MUNDIALZ GENERAL TERMS AND CONDITIONS*
Article 1. Definitions
In these general conditions the following terms, both in plural as in singular, are used in the sense given below, unless explicitly indicated otherwise:
- Mundialz : Mundialz is a trading name of Xelvin Zuid B.V., registered at the Dutch Chamber of Commerce under number 12066229. In these terms and conditions the term Mundialz also refers to representatives of Mundialz, acting as provider of Services.
- Client : the person or legal entity who uses the Services of Mundialz as well as any organization with which the Client is related or affiliated (corporately or by organization).
- Services: all work and deliveries which are offered by Mundialz or requested by the Client to be made and delivered.
- Assignment: at the request of the Client performed Services.
- Candidate: the candidates proposed by Mundialz to the Client on the basis of the Assignment;
- Agreement: any Agreement entered into between Mundialz and Client, any amendment or addition to it, as well as all legal acts for its implementation and, in retrospect, all legal acts required for entering into that Agreement.
- Parties: the Client and Mundialz.
Article 2. Applicability
- These general conditions apply to all offers, Agreements, Services, supplies and works by Mundialz, of any kind, unless that applicability explicitly is excluded in whole or parts or unless explicitly agreed otherwise.
These general terms and conditions do not apply to offers, Agreements, Services, supplies and works by Xelvin Zuid B.V. if it trades under a different trading name than Mundialz.
- Any terms or conditions of the Client are expressly rejected. Deviations from and additions to these terms and conditions shall apply only if and in so far as these have been accepted expressly and in writing by Mundialz.
- These terms and conditions also apply to all Agreements with Mundialz, for the implementation of which third parties should be involved. These third parties may appeal directly on these conditions towards the Client, including any exclusions or limitations of liability.
- Mundialz reserves the right to change these conditions at any time. The most recently filed version shall always apply, or, the version that was valid at the time of the conclusion of the Agreement.
- In the event of any conflicts between the substance of a contract concluded between the Client and Mundialz and the present terms and conditions, the content of the Agreement shall prevail.
Article 3. Offers and tenders
- All offers and quotations of Mundialz are freely revocable and done without obligation, unless otherwise indicated.
- The Client is responsible for the accuracy and completeness of the delivered specifications and other data requested by Mundialz.
- Obvious errors or typographical errors in the offer of Mundialz do not bind Mundialz.
- A compound quotation does not oblige Mundialz to carry out part of the assignment against a corresponding part of the given quotation.
- The prices in the offers and quotations of Mundialz are exclusive of VAT (Dutch: BTW) and other Government levies, unless otherwise indicated.
Article 4. Realization of the Agreement
- The Agreement between the Client and Mundialz comes into force after Mundialz has accepted an order in writing, unless one of the following terms applies. The order confirmation shall be deemed to represent the Agreement correctly and completely, unless the Client immediately protests in writing.
- The content of the Agreement is exclusively determined by the quotation and order confirmation given by Mundialz.
- Any supplementary Agreements or amendments bind Mundialz only after written confirmation by Mundialz within fourteen (14) days and after absence of written protest by the Client within three (3) business days after the confirmation of Mundialz.
- For Agreements, activities or transactions for which no written quotation is sent, the invoice shall be deemed to represent the Agreement correctly and completely, unless the Client objects, in writing, within seven (7) days of the invoice date.
- Any Agreement will be entered under the suspensive condition that Mundialz has the right to check the creditworthiness of the Client, this related to the financial performance of the Agreement. If Mundialz has the opinion, on reasonable grounds, that the Client does not represent satisfactory creditworthiness, then Mundialz has the right to temporarily suspend its obligations. If there is such a suspension, Mundialz will inform the Client immediately in writing and offer the Client the opportunity to provide security.
Article 5. Implementation of the Agreement
- Mundialz will perform the Agreement to the best of its knowledge and ability, with an effort obligation (not result commitment).
- Mundialz determines the way in which the Assignment is handled and by which employee(s). If and to the extent that this requires a proper execution of the Agreement, Mundialz has the right to have certain work done by third parties (not Mundialz employees).
- Having regard to the nature of the work, the end result as intended by Mundialz and the Client depends not only on the effort of Mundialz; also factors outside their sphere of influence play a role.
- Any Assignment or Agreement leads to an effort obligation for Mundialz, never a result commitment.
- If within the terms of the Agreement a time limit is given for the completion of the Agreement, then this is never a fatal deadline.
Article 6. Data Client
- The Client shall ensure that all data, requested by Mundialz or of which the Client reasonably understands the necessity for the performance of the Agreement, are in due time provided to Mundialz.
- The Client is responsible for the accuracy, completeness and reliability of the data provided by him, even if the data comes from third parties, unless provided otherwise regarding the nature of the contract. The Client indemnifies Mundialz for all damages resulting from incorrect or incomplete (provided) data.
- If the data required for the execution of the Agreement is not timely or not fully provided to Mundialz, Mundialz has the right to suspend the execution of the Agreement and/or claim additional costs from the Client resulting from the delay, according to the usual rates.
- Mundialz shall not be liable for damage of whatever nature caused by the fact that Mundialz is provided with incorrect and/or incomplete data by the Client, unless Mundialz should have been aware of this error or omission.
- In the case of electronic transmission of information of (and commissioned by) the Client by Mundialz to third parties, the Client is regarded as the party that signs and sends the relevant information.
- On first written request from Client Mundialz will return the original, supplied, information to the Client.
Article 7. Method of recruitment & selection
- Unless explicitly agreed otherwise, Mundialz will introduce one or more candidates to the Client for each Assignment, on the basis of information and data provided by the Candidate on the one hand and, on the other, on the basis of the requirements as described by the Client.
- After this introduction, the Client is free to appoint the relevant Candidate or not. The Client owes the full fee per appointment, as agreed in the agreement as a result of which the introduction was made, if the Client appoints this Candidate within six (6) months of the introduction date, regardless of the position to which the Candidate is ultimately appointed.
- If the Client decides to appoint multiple introduced Candidates, irrespective of position, the Client owes the full fee per appointment, as agreed in the agreement as a result of which the introduction was made. This also applies if the Client appoints this Candidate within six (6) months of the introduction date, regardless of the position to which the Candidate is ultimately appointed.
- The Client is fully responsible for the ultimate choice of a Candidate and the responsibility for verifying the information provided by the Candidate rests entirely with the Client.
- The Client undertakes to subsequently inform Mundialz in writing within 10 days of the conclusion of an agreement or appointment between the Client and the introduced Candidate, stating all the necessary information to determine the fee due to Mundialz.
Article 8. Fees
- After completion of the assignment, the client owes the fee to be charged by Mundialz in accordance with the agreement between the Client and Mundialz.
- If no agreements have been made between the parties, the fee amounts to thirty percent (30%) of the gross annual salary agreed between the Client and the Candidate on a full-time basis, to be increased by VAT. The gross annual salary includes holiday allowance and any (guaranteed) commissions, recorded profit distributions and bonuses, as well as the additional tax liability of a (leased) car (if applicable). If the additional tax liability cannot be specified (as yet), it will be set at an amount of €4,000. In the case of a target income, the calculation and determination of the fee due will be based on this target income.
- If before Mundialz has been able to introduce a candidate to the client, the latter does not continue or cancels the assignment on account of a circumstance to be attributed to the client, or in the event a circumstance that can reasonably be compared with said circumstance, the client owes a fee as set out in the agreement. If no agreements have been made between the parties, the fee amounts to ten percent (10%) of the gross annual salary as set out in 8.2. In that case, the client is also obliged to reimburse any agreed costs incurred by Mundialz (advertising costs, test costs, travel costs, etc.).
- If after introduction of the candidate(s), the client does not continue or cancels the assignment on account of a circumstance to be attributed to the client, or in the event a circumstance that can reasonably be compared with said circumstance, the client owes a fee as set out in the agreement. If no agreements have been made between the parties, the fee amounts to twenty percent (20%) of the gross annual salary as set out in 8.2.. In that case, the client is also obliged to reimburse any agreed costs incurred by Mundialz (advertising costs, test costs, travel costs, etc.).
- If the client, following the situation referred to in the aforesaid paragraph, resumes the assignment within a period of 6 months of termination, the amount paid by the client to Mundialz on the basis of aforementioned paragraph 8.3 or 8.4 will be deducted from the amount the client owes under this article after completion of the assignment.
- Unless stated otherwise in the agreement the client is obliged to reimburse the costs incurred by Mundialz in consultation between the parties for advertising, Internet, testing and/or other recruitment resources and selection means in addition to the fee due. Travel time and costs, accommodation and expenses of Mundialz and the candidate for the activities are charged separately.
Article 9. Payment
- All payment to Mundialz are due within 14 days after the invoice date. The Client is not entitled to any deduction, discount, suspension or set off unless otherwise agreed. The day of payment is the date the amount due is credited on the bank account of Mundialz..
- If Client fails to pay within the period mentioned in article 9 sub 1, the Client shall be in default by operation of law and from that moment Mundialz is entitled to legal (commercial) interest (Dutch: wettelijke rente voor handelstransacties).
The height of the collection costs are established by Mundialz as follows:
the Client forfeits to Mundialz an interest rate equal to one per cent (1%) per month in case of non or late payment of an invoice. For purposes of calculating the length of the interest-bearing period parts of a month count as a full month. The Client is also liable for all collection costs, both judicial and extrajudicial, with a minimum of 15% of the amount not paid in time.
- Mundialz has the right to use the payments made by Client first to the reduction of the costs, subsequently to the reduction of the interest due and finally to the reduction of the principal amount and accrued interest.
- Mundialz has the right to use all money paid by the Client, including advances and payments on dissolved Agreements, to compensate the amount payable under paragraph 2.
- In case of a joint Assignment the Clients will be jointly and severally liable for the payment of the invoice amount, the interest due and costs.
- If the financial position or the payment behavior of the Client gives rise for concern , such to the opinion of Mundialz, or if the Client fails to pay a deposit (advance payment) or an invoice within the time set by Mundialz then Mundialz is entitled to demand from the Client, that (additional) security is given, without delay, in a form determined by Mundialz. If Client fails to provide the required security Mundialz shall then be entitled, without prejudice to its other rights, to suspend the further execution of the Agreement. In such case all amounts to be paid to Mundialz for whatever reason are immediately due and payable.
Article 10. Failing in the fulfilment
- If one of the parties fails to fulfil one or more of its obligations from the Agreement, the other party shall give notice of default, unless fulfilment of the obligation is permanently impossible, in which case the negligent party is immediately in default. The notice of default shall be done in writing and shall offer the negligent party a reasonable period to still fulfil the obligations. This period has the character of a fatal deadline.
- If the Client does not fulfil the obligations under the contract, does not fulfil them properly or in time Mundialz is entitled:
- Suspend delivery of outstanding orders, including Services; or
- To dissolve the Agreement. The Client shall return already delivered goods at the first request of Mundialz. The cost and risk of returning will be borne by the Client.
Article 11. Term
- If between the Client and Mundialz a period/date has been agreed in which the Assignment should be carried out and the Client fails: (a) to comply with a prepayment-if agreed-or (b) to make available the necessary documents timely, fully and into the desired shape, then Client and Mundialz will renegotiate on a new deadline/date within which the Assignment should be carried out.
- Time limits within which the work should have been completed, are only to be regarded as a fatal deadline if expressly and explicitly agreed between Client and Mundialz (in writing).
Article 12. Liability
- Assignments submitted to Mundialz are exclusively performed for the benefit of the Client. Third parties cannot derive any rights from the content of the work performed, and, more generally, to the way in which the work whether or not has been carried out.
- Any liability of Mundialz resulting from its work, is limited to the amount or the amounts provided by the indemnity insurance of Mundialz. Under a reason referred to in the previous sentence is also understood an omission. In the event that for some reason no benefits under the said insurance will take place, any liability is limited to compensation for direct damage and limited (maximized) to the invoices send by Mundialz specifically in relation to the relevant (part-) Assignment in the relevant year, exclusive of VAT (Dutch: BTW).
- In the case of contracts for a longer duration, Mundialz's liability is limited to the amount charged to the Client for the last three months of the period immediately preceding the month during in which Mundialz became liable. Mundialz shall in no event be liable for any acts or omissions of third parties. Applicability of article 6:76 of the DUTCH CIVIL CODE (Dutch: Burgerlijk Wetboek) is therefore excluded. Direct damage shall be understood to be exclusively:
- the reasonable costs incurred to determine the cause and extent of the damage, insofar as the determination relates to damage within the meaning of these terms and conditions.
- any reasonable costs made to match the performance of Mundialz with the Agreement, unless Mundialz can’t be held responsible for the (poor) performance of Mundialz.
- reasonable costs incurred to prevent or limit the damage, to the extent that the Client demonstrates that these costs have led to the limitation of direct damage as meant in these terms and conditions.
- Mundialz shall in no event be liable for indirect damage, including consequential damage, loss of profit, missed savings, damage due to business stagnation, not timely or not properly doing by Mundialz and damage as a result of (contractual) penalties, including fines for failing to pick up any (on) delivery time.
- All claim rights and other powers towards Mundialz, for whatever reason, will expire a year after the service has ended and also if it is not submitted in writing to Mundialz within one month from the moment the Client was known, or reasonably could be known, with the facts on which he bases his rights and powers.
- The Client shall be obliged to indemnify Mundialz for any claims by third parties which are directly or indirectly related with the behavior of Mundialz and the Client is obliged to reimburse Mundialz to the reasonable costs of defense against such claims.
- Mundialz will take the necessary care with involving third parties for the execution of the Assignment. Mentioned involvement is always the responsibility of the Client. Mundialz is never liable for any failure of such third parties. An exclusion of liability also applies to damages caused by equipment, software, data files, registers or other matters, no exclusions, as well as for damages caused by computer viruses and by intercepting audio and/or data transmissions of telephone, fax, e-mail or (other) data traffic, used by Mundialz in the execution of the Assignment.
Article 13. Force majeure
- In these terms and conditions under force majeure shall be understood -in addition to the law and jurisprudence-, unforeseen, long term illness from the staff of Mundialz and all external causes, foreseen or not foreseen, out of the influence of Mundialz but which prevents Mundialz to meet its (contractual) obligations.
- Mundialz also has the right to invoke force majeure if the circumstance which prevents (further) fulfilment occurs after Mundialz should have fulfilled its commitment.
- In case of force majeure Mundialz's obligations are suspended. If the period of suspended obligations lasts longer than two (2) months, both parties are entitled to dissolve the Agreement without any obligation to pay compensation.
- Force majeure by Mundialz referred to in the previous paragraph shall in any case mean (a situation resulting from):
- not, not timely or not properly delivered products or Services by third parties (including a performance by the Client) relevant to the products or Services delivered by Mundialz;
- strike, labour dispute, shortage of labour, fuel, electricity, commodities or stocks;
- malfunctions or accidents in traffic;
- Government measures or embargo that prevent Mundialz to fulfil its obligations;
- riots, war, social unrest;
- extreme weather conditions;
- fire, flood, natural disaster;
- import, export and/or transfer prohibitions.
- If at the time of the commencement of force majeure Mundialz has met part of its obligations, or can only partially meet its obligations, Mundialz shall be entitled to separately invoice already executed work or the executable part of the work and the Client is obliged to pay this invoice as if it were a separate Agreement. This shall not apply, however, if the already executed work or the executable part of the work has no independent value.
Article 14. Secrecy and protection (personal) data
- Parties are required to maintain the confidentiality of all confidential information received in the framework of their Agreement from each other or from another source. Information shall be considered to be confidential if the other party has indicated so or if this results from the nature of the information.
- All (personal) data provided by the Client to Mundialz will be processed in accordance with the law, the applicable codes of conduct and generally in a decent and careful way.
- The collected and processed (personal) data will be treated confidentially and not passed on to third parties, unless this is necessary for the proper execution of an Agreement concluded between the Client and Mundialz or if Mundialz is required to pass on such information to a third party (authority) according to a statutory provision or a judicial decision and Mundialz can't rely on a legal or by the competent court recognized or permitted right of refusal, in which case(s) Mundialz is not required to pay damages or compensation to the Client.
Article 15. (Intellectual) Property
- Without prejudice to the provisions in these general conditions, Mundialz reserves the rights and powers to which it is entitled under the Copyright Law.
- All documents provided by Mundialz, such as Agreements, reports and advices are for internal use by the Client only and may not be reproduced, made public or passed on to third parties without prior consent of Mundialz.
- The Client shall not -by any means- reproduce, publish, exhibit or exploit materials of which Mundialz holds the intellectual property rights, unless with consent of Mundialz.
- Mundialz reserves the right to reuse the knowledge gained by the execution of the Agreement with the Client for other purposes, in so far as it does not pass on confidential information of the Client to third parties.
Article 16. Applicable law and choice of forum
- All Agreements with Mundialz are subject to Dutch law. The applicability of the Vienna Sales Convention is expressly excluded. These general terms and conditions will be translated and interpreted according to Dutch legal standards.
- All disputes – including those, which are considered as such only by one of the parties – which arise from an Agreement to which these conditions apply in whole or in part, or other Agreements which are the result of such an Agreement, shall be settled by the competent court in the District of the place of establishment of Mundialz, unless a mandatory statutory provision states otherwise. This is without prejudice to the fact that Mundialz and the Client can opt for the dispute settlement through independent arbitration.
- If one of the parties believes there is a dispute and wants to go to court, then he will inform the other party in writing with a description of the dispute.
* (Mundialz is a trading name of Xelvin Zuid B.V.)
Effective as of: 23-04-2019