General terms and conditions
Article 1: Definitions
1.1 Contractor: The private limited company Upforce BV, with its registered office in Venlo, as well as the group companies affiliated with those companies (as referred to in Article 2:24b of the Dutch Civil Code).
1.2 Temporary worker: The natural person who is made available by the Contractor in the context of an Assignment to perform work for the Client, under their direction and supervision.
1.3 Client: Any natural or legal person for whom a Temporary Worker performs work under their direction and supervision.
1.4 Assignment: The agreement between the Contractor and a Client on the basis of which a Temporary Worker will perform work under the direction and supervision of that Client.
1.5 Fee: The fee, exclusive of VAT, owed by the Client to the Contractor in connection with the Services performed by the Temporary Worker.
Article 2: Applicability of these terms and conditions
2.1 These terms and conditions apply to every offer (quotation) and every Assignment concerning the provision of a Temporary Worker by the Contractor, as well as to every related further agreement and/or service, in so far as these terms and conditions have not been expressly deviated from in writing.
2.2 The Client with whom a contract has once been concluded on these terms and conditions shall be deemed to tacitly agree to their applicability to every agreement subsequently concluded with the Contractor.
2.3 In the event of any conflict between these terms and conditions and the Client's terms and conditions, the Contractor's terms and conditions shall prevail.
2.4 If any provision of these terms and conditions proves to be void or unenforceable, this shall not affect the validity of the remaining provisions of these terms and conditions. In that case, the parties shall establish a replacement provision that corresponds as closely as possible to the purpose and intent of the void or unenforceable provision.
2.5 All offers (quotations) made by the Contractor, regardless of the method, are without obligation.
Article 3: Making the Temporary Worker Available
3.1 Before the commencement of the Assignment, the Client shall inform the Contractor in writing, in accordance with the Contractor's prevailing procedure, accurately and completely about the nature and duration of the work to be performed, the working hours, the place where the work will be performed, the other relevant working conditions, and the requirements they set for the temporary worker to be provided. The Contractor shall determine which temporary worker they will provide to the Client based on that information.
3.2 The Contractor shall endeavour to provide a Temporary Worker whose level of knowledge and skills best matches the requirements that the Principal can reasonably set. However, if a Temporary Worker, for whatever reason, does not meet the requirements, this cannot lead to any liability on the part of the Contractor.
3.3 If the Client indicates dissatisfaction with the Temp's performance, the parties shall consult with each other to determine how the Temp's performance can be improved and whether it is (in the last resort) necessary to replace the Temp.
3.4 The Contractor shall be entitled at all times during the Assignment to submit a proposal to the Client for the replacement of the assigned Temporary Worker. The Client shall not be permitted to reject such proposal, unless the Client demonstrates that its interest in the continued assignment of the relevant Temporary Worker outweighs the Contractor's interest in the proposed replacement.
3.5 If the Contractor, for any reason whatsoever, is (no longer) able to provide a (replacement) temporary worker, for example because the employment relationship between the Contractor and the temporary worker has been broken, they shall not be liable for compensation for any costs or damages suffered by the Client as a result.
Article 4: Obligations of the Client
4.1 The Temporary Worker shall perform their duties under the direction and supervision of the Client. The Client is not permitted to second the Temporary Worker to a third party, or to have the Temporary Worker perform work under the direction and/or supervision of a third party. Furthermore, without the express permission of the Contractor, the Temporary Worker is not permitted to perform work outside of the Netherlands.
4.2 The Client shall exercise the same diligence towards the Temporary Worker provided by the Contractor as they are obliged to exercise towards their own personnel. This means, among other things, that the Client is obliged to comply with the provisions of Article 7:658 of the Dutch Civil Code and all other applicable laws and regulations concerning working conditions, safety, health, and welfare. This also means that the Client shall provide the Temporary Worker with job-related tools and equipment if these are required for the performance of the work (for example, for safe and healthy working) at the Client's premises. This provision by the Client shall be made under the same conditions as apply at the Client's premises for their own personnel.
4.3 The Client is responsible for providing clear instructions on safety and health regulations. These must be available for inspection in a location visible to everyone and drawn up in the language indicated by the Temporary Worker. If company regulations apply, a copy of these (also in the language indicated by the Temporary Worker) must be handed over to the Temporary Worker. If the Client has had a Risk Inventory and Evaluation (RIE) drawn up within its organisation, it will also inform the Temporary Worker of its contents.
4.4 The Client guarantees that the established working hours, break and rest periods, and the working duration of the Temporary Worker comply with applicable laws and regulations. Furthermore, they shall ensure that the established working duration and working hours are not exceeded.
4.5 The Client shall compensate the Temporary Staff Member for all damages suffered by them in the performance of their duties, if and to the extent that the Client and/or the Contractor is/are liable therefor pursuant to Articles 7:658 and 7:661 of the Dutch Civil Code (Burgerlijk Wetboek).
4.6 The Client indemnifies the Contractor against any claim by the Temporary Worker or by third parties for compensation for damage suffered by them, which is in any way related to the work and the manner in which it was performed. This also includes the damage as described in article 10.7.
4.7 The Client is obliged to adequately insure themselves (meaning: fully cover) against the liabilities mentioned in this article, towards both the Contractor and the Temporary Worker, as well as towards third parties. The Client shall provide the Contractor with proof of this insurance upon first request.
Article 5: Pay for Temporary Staff
5.1 Prior to the Assignment, the Client shall provide the Contractor with a description of the role to be performed by the Temporary Worker. Furthermore, the Client shall provide accurate and complete information regarding the manner in which this role is remunerated within the Client's undertaking. Based on the ABU Collective Labour Agreement for Temporary Workers, the Contractor shall pay the Temporary Worker the so-called 'hirer's remuneration'. The hirer's remuneration is the remuneration currently applicable to an employee in the service of the Client, working in a role that is the same as or equivalent to that of the Temporary Worker. The hirer's remuneration, based on the ABU Collective Labour Agreement for Temporary Workers, comprises the following elements:
- Solely the applicable basic rate of pay within the scale (whereby the temporary worker must receive the starting wage based on their experience);
- The applicable reduction in working hours per week/month/year/period.;
- All allowances (such as overtime, irregular shift hours (including bank holiday allowances), shift allowances, and allowances for physically demanding conditions). Initial salary increases, their amount, and timing as determined by the Client.;
- Reimbursement of expenses (insofar as the Contractor can pay these free of payroll taxes and social security contributions: travel expenses, home-working allowance and other expenses necessary for the performance of the role);
- Periodicity, height, and timing as determined by the Client;
- Reimbursement of travel hours or travel time.;
- One-off payments and the fixed year-end bonus
- Other relevant matters including any applicable time-off-in-lieu arrangement (or similar arrangement) in the applicable collective labour agreement at the Client.
The Client shall provide the Contractor with the required and correct information regarding the hirer's remuneration as designed in accordance with the ABU Collective Labour Agreement for Temporary Agency Workers. The Client is responsible for the accuracy of the information provided. On the basis of such information, and with due observance of the applicable Collective Labour Agreement, legislation and regulations, the Contractor shall determine the remuneration of the Temporary Employee(s). The aforementioned remuneration and surcharges will be jointly referred to below as the “Recipient's Remuneration”. If the information provided by the Client regarding the Recipient's Remuneration is incorrect, the Client shall be liable to the Contractor for any resulting damage. If at any time a discussion arises about the correctness of the applied remuneration, Principal will provide all required information in order to establish or substantiate the correctness of the applied remuneration. If necessary, the aforementioned information may be shared by the Contractor with third parties, including any inspection bodies, trade unions, Temporary Employees, etc.
Article 6: Compensation
6.1 The Client shall owe a Fee for the hours during which the Contractor has made the Temporary Worker available based on the Assignment. This fee, which also includes any allowances and expense reimbursements, will be invoiced to the Client weekly, plus VAT.
6.2 If the costs for making the Temporary Worker available to the Contractor increase as a result of:
- adjustment of the temporary worker's pay,
- amendment of an applicable collective labour agreement, employment conditions and/or applicable laws and regulations (including social and fiscal laws and regulations), or
- other circumstances, which were unknown or unforeseeable at the time of accepting the Order, the Contractor has the right to charge these costs to the Client through a unilateral increase of the Fee agreed with the Client.
6.3 If it subsequently transpires at any time that the job description supplied by the Client (as referred to in Article 5.1) no longer corresponds with the work performed by the Temporary Worker, the Contractor shall likewise be entitled to unilaterally adjust the agreed Fee with retroactive effect.
6.4 If the Contractor increases the agreed fee by more than the consumer price index (CPI) of the preceding calendar year on the grounds of Article 6.2, the Client shall be entitled to terminate the Assignment by registered letter within 14 days of the Contractor's notification to that effect. In such a case, termination must be done with due observance of a reasonable notice period. The Contractor shall be entitled to charge the Client the new (higher) fee until the Assignment has ended.
6.5 A Temporary Worker made available by the Contractor may charge at least three hours per call-out, even if the actual duration of employment was less.
Article 7: Invoices, time tracking and payment terms
7.1 The Contractor's invoices are based on the (digital) timesheets, which the Client (and/or Temporary Worker) must complete weekly. The Client is responsible for the correct, timely, and complete completion, signing, and approval of the timesheets. If the Client disagrees with the invoiced Fee, they must lodge a complaint with the Contractor within 7 days of the invoice date.
7.2 If the information on a timesheet submitted by the Client is disputed by a Temporary Worker listed in the portal, the Contractor is entitled to charge the hours stated by that Temporary Worker, unless the Client sufficiently demonstrates that the Temporary Worker's statement is incorrect. At the Contractor's request, the Client shall provide access to the Client's original time registration and provide a copy thereof. If there is a (digital) time record by the Client, there may be a different record than described in paragraphs 7.1 and 7.2.
Invoices will be sent weekly and must be paid by the Client to the Contractor within 14 days of the invoice date, without any form of set-off.
7.4 If and as soon as an invoice is not paid within the mentioned period of 14 days, the Contractor is entitled, after a first notice of default, which will take place between day 15 and 21, to compensation for statutory interest, as well as a late payment interest of 0.25% per week on the invoiced amount due. Furthermore, the Contractor is entitled to compensation for all costs, both judicial and extrajudicial, which they must incur in this regard. The Contractor's extrajudicial collection costs, to be calculated on the amount to be collected, will be set at 15% of the principal sum, with a minimum of € 250.00 (say: two hundred and fifty euros).
7.5 If invoices remain unpaid, the Contractor is entitled to demand adequate security or full or partial payment in advance from the Client before continuing to perform their services.
Article 8: Confidentiality
8.1 The Client shall maintain confidentiality with regard to all confidential information of which they become aware during the performance of the Assignment. This confidentiality obligation shall not apply if and insofar as there is a legal obligation to make the information in question available to third parties. Before the Client complies with the aforementioned legal obligation, they are obliged to consult with the Contractor prior to doing so.
8.2 The Client declares that any personal data provided to the Client in the context of the performance of the agreement between the Client and the Contractor shall be handled with care, shall be secured and shall not be made available to third parties, etc. The Client guarantees that the Client will ensure privacy and will act in full compliance with the Personal Data Protection Act in this regard. The Client indemnifies the Contractor in the event that the Contractor suffers damage in this regard due to an act or omission by the Client.
Article 9: Non-compete Clause
9.1 The Client is prohibited, both during and for eighteen months after the termination of the Assignment, from engaging the Temporary Worker through a third party (e.g., a temporary employment agency) or otherwise having that Temporary Worker made available.
9.2 The Client is solely entitled to enter into an employment relationship with the Temporary Worker if and to the extent that the provisions of this article are met. If the Client enters into an employment relationship with the Temporary Worker before 1,560 hours, the Client shall owe the Contractor a fee. The amount of the fee shall be 25% of the last applicable rate calculated over a period of 1,560 hours minus the hours already worked. VAT shall be charged on the fee.
9.3 If the Client and Contractor cannot reach an agreement on the amount of the fee as described in 9.2, the Client shall immediately owe the Contractor an amount of €12,500,- excluding VAT per Temporary Worker with whom the Client wishes to enter into an employment relationship, without further notice or demand, without prejudice to the Contractor's right to claim full damages.
9.4 For the purposes of this article, entering into an employment relationship with the temporary worker shall mean: entering into an employment contract, a contract for the supply of work and/or a contract of mandate by the Client with the temporary worker; entering into an employment relationship by the temporary worker with a third party, where the Client and that third party are affiliated within a group (as referred to in Article 2:24b of the Dutch Civil Code) or one is a subsidiary of the other (as referred to in Article 2:24a of the Dutch Civil Code).
9.5 For the purposes of this article, "temporary worker" shall also include: the prospective temporary worker registered with the Contractor; the (prospective) temporary worker who has been proposed to the Client;
9.6 Without prejudice to the provisions of this article, the Client is also owed the fee if the Client has come into contact with the Temporary Worker through the intermediary of the employment agency and:
- the temporary worker applies directly or indirectly to the Client within eighteen months after contact was made, and as a result enters into an employment relationship with the Client in question;
- the Client approaches the Temporary Worker directly or indirectly through third parties within eighteen months of the contact being established, and as a result enters into an employment relationship with the relevant Temporary Worker;
- Should the temporary worker, directly or indirectly through third parties, apply to the Client within eighteen months after the secondment to the Client has ended, and subsequently enter into an employment relationship with the Client;
- the Client approaches the Temporary Worker directly or through third parties within eighteen months after the assignment to the Client has ended, and as a result, the Client enters into an employment relationship with the relevant Temporary Worker.
9.7 The Client is solely entitled to enter into an employment relationship with the Temporary Worker insofar as the provisions under this article are met.
- The Client shall inform the Contractor in writing of its intention to enter into an employment relationship with the Temporary Worker before implementing that intention;
- The temporary worker has their own accommodation and arranges their own transport.;
- The Client shall not enter into an employment relationship with the Temporary Worker until the Temporary Worker can validly terminate or has terminated their employment contract with the Contractor.
9.8 In the event of a breach of this article, the Client shall owe the Contractor an immediately due and payable penalty of €5,000.00 for each breach, increased by an amount of €200.00 for each day that the breach continues. The foregoing shall be without prejudice to the Contractor's right to claim the actual damages suffered in connection therewith from the Client.
Article 10: Liability
10.1 The Contractor shall use its best endeavours to duly perform its obligations under the Contract.
10.2 If the Client is of the opinion that the Contractor has not properly fulfilled its obligations, it shall notify the Contractor thereof in writing within a reasonable period, stating the deficiency and specifying a reasonable period within which it must still fulfil its obligations or rectify the deficiency.
10.3 The Client shall provide all necessary cooperation to enable the Contractor to investigate an alleged defect and to rectify it within the reasonable period mentioned in Article 10.2.
10.4 If the Contractor has not fulfilled the obligation to use its best endeavours as referred to in Article 10.1, the Client has acted in accordance with Articles 10.2 and 10.3, and the defect has moreover not been remedied within the reasonable period set by the Client, the Contractor shall be liable for its defect, however, only insofar as it can be attributed to the Contractor and subject to the other provisions of these terms and conditions.
10.5 The Contractor's liability is always limited to the invoice value of the work carried out by the relevant temporary worker, by or in connection with which the liability arose, calculated on the average number of agreed working hours per month of the aforementioned temporary worker over the two months prior to the claim of liability, and with a maximum of two months. The maximum amount payable by the Contractor shall in no case exceed the amount payable by her insurance.
10.6 All liability for consequential loss, including without limitation loss suffered and loss of profit and damage due to business interruption, is excluded.
10.7 The Contractor shall not be liable for any damage, direct or indirect, suffered by the Client, the Temporary Worker and/or third parties as a result of any act or omission by the provided Temporary Worker. This means, among other things, that the Contractor is not liable for damage caused by the provided Temporary Worker (such as damage caused intentionally or unintentionally, theft, embezzlement, etc.). The Client is obliged to adequately insure themselves (that is to say: fully cover) against the liabilities mentioned in this article and the liabilities mentioned in article 4.7, and indemnifies the Contractor against any claim by the Temporary Worker or third parties for compensation for the aforementioned damage.
10.8 The provision of any property of the Client to the Temporary Worker shall be entirely at the Client's own risk. In other words, if the Client is of the opinion that any property made available to the Temporary Employee has been damaged or has not been returned, the ensuing costs cannot be recovered from the Contractor. If different written agreements have been made between the Contractor and the Client, the amount of any costs shall in any event be limited to the current market value of the relevant property and the costs may be recovered from the Contractor only to the extent and as soon as the Contractor has been able to recover the relevant costs from the Temporary Employee. In that event, the Client must demonstrate by means of evidence that property has been made available to the Temporary Employee as well as that the property has been damaged (other than normal user damage/wear and tear) or has not been returned.
Article 11: Dissolution
11.1 If a party persistently fails to fulfil any obligation under the Agreement, the other party has the right to notify the defaulting party by registered letter that they are dissolving the Agreement.
11.2 Either party has the right to terminate the Assignment with immediate effect, without being liable for damages in connection therewith, if:
- the other party applies for a moratorium or is granted a moratorium;
- the other party applies for its own bankruptcy or is declared bankrupt;
- the other party's company is being wound up;
- the other party ceases its current undertaking;
- a significant portion of the other party's assets are seized.
11.3 The possibilities for early termination mentioned in the preceding articles do not affect the obligation to pay fees already invoiced by the Contractor for work performed.
Article 12: Anti-discrimination policy and sustainable employability
12.1 The Client and the Employment Agency shall not make any prohibited discrimination, whether based on religion, beliefs, political opinion, sex, race, nationality, heterosexual or homosexual orientation, marital status, disability, chronic illness, age, or any other grounds. The Client and the Employment Agency shall set or consider only job-relevant requirements when awarding or executing the assignment, and in the selection and treatment of temporary staff.
12.2 In the event that the Parties receive any indications of discrimination, the Parties shall consult as soon as possible in order to find a resolution.
12.3 The Client is aware of the Whistleblower Act and ensures that the Temporary Worker has access to the whistleblowing scheme in the same way as its own employees, should the Client have such a scheme or if it is applicable to them.
12.4 If the Client has a complaints procedure regarding the treatment of employees, they shall ensure that the Temporary Worker is granted access to this complaints procedure in the same way as their own staff. This applies solely to complaints that do not concern the employment relationship with the temporary employment undertaking. This is all, insofar as no statutory obligations otherwise exist.
12.5 The Employment Agency pursues a policy of so-called sustainable employability. This takes the specific circumstances and wishes of temporary staff into account as much as possible during the different stages of their lives and careers. In this context, the Employment Agency explicitly refers to “The Ten Principles of the UN Global Compact”, and the Client aligns with this.
12.6 On 13 January 2023, the National Action Programme to Combat Sexual Harassment and Sexual Violence was launched by the Government. As part of this Action Programme, the Government has drawn up a report entitled: “Recognising, Acknowledging and Respecting Each Other’s Wishes and Boundaries National Action Programme to Tackle Sexual Harassment and Sexual Violence”. The report and further information can be consulted at:
The Contractor and the Client shall, where possible, adhere to this.
Article 13: Force Majeure
13.1 In the event of force majeure, the Contractor shall be entitled to suspend its obligations and to continue to do so for as long as the force majeure situation persists.
13.2 As soon as a force majeure situation arises for the Contractor, it shall notify the Client thereof as soon as possible.
13.3 To the extent not already covered by the above, force majeure shall also include: strikes, lockouts, blockades, government measures, war, revolution, terrorism and/or any circumstances equivalent thereto, power failures, failures in electronic communication lines, fire and other calamities, water damage, floods, earthquakes and other natural disasters, as well as cases of illness among Contractor's personnel.
13.4 If the force majeure situation has lasted for three months, or as soon as it is established that the force majeure situation will last longer than three months, each of the parties is entitled to terminate the agreement with immediate effect pursuant to Article 11.2. Article 11.3 shall apply accordingly in that case.
Article 14: Disputes
14.1 Dutch law shall apply to the Order and all (further) agreements that may result from it.
14.2 All disputes arising from the Assignment, or (further) agreements resulting therefrom, shall be settled by the court in Roermond.
