General terms and conditions AssistNow

Our Processor Agreement under the AVG legislation is part of our Terms and Conditions.

General

  1. These terms and conditions are an integral part of all offers, orders and agreements regarding services to be performed by us.
  2. Provision of a (follow-up) order to us implies acceptance of these terms and conditions.
  3. Deviations from and exceptions to these terms and conditions, as well as general terms and conditions of the Client, shall apply only if accepted by us in writing.
  4. If a contract for an indefinite period does not include a notice period, a notice period of one month applies to each of the parties.
  5. These terms and conditions are governed by Dutch law.

Order confirmation

  1. An order confirmation shall be deemed correct and complete unless immediately protested in writing by the other party. A signed proposal has the status of an order confirmation.
  2. Additional agreements or changes shall only be binding if confirmed in writing.

Definitions

  1. Employee: any natural person who performs the agreed work on our behalf – whether employed or not.
  2. Recruitment and selection: the commissioned recruitment of candidates for a position and its supervision and placement with the client.
  3. Written: delivered by regular mail or electronically with reading confirmation.

Effort obligation

  1. We undertake to perform with care the assignment given to us. We guarantee the soundness and quality of the services performed by us.

Implementation deadline

  1. Deadlines mentioned by us have been established to the best of our knowledge based on the information made known to us at the time of entering into the agreement.
  2. Established deadlines will be met as much as possible.
  3. Excessive exceeding of deadlines, which is not the result of any conduct of the Client, may be considered grounds for dissolution of the agreement.

Explicit additional work

  1. If our work is demonstrably made heavier or expanded as a result of additional wishes on the part of the Client, this will constitute explicit additional work. Explicit additional work is not covered by the price initially agreed upon.
  2. Additional work also means the actual deviation from the agreements made in the sense that more work is actually performed than agreed upon.

Price and payment

  1. The price is exclusive of sales tax and expenses incurred in carrying out the assignment such as telecommunications allowance, computer allowance, mileage allowance, office supplies, postage, etc.
  2. If, prior to or during the performance of the services, we are confronted with (cost) price increasing circumstances due to changes in laws and regulations or government measures, we are entitled to increase the agreed prices/rates in accordance with these changes and to charge the Customer for them.
  3. The amount mentioned in the previous article will be adjusted annually in accordance with the consumer price index (CPI) published by the Central Bureau of Statistics (CBS): the year 2023 = 100.

Payment

  1. All invoices shall be paid by Client within 14 days of the date of dispatch of said invoice. Complaints about invoices must be submitted in writing and within eight days of the invoice date. In case of disputes regarding the number of hours spent/charged to Client, our timesheets will be binding unless Client proves that these records are incorrect.
  2. If for any reason only part of the order can be executed by us, this does not relieve Client from his obligation to pay, after the expiry of the agreed term of payment, the amount charged on account of execution.

Non-payment by due date

  1. If the Customer exceeds the agreed term of payment, the whole or the remainder of the invoice amount shall be immediately due and payable in full, without further notice of default, while we shall also be entitled to suspend the execution of work in progress, or to cancel all existing agreements without notice of default or judicial intervention, without prejudice to our right to claim compensation for damages in addition.
  2. Failure to pay (on time) will further result in the cancellation of guarantees with the Client.
  3. Does payment remain unpaid after we have sent a reminder? Then in addition to the default interest we will charge extrajudicial collection costs in the amount of 15% of the invoice amount with a minimum of € 40.00. To calculate these collection costs, we may increase the principal amount of the claim after one year with the default interest accrued in that year.
  4. In the event of any proceedings, Client shall further be liable for the litigation costs liquidated by judgment, as well as subsequent costs.
  5. We will deduct payments received from Client first from the interest and costs owed by you and then from the invoice amounts that have been outstanding the longest.
  6. Client may not set off amounts owed to us against any counterclaims Client may have against us. This also applies if Client applies for (provisional) suspension of payment or is declared bankrupt.

Secrecy

  1. Material submitted electronically by the client or electronic material created during the execution of the order may-if the client instructs us to do so in writing-be securely stored in our digital, secure archive for a fee.
  2. We shall not be liable for the loss of electronic material that is not required to be stored in the secure archive by virtue of the assignment referred to in paragraph 28 above.

Intellectual property rights

  1. AssistNow’s intellectual property rights, in whatever manner made available, shall belong exclusively to AssistNow just as the Client’s intellectual property rights, in whatever manner made available, shall (continue to) belong exclusively to the Client.
  2. Client acquires for all services performed the non-exclusive rights of use expressly granted by the agreement.

Cooperation by Principal

  1. Client shall cooperate in the execution of the agreement and shall always provide us with all useful and necessary data in a timely manner.
  2. If data necessary for the execution of the agreement are not (timely) or incompletely at our disposal, or if the Client fails to fulfill his obligations in any other way, we are authorized to suspend the execution of the agreement. Any resulting costs, which will be calculated according to the usual rates, shall be borne by the Client.
  3. If we have made the amount of our payment dependent in part on an objectively determinable result and this result is not achieved or cannot be achieved because the Client refuses to provide the necessary cooperation, the Client is obliged to pay us a fee in the amount that the Client would have owed us if the result had been achieved.

Change of operations

  1. If, during the execution of an assignment, it becomes apparent that for proper execution it is necessary to change or supplement the work to be performed, we will consult with the Client in a timely manner about adjusting the agreed work.
  2. If it results from the aforementioned consultations that agreements made will be adjusted, the agreement will be amended or supplemented accordingly. The new arrangements will be confirmed in writing.
  3. A change in the assignment may affect the time when the assignment would have ended as well as the amount of payment.

Review and approval of assignments

  1. Client will check documents submitted by or on behalf of us for accuracy and completeness immediately upon receipt. If inaccuracy or incompleteness is detected, the Client is obliged to inform (the contact person of) AssistNow as soon as possible. AssistNow will ensure that the detected inaccuracy or incompleteness is corrected.
  2. If Client has not disputed the contents of any documents submitted by us within 14 days after such documents may reasonably be deemed to have reached Client, the contents of such documents shall be deemed to have been approved by Client. If such documents contain arithmetical and/or linguistic errors, we are authorized and obliged to correct such arithmetical and/or linguistic errors, even after the aforementioned period of 14 days has expired.
  3. Our liability due to inaccuracies or incompleteness in documents submitted by us is expressly limited to remedial work as described in the two preceding provisions.
  4. If the subsequent performance of the agreed service is no longer possible or useful, we shall only be liable within the limits of Articles 50 and 51 (liability).

Limitation of powers

  1. Client is not entitled to grant any Employee any powers beyond the agreed upon work. For example, the Principal shall not have the Employee sign documents or make payments. If a Client does grant such authority this shall be entirely at the Client’s risk.

Replacement staff

  1. We are entitled to have an Employee temporarily or permanently replaced during the execution of an assignment, provided that the replacement Employee has the same skills and the replacement has no (financial) consequences for Client.

Ban on employment

  1. Client or (an) affiliated company(ies) is not entitled, without our express written consent, to employ Employee, directly or indirectly, either for payment or free of charge, outside the scope of the assigned work, both during the term of an assignment and for a period of one year, to be counted from completion of work in execution of the last assignment.
  2. If this provision is violated, the Client shall owe us an immediately payable penalty of €5,000 for each violation and €1,000 for each day that the violation continues.

Loss etc. of documents

  1. AssistNow will carefully store and handle the documents and other records provided by Client to Fellow.
  2. If (an Employee of) AssistNow detects any irregularity such as loss, theft or misuse with respect to those documents and/or other records, we will immediately notify the Client.
  3. If the relationship between AssistNow and Client has been terminated, AssistNow will return relevant records upon Client’s first request.

Liability

  1. AssistNow’s liability for direct damages resulting from a breach of the agreement, an unlawful act or otherwise, shall be limited to the amount paid by the Client to AssistNow under the agreement for 6 months prior to the occurrence of the damages, up to a maximum of €5,000.00.
  2. Direct damage is understood to mean only; (1) reasonable costs to determine the cause and extent of the damage, (2) any reasonable costs incurred to have AssistNow’s defective performance comply with the agreement, and (3) reasonable costs incurred to prevent or limit the damage. Consequential damage and data loss, lost profits, lost savings and damage due to business interruption are not included in direct damages.

Force majeure

  1. In these general conditions force majeure means, in addition to what is understood in law and jurisprudence, all external causes, foreseen or unforeseen, over which we have no influence, but which prevent us from fulfilling the obligations. Work strikes are included as well as the inability to dispose of digital resources or telecommunications due to the actions of third parties, for example, persistent failures at a provider.
  2. During force majeure our obligations are suspended. If the period in which fulfilment of the obligations by us is not possible due to force majeure lasts longer than 2 months, both parties are authorized to dissolve the agreement without any obligation to pay damages in that case.
  3. If we have already partially fulfilled our obligations when the force majeure arises, or can only partially fulfill our obligations, we are entitled to invoice separately the part already performed or executable, as the case may be, and the Client is obliged to pay this invoice as if it were a separate contract. However, this does not apply if the part already performed and/or executable part has no independent value.

Disputes

  1. Any dispute regarding the agreement or these terms and conditions shall be subject to the judgment of the competent court in the district of Rotterdam in the first instance, to the exclusion of any other court.

Appendix 1: Processor agreement

This processor agreement applies to all forms of processing of personal data performed by AssistNow, registered with the Chamber of Commerce under number 00000000, (hereinafter: Processor) on behalf of an opposing party to whom it provides services (hereinafter: Controller).

PROCESSOR AGREEMENT

Parties:

  1. AssistNow, located at Langerakbaan 183, 2544 PE, Utrecht, KvK number: 93108400, hereby validly represented by D. van der Struif, hereinafter referred to as ‘processor

and

  1. [bedrijfsnaam], established at [adres], Chamber of Commerce number: [0000000], hereby validly represented by [naam], hereinafter referred to as ‘responsible’

Consider as follows:

  • parties have entered into an agreement pursuant to which the Processor processes (personal) data of the Controller as referred to in Article 4 (1) and (2) AVG, hereinafter referred to as ‘the main agreement’
  • under article 28 (3) AVG the parties are obliged to make arrangements concerning the safeguarding of the privacy of personal data and to lay them down in a processing agreement, hereafter to be referred to as: ‘the Agreement
  • parties will mutually provide each other with all necessary information in a timely manner to enable proper compliance with applicable privacy laws and regulations
  • the provisions of this Agreement take precedence over any other agreements in place between the parties with respect to the processing of personal data, if and to the extent that they differ from what is set forth in this Agreement

Have been agreed upon:

Article 1 – Duration of the Agreement.

  1. This agreement shall take effect from the parties’ signature and shall terminate after processor has deleted and/or returned all personal data to which this agreement relates in accordance with the provisions of Article 13.
  2. This agreement cannot be terminated mid-term.
  3. The provisions described in Article 4 shall remain in effect after the expiration of this Agreement.

Article 2 – Object of the agreement

The controller has provided data to the processor for the performance of the main contract, this may include the following data:

  • contact information;
  • address information;
  • company data;
  • financials;
  • payment details;
  • calendar details;
  • other data provided by Respondent to Processor for the purpose of performing the main contract.

Article 3 – The processing and use of personal data

  1. The controller determines the purpose of the processing and what personal data it allows to be processed for this purpose.
  2. The controller shall give written instructions to the processor for this purpose.
  3. The Processor shall use the personal data obtained only for the purposes for which it was provided and only according to the written instructions of the Controller.
  4. If the Controller orders the processing of personal data in a way that the Processor believes violates the legal obligations, the latter shall inform the Controller accordingly and consult with the Processor in order to reach a solution that does not violate the legal obligations.
  5. The processor has its own responsibility not to process the data in violation of applicable laws and regulations.
  6. The Processor will not disclose personal data to third parties, unless this is done on behalf of the Controller or when necessary to comply with a legal obligation.
  7. The Processor shall ensure that personal data is not processed outside the European Economic Area unless the Controller has given prior written consent.

Article 4 – Secrecy

  1. The Processor shall take all necessary measures to ensure the confidentiality of the Controller’s personal data.
  2. The obligation set forth in paragraph 1 does not apply when the controller has given prior written consent to disclose the personal data to a third party or when the processor is required by law to do so.
  3. The Processor shall impose the same duty of confidentiality on its staff and/or persons or sub-processors engaged for this purpose.
  4. For violation of this article, the Processor forfeits an immediately payable fine of €5,000 per violation to the Controller, without prejudice to the right of the Controller to claim full damages.

Article 5 – Security

  1. The Controller and the Processor will both take appropriate technical and organizational measures, as referred to in Article 32 AVG, to ensure a level of security appropriate to the risk.
  2. The Controller shall inform the Processor about the legal reliability requirements applicable to the processing on the basis of the possible consequences for data subjects, such as in case of loss, corruption or unlawful processing, and shall provide all necessary information to this end so that the Processor can comply with them.
  3. If the Controller desires a higher level of security than required by law, the Processor may separately charge the Controller the reasonable costs for this.
  4. When implementing security measures, the processor shall take into account the state of the art, the implementation costs, as well as the nature, scope, context, processing purposes, likelihood and severity of the various risks to the rights and freedoms of individuals all in accordance with the provisions of Article 28(3)(f) AVG.
  5. If the Controller wishes to conduct an assessment of a proposed processing activity, the Processor shall provide all reasonable cooperation to conduct such assessment in accordance with applicable laws and regulations.
  6. The processor shall also provide all reasonable cooperation in a prior consultation with the Personal Data Authority.
  7. The parties have made concrete agreements regarding the technical and organizational security measures necessary for the execution of this agreement, which the responsible party currently deems appropriate.
  8. These agreements shall include at least the following topics:
    1. the reliability requirements
    2. The agreed security level (if applicable)
    3. the measures taken by the processor so that only authorized personnel have access to the personal data
    4. measures for protection such as against loss, alteration, unauthorized or unlawful processing, access or disclosure
    5. vulnerability detection and incident management measures to be taken
  9. The parties will periodically evaluate the agreements mentioned in paragraphs 7 and 8 and adjust them if necessary.
  10. These agreements are attached to this agreement as an appendix.

Article 6 – Audit

  1. The Controller shall have the right to have an annual audit conducted at its own expense to verify compliance with this Agreement.
  2. The processor shall provide all reasonable cooperation to the audit referred to in paragraph 1, such as providing access to the databases and making all relevant information available.
  3. The processor shall implement the recommendations resulting from the audit in consultation with the controller as soon as possible.
  4. If the adjustments resulting from paragraph 3 arise from changed insights or legislation, then the reasonable costs for these adjustments shall be borne by the responsible party.
  5. If the adjustments resulting from paragraph 3 result from a failure to meet the agreed security requirements, these costs shall be borne by the processor.
  6. If the Personal Data Authority or any other competent authority wishes to conduct an investigation, the Processor shall provide all reasonable cooperation to this end and notify the Controller as soon as possible.

Article 7 – Data breach

  1. If a data breach as referred to in Article 4 sub 12 AVG occurs, the Processor shall inform the Controller about it in the manner further described in Article 8.
  2. In the event of a data breach, the processor shall take all reasonable necessary measures to mitigate the consequences and prevent another leak.
  3. The processor provides the controller with all the cooperation necessary to assess the extent and consequences of the data breach and to comply with any data breach notification obligation towards the Personal Data Authority as well as the information obligation towards data subjects.
  4. The parties have recorded their agreements about the procedure to be followed in the event of a data breach in a procedure for mandatory data breach notification, as described in Article 8. This procedure may be amended if the state of the art so requires or if the regulations concerning the mandatory data breach notification change.
  5. If the processor fails to report the data breach in a timely manner in accordance with the data breach notification procedure referred to in Article 8, it will owe the Controller an immediately payable fine of €2,500 plus 2% of this amount for each hour that the notification is late.

Article 8 – Data breach notification procedure

If a data breach occurs, the following procedure applies:

  • the processor records all security incidents in a manner that is understandable to the controller
  • this record will include at least the following data: a description of the incident; the number of persons (approximately) affected by the incident; the group(s) of persons affected by the incident; the date and time of the incident; the nature of the breach; the type of data affected; the possible consequences for the persons affected; the technical and organizational measures taken in response to the incident; in what way the leaked data were secured; whether the data were hashed, rendered inaccessible or can be remotely erased c.q. have been erased; and whether and if so what data of persons in other EU countries were affected by the data breach
  • the processor informs the controller within 8 hours of becoming aware of the incident at the same time handing over the record of it, as described above
  • for the first 24 hours after informing the controller of a data breach, the processor shall keep himself continuously available for consultation with the processor or any experts designated by the processor
  • the controller consults with the processor to assess whether the incident should be reported to the Personal Data Authority
  • the controller informs the processor in advance, when it decides to report the leak to the Personal Data Authority
  • the processor provides the controller with all necessary cooperation so that the latter can make a data breach notification to the Personal Data Authority in compliance with legal requirements
  • the processor provides all cooperation to the controller in order to be able to inform the affected persons about the data breach in accordance with Article 34 AVG

Article 9 – Requests from data subjects

  1. Any request for inspection, rectification, data erasure, restriction of processing, transferability of data or objection referred to in Articles 15 to 21 AVG that reaches the processor shall be forwarded to the controller without delay.
  2. The Processor shall provide all reasonable cooperation to the Controller so that the latter can comply with a request referred to in paragraph 1 within the legal time limits.
  3. The responsible party will reimburse the processor for the reasonable costs incurred by such cooperation.

Article 10 – Sub-processors.

  1. Processor shall not be entitled to engage sub-processors to process the personal data under this agreement unless it has received prior written consent.
  2. The processor is responsible and liable for the actions of sub-processors engaged by it.
  3. If a processor engages a sub-processor, it shall be obligated to stipulate that such sub-processor fulfills all obligations imposed on the processor by this Agreement and shall enter into a contract with such sub-processors for that purpose consistent with this Agreement.
  4. If the Processor engages sub-processors without consent as referred to in paragraph 1, the Processor shall be liable to a penalty of €500 without prejudice to the Controller’s right to full compensation.

Article 11 – Access to personal data

The processor shall ensure that the controller maintains access to the personal data in question at all times, even in the event of its bankruptcy or suspension of payments.


Article 12 – Liability and indemnity.

  1. The Processor is not responsible for damages resulting from violations of any laws or regulations by the Controller.
  2. The Controller shall indemnify the Processor against third-party claims and costs incurred by Processor as a result of a breach referred to in paragraph 1.
  3. The Controller is not responsible for damages resulting from violations of any laws or regulations by the Processor.
  4. The Processor shall indemnify the Controller for third party claims and costs incurred by the Controller as a result of a breach referred to in paragraph 3.
  5. The other party, in a case referred to in paragraph 1 or 3, is entitled to terminate the main agreement with immediate effect.

Article 13 – Termination and consequences of termination.

  1. This agreement ends only after the underlying assignment has ended and the Processor has transferred all personal data provided to it to the Controller or to a third party designated in writing by the Controller in advance, as well as all data remaining with the Processor and any sub-processors have been destroyed.
  2. At the request of the Controller, the Processor shall make the personal data provided to it available in a different format than that in which they were provided for reimbursement of the reasonable cost thereof.
  3. Instead of transferring the data, the controller may also request the processor to destroy the data.
  4. Destruction of the data referred to in paragraph 3 can take place only after the responsible party has given prior written consent.
  5. However, the provisions of Article 4 remain in full force and effect.

Article 14 – Consequences of nullity or voidability


If any part of the agreement is void or voidable, this shall not affect the remaining provisions of the agreement. A provision that is void or voidable shall in that case be replaced by a provision that comes closest to what the parties intended when concluding the agreement on that point.

Article 15 – Online signature

If the Parties use the online signature service for this electronic contract prepared on Rocket Lawyer’s platform, they thereby certify that this contract is the original version and the contract validly binds the Parties. The Parties will receive an email once all Parties have signed this contract, which constitutes evidence that this contract has been validly formed.

Article 16 – Applicable law and competent court

  1. Dutch law applies to this agreement.
  2. All possible disputes arising from this agreement that cannot be resolved amicably shall be submitted to the competent court in the district of the responsible party’s place of business.
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