client is entitled to terminate the work order for those services, by registered letter, with respect of an 8-day notice period and without having to pay any compensation.
If the client wishes to reduce the contractually stipulated scope of the performances, he needs to respect the same notice periods as stipulated in Clause 23.
If an agreement, laid down in a work order is terminated earlier than was contractually stipulated, for any reason whatsoever – with the exception of dissolution due to non-performance by Proservia of one of its obligations – the parties agree, in order to avoid financial losses or costs Proservia might suffer due to the presence of a too large staff as a result of the termination, that the client will indemnify Proservia for such specific financial damages or losses. The client expressly acknowledges that all termination benefits Proservia has to pay to its employees, which it was forced to lay off as a result of the early termination of the agreement, will be included in these damages or losses.
The client undertakes to take out an “all-risks” insurance policy for its own goods and property. The client will provide Proservia with a certificate of insurance at Proservia’s request.
Pursuant Article 1226 Civil Code, the client who unilaterally and prematurely terminates the agreement shall pay Proservia a fixed amount of compensation equal to the total amount of the invoices that Proservia would have been able to establish if the agreement and that work order had been fully performed, with a minimum of 125€ per calendar day. This also applies in case of nullity of the agreement between the client and Proservia as a result of the client’s non-performance of his statutory obligations or as a consequence of erroneous information issued by the client at the conclusion of the agreement and/or relevant work order. In addition, Proservia will be entitled to claim greater damages on the condition that it is able to prove the extent of the damage or loss.
Performances will be invoiced in accordance with the provisions in the agreement and/or the work order. The agreed rates will remain fixed for the duration of the agreement or work order, notwithstanding indexing and the provisions of Clause 30. The rate increase is based on the basis of the Consumer Price Index (basis 2004 = 100). The agreed rates will be increased on the annual due date of the agreement according to the following formula: P = P° x (I/I°) , whereby P = new rate P° = old rate applicable at the time of the review (Basis price), I = new consumer price index at the time of review, I° = old index.
Proservia is authorized, after written notification , to adjust the agreed prices unilaterally, when there is: (1) a general wage increase as a result of a change in legislation, Collective Labour Agreement negotiations and exceedance of the pivot index; (2) an increase in costs as a result of changes of the social security contributions (RSZ), withholding tax, income tax or any other fee, tax, contribution or costs imposed by any governmental authority.
The nullity of one of the clauses in these general terms and conditions shall in no case entail the invalidity of the overall terms and conditions.
The agreement is binding for all signatory parties, as well as their possible legal successors.
Any dispute arising between the parties concerning the validity, interpretation, performance or termination of their agreement will belong to the exclusive jurisdiction of the Courts of Brussels. Belgian law will be the sole applicable law.

General Conditions Project Sourcing PROSERVIA – Version December 2016 – LEG/11/0/ENG