Version August 2020
Article 1 Definitions
In these General Terms and Conditions, the following terms shall have the following meaning:
SCM: SCM Executives B.V. and/or its affiliated companies
Written: In writing in any way, including by e-mail or any other electronic means. Under written is also understood a (digital) conversation note drawn up by SCM.
Candidate: Every (legal) person selected by SCM Executives to fill a (future) vacancy at the Client. This may also include existing employees of the Client.
Client: The (legal) person with whom SCM concludes a Recruitment Agreement.
Recruitment Agreement: An agreement (bemiddelingsovereenkomst) on the basis of which SCM performs activities in relation to a search assignment, as an intermediary on behalf of Client, with the aim of contributing to the realization of an Employment Agreement.
Employment Agreement: An agreement, of whatever name and of whatever nature, between a Client and a Candidate, or Client and a third party, on the basis of which a Candidate will perform certain activities for the Client.
Fee: The fee owed by Client to SCM for the efforts of SCM.
Gross Year Salary: The total gross yearly salary in case of good performance on a fulltime basis. The gross yearly salary also includes all emoluments in case of good performance, including holiday pay, a thirteenth month, expected (profit) bonus(es) (in case of achieving targets for 100%), etcetera.
Introduction Agreement: An agreement on the basis of which SCM - without a search assignment from Client - introduces Candidates preselected by SCM to Client without any obligation for Client.
Article 2 Applicability
2.1 These General Terms and Conditions apply to all (future): quotations, offers, agreements and all (other) legal matters with SCM.
2.2 These General Terms and Conditions have been drawn up in Dutch and translated into various languages. In the event of any difference in content or purport, the Dutch text shall prevail and be binding.
2.3 If Written agreements have been made with SCM that deviate from these General Conditions, those deviating Written agreements will apply, as far as it does not deviate from article 2.4.
2.4 General terms and conditions of Client are never applicable, unless SCM explicitly declares in writing that they do apply.
2.5 SCM is permitted to make changes to these General Terms and Conditions. These changes will take effect on a date to be announced by SCM.
2.6 Article 7:417 of the Dutch Civil Code is not applicable.
2.7 If any provision of these General Terms and Conditions is invalid for any reason, SCM is at all times entitled to retroactively change the provision in a provision that is valid and that approaches the purport of the invalid provision.
Article 3 Conclusion of an agreement
3.1 All offers from SCM are non-binding for SCM. SCM has the right to revoke its offer until five working days after Client has confirmed the acceptance of an offer to SCM.
3.2 The prices quoted by SCM are in euros, excluding VAT and other government levies or taxes.
3.3 Client guarantees that all (legal) acts performed by an official/employee of the Client have been performed on behalf of the Client and are therefore binding for the Client.
Article 4 The performance of the Employment Agreement
4.1 SCM will strive to select one or more Candidates, based on the information provided by the Client, who meet the requirements and expectations of the Client as much as possible. This in order to enable Client to conclude an Employment Agreement. SCM does not guarantee that its efforts will lead to any intended result.
4.2 If third parties are involved by SCM, SCM is not responsible for the performance of these third parties.
4.3 The working methods described by SCM are only meant to give a general presentation about the way in which SCM selects Candidates. SCM is therefore not bounded by them.
4.4 SCM performs its activities on the basis of exclusivity. This means that Client is not entitled to recruit and/or select Candidates (or have them recruited and/or selected) outside SCM. If persons turn to Client outside SCM, Client will immediately notify SCM in Writing. These persons are considered to be Candidates.
4.5 Client must (in time) make all information available and provide all cooperation to SCM to enable SCM to execute the Recruitment Agreement.
4.6 A period mentioned by SCM for the execution of the Recruitment Agreement is indicative and never a fatal term.
Article 5 Chargeability Fee Recruitment Agreement
5.1 For each Employment Agreement entered into by Client, the Client shall owe a Fee. The Fee is twenty-five percent (25%) of the total Gross Year Salary finally agreed upon in the Employment Agreement.
5.2 Client owes 1/3rd of the (expected) Fee immediately after entering into the Recruitment Agreement.
5.3 Client owes 1/3rd of the (expected) Fee at the moment that SCM makes a shortlist of Candidates available to Client.
5.4 At the moment that Client enters into an Employment Agreement, Client owes SCM the difference between the Fee and what has already been paid on the basis of article 5.2 and 5.3.
5.5 If a Candidate was already (in another position) employed by Client, this does not affect in any way the Fee that Client owes SCM.
5.6 If a Candidate is going to perform activities for a company affiliated with Client, without there being an Employment Agreement with Client, an Employment Agreement with Client is deemed to have been concluded in the context of the indebtedness of the Fee.
5.7 If the Client enters into Employment Agreements with/for more Candidates than those for which the Recruitment Agreement has been entered into, the Client shall owe 80% of the Fee referred to in Article 5.1 for each additional Candidate. This applies to any Employment Agreement that is concluded with a Candidate for any position until 12 months after SCM has completed its assignment.
5.8 If an Employment Agreement ends within 4 months after its effective date, Client is entitled to a new Recruitment Agreement with SCM. Client must invoke this right in Writing within 2 weeks after the end of the Employment Agreement, after which this right lapses. Based on the new Recruitment Agreement SCM will attempt to select a Candidate for the same position as in the terminated Employment Agreement. SCM will not charge any fees for this service, unless the Gross Annual Salary in the new Employment Agreement is higher than in the terminated Employment Agreement. In the last mentioned case, the Client shall owe a twenty-five percent (25%) Fee on the difference in Gross Annual Salary.
Article 6 Introduction Agreement
6.1 If SCM enters into an Introductory Agreement with Client, SCM is only required to communicate (contact) details of the Candidate it has selected to the Client. In principle, Client is not obliged to anything. Article 4.2 apply mutatis mutandis.
6.2 If the Client enters into an Employment Agreement with a Candidate within 12 months after SCM has communicated the Candidate to the Client in the context of the Introduction Agreement, the Client will owe a Fee. The Fee is twenty percent (20%) of the total Gross Year Salary agreed in the Employment Agreement. Articles 5.6, 8.1 and 8.5 apply mutatis mutandis.
6.3 If the Employment Agreement referred to in Article 6.2 ends within 4 months after its effective date, Client is entitled to a Recruitment Agreement with SCM. Client must invoke this right in writing within 2 weeks after the end of the Employment Agreement, after which this right lapses. Based on the Recruitment Agreement SCM will attempt to select a Candidate for the same position as in the terminated Employment Agreement. SCM will not charge any fees for this service, unless the Gross Annual Salary in the new Employment Agreement is higher than in the terminated Employment Agreement. In the last mentioned case, the Client shall owe a twenty-five percent (25%) Fee on the difference in Gross Annual Salary.
Article 7 Payment
7.1 Payments by the Client must be made within 30 days of the date of dispatch stated on the invoice. This is a strict deadline. If this term is exceeded, the Client's default (verzuim) shall become effective by operation of law.
7.2 Client shall never be entitled to set off (verrekenen) or suspend (opschorten) any payment.
7.3 If the term referred to in paragraph 1 is exceeded, the Client will owe interest of 8% on an annual basis on the overdue amount per day.
7.4 After exceeding the term referred to in paragraph 1, Client is obliged to compensate SCM for all extrajudicial costs associated with the collection of the debt owed by Client. These costs are irrefutably fixed at 15% of the principal amount, unless SCM can prove that these costs are higher.
7.5 If SCM and the Client become involved in legal proceedings and SCM is (partially) found to be in the right, the Client is obliged to reimburse SCM for all costs actually involved in the proceedings (such as attorney and expert fees and court registry fees).
Article 8 Termination of the Recruitment Agreement
8.1 The Client cannot (partially) dissolve (ontbinden) the Recruitment Agreement, nor can the Recruitment Agreement be (partially) judicially dissolved at the claim of the Client.
8.2 Both Client and SCM can terminate (opzeggen) the Recruitment Agreement in Writing at any time and for any reason, without any notice period.
8.3 If SCM terminates the Recruitment Agreement, this in no way affects what Client owes and/or will owe on the basis of Article 5. This is only different if the termination of the Recruitment Agreement is in no way related to any acts or omissions of Client, nor is in any way (partially) at the risk of Client. In that last case SCM will refund the amount already paid on the basis of article 5.2 and 5.3.
8.4 If Client terminates the Recruitment Agreement, this in no way affects what Client owes and/or will owe on the basis of Article 5.
8.5 If the Recruitment Agreement is terminated or ends by completion, all (effort) obligations of SCM stop. All other rights and obligations from the Recruitment Agreement remain in full force and effect.
8.6 If within 4 months after the termination of the Recruitment Agreement the vacancy for which the Recruitment Agreement was entered into is nevertheless filled, the Client still owes the amount referred to in Article 5. This period is 12 months if the vacancy is filled by a Candidate.
Article 9 Confidentiality and intellectual property rights
9.1 All information, of whatever nature and in whatever form, provided by SCM or a Candidate to Client is confidential. The intellectual property rights remains solely with SCM. Client will not use the information for any purpose other than the execution of the agreement with SCM and will never pass it on to third parties. Furthermore, Client will secure this information properly and will not keep it longer than necessary. In particular, Client will ensure that all provisions of the General Data Protection Regulation and the related laws are complied with by Client.
9.2 At the request of SCM, Client is obliged to provide SCM with access to all (digital) records and books (in the broadest sense of the word) which in the opinion of SCM show, or may show, which (financial) obligations Client has towards SCM.
Article 10 Liability
10.1 SCM is not liable for any damage (of any kind), regardless of the way in which it was caused, unless the damage was caused by intent or deliberate recklessness of the management of SCM or executives belonging to its management.
10.2 The Client is and remains responsible for its own decision to enter into an Employment Agreement and for verifying the information provided by a Candidate.
10.3 SCM is never liable for damage (of whatever nature) which is caused by a Candidate.
10.4 In particular, SCM is not liable for indirect and consequential damage (in the broadest sense of the word) including, but not limited to, loss of profit and turnover, goodwill and immaterial damage.
10.5 If the previous paragraphs do not apply and SCM is therefore liable for damages, then the liability of SCM is always limited to direct damage to goods or persons and never extends to any trading loss or other indirect and consequential damages.
10.6 Without prejudice to all the above, SCM's liability shall never exceed the amount invoiced by SCM in the context of the execution of the Recruitment Agreement (exclusive of VAT) in the three months prior to the event causing the damage with a maximum of € 30.000,-.
10.7 Without prejudice to the foregoing, the liability of SCM is never more than the amount covered by a liability insurance of SCM and in the case in question is actually paid out.
Article 11 Duty to complain
11.1 Client is obliged to notify SCM in Writing - accurately stating the nature and basis of the complaints - of any complaints regarding the execution of an agreement by SCM, within 30 days after the complaint arose, failing which any claim of Client related to the complaint will lapse (vervallen).
11.2 All claims against SCM expire if they are not brought before the competent court within one year after the moment on which Client became aware or could reasonably have become aware of them.
11.3 Claims on SCM are not transferable, nor can they be pawned.
Article 12 Applicable law and choice of forum
12.1 All legal matters between SCM and Client and all resulting or related contractual and non-contractual obligations are governed by Dutch law, with the exclusion of the provisions of the CISG.
12.2 All disputes with SCM will be exclusively brought before the competent court of the District Court of Amsterdam, location Amsterdam. SCM may deviate from this rule of jurisdiction and apply the statutory rule of jurisdiction.