Experis Belgium NV/SA – Version July 2020
- These general conditions apply for each services agreement between Experis and the client, excluding any other general conditions, unless otherwise agreed in writing. The general conditions are deemed to be approved by the client as soon as Experis provides services to the client.
- Experis shall remain free to determine where the services will be performed, unless the nature of the services would require another place of execution (for example the offices of the client). In such event, the client undertakes to provide access to its offices and/or worksite to the persons providing the services on behalf of Experis and to provide all necessary facilities for the execution of the services.
- The employees of Experis shall, during the execution of the services, be subject to the exclusive employer’s authority of Experis, without any legal relationship arising between the employees and the client. Within the limits of article 31 §1 of the Law of 24/07/1987 the Client will be entitled to give instructions to the aforementioned employees regarding:
i. Its obligations related to wellbeing at work; and
ii. The execution of the agreement between Experis and the client, provided that:
- It has been explicitly determined in detail in a written agreement which instructions can be given by the client to the employees of Experis (for example annex “Instruction rights”, as included in the offer, purchase order or agreement); and
- The instruction rights do not affect the employer’s authority of Experis; and
- The actual execution of this agreement between Experis and the client fully meets the explicit provisions of the aforementioned written agreement; and
- The client will immediately inform its works council, Committee for prevention and protection at the workplace or members of the trade union, as applicable, regarding the existence of this agreement and to provide them a copy thereof in accordance with the legal provisions in this respect.
The instruction rights can only be altered by written agreement between Experis and the client. The client shall be exclusively liable for non-compliance with the abovementioned provisions and will fully indemnify Experis against any possible damage, costs and/or sanctions which would result therefrom or from the fact that the client is treating the employees of Experis as its own personnel. Any nullity which would result therefrom cannot be invoked by the client against Experis.
- Regarding the obligations related to wellbeing at work, the client undertakes to provide Experis, prior to the provision of services, all related information in order to ensure the safety of the persons who will provide the services on behalf of Experis, including the name and contact details of the prevention advisor or head to the Committee for prevention and protection at the workplace (CPBW) and any changes thereof.
- For each assignment granted to Experis, a person of contact, employee of Experis, will be appointed in order to monitor the execution of the tasks. In case of any problems related to the execution of the services, the client shall exclusively get in touch with this person, whose name is mentioned on the purchase order for the respective services or communicated at a later stage by Experis.
- The client shall, during the execution of the agreement and a period of 24 months following the termination thereof, refrain to directly or indirectly employ persons on which Experis relies for the execution of the agreement, irrespective of whether these persons are acting as (former) employee of Experis or independent contractor. The term “employing” shall mean:
i. Concluding an employment agreement or independent services agreement between these persons and the client; or
ii. Having such person being provided to the client by a third party (such as temporary staffing agency); or
iii. Concluding a services agreement with a third party having employed the respective person in order to provide services to the client.
Is also deemed to be employed by the client, persons who are employed by a third party which:
i. Is a subsidiary or parent company of the client pursuant to art. 1:15 Company Code;
ii. Forms a consortium together with the client pursuant to art. 1:19 Company Code;
iii. Is a connected or associated company of the client pursuant to art. 1:20 Company Code;
iv. Belongs to the client portfolio of the client, to the extent that the client has presented the respective person to its clients in order to have him/her employed by the latter.
In case of non-compliance with the aforementioned obligation, the client will owe Experis a lump sum penalty equal to the gross annual salary of the respective person, with a minimum amount of €35.000. Experis shall reserve its right to claim a higher indemnity should the damages exceed this lump sum penalty.
- The assignment granted to Experis, may not entail the closure and/or transfer of (a part of) the company, unless this has been approved in advance and in writing by Experis. In case of non-compliance, the client will fully indemnify Experis for any costs which may result therefrom, including but not limited to indemnities (in lieu of notice) which would be due to the employees of the company, tax and social security contributions, etc.
- The obligations of Experis are qualified as best effort obligations, to be assessed on the basis of the “prudent man” principle (art. 1137 Civil Code). Within the scope of the services, Experis shall only be liable for direct damages resulting from serious misconduct, fraud and/or gross negligence of the persons appointed by Experis. Experis will not be liable for any indirect or consequential damage, such as loss of profits, reputational damage, loss of clients… The liability of Experis will in any event be limited to the invoiced amount for the respective services as mentioned on the purchase order, which has been timely paid by the client to Experis during the twelve months preceding the occurrence, which shall under no event exceed an amount of €1.000.000 per claim and/or in the annual aggregate, irrespective of the nature of the damages (bodily, material, …). If goods are conferred by the client to Experis and/or its appointees, then the liability of Experis related to these goods will in no event exceed an amount of €250.000 per claim and/or in the annual aggregate. Experis undertakes in this respect to subscribe to all useful insurances, including a civil liability insurance and industrial accidents insurance for its employees pursuant to the legal provisions in this respect. Each claim for indemnification of the client expires if this has not been made towards Experis by registered letter within ten (10) business days following the day on which the client has taken note thereof.
- The client will timely provide Experis all information, studies, documents and technical data which is needed or useful for the proper execution of the services by Experis to the client. Experis cannot be held liable for any damage resulting from errors or gaps in these documents or information.
- Experis is entitled to make use of subcontractors for the provision of the services. Experis will in any event remain liable for the execution of the agreement.
- Should the services of Experis be subject to acceptance, then the services are deemed to be tacitly and finally accepted within 15 days following the end date as mentioned on the purchase order. The client shall remain free to request a contradictory inspection of the services during the aforementioned term. In such case, the services are deemed to be provisionally delivered on the end date mentioned on the purchase order and Experis and the client will make a list of the tasks yet to be finalized or completed. As soon as this list has been completed, Experis and the client will proceed with the final explicit acceptance of the services. By the explicit or tacit acceptance of the services, a waiver is granted to Experis for all contractual obligations and the services are deemed to be finally accepted. As a result thereof, Experis will, following the final acceptance, only be liable for damage resulting from fraud by its appointees.
- The services will be executed during the term as mentioned on the purchase order. The client is not entitled to suspend the execution of the services during this term, unless in the event of force majeure. No indemnity shall be due if the suspension or termination of the agreement results from force majeure on behalf of Experis or the client.
- Experis will be entitled to terminate the purchase order and/or agreement with the client with immediate effect by registered letter, without indemnity or prior formal notice in case:
i. For the execution of the services an accreditation, approval or registration would be required and Experis would no longer comply with these formalities; or
ii. The client is in a state of bankruptcy or judicial settlement or state of apparent insolvency;
iii. The client fails to pay the expired invoices, irrespective of the services to which these invoices relate;
iv. The client does not comply with its contractual obligations within the term as set out in the formal notice of Experis.
In any of the abovementioned events, the client will be due to pay the delivered services up to the moment of termination of the agreement and/or purchase order. In the cases ii, iii, iv, the client will also indemnify Experis for damage or costs resulting from termination, including loss of profits for the remaining term of the agreement and/or purchase order.
- Within 15 calendar days following the start of the purchase order, the client will provide to Experis all information required for drafting the invoice, including correct PO number (number purchase order). If this information is not timely transferred, this will not release the client from its obligation to fully pay the invoiced amount within the agreed payment term. If a new invoice needs to be drafted due to the fact that the client has not timely provided all necessary information to Experis, then Experis shall reserve its right to invoice additional administrative costs to the client.
- The invoices of Experis are payable within 30 days following the invoice date at registered office of Experis, net and without discount, unless otherwise agreed in writing. If payment has not been executed via wire transfer or by direct debit, the collection costs will be at the expense of the client. In case of late payment of the invoice, the invoiced amount will be increased as of right without prior formal notice with interests at an interest rate of 10% on annual basis. Furthermore, a lump sum penalty of 15% on the invoiced amount shall be due as of right, with a minimum amount of €125 and a maximum amount of €12.500. In case of late payment of an invoice, also all other invoices will be immediately due and payable as of right, regardless of whether these invoices have been expired and any payment modalities which have been agreed. Experis will be entitled, as of right and without formal notice to set off any unpaid amounts (including interest due to late payment, collection and legal costs) against any payments to which the client would be entitled, irrespective of the reason thereof. In case of a lack of payment, Experis will also be entitled to suspend all current assignments or to consider these as being dissolved, without any penalty being due towards the client. The client will indemnify Experis against any negative consequences resulting therefrom.
- Invoices can be contested within 8 days following invoice date, by registered letter in which the reasons for contesting the invoice are being set out. Any possible dispute will not suspend the payment obligations of the client. Furthermore, it is not allowed for the client to withhold or deduct certain amounts from the invoice. Invoices which are not formally contested, are deemed to be finally approved by the client. Payment modalities which have been granted in writing will automatically expire in case of (i) legal recovery by Experis of outstanding invoices or (ii) a written formal notice due to non-compliance by the client with its contractual obligations or (iii) writ of summons by the Social Security against the client or (iv) any other signs of dubious solvency of the client. In such events will the invoices be due and payable as of right, regardless of whether these invoices have already expired. In case of late payment will Experis be entitled to unilaterally suspend the agreement until full payment for all invoices has been received. Any damages resulting therefrom shall be borne by the client.
- Each party will be entitled to terminate the arrangements as agreed in the purchase order, taking into account a notice period of 3 months, which is to be notified by registered mail to the other party. Even in the event of such termination, the provisions of possible other purchase orders shall remain in full force and effect.
- The client undertakes to subscribe to an “all risks” insurance for its own goods. An insurance certificate will be provided Experis on first demand.
- The services of Experis will be invoiced in accordance with the terms and conditions as set out in the agreement. The agreed prices are fixed, but can be unilaterally adjusted by Experis in one of the following events:
i. Indexing. On the annual anniversary of the agreement, Experis is entitled to increase prices based on the consumer price index (base 2004 = 100), in accordance with the following calculation: P = P° x (I/I°)
P° = old rate applicable on the date of revision (Basic price)
I = new consumer index on the date of revision
I° = former index
ii. General salary and/or cost increase. Experis is entitled to increase prices should there be a need to do so, based on:
a. General salary increases resulting from legal changes, CBA negotiations and/or exceeding spindle index; and/or
b. General increase of costs resulting from changes which relate to social security, employers’ charges, income taxes or any other introduced or modified governmental taxes, contributions or costs
- If, due to a dispute, one or more provisions of these general conditions or commercial agreement would be declared invalid or non-enforceable by the competent courts, then these provisions shall remain binding within the legal boundaries and the judge will be entitled to, to the extent required, mitigate the scope of application. The other provisions shall remain fully applicable
- The general terms and conditions form an integral part of the agreement and are binding to all signing parties, and any of their successors.
- The Courts of Brussels shall be exclusively competent in case of any dispute regarding the commercial agreement (including these commercial conditions) between the client and Manpower and the execution thereof. The collaboration between the client and Manpower will be exclusively governed by the laws of Belgium.